FEDERAL CIRCUIT COURT OF AUSTRALIA
CROZIER v MILLER-WILLIAMS and KNOWLES v MILLER-WILLIAMS	[2015] FCCA 2993	

Catchwords: 
INDUSTRIAL LAW – Dismissal in contravention of a general protection – issue turned on credit of parties – whether applicants were credible witnesses – applicants found to be unreliable witnesses – whether applicants met the conditions for unfair dismissal claim – whether applicants fell within the relevant award – application dismissed.

COSTS – Whether tender of Calderbank letters sufficient to award costs against applicants – whether circumstances fall within s.570(2) – no order as to costs.	

Legislation:
Fair Work Act 2009, ss.3, 336, 340, 361, 566, 570.	

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157
Kelly v Fitzpatrick [2007] FCA 1080
Stanley v Service to Youth Council Incorporated (No 3) [2014] FCA 716	

Applicant:	Sharyn Crozier	

Respondent:	Robert David Miller-Williams And Joanne Margaret Miller-williams Trading As Rd & J Miller-williams	

File Number:	SYG 1979 of 2015	

AND

Applicant:	Dylan Knowles	

Respondent:	Robert David Miller-Williams And Joanne Margaret Miller-williams Trading As Rd & J Miller-williams	

File Number:	SYG 1981of 2015	

Judgment of:	Judge Street	

Hearing date:	5 November 2015	

Date of Last Submission:	5 November 2015	

Delivered at:	Sydney	

Delivered on:	5 November 2015	

REPRESENTATION
SYG 1979 of 2015
The Applicant appeared in person	

Counsel for the Respondent:	Ms D. Dinnen	

Solicitors for the Respondent:	Lawrence Moss Lawyers	

SYG 1981 of 2015
The Applicant appeared in person	

Counsel for the Respondent:	Ms D. Dinnen	

Solicitors for the Respondent:	Lawrence Moss Lawyers	

ORDERS
SYG 1979 of 2015
(1)	The name of the respondent be amended to Robert David Miller-Williams and Joanne Margaret Miller-Williams trading as RD & J Miller-Williams.
(2)	These proceedings be heard concurrently with SYG1981/2015 Dylan Knowles v Robert David Miller-Williams and Joanne Margaret Miller-Williams trading as RD & J Miller-Williams.
(3)	The evidence in this matter will be evidence in the matter of SYG1981/2015 Dylan Knowles v Robert David Miller-Williams and Joanne Margaret Miller-Williams trading as RD & J Miller-Williams.
(4)	The application is dismissed.
(5)	No order as to costs.

SYG 1981 of 2015
(1)	The evidence in this matter will be evidence in the matter of SYG1979/2015 Sharon Crozier v Robert David Miller-Williams and Joanne Margaret Miller-Williams trading as RD & J Miller-Williams. 
(2)	The application is dismissed. 
(3)	No order as to costs. 
(1)	
FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT Sydney	
SYG 1979 of 2015
Sharyn Crozier	
Applicant

And

Robert David Miller-Williams And Joanne Margaret Miller-williams Trading As Rd & J Miller-williams	
Respondent

SYG 1981 of 2015
DYLAN KNOWLES	
Applicant

And

Robert David Miller-Williams And Joanne Margaret Miller-williams Trading As Rd & J Miller-williams	
Respondent

REASONS FOR JUDGMENT
1.	The Court has before it two proceedings that were brought under the Court’s jurisdiction under s.566 of the Fair Work Act 2009 (Cth).  Orders were made for the concurrent hearing of the matters on 19 August 2015 and a timetable was ordered for the provision of evidence.  The Court treated evidence in one matter as evidence in the other.  In the case of Mr Knowles, the application claimed a breach of general protections, an order to pay compensation for economic loss, humiliation and hardship and for the employer to be fined.  The application completed on behalf of Mr Knowles was signed by Sharyn Crozier, the applicant in the other proceedings. 
2.	The form 2 claim under the Fair Work Act 2009 alleged dismissal in contravention of a general protection, was completed on behalf of Mr Knowles by Ms Crozier and referred to circumstances pertaining to dismissal of Mr Knowles and Ms Crozier on 1 June 2015.  The alleged contravention identified was:
	I was dismissed for asking questions about correct pay and allowances.  Please see attached document.
3.	The remedy of compensation was ticked on the form and in the statement of impact and consequences, pursuant to dismissal, Mr Knowles identified that he sought $35,000 in compensation for loss of income for the next six months it may take him to secure employment again and $5000 in compensation for humiliation pertaining to his dismissal.  Mr Knowles also alleged that at the time of his dismissal, he was owed approximately $8400 that was outstanding for allowances and correct rate of pay for the work already performed.  There were no particulars in support of the claim concerning allowances or correct pay. 
4.	At the time of Mr Knowles’ engagement in March 2015, he completed and signed an Employment Pathway Fund (EPF) wage subsidy agreement prepared by Joblink Plus.  That was a document that identified Mr Knowles’ rate of employment would be $17.50 per hour and provided that he was to work a minimum of 38 hours per week.  The Joblink records indicate that the wage subsidy contract was one in respect of which Mr Knowles needed to work a minimum of 38 hours per week, based on his rate of $17.50.  The records note that Mr Knowles would not be paid the wage subsidy for failing to work for that period. The Joblink records indicate that Mr Knowles only met his requirement for three out of the 12 weeks he was employed by the respondents.  At the time Mr Knowles was engaged by the respondents to work on a particular site, he had been unemployed for some time.  
5.	The application filed on behalf of Sharyn Crozier asked for the same three prayers of relief in the covering application, identified the same circumstances pertaining to dismissal on 1 June 2015 and reported the same alleged contravention as follows:
	I was dismissed for asking about correct pay allowances.  Please see attached.
6.	There was no attached document or particulars that calculated allowances or pay.  The application sought compensation, and in the attached document sought $35,000:
	…at least, in compensation for my loss of income for the next six months and also $5000 compensation for humiliation that the dismissal has created.
7.	On 3 November 2015, two days before the hearing, the applicants served a joint statement of claim that purported to expand the prayers for relief.  Relevantly, in para.1, claiming:
	…that we (Dylan and Sharyn) be paid outstanding amounts both for allowances and correct hourly rate of pay.
8.	Paragraph 2 of this statement of claim sought compensation for dismissal and para.3 asked for a penalty to be imposed on the respondents.  The statement of claim also claimed $30,000 each for outstanding amount owed and compensation for dismissal, humiliation and embarrassment and loss of income, making a total of $60,000.  The particulars of pleading referred to an allegation that the applicants were dismissed in contravention or breach of general protections laws and that they had asked their employer by way of an email on 2 June 2015:
	…to pay the outstanding amounts to us.
9.	It is clear the dismissal occurred on 1 June 2015.  I reject the evidence of the applicants that they were dismissed for asking about pay or allowances.  I find the purported reliance on the 2 June 2015 email was a post dated attempt to bolster the applicants’ case as to dismissal for a proscribed reason.  The purported email of 2 June 2015 was not put into evidence until after the close of evidence-in-chief by both parties.  That email of 2 June 2015 was one in respect of which it was common ground that there was a computer entry on the computer of Ms Crozier that purported to confirm the transmission of the email.  That email purported to identify amounts outstanding owed for employment and unfair dismissal.  The document purported to identify the amount owing to Dylan Knowles relating to award rate of pay, meal allowance, accommodation and travel allowance thus totalling $8488.98. The document purported to identify the outstanding amount owed to Sharyn Crozier in respect of the award rate of pay, meal allowance, accommodation allowance and travel allowance totalling $11,065.68.
10.	Ms Joanne Miller-Williams, the second respondent gave evidence that the email was never received.  The applicants’ respective case was effectively the taking of adverse action allegedly under s.340 because of their workplace right, together with the benefit of the presumption under s.361 in respect of the dismissal of the respective applicant.  To the extent that the applicants also sought to rely upon the unfair dismissal provision, it required a minimum period of employment of six months that neither applicant met.  For that reason, neither applicant is entitled to any relief for any alleged unfair dismissal under Pt.3.2.
11.	The issue surrounding adverse action is one which turns substantially on the credit of the respective parties.  It is appropriate to deal first with the issue of credit in relation to Ms Sharyn Crozier.  Ms Crozier was representing herself and I take that into account in assessing her credit.  Nonetheless, I do not find Ms Crozier to be a reliable or truthful witness.  I find that her evidence in relation to communications with Erin was one that she was happy to change in relation to when a communication might have taken place, consistent with what she believed was in the interests of her case.  
12.	The most substantial concern in relation to Ms Crozier’s credit arises as a result of her assertion that she had no discussion with her partner, Mr Paul Charters, about the rate of pay on which she was going to be employed.  I find that evidence was not truthful.  In this regard, Mr Charters gave evidence that he did inform Ms Crozier of the rate of pay, contradicting the evidence of Ms Crozier, but asserted the rate of pay was $20.  There was no such evidence to that effect in the affidavit put on by Mr Charters.  However, it defies credibility that the partner of the applicant Sharyn Crozier would not have discussed with her the rate of pay that she was going to be engaged at.  In those circumstances I find Ms Crozier to be an unreliable witness and I do not accept her evidence in relation to the events surrounding her dismissal and that of Mr Knowles.  I reject the applicants’ evidence that they had not been warned orally about their behaviour and performance prior to the dismissal on 1 June 2015. 
13.	In relation to Mr Knowles, his statement was substantially prepared by Ms Crozier.  Mr Knowles acknowledged, “Sharon helped me word it”.  In circumstances where Mr Knowles was prepared to sign an affidavit with identical paragraphs to that of Ms Crozier, I am of the view that no weight can be given to his evidence and that he was an unreliable witness who was prepared to say what Ms Crozier thought would assist their case.  
14.	In relation to Mr Knowles and the assessment of his credit, I have taken into account that he was unrepresented.  I find Mr Knowles was prepared to let Sharyn Crozier not only advance the case on his behalf, but to formulate the content of his affidavit to support the case that Ms Crozier was seeking to advance.  In my opinion, that substantially undermines the credit of Mr Knowles. For these reasons I do not accept Mr Knowles’ assertion as to the circumstances surrounding their dismissal.  I do not accept the applicants’ evidence that they were scared or reluctant to speak to Ms Joanne Miller-Williams.  I find that the applicants did not raise any issue of pay or allowances with Ms Miller-Williams prior to their dismissal on 1 June 2015. 
15.	Mr Paul Charters, the partner of Sharyn Crozier, was a most unimpressive witness who was prepared to contradict his sworn affidavit in relation to the circumstances surrounding the employment of Sharyn Crozier.  I do not accept Mr Charters as a truthful witness.  I find Mr Charters was prepared to say what he thought would assist his partner Ms Crozier.
16.	I found Ms Joanne Miller-Williams to be an impressive witness, and I accept her evidence as to the engagement and dismissal of the respondents.  Materially, I accept Ms Miller-Williams’ evidence as to the reasons for the dismissal.  I accept that both Mr Charters and Mr Siemsen had raised issues concerning the poor performance and unsatisfactory behaviour of both Mr Knowles and Ms Crozier with Ms Miller-Williams and that they informed Ms Miller-Williams of the giving of oral warnings to both applicants.  I find that Ms Miller-Williams reasonably believed that the performance and unsatisfactory behaviour of the applicants warranted summary dismissal.  I find that the poor performance and unsatisfactory behaviour of the applicants justified summary dismissal by the respondent.  I find that there was no breach of contract by the summary dismissal of the applicants in this case.  
17.	I accept Ms Miller-Williams’ evidence that she decided to terminate the employment of both Mr Knowles and Ms Crozier by reason of their poor performance unsatisfactory behaviour.  I accept Ms Miller-Williams’ evidence that the dismissal of Ms Crozier and Mr Knowles was not taken because of any assertion of a workplace right by Mr Knowles or Ms Crozier.  I find the evidence of Ms Miller-Williams to be corroborated by that of Mr Siemsen in respect of the unsatisfactory behaviour and poor performance of Ms Crozier and Mr Knowles.  I find that the applicants turned up to work affected by alcohol, that Ms Crozier and Mr Knowles was failing to perform work and that Mr Knowles was damaging property in the poor performance of his work.  Whilst Mr Siemsen belatedly produced a diary with minimal entries in it, I reject the submission that the diary was manufactured by Mr Siemsen.  I find the diary corroborative of the evidence of Mr Siemsen as to the raising of concern with the applicants about unsatisfactory behaviour and poor performance of the applicants of which Ms Miller-Williams was informed prior to the dismissal by Mr Siemsen.  Mr Siemsen, in giving evidence, appeared to be endeavouring to the best of his ability to recall the events, and in my opinion was a truthful witness.  
18.	I have taken into account the object under s.3 and s.336 of the Fair Work Act 2009, as well as ss.340 and 361 of the Act, and what was said by the High Court in provisions Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 relevantly at [5], [15], [21], [41]-[45] and [127]-[129]; see also Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 at [27]-[28], [37], [39] and [41]. 
19.	I am satisfied that the respondents have proved that the dismissal was not because of any assertion by Mr Knowles and Ms Crozier of workplace rights or raising issues as to correct pay and allowances.  I find that the reason why the applicants were dismissed is because of their poor behaviour and conduct, being assessed by Ms Miller-Williams to be so unsatisfactory as to warrant summary dismissal.  I find that assessment of their conduct and behaviour did not relate or involve as a reason for dismissal any issue concerning correct pay or allowances.  I find that the summary dismissal of the applicants for their poor behaviour and conduct was justified and lawful. 
20.	Accordingly, the applicants have failed to make out any contravention in respect of adverse action, and have failed to make out their claim in respect of unfair dismissal.  The applicants have also failed to make out a case of wrongful dismissal.  It is for the applicants to prove their case in respect of alleged allowances or pay entitlements under an award.
21.	An award was tendered into evidence as exhibit F - The Building and Construction General On-Site Award 2010.  Other than the email of 2 June 2015, there is no evidence of any calculation or basis upon which any allowances under that award were either quantified or expressly advanced.  I accept the evidence of Ms Miller-Williams that she did not receive the email of 2 June 2015.  I do not regard the email of 2 June 2015 as evidence that is capable of proving that either applicant fell under that award, or that either applicant had taken steps or was entitled to the allowances alleged by the applicants in that regard.
22.	I should note that Ms Miller-Williams gave evidence, which I accept, of discussing with Joblink Plus the rate of pay for the employment of Mr Knowles, and it is clear that Mr Knowles was being paid at an hourly rate identified by that Commonwealth body in respect of his endeavour to get back to work.  I accept Ms Miller-Williams’ evidence that she was trying to assist the respective applicants in giving them the opportunity to work.  
23.	I do not accept the evidence of Ms Crozier that she was a level 2 labourer within the Building and Construction General On-Site Award 2010.  On the evidence I have accepted it is clear that Ms Crozier was well alive to the fact that she had been engaged at an hourly rate, which was the same hourly rate as Mr Knowles, and that she was to be paid for those hours performed.  I am not satisfied that the applicants have proved that they were paid below the National Employment Standards or below an award applicable to the respective applicant.  I do not accept that the respective applicant fell within the Building and Construction General On-Site Award 2010.  
24.	If, contrary to the findings I have made, it was found that the Building and Construction General On-Site Award applied to the respective applicant, I would have applied the hourly rate of $19.08 less $17.50 under that award to the respective applicant, multiplied by the hours as identified in exhibit B.  I find that the only hours worked by the applicants were those identified in exhibit B and that the applicants were paid for those hours. 
25.	I accept the evidence of Ms Miller-Williams in relation to having assisted the respective applicants by providing funds to them, and I accept Ms Miller-Williams’ evidence that there was an agreement with the respective parties for those loan amounts to be refunded in part by payments due from the partnership at the hourly rate identified of $17.50 for hours worked by Mr Knowles and/or Ms Crozier.  
26.	If, contrary to the findings I have made, the said award were held to apply to the respective applicants, I do not accept that the applicants have adduced facts to prove an entitlement to meal allowance, accommodation allowance, or travel allowance under that award.  No facts were proved to justify any accommodation allowance under the award.  I also note that if I had found any entitlement under the award by the respective applicants, this is not a case in which I would have awarded any amount in respect of the claims alleged in respect of humiliation by either applicant.  
27.	Further, I find that if there had been any entitlement under the award, this is not a case in which it would have been appropriate, taking into account the principles in respect of imposition of penalty to have imposed any penalty upon the respondent; see Kelly v Fitzpatrick [2007] FCA 1080 at [14].  
28.	The respondents have asked for the costs, under s.570 of the Fair Work Act 2009.  Two letters, which are Calderbank letters, have been tendered dated 14 August 2015 offering the respective applicants $4000 subject to execution of a deed of release and the discontinuance of the proceedings.  Both letters identify they are Calderbank offers that would be relied upon if the proceedings were unsuccessful.  This was a case in which there was a credit issue in respect of the evidence between the parties.  The case also revealed a very sad history in terms of people who were clearly once friends in a very small community and that the respondents had tried to help the applicants.  I have had regard to the principles identified in Stanley v Service to Youth Council Incorporated (No 3) [2014] FCA 716 at [23]-[34]. I do not regard the circumstances as falling within the principles identified in s.570(2) of the Act in the context of this case and I make no order as to costs. 
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date: 13 November 2015