The Federal Court has rejected a worker's claim that a senior HR advisor threatened him against challenging the findings of an investigation into his complaint against a supervisor.
The casual administration assistant, employed by Thiess at QGC Limited's Queensland Curtis Liquid Natural Gas project in the Surat Basin, alleged the advisor coerced him, breaching s343 of the Fair Work Act, by threatening to mount a "counter-claim" against him if he persisted in pushing Thiess to accept his version of the events that led to the complaint.
However, Justice Richard Tracey accepted the advisor's denial that he had made the threat.
The casual had complained that the supervisor used a sarcastic tone and smirked when asking about his dying father's health.
Justice Tracey noted that the advisor told the court that he was "comfortable, following his interviews with others who had been present in the office when the exchange between [the casual] and [the supervisor] took place, that [the supervisor] had made a genuine and compassionate inquiry relating to the health of [the casual's] father".
"[The HR advisor] appeared relaxed about any possibility that his findings might have been challenged," he said.
"Under cross-examination, when asked whether he had been motivated to block [the casual] coming back to work because [the casual] had written an offensive email about [the advisor's] investigation, [the advisor] stated, 'it's quite normal for people to not agree with – with findings that HR practitioners make. I don't get too upset or offended by that'.
"There was no reason for [the advisor] to try to coerce [the casual] not to continue with an appeal against his investigation findings", Justice Tracey found.
He said the HR advisor indicated to the casual that while some team members felt he should have been subject to disciplinary action for making false allegations against the supervisor, Thiess would not pursue that option.
Court rejects adverse action claim
Justice Tracey also rejected the casual administration assistant's s340(1) adverse action claim against Thiess.
He claimed that after his complaint about the supervisor's comments, Thiess withdrew an offer to shift him to a full-time quality control coordinator role that he had already been performing on a casual basis for six months.
The employee then immediately took leave and returned to his home in Melbourne, where he demanded a permanent role with fly-in, fly-out travel to the Dalby worksite paid for by the company.
Until then the administration assistant had resided temporarily in Dalby as Thiess policy did not provide fly-in fly-out (FIFO) conditions for casual employees.
The employee's brother, a welding superintendent who had already tendered his resignation from Thiess, described his own relationship with the supervisor as "not amicable" with "ongoing friction" characterising him as a "fucking backstabbing, conniving, vindictive cunt".
Thiess's investigation into the supervisor's behaviour found the claim was not substantiated by four other employees present in the room at the time of the incident.
The company said the employee's complaint was either "false, baseless, unreasonable or contrived such that it did not constitute a complaint to which section 340 applied", but Justice Richard Tracey did not accept those contentions, saying the administration assistant's accusation might have been wrong, but that did not render it baseless or worse.
However, Justice Tracey found that the employee had placed unacceptable conditions on his return to work, by demanding a permanent FIFO role, and that Thiess had made casual work available to him until the project wound down, without foreshadowing a decision to terminate his employment.
He found that it could only have unlawfully failed to appoint him to the coordinator role "if that position existed and had been offered to him".
"He had no right to such a position.
He said the casual's supervisors sought approval to create the position, but even "had such approval been forthcoming there was no guarantee" he would have been the successful candidate due to the company's requirement to advertise such positions and conduct a competitive evaluation of candidates.
"The position did not exist.
"It was not offered to him", Justice Tracey concluded.
The judge also rejected allegations that Thiess had falsely promised the role of quality control coordinator in contravention of sections 18 and 31 of the Competition and Consumer Act, because Thiess had not undertaken the approvals process to create the role.