DECISION

Fair Work Act 2009
s.365—General protections (consent arbitration)

Jessica Mowle
v
Downing Teal Pty Ltd T/A DT Workforce
(C2014/7655)

Application to deal with contraventions involving dismissal (consent arbitration).

[1] Ms Jessica Mowle made an application under s.369 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a general protections dismissal related dispute. Ms Mowle alleged that Downing Teal Pty Ltd had dismissed her because she exercised her workplace right to “engage in, report and suggest occupational health and safety issues.”

[2] A conference was conducted by Deputy President Kovacic but the parties were unable to reach an agreement and Deputy President Kovacic issued a certificate on 22 October 2014 under s.368(3)9a) of the Act.

[3] On 7 November 2014, the parties gave notice under s.369(1)(b) that they had reached an agreement for the Commission to deal with the dispute by arbitration.

The matters to be decided

1. Did Ms Mowle exercise a workplace right? 1

2. Did Downing Teal take adverse action against Ms Mowle? 2

3. Did Downing Teal take the adverse action because of a prohibited reason or reasons that included that reason? 3

Background

[4] Ms Mowle commenced employment with Downing Teal on 24 July 2014. Downing Teal supplies labour to Rio Tinto Limited. Ms Mowle was employed as a Lab Tech/Sampler at Cape Lambert. Ms Mowle was employed as a casual employee and her contract provided that she could be terminated by either party giving one day’s notice of termination.

[5] Ms Mowle said in answer to my question about why she was dismissed:

“I believe the reason for my dismissal was for occupational health and safety aspects of the job. I reported an incident and I was vocal in an occupational health and safety interaction that all Rio employees were required to undergo, and therefore contractors such as myself, and I felt the adverse action was taken against me, namely for this reason.” 4

[6] On 17 September 2014, after being asked by Mr Joseph O’Connell, her supervisor, “what’s happened here?” Ms Mowle reported an injury that occurred during a routine sample pick up to Mr O’Connell. Mr O’Connell was an employee of Rio Tinto Limited. Mr O’Connell and Ms Mowle attended the location of the incident and Ms Mowle explained to Mr O’Connell what had occurred. Mr O’Connell told Ms Mowle that she needed to attend the Emergency Medical Office. It was her evidence that Mr O’Connell thanked her for reporting and said to her “it’s just so important that things like this be reported, because no matter how small something may seem, if it’s not brought to anyone’s attention, someone else could injure themselves, so thank you for letting me know.” 5

[7] When the medial officer attended Ms Mowle she advised him of the nature of her injury namely a slight bump on her shin. A report was prepared but that report is not in evidence before me.

[8] To enable Mr O’Connell to prepare a report on the incident, Ms Mowle sent him an email about the incident. A copy of the email is not in evidence before me.

[9] On 22 September 2014, a meeting was conducted at the commencement of the shift. Mr O’Connell advised the employees of the incident and described this as a “dangerous shift”.

[10] Ms Mowle said “surely it wasn’t a dangerous shift from that? I didn’t receive any medical treatment he just looked at my leg.”

[11] She said Mr O’Connell cut her off saying “it was a dangerous shift OK guys - there was a near miss, the EMO’s attended and an incident report written up.”

[12] Some hours later Ms Mowle was asked to come to a meeting with Mr O’Connell and Mr Luke Mullins and her employment was terminated. Mr Mullins was the Pannawonica and Coastal Operations Area Co-ordinator for Downing Teal.

[13] It was not disputed that Ms Mowle was dismissed. At the meeting Mr O’Connell said he had contacted Mr Mullins on several occasions. Mr Mullins agreed that Mr O’Connell had contacted him “a couple of times in regards to your safety.”

[14] At the meeting, Ms Mowle said that Mr O’Connell said “I am just so concerned you might die [on site] that the only thing I can do is terminate your contract now.”

[15] It was Ms Mowle’s evidence that she was terminated because she reported the bump to her leg to Mr O’Connell. 6

[16] Mr Mullins gave evidence that he was first contacted by Mr O’Connell about Ms Mowle on 12 September 2014. Mr O’Connell called him to express concerns about Ms Mowle’s attitude to other team members and to safety requirements.

[17] Mr Mullins was contacted by Mr O’Connell on 22 September 2014. He discussed the events that had occurred with Ms Mowle and he told Mr Mullins that he had ongoing concern that Ms Mowle did not have the correct approach to safety and that she needed to be terminated as she was a potential danger to herself and others. Mr Mullins attended the site and spoke to Mr O’Connell.

[18] In answer to my question about the reason for dismissing Ms Mowle, Mr Mullins said “the decision was made around her understanding of safety wasn’t adequate due to the time she had on site to learn and due to her not being adequately understanding the safety procedures on site, I believe that she was a concern and a risk to herself and also to other team members.” 7

[19] Mr Mullins denied that she was dismissed because she reported the incident when she damaged her leg. 8

[20] Mr Mullins gave evidence that the decision to terminate Ms Mowle’s employment was made jointly between Mr O’Connell and himself.  9

[21] Mr O’Connell gave evidence that he had a number of concerns about Ms Mowle’s performance. On one occasion he counselled Ms Mowle after she spoke over a more experienced colleague who was instructing her on correct use of laboratory equipment. 10 He advised Mr Mullins and advised that he would monitor Ms Mowle.

[22] On other occasion when he was conducting a team meeting about a fatality at a similar facility, he was concerned that Ms Mowle did not understand the protocols around confined space/chute. 11 It was conceded by Mr O’Connell that the discussion “degenerated” into an argument. What he saw as her lack of understanding of a simple directive led him to have concerns about her safety.

[23] Mr O’Connell also stated that there was an incident on her last shift which she failed to report to him immediately. 12

[24] As a result of these incidents he contacted his superintendant, HR representative and Mr Mullins to notify them that he no longer wanted Ms Mowle as part of his crew. 13

[25] It was his evidence that he did not make a decision to terminate Ms Mowle’s employment as that was a decision for Downing Teal.

[26] Mr O’Connell denied terminating Ms Mowle because she reported her injury to him. He accepted in cross examination that he thanked her for reporting the incident to him.

[27] It was put to Mr O’Connell that Ms Mowle had successfully completed a safety interaction that had been observed by him and that he was aware that she had previously reported a hazard. Mr O’Connell agreed with both propositions but did not accept that this meant his concerns about her safety were ill founded.

[28] It was put to Mr O’Connell that there was a temporal connection between Ms Mowle reporting her injury and the incident that led to the injury and her dismissal as this incident occurred on 17 September 2014 and she was dismissed on the next shift she worked. Mr O’Connell accepted that it might look like there was a connection but denied any link.

Did Ms Mowle exercise a workplace right?

[29] It is incumbent on Ms Mowle to prove she exercised a workplace right.

[30] Section 341 of the Act defines a workplace right as follows:

341 Meaning of workplace right

Meaning of workplace right

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c) is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee—in relation to his or her employment.

[31] In her submissions, Ms Mowle made reference to her exercising an OH&S workplace right arising from incidents on 15-16 September 2014.

[32] Ms Mowle did not give any evidence about any events on 15-16 September 2014. At the hearing Ms Mowle relied upon the incident which occurred on 17 September 2014.

[33] Ms Mowle submitted that she had a workplace right to report her injury. Downing Teal made no submissions on whether reporting a workplace injury is a workplace right.

[34] Apart from making a general reference to health and safety Ms Mowle did not point to any specific workplace law or workplace instrument that she relied upon to support her submission.

[35] For the purpose of this decision I am prepared to accept that Ms Mowle exercised a workplace right when she reported her injury. However I am unable to conclude without more that participating in a discussion about health and safety is a workplace right.

Did Downing Teal take adverse action against Ms Mowle?

[36] It is not disputed that termination of employment is adverse action. I therefore find that Downing Teal took adverse action against Ms Mowle.

Did Downing Teal take the adverse action because of a prohibited reason or reasons that included that reason 14?

[37] Whether Downing Teal took adverse action against Ms Mowle is a question of fact 15 as the Full Bench said in Neil Keep v Performance Automobiles Pty Ltd16 the Fair Work Commission’s task 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.’” 17

[38] Evidence of the decision maker is clearly relevant to determining the answer to this question. As the Full Bench also said:

“It is apparent from the above extract that evidence from the decision maker which is accepted as reliable ‘is capable’ of discharging the burden of proof cast on the employer by s.361. But this does not mean that evidence by a credible decision-maker that adverse action was not taken because of any prohibited reason will necessarily always discharge the statutory onus. It is open to the FWC to accept as honest and credible a decision maker’s explanation of the decision for taking adverse action, then to weigh all the evidence and the overall facts and circumstances of the case, and not be satisfied that the employer has discharged the statutory onus.” 18

[39] In this matter there were two decision makers. Mr Mullins described the decision as a joint decision between him and Mr O’Connell. Mr O’Connell accepted that he advised Mr Mullins that he no longer required Ms Mowle to perform work on his team. He denied having a role in terminating Ms Mowle’s employment because he said that was a decision for Downing Teal. While that is strictly legally true in this case, Mr O’Connell’s role in the decision to terminate Ms Mowle’s employment cannot be overlooked.

[40] I accept Mr Mullins’ evidence that he did not terminate Ms Mowle’s employment because she reported a workplace injury. I accept his evidence that this was not a consideration in deciding to terminate Ms Mowle’s employment. Mr Mullins terminated Ms Mowle’s employment because he accepted Mr O’Connell’s advice that she was a potential danger to herself and others on her team. 19

[41] I also accept Mr O’Connell’s evidence that he did not advise Mr Mullins that he did not want Ms Mowle as part of his team because she had reported a workplace injury. It was Mr O’Connell’s categorical evidence that this was not a reason for his advice to Mr Mullins. That evidence is consistent with both Ms Mowle’s and Mr O’Connell’s evidence, that he thanked her for reporting the injury because that was consistent with her obligations under workplace policies.

[42] I accept that Mr O’Connell and Ms Mowle had a disagreement about how serious this incident was with Mr O’Connell viewing the incident as more serious than Ms Mowle. I also accept that Mr O’Connell and Ms Mowle had a disagreement over the safety protocols associated with confined spaces. I also accept that Mr O’Connell was concerned that Ms Mowle was not listening with sufficient attention when receiving instructions from more experienced staff.

[43] Mr O’Connell and Mr Mullins both gave evidence that a discussion about Mr O’Connell’s concerns about Ms Mowle occurred before she reported a workplace injury.

[44] I accept Mr O’Connell’s evidence that the reason he told Mr Mullins that Ms Mowle’s placement must end was because, based on her responses and her willingness to argue about simple directives from her supervisors, he had concerns for her personal safety. It was not the fact that she expressed views about health and safety matters that concerned Mr O’Connell. It was what that those views exhibited, in his opinion, a lack of understanding of safety procedures.

[45] Ms Mowle points to the temporal connection between the incident on 17 September 2014 and her dismissal. A temporal connection is not causation. In this case, I do not accept the submission of Ms Mowle because Mr O’Connell had expressed his concerns about Ms Mowle prior to this incident. Mr O’Connell accepted that Ms Mowle was doing the right thing in reporting the incident, and when this proposition was put to Mr O’Connell his evidence was definite that it was not a reason for his decision.

[46] I therefore find, on the balance of probabilities, that Downing Teal did not terminate Ms Mowle’s employment because she exercised a workplace right.

Section 345 - False or misleading representations

[47] Ms Mowle also relied on section 345 of the Act to support her claim.

[48] Section 345 provides as follows:

(1) a person must not knowingly or recklessly make a false or misleading representations about:

(a) the workplace rights of another person; or

(b) the exercise, or the effect of the exercise, of a workplace right by another person

(2) subsection (1) does not apply if the person to send the representation is made would not be expected to rely on it.

[49] Ms Mowle submitted that Mr O’Connell made a false statement and reckless misrepresentation about her to Mr Mullins and to A Shift (in the presence of other managers and laboratory technicians).

[50] Ms Mowle did not identify the workplace right that she alleges Mr O’Connell made a false or misleading misrepresentation about. She said the misrepresentation was that she was an unsafe worker because she did not know about the severity of the incident. She said he was reckless to state that there had been medical treatment received and that she was juvenile in her understanding of safety. 20

[51] Nothing in the above is a false or misleading misrepresentation about workplace rights of any person or the exercise or the effect of the exercise of a workplace right by another person.

[52] It is not clear that allegations of a breach of s.345 are able to be dealt with as part of a consent arbitration about a dismissal. However this matter was not argued before me and I will not make a final determination of this issue. Further, this proceeding is proceeding against Downing Teal and not Mr O’Connell. There is no evidence that Mr O’Connell was Downing Teal’s agent such that any allegation against Mr O’Connell is an allegation against Downing Teal. Again this was not argued before me and I will not make any determination of this issue.

[53] Based on the evidence and submissions of Ms Mowle, she has not established there was false or misleading representations about workplace rights or the exercise, or the effect of the exercise, of a workplace right by another person and therefore this claim must fail.

Section 351 - Discrimination

[54] Ms Mowle also relied on section 351 of the Act.

[55] Section 351 provides as follows:

(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.

[56] It was submitted that there was a failure to provide a workplace free from discrimination and that Ms Mowle was discriminated against in breach of s.351 of the Act.

[57] Ms Mowle submitted that discrimination involves deliberately making a distinction in favour of or against a person or thing. Discrimination is not limited to direct discrimination. She submitted that Mr O’Connell favoured one team member over another because of his personal relationship with the other person. She submitted that he treated her less favourably in comparison with other employees. She submitted that no other employee had been terminated in like circumstances.

[58] Ms Mowle did not produce any evidence to support these allegations.

[59] Ms Mowle did not give evidence of the attribute relied upon to support her claim of discrimination nor did she give any evidence that she had any particular attribute.

[60] Ms Mowle, when asked if her employer had terminated her employment for any of the reasons set out in s.351, said no. 21

[61] Ms Mowle’s claim of discrimination under s.351 must fail.

Breach of the contract

[62] Ms Mowle submitted that Downing Teal breached her contract of employment. It is not necessary for me to determine this question as it is not relevant to the matters I am required to arbitrate.

Conclusion

[63] Downing Teal has satisfactorily discharged the onus of establishing that the reasons for the decision to terminate Ms Mowle’s employment were not for a prohibited reason. As such Ms Mowle’s application is dismissed.

DEPUTY PRESIDENT

Appearances:

J. Mowle on her own behalf.

J. Tevelein for the Respondent.

Hearing details:

2015.

Melbourne and Sydney, by video:

9 April.

2015.

Melbourne, by telephone:

20 May.

 1   S.341

 2   S.342

 3   S.340

 4   Transcript PN 41

 5   Exhibit A1 at (vii)

 6   Transcript PN 46

 7   Ibid PN 89

 8   Ibid PN 90-91

 9   Ibid PN 80

 10   Exhibit R2

 11   Ibid at [7]-[8]

 12   Ibid at [10]

 13   Ibid at [11]

 14   Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 at [101]

 15   Ibid at [41] and [101]

 16   [2014] FWCFB 8941

 17   Ibid at [48]

 18   Ibid at [51]

 19   Transcript PN 85

 20   Ibid PN 125-126

 21   Ibid PN 142

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