FEDERAL COURT OF AUSTRALIA

Claveria v Pilkington Australia Ltd [2007] FCA 1692

INDUSTRIAL LAW – Unlawful termination – prohibited reasons – whether a trade union a competent administrative authority within the meaning of s 659(2)(e) of the Workplace Relations Act 1996 (Cth) – whether recourse to competent administrative authority a reason for termination – reinstatement – back pay – penalty

WORDS AND PHRASES – Competent administrative authorities

Workplace Relations Act 1996 (Cth)

Occupational Health and Safety Act 2004 (Vic)

Laz v Downer Group Ltd (2000) 108 IR 244 cited

Catusanu v Ray’s Guard Security Services (unreported, MD Murphy JR, IR Court of Australia, 29 July 1997) referred to

Andersen v Umbakumba Community Council (1994) 56 IR 102 cited

Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 cited

AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140 cited

Povey v Qantas Airwas Ltd (2005) 2223 CLR 189 cited

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 cited

Zhang v The Royal Australian Chemical Institute Inc (2005) 144 FCR 347 cited

He v Lewin (2004) 137 FCR 266 discussed

Leicester v Western Desert Puntukurnuparna Aboriginal Corporation (unreported, IRCA 16/97, 10 February 1997) referred to

Weier v Modern Alarms [2007] AIRC 432 referred to

Crowley v Parker Hannifin (Australia) Pty Ltd (2006) 154 IR 88 cited

Jennings v Salvation Army (2003) 128 IR 366 cited

Zhang v The Royal Australian Chemical Institute Inc [2004] FCA 1392 cited

Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 cited

Abbott-Etherington v Houghton Motors Pty Ltd (1995) 63 IR 394 cited

Liddell v Lembke (1994) 127 ALR 342 cited

Anthony Smith & Associates Pty Limited v Sinclair (1996) 67 IR 240 cited

Treadwell v ACCO Australia Pty Ltd (unreported, Federal Court of Australia, VG 538/1997, 16 December 1997, BC9707067) referred to

Convention concerning Termination of Employment at the Initiative of the Employer 1982

Termination of Employment Recommendation 1982

Vienna Convention on the Law of Treaties 1969

Convention concerning Discrimination in Respect of Employment and Occupation 1958

Termination of Employment Recommendation 1963

VICTOR CLAVERIA v PILKINGTON AUSTRALIA LTD (ACN 005 357 522)

VID 216 OF 2007

KENNY J

7 NOVEMBER 2007

MELBOURNE

THE COURT ORDERS THAT:

1.      On or before 14 November 2007 the parties file draft minutes of orders to give effect to these reasons.

2.      The matter be listed for mention, if necessary, on 19 November 2007.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

KENNY J

REASONS FOR JUDGMENT

INTRODUCTION

1                     The applicant, Victor Claveria, commenced work at the respondent’s factory at Laverton, in Victoria, on 21 April 1994.  Save for a brief period, Mr Claveria had been working there for very nearly thirteen years, when, on 24 January 2007, the respondent terminated his employment.  Mr Claveria applies to this Court for relief, on the ground that the respondent, Pilkington Australia Ltd (‘Pilkington’), contravened s 659(2)(e) of the Workplace Relations Act 1996 (Cth) (‘the Act’) when it terminated his employment for the reason, or for reasons including the reason, that he had complained to his trade union about his treatment at Pilkington’s factory.  Mr Claveria seeks reinstatement, compensation and the imposition of a penalty on Pilkington. 

2                     Also before the Court was the respondent’s notice of motion seeking to have pars 20, 21 and 22 of the applicant’s statement of claim struck out.  Although the respondent filed this motion and a supporting affidavit prior to the hearing, it falls for determination now.

3                     Section 663 of the Act provides for applications to the Court for orders under s 665 in respect of alleged contraventions of s 659.  The preconditions to the Court’s jurisdiction under s 665 are met: see s 663(5) and (6) of the Act.  The Australian Industrial Relations Commission (‘the Commission’) has issued a certificate under s 650(2) of the Act and the applicant has lodged a notice of election in conformity with s 651. 

4                     Section 665(1) provides that, if the Court is satisfied that an employer has contravened s 659 of the Act, the Court may make one or more of the following orders:

  (a)       an order imposing on the employer a penalty of not more than $10,000;

(b)       an order requiring the employer to reinstate the employee;

(c)        subject to subsections (2), (3), (4) and (5), an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate;

   (d)       any other order that the Court thinks necessary to remedy the effect of such a termination;

   (e)        any other consequential orders.

5                     For the reasons that follow, Mr Claveria’s claim that Pilkington breached s 659(2)(e) of the Act should be upheld and he is entitled to orders that reflect this.

THE LEGISLATION

6                     This case turns on the interpretation and application of s 659(2)(e) of the Act.  Section 659  relevantly provides:

(1)       In addition to the principal object of this Division set out in section 635, the additional object of this section is to make provisions that are intended to assist in giving effect to:

(a)        the Convention concerning Discrimination in respect of Employment and Occupation, a copy of the English text of which is set out in Schedule 1 to the Human Rights and Equal Opportunity Commission Act 1986; and

(b)        the Family Responsibilities Convention; and

(c)        the Termination of Employment Recommendation, 1982, which the General Conference of the International Labour Organisation adopted on 22 June 1982and is also known as Recommendation No. 166.

(2)               Except as provided by subsection (3) and (4), 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 following reasons:

(a)        temporary absence from work because of illness or injury within the meaning of the regulations;

(b)        trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours;

(c)        non-membership of a trade union;

(d)        seeking office as, or acting or having acted in the capacity of, a representative of employees;

(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;

(f)        race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

(g)        refusing to negotiate in connection with, make sign, extend, vary or terminate an AWA;

(h)        absence from work during maternity leave or other parental leave;

(i)         temporary absence from work because of the carrying out of a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances. 

(Emphasis added)

Neither subs (3) nor subs (4) have any bearing on any issue in this proceeding. 

7                     Section 659 forms part of Div 4 of Pt 12 of the Act.  Section 635 states that the principal object of Div 4, headed “Termination of employment” is:

(a)       to establish procedures for conciliation in relation to certain matters relating to the termination or proposed termination of an employee’s employment in certain circumstances; and 

(b)       to provide, if the conciliation process is unsuccessful, for recourse to arbitration or to a court depending on the grounds on which the conciliation was sought; and

(c)        to provide for remedies appropriate to a case where, on arbitration, a termination is found to be harsh, unjust or unreasonable; and

(d)       to provide for sanctions where, on recourse to a court, a termination or proposed termination is found to be unlawful; and

(e)        by those procedures, remedies and sanctions, and by orders made in the circumstances set out in Subdivision D, to assist in giving effect to the Termination of Employment Convention. 

(Emphasis added)

As s 635 states, amongst other things, Div 4 is intended “to assist in giving effect” to the Termination of Employment Convention, which is to be found in Sch 4 of the Act.

8                     By virtue of s 664, the respondent bears the onus of proving that it did not terminate the applicant’s employment for a proscribed reason, or for reasons that included a proscribed reason.  Section 664 reads as follows:

In any proceeding under s 663 relating to a termination of employment in contravention of section 659 for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section:

(a)        it is not necessary for the employee to prove that the termination was for a proscribed reason; but

(b)        it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 659(3) or (4) applies).

(Emphasis original)

Section 664 is substantially identical to s 170CQ of the Act as it stood prior to the Workplace Relations (Work Choices) Act 2005 (Cth).  The authorities on s 170CQ and predecessor provisions are therefore relevant: see, e.g., Laz v Downer Group Ltd (2000) 108 IR 244 (‘Laz’) at 255 per Moore J.

THE PARTIES’ SUBMISSIONS

9                     Counsel for Mr Claveria argued that Pilkington had terminated Mr Claveria’s employment in contravention of s 659(2)(e) of the Act, because Pilkington included in its reasons for termination the fact that: (1) Mr Claveria had recourse to competent administrative authorities; and (2) that he had filed a complaint against his employer involving alleged violation of laws or regulations.  Relying on s 664, Mr Claveria submitted that it was incumbent on Pilkington to establish, on the balance of probabilities, that his complaint to the union was not one of the reasons for Mr Dunstan’s decision to terminate his employment. 

10                  The first part of Mr Claveria’s argument was that, by seeking the assistance of the union on the morning of 24 January 2007, he had recourse to “competent administrative authorities” within the meaning of s 659(2)(e).   He relied on Catusanu v Ray’s Guard Security Services (unreported, MD Murphy JR, IR Court of Australia, 29 July 1997) (‘Catusanu’).  His counsel argued that the expression “competent administrative authorities” was to be broadly construed and, having regard to the status and rights accorded trade unions under Australian law, the expression applied to the union to which Mr Claveria had recourse.  Counsel added that s 659(2)(e) was essentially a remedial provision designed to protect an employee against retaliatory termination where the employee took certain legitimate action against an employer in order to redress a relevant grievance.  In view of its remedial character, the provision was to be liberally construed to constitute in substance “a catch-all” to cover the range of avenues available at law for the redress of grievance, including resort to a trade union.  

11                  Mr Claveria also argued that he filed a complaint within the meaning of s 659(2)(e) when he made his complaint to Mr Skourdoumbis by telephone on the morning of 24 January 2007.  Alternatively, he argued that a complaint was filed when his complaint to Mr Skourdoumbis about the respondent’s treatment was relayed by Mr Seneviratne to Mr Dunstan on the afternoon of that day.  Mr Claveria contended that a complaint might be filed, although there was nothing in writing.

12                  Counsel for Mr Claveria argued that reinstatement was appropriate and that the respondent’s challenge to his work performance was unsubstantiated.  In relation to penalty, counsel submitted that the Court should have regard to the serious nature of the contravention: namely, there had been an infringement of a basic right or freedom.  Counsel also submitted that there has been a degree of duplicity about Pilkington’s reasons and the Court should have regard to this.

13                  Pilkington argued that Mr Claveria was continually absent from work and that he had been warned and been subject to a final warning.  It was Pilkington’s case, so counsel argued, that “the problem involved the Applicant being repeatedly absent from his work cell and talking to Ms Julia Concepcion”.   Counsel for Pilkington submitted that the evidence of Mr Dunstan was more reliable than the evidence of Mr Claveria and, generally, the respondent’s witnesses should be preferred to the applicant’s witnesses.  In particular, Pilkington contended that the Court should accept Mr Dunstan’s evidence as to whether the words “bullying” and “harassing” were used on 24 January 2007 and the reasons for Mr Claveria’s frequent absences from his cubicle.  Pilkington contended that Mr Claveria’s evidence on this score was improbable because of the number of matters that he could not recall. 

14                  In opposition to Mr Claveria’s case and in support of its strike-out motion, Pilkington submitted that, on no view, could Mr Claveria sustain his contention about “filing a complaint”.  It was, so Pilkington said, nonsensical to argue that a telephone call could constitute the filing of a complaint within the meaning of s 659(2)(e) of the Act.  

15                  Pilkington further submitted that the expression “competent administrative authority” did not cover the union or, indeed, any trade union.  Counsel for Pilkington referred to the legislative history of s 659(2)(e), the legislative context and dictionary definitions.  He submitted that the decision in Catusanu was wrong.  Counsel argued that the expression described an authority with the capacity and the right to determine a controversy, which is properly raised with it.  In written submissions, counsel said:

No attempt to aggregate different sources of authority into a composite ‘competent administrative authority’ should be considered to create the authority required by section 659(2)(e) of the [Act]. 

Pilkington contended that: (1) the union was not an administrative authority because it had nothing to administer.  Rather, it was “a partisan player in the industrial field”; (2) the ‘administration’ of the award is not the sole province of the union; (3) s 659(2) “serves the public policy aim of preventing retaliation”; and (4) the powers of the union are not the powers of a ‘competent administrative authority’.  In the latter regard, Pilkington said:

The flavour of the 659(2)(e) section is that of dragging the employer to some third party capable of exercising coercive or investigatory powers.  The union fundamentally lacks these. … The powers of entry and inspection are not sufficient.

16                  Counsel for Pilkington argued that, in the circumstances of the particular case, Mr Claveria’s allegation of bullying by ‘watching’ him in the factory could not amount to a complaint of violating any law, in view of the type of work that Mr Claveria performed and his circumstances, including the warnings he had already received.  Alternatively, he argued that there was no relevant relationship between the termination and the ‘filing of a complaint’ or Mr Claveria’s recourse to the union.

17                  Pilkington argued that, if a contravention of s 659(2)(e) were found, compensation in lieu of reinstatement was the more appropriate remedy.  If a penalty were to be imposed, then, so its counsel argued, it should be a modest one in view of Pilkington’s good record.

Evidence

18                  Mr Claveria gave evidence at the hearing.  Others giving evidence on his behalf were Julia Concepcion, his co-worker; Alwin Seneviratne, the workplace union delegate employed full-time at the factory on day shift as a quality auditor; Leo Skourdoumbis, the branch secretary of the FFTS division of the Construction, Forestry, Mining and Energy Union (‘the union’); and Frank Vari, assistant secretary of the union, FFTS branch.  Three other union employees with organising roles also gave statements, which were admitted into evidence without objection.

19                  Pilkington relied principally on the evidence of its human resources manager, John Findlay, and its line manager at the Laverton factory, Michael Dunstan.  Amanda Bowkett also gave evidence.  At the relevant time, she was the quality engineer and group developer at the Laverton factory.  Relevantly for this proceeding, she acted as scribe at the meeting on 24 January 2007, at which Mr Dunstan told Mr Claveria that his employment was terminated.  Loi Chan Ly (at the hearing referred to sometimes as “Mr Ly” and sometimes as “Mr Chan”) also gave evidence.  Mr Ly was the shop steward for the afternoon shift at the Laverton factory and he also attended the 24 January 2007 meeting.

THE ACCEPTED AND INCIDENTAL FACTS

20                  I set out first the undisputed facts, together with the facts that may be disputed but are not critical to the issues falling for resolution.

21                  The Laverton factory was a single-level factory of about 3,000 square metres.  The factory produced glass windscreens for cars.  At the time Pilkington terminated Mr Claveria’s employment, he worked on the assembly line during the afternoon shift.  This shift began at 3 pm and ended 11 pm.  Mr Claveria’s principal task was to prime the glass, by applying certain chemicals to it. 

22                  When he was priming, Mr Claveria worked inside a cubicle at one end of the factory floor.  The cubicle was closed on all but one side.  There was also a window on one side adjacent to the cubicle opening.  Amongst other things, the cubicle contained a metal storage cabinet, an extractor, a turntable and workstation, and a ‘snorkel’. The cabinet, which stood towards the back of the cubicle, contained the chemicals used in priming.  Here was also the glass to be primed.  The operation of the extractor created a good deal of noise.  Accordingly, when priming, Mr Claveria wore earplugs, as well as a safety mask, gloves, long-sleeved overalls and boots.  The turntable and workstation for work in progress stood about the middle of the cubicle.  The snorkel was a pneumatic device used for lifting glass.  Primed glass was stored immediately outside the cubicle.  There was also a trolley for rejected glass. 

23                  Mr Claveria’s priming work required him to move around his cubicle, from the back (where he collected glass for priming) to the centre (where he primed the glass) and to the front (where he stored the primed glass).  He was required to check the glass before he primed it and to put damaged glass aside.  He used the snorkel to lift the glass and the turntable to lay the glass in an appropriate position to be primed.  The snorkel moved when it lifted the glass.  It was possible to see the movement of the snorkel – a long red object hanging from overhead rails – from elsewhere in the factory, including from an upstairs vantage point adjacent to the line manager’s office.  If he encountered no problem, Mr Claveria would complete about 200 or more units of primed glass over an eight hour shift.  He took about one to two minutes to prime one unit of glass.

24                  In the course of his shift, Mr Claveria was required to leave his cubicle from time to time for work purposes, as, for example, in order to speak to the shift coordinator about materials and equipment or the forklift driver about the supply of glass.   He would also leave for personal reasons, as, for example, in order to go to the washroom and toilet.  Furthermore, from around June 2006 until his termination, Mr Claveria was the elected Health and Safety Representative under the Occupational Health and Safety Act 2004 (Vic) (‘OHS Act’).  In this capacity, he would, from time to time, speak to other employees about safety issues. 

25                  The line manager, Mr Dunstan, worked from an office on a mezzanine floor within the factory building.  Mr Dunstan could not see the factory floor from his office.  He could see the floor if he went to a particular vantage point on a deck beyond his office, but even from here he did not have a clear view of Mr Claveria’s cubicle.  Mr Dunstan’s evidence was that, from this vantage point, he could not see Mr Claveria’s work station fully, but he could see the movement of the snorkel as Mr Claveria used it to lift glass.  Mr Dunstan said (and I accept) that he could see Mr Claveria as he put out the primed glass. 

26                  Mr Dunstan became line manager at the Laverton factory in August 2006.  In this capacity, he was supposed to supervise the team leaders and shift co-ordinators, who in turn supervised the process workers.  As it happened, almost as soon as he arrived at the factory, Mr Dunstan encountered problems.  His evidence was that this system of supervision was not working.  Furthermore, the plant and equipment at Laverton was not designed to meet the demand for production that had greatly increased from June 2006.  In evidence, Mr Dunstan said:

I was supposed to have a Team Leader beneath me to do the supervision which I could not do on the shop floor.  I found that most of the tasks I allocated to the Team Leader were not done, and I did them myself. 

He stated that the Laverton plant was not “running too well, there was a lot of machinery breaking down, so I would spend most of my day on the shop floor”.  He added that “[a]s a consequence to that, all of our work cells … they had no way of keeping up.  They were really under pressure, under the pump”.  Furthermore, the workplace at Laverton had other problems too.  In cross-examination, Mr Dunstan said “[t]here was more gossip at Laverton than I’ve ever been associated with in any other employment place”.  It was clear that, at the time Mr Claveria was terminated, Mr Dunstan felt under pressure as manager and that he had felt this way during December 2006.

27                  Mr Claveria had not encountered any significant problems at the Laverton factory for about six years prior to the arrival of Mr Dunstan’s immediate predecessor, Ian Hastie, in mid to late 2005.  In May 2006, however, Mr Claveria received a first written warning that his employment might be terminated.  Mr Claveria explained that he had been late on a few occasions.  This was because he was unable to leave his infant son until his wife returned home from the Laverton factory, where she worked day shift.  Mr Claveria received a final written warning from Mr Hastie in July 2006, not long before Mr Dunstan arrived as line manager. 

28                  Initially Mr Dunstan had no problems with Mr Claveria’s work.  Sometime in August 2006, Mr Dunstan reminded him that he was on a final warning, but tempered this by saying, “I am a new manager and we’re going to make this a clean slate”.   Mr Claveria recalled Mr Dunstan telling him that he was starting again. 

29                  Sometime after this, as a result of something said to him by Mr Claveria’s godmother (who was also an employee at the factory), Mr Dunstan commenced to monitor Mr Claveria’s movement around the factory floor more closely than for other employees.  Mr Dunstan’s evidence was that, in late September 2006, he told the shift coordinators that they were responsible for Mr Claveria’s actions and that, from this point, he “took a greater interest in monitoring where [Mr Claveria] was, and whether he was at his work station”.  Mr Claveria agreed that Mr Dunstan was often on the factory floor, where he would watch Mr Claveria at work and sometimes would stop Mr Claveria going to or from the toilet and ask him to return to work.

30                  Mr Claveria received a notice recording Pilkington’s dissatisfaction with aspects of his conduct shortly before the end of the year.   On 11 December 2006, Mr Dunstan gave him what he termed ‘a written warning’ stating:

Victor was advised on three occasions in the week ending 7/12/2006.  He was observed spending more than 20 minutes and up to 34 minutes for tea break.  He was also advised he was regularly being observed leaving his work station and talking to people and distracting them.  [He] was advised his production output is significantly below other people[’s] performance.

This warning had an uncertain status.  The notice also recorded that Mr Claveria did not agree that the allegations against him were true.  Mr Claveria denied the allegations again at the hearing.  These allegations were not made in consequence of Mr Dunstan’s observations of Mr Claveria.  Rather, they were made by a Mr Miller, who did not give evidence.  I return to this matter below.

EVENTS AT THE FACTORY ON 23 AND 24 JANUARY 2007

31                  This case concerns events at the Laverton factory on 23and 24 January 2007, although not all the evidence about these events is disputed. 

32                  The afternoon of 23 January 2007 began badly for Mr Claveria.  He was not at his workstation at 3:10 pm.  At 3:20 pm (according to Mr Dunstan’s file note made six days later) Mr Dunstan saw him walking in the direction of the toilets and said:

You’re late, you[’re] not at your work station … we are going to be good this year aren’t we?

33                  Mr Dunstan did not ask for an explanation.  Rather, according to Mr Claveria, Mr Dunstan simply pointed to his watch.  Mr Claveria continued on his way.  In evidence, Mr Claveria said, “I just pass and go to my work because I know he is watching me”.  In cross-examination, Mr Dunstan conceded that he did not regard this incident as particularly serious.

34                  Somewhere between 6:15 pm (according to Mr Claveria) and 6:45-7:15 pm (according to Mr Dunstan) on 23 January 2007, Mr Claveria was at his workstation in his cubicle when Ms Concepcion, who was another process worker, came to ask him for some safety gloves to use in her work.  Mr Claveria said that he took off his mask to say he did not have a matching pair.  Since she said she did not mind this, he gave her two gloves, though they did not match.  Mr Claveria and Ms Concepcion gave clear evidence, which I accept, that the conversation lasted only about a minute before Ms Concepcion returned to her own workstation.

35                  In the meantime, Mr Dunstan had noticed them talking together and walked over to Mr Claveria’s cubicle.  In his witness statement, Mr Dunstan said that Ms Concepcion moved back to her work area only when she saw him coming towards Mr Claveria’s cubicle and that he “did not see either of them handle a glove”.   I prefer the evidence of Mr Claveria and Ms Concepcion as to these matters.  In cross-examination, Mr Dunstan admitted that he would not have been able to see whether they had anything in their hands at the time.  He also acknowledged that he “would expect a safety representative to have a full kit of PP, including surgical gloves on hand to give whoever needed it at the time”.    

36                  Mr Dunstan reprimanded Mr Claveria for talking to Ms Concepcion and reminded him of the final warning he had been given by the former manager in July 2006.  Mr Claveria explained that he was responding to Ms Concepcion’s request for gloves.  Ms Concepcion joined the discussion, reiterating that it was she who had asked for the gloves needed for her work.  Mr Dunstan admonished her, saying she was not supposed to talk to Mr Claveria and that she should ask for gloves from the shift coordinator.  In cross-examination, however, Mr Dunstan agreed with Mr Claveria and Ms Concepcion that there was nothing unusual about asking a worker in a priming cell for gloves because they invariably had some spare gloves close at hand. 

37                  The discussion ended on this basis.  Mr Claveria, Ms Concepcion and Mr Dunstan gave evidence to this effect.  Mr Dunstan said that he raised his hands palms facing Mr Claveria and moved away.  He agreed in cross-examination that he closed the discussion with something like “we’ll leave it at that”.  He conceded in cross-examination that he considered at that time that the matter was closed.  His file note of 29 January 2007, which records the incident in some detail, also makes it clear that he regarded the incident as concluded at the end of the discussion.

38                  I accept, however, that Mr Claveria found this incident distressing because he perceived that it was part of an oppressive regime of surveillance that Mr Dunstan had put in place with respect to him.  As already mentioned, Mr Dunstan had set out to have Mr Claveria’s movements closely monitored from the latter part of 2006.  Both Mr Dunstan and Mr Claveria’s evidence was consistent on this point.  Mr Claveria’s evidence was that he often noticed Mr Dunstan and sometimes others watching him while he worked; and that Mr Dunstan often watched him when he visited the toilet, talked to workmates, or moved about the workplace.  Mr Dunstan’s evidence was entirely consistent with this.

39                  Mr Claveria gave evidence that, if Mr Dunstan stopped him, he would say: “Don’t worry. I have to go back to my work”.  Mr Claveria’s evidence was that Mr Dunstan did not give him a chance to explain himself.   At the hearing Mr Claveria became distressed when asked about this monitoring, saying:

… every day he checked me.  Every minute, every time he check me.  I don’t remember when is the exact time or exact date … I remember he check me most of the time when I move my car and I go to the toilet.

40                  The following exchange between Pilkington’s counsel and Mr Claveria illustrates the level of scrutiny to which Mr Claveria believed himself subject:

Mr Claveria (through his interpreter):           Yes, the problem is he [Mr Dunstan] is always keeping an eye on me – like I haven’t got any freedom.

…

Respondent’s counsel:                                    Mr Claveria, you are a process worker in a discrete cell performing priming; that is right, isn’t it?

Mr Claveria (through his interpreter):           Yes.

Respondent’s counsel:                                    So what freedoms do you imagine that you require in order to do your job?

Mr Claveria (through his interpreter):           Not to keep an eye on me all the time, almost continuously for eight months.

41                  There is little doubt that, as at 23 January 2007, Mr Claveria was finding this surveillance particularly stressful and, for this reason, telephoned the union on the morning of the next day, 24 January 2007, to seek the union’s assistance.  I would add that Mr Claveria impressed me as an honest witness, although he found it painful to recall the events of 23 and 24 January 2007 and his recollection of events was imperfect.  The clarity of his evidence was also impeded by his lack of command of the English language.  This undoubtedly contributed to some apparent inconsistencies in his evidence.

42                  When he called the union on 24 January 2007, Mr Claveria spoke with Mr Skourdoumbis, the union’s branch secretary.  Mr Skourdoumbis’s evidence, which I accept, was that Mr Claveria related the incident about the gloves the previous day and told him that Mr Dunstan was constantly keeping an eye on him; that he was constantly being watched with regard to toilet and other breaks; and that he was feeling stressed on account of this treatment.  Mr Skourdoumbis said that Mr Claveria “sounded upset and agitated”.   Mr Skourdoumbis said that, based on what he was told, he thought that Mr Claveria had been bullied and harassed.  Mr Skourdoumbis told Mr Claveria that he thought that what had happened to him amounted to bullying and harassment and that the union would do something about it.  Mr Claveria’s evidence was entirely consistent with this.  So too was that of Mr Seneviratne, referred to below.   Having regard to the level of surveillance that Mr Claveria believed he was subject to and the distress it was occasioning him, Mr Skourdoumbis’s evidence is entirely plausible.

43                  Mr Skourdoumbis gave credible evidence that, in his conversation with Mr Claveria, he formed the view that Mr Dunstan had been subjecting Mr Claveria to bullying and harassment.  In cross-examination, he said that he took Mr Claveria’s complaint seriously enough that, in accordance with the union’s usual practice, he thought it should be raised with the union delegate at first instance.  This was Mr Seneviratne.  Later that day, Mr Skourdoumbis telephoned Mr Seneviratne. Mr Skourdoumbis asked him to take up the matter.  In cross-examination, Mr Seneviratne said that Mr Skourdoumbis had specifically used the words “harassing and bullying” when describing Mr Claveria’s allegations about Mr Dunstan’s conduct.  Both Mr Skourdoumbis and Mr Seneviratne gave clear evidence to this effect.  I accept their evidence.

44                  Mr Claveria went to work in the afternoon of 24 January 2007.  Some minutes after starting his shift at 3 pm, he spoke to Mr Seneviratne outside his cubicle about his concerns.  Mr Seneviratne worked day shift between 7 am and 3 pm.  Mr Seneviratne stated that he was going to speak with Mr Dunstan before he left for the day.  The conversation between Mr Claveria and Mr Seneviratne took less than 10 minutes.

45                  Shortly after 3 pm Mr Dunstan looked out from his upstairs vantage point.  In evidence, he said that since he could not see the snorkel moving in Mr Claveria’s cubicle, he assumed that Mr Claveria was not at his work station.   According to his witness statement, Mr Dunstan said to himself “I have had enough of this”; and decided at this point that he would terminate Mr Claveria’s employment.  He reiterated this proposition at the hearing. 

46                  At the hearing, Mr Dunstan was at pains to say that the fact that Mr Claveria was not at work in his cubicle as he should have been was a “very, very typical occasion” and “at that point, that was enough”.  When asked in cross-examination whether this observation “spurred” him to decide to terminate Mr Claveria, Mr Dunstan answered:

Typically, yes.  However, right at that point in time, Alwin [Seneviratne] came up to me to tell me that Victor had also been to the union again. 

47                  The exchange continued:

Applicant’s counsel:   Yes, but just on the question of seeing Mr Claveria not there at his workstation, do you say that’s the thing that pushed you over the edge?

Mr Dunstan:   Absolutely.

Applicant’s counsel:   That was the final thing?

Mr Dunstan:   Yes

48                  As it happened, at this time, Mr Claveria was in fact talking with Mr Seneviratne.  Further, for the reasons that follow, I reject Mr Dunstan’s statement that he decided to terminate Mr Claveria’s employment at this point simply because he could not detect the snorkel moving in Mr Claveria’s cubicle.

49                  Sometime shortly after Mr Dunstan observed no snorkel movement in Mr Claveria’s cubicle, Mr Seneviratne spoke to Mr Dunstan in his office.  Mr Seneviratne’s evidence was that he expressly told Mr Dunstan that Mr Claveria had made a complaint to the branch secretary of the union that Mr Dunstan was “bullying and harassing” him and always keeping an eye on him.  According to Mr Seneviratne, in this conversation, Mr Dunstan denied that he was always keeping an eye on Mr Claveria.  Mr Seneviratne asked Mr Dunstan to meet with Mr Skourdoumbis or the union organizer (who was on leave at the time) and Mr Claveria.  Mr Dunstan told Mr Seneviratne that he would first have to speak with Mr Findlay, Pilkington’s human resources manager, and called Mr Findlay in Mr Seneviratne’s presence.

50                  Mr Dunstan’s account of this part of his conversation with Mr Seneviratne on 24 January 2007 was different from Mr Seneviratne’s account.  In his witness statement Mr Dunstan stated that, in this conversation, Mr Seneviratne said:

‘Victor has been to the union again’.   He also said he ‘had been to see Leo’.  He did not say anything about harassment.  He did not use the words ‘bullying’ or ‘persecution’, or words of that kind.

His file note of 29 January 2007 was a little different.  In this file note, Mr Dunstan said that Mr Seneviratne had “advised me that Victor had contacted the Union Branch alleging his concerns and required another meeting”.  Mr Dunstan said in cross-examination that he did not then know what these concerns were.  He reiterated that he did not know what Mr Claveria would have said to the union and that he had “no idea what the union would have become involved in”. 

51                  I find Mr Dunstan’s statement in evidence that he did not ask Mr Seneviratne for some account of Mr Claveria’s “concerns” (the word used in his 29 January 2007 file note) is implausible, having regard to Mr Dunstan’s position as manager, Mr Seneviratne’s role, and Mr Dunstan’s relationship with Mr Claveria and Mr Seneviratne.  Mr Seneviratne’s evidence about his conversation with Mr Dunstan at this point is consistent with Mr Dunstan’s file note.  More particularly, it is consistent with Mr Skourdoumbis’s and Mr Claveria’s evidence about their respective conversations with Mr Seneviratne and with the fact that Mr Seneviratne apparently went to speak with Mr Dunstan on account of these conversations.  As I explain below, where the evidence of Mr Seneviratne conflicts with that of other witnesses, I prefer the evidence of Mr Seneviratne.

52                  Mr Dunstan telephoned Mr Findlay in Mr Seneviratne’s presence, and spoke with him over the speakerphone.  Mr Findlay’s evidence was that he received the telephone call from Mr Dunstan about 3:45 pm on the afternoon of 24 January 2007.  The call proceeded on speakerphone.  In his witness statement, Mr Findlay said that:

Immediately Dunstan began talking about the Applicant’s work.  Michael said words to the effect that ‘the Applicant had been away from his work station’, and ‘he had enough of it’.  Dunstan also mentioned other occasions after the factory had started up after the Christmas break where the Applicant had also been away from his work station. 

Mr Findlay referred to Mr Seneviratne’s proposal for a meeting with the union organiser, Mr Andrew Vendramini, adding:

I said no to this.  I said to Dunstan and Alwin that ‘any issues should be dealt with immediately’, or similar words.

…

I said to Dunstan, ‘if it’s a repeat of the previous behaviour, and given the Applicant is already on a final warning for the same behaviour, and if there is no adequate explanation, the Applicant’s services should be terminated’.  I also said that Michael needs to get Victor in, and get Victor’s side of the story, and make sure that he, Dunstan, had witnesses and to make sure that he had representatives if Victor desired them.

…

I also said ‘if it were my decision, I would terminate him’.

…

Alwin made no mention of the Applicant’s contact with Skourdoumbis or that the Applicant had complained of bullying and/or harassment.

53                  Mr Seneviratne’s evidence was that, in this conversation, Mr Dunstan told Mr Findlay that Mr Claveria had complained to the union that Mr Dunstan was harassing and bullying him.  Mr Dunstan related the incident of the previous day.  Mr Seneviratne reiterated his request for a meeting.  Mr Seneviratne also gave evidence that Mr Findlay said:

[H]e was sick of coming over to Laverton so often and that Victor should have been sacked already.  John [Findlay] said that he would leave it up to Michael to handle the matter.

He reiterated this account in cross-examination. 

54                  In cross-examination, Mr Findlay and Mr Dunstan denied that Mr Seneviratne had mentioned Mr Claveria’s complaint to the union about bullying and harassment, although Mr Findlay conceded that he may have said that he was sick of coming to Laverton and that he may have forgotten part of the conversation.

55                  In cross-examination, Mr Seneviratne said he could not recall Mr Dunstan saying “Victor is away from his workstation and I’ve had enough”, as Mr Dunstan alleged.  Mr Seneviratne doubted that these words were said, because the conversation was about Mr Claveria’s complaint and a proposed meeting with the union.  He denied that Mr Dunstan referred to terminating Mr Claveria’s employment.  He also denied that the discussion was mainly about Mr Claveria’s performance.

56                  As indicated, to the extent that the evidence of Mr Findlay and Mr Dunstan was inconsistent with the evidence of Mr Seneviratne, I prefer the evidence of Mr Seneviratne.   His evidence through-out was clear, coherent, plausible and given with a conscientious regard for the truth.  He answered questions directly and in a balanced way.  In giving evidence, he indicated where his recollection was clear and where there was a possibility for mistake.  Both Mr Dunstan and Mr Findlay gave evidence that Mr Seneviratne was a person to be trusted. Mr Dunstan added that he “involved Alwin in nearly every discussion I had that related to people within Laverton”.  Mr Seneviratne was an entirely credible witness.

57                  Further, it seemed that at times Mr Findlay tailored his evidence to suit the respondent’s case. At times Mr Findlay was evasive in the sense that he unwilling to answer questions directly.  On occasions, in cross-examination, he sought to argue Pilkington’s case, rather than answer the questions directed to him. 

58                  Mr Dunstan, who was the principal witness for the respondent, did not give his evidence clearly and directly.  He responded to questions defensively and, on some occasions, evasively.   He was anxious to justify himself and his actions towards Mr Claveria.  It was clear from his evidence that he felt that his position as manager at the Laverton factory was a very difficult one and that he took at least some of these difficulties personally, including the difficulties that he believed Mr Claveria presented.  Mr Dunstan was not a reliable witness.  I have already indicated that I found Mr Dunstan’s evidence about one critical matter implausible.    I indicate below other respects in which I found his evidence implausible.

59                  I reject the proposition that Mr Dunstan indicated in the conversation with Mr Findlay that he was proposing to terminate Mr Claveria’s employment because he could not see the snorkel moving in Mr Claveria’s work station at the beginning of the afternoon shift.  I accept that the catalyst for, and the substance of, this conversation was Mr Seneviratne’s statement to Mr Dunstan that Mr Claveria had spoken with the union about his perceived mistreatment at the factory and, at least from Mr Seneviratne’s perspective, a proposed meeting between management, the union and Mr Claveria to discuss the matter.

60                  Mr Seneviratne left Mr Dunstan’s office after the conversation with Mr Findlay, although, at Mr Dunstan’s request, he did not leave for the day.  Mr Seneviratne waited for a while.  Eventually, Mr Dunstan came to advise him that he was going to terminate Mr Claveria’s employment and to ask him to bring Mr Claveria to the office.  Shortly afterwards Mr Seneviratne and Mr Lyaccompanied Mr Claveria to Mr Dunstan’s office.  Ms Bowkett and Darryl Colt (a process improvement engineer) were also present.  Mr Claveria gave evidence (which I accept) that he was very upset during this meeting. 

61                  As noted previously, Ms Bowkett acted as the scribe for the meeting.  Her evidence was that Mr Dunstan invited her to attend the meeting shortly before it began and that prior to the meeting she knew nothing more than that Mr Claveria was to be the subject.  She stated, and I accept, that she wrote notes of the meeting as it progressed and typed up these notes some days later, on 29 January.   Ms Bowkett was plainly an honest and reliable witness and her notes were the most reliable evidence of what occurred at the meeting. 

62                  Ms Bowkett’s evidence was that Mr Dunstan began the meeting by saying that he needed to talk about an incident on 23 January 2007 and that the discussion at the meeting was “all about the afternoon of the 23rd”.   She also said that Mr Claveria claimed, in his own words, that Mr Dunstan was harassing and bullying him.  This is consistent with her typed notes, which recorded that Mr Dunstan invited Mr Claveria “to relay his concerns about the talk they had on the afternoon of 23/01/07”.   Thereafter, Ms Bowkett’s notes relevantly read as follows:

·        Victor accuses Michael of harassing and bullying him; staying at work to look at him; and said he is not happy that Michael is not allowing him to talk to anyone.

…

·        Victor claims Michael has asked Rovel Roazul (afternoon shift, shift co-ordinator) to keep an eye on Victor.  …

·        Victor then says that his treatment by Michael is harassment and that he is stressed by this harassment

·        Victor says he respects Michael as the Manager, but as of the conversation on 23/01/07 he believes Michael has started speaking to him differently

·        Victor says that Michael does not give him “… any freedom to work here”

·        Victor says that he feels “grounded” because he is not allowed to talk to anyone

·        Victor says that he is also upset that Michael keeps threatening him that he is on final warning; on his last chance.  Victor claims that Michael has mentioned this more than once, and feels it is a threat to him

·        Victor claims Michael is using other people to spy on him …

·        Victor mentions that in relation to the warning he received last year, not all the claims were true, but some were.  Michael questions what was true and Victor admits that he is sometimes late for work and does go to the toilet

·        Michael says that he keeps having to remind Victor that he is on a final warning because he is not seeing any change in Victor’s behaviour

·        Victor says that it is about the way Michael talks to him; that Michael embarrasses him in front of others

·        Victor than [sic] says that he did nothing wrong yesterday (23/01/07) when Michael first spoke to him at the start of his shift – when Michael spoke to him about still not being on the job at the right time

·        Michael explained that he has had to have conversations and give warnings about Victor constantly talking to Julia (Concepcion)

·        Victor than say [sic] that [he] was in his work cell yesterday, at the back of the cell (at time of second conversation with Michael)

·        Michael says that he was in the work area but he was not working; he was talking again to Julia

Ms Bowkett’s notes record that, after Mr Claveria left the room, Mr Dunstan said that Pilkington was “not willing to deal with Victor anymore”.  When Victor returned, Mr Dunstan informed him that his employment was terminated and that the “meeting has been following the rules of procedural fairness to ensure that Victor has his side of the story told”.  In re-examination, Ms Bowkett stated that her notes omitted a conversation at the meeting between Mr Claveria and Mr Ly.  Nothing ultimately turns on this.

63                  Mr Dunstan agreed that Ms Bowkett’s notes were the most reliable record of what had occurred at the meeting.  His own file note of 29 January 2007 was as follows:

At 1631 hours on the 24/1/2007 I asked Victor to discuss this [sic] concerns with the company in view of repeated poor performance and ongoing disregard to matters of concern to Pilkington then contact with Union with the view of another meeting wasting everybody’s time.  His concerns were as follows:

·        Victor believes I am keeping an eye on him.

·        That I am walking around his work area

·        Victor stated that I have asked people to keep an eye on Victor (I mentioned because he kept doing the same things, Talking, disrupting and lateness back to work station)

·        I asked Victor did he recall that I spoke to Victor earlier that that [sic] evening 23/1/2007 because he was late to commence work at his work station He did recall.

·        Victor stated that he was told he was on a final warning and did not like me saying that.

·        Victor stated he was not happy about Phil Miller (Site Leader) checking up on him; I mentioned that some of the concerns were justified, Victor agreed.

I asked, was the above the extent of Victor’s concerns and then advised Victor there has been no change in Victors attitude to work and therefore Victor’s employment with Pilkington is terminated.

I advised Victor he was terminated for the following reasons;

·        Not at his work station at the required time.

·        Distracted from work and away from work station.

·        Repeated offences of the above and to continually having to review his work performance.

(Emphasis added)

When Mr Dunstan’s notes of 29 January 2007 are compared with Ms Bowkett’s, it is plain enough that his notes blend his recollected account of the meeting with after-the-fact justification for Mr Claveria’s termination. 

64                  Mr Seneviratne gave evidence that, at the commencement of the meeting, Mr Dunstan asked Mr Claveria whether he had “any concerns” and that Mr Claveria asked him what he meant by this.  According to Mr Seneviratne, Mr Dunstan reiterated his question about “any concerns”.   Mr Seneviratne said that Mr Claveria went on to relate the incident of the previous day and to allege that Mr Dunstan was bullying and harassing him and always keeping an eye on him.  In cross-examination, Mr Seneviratne was clear that Mr Claveria had used the words “bullying” and “harassing”.  Mr Dunstan responded that he was not keeping an eye on him and that he just happened to see Mr Claveria and Ms Concepcion talking together the previous day.  Mr Claveria insisted that he was harassing him.  According to Mr Seneviratne, Mr Dunstan then told Mr Claveria that the reason for the meeting was to inform him that his employment was being terminated.  Mr Seneviratne said that Mr Dunstan gave three reasons: (1) poor performance; (2) distracting others and talking too much; and (3) failing to observe previous warnings.  In cross-examination, Pilkington’s counsel challenged Mr Seneviratne to explain why he had not sought to defend Mr Claveria at this meeting.  Mr Seneviratne replied: “I couldn’t say anything much at that time because it was a shock to me” and he thought he would leave it to the union. 

65                  I accept Mr Seneviratne’s account of this meeting.  First, it was entirely consistent with Ms Bowkett’s typed notes.  As already indicated, I find Mr Seneviratne was a truthful and reliable witness. 

66                  Further, even allowing for his clearly anxious and distressed state when Mr Claveria gave evidence of these matters at the hearing, Mr Claveria’s account was consistent with Mr Seneviratne’s evidence and Ms Bowkett’s notes. According to his witness statement, at the meeting, Mr Claveria said to Mr Dunstan words to the effect:

The way you are treating me is harassment, and I am very stressed.  I cannot go on working like this, I have no freedom. 

In cross-examination, Mr Claveria also said:

… I say to Michael Dunstan, what do you mean any concern because I don’t really [know] anything, I know I don’t know anything … What I said, Michael, what does that mean? The incident happened yesterday when somebody … asking for gloves.  He didn’t say anything at all, he said any concern, any concern. I said to them, Michael, respect me as a worker, I respect as my manager.  I love my job … I said I have no freedom …

67                  Mr Ly, whose use of English language was poor, added little to the evidence about the meeting save that he too agreed that Mr Claveria had referred to the fact that he felt that the company was watching him.  In cross-examination, he agreed too that workers at the factory moved out of their work stations for numerous valid reasons in the course of their shift.

68                  About a week later, on 1 February 2007, Mr Seneviratne and Mr Vari, the assistant secretary of the union, FFTS branch, attended a meeting at the factory with Mr Dunstan and Mr Findlay to discuss Mr Claveria’s termination.  Mr Seneviratne’s evidence was that Mr Vari asked Mr Dunstan why Mr Claveria was sacked and that Mr Dunstan had reiterated the three reasons mentioned at the 24 January 2007 meeting.  According to Mr Seneviratne, when Mr Vari asked him about the 23 January incident, Mr Dunstan said that Mr Claveria had accused him of harassment and bullying after the matter had been resolved and that Mr Claveria had gone behind his back.  Mr Seneviratne also said that Mr Dunstan had denied that Mr Claveria was sacked for this reason.    

69                  Mr Vari’s evidence was that he attended the 1 February 2007 meeting in order to speak with Pilkington about Mr Claveria’s termination and re-instatement.  Mr Vari said he put to Mr Dunstan and Mr Findlay that Pilkington “had only decided to sack Victor [Claveria] after Alwin [Seneviratne] approached Dunstan alleging bullying and harassment”. Mr Vari acknowledged that Mr Dunstan had initially referred to Mr Claveria’s non-performance, distracting behaviour and failure to comply with previous warnings but that, when pressed, Mr Dunstan commented on several occasions during the meeting that so far as he was concerned the incident on 23 January (involving the gloves) was resolved but that Mr Claveria “went behind my back and made a complaint to the Union”.  Mr Vari’s evidence was that, at one point while Mr Dunstan was saying these things, Mr Findlay cut him off, saying “[t]hat’s enough”.  In cross-examination, Mr Vari reiterated that Mr Dunstan said that he felt that Mr Claveria had “gone behind his back and made a complaint to the union for harassment”.

70                  Mr Findlay and Mr Dunstan denied that Mr Vari had made any mention of bullying or harassment.  Mr Dunstan’s evidence was that he had told Mr Vari that Mr Claveria’s employment was terminated for the reasons stated in his file note of 29 January 2007.

71                  Mr Findlay’s evidence was that Mr Vari said that he believed that there were problems with the termination as it looked like Mr Claveria had been terminated because he had approached the union.  In his witness statement, Mr Findlay added that:

I stopped their discussion, and said ‘that’s enough of that’.  I said that I did not want to discuss the Applicant’s work performance, and finished the conversation with the words ‘that’s enough’.

Mr Findlay recalled Mr Vari saying that the termination was “flawed” and procedurally unfair and indicating that Mr Claveria should be offered a redundancy package.  Mr Findlay denied that he had cut off Mr Dunstan in the way that Mr Vari alleged.  In oral evidence in chief, Mr Findlay said:

Basically, what was discussed was whether there was any possibility of a termination package for Mr Claveria, to which we replied ‘No’.

72                  In cross-examination, Mr Findlay stated that he could not recall much being said about the incident of 23 January, because “the real focus”, as he saw it, was Mr Vari’s attempt to negotiate a generous termination settlement for Mr Claveria, which, according to Mr Findlay, he was “not going to entertain”.  He denied that he had stopped Mr Dunstan from saying more in order to stop him doing further damage to the company’s position.

73                  To the extent that the evidence given by Mr Seneviratne and Mr Vari conflicts with the evidence of Mr Findlay and Mr Dunstan, I prefer the evidence of Mr Seneviratne and Mr Vari.  Both Mr Seneviratne and Mr Vari gave clear and direct evidence about the 1 February 2007 meeting.   As I have said, at the hearing, Mr Seneviratne impressed me as a truthful and reliable witness.  I am also satisfied that Mr Vari was a truthful witness.  Like Mr Seneviratne, Mr Vari was an entirely credible witness.  Mr Vari also presented as a conscientious witness determined to give his evidence to the Court honestly and fairly.  He was not shaken in cross-examination.  There was no suggestion that Mr Seneviratne and Mr Vari had concocted the accounts they gave.

74                  It is clear from the foregoing account that Mr Dunstan made the decision that Mr Claveria’s employment was to be terminated.  Mr Dunstan said as much; and his evidence in this regard is corroborated by Mr Findlay and Mr Seneviratne.  Mr Dunstan denied that he had decided to terminate Mr Claveria’s employment because Mr Claveria had gone to the union alleging Mr Dunstan was bullying and harassing him.   As we have seen, he maintained that he made the decision on account of Mr Claveria’s poor performance; the fact he was distracting others and talking too much; and his failure to observe previous warnings.  His file notes of 29 January 2007 provided some further support for his position in this regard.  As already indicated, however, I would not regard these notes as an entirely reliable account since they include some matters by way of after-the-fact justification.  I have already indicated that I prefer Mr Seneviratne’s account of the speakerphone conversation with Mr Findlay to that of Mr Findlay and Mr Dunstan.

75                  Prior to Mr Dunstan’s decision to terminate Mr Claveria’s employment, Mr Dunstan was aware that Mr Claveria had contacted the union alleging, so far as the union was concerned, that Mr Dunstan was bullying and harassing him.  This was the effect of Mr Seneviratne’s evidence about his initial conversation with Mr Dunstan on 24 January 2007,   prior to the conversation with Mr Findlay.  It was also the effect of Mr Seneviratne’s evidence about the speakerphone conversation between Mr Findlay, Mr Dunstan and himself.   His evidence in this regard was consistent with his evidence about his telephone conversation with Mr Skourdoumbis earlier that same day.  Mr Dunstan gave evidence that Mr Seneviratne had not used the words “bullying” or “harassing” prior to the meeting at which he notified Mr Claveria his employment was terminated.   I have, however, already indicated that I prefer the evidence of Mr Seneviratne to that of Mr Dunstan on this point.

76                  I do not accept Mr Dunstan’s evidence that he decided to terminate Mr Claveria’s employment before he had any conversation with Mr Seneviratne, when he looked out from his upstairs vantage point at the beginning of the afternoon shift on 24 January 2007 and could not see the snorkel moving in Mr Claveria’s cubicle.  First, Mr Dunstan’s own file notes of 29 January 2007 did not mention that this observation was the occasion for his decision to terminate Mr Claveria.  I am not satisfied by Mr Dunstan’s explanation that he made only an incomplete ‘brain dump’ into his file notes.  If the matter were as critical as Mr Dunstan’s evidence suggested, then it is unlikely that he would not mention it in his own note.  There was also no reference to this matter in Ms Bowkett’s transcription of the notes she took in the meeting later that day.  Indeed Ms Bowkett’s evidence on the point was clear.  According to her, there was no reference to any event on 24 January 2007 in the meeting that day.  Rather, her evidence was that Mr Dunstan referred to the incident of 23 January.   As I have said, Ms Bowkett impressed me as a credible witness.  Further, no-one else present at the 24 January meeting gave evidence that any incident that day was discussed at the meeting.  

77                  Moreover, in the circumstances as they then existed, Mr Dunstan’s evidence that he looked out from his upstairs vantage point and, since he could not see Mr Claveria’s snorkel moving, determined to terminate his employment is implausible.  Mr Dunstan conceded that, as at 24 January 2007, he had no reliable evidence about the quality of Mr Claveria’s work. 

78                  In addition, Mr Dunstan accepted that he would not necessarily have had a clear view of Mr Claveria’s work station from this vantage point and that what he saw would not necessarily have shown that Mr Claveria was in dereliction of his work duties.  Even Mr Dunstan agreed in cross-examination that “under normal circumstances” it would have been unfair of him to take action against Mr Claveria unless he had investigated the reason for his apparent absence from his work station.  As already noted, Mr Ly corroborated Mr Claveria’s evidence in at least one respect, namely, there were all sorts of legitimate reasons for an employee to be absent from his work station.  There was no reason to doubt Mr Ly’s reliability as a witness on this score. 

79                  In the course of giving evidence Mr Dunstan emphasized that he would “often” look from his upstairs vantage point and fail to see Mr Claveria at his work station.  In cross-examination, however, Mr Duncan agreed that there were various work-related reasons for a worker to move around the factory floor.  He acknowledged too that Mr Claveria would have had occasion to talk to other workers in his capacity as the safety representative.  Also in cross-examination, Mr Dunstan conceded that he had not kept notes of any occasion when he had found Mr Claveria absent from his work station and he had never seen him carry out his work.

80                  Furthermore, there was nothing about the gloves incident the previous day that could have given it continuing significance for Mr Dunstan.  Mr Claveria, Ms Concepcion and Mr Dunstan each gave evidence that the incident had ended almost as quickly as it had begun.  Moreover, the incident did not indicate that there had been any misconduct on Mr Claveria’s part, asMr Dunstan’s file notes of 29 January 2007 apparently corroborated. 

81                  Mr Dunstan called the meeting on 24 January 2007, in order to terminate Mr Claveria’s employment.  Although Mr Claveria was able to speak, it is clear that Mr Dunstan had made up his mind to terminate his employment before he called the meeting.  This is borne out by the evidence of Mr Seneviratne and Mr Ly.  Mr Claveria was asked to state “his concerns” but was not told of the case he had to meet.  I would give no credence to Mr Dunstan’s statement that he might have changed his mind had others present spoke up for Mr Claveria.  This is implausible given Mr Dunstan’s firm evidence that he had determined to terminate his employment prior to the meeting and Mr Seneviratne’s and Mr Ly’s evidence that they knew this to be the case.  Further, Mr Dunstan did not give anyone called to the meeting any time to consider what was about to happen or why it had to happen that day. 

82                  Finally, there was the evidence of Mr Vari and Mr Seneviratne about the meeting on 1 February 2007.  Both of them described Mr Dunstan as becoming frustrated and saying words to the effect that he considered the gloves incident ended until Mr Claveria went behind his back and made allegations to the union about Mr Dunstan’s mistreatment of him. 

83                  In this case I am not satisfied that Mr Claveria’s complaint to the union and request for the union’s assistance on the morning of 24 January 2007 was not a reason for the termination of his employment.    

84                  The evidence of a relationship between Mr Claveria’s resort to the union and Mr Duncan’s decision was strong.  Mr Dunstan’s file notes of 29 January 2007, which he put forward as a reliable document, indicates the gravity with which Mr Dunstan viewed Mr Claveria’s communication with the union, and that he regarded this as a disciplinary issue on account of “contact with the Union with the view of another meeting wasting everybody’s time”.  Ultimately Mr Dunstan did not deny that there was a relationship of sorts.  His evidence was that Mr Seneviratne’s communication that Mr Claveria had been to the union was “just another straw”.  In cross-examination Mr Dunstan was asked whether the news that Mr Claveria had gone to the union tipped him over the edge with respect to his further employment.  He replied:

No, I wouldn’t say so.  It was just – that was added to – it was – if you want to talk about straws that – on the camel’s back, that was just another one.

The exchange continued:

Applicant’s counsel:   That was one of the straws on the camel’s back, that he had gone off and complained to the union?

Mr Dunstan:   Look, it was in terms of wasting people’s time.

Applicant’s counsel:   It was one of the straws on the camel’s back that he had gone off [to] the union, wasn’t it?

Mr Dunstan:   Absolutely.

85                  Having regard to the evidence and the circumstances that the evidence discloses, the respondent has failed to show that it did not terminate Mr Claveria’s employment for reasons that included the fact that Mr Claveria had complained to the union alleging Mr Duncan’s mistreatment of him.  Furthermore, this evidence permits me to be affirmatively satisfied that it was a reason for Mr Dunstan deciding on 24 January 2007 to terminate Mr Claveria’s employment with the respondent.  

Consideration

86                  Subsection 659(2)(e) refers to three events: (1) the filing of a complaint and (2) the participation in proceedings, where the complaint or the proceedings are against an employer involving alleged violation of laws or regulation; and (3) recourse to competent administrative authorities.  An employer must not terminate an employee’s employment on account of any of these events.  No issue arises in relation to “proceedings”.  Accordingly, two matters may now fall for consideration.  Did Mr Claveria’s communication to the union on the morning of 24 January 2007 constitute “recourse to competent administrative authorities”?  Alternatively, did the action of Mr Claveria, or Mr Claveria and Mr Seneviratne, constitute the “filing of a complaint”? If the answer to either question is ‘yes’, then the respondent contravened s 659(2)(e) of the Act.

87                  The expression “competent administrative authorities” is not defined in the Act.  It is not an expression that has any particular accepted meaning in Australian law.  Nor is it defined in the International Labour Organization (‘ILO’) Convention concerning Termination of Employment at the Initiative of the Employer 1982 (C158) (done at Geneva on 22 June 1982; entered into force on 23 November 1985), from which s 659(2)(e) and the expression “competent administrative authorities” plainly derive.  The Act refers to the ILO Convention C158 as “the Termination of Employment Convention”.  I refer to it in this way hereafter.   

88                  Section 659(2)(e) must be construed having regard to its statutory context and purpose, in this case, both general and particular.  At least one object of s 659(2)(e) is “to assist in giving effect to the Termination of Employment Convention”: see ss 635(1)(e), 637(5) and [90]–[94] below.  Section 659(1) confirms the importance of the Convention in the context of s 659 by proving that an additional object of the section is “to assist in giving effect to” the Termination of Employment Recommendation, 1982 (R166) (done at Geneva on 22 June 1982) (‘Termination of Employment Recommendation 1982’): see also s 637(6).  Though it has no direct relevance to the present case, according to its preamble, the Termination of Employment Recommendation 1982 “supplements” the Termination of Employment Convention. 

89                  Pilkington argued that the words “to assist in giving effect to” in s 635(1)(e), as opposed to the stronger form, “to give effect to”, were significant in the present case.  It noted that the legislature had altered the language of the objects provision from its original and stronger form to the present, weaker version. 

90                  Examination of the history of the objects provision shows this change in language.  Section 170CA(1) of the Industrial Relations Act 1988 stated that the object of Div 3, which included an equivalent provision to s 659(1)(e) (namely, s 170DF(1)(e)), was “to give effect, or further effect, to” the Termination of Employment Convention and the Termination of Employment Recommendation 1982.  Section 170CA(1) was later amended, with the effect that s 170CA(1)(e) of the Workplace Relations Act 1996 took on the form it now has in s 635(2)(e), which states as an object “to assist in giving effect” to the Termination of Employment Convention. 

91                  I do not, however, consider that the change has any significance for the construction of the expression “competent administrative authorities”, although it may be important for other purposes.  Whilst the present language may indicate that the legislative object of the Division as a whole is more qualified than it was earlier, there is no suggested basis for the contention that this affects the meaning attributable to the particular expression “competent administrative authorities” in s 659(2)(e) and its predecessor provisions.

92                  The legislative history of s 659(2)(e) supports the conclusion that: (1) the particular object of s 659(2)(e), as opposed to Div 3 as a whole,  has always been to give effect to art 5(c) of the Termination of Employment Convention; and (2) the meaning of the expression “competent administrative authorities” in s 659(2)(e) has not altered since first introduced into Australian legislation and has always borne the same meaning as in the Convention. 

93                  An identical provision to s 659(2)(e) was introduced into the Industrial Relations Act 1988, as s 170DF(1)(e) of that Act, by s 21 of the Industrial Relations Reform Act 1993.  This followed very shortly after Australia’s ratification of theTermination of Employment Convention in February 1993.  Section 170DF(1)(e) was virtually the same in terms as art 5(c) of the Termination of Employment Convention.  Article 5(c) provides, amongst other things, that “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” “shall not constitute valid reasons for termination”.  At the time s 170DF(1)(e) entered Div 3 of Pt VIA of this Act, s 170CB stated that “[a]n expression has the same meaning in [Div 3] as in the Termination of Employment Convention”.  That is, unsurprisingly, the meaning of the expression “competent administrative authorities” in art 5(c) and s 170DF(1)(e) of the Industrial Relations Act 1988 was the same.

94                  Section 170DF(1)(e) was renumbered as s 170CK(2)(e) by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) and renumbered again as s 659(2)(e) by the Workplace Relations (Work Choices) Act 2005 (Cth).  Save for renumbering and some contextual changes, there has been no change in the language of s 659(2)(e) since its introduction as s 170DF(1)(e) of the Industrial Relations Act 1988.  Further, in s 642(5), the current Act continues to provide that “[a]n expression used in this Subdivision [A] or Subdivision C or D has the same meaning as in the Termination of Employment Convention”.  Section 659 forms part of Subdivision C.  Although the respondent argued to the contrary, I infer from the statutory objects provisions, s 642(5), and the legislative history of s 659(1)(e) and s 642(5) that the meaning of the expression “competent administrative authorities” in s 659(1)(e) bears the same meaning as in earlier equivalent provisions and art 5(c) of the Termination of Employment Convention, from which the statutory provisions derive.

95                  The meaning of the expression “competent administrative authorities” in the Termination of Employment Convention thus falls for consideration.  In Andersen v Umbakumba Community Council (1994) 56 IR 102 at 104-105, von Doussa J commented that “[t]he rules which govern a national court when construing an International Convention which has been enacted into Australian domestic law are more liberal than the traditional canons of construction of the English common law”.  His Honour’s comment was cited with approval in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 (‘Mohazab’) at 203.  The Vienna Convention on the Law of Treaties 1969 (done at Vienna on 23 May 1969) 1155 UNTS 331 (entered into force on 27 January 1980) (‘the Vienna Convention’) provides relevant interpretative principles: see AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140 (‘AB v Registrar’) at [80] per Kenny J; Povey v Qantas Airwas Ltd (2005) 2223 CLR 189 at 202 per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ;  and Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 231 per Brennan CJ, 240 per Dawson J, 251-6 per McHugh J and 277 per Gummow J.  Article 31(1) of the Vienna Convention requires that the Termination of Employment Convention be interpreted “in good faith in accordance with the ordinary meaning to be given to [its] terms … in their context and in the light of its object and purpose”.  Context, for this purpose, includes the text and the preamble.  State practice may be relevant: see Vienna Convention, art 31(3)(b).   The Vienna Convention, in art 32, permits recourse to the preparatory work of the Termination of Employment Convention and the circumstances of its conclusion.

96                  Neither party suggested that any guidance on the present question could be gleaned from any other international instruments, such as other ILO instruments that might affect termination of employment. 

97                  The preamble to the Termination of Employment Convention indicates that the Convention was designed to state international standards with regard to the termination of employment at the initiative of the employer.  The Convention is obviously aimed at providing protection for workers against unjustified termination: see also Mohazab at 205 per Lee, Moore and Marshall JJ.

98                  The Termination of Employment Convention sets out general principles in terms that allow ratifying countries a deal of flexibility in their manner of observation.  Thus, art 1, which falls into Pt I headed “Methods of Implementation, Scope and Definitions”, contemplates that States will differ in the manner in which effect is given the Convention, taking account of national differences.  The basic principle affirmed in art 4 of the Convention is that an employee’s employment is not to be terminated without a valid reason, being a reason relating to the employee’s capacity or conduct or based on the operational requirements of the employer’s undertaking.   Article 5, with which this case is principally concerned, lists reasons that do not constitute valid reasons.  Article 5 states reasons that “shall not constitute valid reasons for termination” include union membership or participation in union activities, acting as a workers’ representative, race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin, and maternity leave.  I have already referred to art 5(c), which is reproduced in s 659(2)(e) of the Act.  I interpolate that thebalance of art 5 is expressed in s 659(2)(b), (d), (f) and (h), although not always in terms identical with art 5.  For example, s 659(2)(f) is wider than the equivalent art 5(d), presumably to give effect also to other international instruments such as the Convention concerning Discrimination in Respect of Employment and Occupation 1958 (C111) (done at Geneva on 25 June 1958: entered into force on 15 June 1960) and the Termination of Employment Recommendation 1982: see s 659(1).  Article 6 provides that temporary absence from work because of illness or injury is not a valid reason for termination of employment: see s 659(2)(a).

99                  Article 7, within Div B of Pt II, concerns procedure prior to or at the time of termination.  Article 8 and 9, within Div C of Pt II, deal with appeal procedure.  Other articles within Pt II relate to the period of notice (art 11) and severance allowance and income protection (art 12).  Part III of the Convention is devoted to “Supplementary Provisions concerning Termination of Employment for Economic, Technological, Structural or Similar Reasons”.

100               The Termination of Employment Convention uses the expression “competent administrative authorities” only once – in art 5(c).  Elsewhere the Convention refers to “competent authority”:  see, e.g, arts 2.4 and 2.5 (“measures may be taken by the competent authority or through the appropriate machinery”; art 8.2 (“competent authority” as opposed to “a court, labour tribunal, arbitration committee or arbitrator” in art 8.1 and “bodies” in arts 9.1 and 9.3; and arts 14.1 and 14.3 (notification to the “competent authority”).   It may be inferred from this usage that the expression “competent authority” embraces any body that has the relevant capacity under national law to act in the way that the relevant article contemplates, as for example, to take the measures contemplated in arts 2.4 and 2.5, or to receive the notifications referred to in arts 14.1 and 14.3.  It may also be inferred that the expression “competent authority” is wider than the words “a court, labour tribunal, arbitration committee or arbitrator”.  The expression “competent administrative authorities”, on the other hand, apparently contemplates competent authorities of a particular kind.  That is, the expression contemplates competent authorities of an administrative kind, as opposed to competent authorities of another variety (such as competent legislative authorities or competent judicial authorities).

101               The preparatory work is of some limited assistance.  The Termination of Employment Convention has its immediate origins in the ILO Termination of Employment Recommendation, 1963 (R119) (done at Geneva on 26 June 1963).  This instrument laid down basic standards regarding, amongst other things, the need for a valid reason for employment termination (point 2).  It also contained the predecessor provision to art 5(c).  It provided, at point 3(c), “the filing in good faith of a complaint or the participation in a proceeding against an employer involving alleged violation of laws or regulations” “should not constitute” a valid reason for termination.  As can be seen, this early provision differed from the current art 5(c) in two respects: first, it contained a “good faith” requirement; and, secondly, it did not contain the expression “recourse to competent administrative authorities”.

102               The ILO prepared two reports, Report VIII (1) and Report VIII (2), on the Termination of Employment at the Initiative of the Employer, in preparation for the sixty-seventh session of the International Labour Conference (‘ILC’) convened at Geneva in 1981.  Neither report throws any light on the present question: see ILC, 67^th Session 1981, Report VIII (1): Termination of Employment at the Initiative of the Employer Eighth Item on the Agenda (International Labour Office, Geneva, 1981) p 25 and ILC, 67^th Session 1981, Report VIII (2): Termination of Employment at the Initiative of the Employer Eighth Item on the Agenda (International Labour Office, Geneva, 1981) pp 34-36.  The ILC adopted these reports at its sixty-seventh session and resolved to take up the adoption of a new recommendation and convention at the sixty-eighth session: see ILC, 68^th Session 1982, Report V (1): Termination of Employment at the Initiative of the Employer Fifth Item on the Agenda (International Labour Office, Geneva, 1982), Introduction.  A report containing the proposed texts for a new Recommendation and a convention was prepared and transmitted to members.  At this stage, there were no proposed departures in the new convention from the language of Point 2 (c) of the ILO Recommendation, 1963 (No 119): see Report V (1) pp 16, 53, 73; and Report V (2): Termination of Employment at the Initiative of the Employer Fifth Item on the Agenda (International Labour Office, Geneva, 1982), p 21. 

103               The sixty-eighth session of the ILC, which met in Geneva in 1982, examined the Report of the Committee on Termination of Employment concerning the proposed convention:  see ILC, Sixty-eighth session, Geneva, 1982, Record of Proceedings, (International Labour Office, Geneva, 1982), Provisional Record, 30/1.  Following the defeat of the workers’ members’ proposal to delete the words “involving alleged violation of laws or regulations” from proposed art 5(c), the Government member of Greece successfully introduced an amendment that sought to insert at the end of this subparagraph the words “or recourse to competent administrative authorities”.  The Provisional Record indicates that this expression was included to widen the scope of proposed art 5(c), which was not to be limited by the phrase “involving alleged violation of laws or regulations”.  With this amendment, art 5(c) assumed its final form:  see Provisional Record, 30/21.  The plenary session of the ILC adopted the Report of the Committee on Termination of Employment.  The Termination of Employment Convention and Recommendation 1982 was adopted on 22 June 1982:  see Provisional Record, 35/8, 36/6, 36/17. 

104               The Termination of Employment Convention entered into force generally on 23 November 1985.  It has been ratified by around 35 countries, including Australia on 26 February 1993.  It has not been ratified by Canada, the United Kingdom, the United States, or New Zealand and, accordingly, there is no relevant State practice to be derived from them. 

105               In 1995, the ILO prepared a retrospective survey on the effect of the Termination of Employment Convention and Recommendation, 1982.  This resulted in the ILO Report of the Committee of Experts, Protection against Unjustified Dismissal, International Labour Office, Geneva, 1995 (‘Report’).   The Committee affirmed that, “[t]he need to base termination of employment on a valid reason is the cornerstone of the Convention’s provisions”: see Report, p 31.  The Committee observed that art 5 “lists a minimum number of grounds that do not constitute valid reasons for termination of employment”: Report, p 40.  Regarding art 5(c), the Committee said, at pp 46-7 :

This invalid reason for termination of employment is an important aspect of employment security as it provides protection for workers against retaliatory measures. …

Protection of this kind can be established through provisions to protect workers against retaliatory measures when they try to defend their rights under the Constitution, the Labour Code or other legislative provisions.  …

In the General Survey on equality in employment and occupation, the Committee emphasized more specifically that the effective protection of the principle of equality presupposes the existence of guarantees providing protection against retaliatory measures for a person who lodges a complaint with the appropriate body, who institutes proceedings to enforce his or her rights, or who is a party to such proceedings as a witness.  Such measures, the most brutal form of which is termination of employment, taken against a person who has suffered discrimination and who has availed himself of a right which is his in accordance with the national policy of equal opportunity and treatment, are of a particularly serious nature … 

106               The Report makes two things clear, although they are probably apparent from the terms of the Termination of Employment Convention and its history.  First, the specific object of art 5(c) is to protect an employee from termination in retaliation for his or her recourse to an appropriate body in relation to some alleged misconduct on the employer’s part: see also Zhang v The Royal Australian Chemical Institute Inc (2005) 144 FCR 347 (‘Zhang’) at 352.  Secondly, the expression “competent administrative authorities” has no technical meaning or fixed application.  It may signify no more than an “appropriate body” (other than a legislative or judicial body or the employer) in the ratifying State to receive the communication of an allegation of misconduct on the employer’s part.  A body will be appropriate in this context if it has the legal capacity to manage or suitably address the allegation in some way (whether by investigation, a dispute resolution process, or otherwise).

107               To approach the expression in this way is in keeping with its ordinary meaning.  I refer in this connection to English language dictionaries, such as the Oxford English Dictionaryor The Macquarie Dictionary.  The expression “competent administrative authorities” is plainly a compound one.  Bearing in mind the terms, history and object of the Convention, as well as the specific object of art 5(c), it apparently signifies bodies (other than the employer) within the ratifying State having the legal capacity to manage, deal with, or suitably address the allegation in some way (other than by judicial decision or legislative action).  In this context, an allegation of misconduct on the employer’s part might be managed or suitably addressed in a variety of ways, including by investigation, reporting, prosecution, engagement of a dispute resolution process, making a determination or recommendation, or providing information and advice.  I reject the respondent’s submission that the expression “competent administrative authorities” refers only to “an authority with the capacity and the right to determine a controversy which is properly raised with it”.  This is to adopt an unjustifiably narrow approach, which is at odds with the history of art 5(c), and the aim of the Termination of Employment Convention and art 5(c).  The purpose of art 5(c) is best served if a liberal interpretation of the expression “competent administrative authorities” is adopted, because it extends to an employee the protection against illegitimate retaliatory termination that art 5(c) was designed to give.

108               As previously noted, I infer from the statutory objects provisions, s 642(5), and the legislative history of s 659(1)(e) and s 642(5) that the meaning of the expression “competent administrative authorities” in s 659(1)(e) bears the same meaning as in art 5(c) of the Termination of Employment Convention, from which the expression derives.  In particular, I reject the respondent’s submission that the expression in s 659(2)(e) should be given a more restrictive meaning than in the Convention because of ss 660 and 661.  I can discern no warrant for so doing.

109               The critical question is, therefore, whether, in the present context, the union can be properly characterized as a “competent administrative authority” in the sense outlined above.

110               To date, s 659(2)(e) has received limited judicial attention and the expression, “competent administrative authority” even less. In He v Lewin (2004) 137 FCR 266 (‘He’) at 280, a Full Court held that s 170CK(2)(e) (a predecessor of s 659(2)(e)) was “directed to the making of complaints to outside authorities, either by way of instituting proceedings against the employer, or by way of making allegations to officials who are empowered to investigate such allegations” (emphasis added).  Thus, the ground could not be established by the making of complaints directly to an employer.  Zhang followed He on this point: see Zhang at 351 per Lander J, with whom Spender and Kenny JJ agreed.

111               As already stated, absent authority on the point, the natural meaning of the expression “competent administrative authority” is a body with legal capacity to manage, deal with, or suitably address an employee’s allegation against his or her employer, in some way.  In Leicester v Western Desert Puntukurnuparna Aboriginal Corporation (unreported, IRCA 16/97, 10 February 1997) Ritter JR reached much the same conclusion: see also Weier v Modern Alarms [2007] AIRC 432 at [59] per Senior Deputy President Richards.  Thus, the Occupational Health and Safety Officer at the Victorian Trades Hall Council had no relevant competence to deal with the email communication made by Ms Zhang and was not a “competent administrative authority”: see Zhang at 350; see also Crowley v Parker Hannifin (Australia) Pty Ltd (2006) 154 IR 88 at 92 per Marshall J.

112               In conformity with this too, it has been held that an application for compensation under the no-fault compensation scheme established by the Accident Compensation Act 1985 (Vic) does not fall within s 659(2)(e); rather it is merely a claim for compensation: see  Jennings v Salvation Army (2003) 128 IR 366 at 370-371 per Marshall J approved in Zhang at 352; see also Zhang v The Royal Australian Chemical Institute Inc [2004] FCA 1392 at [15] per Finkelstein J. 

113               The specific question that arises here has apparently been considered on only one earlier occasion, by Murphy JR, in Catusanu.  Murphy JR held that the expression “competent administrative authorities” in s 170DF (1)(e) embraced the union of which Mr Catusanu was a member.  Mr Catusanu was employed by the respondent company as a security guard from May 1996 until his employment was terminated on 17 November 1997.  Two days’ earlier, on 15 November 1997, his union had sent a letter of demand to the employer alleging underpayment of some of its members, including Mr Catusanu, and foreshadowing proceedings if the matter were not rectified.  Murphy JR stated:

[T]he applicant’s participation in the union’s investigation of the alleged award breaches, and the service of a letter of demand on his behalf by the union, a registered organisation under the Act, is comprehended within the phrase “recourse to competent administrative authorities”.  Registered organisations are established under the Act.  They have been accorded a particular status, and have privileges under the Act.  They may be parties to an award.  Their privileges include the right of appearance by their officers or employees (s 469), the right to sue for recovery of a penalty for a breach of an award (s 178), or to bring an application under Part VIA (s 170EA).  Registered organisations thus have a clearly recognised and important role within the framework of the Act and for that purpose can be easily accommodated within the term “competent administrative authorities”.

The recourse by the applicant to the union, in circumstances [where] the union lodges a letter of demand on his behalf alleging a breach of an award, is recourse to a ‘competent administrative authorit(y)’ within the meaning of s 170DF(1)(e).  I am not satisfied that the respondent has excluded this recourse as a reason for its termination of the applicant’s employment.  The respondent has breached s 170DF(1)(e).

114               As previously noted, s 170DF(1)(e) was renumbered as s 170CK(2)(e) by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) and renumbered again as s 659(2)(e) by the Workplace Relations (Work Choices) Act 2005 (Cth).  The terms of the provision have not changed.  There was no formal letter of demand in the present case. However, Mr Claveria’s communication to Mr Skourdoumbis about his treatment at Pilkington’s factory and his request for assistance, which was taken up by the union and led to Mr Seneviratne requesting Mr Dunstan for a meeting to discuss Mr Claveria’s bullying and harassment allegation would constitute “recourse to a competent administrative authority” providing the union is to be regarded as such an authority. 

115               The respondent argued that not only was the decision in Catusanu wrong and that I should reject the reasoning in it, but also that under the Act as it now stood the standing of trade unions was significantly diminished.  Accordingly, the reasoning in Catusanu had even less force than before.  For the following reasons, I reject this submission.

116               Although not constituted by statute, trade unions continue to have a particular and distinct status as registered organizations under the Act. This status indicates that, for some purposes at least, they are capable of constituting “competent administrative authorities”, although whether a union has such status in any particular case will depend on the nature of the allegation an employee makes against his or her employer, the relief sought, and whether the union is legally capable of managing, dealing with, or addressing the grievance appropriately. 

117               The distinctive status of trade unions appears from the Act.  The union in this case is an organisation of employees registered or taken to be registered under the Registration and Accountability of Organisations Schedule (Schedule 1 to the Act).  There are various types of workplace agreements to which such a union may be party.  Thus, an employer may make an agreement with a trade union in the circumstances referred to in s 328 of the Act, or a union greenfields agreement in the circumstances set out in s 329.  Unions may be involved in multiple-business agreements: see s 331.  Unions continue to be parties to awards: compare ss 543, 557, 559, 560.  They continue to enjoy various rights to make applications to the Commission on behalf of employees: see, e.g., s 559(6).  They also enjoy the right of appearance by their officers or employees (ss 100(8), 854(9)); the right to sue for recovery of a penalty for a breach of an award and other industrial instruments and for certain remedies (s 718); or to bring an application under s 643 in respect of termination of employment (s 643(3)); and to apply for an order under s 665 in respect of contraventions of ss 659 and 661.  As perusal of the Act readily shows, this list is not in any way exhaustive.

118               Having regard to the breadth and importance of the rights of unions under the Act (some more of which are referred to below) it does not seem to me that a union is appropriately characterised as merely “a partisan player in the industrial field”, as the respondent would have it.  Whilst individuals may have some of the same rights as a union, they do not have the same aggregate of rights. Nor do they have them for precisely the same reasons as trade unions.  Moreover, even if a union were appropriately characterised as “the advocate and advisor” of the employee, the union would not thereby cease to be a body “outside” the employer.  Further, whilst the current Act may impose greater restrictions than previously on unions and their powers (for example, regarding a union representative’s right of entry to investigate a suspected breach, discussed below) the character of trade unions and their powers remain largely the same.

119               Plainly enough, a trade union will not be a “competent administrative authority” for every grievance.  Whether or not it has this status will depend on the nature of the grievance and the union’s legal capacity to manage, deal with, or otherwise appropriately address it.  As it happened, the union in this case had power by virtue of statute and the certified agreement to investigate and manage the allegation of workplace bullying and harassment, which Mr Skourdoumbis reasonably believed Mr Claveria had communicated to him on the morning of 24 January 2007. 

120               By virtue of the Pilkington (Australia) Limited – Automotive Division, Laverton Operations Agreement 2006 (‘the certified agreement’), which was made pursuant to the former s 170LJ and certified by the Commission pursuant to the former s 170LT, the union could manage Mr Claveria’s grievance.  The certified agreement applied to Mr Claveria’s employment. 

121               The objectives of the certified agreement relevantly included the provision of “a healthy, safe and non-discriminatory working environment whilst ensuring compliance by the parties with all applicable occupational health and safety, equal opportunity and WorkCover legal requirements” (clause 6(v)).  The certified agreement entitled the union to participate in a process to resolve grievances raised by Pilkington’s employees.  Amongst other things, the parties agreed, in clause 18(ii), that:

… subject to the provisions of the Workplace Relations Act 1996 as amended, all grievances, claims or disputes whether relevant to this Agreement or any other matter, shall be dealt with in the following manner so as to ensure the orderly settlement of the matters in question:

(a)       Any grievance or dispute that arises shall, where possible, be settled by discussion on the job between the employee and direct supervisor (e.g. Shift Co-ordinator or Site Leader).

(b)       If the matter is not resolved at this level, the matter will be further discussed between the employee concerned, the shop steward, the supervisor and the appropriate manager.

(c)        If no agreement is reached, the relevant Union official and shop steward will discuss the matter with the manager and the Company’s nominated industrial relations representative.

(d)       Subject to the rights of the parties, should the matter still not be resolved, it shall be referred by either party to the Australian Industrial Relations Commission or to a third party mutually agreed.

That is, under the certified agreement, the union was entitled to require that Mr Claveria’s grievance be dealt with by discussion between union representatives and Pilkington and, if this failed, the union was entitled to refer the matter to the Commission.  Pursuant to s 718 of the Act, the union was entitled to institute proceedings in a court for a penalty in relation to a breach of a term of the agreement.  Further, as appears below, certain union representatives had rights of entry to the workplace in respect of suspected breaches of the agreement: see [123] and [125].

122               There was a further way in which, in exercise of statutory powers, the union might have addressed Mr Claveria’s complaint.  The potential for the union to invoke these powers arose from the nature of his complaint.  As we have seen, Mr Skourdoumbis considered that, if Mr Claveria’s account were accepted, Mr Dunstan’s conduct towards him amounted to bullying and harassment on the employer’s part.  He conveyed this opinion not only to Mr Claveria, but also to Mr Seneviratne, whom he asked to look into the matter. Bullying and harassment on an employer’s part is conduct that might in some circumstances constitute a breach on the employer’s part of State occupational health and safety legislation, particularly s 21 ofthe OHS Act.   The OHS Act provides, in s 21, that an employer must, so far as is reasonably practicable, provide and maintain for employees a working environment that is safe and without risks to health.  This circumstance had the potential to attract certain rights of entry to the workplace held by representatives of the union.      

123               In addition to the rights already mentioned, trade unions also enjoy particular rights under the Act to liaise with their members in the workplace and investigate suspected breaches of industrial laws and agreements and occupational health and safety laws.  Part 15 of the Act provides a regime for the grant of entry permits to union officials.  A permit holder may enter workplace premises if the permit holder suspects, on reasonable grounds, that a relevant breach has occurred, including a breach of a certified agreement under the former statutory regime (such as the certified agreement with Pilkington).  Other provisions relate to the right of union officials to enter premises under an OHS law (broadly, a State or Territory occupational health and safety law such as the OHS Act:  see ss 755-759). 

124               Part 8 of the OHS Act alsoprovides a regime for the grant of entry permits to officers, employees and authorised representatives of unions: see s 83.  A permit entitles the holder to enter a workplace during working hours to enquire into any suspected contravention of that Act or regulations: see s 87.  On entry, the permit holder may exercise various powers, including inspecting any thing at the work place, observing work, and consulting with certain employees and the employer: see s 89.

125               There was evidence that, as at January 2007, three employees of the union (Messrs Dolman, Vendramini and Cooke) held entry permits under the Act, and two of them held entry permits under s 83 of the OHS Act. 

126               These rights of entry are also germane to the question whether in this case the union constituted a competent administrative authority for the purpose of s 659(1)(e).  This is because of the evidence of Mr Skourdoumbis that he considered that, if Mr Claveria’s account were substantiated, the conduct of which he complained amounted to bullying and harassment on the employer’s part.  As I have said, in the circumstances disclosed to Mr Skourdoumbis, this opinion was reasonably held and had the potential to attract the rights of entry by the union’s permit holders. Thus, when Mr Claveria resorted to the union on the morning of 24 January 2007, he initiated the union’s management of his complaint or grievance under the certified agreement, as well as action of the union’s part that had the potential to lead its permit holders to exercise their rights of entry to the workplace.    

127               Having regard to the rights of the union under the certified agreement, its standing and statutory rights under the Act, as well as the rights of its representatives under the OHS Act, the union is properly regarded as a body with the legal capacity to manage, deal with and appropriately address the complaint or grievance that Mr Claveria communicated to it on the morning of 24 January 2007.   It follows that it was one of the “competent administrative authorities” to which Mr Claveria might have recourse.  The nature of his complaint or grievance meant that the union had the legal capacity to manage it appropriately until it reached some resolution.   

128               In Zhang the Full Court indicated that, whilst the filing of a complaint and participation in proceedings must involve alleged violation of laws or regulations by the employer, recourse to competent administrative authorities need not: see Zhang at [23]; contra Zhang v The Royal Australian Chemical Institute Inc [2004] FCA 1392 at [3] per Finkelstein J.  This conclusion is consistent with the structure of s 659(2)(e) (and art 5(c) of the Termination of Employment Convention) as well as the history of the formulation of art 5(c): see [103] above.  If, however, recourse to competent administrative authorities must also involve alleged violation of laws or regulations, then this element is also satisfied.  This is because Mr Claveria alleged, in substance, that Mr Dunstan was bullying and harassing him.  This conduct involved an allegation of violation of s 21 of the OHS Act. 

129               Two further considerations fortify my conclusion that the union was in this case a competent administrative authority.  The first is that s 659(2)(e) is plainly a remedial provision protective of an employee’s fundamental rights.  Its interpretation is therefore governed by well-accepted principle.  Though dissenting, Black CJ reaffirmed this principle in AB v Registrar at [10] when he observed:

One consequence of the principle that a statute should be interpreted in a way that promotes its objects (whether those are expressly stated or not) is that beneficial or remedial legislation should generally be given a liberal or generous construction in preference to a technical one. 

130               Section 659(2)(e) contemplates that, in any particular situation, there may be a variety of competent administrative authorities to which an employee may have recourse.  It is therefore immaterial that Mr Claveria may have turned to another body, which also had the legal capacity to deal with his grievance.  It is enough that he turned to the union, which had relevant legal capacity to manage his complaint.  It would defeat the purpose of this remedial provision if it were to be construed with too zealous a technical eye.  To adopt an overly narrow interpretation of the expression “competent administrative authorities” is to narrow the practical protection that this provision is designed to afford.  

131               This leads me to a second consideration that fortifies my conclusion with respect to the union.  The history of trade unions in Australia is very different to the history of trade unions elsewhere (save perhaps for New Zealand).  It is well-recognized that this is in large part because of Australia’s conciliation and arbitration system, which developed around the beginning of the twentieth century.  For a discussion of this phenomenon, see Peter Fairbrother and Charlotte AB Yates, “Unions in Crisis, Unions in Renewal?” in Fairbrother and Yates, (eds), Trade Unions in Renewal A Comparative Study (Continuum, New York and London, 2003) (‘Fairbrother and Yates’) 4-5; Stephen Frenkel, “Australian Trade Unionism and the New Social Structure of Accumulation” in Frenkel (ed), Organized Labor in the Asia-Pacific Region A Comparative Study of Trade Unionism in Nine Countries (ILR Press, Ithaca, New York) (‘Frenkel’) 250-253, 279, 312-313;  David Peetz, Unions in a Contrary World The future of the Australian Trade Union Movement (Cambridge University Press, Cambridge) (‘Peetz’) 25; and Ian Turner, In Union is Strength. A History of Trade Unions in Australia 1788-1983 (Nelson, Melbourne, revised 1983 by Leonie Sandercock) 61-62. 

132               It is equally well-recognized that, for more than sixty years from around 1920, Australian trade unions were central to the country’s industrial organization.  See, in this regard, the discussions in Gerard Griffin, Rai Small and Stuart Svenson, “Trade Union Innovation, Adaptation and Renewal in Australia: Still Searching for the Holy Membership Grail” in Fairbrother and Yates, 78; and Peetz 25.  As J H Portus commented in 1958 (in The Development of Australian Trade Union Law, Melbourne University Press, Melbourne, 1958, at 115) there had been “a change in status of those trade unions which operated under arbitration Acts”.  That is:

From being associations tolerated by the state they have become semi-official associations which are given a part in the making and administration of law.

See p 115; also p 243.  It is also well-recognized that union membership and power has diminished over at least the past two decades or so but, as the Act shows, in many contexts trade unions continue to have a significant role to play in workplace regulation.  See Fairbrother and Yates in Fairbrother and Yates 10-16; Griffin, Small and Svenson in Fairbrother and Yates 78-79; Frenkel in Frenkel 265-7; and Peetz 1-8.  In the Australian context, to deny to trade unions in such a case as this the status of one of the “competent administrative authorities” to which s 659(2)(e) refers would be also to diminish the practical protection the provision is designed to afford.   

133               Having regard to my conclusion that the Mr Claveria had recourse to competent administrative authorities for the purposes of s 659(2)(e), when he communicated his grievance to Mr Skourdoumbis on 24 January 2007, it is unnecessary to consider the applicant’s alternative submission that Mr Claveria filed a complaint within the meaning of s 659(2)(e) either when he telephoned Mr Skourdoumbis on the morning of 24 January 2007 or when his grievance was relayed by Mr Seneviratne to Mr Dunstan on the afternoon of that day. 

134               For the reasons stated, I am satisfied that the respondent contravened s 659(2)(e) of the Act by terminating Mr Claveria’s employment for reasons that included the reason that Mr Claveria had recourse to competent administrative authorities within the meaning of s 659(2)(e) of the Act. 

RELIEF

135               The question arises as to what orders should be made.  Mr Claveria seeks an order for reinstatement pursuant to s 665(1)(b), which the respondent opposes.  The respondent argued that compensation in lieu of reinstatement was the more appropriate remedy.  The respondent submitted that the Court should be satisfied that Mr Claveria “may not have worked for long, even if he had not been terminated on 24 January 2007”, because of :

a.                  the nature of his work, being in automotive glass;

b.                  the reducing number of contracts …

c.                  the complaints about performance raised against the Applicant; and

d.                  the assertion that these had been raised for a lengthy period.

136               There was little evidence led at the hearing in support of the first two factors.  There was some evidence that some redundancies were foreshadowed and that Mr Claveria was likely to be amongst them.  It was, however, by no means clear from the evidence that redundancies were in any sense inevitable in the near future.  At most the evidence showed that it was possible that, if reinstated, Mr Claveria might be made redundant at some time in the near or distant future.  If this were to happen, he would be subject to the terms on which redundancies were made.  This is not a significant factor against reinstatement.

137               The principal factors relied on in opposition to reinstatement were Mr Claveria’s work performance and his relationship with Mr Dunstan.  Mr Claveria had been given a final warning by Mr Dunstan’s predecessor in July 2006.  There was, however, evidence that, when Mr Dunstan began, he had no difficulty with Mr Claveria and that Mr Dunstan told him, in August 2006, “we’re going to make this a clean slate”.   Further, there was no reliable evidence that Mr Claveria’s work performance was poor.   Mr Dunstan conceded that there was no reliable evidence about the quality and quantity of his output, and that he had never observed Mr Claveria’s work.  

138               The fact that Mr Dunstan did not see the movement of the snorkel in Mr Claveria’s cubicle on the afternoon of 24 January 2007 was not a reliable indication that Mr Claveria was not engaged in performing work duties, as Mr Dunstan himself conceded.  Mr Dunstan did not have a clear view from his upstairs vantage point; and, in any event, Mr Claveria might have been legitimately engaged on a task outside his cubicle.  The ‘gloves’ incident on 23 January 2007 did not disclose any wrongdoing on Mr Claveria’s part.  Further, as Mr Dunstan conceded, there were numerous valid reasons why Mr Claveria might have been absent from his cubicle that day, if he were absent at all. 

139               There was evidence that Mr Claveria had been given a written warning on 11 December 2006, because of some allegations made by a Mr Miller.  Mr Claveria denied the allegations in December 2006 and at the hearing.  Mr Miller did not give evidence at the hearing.  Mr Claveria’s evidence was that he did not sign the written warning given him on 11 December 2006 “because I didn’t do it”.  His evidence was that he had permission from the shift coordinator to take alleged the 34 minute tea break in order to take his daughter to the doctor in Port Melbourne.  The respondent did not seek to refute his evidence that, on this occasion, he had clocked in and clocked out.  According to Mr Claveria, he explained this but “they didn’t take notice”.  He also said that he “argued” with the allegation about his production output.  Mr Dunstan conceded that Mr Claveria had explained his 34 minute absence at the time and, as noted above, that there was no reliable evidence about Mr Claveria’s work performance.  There were two other lesser incidents of lateness reported to Mr Dunstan by other unnamed individuals, which Mr Claveria denied.  In the circumstances, I would attach little weight to this 11 December 2006 “written warning”. 

140               Mr Claveria denied that in and around the time of his termination he was absent from his cubicle for other than work-related reasons, as Mr Dunstan and Mr Ly maintained.  Mr Claveria gave firm evidence that he did not leave his cubicle other than for good reason, because, amongst other reasons, “they [were] watching me already”.  There was some evidence that Mr Claveria and Mr Ly were not on good terms with one another.  Ultimately, both Mr Dunstan and Mr Ly conceded that there were numerous valid reasons for Mr Claveria’s absence from his cubicle from time to time.  When the evidence is considered as a whole, there is nothing to substantiate the respondent’s allegation that Mr Claveria was frequently absent from his cubicle other than for legitimate reasons.

141               When consideration is given the evidence as a whole, there is insufficient to justify the conclusion that Mr Claveria’s work performance was such as to preclude or militate against reinstatement.

142               Whether there can be a satisfactory working relationship between Mr Claveria and the respondent’s representatives in the event of reinstatement is a relevant consideration.  Counsel for Mr Claveria referred me to various authorities concerning s 170EE of Industrial Relations Act 1988 as it then was: see Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 (‘Perkins’); Abbott-Etherington v Houghton Motors Pty Ltd (1995) 63 IR 394; and Liddell v Lembke (1994) 127 ALR 342.   This provision differed in terms from s 665.  Some care must therefore be taken with these authorities.  What they demonstrate, however, is that the Court has taken a reasonably robust attitude to an employer’s claim of relationship breakdown with an employee following termination in contravention of a provision such as s 659(2)(e) of the Act: compare Perkins at 191.  Moore J adopted much the same approach in Laz, in determining to make an order under s 170CR(1)(b) of the Act, which was in virtually identical terms to s 665.  Although Mr Dunstan, Mr Findlay and Mr Claveria have been the subject of some strong criticisms in the course of this litigation, I doubt that this has created an insurmountable obstacle to Mr Claveria’s reinstatement.  The nature of Mr Claveria’s work must be borne in mind, as well as the fact that he has worked for the respondent for many years.  His long experience with Pilkington indicates that he has the capacity to take up employment with the company again.  I accept that, if Mr Claveria returns to the Laverton factory, Mr Dunstan is likely to find the situation difficult initially, but I also accept that his embarrassment is likely to be short-term.  Furthermore, the nature and extent of the Pilkington’s workforce should be borne in mind.  There was evidence, which was undisputed, that Pilkington employs about 15 workers on afternoon shift at the Laverton factory and about 23 on the day shift.  It also operates a large plant in nearby Geelong.

143               In any event Mr Claveria’s interests must be borne in mind.  Mr Claveria impressed me as an employee who greatly desired to have back his job with Pilkington and would do all he could to retain it.  He had worked for the respondent for some thirteen years before his termination in contravention of the Act.  Since this happened, Mr Claveria has since struggled to find work.  He worked a few shifts as a labourer/store-person with one employer and some other irregular shifts with another employer.  He also found some other casual work.  At the time of the hearing, Mr Claveria was employed on an irregular on-call basis.  An order for compensation would be an inadequate remedy in view of these employment difficulties.  In these circumstances, Mr Claveria should not be left to compensation as a remedy for termination of his employment in breach of s 659(2)(e) of the Act: compare Laz at 259.

144               An order for Mr Claveria’s reinstatement should be made.  Mr Claveria argued that any order for reinstatement should be reinstatement “with continuity of service and in the same position and on the same terms and conditions of employment as he had immediately prior to his dismissal”.  He relied on Anthony Smith & Associates Pty Limited v Sinclair (1996) 67 IR 240.  This was a decision concerning the former s 170EE of the Industrial Relations Act 1988, which was relevantly different in terms to s 665: compare Laz at 259 per Moore J concerning s 170CR(1) of the Workplace Relations Act 1996 (which was in the same terms as s 665(1)).  The respondent argued that in truth Mr Claveria had confused the Commission’s power under s 654(3) with the Court’s power under s 665(1).  It contended that the orders that Mr Claveria sought were beyond the power of the Court. 

145               In Treadwell v ACCO Australia Pty Ltd (unreported, Federal Court of Australia, VG 538/1997, 16 December 1997, BC9707067) Parkinson JR made orders under s 170CR(1)(b) similar in terms to those Mr Claveria seeks.  If there is power to make orders of this kind, it derives from s 665(1)(d) and (e).  Whilst s 665(1)(b) permits the Court to make an order requiring the employer to reinstate the employee, s 665(1)(d) permits the Court  to make any other order it thinks necessary to remedy the effect of such a termination and s 665(1)(e) permits the Court to make any other consequential orders.  These latter powers are broad.  Section 665(1)(d) alone, alternatively s 665(1)(d) and (e) together, would support an order that the position to which Mr Claveria is reinstated be the same position on the same terms and conditions as he held prior to termination on 24 January 2007 or to another position on terms no less favourable; and that his employment be treated as having been continuous between the date of termination and the date of reinstatement.

146               Mr Claveria sought an order for compensation under s 665(1)(c).  In Laz at 261, Moore J thought it arguable that compensation and reinstatement could not be ordered in the same matter.  Instead, his Honour considered that s 665(1)(d), or s 665(1)(d) and (e), would support an order for back pay.  Indeed, in Laz at 260, Moore J thought that the power to order reinstatement may include the power to require the payment of lost wages or salary.   There is, however, nothing in s 665(1) that in terms provides that an order for compensation under s 665(1)(c) – calculated by reference to the remuneration lost by an employee as a result of the wrongful termination – cannot be made where an order for reinstatement under s 665(1)(a) is appropriate.   However characterized, Mr Claveria is entitled to an order for payment of wages lost as a result of his termination on 24 January 2007 until the date of his reinstatement.  The parties stated at the hearing that they would be in a position to make this calculation in the event the Court made an order of this kind. 

147               Mr Claveria also sought the imposition of a penalty under s 665(1)(a) of the Act.  In Laz at 261, Moore J held that the mere fact that there has been a termination in contravention of the Act does not, without more, give rise to a situation where a penalty should (as opposed to might) also be imposed.   In Laz, Moore J referred to French J’s comment in Fox v St Barbara Mines Ltd [1998] FCA 621 that:

[penalties] are punitive in character and must be assessed having regard, inter alia, to the gravity of the conduct complained of, the existence of mitigating circumstances and the need to deter the repetition of the conduct whether by the employee in question or generally.

In Fox, the employer terminated the employee’s employment with a calculated and contemptuous disregard for the law and the Court imposed a penalty of $9,000.  The employer’s conduct in Laz was not of this kind and the Court did not impose a penalty:  see generally Laz at 261 per Moore J.

148               I consider a penalty should be imposed in this case.  The respondent terminated Mr Claveria’s employment with it on 24 January 2007 for reasons that included retaliation for Mr Claveria’s having recourse to the union in connection with perceived bullying and harassment on his manager’s part.   The evidence in this regard was clear.  The respondent acted so as to deny Mr Claveria the freedom to pursue a basic right protected by the Act.  Further, there has been less than straight dealing on the respondent’s part.  This was evident in Mr Findlay’s seeking to stop Mr Dunstan from reiterating to Mr Seneviratne and Mr Vari on 1 February 2007 that he had terminated Mr Claveria because he had gone behind his back to the union.  Mr Findlay acknowledged in evidence that he knew that termination in retaliation for “going to the union” would be wrong and in breach of the Act.  Mr Findlay and Mr Dunstan knew that Mr Claveria’s going to the union had cost him his job on 24 January 2007, and the reasons that Mr Dunstan advanced to justify Mr Claveria’s termination that day did not represent the whole picture. 

149               The amount of penalty falls for consideration.  The respondent submitted that, given the size of the company, there were “remarkably few” termination proceedings issued against it and that there was only a minimal need for specific deterrence.  There was no evidence of these matters, however, and, if they are not common ground, then the respondent should have the opportunity to call evidence about its previous record.  Indeed counsel for Mr Claveria accepted as much.

150               If it be necessary, I would also grant leave to file and serve the amended statement of claim dated 5 September 2007 and the Amended Defence also dated 5 September 2007.  Further, for the reasons set out above, I would dismiss the respondent’s strike out motion, notice of which is dated 17 July 2007.

151               I propose to adjourn the matter to 19 November 2007 to enable the parties to prepare short draft minutes of order to give effect to these reasons.

Associate:

Dated:         7 November 2007