Eggmolesse v Burnett Heads Investments Pty Ltd [2010] FMCA 80 (9 February 2010)

Last Updated: 11 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EGGMOLESSE v BURNETT HEADS INVESTMENTS PTY LTD

[2010] FMCA 80

INDUSTRIAL LAW – Alleged unlawful termination of employment – principles discussed. INDUSTRIAL LAW – Evidence – onus on employer to prove termination not for a proscribed reason – how such onus is discharged. INDUSTRIAL LAW – Costs – whether proceedings instituted vexatiously or without reasonable cause. EVIDENCE – Onus of proof under Workplace Relations Act ss.664 and 809 – how onus is discharged – what matters must still be proved by applicant.

Workplace Relations Act 1996 (Cth), ss.659, 661, 664, 665, 666, 674, 792, 793, 809, 824

Hayward v Rohd Four Pty Ltd & Ors [2008] FMCA 1490 Zhang v Royal Australian Chemical Institute Inc. [2005] FCAFC 99; (2005) 144 FCR 347 CSR Viridian Ltd v Claveria [2008] FCAFC 177; (2008) 171 FCR 554

Applicant:

SHARON LEE EGGMOLESSE

Respondent:

BURNET HEADS INVESTMENTS PTY LTD TRADING AS LIGHTHOUSE HOTEL/MOTEL

File Number:

BRG 205 of 2008

Judgment of:

Jarrett FM

Hearing date:

26 February 2009

Date of Last Submission:

26 February 2009

Delivered at:

Brisbane

Delivered on:

9 February 2010

REPRESENTATION

Counsel for the Applicant:

Dr Smith

Solicitors for the Applicant:

Directly instructed

Counsel for the Respondent:

Mr Merrill

Solicitors for the Respondent:

Simmonds Crowley & Galvin

ORDERS

(1) The application filed on 9 April, 2008 is dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE

BRG 205 of 2008

SHARON LEE EGGMOLESSE

Applicant

And

BURNETT HEADS INVESTMENTS PTY LTD TRADING AS LIGHTHOUSE HOTEL/MOTEL

Respondent

REASONS FOR JUDGMENT

1. The Lighthouse Hotel/Motel stands at Burnett Heads at the mouth of the Burnett River in Queensland. It is the hotel at which the applicant worked between January, 2006 and 26 November, 2007.
2. The respondent acquired the hotel business on 31 October, 2007 from Greenplay Pty Ltd. Mr Peter Burnitt is the only director of the respondent. Upon that acquisition, the respondent re-employed most of the staff of the hotel business, including Ms Eggmolesse. She was employed on a casual basis as and from 31 October, 2007 as a duty manager.
3. Mr Colin Davis was also re-employed by the respondent when it purchased the hotel. He was the hotel’s manager. He had been employed at the hotel since October, 2004 and became manager in May, 2007. Mr Davis’ wife, Sandi, was also employed at the hotel both before and after the acquisition by the respondent.
4. There is no dispute that on 26 November, 2007 Mr Davis dismissed Ms Eggmolesse from her employment with the respondent. There is no issue about his authority to do so. She alleges that the termination of her employment was unlawful because the reason for her dismissal, or part of the reason for her dismissal, was that she had made a complaint about the respondent to Workplace Health and Safety Queensland (a division of the Department of Industrial Relations, Queensland Government). The respondent denies that allegation.
5. The following issues arise for consideration in this case:
   1. Did the applicant make a “complaint” for the purposes of the relevant legislation to Workplace Health and Safety Queensland on or about 23 November, 2007?
   2. If so:
      1. What were the terms of that complaint?
      2. Does the complaint amount to recourse by her to a competent administrative authority for the purposes of s.659(2)(e) of the Workplace Relations Act 1996.
   100. Did the respondent (by its relevant officers) know at the time, or any time before she was dismissed by the respondent, that the complaint had been made?
6. Before turning to the issues, it is necessary to consider the statutory framework against which Ms Eggmolesse brings her claim.
7. By her application Ms Eggmolesse applies, pursuant to s.663(1) of the WR Act for an order under s.665 of the Act in respect of an alleged contravention of s.659 of the Act by the respondent. Put in plain terms, Ms Eggmolesse seeks an order that the respondent pays her compensation (in a sum which is unspecified) and pays a pecuniary penalty of $10,000 because her employment was terminated for a reason which is proscribed by the WR Act; namely that she had complained about the respondent to Workplace Health and Safety Queensland, which she argues is recourse to a competent administrative authority for the purposes of s.659(2)(3) of the WR Act.
8. The way in which an application such as this proceeds pursuant to the WR Act has been considered in a number of cases (some concerning the predecessors to the present relevant sections in the WR Act). I am satisfied that the correct approach requires the following:
   1. The applicant proving the fact of employment and its termination;
   2. The applicant proving such of the facts as she intends to rely upon to invoke one or more of the provisions in ss.659(2) of the WR Act;
   100. The respondent proving that such identified reasons were not the reason, or one of the reasons, for the termination of the applicant’s employment.
9. In discharging the onus upon it, the respondent does not have to prove that the applicant’s employment was terminated for a valid reason, as long as it was not terminated for a proscribed reason.
10. The switch of focus from the applicant’s case to the respondent’s case comes about because of the operation of s.664 of the WR Act. That section provides that it is not necessary for the employee to prove that the termination was for a proscribed reason, but that 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 (with some exceptions immaterial to this matter).
11. So much was concluded by Wilson FM in Hayward v Rohd Four Pty Ltd & Ors [2008] FMCA 1490 at [11] – [34] after his Honour reviewed the relevant authorities. Respectfully, I agree with his Honour’s conclusions in that regard and adopt them. It was not argued that his Honour’s approach was erroneous.
12. There is no issue about the applicant’s employment or that she was terminated by the respondent (by its agent Mr Davis) on 26 November, 2007.
13. The applicant identified s.659(2)(e) as the relevant proscribed reason for her employment. Section 659(2)(e) of the WR Act is in the following terms:
    • 659 Employment not to be terminated on certain grounds
    • ...
    • (2) Except as provided by subsection (3) or (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:
    • ...
    • (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;
14. The facts that Ms Eggmolesse has to prove to engage s.659(2)(e) are:
    1. the filing of a complaint; or
    2. the participation in proceedings;
    100. against the respondent;
    4. involving alleged violation of laws or regulations; or
    5. as an alternative to a) – d), recourse to competent administrative authorities.
15. I am satisfied on the afternoon of 23 November, 2007 Ms Eggmolesse’s husband lodged with Workplace Health and Safety Queensland a document entitled “Complaint Form” on her behalf as he testified. I find that the complaint form lodged by Mr Eggmolesse was in the same form as exhibit 1 in these proceedings.
16. The complaint details as filled in by Ms Eggmolesse in her handwriting on the first page of the form are as follows:
    • As part of my regular duties, I have to open and close the hotel. The access door we have to use is through the laundry. On many occasions, I have had to walk over or move dirty and wet linen from the motel to access this door. On several occasions, this linen has been there for many days until it smells. On one occasion when the linen had to be moved, there was broken glass underneath it. Photos can be supplied of at least one occasion, if required.
17. I am satisfied that attached to the form when it was lodged were six pages of typed notes. In those typed pages, the applicant also complained that she was the subject of continuing harassment and unreasonable treatment by Mr Davis’ wife.
18. Counsel for the respondent urged me to determine that the complaint lodged with Workplace Health and Safety Qld was not:
    1. the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations; or
    2. recourse to a competent administrative authority
    100. for the purposes of s.659(2)(e) of the WR Act.
19. The words “filing” and “complaint” are not defined in the WR Act. The respondent argues that what is necessary to meet this requirement is the commencement of proceedings in a court or a tribunal. The relevant words are generally used in such a context. The respondent pointed to the other words used in the subsection to support that argument. Participation in “proceedings” it was said is a clear reference to court, tribunal or similar proceedings. Further contextual support was drawn for the argument by reference to the phrase “alleged violation of laws or regulations” in the subsection.
20. I was also referred to some observations of Lander J (with whom Spender and Kenny JJ agreed) in Zhang v Royal Australian Chemical Institute Inc. [2005] FCAFC 99; (2005) 144 FCR 347. In answer to the proposition that a complaint to the applicant’s employer would be caught by s.170CK(2)(e) (the identical predecessor of s.659(2)(e)), his Honour said:
    • 25 In my opinion, that cannot be so on a plain reading of the subsection. Section 170CK(2)(e) speaks of ‘filing’ a complaint. An employee who complains to his/her employer does not thereby file a complaint. A complaint can only be filed somewhere and with someone other than the employer and probably only to a Court or Tribunal. That is consistent with reading the ‘filing of a complaint’ with the words that follow ‘or the participation in proceedings’, namely ‘against an employer involving alleged violation of laws or regulations’.
    • 26 The use of the word ‘against’ in s 170CK(2)(e) also means that the complaint must be to someone other than the employer. An employee who complained to the employer about the employer’s conduct would not be filing a complaint ‘against’ that employer.
21. The legislation is remedial legislation that must be given a purposive interpretation. Although Lander J. in Zhang was dealing with a predecessor to the current section I consider, with respect, that I should follow his Honour’s approach. I accept that to engage s.659(2)(e) in respect of a “complaint”, the complaint must be filed with a body, probably in the nature of a court or tribunal. In any event, for reasons I have expressed below, it is not necessary to come to a concluded view about this aspect of the matter.
22. Counsel for the respondent argued that the lodging of Ms Eggmolesse’s complaint with Workplace Health and Safety Qld was not recourse to a competent administrative authority for the purposes of s.659(2)(e) of the WR Act. To understand and determine that argument, I need to set out some more of the evidence.
23. The evidence before me establishes that once a Complaint Form is received over the counter by Workplace Health & Safety Qld, it is allocated to an inspector. In this case, Ms Eggmolesse’s complaint was allocated to Senior Inspector Mike Russell.
24. Mr Russell is an inspector appointed pursuant to the Workplace Health and Safety Act 1995 (Qld). Pursuant to that Act, Mr Russell has a number of powers that he might exercise[1]. He can offer advice to employers about their compliance with the Act. He can investigate complaints that there are dangerous situations on a workplace. He has, in certain circumstances, a right of entry onto private property. He may direct persons to remedy contraventions of the Workplace Health and Safety Act 2005 and issue improvement notices. He has the power to prosecute offences against the Workplace Health and Safety Act 1995 by complaint[2].
25. Mr Russell gave evidence that this particular complaint was referred to him for the purposes of assessment. He described the assessment process generally. Ordinarily, upon receiving the complaint, he meets with the employer to discuss the terms of the complaint. He obtains information and forms an assessment of the complaint and the employer’s practices insofar as they are relevant to the matters alleged in the complaint. He then decides on how best to deal with the complaint – either by way of advice and monitoring of the employer or perhaps investigation and prosecution. He followed that general course of conduct in respect of Ms Eggmolesse’s complaint.
26. It was only Ms Eggmolesse’s complaint about harassment that was referred to Mr Russell. He received the file on 28 November, 2007 - two days after Ms Eggmolesse’s employment was terminated. Mr Russell gave evidence that he made contact with Mr Davis (he was unsure if he telephoned him first) and met him at the hotel on 14 December, 2007 and talked about the hotel’s policies in relation to workplace harassment. I accept Mr Russell’s evidence.
27. Counsel for the respondent suggested that Mr Russell, or perhaps the Department that he worked for, was not a competent administrative authority for the purposes of the Act. I reject the submission.
28. I was referred me to the decision of the Full Court of the Federal Court of Australia in CSR Viridian Ltd v Claveria [2008] FCAFC 177; (2008) 171 FCR 554. In that case, the Full Court allowed an appeal against a finding of a trial judge that a complaint made to an industrial union was “recourse to competent administrative authorities” for the purposes of sub-s.659(2)(e). All members of the Court concurred in the outcome of the appeal but Gray J departed from the reasoning adopted by the majority, Goldberg and Jessup JJ.
29. The majority determined that relevantly s.659(2)(e) of the WR Act required recourse to a body which was:
    1. a governmental or public body or official;
    2. exercising a power or function of an executive, ministerial or administrative nature (rather than, for example, of a legislative or judicial nature); and
    100. having competence to receive the complaint in respect of which the worker has recourse to it.
30. As to what amounts to an “administrative” body, their Honours pointed out:
    • 44. In a context in which the adjective “administrative” is used to qualify the noun “authority”, and marks out a point of distinction between such an authority and judicial and legislative bodies, we consider that it carries the sense commonly given to it in the public or lexicon of both the common law and civil law worlds. In systems of law with which common lawyers are familiar, the word “administrative” refers broadly to the functions of the executive branch and of the officials and bodies who are responsible for the operation of government at all levels, including the making of decisions, the giving of authorisations, the issuing of permits and many like functions carried out under the law. To a common lawyer, a competent administrative authority would be an authority with functions of this kind.
31. The definition to which my attention was drawn by counsel in para.44 of CSR Viridian is an inclusive definition rather than an exhaustive definition. The examples of the functions which one might expect to see carried out by a competent administrative authority given by their Honours in Claveria are the same types of functions that are granted to Workplace Health & Safety Qld inspectors under the Workplace Health and Safety Act 1995. That is to say, they make administrative decisions concerning the implementation and enforcement of the obligations on both employees and employers under the Workplace Health and Safety Act 1995. Their decisions are not judicial or legislative in character. They are carrying out a public purpose and, in my view, Mr Russell was at the relevant time a public officer being appointed to his office by the Minister or the Chief Executive under the terms of the Workplace Health and Safety Act 2005.
32. In my view, it is clear that by lodging her Complaint Form with Workplace Health and Safety Qld Ms Eggmolesse had recourse to a competent administrative authority.
33. The authorities make it clear, however, that it is not enough for Ms Eggmolesse to demonstrate that she had recourse to a competent administrative authority. She must also prove that the respondent (or its relevant officers) knew that she had such recourse: Zhang v Royal Australian Chemical Institute Inc (above). Again, it is necessary to consider some more of the evidence.
34. Ms Eggmolesse gave evidence that there was a telephone conversation between she and Mr Burnitt on 13 November, 2007. In her affidavit filed on 9 April, 2008 she swears:
    • “29. I rang Peter Burnitt and informed him of what had been happening. I told him I was going to lodge a formal complaint. Peter asked me not to lodge the complaint until the end of the following week as he would attend the hotel during the next week. I then agreed to do this. Peter said he would phone Col and put him on notice to fix this.
    • 30. I said to Peter ‘I hope this does not create bad blood between us as I have been at this hotel for almost 2 years and I enjoy my job but I shouldn’t have to put up with this’. I also told Peter that other staff have been harassed and abused by Sandi and that they had also complained to Col. I told Peter that staff members had left because if the harassment by Sandi.
    • 31. I informed Peter that Sandi had been at work drunk and that customers had complained about her.”
35. Apart from what is set out above, Ms Eggmolesse does not set out the words said by her or by Mr Burnitt. In contrast to her affidavit evidence, in cross-examination Ms Eggmolesse said that she called Mr Burnitt at about 5.00pm – 5.30pm and left a message on his mobile phone message bank. She said that Mr Burnitt returned her call and they spoke. She has produced a telephone account that demonstrates that she made a call to a mobile telephone number used by Mr Burnitt on 13 November, 2007. The records show that the call was 11 seconds long. The record is consistent with Ms Eggmolesse’s affidavit evidence as explained in cross-examination.
36. Mr Burnitt does not recall the telephone call. In cross-examination he emphatically denied that he had ever spoken with Ms Eggmolesse by telephone. However, I accept Ms Eggmolesse’s evidence about her telephone call with Mr Burnitt. I think he is mistaken about not talking with Ms Eggmolesse by telephone. Mr Davis gave affidavit evidence (his affidavit filed 18 July, 2008 paragraph 6) about receiving a telephone call from Mr Burnitt in which Mr Burnitt referred to having a telephone conversation with Ms Eggmolesse.
37. The telephone call is of little significance, however, because on the evidence, Ms Eggmolesse only told Mr Burnitt that she was going to lodge a “formal complaint”. She did not say who she was going to lodge the complaint with or when. In my view the telephone call was not notice of the complaint that Ms Eggmolesse eventually lodged with Workplace Health and Safety Qld.
38. In her affidavit filed on 9 April, 2008, Ms Eggmolesse gives evidence to the following effect:
    • 4. On or about Monday 26 November 2007 at approximately 11am I was working a normal day shift and spoke to Peter Burnitt. I asked if he had thought about our conversation on Tuesday 13 November 2007 in which I told Peter that I intended to lodge a harassment claim against Sandi Davis (the cleaner/manager's wife).
    • 5. Peter said he did not want to get involved but said that he had spoken to Col Davis (the manager) who had told Peter that he had handled everything by speaking to Sandi and myself.
    • 6. I told Peter that Col had not spoken to me in relation to my claim and that he (Peter) did not realise how serious this matter had become. I also told Peter that Sandi was still abusing staff and customers. Peter said he 'did not want to come in and start sacking people and if he got involved it would not be pretty'.
    • 7. I then told Peter that I had lodged a harassment claim (with Workplace Health and Safety Queensland) and that I was getting legal advice regarding the lack of duty of care by the manager and the hotel. Peter said 'you do whatever you have to do to get rid of the problem'.
39. In his affidavit filed on 18 July, 2008 Mr Burnitt gives evidence to the following effect:
    • 3. I have a recollection of speaking with Sharon and her telling me that she was having trouble with Sandy and thinking of lodging a harassment complaint.
    • 4. I said to her that she should "do what she has to do and to speak to Col about it."
    • 5. I think the next day Sharon spoke to me again and said something about nothing having been done. She said that Col hadn't spoken to her and I said I would talk to Col.
    • 6. I spoke to Col the Manager. It is his job to look after the staff and to manage the hotel. I do not involve myself in it or want to be involved in it. That is what I pay the manager to do.
    • 7. I told Col that Sharon had spoken to me about having some problem with Sandy and that Col should deal with it.
    • 8. At no time did I tell Col that Sharon was thinking of lodging a harassment claim, talk to Col about a harassment claim or tell him to sack Sharon.
40. I am satisfied that Ms Eggmolesse did have a conversation with Mr Burnitt about the issues that she alleges that she was confronting at the hotel. I am satisfied that she and Mr Burnitt talked on one occasion over the telephone and I am satisfied that paragraphs 3 and 4 of his affidavit set out above deal with that conversation.
41. I am satisfied that there was a second conversation as alleged by Ms Eggmolesse. I am satisfied that it took place on the Monday of her termination. Although Mr Burnitt says that he did not attend at the hotel on Mondays, his evidence in cross-examination was sufficiently equivocal for me to determine that he is mistaken, and that he was at the hotel on Monday 27 November, 2007.
42. I am satisfied that Ms Eggmolesse told Mr Burnitt that she had lodged an harassment claim. I am not satisfied however that she told him which authority she had lodged it with. Her affidavit evidence does not set out the words she used when she spoke to Mr Burnitt. That the words “with Workplace Health and Safety Queensland” appear in parenthesis in her affidavit indicate that they were probably not spoken, but were left to be inferred. There is no other evidence that the complaint of harassment was made to Workplace Health and Safety Qld. A complaint of harassment could be made to any one of a number of bodies or authorities.
43. At 3 pm, Ms Eggmolesse was asked into Mr Davis’ office as a result of which her employment was terminated.
44. She alleges that during that conversation Mr Davis told her that “Peter told him to sack me because he didn’t want me to ring him or go to him and because I had lodged my claim”. She replied: “So you are telling me as of now I am dismissed because I have lodged a harassment claim” and Mr Davis replied: “Yes”.
45. Mr Davis gave evidence that on 26 November, 2007 at about 3 o’clock in the afternoon, he called the respondent into his office. During the meeting with the applicant, she was dismissed. He denies saying to her the words attributed to him by her and he denies that she asked him about whether she was being sacked because of her harassment claim. His evidence was that he did not know that an harassment claim had been lodged.
46. There were a number of unsatisfactory aspects to Mr Davis’ evidence. He gave evidence that there had been complaints about the applicant’s behaviour and statements made by her to staff and customers, described by him as running the hotel down and he was unhappy about them. He said that in the middle of 2007, he had spoken to the applicant about those matters and the problem had improved. He said that he noticed that the problem had commenced to deteriorate again but that prior to him dismissing the applicant he had not spoken to her about the problem again. His evidence was confused in some respects.
47. Nonetheless, I am not satisfied on the evidence that:
    1. Mr Burnitt knew that Ms Eggmolesse had lodged the complaint the subject of these proceedings with Workplace Health and Safety Queensland before she was terminated;
    2. Mr Burnitt told Mr Davis that Ms Eggmolesse intended to, or in fact had lodged the complaint the subject of these proceedings with Workplace Health and Safety Queensland before she was terminated;
    100. Mr Burnitt and Mr Davis talked about Ms Eggmolesse’s termination between her conversation with Mr Burnitt, found by me to have occurred on Monday 27 November, 2007 and her meeting with Mr Davis at 3.00 pm on that day.
48. The failure of the Ms Eggmolesse to establish the preliminary facts upon which she relies to evoke s.659(2) of the Act is fatal to her claim. She is unable to prove the respondent knew that she had recourse to a competent administrative authority or, indeed, that she had filed a complaint alleging a breach of the law or a regulation. The application must be dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Associate: S. Haysom

Date: 9 February 2010

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[1] See Part 9 Division 2 Workplace Relations Act 1995 (Qld)
[2] s.164(5) Workplace Relations Act 1995 (Qld)