FEDERAL COURT OF AUSTRALIA

Herbert v Star Aviation Services Pty Ltd [2019] FCA 239

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding is dismissed.

2.    The Applicant is to pay the costs of the Respondents as from 8 August 2018, as agreed or assessed.

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

REASONS FOR JUDGMENT

1    The Applicant in the present proceeding, Mr Stephen Herbert, filed an Originating Application in this Court on 6 March 2018.

2    The three Respondents to the proceeding are Star Aviation Services Pty Ltd (“Star Aviation”); Mr Peter Georgiou, the Managing Director of Star Aviation; and Mr Peter Cornell, a Safety and Training Consultant retained as a contractor by Star Aviation.

3    In the Originating Application, Mr Herbert alleges a contraventions of ss 351(1) and 386(1)(a) of the Fair Work Act 2009 (Cth). Mr Herbert also claims “monetary relief in the form of one Million Dollars ($1,000,000) for Discrimination under the Commonwealth (Cth) Racial Discrimination Act 1975 Pursuant to sections 15(1)(a)(b), 18C(1)(a)”. A Statement of Claim was first filed on 3 May 2018; an Amended Statement of Claim was filed on 18 May 2018.

4    The proceeding has come before the Court for case management on five occasions. Mr Herbert has had considerable difficulty both formulating the factual basis upon which he sought to proceed and in filing the evidence he sought to rely upon.

5    On 4 September 2018, the Respondents filed an Interlocutory Application seeking (inter alia) an order that judgment be entered in their favour pursuant to r 26.01(1)(c) of the Federal Court Rules 2011 (Cth) with respect to the claim under s 351 of the Fair Work Act and an order that Messrs Georgiou and Cornell be removed as parties to the proceeding pursuant to r 9.08 of the Federal Court Rules.

6    The substantive proceeding commenced by Mr Herbert and the Interlocutory Application filed by the Respondents came on for hearing on 3 October 2018. Mr Herbert appeared on his own behalf; the Respondents were represented by Counsel.

7    On 3 October 2018, it was decided that the substantive application and the Interlocutory Application would be heard at the same time. No prejudice in doing so was claimed by Counsel appearing for the Respondents – other than the submission that it may ultimately be decided that Messrs Georgiou and Cornell should never have been joined as parties. The proceeding had to be adjourned to the following day, largely because Mr Cornell had not made necessary arrangements to be in Sydney. The public resources involved in judicial hearings, it should be noted, are not to be unnecessarily increased simply to suit the convenience of a witness. Mr Cornell should have been available for cross-examination from the outset of the hearing.

8    The proceeding is to be dismissed. It is unnecessary to resolve the Interlocutory Application.

THE CLAIMS MADE

9    Several provisions of the Fair Work Act assume relevance. Given the manner in which the facts have been resolved adversely to Mr Herbert, no detailed exposition of any of these provisions is required. But they should at least be noted.

10    Section 351 of the Fair Work Act relevantly provides as follows:

Discrimination

(1)    An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

(2)    However, subsection (1) does not apply to action that is:

(a)    not unlawful under any anti-discrimination law in force in the place where the action is taken; or

(b)    taken because of the inherent requirements of the particular position concerned; or

(c)    if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:

(i)    in good faith; and

(ii)    to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(3)    Each of the following is an anti-discrimination law:

…

(ac)    the Racial Discrimination Act 1975;

…

Section 351(1), it will be noted, refers to both a person “who is an employee, or prospective employee”. But s 351(1) does not refer to a “prospective employer”. An argument that s 351 is confined to “employers” and not “prospective employers” has been rejected: Shizas v Commissioner of Police [2017] FCA 61, (2017) 268 IR 71. Katzmann J there concluded (at 67 to 72):

[67]    It was an agreed fact that the Commissioner was Mr Shizas’s prospective employer for the purpose of s 342(1), item 2 of the [Fair Work Act]. No qualification or limitation was placed on the admission and the Commissioner never applied for leave to withdraw it.

[68]    Nevertheless, the Commissioner contended that s 351 does not apply in this case because the section does not apply to prospective employers, only “employers”. The contention must be rejected.

[69]    First, “employer” in this context has its ordinary meaning: [Fair Work Act], s 335. The ordinary meaning of “employer” is a person who employs people (Macquarie Dictionary (4th ed, Macquarie Library, 2005)), especially an individual who, or organisation that, pays a person to perform a service, particularly on a regular or contractual basis (Shorter Oxford English Dictionary (6th ed, Oxford University Press, 2007)).

…

[71]    Secondly, if the Commissioner were right, then the term “prospective employee”, when used in s 351(1), would have no work to do. The absence in s 351(1) of the adjective “prospective” before “employer” makes no difference to the natural meaning of the section, despite the definition of “adverse action” in s 342(1). There can be no prospective employee without a prospective employer. As counsel for Mr Shizas put it, an employer can only ever be a prospective employer in respect of a prospective employee.

[72]    Contextual considerations support this construction.

11    Section 360 of the Fair Work Act provides as follows:

Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

12    Section 361, a provision often referred to as the “reverse onus of proof” provision, is as follows:

Reason for action to be presumed unless proved otherwise

(1)    If:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

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

In order to invoke the reverse onus of proof provision, an applicant must establish that “the evidence [is] consistent with the hypothesis” that a respondent was actuated by a proscribed reason: General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 617 (“Bowling”). When addressing a predecessor provision to s 361 (namely s 5(4) of the Conciliation and Arbitration Act 1904 (Cth)), Mason J there concluded:

Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant. The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant. To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge.

These observations have been applied to s 361 of the Fair Work Act: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25 at [190], (2015) 230 FCR 298 at 335 per Logan, Bromberg and Katzmann JJ; Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222 at [155], (2017) 256 FCR 306 at 341 per Bromberg J.

13    The inquiry required to be undertaken by s 351 and the application of s 361 is essentially one of fact, the inquiry being directed to why action was taken. When addressing s 346 of the Fair Work Act and the prohibition there contained against the taking of “adverse action” because (inter alia) a person was an officer or member of an industrial association, in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, (2012) 248 CLR 500 at 506 (“Barclay”), French CJ and Crennan J observed in respect to that provision and s 361:

[5]    The task of a court in a proceeding alleging a contravention of s 346 is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason …

Their Honours continued (at 517):

[44]    There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”.

[45]    This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.

(footnotes omitted)

Once it is established that “adverse action” has been taken against an employee, it is then presumed that the “adverse action” was taken for the reason alleged unless the employer proves to the contrary: cf. Kennewell v MG & CG Atkins [2015] FCA 716 at [50] to [52] per Tracey J. “What the party seeking to rebut the presumption must do is to establish on the balance of probabilities that the alleged improper reason was not a reason for the taking of action”: National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 at [20], (2013) 234 IR 139 at 146 per Gray J.

THE SECTION 351 CLAIM

14    The claim as to a contravention of s 351 of the Fair Work Act fails.

15    It is concluded that:

    Mr Herbert has failed to establish that he was ever an “employee” and has failed to establish (in particular) that he was offered a contract of employment and accepted that offer during the course of a meeting held on 17 November 2017.

Even if his account of the conversation that occurred on that date were to be accepted and a finding made that an offer of employment was then made, it is further concluded that:

    any offer of employment was conditional and those conditions were never satisfied.

Even if it were to be further assumed that Mr Herbert was either an “employee” or a “prospective employee” within the meaning of s 351(1) of the Fair Work Act, and that “adverse action” had been taken against him by terminating any contract of employment or withdrawing an offer of employment, it is further concluded that:

    any such action was not taken “because of” Mr Herbert’s “family or carer’s responsibilities” within the meaning of s 351(1).

The meeting on 17 November 2017 – an offer then accepted?

16    The background to Mr Herbert’s application for employment with Star Aviation is that his daughter, Ms Elizabeth Herbert, brought to her father’s attention the fact that Star Aviation was recruiting. Ms Herbert was herself employed by Star Aviation. Mr Herbert responded to the knowledge that Star Aviation was recruiting by sending an email to Star Aviation on 9 November 2017 attaching a copy of his curriculum vitae. Mr Herbert was thereafter invited to attend a meeting with Mr Cornell on 17 November 2017.

17    The central factual contention advanced by Mr Herbert was that there was an offer of employment which he accepted at the meeting between himself and Mr Cornell on 17 November 2017. That contention is rejected. The case for Star Aviation was that there never was any contract of employment and that as from 6 December 2017 it had withdrawn the offer of employment, stating that it was “no longer in a position to offer [Mr Herbert] employment”.

18    Although it was common ground that there was a meeting on 17 November 2017 between Mr Cornell and Mr Herbert at a café at Sydney Airport, there was disagreement about what was said.

19    Mr Herbert’s account of what happened at the 17 November 2017 meeting emerges from the following exchange during the course of his cross-examination:

Interview – the interview ended. Mr Cornell thanked you for your time?––No, it didn’t end like that. He said I had the job.

He told you your application might move forward, didn’t he?––No. He said I had the job.

At this stage, Mr Herbert, you hadn’t signed any paperwork with Star Aviation, had you?––No. He gave me a verbal agreement, as – as men.

You hadn’t discussed money at all, had you?––He said I would be paid under the relevant award.

There then followed an exchange as to whether Mr Herbert had undertaken a medical examination by 17 November 2017 and it was established that he had not. The cross-examination then continued as follows:

At the time that the interview ended, you hadn’t done your medical clearance yet, had you?––No, I hadn’t, yes.

Okay. And you didn’t have an airport security identification card, did you?––At ..... no, I didn’t no.

Nevertheless, you say you thought you were an employee at that point?––From my understanding, Mr Cornell gave me a contract which made me an employee.

You thought you were an employee?––Yes, I did.

You thought your employment had commenced?––Yes, I did.

And you spoke to Mr Cornell again on Monday, that’s – the following Monday?––On the 5th?

No, 22 November?––By phone?

Yes?––I can’t be sure.

You could have?––Pardon?

You could have?––I could have, yes.

And that’s when he told you that he was offering – he was going to offer you employment, wasn’t it?––He shook my hand on the 17th, counsel, and gave me a contract. He said, “You have the job”.

He didn’t hand you---?––Crystal clear.

He didn’t hand you anything in writing, did he?––No, he shook my hand, as a man did, man to man. And just on that point, I think years ago I read that Mr – Mr Packer shook somebody’s hand and he – that man was made to honour Mr Packer’s agreement. I think the company was Gilbert & Tobin who represented Mr Packer on the handshake deal.

20    Mr Cornell’s account was significantly different. In particular, Mr Cornell maintains that he did not say “I am giving you this job”. Mr Cornell’s account of the meeting held on 17 November 2017 and the conversation that then occurred was to the following effect:

Mr Cornell:    What happened to your mobile phone? Why are you using the office phone of another company?

Mr Herbert:    I actually have five phones which are all in the process of being fixed. I just returned from a long holiday.

Mr Cornell:    You better get that sorted as you couldn’t really maintain employment with Star Aviation if you don’t have a mobile phone handy. You need a mobile phone so that we can advise you about flight delays, early or late start shifts, shift cancellations and shift coverage.

Hr Herbert:    I will have my mobile phone fixed in the next few days.

There then followed, according to Mr Cornell, a discussion about Mr Herbert’s skills and experience and the physical requirements of the position under consideration. There then followed a conversation to the following effect:

Mr Cornell:    Cabin cleaning is physically demanding. The role will include general cleaning and physical lifting. It is a fast paced working environment.

Mr Herbert:    I understand the dynamics of the role. I have previously worked in hotels and guest rooms cleaning and I understand what is required. I had a compensation claim in the past for a back injury but that was years ago and I have since been cleared with full capacity.

The meeting finished with Mr Cornell stating:

Thank you for your time. You may progress to the second stage of the interview.

21    Mr Herbert’s account of the meeting is not accepted. The account given by Mr Cornell is to be preferred and is the account which is to be accepted.

22    Mr Herbert’s has failed to establish that he was offered employment and accepted that offer at the meeting on 17 November 2017 because:

    his account is inconsistent with an email sent to him on 28 November 2017 attaching a “Letter of Offer and New Starter paperwork”, the letter of offer itself being dated 28 November 2017 and disclosing a “Commencement Date” of 4 December 2017; and

    his account is inconsistent with an exchange of emails which followed the meeting – that email exchange exposing Mr Herbert as being anxious “to commence employment” rather than already having commenced employment.

There is, in any event:

    considerable reservation as to the reliability of Mr Herbert’s evidence.

Each of these matters should be briefly developed.

23    If reference is made to some of the emails exchanged between Star Aviation and Mr Herbert:

    Mr Herbert in his email sent on 27 November 2017 “respectfully request[ed] an ‘update’ as to when [he] should receive all the material documentation required to enable [him] to commence employment with ‘Star aviation Services’”

    an email sent to Mr Herbert on 5 December 2017 apologised for the delay and foreshadowed a telephone call “to discuss all the necessary steps for your process of employment”.

An email sent to Mr Herbert on 22 November 2017 by Operations Manager Mr Joe Vecchi “welcome[ing him] to the Star family” is more equivocal, but even that email refers to “paper work” and the need to “get back to you as soon as possible”. A further email on 28 November 2017 also offered a “welcome to the team” and another on that same date offered a “[c]ongratulations” and a further “welcome to the team”. Although those three emails provided some support for the case sought to be mounted by Mr Herbert, read in context (including the need to complete “paper work”), they lead to no different conclusion.

24    The considerable reservation expressed in respect to the reliability of Mr Herbert’s evidence springs from a number of answers provided by him during his cross-examination. Although he agreed with the proposition that he was careful of what he put in email communications, his repeated use in those emails of the phrase “to commence employment” does not sit comfortably with his assertion that he believed that he had already commenced employment as a result of the conversation on 17 November 2017. Moreover, the explanation he provided for his use of the phrase “to commence employment” was more characterised by implausibility than rationality. His explanation was that he had already commenced his employment on 17 November 2017 and that the use of the phrase “commence employment” in the emails was intended to convey commencing work by being physically able to access and clean aircraft. His explanation, moreover, did not sit comfortably with the fact that he had not received any payment or been directed to do any work after that point of time when he claimed to have commenced his employment.

25    The account advanced by Mr Cornell, it is respectfully concluded, is to be preferred to that of Mr Herbert. Mr Cornell’s account of the meeting sits more comfortably with the terms employed by both himself and Mr Herbert in the email exchange subsequent to 17 November 2017. Mr Cornell’s account is also more consistent with an understandable necessity for Mr Herbert to satisfactorily pass a medical examination and obtain a security identification card before his employment could commence.

26    Reference should also be made to a meeting held between Messrs Cornell and Herbert on 5 December 2017 as it sets forth some of the background to the withdrawal of the offer of employment made on 28 November 2017. Mr Cornell gave an account of that meeting and the conversation that then took place. On his account, the meeting was scheduled for 2.00pm on that day but Mr Cornell could not initially find Mr Herbert at the scheduled time. Mr Cornell tried to contact Mr Herbert by calling the number that Mr Herbert had provided. His wife, Mrs Herbert, answered the phone and told Mr Cornell where Mr Herbert was. Messrs Cornell and Herbert ultimately found each other and, on Mr Cornell’s account, the following exchange occurred:

Mr Cornell:    Why don’t you have your mobile phone?

Mr Herbert:    I have five phones and I don’t need any of them to live my life and I’m not required to have one for work.

This response caused concern to Mr Cornell as he considered it to be inconsistent with what he had been told at the meeting on 17 November 2017 that Mr Herbert would have access to and use of a mobile phone. The conversation continued and Mr Herbert then said words to the following effect:

I love reading up on politics and legal writing. I am very interested in knowing more about this field. I am in the middle of a large court case where I am single handedly defending my son against five barristers. I have also just recently settled my injury case with my previous employer.

This statement also caused concern to Mr Cornell because he considered it to be inconsistent with a prior statement made by Mr Herbert that the work-related injury had been resolved “years ago”. There then followed steps undertaken for Mr Herbert to obtain his security identification. Mr Cornell recounts the following conversation between Mr Herbert and the customer service agent processing that application:

CS Agent:    We will need 100 points of identification to progress your application.

Mr Herbert:    Okay, I will come back with the relevant identification. Will a citizenship certificate suffice?

CS Agent:    Yes, as long as it is not laminated.

Mr Herbert:    Why? My certificate is laminated.

CS Agent:    It is a legal requirement. All applicants must comply.

Mr Herbert:    Show me the law in writing. When has this law been applied?

Mr Cornell:    Why do you want to see the law in writing?

Mr Herbert:    I want to prove a point.

Mr Cornell considered Mr Herbert was “very confrontational during this exchange”. After they had left the counter, there then followed an exchange between Messrs Cornell and Herbert as follows:

Mr Cornell:    I understand what you are trying to do but it would have been wiser just to do what everyone else does and follow the process.

Mr Herbert:    I am well within my rights to do what I like.

Mr Cornell:    Fair enough, let’s just leave it there.

27    Mr Cornell’s account of this meeting and his characterisation of Mr Herbert’s conduct is accepted. The identity of the customer service agent with whom Mr Herbert had this exchange could not be further identified other than being a female named “Wendy”.

Any offer was conditional

28    Even if Mr Herbert’s account of the 17 November 2017 conversation is to be accepted, any offer of employment was conditional upon Mr Herbert:

    signing and returning the Letter of Offer sent to him on 28 November 2017;

    obtaining a satisfactory medical assessment – an appointment for the medical examination being made for 30 November 2017; and

    obtaining a security identification card issued by ASIC.

29    That construction of the events on 17 November 2017 is consistent with the subsequent emails referring to the need for a medical examination and a security identification card. One of those email, namely one sent to Mr Herbert on 1 December 2017, referred to “medicals hav[ing] been completed” and the “need to complete and pass a 15 question quiz to obtain you airport ID card”. Other than the three emails on 22 and 28 November 2017, no other email sent to Mr Herbert is expressed in terms conveying or implying that there was an existing contract; all emails referred to the need for Mr Herbert to satisfying conditions.

The withdrawal of the offer of employment

30    On 6 December 2017, the following email was sent to Mr Herbert:

Dear Stephen,

Star Aviation wishes to advise that we are no longer in a position to offer you employment.

Star Aviation thanks you for your efforts and wishes you well in your future endeavours.

Kind regards,

Peter Cornell

Approximately two and a half hours later, Mr Herbert replied to Star Aviation with the following email (without alteration):

Good morning Manager Mr Peter Cornell,

Letter of Demand.

Thank you for your email

I have by give you and Star Aviation (SA) until close of business 5pm, this coming Friday the 8 December 2017, to pay me a monetary amount equal to but not limited to for:

(a)    Breach of Contract (Consumer Law)

(b)    False and Misleading Conduct. (NSW Crimes Act).

Upon no negotiations commencing in which to resolve this unfortunate matter legal action may or may not commence without further notice to yourselves.

I am willing to settle this matter in an amicable way, without the large sum of monies that your organization may incur by engaging legal representatives to defend yourselves.

I am of the opinion that under any court action commenced by me, I will be entitled to “Discovery” meaning any and all of your company records without limitation to (a) payslips (b) work rosters (c) third party contracts (airline Fiji Airways) and the like.

I am prepared to discuss this matter at are Sydney location acceptable to all parties before 5 pm close of business this Friday 8 December 2017.

Please be advised that any and all correspondence thus far sent or received may or may not be used as evidence in a court of law if required.

All correspondence must be via email, or alternatively you may or may not like to pass on to me your lawyers email address, upon legal action commenced by myself I will be seeking costs.

Regards

Stephen Herbert

31    Notwithstanding this email, the earlier email sent by Mr Cornell took effect – any offer of employment was withdrawn.

The absence of any adverse action because of family or carer’s responsibilities

32    It is thus concluded that Mr Herbert has failed to establish that an offer of employment had been made to him on 17 November 2017 and, accordingly, he was not an “employee” of Star Aviation. Notwithstanding the many amendments which Mr Herbert had made to his pleadings prior to hearing, ultimately no case was pleaded by him that he was a “prospective employee”. That phrase as employed in s 351(1) of the Fair Work Act should most probably not be given any restrictive interpretation. And, given the fact that Mr Herbert was unrepresented throughout the present proceeding, it may well be prudent to consider whether any different conclusion should be reached had Mr Herbert pleaded that he was:

    a “prospective employee”; and that

    “adverse action” had been taken by reason of the withdrawal of the offer of employment.

33    But no different conclusion would have been reached, irrespective of whether Mr Herbert had advanced his claim as being either an “employee” or a “prospective employee”.

34    On Mr Herbert’s account, “adverse action” had been taken because he was pursuing on his daughter’s behalf a complaint that there had been delay in paying her salary and that the withdrawal of the offer of employment – or the termination of the contract – was because he had made a complaint.

35    But Mr Herbert’s various accounts of what Mr Cornell said on that date were so significantly different as to raise questions as to whether any account should be accepted. The different iterations of the conversation sought to be attributed to Mr Cornell were as follows:

    “that we cannot have a father and daughter working together as this would be a conflict of interest, as can be seen by your email regarding your daughters later pay” – that being the account given by Mr Herbert to the Fair Work Commission on 15 December 2017;

    “that is why we can’t have a father and daughter working together, you mean nothing to your daughter in a work environment and you can’t complain about her not being paid on time” – that being the account provided by Mr Herbert’s in a submission annexed to his affidavit affirmed on 6 March 2018; and

    “your daughter Elizabeth works for us and therefore you being her father cannot interfere or complain on her behalf to us as she is old enough. … that is why we don’t hire father and daughter employees together” – that being the account given in a Statutory Declaration made on 28 September 2018.

Although Mr Herbert maintained in cross-examination that the different iterations of the same conversation were explained by his stating that “words to the effect” of those set forth were said by Mr Cornell, the discrepancies are such that reservation is expressed in accepting that as a satisfactory explanation.

36    The assertion that Star Aviation terminated any contract of employment with Mr Herbert or withdrew any offer of employment because he had made a complaint about the late payment of salary to his daughter, moreover, does not sit comfortably with the fact that Star Aviation knew from the outset that Mr Herbert’s daughter was also employed by Star Aviation and the fact that – notwithstanding that knowledge – meetings were organised between Mr Cornell and Mr Herbert. The assertion is also contradicted by the evidence of Mr Cornell that he told Mr Herbert that his daughter was “welcome to make a complaint, if she does I will follow up on the matter for her”. That account was challenged by Mr Herbert in his cross-examination of Mr Cornell. But the account given by Mr Cornell is accepted.

37    Even if such reservations as to Mr Herbert’s account of this conversation be placed to one side, and further assuming that there was an available basis for an hypothesis that the offer of employment had been withdrawn by reason of Mr Herbert having pursued a complaint on behalf of his daughter, it would further have been concluded that:

    Star Aviation has discharged any onus that may have been placed upon it to establish that any termination of his employment or the withdrawal of the offer was not “because of’ a proscribed reason. Any such “adverse action” had not been taken “because of” Mr Herbert’s “family or carer’s responsibilities”. No reliance was placed by Mr Herbert on any other reasons proscribed by s 351(1). Mr Herbert expressly disclaimed any reliance upon a contention that “adverse action” had been taken “because of” his “race”.

Given the manner in which the facts have been resolved, it has proved unnecessary to resolve a further submission advanced on behalf of Star Aviation that the phrase “family … responsibilities” could not apply to the complaint being voiced by Mr Herbert concerning his daughter. The submission was that the phrase, and in particular the word “responsibilities”, had the consequence that an employee or prospective employee could only invoke the protection afforded by s 351(1) in circumstances where there was some degree of obligation imposed upon the employee or prospective employee. The voluntary assumption by Mr Herbert of the role of advocate for his daughter, it was submitted, was not sufficient.

38    Any onus cast on Star Aviation to rebut any presumption is displaced by Mr Cornell’s evidence that after the meeting on 5 December 2017 he had “serious concerns with Mr Herbert’s conduct”. Those concerns were set forth in his affidavit as follows:

After our meeting on 5 December 2017, I had serious concerns with Mr Herbert’s conduct including:

(a)    his disclosure that the things he had said about his previous work injury on 17 November 2017 were not true;

(b)    his disclosure that his statements about his access to a mobile phone were not true, and his apparent refusal to let Star Aviation contact him on his own personal mobile phone;

(c)    the fact he was not properly prepared for his ASIC application, despite Star Aviation’s prior guidance on this issue; and

(d)    his inappropriately argumentative and confrontational communication with the CS Agent on 5 December 2017.

Mr Cornell maintained that for these reasons he decided Mr Herbert was not suitable for employment and recommended the withdrawal of the offer of employment. His affidavit went on to state:

I made this decision because of the matters set out above, and not for any of the reasons alleged by Mr Herbert. In particular, I did not consider his race or the fact that his daughter works for Star Aviation.

That evidence is accepted.

39    Even on the case most favourable to Mr Herbert as to his having been employed by Star Aviation, it follows that any decision to terminate any such employment was not taken for any proscribed reason.

COSTS – SECTION 570

40    Section 570 of the Fair Work Act provides as follows:

Costs only if proceedings instituted vexatiously etc.

(1)    A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relating to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

(2)    The party may be ordered to pay the costs only if:

(a)    the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b)    the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or

(c)    the court is satisfied of both of the following:

(i)    the party unreasonably refused to participate in a matter before the FWC;

(ii)    the matter arose from the same facts as the proceedings.

41    The Respondents seek costs and rely upon s 570(2)(a) and (b).

42    Rejected is the submission that Mr Herbert instituted the present proceeding “vexatiously or without reasonable cause”. On Mr Herbert’s account of the facts, albeit an account which has ultimately been rejected, he had a viable cause of action under s 351(1) of the Fair Work Act. The unresolved argument as to what at least at first blush appears to be a confined interpretation of the phrase “family … responsibilities” does not provide a satisfactory basis for concluding that Mr Herbert did not have a viable cause of action when he instituted the proceeding.

43    Accepted, however, is the submission that Mr Herbert by his actions caused the Respondents to incur costs by reason of his “unreasonable act”. Albeit dependant on the particular facts of the case, a failure to accept an offer of compromise may constitute an “unreasonable act” for the purposes of s 570(2)(b): cf. McDonald v Parnell Laboratories (Aust) (No 2) [2007] FCA 2086 at [30], (2007) 164 FCR 591 at 599 per Buchanan J.

44    On 7 August 2018, the Solicitors for the Respondents sent to Mr Herbert a Notice of Offer of Compromise. That Notice offered to settle the proceedings for $1,000 inclusive of costs. The covering letter accompanying that Notice also indicated that, if the Respondents were successful, they intended to seek an order for costs. Mr Herbert rejected that offer by email dated 8 August 2018, describing the offer as “an insult”.

45    Although the offer was of a relatively small amount, accepted is the submission of the Respondents that at the time at which the offer was made “a reasonable person in the Applicant’s position would have apprehended that they had limited, if any, prospects of successfully prosecuting the claim”. It is therefore concluded that the failure to accept the offer of the Respondents was an “unreasonable act”.

46    Also of relevance is the way in which Mr Herbert has conducted the litigation, and the extent of the costs incurred as a result. This includes the case management hearings on 13 August and 26 September 2018, which came about because of the failure of Mr Herbert to comply with timetabling orders to ready the proceeding for hearing, and the significant deficiencies in the pleadings.

47    It is concluded that Mr Herbert should pay the costs after 8 August 2018, being the date on which he rejected the Offer of Compromise.

CONCLUSIONS

48    The conclusion that Mr Herbert’s claims should be dismissed makes it unnecessary to resolve the Interlocutory Application filed by the Respondents. It is also unnecessary to resolve the Interlocutory Application filed by Mr Herbert on 28 September 2018 seeking a Summons for Messrs Georgiou and Cornell to attend and give evidence. Both Messrs Georgiou and Cornell gave evidence at the hearing and were cross-examined by Mr Herbert.

49    Irrespective of whatever other difficulties Mr Herbert’s claim may have encountered, his primary argument that he was an employee as from 17 November 2017 fails at the outset. No relationship of employment was created at the meeting on that date. Mr Herbert has not established that he was an employee of Star Aviation at any point of time. Although no reliance was placed by Mr Herbert upon his status as a “prospective employee” for the purposes of s 351(1) of the Fair Work Act, Counsel for Star Aviation quite properly accepted that he would fall within that phrase. But, even so, Mr Herbert has not established that the withdrawal of the offer of employment was for any proscribed reason.

50    There is no basis for any relief under the Racial Discrimination Act. Any argument founded upon the Racial Discrimination Act falls by the wayside given Mr Herbert’s express disclaimer of any argument that action had been taken against him by reason of his “race”.

51    The claims advanced by Mr Herbert, it is respectfully concluded, have been exposed during the course of the hearing to be without merit.

52    The proceeding should be dismissed. Mr Herbert should be ordered to pay the costs of the Respondents as from 8 August 2018.

THE ORDER OF THE COURT IS:

1.    The proceeding is dismissed.

2.    The Applicant is to pay the costs of the Respondents as from 8 August 2018, as agreed or assessed.

Associate:     

Dated:    1 March 2019