Anderson v BNP Paribas Securities Services
[2015] FCCA 2231
•13 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANDERSON v BNP PARIBAS SECURITIES SERVICES | [2015] FCCA 2231 |
| Catchwords: INDUSTRIAL LAW – Dismissal from employment – whether the dismissal was for a prohibited reason considered. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 346, 351, 360, 361 |
| Begley v Austin Health [2013] FMCA 68 BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCAFC 132 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 220 IR 445 CFMEU v Bengalla Mining Company Pty Ltd [2013] FCA 267 General Motors Holden Pty Ltd v Bowling (1976) 51 ALJR 235; (1976) 12 ALR 605 Hodkinson v Commonwealth (2011) 207 IR 129 Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399 Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited [2010] FCA 770 Vink v LED Technologies Pty Ltd [2013] FCA 443 Wolfe v Australia & New Zealand Banking Group Limited [2013] FMCA 65 |
| Applicant: | RYAN ANDERSON |
| Respondent: | BNP PARIBAS SECURITIES SERVICES |
| File Number: | SYG 1713 of 2014 |
| Judgment of: | Judge Driver |
| Hearing dates: | 17-19 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 13 October 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr T Saunders |
| Solicitors for the Respondent: | Shanahan Tudhope Lawyers |
ORDERS
The Court declares that the respondent contravened s.340 of the Fair Work Act 2009 (Cth) by taking adverse action against the applicant within the meaning of s.342 of the Fair Work Act because the applicant had exercised a workplace right to make a complaint in relation to his employment within the meaning of s.341 of the Fair Work Act.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1713 of 2014
| RYAN ANDERSON |
Applicant
And
| BNP PARIBAS SECURITIES SERVICES |
Respondent
REASONS FOR JUDGMENT
Introduction and background
On 6 January 2014, the applicant (Mr Anderson) was employed by the respondent (BNP) in the position of Client Government Analyst. It was an express term of his contract of employment that he would be employed subject to a three month probationary period, during which period either party could terminate the contract on one week’s notice or by a payment in lieu of notice[1].
[1] Affidavit of Gary Munro made on 17 February 2015 at Exhibit GM-1, tab 1, page 1
On 26 March 2014, about 10 days prior to the end of the three month probationary period, BNP purported to exercise its contractual right to terminate Mr Anderson’s employment on the basis of his performance during the probationary period. He was paid one week’s wages in lieu of notice, in accordance with the terms of his contract.
Mr Anderson had been confronted by his supervisor on 19 March 2014 about his absence from his desk. Mr Anderson contacted BNP Human Resources (HR) staff to express concern about that confrontation. The following day Mr Anderson participated in a probation appraisal interview with his supervisor. The supervisor criticised Mr Anderson’s performance but offered him an extension of his probation. On 25 March 2014 Mr Anderson met with his supervisor and the HR staff to discuss his future with BNP. At that meeting Mr Anderson was critical of his supervisor and what he described as the “workplace culture”. The supervisor withdrew the offer of an extension of probation at that meeting, and later recommended Mr Anderson’s dismissal. Mr Anderson was dismissed the following day.
Mr Anderson filed an application dated 24 June 2014 in this Court on 24 June 2014, together with a Form 2 (Claim under the Fair Work Act2009 (Cth)) (Fair Work Act) alleging dismissal in contravention of a general protection (Claim)). In the Claim Mr Anderson asserts BNP has contravened s.340 (protection against adverse action) of the Fair Work Act by dismissing him because he made a complaint in relation to his employment[2].
[2] See Part G [1] of the Claim
Relevant documents
In addition to his application and Form 2 claim, Mr Anderson relies upon his affidavit made on 12 December 2014. He was cross-examined on that affidavit at some length.
BNP relies upon its response filed on 10 July 2014 and the following affidavits:
a)the affidavit of Stuart Alisdair Roy MacRae made on 5 August 2015;
b)the affidavit of Gary Bruce Munro made on 17 February 2015;
c)the affidavit of Pascale Annabelle Larue made on 16 February 2015;
d)the affidavit of Sarah Louise Perfetto made on 17 February 2015; and
e)the affidavit of Cathy Ann Doyle made on 17 February 2015.
The deponents were all cross-examined on their affidavits. I received all of the affidavits and the documents exhibited to them. I also received the following document tendered as an exhibit:
·A1 – Email correspondence
The parties made both oral and written submissions.
Consideration
I have been assisted by the submissions prepared by counsel for BNP in framing the issues in dispute and the applicable legal principles.
Issues in dispute
On the question of liability, there are two issues in dispute:
a)first, whether Mr Anderson made a complaint in relation to his employment within the meaning of s.341(c)(ii) of the Fair Work Act; and
b)secondly, if Mr Anderson did make such a complaint, whether BNP dismissed Mr Anderson because, or for reasons that include the reason that, Mr Anderson made a complaint in relation to his employment.
Applicable legal principles
For the purposes of Part 3-1 of Chapter 3 of the Fair Work Act, action is taken for a particular reason if the reasons for the action include that reason[3]. Thus, the prohibited reason need not be the only reason. It is sufficient that it is one of the reasons, provided, however, that it is “a substantial and operative factor” or an “operative or immediate” reason for acting[4].
[3] Fair Work Act, s.360
[4] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 220 IR 445 at [62], [104] and [140]; CFMEU v Bengalla Mining Company Pty Ltd [2013] FCA 267 at [11]
The evidentiary presumption in s.361 of the Fair Work Act recognises that the reason why adverse action is taken is “a matter peculiarly within the knowledge of the employer”[5].
[5] General Motors Holden Pty Ltd v Bowling (1976) 51 ALJR 235; (1976) 12 ALR 605 at 617 per Mason J, with whom Stephens and Jacobs JJ agreed
Logan J said as follows in relation to the operation of the reverse onus of proof in s.361 of the Fair Work Act in Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited[6]:
Subject to the operation of s 360 and s 361 of the Fair Work Act, the [applicant] carries the burden of proving the alleged contraventions. While the proceedings are civil in character, they are nonetheless penal. Thus, though the [applicant] must prove the contraventions on the balance of probabilities, s 140(2) of the Evidence Act 1995 (Cth) (Evidence Act) requires that; due regard be given to the nature of the cause of action or defence; the nature of the subject matter of the proceeding; and the gravity of the matters alleged. That sub-section of the Evidence Act is a restatement of a well known passage in the judgment of Dixon J (as his Honour then was) in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 in relation to considerations which intrude in deciding whether the standard of proof in civil proceedings has been met, “the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
[6] [2010] FCA 770 at [13]
Justice Collier explained the operation of s.361 of the Fair Work Act in the following way in Jones v Queensland Tertiary Admissions Centre Ltd (No.2)[7]:
That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason, was explained by Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531; (1999) 140 IR 131 at [161]- [162] and Moore J in Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; [2008] 177 IR 306 at 321-322 [49]- [50]. To paraphrase observations of Moore J in Rojas [2008] FCA 1585; [2008] 177 IR 306 at 322, it is not sufficient for Ms Jones to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that Ms Jones is able to prove these allegations, the burden is then cast on to QTAC to prove that adverse action was not taken against Ms Jones because of her workplace right for the purposes of s 340 and s 361 of the Act.
[7] [2010] FCA 399 at [10]
This issue was also dealt with by the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay[8] by Gummow and Hayne JJ as follows at [127]:
In determining an application under s 346 [it is necessary to] assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence [is] to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it [is] the reasons of the decision-maker at the time the adverse action was taken which [is] the focus of the inquiry.
[8] (2012) 220 IR 445
Plainly, if the decision-maker shows by credible evidence that the prohibited reason had nothing to do with his or her decision and that evidence is accepted, then the employer will have discharged its onus[9].
[9] CFMEU v Bengalla Mining Company Pty Ltd [2013] FCA 267 at [53]; Vink v LED Technologies Pty Ltd [2013] FCA 443 at [35]; Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 220 IR 445 at [45], [56], [65], [131]-[132]
In BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union[10], the Full Federal Court recently discussed ss.360 and 361 of the Fair Work Act. Flick J (with whom Dowsett J agreed) stated at [95]:
Contrary to the approach of Isaacs J in Pearce, a factor that may “enter ... into the reason[ing]” process of an employer does not constitute a “reason” for the purposes of s 360 if that factor does not amount to “a substantial and operative reason” for the taking of adverse action. The fact-finding task imposed by s 346 is to filter out those factors that may have passed through the mind of an employer and to determine what was the “substantial and operative” reason or reasons for taking adverse action. If any one of those “substantial and operative” reasons was a proscribed reason, s 360 operates to confirm that the taking of action for that reason is prohibited.
[10] [2013] FCAFC 132
The BHP Coal case went on appeal to the High Court of Australia, where it was explained by French CJ and Kiefel J in their joint judgment that, in relation to s.346 Fair Work Act (a provision operating in the same way as s.351 Fair Work Act) the section “…directs attention to the reason why a person…..took adverse action”[11]. As their Honours further put it[12]:
The focus of the enquiry as to whether s.346(b) has been contravened is upon the reasons for (the decision-maker) taking the adverse action. This is evident from the word “because” in s.346 and from the terms of s.361. The enquiry involves a search for the reasoning actually employed by (the decision-maker). The determination to be made by the court is one of fact, taking account of all the facts and circumstances of the case and available inferences.
(all footnote references omitted)
[11] see [2014] HCA 41 [6]
[12] at [7]
The only other member of the majority of the Court in BHP Coal was Gageler J. His Honour agreed that the search for the existence of a particular reason as being the operative and immediate reason for the taking of the adverse action “…turns on an inquiry into the mental process of that individual”[13].
[13] [2014] HCA 41 [85]
It is also to be borne in mind that the issue in an adverse action claim is not whether the employee was unfairly dismissed or otherwise unreasonably or poorly treated. The task is to determine whether or not any of the substantial and operative reasons for the termination of Mr Anderson’s employment were the complaint he asserts he made to BNP in relation to his employment[14].
[14] Vink v LED Technologies Pty Ltd [2013] FCA 443 at [41]; Wolfe v Australia & New Zealand Banking Group Limited [2013] FMCA 65 at [99]; Begley v Austin Health [2013] FMCA 68 at [393]-[394]
Mr Anderson’s submissions based upon the evidence
Mr Anderson notes that the only witness who commented adversely on his performance was his supervisor Mr MacRae, who was the person he complained about. He takes issue with the evidence of Mr MacRae in cross-examination and notes that he was an unwilling witness. He initially declined to make an affidavit and was subpoenaed to appear. Subsequently, he did agree to make an affidavit. He no longer works for BNP. Mr Anderson notes that the evidence of Mr MacRae and Mr Munro about conversations concerning him are not consistent. Mr Anderson also notes that Mr Munro appeared to “bring forward” his termination following matters raised by Mr Anderson.
Mr Anderson contends that he made a complaint on 19 March 2014 about Mr MacRae and sought a meeting. The relevant officers of HR were not available until 25 March 2014 and HR officer Ms Larue insisted that his performance be discussed before he pursued his complaint about Mr MacRae and the culture in the working group. Nevertheless, Mr Anderson contends that there is adequate evidence that he did make a complaint about Mr MacRae and what he felt was harassment by him.
Mr Anderson notes that after the meeting held on 25 March 2014 Ms Perfetto sent him an email which foreshadowed a follow up meeting. Some eight minutes later Ms Perfetto sent a second email asking him what he proposed to do about his complaint. He responded that he would consider whether he wanted to take it further as his principal focus at the time was on the issue of his probation. Mr Anderson disputes that he, at any time, said that he did not want to make any complaint. He points out he had already made a complaint. He notes that his complaint was made on 19 March 2014 and that his scheduled probation meeting took place on the following day. The only feedback on his performance was at the meeting on 20 March 2014. Mr Anderson notes that Mr MacRae said that his performance only became an issue at that time.
Mr Anderson notes that Mr MacRae had offered him an extension of his probation period but that this was withdrawn at the meeting on 25 March 2014. He contends that subpoenaed documents reveal that Mr MacRae and Mr Munro were planning to terminate his employment on 24 March 2014.
Mr Anderson was due to pass probation on 6 April 2014. Mr Anderson points out that the probationary evaluation form records Mr MacRae as stating that 19 March was the first time he had felt the need to provide negative feedback to Mr Anderson. He noted that Mr Anderson had chosen to take “a defensive and hostile approach” to his feedback. Relevantly, he said that the problem only became a problem at that point in time which is why he raised it. He said that Mr Anderson’s reaction to his feedback gave him no confidence to continue the employment relationship.
Mr Anderson draws attention to some concerns expressed by Ms Larue that Mr Anderson be given the opportunity to pursue his complaint before a termination decision was made. He contends that Mr MacRae had a personal obsession about people being away from their desks and had expressed a similar negative opinion about a former employee. He contends that his absences from his desk were consistent with advice from Ms Doyle that it was best to deal face to face with other people. Mr Anderson contends that his confrontation with Mr MacRae on 19 March 2014 constituted harassment by Mr MacRae and he appropriately complained about it. He received an apology from HR.
Mr Anderson contends that the timing of the decision establishes that his complaint about Mr MacRae and the work culture in the group led by Mr MacRae prompted Mr MacRae and Mr Munro to press for his immediate dismissal, which was accepted by Ms Perfetto and Ms Doyle. He does not dispute that there were other reasons for his dismissal but maintains that his complaint was one of the reasons.
BNP’s submissions
BNP submits that the Court should accept the evidence of BNP’s decision makers, Mr Munro, Ms Doyle, and Mr MacRae, as to their reasons for deciding to terminate Mr Anderson’s employment. In that event, BNP will have discharged its onus[15].
[15] CFMEU v Bengalla Mining Company Pty Ltd [2013] FCA 267 at [53]; Vink v LED Technologies Pty Ltd [2013] FCA 443 at [35]; Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 220 IR 445 at [45], [56], [65], [131]-[132]
The decision making process in relation to the termination of Mr Anderson’s employment was as follows:
a)Mr MacRae, to whom Mr Anderson reported, recommended the termination of Mr Anderson’s employment;
b)Ms Perfetto, Human Resources Manager, agreed with Mr MacRae’s recommendation to terminate Mr Anderson’s employment;
c)Mr Munro, Head of Client Management and the person to whom Mr MacRae reported, decided to terminate Mr Anderson’s employment on the basis of the recommendations made by Mr MacRae and Ms Perfetto, subject to approval from Ms Doyle; and
d)Ms Doyle, Head of Human Resources for Australia and New Zealand, approved the decision to terminate Mr Anderson’s employment.
Each of Mr MacRae[16], Ms Perfetto[17], Mr Munro[18] and Ms Doyle[19] has given evidence:
a)denying Mr Anderson’s assertion that his employment was terminated because, or for reasons including the reason, he made a complaint in relation to his employment; and
b)giving positive evidence as to the real reasons for the termination of Mr Anderson’s employment, which were that Mr Anderson was not performing to the level required and he was unlikely to be able to improve his performance even if his probation period was extended.
[16] Affidavit of Mr MacRae made on 5 August 2015 at [20]
[17] Affidavit of Ms Perfetto made on 17 February 2015 at [27]-[28]
[18] Affidavit of Mr Munro made on 17 February 2015 at [16]-[17]
[19] Affidavit of Ms Doyle made on 17 February 2015 at [14]-[17]
BNP submits that the evidence given by the decision makers in their affidavits as to their reasons for terminating Mr Anderson’s employment is supported by contemporaneous file notes and emails[20] made and sent by them in the period leading up to the termination of Mr Anderson’s employment.
[20] All of which are annexed to their affidavits
Was a complaint made by Mr Anderson?
BNP notes that Mr Anderson was asked on three separate occasions whether he wanted to make a complaint about his manager, Mr MacRae.[21] On each occasion, Mr Anderson informed HR that he did not wish to make a complaint.[22] Had he made a complaint, BNP would have investigated it in accordance with the grievance dispute procedure in its HR policy.[23]
[21] Affidavit of Ms Larue made on 16 February 2015 at exhibit AL-1, tab 11, page 15; Affidavit of Ms Perfetto made on 17 February 2015 at [7] and exhibit SP-1, tab 4, page 13; Affidavit of Mr Anderson made on 12 December 2014 at attachment 6
[22] Affidavit of Ms Larue made on 16 February 2015 at exhibit AL-1, tab 11, page 15; Affidavit of Ms Perfetto made on 17 February 2015 at [7] and exhibit SP-1, tab 4, page 13; Affidavit of Mr Anderson made on 12 December 2014 at attachment 6
[23] Affidavit of Ms Perfetto made on 17 February 2015 at [14]-[15]
BNP submits that the discussions Mr Anderson had with members of BNP’s HR team in the period from 19 to 26 March 2014 did not constitute a complaint by him. They were discussions he had about the process being undertaken to review his performance at the conclusion of his three month probationary period[24].
[24] Hodkinson v Commonwealth (2011) 207 IR 129 at [133]
In any event, BNP submits that for the reasons set out above, BNP’s decision to terminate Mr Anderson’s employment at the end of his three month probationary period was not related in any way to any issue or complaint he may have raised or made in relation to Mr MacRae or his employment.
Resolution
Did Mr Anderson make a complaint?
I have no doubt that Mr Anderson did make a complaint for the purposes of s.341(c)(ii) of the Fair Work Act. He had a confrontation with Mr MacRae on 19 March 2014 and complained about it to HR. He also expressed concern about what he described as the “work culture” in the group led by Mr MacRae. It is true that Mr Anderson was asked on several occasions on subsequent days whether he wished to make a formal complaint. That could also be a reference to him being asked whether he wished to take his complaint further. Mr Anderson did not formally pursue his complaint but neither did he abandon it. I do not agree with the submissions by BNP that the discussions with Mr Anderson and the HR team between 19 and 26 March 2014 was just about his performance review. There was a complaint and Ms Larue was concerned that that needed to be resolved in some way before Mr Anderson’s employment was terminated. Mr Anderson received an apology from HR for the behaviour of Mr MacRae on 19 March. His concerns about the broader issue of the work culture in the group led by Mr MacRae were never addressed.
Was the complaint made by Mr Anderson a reason for his dismissal?
The answer to this question is complicated by the fact that four different people were involved in the termination of Mr Anderson’s employment. Mr Anderson’s supervisor, Mr MacRae, recommended the termination. The available evidence satisfies me that he was annoyed by Mr Anderson’s response to his feedback about Mr Anderson’s performance and that annoyance was increased by what Mr Anderson said at the meeting on 25 March. My assessment of Mr MacRae is that he is rather an impulsive man who is quick to anger. On 19 March he had offered Mr Anderson an extension on his probation but he withdrew that offer impulsively at the meeting on 25 March. He was, in my opinion, plainly annoyed that Mr Anderson had raised issues concerning him and the team he led. In my view, that annoyance was a factor in his recommendation of termination.
The contention that Mr MacRae’s recommendation was simply and only on the issue of performance, lacks credibility. Although Mr MacRae gave evidence that he had raised the issue of Mr Anderson’s performance with Mr Munro early in 2014, he did not raise any issue with Mr Anderson before 19 March 2014. That was done in a fit of pique and the issue was not addressed at a proper performance review until the following day. Mr MacRae gave evidence that he was not aware on 20 March that Mr Anderson had made a complaint about him. On that day he offered to extend Mr Anderson’s probation. There can be no doubt that by 25 March Mr MacRae was aware of Mr Anderson’s concerns about him and that awareness led him to peremptorily withdraw the offer of the extension of probation and to press for Mr Anderson’s dismissal.
Ms Perfetto agreed with Mr MacRae’s recommendation. She had no personal interest in the matter and sought to ensure that a proper process was followed. She was concerned that any formal complaint made by Mr Anderson would need to be investigated. She chose, however, to distinguish between a formal complaint and the informal complaint made by Mr Anderson. When she had satisfied herself that there would be no formal complaint (at least in the immediate future), she supported the recommendation. It logically follows, in my opinion, that the informal complaint made by Mr Anderson about Mr MacRae (and the work culture) was a factor in her decision making.
Mr Munro was the effective decision maker. He decided to terminate Mr Anderson’s employment on the basis of the recommendations made by Mr MacRae and Ms Perfetto. It is, in my opinion, abundantly clear from the evidence that Mr Munro made up his mind, following the meeting on 25 March (if not before), that he wanted to be rid of Mr Anderson without delay. A factor in the timing of the decision was that if Mr Anderson passed probation and was then dismissed, he would be able to make a claim for unfair dismissal. Acting before he passed probation removed that possibility. Mr Munro conceded in cross-examination that he was aware of the deadline but denied that that affected his decision. I do not accept that denial. Mr Munro was well aware that if Mr Anderson’s complaint gained formality, it could well take him past the end of the probation period.
More important, however, was Mr Munro’s opinion that the conflict between Mr MacRae and Mr Anderson rendered Mr Anderson’s position untenable. Essentially, Mr Munro had decided to support his manager and dispose of the person who had complained about him. He was frustrated that the termination was taking too long and in effect, overrode HR concerns about due process[25].
[25] See exhibit A1
It seems that Mr Munro was unaware that Mr MacRae had done nothing prior to 19 March 2014 in the way of providing appropriate feedback to Mr Anderson in the light of the earlier concerns discussed between Mr Munro and Mr MacRae. In cross-examination Mr Munro conceded that he would be concerned to learn that that issue had not been promptly followed up[26]. At the time he took the dismissal decision, however, Mr Munro had the view that Mr Anderson was a non performer who had shown himself to be a trouble maker. His status as a trouble maker was a factor in Mr Munro’s decision. Mr Anderson was viewed as a trouble maker because of his combative attitude at the meetings on 19, 20 and 25 March. He was accused of being a “clever dick” or a “smart arse”. In my opinion, that description was accurate. Nevertheless, the complaint made about Mr MacRae by Mr Anderson could not be so lightly dismissed. The dismissal of Mr Anderson was certainly not an appropriate response to that complaint.
[26] Transcript (T) 19 at lines 10-16
The ultimate decision maker was Ms Doyle, then head of HR. Her role was, however, purely formal as she was simply approving a decision already made by Mr Munro. Ms Doyle no longer works for BNP. She was by far the most impressive of the respondent’s witnesses. Unfortunately, at the critical time, she was absent from the workplace at a conference and so was not in a position to form a direct view about the circumstances leading to the dismissal decision. I think it likely that if she had been able to form that view, a more prudent decision would have been made[27]. The information provided to Ms Doyle was much less extensive than that available to the other three decision makers. While it is probably true that the complaint made by Mr Anderson did not form any part in the decision making by Ms Doyle, her formal role is not critical as the effective decision had already been made by Mr Munro.
[27] She confirmed in cross-examination that the CEO of BNP promoted a culture of face to face communications and that she explained this to staff during their orientation. She accepted that that would justify temporary absences from a workstation, although she added that excessive absences could impact on performance. See T 3
Conclusion
I conclude that BNP contravened s.340 of the Fair Work Act by terminating the employment of Mr Anderson in part because he had made a complaint in relation to his employment. Mr Anderson seeks compensation and the imposition of a pecuniary penalty. I will hear further from the parties on those issues. The relief I will grant at this stage will be in the form of a declaration.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 13 October 2015
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