CASENOTE: Milardovic v Vemco Services Pty Ltd (Administrators Appointed) & anor [2016] FCA 19 (29 January 2016)

  • Author : Tim Donaghey - 16-02-2016

 

Mr Milardovic (also ‘Employee’ and ‘Applicant’) was first employed by Vemtec from 2008. From September 2012 the Employee was engaged by Vemco Services, the First Respondent (hereafter ‘Vemco’ or ‘Employer’). At Vemco, his manager was Mr Barry, Vemco’s director of sales and marketing and the second respondent to the proceeding (‘SecondRespondent’).

In February 2014 the Employee claimed to have made complaints to Ms Finnigan, the HR Manager for Vemco and other companies in the same group. From about early 2014, so said the Applicant, complaints made orally to both Ms Finnigan and Mr Barry were ignored. In particular, the Applicant statedthat:

  • in particular that he was bullied and not paid due entitlements, by reason of his complaints,

and that in each case, these were adverse action under the Fair Work Act 2009 (Cth) (‘FWAct’).

The Employee sued in the Federal Court of Australia, seeking substantial damages and consequential relief. Some of that relief included notice of termination andredundancy.

Whilst the First Respondent entered into external administration during the proceeding, resulting in an application for leave to proceed (pursuant to section 440D of the Corporations Act), this casenote concentrates on the role of the FW Act in the Court’sdecision.

  1. Applicant’s allegations andsubmissions

The Employee alleged that he was excluded from meetings; that he was not provided KPIs (in relation to his position and duties following a performance review in March 2014); that the Applicant’s employment was terminated; and finally that he was not paid allentitlements.

 

In addition, the Applicant asserted workplace rights asfollows:

  • complaints made by the applicant on 18 February 2014 (‘FirstComplaints’);
  • complaints made on 12 March 2014 (‘Second Complaints’);and
  • the making of a WorkCover application, alleging bullying in May2014.

Quite apart from the First and Second Complaints, there was an over-arching conclusion urged by the Applicant (both as a part of, and as evidenced by, the WorkCover application) that the Respondents, and particularly the Second Respondent, had bullied theApplicant.

The Applicant gave viva voce evidence; evidence was called by an expert psychologist, Dr Fiona Wood.

  1. Respondents’submissions

The Respondents put their case jointly. The Respondents submitted that the Applicant had not actuallyputtheFirstComplaints(saidtobeundersection340(1)(c)oftheFWAct)toany


person who could be considered the respondent. This was said to be fatal to the Applicant’s case under that section. Also, the Respondents (particularly Mr Barry) said that the alleged bullying was reasonable management of the Applicant, with regard to the business and to the Second Respondent’s responsibilities as a whole. Finally, whilst the Second Complaints were admitted in part, and decision of the First Respondent to terminate the Applicant’s employment was said to be adverse action, within the meaning of section 342 of the FW Act, this was not for a prohibited reason and therefore not contrary to the FWAct.

  1. Court’sconclusions

Mortimer J heard the trial. Her Honour found that the bullying was not framed as a cause of action in itself – this, as it might have been in Swan v Monash Book Co-op [2013] VSC 326 or in the well-known case of Doulis v Victoria [2014] VSC 395. Each of these decisions relied upon an employer’s duty of care to an employee to establish a basis for substantial damages for breach of an obligation intort.

Her Honour found the Applicant less credible than the Respondents’ witnesses. In particular, the Applicant’s allegations in the statement of claim (which had not been amended) varied considerably from his allegations in the witnessbox.

Her Honour dealt with each of the First Complaints and Second Complaints separately. Her Honour found that several of them, including the exclusion from meetings or the opportunities for education missed by the Applicant were never made as complaints to the Respondents. Rather, the Applicant made these complaints to third parties; or else to no-one. As to the First Complaints, the judge found none of these were made on 18 February2014.

The Respondents admitted the making of some complaints on 12 March 2014, and her Honour found none of them operated as a reason for adverse action. Likewise, the Court found the WorkCover application was not the reason, or part of the reason, for dismissing the Applicant from his employment. The court found redundancy was owed to the Applicant, and ordered ten weeks’ wages plus interest to be paid to the Employee. After settling orders for the redundancy monies, and the Respondents’ costs application, the substantive application was proposed to be otherwisedismissed.

Rationale of the decision

 

This case highlights that, even now, many years after the FW Act commenced, the limits of the ‘complaints and inquiries’ as a workplace right are not clear and may not be known soon. As with many such cases, this proceeding was a multitude of jumbled allegations some of which were actually contemporaneously made to the Second Respondent and othersnot.

If it has a useful ratio, then this decision has this: that bullying, whilst prohibited both at common law and statute, is not specifically prohibited by Part 3-1 of the FW Act. Often, an allegation of bullying will be irrelevant as to whether a workplace right exists, or is causative of a party’s loss. Rather, it is the actual complaint of bullying (if the complaint is ever made) which may be actionable under section 341(1)(c) of the FWAct.

Of lesser significance is the pleadings point. Her Honour noted the dissonance between the Applicant’s allegations and its case in submissions; by contrast, the Respondents’ case was more aligned with its pleading. This can only serve to bolster oneside.

About the Author

Tim Donaghey

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