No adverse action: redundancy not triggered by racism complaints

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No adverse action: redundancy not triggered by racism complaints

An employee was not made redundant because he had complained about racial abuse, a court has ruled.

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An employee who complained about racial abuse has failed to convince a court that his redundancy was a case of adverse action.

The Federal Circuit Court (Judge Smith) pointed out that there must be a material link between the exercise of a workplace right (complaining about racist treatment) and alleged adverse action (being made redundant).

The facts did not support the complainant’s case.

Background


D'Arcy Hull, a sheetmetal worker, was employed by the respondent (Hertel) on the Gorgon liquefied natural gas construction project on Barrow Island in WA. Mr Hull was a member of the AMWU (the second applicant in the case).

During the course of his employment on Barrow Island, Mr Hull made several complaints regarding offensive and racist conduct by one of his co-workers.

Meanwhile, on 1 July 2016, Hertel was notified by the manager of the Barrow Island project that it had to make a number of redundancies. Mr Hull was included among those who were made redundant on 9 July 2016 and his employment by Hertel was terminated on that day.

Mr Hull claimed in these proceedings that his employment was terminated because he had made complaints about his co-worker and a foreman. In evidence Mr Hull said he had heard the foreman speaking to one of the alleged perpetrators, saying words to the effect that he did not ‘give a shit about his [Mr Hull’s] complaint’.

The racist comments continued after this incident.

Redundancy


Hertel’s workforce on the project had fluctuated throughout its contract. This was partly due to the fact that the work to be performed by Hertel depended upon the timely performance of work by other contractors, as well as the availability of accommodation on Barrow Island.

During the course of the contract in respect of which Mr Hull was employed, Hertel had mass redundancies in December 2015, January 2016, March 2016, July 2016, December 2016 and February 2017.

When redundancies were scheduled, the industrial relations manager prepared a spreadsheet with a list of all employees on site and marked certain ones as ‘red’ or ‘amber’. This was done according to various considerations including employment record and place of usual residence. Those employees were ultimately collapsed into one column of those who could possibly be made redundant.

This document, referred to as the ‘Red List’, was updated for each round of redundancies. It was provided as a guide only for superintendents and construction managers who ultimately selected people for redundancies. The names on the list could be, and often were, ignored for various reasons.

In relation to the redundancies in issue, Mr Hull's supervisor said he personally selected Mr Hull to be put on the list of redundant employees because he could not work on site and could only work in the workshop. He said that there was no other reason for his decision and that he did not consider what he had been told about the ‘carry on’ between Mr Hull and another employee.

It was put to the industrial relations manager, Mr Currie, in cross-examination that the decision was made because it was convenient to leave Mr Hull on the list so that Mr Currie could wipe his hands of the complaint. Mr Currie denied that suggestion, and also denied that he knew why Mr Hull was on the list in the first place, and that he deliberately refrained from finding out why.

Evidence accepted


The court accepted the evidence of Mr Currie.

"First, his evidence about the company’s usual practice was not seriously contested. That evidence was that the decision as to who is included in any redundancy is left to the managers and superintendents on site.

"The reasons for the inclusion or exclusion of any person from the Red List are not given to him...

"Secondly, I found that Mr Currie gave evidence in a straightforward manner and attempted to answer each question on its merit. He impressed as a truthful witness.

"Thirdly, given the frequency of mass redundancies, the fact that Mr Currie had responsibility for a large number of employees and had eight years’ experience working for the AMWU, it is unlikely that he would have acted to make someone redundant for the simple, personal, expedient of getting rid of a complaint. He had already dealt with the complaint quickly and efficiently...

"For those reasons, I find that the complaint made by Mr Hull played no part in any action taken by Mr Currie to leave Mr Hull’s name on the list of redundancies.’

Redundancy list


The court then addressed the question of why the superintendent included Mr Hull’s name in the list of redundancies:

"[The superintendent] said that the only reason for this was because Mr Hull could not go out on site and could not work outside of the workshop.

"... That response was consistent [with the applicant’s own evidence] ... I do not find [that] evidence to be implausible at all. To the contrary, I accept it as truthful.

"... I find that Hertel did not take adverse action against Mr H because he had exercised a workplace right and so did not breach s340 of the Act.’

The proceedings were dismissed.

The bottom line: The fact that a redundancy or other form of termination of employment coincides or closely follows a breach of a workplace right does not necessarily mean that adverse action has been taken against an employee. An actual factual link between the breach of the workplace right and the adverse action has to be established.

Hull & Anor v Hertel Modern Pty Ltd [2017] FCCA 2579 (2 November 2017)
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