Corke-Cox v Crocker Builders Pty Ltd [2012] FMCA 677 (3 September 2012) Last Updated: 5 September 2012 FEDERAL MAGISTRATES COURT OF AUSTRALIA CORKE-COX v CROCKER BUILDERS PTY LTD [2012] FMCA 677 INDUSTRIAL LAW – Unfair dismissal – workplace injury – whether the applicant was an employee – national system employee – s.12 Fair Work Act 2009 – adverse action – exercise of a workplace right – Workers Compensation and Rehabilitation Act 2003 (Qld) is a workplace law – s.340(1) Fair Work Act 2009 (Cth) – a claim for WorkCover benefits gives rise to a workplace right – whether the applicant was injured in his employment – whether the position of the applicant was altered to his prejudice – operative reasons for dismissal – false or misleading representations about a person’s workplace rights – s.345 Fair Work Act 2009 (Cth) – physical disability – s.351 Fair Work Act 2009 (Cth) – dismissal while temporarily absent – s.352 Fair Work Act 2009 (Cth) – right to a guarantee of employment – s.232B Workers Compensation and Rehabilitation Act 2003 (Qld) – damages awarded. Fair Work Act 2009 (Cth), ss.12 , 117 , 335 , 340 , 341 , 342 , 345 , 351 , 352 , 353 , 360 , 361 , 390 , 539 , 545 , 546 Fair Work Regulations 2009 (Cth), reg.6.04 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) Queensland Building Services Authority Act 1991 (Qld) Workers’ Compensation and Rehabilitation Act 2003 (Qld), ss.11 , 232B , 579 Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14 Bostik (Australia) Pty Ltd v Gorgevski (No 1) [1992] FCA 209 ; (1992) 36 FCR 20 CFMEU v Hadgkiss [2007] FCAFC 197 ; (2007) 169 FCR 151 CFMEU v Leighton Contractors Pty Ltd [2012] FMCA 487 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 563 Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 ; (1999) 91 FCR 463 Hollis v Vabu Pty Ltd [2001] HCA 44 ; (2001) 207 CLR 21 Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 Jones v Queensland Tertiary Admission Centre Ltd (No.2) [2010] FCA 399 Kelly v Fitzpatrick [2007] FCA 1080 Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7 Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1 ; (1986) 160 CLR 16 Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19 ; (2006) 226 CLR 161 Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375 Applicant: RICHARD CORKE-COX Respondent: CROCKER BUILDERS PTY LTD File Number: BRG 771 of 2010 Judgment of: Burnett FM Hearing dates: 21 July, 22 July 2011 and 31 August 2011 Date of Last Submission: 31 August 2011 Delivered at: Brisbane Delivered on: 3 September 2012 REPRESENTATION Solicitors for the Applicant: Workers First Australia Pty Ltd Counsel for the Respondent: Mr J. Allen Solicitors for the Respondent: Holding Redlich Lawyers ORDERS (1) The respondent pay the applicant the sum of $7,000.00 by way of compensation for lost wages and $516.00 in respect of interest thereon. (2) The respondent pay to an authorised superannuation fund nominated by the applicant a sum of $630.00 by way of compensation for lost superannuation benefits and $111.00 on account of interest thereon. (3) The respondent pay a pecuniary penalty assessed at $5,000.00 in respect of its contravention of s.340 and that such sum be paid to the applicant. FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE BRG 771 of 2010 RICHARD CORKE-COX Applicant And CROCKER BUILDERS PTY LTD Respondent REASONS FOR JUDGMENT Introduction The applicant, Richard Perry Corke-Cox (Corke-Cox), commenced his engagement with the respondent Crocker Builders Pty Ltd (Crocker Builders) in 2007. In March 2010, Corke-Cox claimed to suffer a workplace injury and he claimed WorkCover benefits. He claims that he was dismissed in April 2010. He says that he was dismissed because he sought to exercise a workplace right, that is, to claim or seek to enforce a claim to WorkCover benefits. If this was so, then Crocker Builders contravened the Fair Work Act 2009 (Cth) (FW Act) and are liable to pay Corke-Cox compensation, as well as being subject to pecuniary penalties. Summary of Findings For reasons which follow, I find and conclude: Corke-Cox was an employee of Crocker Builders for the purpose of Chapter 3 Part 1 FW Act. The Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act) is a workplace law as defined by the FW Act. Corke-Cox was injured in the course of his employment by Crocker Builders on 17 March 2010 at its Eversley Terrace, Yeronga site. In purporting to claim benefits pursuant to the WCR Act, including action in respect of decisions made by WorkCover, Corke-Cox did exercise a workplace right. Corke-Cox was dismissed from his employment with Crocker Builders on 17 April 2010. The dismissal was adverse action as defined: s.542(1) FW Act. An operative reason for his dismissal was because Corke-Cox had exercised a workplace right and/or proposed to exercise a workplace right in respect of his entitlement to WorkCover benefits. The conduct of Crocker Builders in taking adverse action was: In contravention of s.340(1) FW Act; Did not otherwise injure Corke-Cox in his employment by defaming or injuring his reputation to other employees of Crocker Builders as alleged; Did not otherwise injure Corke-Cox in his employment by defaming Corke-Cox to Crocker Builders’ clients as alleged; Did not otherwise alter Corke-Cox’s position to his prejudice as alleged. Crocker Builders not knowingly or recklessly make false or misleading representations about Corke-Cox’s workplace rights in contravention of s.345 FW Act in respect of the statement made on 5 May 2010 but not otherwise. Crocker Builders did not take adverse action on account of a physical disability in contravention of s.351 FW Act. Crocker Builders did not dismiss Corke-Cox because he had an injury of a kind prescribed by regulations in contravention of s.352 FW Act. At the time of dismissal from his employment Corke-Cox did not have a statutory guarantee of employment pursuant to s.232B WCR Act and the dismissal was not in contravention of it. Corke-Cox suffered damage by the adverse action and is entitled to compensation made up as: Wages in lieu of notice, age loading, early termination $7,000.00 Interest $516.00 Superannuation $630.00 Interest on superannuation $111.00 A pecuniary penalty of $5,000.00 should be imposed with that sum to be paid to the applicant. Background Facts Corke-Cox commenced his engagement with Crocker Builders from about 1 June 2007. His engagement came to a conclusion on 12 April 2010 in circumstances that are detailed later in these reasons. He was engaged as a painter. The circumstances concerning the nature of his engagement are contentious. When first engaged in 2007 he was engaged on a sessional contract basis. At the time of his initial engagement he was not licensed in accordance with the provisions of the Queensland Building Services Authority Act 1991 (Qld) (QBSA Act). In any event, he subsequently obtained the appropriate licence and was engaged on a periodic basis to undertake painting works as directed on various projects undertaken by Crocker Builders. Mr Dene Crocker, Director of Crocker Builders, deposed that Corke-Cox would submit fortnightly invoices to Crocker Builders for payment. In addition, he stated that Corke-Cox would supply his own tools as a subcontractor and that from time to time Crocker Builders would purchase tools on his behalf, although when that occurred Crocker Builders would then invoice Corke-Cox for the costs incurred and deduct them from invoices as instructed. By way of illustration Mr Dene Crocker exhibited at Annexure DC3 to his affidavit filed 7 February 2011 a copy of a tax invoice evidencing such an instance. In respect of that matter it appears that four drop sheets were ordered to a value of $152.23. The cost was debited to an account maintained on behalf of Crocker Builders Pty Ltd. However, the purchase order in support of the tax invoice from Dulux Australia, which is on a Crocker Builder’s purchase order form, shows that the delivery address was “Perry Drop Sheets - Personal to Bill.” It is not entirely plain that the drop sheets were being purchased by Corke-Cox on the Crocker Builders account with a charge back to Corke-Cox, although I accept that the inference is open. However with that exception most other materials, particularly paint, were supplied by Crocker Builders. It was with these facts in mind that WorkCover Queensland later assessed the arrangement as an employee/employer arrangement. I do not disagree with its characterisation of the arrangement given the facts, a matter which became contentious between the parties. It seems that some time around about September 2009 Crocker Builders was subject to a quality assurance and quality management process. That process involved ensuring that all licences, insurances and contracts were up to date for the subcontractors, including Corke-Cox. Crocker Builders’ need for this process was driven in part by its desire to tender for Queensland government schools projects. As part of the tendering process they were required to correct policies and procedures. It was noted at that time that Corke-Cox did not have a licence nor had he signed a contract agreement or provided Crocker Builders with a copy of his insurance. Accordingly, Tamara Lyons, an administrative assistant for Crocker Builders, followed these matters up with Corke-Cox. Although it appears it took some urging on her part, Corke-Cox finally signed the period subcontract agreement on 12 November 2009 which covered off on the issues including the matter of completion of the period subcontract agreement, provision of copies of insurance and BSA licensing. That agreement was extant at the time of events the subject of this proceeding. It follows that at all material times leading up to and including the date of the relevant events, prima facie, Corke-Cox was performing duties for Croker Builders pursuant to the terms and conditions provided for in a period subcontract agreement in the Master Builders form dated 11 November 2009. The subcontract agreement provided, inter alia, that the subcontractor have various forms of insurance including WorkCover in place. In fact, he did not. This matter appears to have precipitated some of the subsequent difficulties between the parties. In accordance with that agreement, Corke-Cox would work approximately 40 hours in any one week in respect of which he would deliver an invoice at a gross hourly rate of $35.00 per hour. Corke-Cox remained responsible for his own taxation affairs and accepted until these events that he was not on Crocker Builders’ payroll. Corke-Cox maintains he attended and worked as directed exclusively at Crocker Builders sites without any input on his part. He states that he simply worked as directed by Andrew Tubb, a building supervisor engaged by Crocker Builders. On 17 March 2010 Corke-Cox was employed on a site at Eversley Terrace, Yeronga from 9:30am that day. Earlier in the day he had been working on another job but had been unable to finish it because it was threatening rain and he was concerned that if the exposed oil floor was wet the colouring would go “milky.” Tubb says he recalls having a conversation to this effect with Corke-Cox at about 9:30am that day. He noted at that time that Corke-Cox appeared to be flustered and upset by discussions that he had just had with Gordon Crocker [1] concerning the property he had just left. Tubb noted that Corke-Cox left where Tubb was working saying that he had to “go and pick something up” and that he did not see him after that and particularly after 11:30am, as that was the time that Tubb left the site. Corke-Cox says that at about 12:30pm he had just completed lunch in the work shed when he was walking back to where he had been working at the time. He says that while walking between some of the townhouses being constructed on the site, down the only thoroughfare that was available, his foot got caught in cabling and he tripped. He says that he lost balance and fell to the right and put his hand out to break his fall. He says he fell quite heavily and immediately felt a pop and pain in his right shoulder. He said he ended up getting off the ground and untangling himself before another painter, “Rob,” appeared. He says Rob asked “what the hell have you done?” to which he responded that he had tripped on the cabling. He said his reaction was to laugh and he just dusted himself off and returned to where he was working. He says he sat down for a bit to rest his shoulder before then recommencing work, which at that time concerned rolling walls inside a townhouse. He says that although his shoulder felt sore when he was rolling he was able to work for the next few hours until the end of the day. He says that later in the day Nick Hill, the foreman on site, was going up a ladder when he saw him stop. He says Hill called out to him words to the effect “why do I have Gordon ringing me about staining on a deck? That’s the painters’ job.” He says that during that conversation he said to Hill “it might pay you to clean up your worksite as I just had a fall over some pipes.” Hill denies that statement, saying that he told Corke-Cox that he ought clean up his worksite, that being a reference to the worksite the subject of the complaint which had been spoken of earlier. For reasons which follow, I prefer the evidence of Corke-Cox on this point. Corke-Cox says that by about 2:50pm on that afternoon his shoulder was quite sore and he thought he ought tell Hill that he was in discomfort. He says he was looking for him but that Hill had already left the site. Having missed Hill, he says he saw the apprentice Jared Helfert who he says he told he was going to go see a doctor about his shoulder. Corke-Cox then left work to travel home to have a shower and visit his doctor, Dr David Copeland, at the Oxley Medical Centre. He says Dr Copeland examined his shoulder, told him it needed to be scanned and suggested that he return to the surgery the next day. He says Dr Copeland also told him that he would not be there to reassess him on the following day because he was going to be absent for the next 10 days. Accordingly, Corke-Cox made an appointment to later see Dr Tut, another doctor at the surgery. Corke-Cox says that he attended work the next day, Thursday 18 March, but could only work for a few hours because his shoulder became too sore to continue. It is unclear which site Corke-Cox initially attended but he says that he rang Rob (the other painter I assume from the site that he was then at) when he was advised and directed to go to a job at Sylvia Street. He says he tried to call Tubb but Tubb did not answer his phone. He says that at about 12:30pm he left the site and went home and presented to Dr Tut later that afternoon. He contends that Dr Tut advised him to take time off work until 24 March. In the meantime he did not attend work on Friday 19 March and on that morning received a call from Tubb enquiring after him. He says he told Tubb that he had been to the doctor and needed to get radiology because his shoulder was too sore to work and that the doctor had given him time off. He also told Tubb that he had made a workers’ compensation claim. Corke-Cox maintains that from the tenor of the conversation conducted between he and Tubb he believed that Tubb was aware of the incident, noting that “he did not ask for any details of what happened.” He says Tubb simply responded with words to the effect of “ok, fair enough, let us know what’s happening.” Tubb denies this conversation. Corke-Cox also maintains that shortly after this call he received a call from Dene Crocker who asked, “what’s going on?” to which Corke-Cox says he responded that he had hurt himself at work. He says Dene Crocker’s response was “bullshit.” Corke-Cox says that he told Dene Crocker that he had been to the doctor and deposed that Dene Crocker responded that he was not covered by WorkCover. Corke-Cox disagreed, stating that the office administrator Tamara Lyons and Gordon Crocker had told him otherwise and that when he signed his periodic subcontract he had queried whether he was covered or not, and was told that he would be. He says that Dene Crocker was angry and said words to the effect “we’re not covering you.” I note that Dene Crocker denies that this conversation occurred. Corke-Cox maintains that there was further discussion between he and Dene Crocker with him stating, “Hey Dene, hang on if this is going to affect my job, just forget and I’ll get back to work somehow.” The conversation finished on the basis that they would meet the following Monday. The following Monday, Corke-Cox called Dene Crocker and further conversation ensued. He says Dene Crocker told him that he would not be covered by WorkCover and that the claim would be denied. Corke-Cox says that he said words to the effect of, “fair enough I just want to get back to work.” This conversation is denied. In any event, what is agreed is that the meeting did not proceed on the Monday but was rescheduled for 3:00pm on the Friday. When the Friday arrived the meeting was again rescheduled to the following Monday. That meeting too did not proceed before eventually the parties were able to meet at about 3:00pm on Monday 12 April 2010. In the meantime, the applicant continued consulting medical practitioners for further treatment and the issue of further medical certificates. On Monday 12 April 2010, Corke-Cox attended at the offices of Crocker Builders and met with Dene Crocker. He says that when he went into Dene Crocker’s office, Crocker said words to the effect of, “we’re not too happy with you mate.” When Corke-Cox queried why, Crocker responded, “You put in a workcover claim.” Corke-Cox contends he responded, “Tamara told me I was entitled.” He contends that Dene Crocker said that she had not said that. Corke-Cox says he suggested that Tamara be invited into the office to see what she said but Dene Crocker refused to do this. He said Dene Crocker said, “We haven’t paid levies for you.” He says Dene Crocker continued with words to the effect, “I’ve got reliable information that you never hurt yourself on the job, we have witnesses.” He says Dene Crocker continued, “That’s not what I want to talk about. We’ve had a lot of complaints.” Corke-Cox says that at about this time Dene Crocker left the room to come back with a letter which he contended was a letter from Mike Fanning, an architect. It concerned a job on which Corke-Cox had done some work. Corke-Cox says that Dene Crocker commenced “having a go” at him because Corke-Cox had complained to Tubb about another painting contractor who had also worked on that job. Corke-Cox contends that not only did Dene Crocker make that observation but he concluded by noting, “Not only that, your work’s crap.” He said that Dene Crocker highlighted with a yellow pen about three or four lines in the letter and said words to the effect, “drop sheets should have been used.” Corke-Cox complains that he was never shown the letter during this conversation. Corke-Cox says that at about this point he stated, “come on, everyone knows his game.” He says that he challenged Dene Crocker to show him one job where he had had to go back and fix anything up. He says Dene Crocker said, “We’ve had a gutful, you’re gone.” Corke-Cox contends that in response he said, “You’re full of shit, Dene. I put in a Workcover claim and you’re sacking me because of that.” He says Dene Crocker responded, “Piss off,” and that in turn Corke-Cox said, “If it’s about workers comp don’t worry about it, I won’t pursue it.” He says Dene Crocker said in response to that, “No don’t worry about it, you’re gone.” He contends that he then said to Dene Crocker words to the effect of, “I know the drill. I’ve never been called into your office, no one has ever complained about me.” He says he left the office and complains that in effect, at that point, he was summarily dismissed. Needless to say, Dene Crocker has a different recollection of this conversation. While Dene Crocker does not agree with some of the detail preceding the meeting of 12 April as deposed to by Corke-Cox, nothing of substance turns upon the points of difference between those parties. Dene Crocker says that on 9 April 2010 he phoned Corke-Cox and requested that he attend his office. He says that in essence that was all that was discussed at the time. Dene Crocker said that, as it was his intention to call Corke-Cox in to discuss the unsatisfactory workmanship, he did not inform Corke-Cox of the reason for calling the meeting. That accords with commonsense. I accept that it is far more likely that Dene Crocker said nothing for that reason than that he would have made the alleged statements concerning WorkCover and then have invited Corke-Cox in for a meeting. Neither party made contemporaneous notes of these events and the discussion, although there is one exception which addresses part of the conversation, namely the words used on termination. However, I have significant reservations about the general reliability of Dene Crocker and the respondents’ principals generally for reasons which follow. Accordingly, I am not prepared to give this isolated self-serving note any weight. Dene Crocker contends that Corke-Cox attended his office at about 3:00pm at which time he had before him Mr Banney’s email of 4 March 2010 (Exhibit 7) and his defects list dated 9 February 2010. Various defects had been highlighted on the list. Dene Crocker denies that there was any conversation concerning the subject of WorkCover except at the very end, after there had been a heated exchange between him and Corke-Cox concerning the defects identified in the Banney email. Dene Crocker says that during that conversation Corke-Cox became quite aggressive and ultimately stood up from his chair and began pacing about in front of him saying that he was “not going to put up with this shit” and that there was “no problem with the work” and that he would not fix it. He says Corke-Cox walked out of his office and then returned a short time later very agitated and asked, “is this because I put a WorkCover claim in?” Dene Crocker says that he responded, “No. Besides, you did not advise anyone that you had an accident, and you are not covered by us anyway.” He says that Corke-Cox’s response was that he had reported it to Nick Hill. Dene Crocker said that he had made enquiries of Nick Hill who claimed not to know anything of it. He says Corke-Cox angrily said words to the effect “shove your job” and that he stormed out. Corke-Cox denies that the conversation occurred as alleged by Dene Crocker or at all. The conversation of 12 April is significant. From the applicant’s perspective it is contended that the conversation evidences the respondent’s operative intention for his termination. That is, the applicant was terminated for an adverse reason being his intention to prosecute his rights to claim compensation under WorkCover, a matter which was within the knowledge of respondent and had been so since at least late March, following its receipt of WorkCover’s letter of 25 March. The respondent contends to the contrary. That is, that Crocker Builders had no knowledge of the applicant’s purported injury and that not only was any actual or prospective WorkCover claim not an operative reason in Corke-Cox’s termination but that in fact Corke-Cox had resigned in a fit of pique following a disagreement concerning the quality of his workmanship on a particular project. Ultimately, the disagreement between the parties can only be resolved upon a consideration of the reliability and credit of the competing witnesses. For reasons which follow I prefer the evidence of Corke-Cox as being more reliable on these issues than the evidence of the Crocker Builders witnesses, as I have serious concerns about their general reliability. Given my assessment of them I have rejected their evidence in preference to evidence of Corke-Cox except where otherwise stated. A number of material issues arose which have led me to this conclusion. Those issues are: Nature of the original WorkCover claim; Circumstances surrounding Corke-Cox’s application for work in Faux Finishes; Circumstances surrounding a telephone call alleged to have been made between Rob Hauser and Dene Crocker of 31 March 2010; Circumstances surrounding a chance encounter between Dene Crocker and Robert Hauser. Workplace Injury Corke-Cox claims he was injured when he tripped over piping on the worksite on 17 March 2010. Crocker Builders does not accept this occurred. They believe he was injured by some other means. For instance, they rely upon the evidence of Hauser that Corke-Cox said that he injured himself at home. They also generally rely upon the evidence of Hauser that Corke-Cox stated that he was going to “stitch up” Crocker Builders by making a false claim, the inference being that the injury was unrelated to any workplace event. The scepticism of Crocker Builders was evident in their dealings with WorkCover Queensland. It was evidenced by the diary note maintained by WorkCover of a conversation between Lee Crocker and an officer of WorkCover Queensland following on 5 May 2010. The officer, in the course of the conversation with Lee Crocker, asked if Crocker Builders were satisfied that the injury had occurred as stated. Lee Crocker was reported to have asked the officer if Corke-Cox had any proof that the workplace incident did occur. The officer explained that Corke-Cox had reported that he had attended a GP who confirmed that the injury was consistent with the stated cause. She noted that “unless he had any proof to the contrary then WCQ would be accepting the claim.” It is noteworthy that approximately one hour after this conversation Lee Crocker forwarded an email to the relevant officer at WorkCover Queensland stating: “Could you please give a call regarding this claim before proceeding any further. I remembered I had a phone call from Rob Hauser of Faux Finishes(Painting Company) regarding Richard. Richard rang Rob approx 4-5 weeks ago looking for work. Robert rang me after his call with Richard to advise me what Richard had said to him about our company and his injury claim. Basically Richard told Robert that the injury was done at home (not on our site) but he was going to go after us for the claim. I have spoken to Robert again this morning and he has stated that he is more than happy to speak to you about the conversation with Richard and put something in writing if necessary.” The fact that Lee Crocker omitted to recall this seminal event in the course of his conversation an hour earlier causes some concern. As discussed below, I am not satisfied that this conversation occurred in March as alleged. Lee Crocker’s failure to recall such a significant conversation in this context a little over a month later troubles me. That is particularly so because the respondent’s evidence of the alleged conversation and its circumstances were also so unusual as to make it improbable that it would be overlooked in that context. Corke-Cox asserts that following the injury which occurred at about 12:30pm on 17 March he immediately reported it to his supervisor Nick Hill. Nick Hill was the foreman on the site. Hill denies that the injury was reported to him. He says he became aware of the injury the next day when another worker, Robert Jeschonek, informed him that Corke-Cox had had a fall and suffered an injury. I am in some doubt as to whether Corke-Cox did in fact inform Hill as he said he did. However, I do not consider this matter critical because irrespective of whether he did or did not inform Hill of his injury I am satisfied by reason of the temporal sequence of relevant events that he did in fact sustain an injury as he deposed. The evidence is that he attended his doctor later that day and on the subsequent day to complain of a “right shoulder soft tissue injury” caused when he “tripped over pipes and fell.” [2] A medical certificate was issued by Dr Tut on 18 March 2010. It diagnosed “soft tissue injury right shoulder.” The certificate noted that he was first seen at the practice on 17 March in respect of that injury. The description was “fall at work - slipped/foot tangled.” Generally the report made to the general practitioner and noted in his certificate issued on 18 March was consistent in terms of the injury complained of. It also confirmed the applicant’s evidence concerning the initial presentation to the practice on 17 March in respect of that injury. It follows in my view that there is a sufficient temporal connection between the events of 17 March and 18 March to justify the conclusion that an injury occurred in the manner described in the absence of any other cause or factor. The only other witness who possibly could have assisted on this point was his co-worker, Robert Jeschonek. He gave evidence that on a date in March 2010 he could recall he came around a corner on the building site at Eversley Terrace when he heard Corke-Cox “... yelling and carrying on, swearing and as he came walking around the corner I said to him, “What have you done now?” ... He said, “I tripped – tripped over a pipe” ... he came around the corner just holding his shoulder and – with concrete dust on him...” [3] I have no reason to disbelieve this evidence. Mr Helfert’s evidence does not assist the respondent because it simply denies a later complaint allegedly made by the applicant. Nothing turns on that matter. No other cause or factor is in evidence. WorkCover Queensland accepted that the injury occurred on that day, although by reason of its later investigations it concluded that the injury was simply a temporary aggravation of a pre-existing degenerative condition. That assessment was made by Dr Gavin Ballenden an independent medical practitioner engaged by WorkCover to undertake assessment. In this case it is also worth noting that WorkCover Queensland’s records note that Crocker Builders’ original basis for denial was that Corke-Cox was an independent contractor. Not that the injury did not occur. As I have earlier noted, it is also troubling to me that a seminal matter such as the alleged conversation between Dene Crocker and Hauser could have been overlooked in the manner Dene Crocker says it was in the course of his conversation with the relevant officer at WorkCover on 5 May. While Corke-Cox’s condition was complicated by other injuries, those matters are simply a distraction from the issue here. Here the issue is whether or not he sustained an injury on 17 March as he asserts. It is of little moment whether the effects of the injury were temporary or otherwise. Plainly, on the assessment of Dr Ballenden, the effects of the injury were merely a temporary aggravation. However, that matter is irrelevant to the question of the initial injury and the initial acceptance that there was a basis for the symptomology complained of. Those matters do not appear to be in contention. It follows that I am satisfied that Corke-Cox did suffer an injury as alleged and that throughout the material period he was suffering the effects of the aggravation of his pre-existing shoulder condition. Indeed it is quite plausible that given Corke-Cox himself recognised his condition was merely an aggravation, he was anxious to return to work notwithstanding the discomfort his condition may have been causing him when presented with the alternative of being dismissed. That matter has significance in the context of the events of 12 April. Corke-Cox’s application for a job with Faux Finishes In about late March 2010, that is at a time after Corke-Cox’s injury but shortly before these events, Faux Finishes, a paint contracting and decorating company placed an ad in the Courier Mail Trades and Technical Employment section in its Saturday and Wednesday editions advertising a position for a painter. The ad in the Courier Mail for the weekend of 27 – 28 March 2010 was expressed in these terms: “PAINTERS wanted for ongoing work – must be tradesperson. Ph 3216 0876 or 0418 887 158.” Those numbers were telephone numbers for Faux Finishes. Mr Robert Hauser is the proprietor of Faux Finishes. He said that he recalled that in late March 2010 a call was passed through to him from his accounts manager, Annette Cox. The office procedure was that when employment enquiries were made they would be vetted by the accounts manager who would ask several standard employment questions relating to previous employers, references and previous experience. Hauser says the call was passed through to him because Cox had concerns about certain things allegedly stated by Corke-Cox to her. From the evidence I was given the impression that the office was an open plan office and that Hauser could largely overhear what Cox was saying in the course of telephone conversations she conducted. He says that when he took the call he spoke to Corke-Cox who told him, among other things, that he was making a workers compensation claim against Crocker Builders and then stated words to the effect of “I am going to stitch up Crocker Builders by putting in a false claim; They were going to sack me and now I will make them pay for it because they’ve stuffed me around; I am going to cash in and give them some grief.” Hauser says that these statements were made gratuitously and that he was plainly nonplussed by their content. He says he was concerned as an employer who pays workers’ compensation insurance and was puzzled as to why Corke-Cox felt compelled to inform him of these matters. He says he had no previous knowledge or dealings with Crocker Builders but because of this conversation felt compelled to call Crocker Builders to inform them of these matters. He says he subsequently did so. Upon calling Crocker Builders he says he was put through to Lee Crocker. He says that he informed him of what Corke-Cox had said to him noting that he would be willing to provide a statement to WorkCover Queensland. In fact, on 28 May 2010, he made a statement to WorkCover to similar effect. Lee Crocker agrees with the substance of Hauser’s evidence. In particular he affirmed the time and date of the conversation, that is, about 7:00am on 31 March 2010. Lee Crocker said that on that occasion Hauser had told him he had received a call from a person called ‘Perry’ (Corke-Cox’s nickname); Perry was looking for work and had told him he had done himself an injury at home and not at the site. Hauser said Corke-Cox had said words to the effect that he was going to “stitch up” Crocker Builders over a compensation claim, saying the injury did not occur on site and that he was doing it for payback. The exchange between Hauser and Corke-Cox is denied by Corke-Cox. He admits to having called Faux Finishes but says that occurred on or about 14 April in response to an ad which had been placed in the Courier Mail for that weekend calling for experienced painters and he spoke briefly with someone about a job but no other conversation took place. Corke-Cox’s mobile telephone account records confirm that a phone call was made from Corke-Cox’s telephone on 14 April which is also the date upon which an advertisement appeared in the Courier Mail under the heading “Painters Wanted.” That call went for 1 minute 39 seconds. His mobile telephone account does not demonstrate any call made from his mobile phone to a Faux Finishes telephone number at any other time and in particular in late March of 2010. There are a number of puzzling features about the evidence on this subject generally. Firstly, Hauser’s evidence is expressed in the past tense, suggesting that when Corke-Cox spoke to him, the event of termination had already occurred. This was clearly not the case in late March 2010, as the events surrounding termination did not occur until 12 April. That suggests that their conversation occurred on 14 April as Corke-Cox contends. Furthermore, Hauser says the conversation between Corke-Cox and he and his staff member took about 10 minutes. That appears to be an inordinately lengthy period having regard to the matters that were discussed, even allowing for the short question and answer session that may have preceded such a conversation, even if it did occur. Unquestionably, a conversation took place on 14 April 2010 which took 1 minute and 39 seconds. That seems a more realistic and reliable timeframe for the nature of conversation being undertaken, in the ordinary course, having regard to the sort of matters that one would expect to be discussed including experience, references and previous employers. When compared to 10 minutes, even allowing for an alleged rant, Hauser’s estimate seems wholly unrealistic. That conversation was to a mobile phone. Corke-Cox says he spoke personally to Hauser on 14 April. It was put to him that he never spoke to Hauser on 14 April. However, the record is plain; someone using Corke-Cox’s mobile phone phoned a mobile phone number associated with Faux Finishes on 14 April and spoke for 1 minute and 39 seconds. Common experience suggests that mobile phones are also personal, so it is more likely than not that Corke-Cox spoke with Hauser, especially since it has not been suggested that someone else did or may have answered Hauser’s phone. It is also unlikely that someone would have phoned a mobile number and have been ‘put through’ in the manner which is suggested by Mr Hauser. While it is not to say that Corke-Cox could not have called Hauser from a landline, that does not appear to be entirely consistent with the other calls made from Corke-Cox’s phone, although he did admit to having a landline at his home. Corke-Cox was cross examined at length about the calls made in response to other advertisements seeking painters. Those calls were not only made from his mobile phone but also in at least one instance made to a mobile number notwithstanding the ad providing both a fixed line and mobile service number. On balance, I accept that Corke-Cox made a call to Hauser on 14 April and spoke with him for approximately 1 minute and 39 seconds. However, accepting that fact does not resolve three other issues. The first was whether there were one or two calls made to Faux Finishes. Secondly, Hauser’s evidence was that he only ever spoke to Corke-Cox once, that being in late March when he says a call was put through to him by his accounts manager Annette Cox. Thirdly, that a conversation between Lee Crocker and Hauser in late March 2010 was overheard by an employee of Crocker Builders, Andrew McPike, and the circumstances of that. Hauser was insistent that he only ever spoke with Corke-Cox on one occasion, that being the occasion at the end of March. Unless he is mistaken as to the date of his conversation (which he denies) and he did speak with Corke-Cox at the end of March, then he must have had two conversations with Corke-Cox, for I am satisfied that they spoke on 14 April. Alternatively, whilst Corke-Cox recalls only speaking with Hauser once, he may have phoned Faux Finishes twice and not been aware of the fact that he spoke with Hauser on that occasion, or alternatively he did not speak with him but only the person manning the phone, who would probably have been Ms Cox. Given that the March ad also advertised a landline and mobile, it is not inconceivable that Corke-Cox phoned from his landline to the Faux Finishes landline number. If he had done so then in that instance it would be possible that Corke-Cox could have been ‘put through’ by Cox to Hauser. As I have earlier noted, I am satisfied there was a conversation between Corke-Cox and Hauser on 14 April. Whether Hauser is mistaken on that detail of an earlier call or not is I feel to be answered in part by considering whether a conversation of the kind alleged to have occurred in late March actually occurred. For reasons that follow I am satisfied that there were two calls made by Corke-Cox to Faux Finishes, the second call being the call which occurred on 14 April 2010 but the first being a call taken by Ms Cox. Telephone call between Hauser and Lee Crocker of 31 March 2010 Until the first day of trial, this issue was left to be resolved by reference to matters of credit between Hauser and Lee Crocker on the one part and Corke-Cox on the other. For the respondents it was contended that, given Hauser had no material interest in the proceeding, I ought prefer his evidence to the arguably self-interested evidence of Corke-Cox. However, late on the second day of the trial Counsel for the respondent sought to open evidence from another witness, Andrew Craig McPike, who was and remains an employee of the respondent. His evidence was opened on the basis that by reference to records of his mobile phone he recalls that on 31 March 2010 he was travelling to a site at Murwillumbah and that on that occasion he had with him as a passenger in the vehicle Lee Crocker. He says that in the course of the drive from Brisbane to Murwillumbah, Crocker received a telephone call which he overheard. The evidence as opened was that “the other person was advising Mr Crocker that he had spoken to someone who was looking for a job with the other person, and that that person had said that they were going to stitch up Crocker Builders.” [4] In an affidavit subsequently filed in the application, McPike related the matters overheard as follows: “6. I heard the caller introduce himself, although I did not hear the caller’s name at this time. The caller then told Lee something to the effect that he had been contacted by one of Crocker’s past sub-contractors looking for work. He then explained how this guy was going to prepare a case against Crocker Builders. I don’t recall the exact words. 7. When the call was over, Lee discussed the conversation with me, advising that the caller’s name was Rob Hauser from a business called Faux Finishes and that it was Richard Corke-Cox (whom I know as “Perry”) who had contacted the caller looking for work and bagging Crocker Builders. He (Perry) told Rob that he was going to make a claim and sue Crocker Builders.” Although not the subject of direct evidence, it would appear that McPike was not called upon to recall these matters and commit his recall of them to writing until about the time of his affidavit dated 26 July 2011. That is approximately 15 months after the material events. In the circumstances, it is not surprising that his affidavit was a little vague although it would be expected that the unusual nature of the subject matter would no doubt have occasioned some basis for recollection. In any event, cross examination revealed McPike to be equally vague in respect of the detail and overall I am troubled by his evidence, particularly when considered against the evidence of Hauser, who noted after having had his conversation in late March 2010: “After I got off the telephone to Perry I immediately looked up the contact details of Crocker Builder [sic] called Crocker Builders and asked to speak to the director. I was put through to Lee Crocker and told him what Perry said to me as I thought it would be worthwhile him knowing. I told him that I would be willing to provide a statement to Workcover Queensland.” Accepting Hauser’s evidence, it appears that he called Crocker Builders on a landline as it seems improbable that he would have called a mobile telephone number and then had been ‘put through’ as he says occurred. The evidence of these witnesses simply does not withstand scrutiny. First, McPike claims to have recalled the date following a review of his telephone records. I gather that by reference to his records he was able to confirm he was in Murwillumbah on that date. In his affidavit he stated that the phone call was loud enough for him to be able to hear the caller’s voice. He was careful not to state that the phone in the vehicle was equipped with speaker phone, and when asked in cross examination regarding this he affirmed that the phone was not a speaker phone. His evidence concerning his recollection was extremely vague. He stated: “I can’t recall exact words and I’m not going to lie and say I remember a conversation exactly. The conversation was that the guy, now who I know his name is, Rob [Hauser] rang up saying that Perry was going to make a claim against Crocker Builders. The exact words, I don’t – I can’t say that. It was 18 months ago. I’m not going to lie and say I remember them exactly.” [5] As I have noted, it seems he had only been called upon to recall these events for the first time in the days preceding his evidence. In his evidence he continued: “ When did you first find out who the caller was ?” A. “ Straight after Lee hung up and we spoke about it .” Q. “ And he told you, did he, that it was Rob Hauser ?” A. “ As I said, it was 18 months ago. I don’t remember, until recently, when it came about, that the name was brought back up, and, yes, that was his name, yes. He had a painting company .” Q. “ So you say recently his name was brought back up; when was that ?” A. “ When I was asked to come in to do this .” [6] I am satisfied that his recollection of these matters is far too vague to be reliable. However, other details are also puzzling. It was always Lee Crocker’s evidence that he received a phone call from Hauser on 31 March. McPike’s evidence affirms evidence that a phone call occurred. McPike also recalls that Lee Crocker had told him it was Hauser. While it is conceivable that McPike’s memory of this has been assisted by Lee Crocker’s reminding him of the conversation, it is more than serendipitous that Lee Crocker and Hauser are correct on the date of their exchange. The date accords with McPike’s record. Accepting that to be the case, Hauser must have had some contact with Corke-Cox prior to 31 March in order to be armed with knowledge of his employment by Crocker Builders. Plainly, Hauser advertised for painters in the weekend Courier Mail of 27-28 March. 31 March was the following Wednesday. It is not inconceivable that Corke-Cox spoke with someone at Faux Finishes on or before 31 March, he possibly having made a call to Faux Finishes’ landline number from his landline at home. Had he done so and had he provided information of the kind Hauser says Ms Cox ordinarily requested, Hauser could have come to know that Corke-Cox had been previously engaged by Crocker Builders and that he was at the time off work on workers’ compensation. Armed with that information, Hauser then could have phoned Crocker Builders as he says. Given Hauser’s evidence that only once he spoke with Corke-Cox, which I accept, and that Hauser phoned Crocker on 31 March reporting Corke-Cox’s contact with Faux Finishes, an event I find occurred, I think it is more probable than not, and find on the balance of probabilities, that Corke-Cox phoned Faux Finishes sometime between 28 March and 31 March. I find that in doing so he spoke with Ms Cox and provided her with detail such as Crocker Builders being his last employer and that he was off on WorkCover. Indeed, under cross examination Hauser confirmed that the mobile telephone number in the newspaper was his mobile number and the other number his office number. He confirmed that when his mobile was called he would deal with it but otherwise if a call was made to the office landline number a call would be put through to him. Concerning the call he made to Lee Crocker, he swore that he phoned directory assistance and had them place the call to Crocker Builders. When asked whether he immediately spoke to Crocker he said “No, I was put through to the office and I spoke to – I think it was the girl on the switch or somebody there at the time. And I asked to speak to the director.” He said he was subsequently put through to “the director.” [7] He said when put through the Director identified himself as Lee Crocker. He was also asked a number of questions concerning the quality of the call, particularly with respect to it having the quality of a call made on a speaker phone for instance in a motor vehicle. Hauser responded “No, I can’t remember if anything like that was happening. As far as I knew I was put through to the office.” [8] Hauser gave no other evidence of any other instance when he spoke with Lee Crocker. Hauser’s evidence gives rise to serious concerns about whether or not a conversation occurred in the vehicle on 31 March as deposed to by McPike and Lee Crocker. While I am prepared to accept that a telephone conversation was had, I am not satisfied that the conversation progressed as Hauser and Lee Crocker swore it did. I generally considered their evidence to be selective and unreliable. The evidence concerning these matters as detailed above illustrates the basis for my concerns and conclusions on this point. Undoubtedly, as an employer Hauser’s suspicion would have been aroused if he was informed that an enquiry had just been received by Cox from someone who identified themselves as enquiring after work yet stating that they were on workers’ compensation. I am satisfied that this is most probably what occurred. To that end, I do not accept that Corke-Cox made only one call to Faux Finishes. I am satisfied that he made two calls, however he probably had no reason to recall to whom it was made and without a telephone record to assist his recollection I accept this oversight as reasonable. Given that he spoke with Ms Cox on the first occasion and Hauser on the second, he would have had no occasion to draw the association, which I would consider explains his recollection of only one conversation with Hauser. Generally, I considered the evidence of Hauser and Lee Crocker to be selective and unreliable. The evidence concerning these matters as detailed above illustrates the basis for my concerns and conclusions on this point. It follows that I am satisfied that Hauser’s source of knowledge was not Corke-Cox but what he was told by his accounts manager, Ms Cox. In my finding it was by reason of inferences drawn from what he was told that he subsequently made a call to Crocker Builders on 31 March and spoke with Lee Crocker. However, I do not accept that Corke-Cox stated the matters alleged against him by Hauser. It defies commonsense. While Corke-Cox did not generally impress me I did not consider him to be completely foolish. As Corke-Cox stated he was not “insane.” [9] Such a statement would only be made by someone acting irrationally and I had no basis to form that view of Corke-Cox. The observation that Corke-Cox wanted to effect a pay back is, in my finding, more a matter of conclusion drawn from the background facts including that he was making a WorkCover claim against Crocker Builders and at the same time looking for alternate employment given relations had begun to sour between Corke-Cox and Crocker Builders over Corke-Cox’s work performance. It is important to observe at this point that Ms Cox was not called. I comment upon that matter below. However, the failure by the respondent to call her on these issues lends support to my conclusion that I ought reject the respondent’s evidence on the manner in which they say these events unfolded. Only the evidence of Cox can link the statements alleged by Hauser against Corke-Cox on 31 March. If Cox did not put the call through then the only information Hauser would have had was the basic information initially provided to Cox by Corke-Cox. That would possibly have been enough to permit Hauser to jump to the conclusion that an employee of another builder, then off work on compensation, was looking for other work. Accepting those basic facts, his source for alarm was understandable. It follows I find Corke-Cox made two calls to Faux Finishes but he only spoke with Hauser once. On that occasion he informed him he had been employed by Crocker Builders and that at the time he was no longer so employed. I do not accept that he said the words attributed to him by Hauser. I do not accept that the conversation between Lee Crocker and Hauser was overheard by McPike. Hauser may well have told Lee Crocker the words attributed to him, but if he did, they constituted a reconstruction of the information provided to him by Cox and did not accurately reflect the information provided to Faux Finishes by Corke-Cox. I find the conversation between Hauser and Lee Crocker occurred on the morning of 31 March. Following Corke-Cox having spoken to Annette Cox, Corke-Cox only spoke with Hauser on 14 March. Notwithstanding those matters, another matter of concern in the context of this issue relates to the non-calling of Annette Cox. While Annette Cox’s evidence was introduced as relevant background material to Hauser’s call to Lee Crocker, she was not called. Indeed, it seems apparent from the statement prepared by Hauser for presentation to WorkCover and which was attached to his affidavit that Annette Cox had more significant dealings on these matters with Corke-Cox than Hauser did. Annette Cox continues to be employed by Faux Finishes as its accounts manager. No evidence was led to suggest that she was not available to give evidence at the proceeding and indeed the respondent’s conduct of the proceeding confirms that it was content to introduce evidence late in the proceeding if it was considered helpful such as the evidence of McPhee. No explanation was provided for the absence of evidence from Annette Cox. Having regard to the highly contentious issue which would have been assisted by her evidence I am compelled to infer that she was not called because her evidence would not have been helpful to the respondent’s case. [10] The chance encounter Perhaps one of the most intriguing passages of evidence in the trial concerned evidence of the chance encounter between Hauser and Lee Crocker in Brisbane traffic at about this time. Hauser said that he had seen Lee Crocker in traffic one day and called him on his mobile. In cross examination Hauser acknowledged that he had never met Lee Crocker before this occasion and that despite not knowing what he looked like he “took a punt” to call and say “good day.” [11] He said he rang a number on the side of the vehicle. He subsequently stated: “We pulled up beside each other in the traffic and said good day and I believe it was at East Brisbane Woolloongabba on Ipswich Road.” [12] It should be noted that he contended that each person’s vehicle was especially visible to the other because they each carried their respective business logos. The matter was initially raised by Hauser in evidence in chief and subject to further cross examination. Hauser had said that he had no prior dealings with Crocker Builders prior to the events of 31 March. Curiously, when Lee Crocker was cross examined about later conversations he omitted to mention this instance although, in fairness, the focus of cross examination was directed to a conversation he ultimately accepted he had with Hauser on 5 May. Generally, the recollections of conversations following the initial contact of 31 March appeared entirely unsatisfactory. Evidence of those matters was vague on the part of both Hauser and Lee Crocker. Additionally, it had an extraordinary and unrealistic air about it. It also simply did not hang together on the detail. For instance the evidence of Ms Lyons, Crocker Builders’ Administrative Assistant, was that the telephone numbers on the Crocker Builder vehicles was the office number i.e. the landline. Yet Hauser says he saw a mobile number and called it to find Lee Crocker at the other end. Given the evidence presented, it seems that two possibilities are open. However, irrespective of which I accept, each is inconsistent with the version proffered by Hauser and Lee Crocker, and by extension gainsays the evidence given by them on this issue. The first is that they did see each other at Woolloongabba. However, if that is a fact, Hauser must already have had Lee Crocker’s mobile number to be able to call him because Lee Crocker’s mobile number was not the number on the vehicle that Lee Crocker was driving. However, if that was the case, how was Hauser to know Lee Crocker was the driver? The alternative proposition is that the event simply did not occur. Adopting the most favourable scenario, that is that Hauser and Lee Crocker pulled up in traffic at Woolloongabba, one noticed the other and decided to call up, one is left to wonder why there would be a need to concoct part of the story. For instance, if the vehicles only had landline numbers on them why was there no reference, perhaps to Hauser, phoning Crocker Builders and being provided with his mobile number. It appears to me that the witnesses have either been less than candid or alternatively are just simply unreliable. In either case, it lends support to my general view that the evidence of these two witnesses was unreliable and ought not be preferred to the evidence of Corke-Cox where their evidence materially differs. I have generally preferred the evidence of Corke-Cox to their evidence as being more reliable where it differs. Summary of credit findings In this case there were aspects of Corke-Cox’s evidence with which I was uncomfortable. However, I have concluded that his recollection and evidence of the critical issues is to be preferred to the evidence led from the respondents and particularly the evidence of Dene Crocker and Lee Crocker. Lee Crocker and Hauser were particularly unimpressive. Even adopting a charitable approach to their evidence I had deep reservations concerning their candour and consider the evidence they gave to be quite selective. I have no confidence in their evidence when compared to that of Corke-Cox who I also considered to be unimpressive. However, he was less so than the principal witnesses for the respondent. Generally concerning the other witnesses for the respondent, that is the evidence of Tubb, Hill, Helfert, Lyons and Banney, the points of difference between them and Corke-Cox were mostly minor and within the bounds of what could be expected given the events in question. Nothing turned on the points of difference and I have made findings only on those matters I considered necessary. McPhee’s evidence was based on a recollection first called to account so long after the relevant events and his recall, when pressed, was so vague as to be almost of no real utility except that by reference to his records he was able to pinpoint the date an alleged conversation occurred. Contravention of s.340 FW Act The applicant claims that he had a workplace right being a claim to workers’ compensation for injuries suffered during the course of his employment on 17 March 2010. That right was one prosecuted by him by making application for workers’ compensation on 18 March 2010 pursuant to the provisions of the WCR Act. For reasons given earlier I accept that the applicant suffered an injury while working for the respondent at its worksite at Eversley Terrace, Yeronga. The injury was an aggravation injury being a soft tissue injury to his right shoulder. Following an exchange between an officer of WorkCover Queensland and the respondents, and in particular advice that the applicant was not an employee of the respondent but rather a subcontractor, WorkCover decided on 26 March 2010 to reject the applicant’s application for compensation. That decision was subject to review by Q-Comp, which in its decision of 4 May 2010 set aside the decision by WorkCover to reject the applicant’s application for compensation. Q-Comp found that the applicant was a “worker” for the purposes of the WCR Act, that being the basis upon which the initial decision to refuse compensation had been based. The application for review of that decision had been made on 13 April 2010. As at the date of termination, the applicant had a decision from WorkCover which was accompanied by a bundle of rights, particularly a right of review. He was proposing to exercise a workplace right in relation to his workers’ compensation claim by prosecuting his application for a review of the decision to refuse him compensation. He did this on 13 April 2010, the day after termination. The applicant contends that the respondent took adverse action against him “as a consequence of” his having a workplace right or alternatively proposing to exercise a workplace right. He contends that by reason of the adverse action taken as a result he thereby sustained loss and damage. The respondent contends that the applicant was not entitled to protection of the FW Act as he was not a national system employee. The respondent noted that the applicant alleged contravention of s.340 because the respondent allegedly took “adverse action as a consequence of the Applicant having or exercising the workplace right” pleaded, that is his right to claim workers’ compensation for injuries suffered during the course of or arising out of his employment with the respondent; and/or, the respondent took adverse action “as a consequence of the Applicant having exercised or proposing to exercise the workplace right to apply to QComp.” The respondent contended that the relevant test under s.340(1)(a) FW Act is whether adverse action was taken “because” of a workplace right rather than “as a consequence” of a workplace right. The requirement that action be taken “because” of a workplace right requires a causal nexus between the alleged action and the alleged attribute or right: Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 ; (1999) 91 FCR 463 at 501; Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333 ; Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14. The respondent correctly noted that the terms of s.340(1)(a) FW Act provide that a person must not take adverse action against another person “because” the other person has a workplace right. It does not say “as a consequence of” a workplace right. It appears tolerably apparent that the language employed by the drafter of the statement of claim was intended to convey the same meaning as provided for in s.340(1)(a) FW Act. It is unfortunate that the language of the Act was not adopted in the pleading but in my view nothing turns upon it in this instance. The evidence sought to be adduced by the applicant was that the respondent took adverse action against him because he made and/or sought to prosecute his entitlements to workers compensation. It is upon that basis that I have considered the applicant’s evidence. The other matter contended for by the respondent in respect of s.340(1)(a)(i) is that the WCR Act is not a workplace right within the meaning of that term as defined by s.341 of the Act. That matter has been the subject of earlier consideration by this Court. In the absence of a ruling to the contrary by the Federal Court I am satisfied that the WCR Act is a workplace law for the reasons explained in CFMEU v Leighton Contractors Pty Ltd [2012] FMCA 487 at [37] to [63]. National system employee At the outset, the respondent submits that the applicant is not a national system employee within the meaning of that term under the FW Act. It submits that the relationship between the applicant and the respondent at the relevant time was one of principal/contractor and not employer and employee. In particular, the respondent submits that the fact of a principal contractor relationship is not inconsistent with the determination by Q-Comp of 4 May 2010, notwithstanding that the applicant was found to be a worker within the meaning of the WCR Act. The characterisation of the relationship between the applicant and the respondent is important and accordingly warrants some consideration. Section 12 of the Act provides that “employees” are as “defined in the first Division of each Part (other than Part 1-1) in which the term appears.” Section 335 FW Act provides that, for that Part dealing with general protections, “employee” and “employer” have their ordinary meanings. It follows that the question of whether or not the applicant was an employee needs to be determined by reference to the tests provided for by authority. The test to be applied has most recently been considered in Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19 ; (2006) 226 CLR 161 , which approved the High Court’s earlier decision in Hollis v Vabu Pty Ltd [2001] HCA 44 ; (2001) 207 CLR 21. Both cases considered the question of independent contractors and vicarious liability, although in Sweeney the focus of the Court’s judgment was on the issue of benefit received by a principal from a contractor and the bearing that had upon the question of vicarious liability. From first principles it is accepted that a significant criteria by which to gauge whether a relationship is one of employment is the question of control. It is accepted that it is one of a number of issues which must be considered in the determination of that question. Other matters include but are not limited to “the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.” [13] The observations of the Court in Stevens v Brodribb Sawmilling Co Pty Ltd were cited with approval in Hollis v Vabu Pty Ltd , a case that has been reaffirmed in Sweeney v Boylan Nominees Pty Ltd per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ at 167 and Kirby J at 184. I have addressed some of the critical characterisation factors earlier in this decision. The facts of this case demonstrate significant elements of control. Corke-Cox only worked for the respondent; he worked largely set hours per week; he worked as directed in terms of worksites and duties; and, principal materials, namely paint, were supplied by the respondent such that he largely provided labour only. However, against that the principal agreement advanced was that their relationship was generally by contract. A review of the subcontract agreement demonstrates that it is an agreement which is more apposite to the engagement of a subcontractor for a specific project rather than on an ongoing basis. An examination of its standard terms and conditions indicates that the subcontractor agreed to “complete the Works described in the Work Order;” it provided for a date for commencement and completion of works; it provided for liquidated damages and for a right for the principal to recover other damages in the event of loss occasioned by breach of the contract; it permitted for variations and made provision for “Head Contract Determination.” In other words, the contract was one which was plainly designed for the engagement of a subcontractor on a project by project basis. That was not the case here. Here the applicant was treated very much as an employee. While it is correct that he may well have been able to vary his hours, he seems to have worked a 40 hour week at a set hourly rate. In doing so, he worked under the direction of the respondent and attended various work sites and performed duties as directed. There seems little question that he was subject to the express control and direction of the respondent in the performance of those duties. In his tax returns he noted that he was employed as a “labourer.” His source of income was not identified but the applicant says he only worked for the respondent. The expenses claimed were principally motor vehicle expenses and home office expenses. No doubt the arrangement which had been put in place between he and the respondent suited him by permitting him some small advantage in the management of his taxation affairs. In any event, as has been noted on many occasions, “parties cannot deem the relationship between themselves to be something it is not.” [14] Putting aside the question of whether or not I am bound by the decision of Q-Comp, I have in any event reached the same general conclusion, notwithstanding the structure of the arrangement and the expression of the parties. The fact remains that by reference to the objective criteria applicable in this instance, particularly when regard is had to the element of control; the mode of remuneration; the provision and maintenance of equipment and the obligation to work the hours of work, the applicant was an “employee” within its ordinary meaning and, accordingly, one for the purpose of s.335 and Part 3-1, the general protections part of the FW Act. In coming to the conclusion that the applicant is an employee for the purposes of the FW Act, it is important to note that while Q-Comp examined the issue and appears to have come to a similar conclusion, the conclusion is not identical. Q-Comp was considering the definition of “worker” as provided for under the WCR Act which includes “a person who works under a contract of service.” The question in issue before Q-Comp was slightly different to that which is relevant to this application. Each of the applicants claims against the respondent are in respect of rights provided for under Part 3 of the FW Act and accordingly, in my view, the applicant is an employee entitled to the benefit of those provisions. In that respect I generally reject the respondent’s contention that the applicant was engaged by the respondent pursuant to a contract for service and accordingly has no recourse against the respondent under those provisions. Adverse Action The applicant contended adverse action was taken on four bases: Dismissal from his employment or alternatively terminating the contract between the applicant and the respondent; Injuring the applicant in his employment or in relation to the terms and conditions of his contract by defaming or injuring his reputation to other employees; Injuring the applicant in his employment or in relation to the terms and conditions of his contract by defaming the applicant to the clients or the respondent; and Altering the position of the applicant to his prejudice. Dismissal The applicant contends that the respondent took adverse action against him by dismissing him as an employee: s.342(1) Item 1(a) FW Act. I have earlier determined that, notwithstanding the existence of the periodic subcontract agreement, the relationship between the applicant and the respondent was one of employer and employee and, accordingly, I will proceed to examine each claim solely by reference to that relationship. For reasons which I have outlined above, I do not accept the evidence of Dene Crocker where it is not in accord with that of Corke-Cox concerning the meeting of 12 April. Corke-Cox was ready willing and able to return to work. On 23 March 2010, Andrew Tubb, Crocker Builders’ supervisor, sent a text to Corke-Cox enquiring of his welfare. He says that in response to the text Corke-Cox phoned him to tell him he was right to go back to work. He says he told Corke-Cox that he would need to provide Crocker Builders office with a medical certificate certifying that he was fit to return to work before he could come back. Corke-Cox says that Tubb told him that in any event he had to see Dene Crocker first. He says that he told Tubb that he thought it was unusual and that he was concerned he might lose his job. He says Tubb responded that he was unsure but told him to “see Dene on Friday.” [15] I accept some of this concern was directed to workmanship but Corke-Cox’s then current claim for WorkCover benefits was also alive. A series of telephone calls and rearranged meetings occurred between that date and 12 April. In any event, in the meantime the applicant attended upon Dr Copeland on 26 March who issued a further certificate until 23 April. It follows that at the time of the meeting the applicant was certified unfit for work by reason of his earlier injury. Furthermore, I am satisfied that the applicant intended to return to work as soon as the recovery from his injury permitted. It is agreed that not only was the matter of the applicant’s WorkCover claim raised at the meeting but also the matter of his workmanship particularly at Mr Banney’s premises. It is submitted by the respondent that if the applicant was dismissed it was not because of his workplace injury but rather because of his unsatisfactory workmanship. The respondent submits that in the event the Court accepted the applicant’s contract was terminated, as I have, then it was on the basis of: Aggressive, uncooperative and insolent behaviour of the applicant at the meeting of 12 April 2010;and The defects and/or complaints regarding the services rendered by the applicant to the respondent. The respondent contended that in the event the applicant could establish (as I am satisfied he has done) that his engagement was terminated by the respondent, then the respondent can prove that the prescribed reasons identified by the applicant were not the reason or one of the reasons for the termination of the applicant’s employment: s.360 FW Act. Accepting that the WCR Act was a workplace law giving rise to a workplace right, and that adverse conduct was taken by Crocker Builders against Corke-Cox, the substantive question remains as to whether it was because of Corke-Cox’s claim for WorkCover benefits. Section 340(1)(a)(i) (ii) and/or (iii) when applied in the circumstances of these particular workplace rights provides that Crocker Builders must not take adverse action against Corke-Cox because he has exercised his workplace right (by making a WorkCover claim for compensation) and proposes to exercise a workplace right (by exercising his review rights from an adverse WorkCover decision). At this point, the reverse onus created by s.361(1) FW Act attracts significance. Relevantly, s.361 FW Act provides: “[361] Reason for action to be presumed unless proved otherwise (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.” As Baker J in Australian Licenced Aircraft Engineers Association (supra) observed, the reversal of the onus does not alleviate the evidentiary evidence of establishing objective facts supporting the contraventions. [16] His Honour observed with approval the remarks of Collier J in Jones v Queensland Tertiary Admission Centre Ltd (No 2) [17] at [10], noting: “[331] ... Collier J considered it was not sufficient for the applicant simply to allege that she had a workplace right and that she was the subject of adverse action. Rather, on the assumption that she was able to prove those allegations, the burden was then cast on the respondent to prove that the adverse action was not taken because of a workplace right.” Here the facts contended by the applicant have been objectively established and from there it is open to find that Crocker Builders contravened s.340 FW Act in relation to the exercise of the workplace right when it took the adverse action identified above. In my view, both the temporal connection between the workplace rights contended for and the adverse action, together with the subject matter association, unless answered, would lead to a conclusion that there had been a contravention. It follows therefore that the remaining question to be resolved is whether the adverse action was taken because of Corke-Cox’s workplace rights. By operation of s.361 FW Act, Crocker Builders bears the onus to prove otherwise, that is that the adverse action was not taken because of Corke-Cox’s workplace rights. The operation of s.360 and s.361 FW Act have recently been considered by the Full Court in Barclay v Board of Bendigo Regional Institute of Technical and Further Education (supra). At [30], the majority stated: “Section 360 continues the long-standing position that, where adverse action is taken against a protected person, culpability will be established if the reasons for that conduct include a reason for conduct that is within the ambit of s.[340]. The reason must be an operative or immediate reason and need not be the sole or dominant reason ... But the drawing of distinctions between proximate or immediate reasons for conduct ... or between the cause of conduct and the reason for conduct ... is not helpful. Those distinctions fail to give sufficient attention to whether or not the reason was operative, and they also draw distinctions between a reason and a factor in a reason. ... [32] The onus cast by s.361 on the person taking the adverse action means that, to succeed, that person has to establish that he or she was not actuated by the attributes or industrial activity which s.346 seeks to protect. As Mason J said in [General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605] at 617, that objective will not be achieved unless the evidence establishes that the real reason for the adverse action lies outside the ambit of the provision – in this case s.346. The real reason or reasons for the taking of the adverse action must be shown to be “dissociated from the circumstances” that the aggrieved person has or had the s.346 attribute or has or had engaged in or proposes to engage in the s.346 industrial activity.” Further, at [34], their Honours continued: “... a failure by the employer to establish that the real reason for the taking of the adverse action was dissociated from the circumstance that the employee was promoting a lawful activity for or on behalf of an industrial association will result in a finding of contravention, irrespective of the employer’s subjective belief that the activity was unlawful ...” In the context of a dispute under s.340 FW Act, Greenwood J, in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 563 , summarised the position as follows from [57]: “... Section 360 of the Fair Work Act provides that a person takes action for a particular reason if the reasons for the action include that reason. It is therefore sufficient, in order to establish a contravention of ss.340 or 346 to show that the dismissal of the employee occurred for reasons that include a prohibited reason under those sections. The prohibited reason need not be the substantial or dominant reason ... The prohibited reason must be an operative reason ... ... [60] As to the real reasons for taking adverse action, the Full Court of this court has held in Barclay, by majority, that the decision-maker cannot in a determinative or decisive way simply, in effect, swear the issue by asserting a belief (even a genuinely held belief) that the reasons for taking the action were particular reasons. The forensic search for the real reasons is said to involve a characterisation of the reason or reasons of the person who took the adverse action and whilst the subjective intention of the decision-maker will be “centrally relevant,” it cannot be decisive of the question. The search at trial is for the factors that actuated the conduct of the person, not a search for the factors the person thinks actuated him or her. The majority observed that, “[i]t is not open to the decision-maker to choose to ignore the objective connection between the decision he or she is making and the attribute or activity in question ...”” In this case I am satisfied that the applicant’s exercisable workplace right was an operative reason, if not the dominant reason, for the respondent’s conduct. Not only is there the temporal relationship between the difficulties that arose between the applicant and respondent, culminating in the meeting of 12 April, but I am also mindful of other background factors which clearly indicate that the respondent was unhappy with the applicant exercising a workplace right by pursuing his claim for workers’ compensation. The respondent’s unhappiness is evidenced by its initial insistence that the applicant was not covered by WorkCover because he was required to make his own arrangements pursuant to the period subcontract agreement. That unhappiness was amplified by the respondent’s response to WorkCover Queensland in its letter of 24 March 2010 essentially denying any responsibility for the applicant on the basis that he was self employed. Having assessed the character of the respondent’s witnesses, I have difficulty accepting that Dene Crocker would have been most upset at the prospect of the applicant seeking to make a WorkCover claim. Undoubtedly that would have impacted the respondent’s claim record and potentially future premiums. His annoyance would have been exacerbated because of his misguided view that he had managed to contract this responsibility away. It follows that the respondent has not discharged the onus of demonstrating that the action was taken for a reason other than the operative reason or part of the reason as I have determined. Injuring the applicant in his employment by defaming and/or injuring the reputation of the applicant to other employees The applicant’s allegations in support of this contention are that the respondent injured him by telling other employees that he was not a good worker; that he had falsely claimed workers’ compensation that he was not entitled to because he was not a worker within the meaning of the WCR Act; and telling other employees that the applicant had fraudulently claimed workers’ compensation and that he was not entitled to because he had not been injured at work. While it is probable that the statements were made, the fact remains that they were made by Crocker Builders in good faith. That is they were made by Crocker Builders incorrectly believing the facts to be that the applicant was not entitled to workers’ compensation because he was a contractor and not an employee and that the applicant was not injured at work because there had been no formal report to it of injury. In that regard, although I accept that the applicant may have made a statement to Andrew Tubb, the manner of his reporting the incident fell well short of what would be regarded as reasonably acceptable in the workplace. Where the blame lies for this failure was not considered by the parties in the context of this dispute. It could be that the respondent did have reasonable systems in place for monitoring and reporting of such events and that the applicant did not appropriately report his injury. Alternatively, there were no systems in place and the applicant simply adopted a casual approach to informing Crocker Builders of his injury. In any event, where the blame lies on this point was not explored and I do not make any finding. However, accepting the basic premise that the statements were made and even accepting that at its highest the statements were false and intentionally so, that conduct did not in my view constitute adverse action within the meaning provided for in s.342(1). The applicant contends it did because it said to “[injure] the employee in his or her employment.” However there was no evidence to support that contention. No evidence was adduced from any other employee to state that in effect by reason of those statements they treated the applicant differentially, for instance by discriminating against the applicant in the workplace by avoiding or shunning him or treating him differently to the manner in which he had been previously treated. It is plain from the definition of adverse action that there are two elements to “adverse action.” The first is injury to the employee and the second is injury in the context of the employee’s employment. Whilst the applicant might have demonstrated injury to himself in the sense that his feelings may have been hurt or offended by the statements, the applicant has failed to adduce any evidence that the injury or hurt to his feelings by the statements has impacted on his employment. This ground fails. Injuring the applicant in his employment by defaming the applicant to clients of the respondent The complaint by the applicant in this instance is that the respondent told its clients, in particular Mr Banney, that the applicant was not a good worker; that he had falsely claimed workers’ compensation when he was not entitled to it because he was not a worker within the meaning of the WCR Act; and told clients of the respondent that the applicant fraudulently claimed workers’ compensation when he was not entitled to it because he had not been injured at work. Irrespective of the truth of the allegations, this claim fails for the same reasons as the claim in the preceding section above. Altering the position of the applicant to his prejudice The applicant contends that respondent represented to WorkCover Queensland that he was not entitled to compensation; that he was not a worker within the meaning of the WCR Act; that he had been instructed on a previous occasion to rectify defective work when it was not true; that he had supplied his own tools of trade when that was not true; on 24 March 2010, that the applicant determined the hours and days on which he worked when that was not true; and, on 5 May 2010, that the applicant had injured himself at home and not at work when that was not true. It is argued that each of these representations constituted action altering the position of the applicant to his prejudice and was thereby adverse action within the meaning of s.342(1) Item 1(c). It must first be noted that the conduct pertaining to the alleged representation on 5 May cannot be relevant to this application. It postdates material events and accordingly even if it were adverse action it could not in the circumstances of this case be adverse action taken because of a workplace right, as at the time of this purported action the employee/employer relationship between the parties had ceased. Concerning the remaining particulars alleged by the applicant against the respondent, they too suffer the same difficulty identified in the two preceding sections above. That is, even if the allegations are true, save for the matter of dismissal, it cannot be said that any of those matters led to an altering of the position of the employee to the employee’s prejudice. There may have been some scope for argument in relation to those matters had for instance the applicant received a clear certificate from his medical advisor permitting his return to work and the respondent had not permitted a return to work despite that matter. However, the evidence is unequivocal. Between the date of the injury and the date of termination on 12 April, the applicant was off work on advice from his consulting medical practitioner and indeed was not required to return to work until later in April. In that event, and in the absence of any evidence to demonstrate other prejudicial behaviour, the only conduct which can be seen to be causally linked to the matters alleged was the applicant’s dismissal. In that sense this particular adds nothing to the applicant’s claim which has been dealt with in the first section above. Contravention s.345 FW Act The applicant complains that the respondent contravened s.345 FW Act. Relevantly, s.345 provides: “Misrepresentations (1) A person must not knowingly or recklessly make a false and misleading representation 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 whom the representation is made would not be expected to rely on it.” The applicant contended that the respondent knowingly and recklessly made a false representation about a workplace right of the applicant, that being his right to claim workers’ compensation for injuries suffered during the course of or arising out of his employment with the respondent pursuant to the provisions of the WCR Act. In particular, the applicant relied upon the matters alleged above being the matters alleged in paragraph 15(d) of the statement of claim. It was contended that by reason of the misrepresentation in breach of s.345 the applicant suffered loss and damage which was of the kind also contended to arise by reason of the breach of s.340(1). In essence the applicant pleads this cause of action for the same relief. In his submissions, the applicant relies upon the letter from Dene Crocker to WorkCover dated 24 March 2010 and the email from Lee Crocker to WorkCover dated 5 May 2010. He contended that the term “representation” is wider than “statement” and therefore can include a statement of opinion as well as a statement of fact: CFMEU v Hadgkiss [2007] FCAFC 197 ; (2007) 169 FCR 151. He contended the false representations were that: the applicant did not inform Nick Hill of injury; the respondent was unaware of the injury until it made inquiries of the applicant as to when he would be next coming to work; the applicant had been instructed on the previous occasions to rectify defective work; the applicant determined his own hours and days in which he worked; and the applicant supplied his own tools for trade. It was further contended that the representation that the applicant had signed a period subcontract agreement on 12 November 2009 which made him liable for defects was misleading because the document was not reflective of its true situation; the document was signed 2 years and 5 months after the applicant commenced work for the respondent; and the clause quoted had never been enforced by the respondent. It was submitted that in the absence of a request for information from WorkCover the representations made on 24 March 2010 were made intentionally and designed to and did prejudice the applicant because his WorkCover claim was subsequently rejected. It was also contended that the representations made on 5 May 2011 were unsolicited and clearly designed to discredit the applicant in an attempt to block his workplace right to workers’ compensation. The respondent contended that the relevant test is not whether the statements were true but rather whether the respondent had the requisite state of mind as well as whether the statements were false or misleading. It rejects the allegations that it knowingly or recklessly made false and misleading representations to WorkCover Queensland about the workplace rights of the applicant in contravention of s.345 because: The respondent did not provide any information to WorkCover Queensland that was either false and misleading regarding the workplace rights of the applicant; and At no time throughout the course of its correspondence with WorkCover did the respondent make a representation it knew to be false or misleading, nor has the applicant offered evidence substantiating an allegation that the respondent ought to have known that the alleged representations made were false and misleading, thereby rendering their disclosure to WorkCover reckless. In particular, the respondent contended concerning the representation relating to the applicant’s entitlement to workers’ compensation that it did not make a representation to WorkCover that the applicant was not entitled to compensation. The question of whether or not the applicant was entitled to workers compensation is a mixed question of fact and law. In its letter of 24 March 2010, Crocker Builders in response to an enquiry from WorkCover provided information to it which no doubt was considered by WorkCover in its ultimate decision of 26 March determining not to accept Corke-Cox’s application on the basis that he was not considered to be a “worker” based on s.11 of the WCR Act. I accept the respondent’s submission that at the time the representations were allegedly made by the respondent the applicant was not entitled to workers’ compensation as that was a matter to be assessed by WorkCover with reference to the WCR Act. As can be seen by reference to WorkCover’s letter of 26 March 2010, the question of whether or not the applicant had informed Nick Hill of his injury or indeed when the respondent first became aware of the injury was not seen to be material by WorkCover. What was material however was the period subcontract agreement. In its letter of 26 March the decision maker detailed the terms of that agreement before proceeding to note: “Following review of the terms and condition [sic] of your contract I am not satisfied that you are deemed a worker as I do not consider you were employed under a contract of service, but more a contract for service.” While that view may have accorded with the view of the respondent and was plainly incorrect as subsequently determined by Q-Comp, and implicitly in these reasons, the fact remains that none of the alleged false representations appear to have been material to the determination by WorkCover to refuse the claim. WorkCover refused the claim because of the terms of period subcontract agreement. In my view, the respondent is correct in its submission that whilst the alleged workplace right pleaded at paragraph 3 of the points of claim was identified as the applicant’s right to “claim workers compensation,” none of the alleged representations pleaded at paragraph 15(d) address whether the applicant had a right to claim workers’ compensation, a matter to be determined by WorkCover. I accept that the respondent had a reasonable basis upon which to believe the essential statement made to WorkCover that the applicant was a contractor and not an employee. Plainly its statement was misconceived, but the basis for that misconception is largely founded in the highly technical nature of the arrangement and a lack of appreciation of that technicality by the respondent. Given employment practices in the building industry, its views in that respect were not unreasonable. However, insofar as the respondent made its representations on 5 May, the circumstances are entirely distinguishable. As I have found, at best the respondents had no proper foundation for any statement alleged to have been sourced from the applicant that he intended to “stitch up” Crocker Builders by putting in a false claim or that he had injured himself at home and not at work. As I have earlier determined on balance, these comments were based upon speculation and inferences drawn from conversations had between the applicant and Ms Cox of Faux Finishes. In any event, I do not accept that the applicant made the statements attributed to him. Accordingly, I am satisfied that on 5 May 2010 the respondent did recklessly, if not knowingly, misrepresent the applicant’s position to WorkCover both orally in the conversation between Lee Crocker and Sheridan dos Remedios of WorkCover and subsequently by an email by stating to WorkCover: “Could you please give a call regarding this claim before proceeding any further. I remembered I had a phone call from Rob Hauser of Faux Finishes(Painting Company) regarding Richard. Richard rang Rob approx 4-5 weeks ago looking for work. Robert rang me after his call with Richard to advise me what Richard had said to him about our company and his injury claim. Basically Richard told Robert that the injury was done at home (not on our site) but he was going to go after us for the claim ...” The allegation was a serious allegation involving potentially criminal conduct. Even a layman ought appreciate the significance of fraud which in essence was what was being alleged against Corke-Cox. Had this case merely involved an instance of the respondent passing on to WorkCover information received by it, I may have had a more sympathetic view as to whether or not the respondent knowingly or recklessly misrepresented the applicant. However the circumstances surrounding not only the manner in which the respondent’s director, Lee Crocker, says he came to this information but also the curious course of events following, in particular the chance encounter, trouble me. As I have earlier observed, I was not satisfied with the candour of either Hauser or Lee Crocker and I am satisfied that the presentation of their evidence was selective in the omission of material matters. There was more to their association than they were prepared to concede. Their association was highly suspicious and on balance I am satisfied that Lee Crocker knew or ought reasonably have known that the information provided to him by Hauser was suspect. It follows that Lee Crocker’s conveyance of further transmission of this information to WorkCover was done recklessly, not caring whether the representations be true or false. The statement made on 5 May 2010 orally and later in writing was one in respect of the workplace rights of the applicant and/or the exercise of a workplace right by the applicant. Plainly, the intent of the representation was for it to be relied upon by WorkCover. It follows that I am satisfied the respondent breached s.345 FW Act. Contravention s.351 FW Act The applicant further complains that the respondent contravened s.351 FW Act. He contends that the injury he sustained is a “physical disability” within the meaning of that term as used in s.351 FW Act and that, by reason of the conduct earlier described, the respondent took adverse action against him because of that injury. Relevantly, s.351 provides: “Discrimination (1) An employer must not take adverse action against a person who is an employee ... of the employer because of the person’s ... physical or mental disability ....” A threshold question exits concerning the existence of a disability within the terms of s.351 FW Act. The term “employee with a disability” is defined within s.12 FW Act to mean: “... A national system employee who is qualified for a disability support pension is set out in section 94 and 95 of the Social Security Act 1991 , or who would be so qualified but for paragraph 94(1)(e) or 95(1)(c) of that Act.” In this case there is no evidence to establish that the applicant satisfies the definition. The disability complained of by the applicant is the effect of an injury subject to the WorkCover claim. By any measure it was a minor injury in the nature of an aggravation injury. In my view it follows that this claim fails. Contravention s.352 FW Act The applicant complains that the respondent contravened s.352 FW Act by dismissing him whilst he was temporarily absent from his employment as a result of the injury. Section 352 of the Act relevantly provides: “Temporary absence – illness or injury An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.” Relevantly, regulation 6.04(2) provides that: “A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within: (a) 24 hours after the commencement of the absence; or (b) such longer period as is reasonable under the circumstances.” I have earlier addressed the question of dismissal. I am satisfied that the applicant was dismissed. Furthermore, I am satisfied that at the time of his dismissal he was subject to a certificate not requiring his return to work until 26 April. However, while I am satisfied that the applicant had an illness or injury and I am satisfied that he had attended various medical practitioners and obtained certificates which would have addressed the statutory requirement provided for by the Regulations, the fact remains that he did not satisfy the regulation in terms of providing the medical certificate for the injury to the employer either within 24 hours after the commencement or at any other time. Indeed, in submissions made on his behalf, the applicant’s case, at its highest, is that he verbally advised Andrew Tubb on 19 March of his incapacity for work and verbally advised Dene Crocker on 19 March of his incapacity for work. Verbal advice does not constitute the provision of a medical certificate as required by regulation 6.04(2). Plainly, the applicant had medical certificates issued in his favour. However to claim the benefit of s.352 including the prospect of successful contravention proceedings I consider it is necessary to strictly prove the matter of contravention. In this case the applicant has failed to prove that the medical certificates were provided as required by regulation 6.04(2) and accordingly this ground fails. Contravention s.232B WCR Act The applicant contends that at the time of dismissal from his employment he had a right to a guarantee of employment pursuant to s.232B WCR Act for the period 17 March 2010 up to and including 17 April 2010. Section 232B of the WCR Act relevantly provides: “Dismissal of injured worker only after 12 months (1) Within 12 months after a worker sustains an injury, the employer must not dismiss the worker solely or mainly because the worker is not fit for employment in a position because of the injury. Maximum penalty – 40 penalty units. (2) This section applies to a dismissal after the commencement of this section even if the worker became unfit before the commencement.” The applicant contends that the provision stands alone and is subject to a penalty of breach. He contends that the Court has jurisdiction to impose the penalty contemplated by the provision pursuant to the cross vesting powers contained in the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). The respondent contends that the allegation that the applicant had a right to a guarantee of employment pursuant to s.232B of the WCR Act for the period 17 March 2010 up to and including 17 April 2010 is misconceived. Respectfully, I agree. While s.232B gives rise to the entitlement of a penalty for contravention, it of itself does not enliven any guarantee of employment. Further and more substantially, the applicant does not have standing to bring a claim under s.232B of the WCR Act. Section 579 of the WCR Act provides that such an action can only be taken by complaint of: The Chief Executive Officer of the Authority; or A person authorised for the purpose by the Chief Executive Officer of the Authority; or The Attorney-General. This complaint is prosecuted by none of the above parties and accordingly is dismissed. Compensation The applicant claims for compensation totalling $32,894.00 made up as follows: General Damages $15,000.00 Interest $450.00 Past economic loss $5,717.00 Interest on past economic loss $286.00 Past loss superannuation $515.00 Interest thereon $26.00 Future economic loss $10,000.00 Future loss superannuation $900.00 The applicant also seeks pecuniary penalty in the order of $10,000.00. Each of s.340(1), s.351(1), s.352, and s.353(1) are civil remedy provisions as provided for in s.539(1) FW Act. Section 545(1) provides that the Court make any order it considers appropriate if it is satisfied that the person has contravened a civil remedy provision. Specifically, s.545(2) provides that the Court may make an order including an order awarding compensation for loss the person has suffered because of the contravention. General Damages The applicant claims $15,000.00 general damages for the dismissal. In oral submissions it was contended that despite the paucity of evidence on the matter this sum should be allowed on the basis of “hurt and humiliation.” The terms of s.545(2)(b) are broad. They provide that the Court may make an order “awarding compensation for loss that a person has suffered because of the contravention.” The broad terms of s.545(2)(b) are to be distinguished from the remedies for unfair dismissal provided in Division 4 of Part 3-2 which provides that Fair Work Australia (FWA) may order compensation (s.390(3) FW Act) but which must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt. Where civil remedies only are sought, the applicant is first required to make application before FWA and obtain a certificate before proceeding to Court. Accordingly, it appears counter intuitive that the basis of relief to be afforded by way of compensation by the Court would be materially difficult for that to be got from FWA. Where a contravention is alleged the matter must proceed to court. However, the pecuniary penalty order is separate and distinct from the compensation order: see s.545 and s.546. It follows that I consider that general damages can only be awarded in respect of those matters which are not excluded under s.390 and which would not be awarded under s.546. In this case, hurt and humiliation are excluded under s.390(4) and do not form a basis for an award of general damages. In the event I am in error in my analysis, I will assess such damages. In my view, the circumstances surrounding the applicant’s termination were egregious. As I have earlier observed, the conduct of the principal members of Crocker Builders has left me with a considerable degree of unease. There is clearly more to this case than the parties were prepared to place before the Court. Corke-Cox presented as a prickly character. Perhaps it is the nature of the painting trade but it is fair to say that his demeanour and attitude were not generally endearing. In any event, I am satisfied that he did not deserve the treatment which was meted out to him by the respondent. My impression is that the injury was the straw that broke the camel’s back in terms of the relationship between the parties, and once the relationship had deteriorated to that point a parting of the ways was inevitable. On the other hand, Crocker Builders was an organisation not to be trifled with and in my view they plainly had a cavalier attitude towards the applicant as an employee. With that in mind he was summarily dismissed. Although plainly not unexpected by the applicant, the respondent’s conduct towards him was entirely disrespectful and its later efforts to justify its conduct amplified that disrespect. In the circumstances I consider an assessment of $5,000.00 as appropriate for hurt and humiliation which may have been occasioned by the manner of dismissal. Past economic loss The average earnings of the applicant prior to dismissal were $1,252.00 gross per week. [18] That is approximately $60,000.00 per annum. He gave evidence that in the 2011 financial year he earned $46,000.00 or approximately $333.00 per week less than when he was employed by the respondent. On the applicant’s contentions the difference over the 72 weeks between dismissal and the time of hearing had a value of $28,584.00, which it contended ought be discounted by 80% to reflect the impact of the injury and any other matters other than the adverse action, thereby entitling the applicant to damages of $5,717.00. The principles of assessment of an employee’s damages for unlawful dismissal are common to those that apply in common law. In Bostik (Australia) Pty Ltd v Gorgevski (No 1) [1992] FCA 209 ; (1992) 36 FCR 20 at 32, Sheppard and Heerey JJ, with whom Ryan J agreed, stated: “...The contract in question is a contract of employment which is terminable by either party on giving to the other the applicable period of notice provided for in the award. Where an employee is wrongfully dismissed, he is entitled, subject to mitigation, to damages equivalent to the wages he would have earned under the contract from the date of the dismissal to the end of the contract. The date when the contract would have come to an end, however, must be ascertained on the assumption that the employer would have exercised any power he may have had to bring the contract to an end in the way most beneficial to himself; that is to say, that he would have determined the contract at the earliest date at which he could properly do so.” In this instance, the term of the arrangement between the applicant and respondent, irrespective of how they may have characterised it, was governed by the terms of the period subcontract agreement. The agreement was dated 11 November 2009 and provided for a period of 12 months from that date. The applicant’s employment was wrongfully terminated on 12 April. However, this agreement was, for the purposes of the arrangement between the parties, largely illusory. The schedule in the agreement provided it covered “works yet to be agreed” for 12 months from the date of the agreement. Work was to be undertaken by “Work Order signed by the Builder for each project” which would “be issued from time to time during the term of this contract.” The periodic subcontract agreement was merely ‘an agreement to agree.’ It offered no security of employment and permitted the respondent to bring it to an end by simply no longer issuing work orders. Of course, in practice, no formal work orders ever were produced. The terms of the agreement were waived in that respect. The applicant had no formal right to ongoing employment. In reality the contract was one terminable at will. However, as a common law employee the applicant was entitled to notice. He had been in employment since 1 June 2007. Accordingly, he was entitled to two weeks: s.117(3) FW Act. Further, he could not have been terminated whilst still off work on a medical certificate. He was not certified fit to return to work until 23 April, that is two weeks after his dismissal. He could not have been given notice until then. Finally, because he was over 45 he was entitled to an extra week’s work: s.117(4) FW Act. It follows that I assess his entitlement to part loss at $7,000.00 made up as: Notice for termination [19] (2 weeks) $2,800.00 Age loading (1 week) $1,400.00 Allowance for earliest date for work (2 weeks) $2,800.00 $7,000.00 The applicant also claims for a future economic loss. The basis of his claim is that it ought be expected that he would suffer continued insecurity in his employment given his injury and age. The approach of the applicant in its submissions on this point is consistent with an approach taken in an award for compensation in a negligence action. As I have earlier noted, this action is founded in contract. Given the nature of the arrangement between the parties there is no basis for any award of future economic loss. Superannuation The applicant is entitled to an allowance for superannuation on the assessed loss of gross income. I assess that figure at $630.00 made up as 9% x $7,000.00 to be paid into his nominated authorised superannuation fund. Interest The applicant is also entitled to interest in respect of past loss of wages and past loss of superannuation contribution. I assess those sums as $516.00 and $111.00 respectfully. [20] Penalty In addition to compensation, it is also appropriate that a penalty be imposed for the contraventions. The general considerations to be applied in considering the position of a pecuniary penalty are summarised in Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7. That authority has been cited with approval in the Federal Court in Kelly v Fitzpatrick [2007] FCA 1080 and in the Full Court in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8. They identify a number of factors that ought be taken into account in deciding whether particular conduct calls for a penalty and the quantum of such a penalty. While those cases identify a convenient checklist of matters, they do not prescribe or restrict the matters which may be taken into account in the exercise of the Court’s discretion. Generally, it should be noted, as was observed by Burchett J in Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375, that: “It cannot be denied that the fixing of the quantum of a penalty is not an exact science. It is not done by the application of a formula and, within a certain range, Courts have always recognised that one precise figure cannot be incontestably said to be preferable to another.” Generally, I have taken into account the circumstances surrounding the contravention and the nature and extent of damage suffered by Corke-Cox. I also take note of the fact that there are no previous complaints against Crocker Builders and that his business is a relatively small operation, although that matter of itself is not decisive. I also take into consideration the deliberateness of the breach, noting that the breach has arisen by reason of Crocker’s indelicate approach to a matter which was probably inevitable. That is to say that by reason of the deteriorating relationship between the parties arising from his WorkCover claim, his prickly personality and his attitude to Crocker’s customers, their relationship was coming to an end. I also take into account that in this instance no contrition has been expressed on the part of Crocker Builders. It has contested the application and in doing so has overreached in some matters raised in its response. Overall, having regard to all of the circumstances both individually and cumulatively I come to the view that an appropriate penalty for the breach of general protection contravention is $5,000.00. Orders Given my findings I order as follows. The respondent pay the applicant the sum of $7,000.00 by way of compensation for lost wages and $516.00 in respect of interest thereon. The respondent pay to an authorised superannuation fund nominated by the applicant a sum of $630.00 by way of compensation for lost superannuation benefits and $111.00 on account of interest thereon. The respondent pay a pecuniary penalty assessed at $5,000.00 in respect of its contravention of s.340 and that such sum be paid to the applicant. I certify that the preceding 185185one hundred185185eighty-fiveeighty-twoone hundred and eighty-five (185) paragraphs are a true copy of the reasons for judgment of Burnett FM Date: 31 August 2012 [1] Gordon Crocker was the founding director of Crocker Builders. By the time of these events he had retired from the business but maintained an interest by helping out his sons Dene and Lee who had assumed control of the business. [2] Affidavit of Richard Perry Corke-Cox filed 29 November 2010 Annexure RPC4 – Application for Compensation. [3] T pg 75 ln 3 – 10. [4] T pg 140 ln 33. [5] T pg 180 ln 30 – 37. [6] T pg 181 ln 1 – 9. [7] T pg 147 ln 21, 39. [8] T pg 148 ln 1 – 3. [9] T pg 41 ln 34. [10] Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298. [11] T pg 149 ln 40. [12] T pg 150 ln 19. [13] Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1 ; (1986) 160 CLR 16 at 24 per Mason J. [14] Hollis v Vabu Pty Ltd supra at [45] – [58]. [15] Affidavit of Richard Perry Corke-Cox filed 29 November 2010. [16] At [329]. [17] [2010] FCA 399. [18] $60,112.00 ÷ 48 weeks = $1,252.00 (allow 3 weeks for builders’ Christmas stand-down and annual public holidays). [19] 40 hr week x $35 x 2 weeks = $2,800.00 – no allowance for taxation because the respondent had made no group tax deductions. The applicant retains a duty to declare his taxable income. [20] Calculations: $7,000.00 x 7.5% x 859 days/365 = $516.00 $630.00 x 7.5% x 859 days/365 = $111.20