Anderson v St Andrews Village Ballina Trading as St Andrews Village Ballina Ltd
[2020] FCCA 3231
•26 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANDERSON v ST ANDREWS VILLAGE BALLINA TRADING AS ST ANDREWS VILLAGE BALLINA LTD | [2020] FCCA 3231 |
| Catchwords: INDUSTRIAL LAW – Multiple un-particularised claims for discrimination, harassment and adverse action – claims not established on the evidence – applicant dismissed from employment due to conduct unrelated to any claimed discrimination, harassment or adverse action – application dismissed. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), s. 46PO. Disability Discrimination Act 1992 (Cth), ss. 5, 6, 35. Evidence Act 1995 (Cth), s. 135. Fair Work Act 2009 (Cth), ss. 340(1)(a)(i), 340(1)(ii), 340(1)(a)(iii), 340(1)(b), 341(1)(a), 341(b), 341(c)(i), 341(c)(ii), 341(2)(k), 351, 360, 361. |
| Cases cited: Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496. Northern Land Council v Hansen [2000] NTCA 1. Sklavos v Australasian College of Dermatologists (2017) 256 FCR 247. Munday v Commonwealth of Australia (No 2) (2014) 226 FCR 199. La Trobe Capital & Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd (2011) 273 ALR 774 Qantas Airways Limited v Gama (2008) 167 FCR 537. Tropoulos v Journey Lawyers Pty Ltd [2019] FCA 436. Watts v Australian Postal Corporation [2014] FCA 370 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500. Tsilibanks v Transfield Services (Australia) Pty Ltd [2015] FCA 740. |
| Applicant: | ADRIANA OLIVERA ANDERSON |
| Respondent: | ST ANDREWS VILLAGE BALLINA TRADING AS ST ANDREWS VILLAGE BALLINA LTD |
| File Number: | BRG 400 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 3, 4, 5, 6 December 2019, 19, 20, 21, 22 October 2020, 2 November 2020. |
| Date of Last Submission: | 3 November 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 26 November 2020 |
REPRESENTATION
| Applicant: | Self-represented |
| Counsel for the Respondent: | Ms S Moody |
| Solicitors for the Respondent: | Mills Oakley |
ORDERS
The Applicant’s Further Amended Application filed on 11 July 2019 is dismissed.
The Respondent have leave, if so advised, to make an application for costs, with Judge’s Chambers to be notified whether any such application for costs will or will not be made, by 4:00pm on 30 November 2020.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Brisbane |
BRG 400 of 2018
| Adriana Olivera Anderson |
Applicant
And
| St Andrews Village Ballina TRADING AS St Andrews Village Ballina Ltd |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a 56 year old female who lived in the Northern Rivers region of New South Wales.
The applicant commenced work for the respondent as a contractor in or about mid-July 2016. [1] She had previously been employed to monitor welfare recipients by a company called Nortec. The applicant ceased her employment with Nortec in or about January 2017. [2] The circumstances in which she ceased her employment with Nortec were canvassed in the cross-examination of Dr Quinn as follows: [3]
[1] Affidavit of Peter Hackett filed on 25 October 2018 at [23].
[2] Transcript Day 7, p. 759.19 - .22.
[3] Transcript Day 3, p. 268.1 - .25.
“MS MOODY: So I think, as I understand it, one of the applicant’s complaints about the work at Nortec was that she would have to visit clients on her own, and that included people who had criminal convictions?---Yes, that’s true.
Yes. And so that – where you talk about she had a concern about safety in terms of working alone, that – we are to understand that that is certainly a substantive part of the origin of her having felt unsafe in that situation?---Yes.
And exacerbated, as I understand it, by the applicant’s complaints that she was in fact stalked by one of the clients whose house she had visited?---Yes.
So in terms of the applicant feeling unsafe, it has – we can understand that to be, can we not, in connection with the previous requirement that the applicant not work with clients with a criminal record; that’s one aspect of the need for her to be safe – physically, and to feel safe subjectively?---Mmm.
Sorry, you have to say yes or no; the court can’t record - - -?---Yes.
Yes. And the other aspect that you’ve identified is her unease in working in potentially dangerous situations like that on her own. So that also has the aspect of physical safety as well as a subjective feeling of safety?---Yes.
Thank you. And another requirement you put on the applicant’s ability to work 40 hours a week appears just a few lines below where you’ve said that you wouldn’t recommend that Adriana return to work for Nortec?---Yes.”
After the cessation of the applicant’s employment with Nortec, the applicant received treatment for a post-traumatic stress disorder condition (“PTSD”) from a Registered Psychologist named Michaela Killips. [4]
[4] Affidavit of Michaela Killips filed on 17 July 2018 at paragraph [2].
Notwithstanding that the applicant was receiving treatment for PTSD on an ongoing basis, and upon the recommendation of her treating practitioner, she was nevertheless entitled to receive a subsidy for alternative employment which might have been open to her under a NSW State Insurance Regulatory Authority program entitled “Job Cover Placement Program (“JCPP”)”. Eligibility for participation in such program was conditional upon agreement being reached between the applicant and an employer as to the terms of any engagement.
It transpired that a probationary agreement was reached between the applicant and the respondent as to the terms upon which she would be employed by the respondent. Such terms were set out in a contract of employment document dated 10 August 2017. It is convenient to set out the terms of such employment contract, in its entirety, as follows: [5]
[5] Exhibit 17 – Behind “Contract Tab”.
It was not in dispute that the applicant’s employment with the respondent was such that her personal safety was not in issue. It is also noteworthy that the employment contract made no reference to the applicant suffering from PTSD, or any other disability, which would have put the respondent on early notice that any particular work practice, or work station area at the respondent’s nursing home premises, might have to be modified to accommodate the applicant’s needs.
The JCPP agreement entered into was signed by the applicant on 3 August 2017, by one Ms McTigue on behalf of the respondent on 3 August 2017, and by one Mr Wise of GIO NSW, on 22 August 2017. The JCPP agreement provided that the applicant was to commence employment on 8 September 2017, but the parties agreed at trial that the applicant did not actually commence such employment until 13 September 2017.
The JCPP agreement emailed by the applicant to the respondent on 4 September 2017 provided as follows: [6]
[6] Exhibit 17 – Attached to email from applicant to [email protected] and cc’d to
It is to be noted that details to be inserted in section 3 of the JCPP agreement under the heading “Pre-injury Employer” were not recorded. It is also to be noted that the JCPP agreement recommended that the applicant work in ‘A safe working environment and [at] a work station desk in a non-open place environment.’ Notwithstanding that the latter was inserted into the JCPP agreement before the terms of the contract of employment had been agreed to, the terms of the JCPP agreement were not incorporated into the contract of employment.
A question arose as to whether a WorkCover NSW – Certificate of Capacity document dated 28 June 2017 was ever provided to the respondent, either by Ms Chatterjee of Konekt, or by the applicant. [7] The applicant gave self-serving evidence that she had provided such certificate to Ms McTigue on or about 3 August 2017 at the time of her execution of the JCPP Agreement. Ms McTigue, who returned from leave on 27 November 2017, was that day stood down from her position by the respondent pending an investigation into allegations of serious misconduct. After Ms McTigue was stood down, she never resumed her duties. Ms McTigue’s employment with the respondent ceased on 21 December 2017. [8] She was not called as a witness by the applicant. Her whereabouts were said to be unknown.
[7] See Exhibit 10.
[8] See Affidavit of Mr Hackett filed on 25 October 2018 at paragraphs [12] and [145].
As at 3 August 2017, Ms McTigue was the acting CEO and Director of Care Services (“DOCS”) for the respondent. Had documentation said to be relevant to the prospective employment of the applicant – such as the WorkCover Certificate – come into the possession of Ms McTigue, such documentation would usually have been placed upon the applicant’s personnel file. During extensive cross-examination and re-examination of Mr Hackett, the respondent’s HR manager, Mr Hackett was unable to explain why, if the applicant had provided the WorkCover Certificate to Ms McTigue as claimed, such certificate was not on the applicant’s personnel file. [9] There was no basis for any finding that the certificate had been deliberately removed from the applicant’s personnel file at any time before, or after, the termination of the applicant’s employment with the respondent.
[9] Transcript Day 7 – p. 912.21 – p. 937.45.
There was no independent evidence that the WorkCover Certificate had been attached to any email, or otherwise provided by the applicant to the respondent, prior to the execution of the employment contract on 10 August 2017. In the absence of any compelling evidence supportive of the applicant’s claim that she had provided the certificate to Ms McTigue, and further in the light of the Court’s adverse findings as to the applicant’s credit, the Court is not persuaded that either Ms McTigue, or someone else on behalf of the respondent, had received a copy of the WorkCover Certificate prior to the execution of the employment agreement on 10 August 2017. To that extent, then, the respondent was not to have known of the contents of the certificate, which suggested that the applicant had been diagnosed as suffering from a chronic PTSD condition which required psychiatric/psychological treatment together with regular GP review.
Also sent with the email of 4 September 2017 was a JCPP Employer Incentive Payment Claim Form, which was to be used by the respondent to claim employer incentive payments at 12, 26 and 52 week intervals in respect of the applicant’s employment under the JCPP. Such payment claim form provided as follows:
The applicant was employed by the respondent between 13 September 2017 and 28 December 2017, a period of 3.5 months. There was a 6 month period of probation provided for in the employment agreement.
APPLICANT’S EVIDENCE
Credibility Issues
In this case, the Court was required to weigh up and consider different versions of factual events. The versions of relevant events given by Ms Roach, Ms Maduveko and Ms Lacey were at odds with the versions of events given by the applicant.
The principles governing how a court ought to assess a witness’s credibility were recently considered by Wigney J in Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [307] – [309] where His Honour said:
“[307] Witness demeanour is one consideration which may assist a judge to resolve conflicting evidence. Sometimes the demeanour of a witness while giving evidence about contentious issues may provide insight into whether the evidence given by the witness is either honest and reliable, or dishonest or unreliable. Signs that may indicate dishonesty or unreliability include evasiveness, nervousness, an apparent unwillingness on the part of the witness to make appropriate or obvious concessions and even, in some circumstances, overconfidence.
[308] Even where a witness displays such traits when giving evidence, however, some caution must generally be exercised. That is because a witness may, for example, appear nervous or evasive for reasons that have nothing whatsoever to do with the honesty or reliability of their evidence. Other witnesses may be able to give evidence in an appropriately confident and direct manner and yet their evidence may be found to have been unreliable or, worse still, dishonest. Witness reliability is not always a reliable signpost. Indeed, judges have often cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability based solely or mainly on the appearance of witnesses. Scientific research has also cast doubt on the ability of judges to tell truth from falsehood accurately on the basis of such appearances: see Fox v Percy (2003) 214 CLR 118 at [30]-[31] and the cases there cited.
[309] Aside from demeanour, there are other factors or considerations which may assist a judge in determining the credibility of a witness and the reliability of his or her evidence. Those considerations include: whether the witness has previously given an account of the events in question and, if so, whether that previous account is consistent or inconsistent with the evidence given by the witness; the plausibility and apparent logic of the events described by the witness; and the consistency of the account of the events described as compared with other objectively established events. Such considerations often turn out to be a much surer guide to the reliability of the evidence given by a witness about disputed events. As Atkin LJ observed in Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”) (1924) 20 Ll L Rep 140 at 152; cited in Fox v Percy at [30]:
… I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.”
The Court respectfully had regard to the content of Justice Wigney’s judgment in Rush when assessing the credibility of all witnesses who gave evidence at the hearing of this trial. The Court finds that the applicant was evasive whilst giving evidence. She was also unwilling to make even small concessions relating to basic matters put to her. She was dogged in pursuing a line of questioning which was unproductive of any answer useful to her case. She had an erroneous view that the respondent’s witnesses had conspired to defeat her claims. The applicant had a misconceived view that her contentions were beyond challenge. Her assertion that Mr Hackett and Ms Lacey [10] had lied during their cross-examination was without any reasonable factual basis. For example, the baseless assertion by the applicant that Mr Hackett had doctored his diary entries to advance the respondent’s case was made without any factual foundation, was an attempted smear, and was embarrassing. [11] There was no evidence to support the applicant’s claim that there had been any such doctoring.
[10] Transcript Day 6, p. 690.33 – 691.15; 695.17 – .23; p. 733.35 - .45; Day 8, p. 1020.39 - .43.
[11] Transcript Day 8, p. 1037.21 - .31.
Applicant’s Claims
The applicant’s evidence must be looked at in the context of the Court’s finding that the applicant was dogged and confrontational in nature, as was evident in the applicant’s demeanour during the course of the trial when rulings adverse to her submissions or applications were made. The Court’s appreciation of the evidence as to how the applicant treated her fellow employees, and of the applicant’s general conduct during the course of her employment with the respondent, is best seen by reference to part of her re-examination evidence which re-enforced how the applicant came to be so assertive, such evidence being in part as follows: [12]
[12] Transcript Day 7, p. 824.42 – 825.22.
“MS ANDERSON: I – yes. Your Honour, I am very assertive, and after the experience I had at Nortec, my advice from my doctor and my psychologist and my rehab providers is, “Do not let this go unnoticed. Speak up. Make your issues known, and make sure you are getting the support that you need.” And that support is about the reasonable adjustments I need for my disabilities – and I have two disabilities. I have a hearing impairment, and I have the PTSD, which is a workplace injury, which occurred in January 2017, at Nortec. The only reason, your Honour, that I am eligible for the JCCP is because I was being rehabilitated for WorkCover. I’ve been rehabilitated for that injury I sustained while I was working at Nortec in January 2017. It’s part of my – part of my treatment is to recognise triggers, to learn to stand up for myself, to voice what I need, and to try to find strategies to do that.
…
MS ANDERSON: All right. Okay. Well, as a worker, I also have an onus to tell my employer what I need, why I need it, and when I need it. And that’s what I was doing: asking for what I needed, drawing everybody’s attention to the fact that there was a report. I never commissioned that report; I didn’t even know I could get a report like that until my rehab provider, Tara Chatterjee, raised it with me. She said, “Did you know that there’s funding for that. I can offer that to Aurora because you’re being rehabilitated. We want to make sure. It’s her job to make sure that I am rehabilitated properly.”
Though the applicant asserted that she had made requests for the respondent to implement what she referred to as “reasonable adjustments”, she never made any formal complaint against the respondent in that regard. Having claimed that she was very assertive, her lack of formal complaint is notable. Had she had any real issue concerning any alleged non-satisfaction of her requests, the applicant would have formally complained. The Court finds that the absence of such complaint was because the applicant had no real issue about her requiring any adjustments. The applicant’s evidence about why she didn’t make a formal complaint to Mr Hackett shortly after her alleged meeting with him on 22 December 2017 was unconvincing. [13] The Court prefers the evidence of Mr Hackett when he denied that the applicant had ever raised the issue of making a formal complaint at any time on 15 December 2017. There are also glaring discrepancies between how the applicant said the 22 December 2017 meeting commenced, and what was recorded in that regard in the minutes of that meeting. The applicant gave evidence that Mr Hackett suspended her as soon as she entered the meeting room, [14] whereas the minutes taken at the meeting suggest that the meeting was opened by Mr Hackett in an ordered way. [15]
[13] See Applicant’s cross-examination, Transcript Day 7 at pp. 812.30 – 816.3
[14] See Applicant’s cross-examination, Transcript Day 7 at p. 814.25 - .36
[15] See page 90 of Annexure “PH-1” to Hackett Affidavit filed on 25 October 2018
The Court considered the evidence of all witnesses in the context of the admitted increased tension which developed between the applicant and other members of the respondent’s workforce over time, and the resultant antagonism that that engendered in other employees against the applicant. The Court finds that such tensions arose almost from the time of the commencement of the applicant’s employment with the respondent, until the date of her termination. There was significant tension between the applicant of the one part, and the two employees of longstanding named Ms Maduveko and Ms Lacey of the other part. Tension had escalated to such an extent between them, whilst they were working together in what was referred to as the “ACFI Office” (Aged Care Funding Instrument Office), that Ms McTigue had, in late October/early November 2017, put in place a roster which ensured that they were physically separated. The roster which was introduced ensured that the applicant would occupy such office only on the Thursdays and Fridays of her three (3) day working week, such arrangement allowing Ms Maduveko and Ms Lacey to occupy the office on Mondays, Tuesdays and Wednesdays. The applicant would occupy an available desk elsewhere in the respondent’s premises on a Wednesday.
One example of the tension evident within the said ACFI office was that the applicant would close the window and turn on the air conditioner when she entered the ACFI office, most often with exaggerated effect, only to have the window opened and the air conditioner turned off by either of Ms Maduveko or Ms Lacey whenever the applicant left the office. That unfortunate scenario was played out from the time of the commencement of the applicant’s employment until the change of roster arrangements instituted by Ms McTigue. Ms Maduveko’s evidence on point was as follows: [16]
“[48] I then went to Aurora and showed her the email from Adriana dated 27 October 2017. We had a conversation to the following effect:
Me: Did you know about this?
Aurora: No, I had knowledge of it and I certainly didn’t authorise it.
Me: What should Deb and I do?
Aurora: Look, to keep the peace, could you and Deb just go along with what she wants? Keep the window closed and the curtain shut when she is in the room. When she isn’t in the room do as you like.
[16] See Maduveko Affidavit filed on 25 October 2018 10 at [48] – [53] inclusive.
[49] I was very unhappy with this solution, but I agreed to do as Aurora had asked.
[50] From then on, Deb and I just went along with Adriana's demands about keeping the window shut and the curtain closed whenever she was in the Office.
[51] Deb and I arrived earlier at work than Adriana did. We started around 8.00am and Adriana started around 9.00am. On these days, Deb and I would have the window open until Adriana arrived. If we saw Adriana in the carpark, we would quickly close the window and shut the curtain.
[52] Sometimes we didn't see Adriana arrive. On those occasions, if she came into the Office and saw the window open, her reaction was awful. She would stand there, glaring at us, obviously fuming, and - saying nothing - she would then stomp over to the window, slam it shut, jerk the curtain closed, and then throw herself into her chair. You could have cut the atmosphere in our Office with a knife. I was quite scared of her on those occasions.
[53] Likewise, if Adriana was at work but out of the Office - say on lunch, or taking minutes at a meeting - Deb and I would open the window and curtain. This would always infuriate Adriana when she returned, and the same process - her stomping over to the window, slamming it shut, jerking the curtain closed, etc - would be repeated.”
Ms Maduveko and Ms Lacey had, for a substantial period of time before the commencement of the applicant’s employment with the respondent, enjoyed having the window left open, and the air conditioner turned off, during their working days. That was allowed by the respondent’s managers. That all changed when the applicant arrived. One example of the applicant’s dismissive and non-consultative attitude toward her fellow workers was when the applicant unilaterally sent a letter to a maintenance person employed by the respondent asking for a change in air conditioning flow without first asking or consulting with either her superior, Ms McTigue, or either Ms Maduveko or Ms Lacey. [17]
[17] Paragraphs [44] – [53] of Affidavit of Ms Maduveko filed on 25 October 2020.
The Court finds that the applicant was the instigator of tension within the ACFI office. The Court accepts the evidence of each of Ms Maduveko and Ms Lacey as to the applicant’s aggressive conduct exhibited toward them during the course of her short period of employment. [18] The applicant occasionally demonstrated aggression, both in her bodily actions and demeanour, during the course of the trial. The Court accepted the evidence of Ms Maduveko and Ms Lacey to the extent that it conflicted with the applicant’s evidence about the applicant acting in an aggressive way in the workplace. Their evidence was consistent, and they both appeared as truthful witnesses during the course of their short cross-examinations.
[18] See Affidavit of Ms Maduveko filed on 25 October 2020 at [71] and Affidavit of Ms Lacey filed
on 24 December 2018 at [15] – [40].
In addition to the matters referred to above which gave rise to tensions between the applicant of the one part and Ms Maduveko and Ms Lacey of the other part, other aspects of interaction within the ACFI office, both before and after the roster change, which the Court accepts as having occurred, consistently with the evidence of Ms Maduveko and Ms Lacey, included the following:
a)The applicant claimed that she had been authorised by Ms McTigue to occupy Ms Maduveko’s desk from day one (1) of her employment, causing Ms Maduveko to leave her desk, when there was no evidence that Ms McTigue had been so consulted. [19]
[19] See Maduveko Affidavit filed on 25 October 2018 at paragraphs [14] – [17] inclusive.
b)The fact that Ms Maduveko had been offended when the applicant had said that Ms Maduveko dressed well and had a good sense of fashion ‘for a black girl’. [20]
[20] See Maduveko Affidavit filed on 25 October 2018 at paragraphs [25] – [27] inclusive.
c)The applicant was aggressive and yelling in front of Ms McTigue and some audit staff when refusing to leave the ACFI office during the conduct of an ACFI audit. [21]
[21] See Maduveko Affidavit filed on 25 October 2018 at paragraphs [54] – [64] inclusive and
Roach Affidavit filed on 25 October 2018 at [44] – [46] inclusive.
d)The applicant objected to people legitimately coming into the ACFI office notwithstanding that such people included residents of the facility inquiring about their entitlements, or other staff who were seeking clarification concerning work related issues. [22]
e)The applicant exhibited bullying and aggressive behaviour toward both Ms Maduveko and Ms Lacey with a view to the applicant having the ACFI office to herself as much as possible. [23]
f)At the commencement of each day when the applicant worked in the ACFI office before the change of the roster, the applicant would spray something which had an unpleasant odour in and about the office without the consent or approval of Ms Maduveko or Ms Lacey. [24]
g)The applicant would falsely accuse Ms Lacey of moving papers onto the applicant’s desk when she hadn’t. [25]
h)The applicant would refer to Ms Lacey in a condescending way as being ‘just care staff’. [26]
i)The applicant would slam doors and draws and scream at each of Ms Maduveko and Ms Lacey. [27]
j)The applicant would ask Ms Maduveko and Ms Lacey to keep to their side of the office and not to come over to ‘her side’, notwithstanding that on occasions, recourse to the applicant’s side of the office was necessary to obtain files. [28]
k)The applicant accused Ms Lacey of whistling when she had not done so, and could not have done so because of recent dental treatment. [29]
l)The applicant would appropriate all three (3) phones in the ACFI office (two landlines and one mobile) and keep them on her desk, notwithstanding that one landline was the nominated ACFI phone number needed by Ms Maduveko. [30]
m)The applicant would come into contact with Ms Lacey – ‘physically shove me aside’ – when walking past Ms Lacey in the ACFI office, causing her to feel intimidated and depressed. [31]
[22] See Maduveko Affidavit filed on 25 October 2018 at paragraphs [65] – [70] inclusive and
Roach Affidavit filed on 25 October 2018 at [34].
[23] See Maduveko Affidavit filed on 25 October 2018 at paragraph [71].
[24] See Maduveko Affidavit filed on 25 October 2018 at paragraph [71](h).
[25] See Maduveko Affidavit filed on 25 October 2018 at paragraph [71](k).
[26] See Lacey Affidavit filed on 24 December 2018 at paragraph [17].
[27] See Lacey Affidavit filed on 24 December 2018 at paragraph [20].
[28] See Lacey Affidavit filed on 24 December 2018 at paragraphs [27] – [28].
[29] See Lacey Affidavit filed on 24 December 2018 at paragraph [29].
[30] See Lacey Affidavit filed on 24 December 2018 at paragraphs [31] – [35] inclusive.
[31] See Lacey Affidavit filed on 24 December 2018 at paragraphs [37] – [40] inclusive.
The Children’s Painting Issue and Termination Circumstances
Ms Lee Roach took over Ms McTigue’s role as DOCS in an acting capacity on 6 December 2017. The Court accepted both the affidavit evidence and oral evidence of Ms Roach, which evidence was logical, proportionate, and otherwise not relevantly challenged in cross-examination. [32]
[32] See Affidavits of Ms Roach respectively filed on 25 October 2018 and 18 July 2019.
At paragraphs [23] – [79] inclusive of her affidavit filed on 25 October 2018, Ms Roach detailed events leading up to the applicant’s dismissal from her employment with the respondent in a consistent and plausible way as follows:
“6-December 2017
[23] On or around 6 December 2017, I was appointed Acting DCOS by the Chairman of the Board, David Nunn.
Early December 2017
[24] After Aurora was stood down, Board member Frank Gerhmann spent a considerable amount of time in the Office speaking to staff and observing.
[25] I was aware that, during Frank's time at the Village, he spent some time with Adriana one on one, including when she gave him a tour of the Village.
[26] While Frank was at the Village, I had a number of discussions with him about the running of the Respondent, and about staffing matters.
[27] During one of our discussions, which I believe occurred in or around early December 2017, I had a conversation with Frank to the following effect:
[Frank]: I’ve got plans for Ariana. I think we should put her on full time.
[Me]: No Frank, I don’t need an Assistant. I’ve been thinking that if I continue on in the DOCS role, I want to get rid of the Assistant role altogether. The role didn’t exist before Ariana and we simply don’t need it.
[Frank] Well, I've got a different view. If you don't want her as your assistant, maybe we could put her on as the Admissions Officer/ Contracts person.
[Me]: I don't think she is suited to St Andrews. I'd be pretty unhappy about that.
[Frank] It's my decision. I want to keep Adriana employed in the new position which will be introduced in the New Year.
[Me]: Well, I'm not happy about that, but it's your decision and I respect that.
[Frank]: I'll discuss it with the other board members and get back to you.
[28] When I said to Frank that I did not think Adriana was suited to St Andrews, I had formed that view because Adriana's conduct in the workplace.
[29] My initial impression of Adriana was on 10 August 2017 when she demanded in the rudest possible way that I sign her contract of employment that day. That impression was not favourable.
[30] As I observed Adriana over the months that followed, I formed the view that this overbearing and rude behaviour was quite typical of the way Adriana deal with others, including staff and management alike.
[31] My office was next door to the office that Adriana shared with Shupi and Deb. From my office, I could hear quite well what went on. And if I was in the corridor I could easily both see and hear what went on in their office.
[32] In or around late August 2017, shortly after Adriana moved into Deb and Shupi's office, I went into that office and saw Adriana sitting at Shupi's desk. Shupi was sitting at Kelly's old desk. Shortly afterwards, I had a conversation with Shupi to the following effect:
[Me]: What happened? Why is Adriana sitting at your desk?
[Shupi]: Adriana came in on her first day and told me Aurora wanted her to have my desk, so I moved. But later when I asked Aurora about it she said she never said that!
[Me]: How come she still has your desk then? Why didn't you say something?
[Shupi]: I'm not happy about it, but I'm not the sort of person to say something.
[33] As the Deputy DOCS, I was in control of the clinical side of things, and had no responsibility for staffing matters. This was Aurora's job.
[34] On a number of occasions, I both saw and heard Adriana verbally berate Deb and Shupi because people came into the office to talk to them. One incident in particular that I recall involved a physiotherapist who had come to see Deb and/or Shupi for something related to their ACFI work. After the physio left, Adriana yelled at Deb and Shupi that they were not to ever speak to the physio again in the office, and that if they wanted to speak to him or to anyone else in the future they had to do so out of the office.
[35] In or around late October or early November 2017, I went into the office which Shupi, Deb and Adriana shared and noted it was completely shut up. I had been used to walking into or past that office and seeing the window open.
[36] I had a discussion with Adriana to the following effect:
[Me]: Why have things changed in the office?
[Adrianna]: I have a hearing deficit, and I’ve had a workplace assessment done at my expense. This is what they recommended in their repo1i, that I have the window shut and remain closed at all times. Aurora is aware of this.
[37] As always, I found Adriana's manner to be rude and condescending.
[38] I thought the arrangement in the office was extremely odd, but I assumed Aurora was handling it. To my observation, the window remain closed and the curtain shut for the remainder of the time Adriana was employed.
[39] I also observed that Adriana had a range of other new items and aides at her desk, including a footstool, book rest, and black filing cabinet. I am not aware of when or why these items came to be in the office.
[40] I was aware Adriana had some sort of hearing issue because once or twice in meetings (where she was present as a note taker) she asked us to speak up.
[41] I was aware that relations were so bad between Deb, Shupi and Adriana that they could not work in the same office together. Aurora told me she was handling this. From my discussions with Aurora, and from my own observations, I was aware that Aurora had arranged for either Adriana or Shupi to work out of another office on the days they were both at work. Given that Shupi and Deb both have very quiet and unassuming personalities, I had no doubt that the root of the problem was Adriana.
[42] On the Wednesdays when Shupi had the office and Adriana had to use the conference room, I would be in my office when Adriana arrived at work. I would see her go to her office, grab her things, and then go to the conference room - walking past my office as she did so, it was on these occasions I would hear Adriana stomping about and huffing and complaining about having to go to the conference room. I thought her reaction was over the top. It would have been quite intimidating for poor Deb and Shupi who were inside the office and bearing the brunt of her conduct.
[43] I have had staff tell me they are scared of Adriana.
[44] On 1 and 2 November 2017, there was an incident when Aurora asked Adriana to leave the office because an ACFI audit team from the Federal Government wanted to use her office.
[45] I was inside my office and heard the commotion quite clearly. I heard Adriana refuse to leave. Specifically, I heard Adriana scream in a loud and angry tone of voice words to the effect of, "No, I'm not going to leave. This is my office too. I need to work in here, I've got work to do!"
[46] After some more yelling, Adriana left the office and slammed the door behind her.
[47] After this incident, an ACFI consultant, Lyn Tuner, complained to me about Adriana's behaviour and said, "Who is this person? She keeps coming into the office and interfering!"
[48] Any one of these things would give an employer pause for concern in the case of a probationary employee, but with Adriana these are only some examples of conduct that was constant and ongoing. It was for this reason I told Frank that I did not think Adriana was suited to St Andrews.
[49] Even if I had not decided that I wanted to make Adriana's position redundant, I would not have confirmed her employment beyond her probationary period because of her unsatisfactory conduct in the workplace.
Mid-December 2017
[50] In or around mid-December 2017, about a week or so after my conversation with Frank, Frank came to see me again and we had a discussion to the following effect:
[Frank]: I’ve had a think about things with Adriana. I’ll leave the decision about her employment up to you. After all, you have to work with her, not me.
[Me]: [shocked] Okay, thank you Frank.
[51]: At or around this time, I told Peter Hackett about my discussions with Frank, and I asked him to look at whether Adriana was still within her probationary period.
[52] Unfortunately, I was extremely busy and didn't have the time to consider Adriana’s employment any further. I decided to defer my decision until after Christmas.
18-December 2017
[53] On Monday, 18 December 2017, I had a discussion with Peter Hackett who informed me that a serious incident had arisen involving Adriana and Shupi.
[54] Peter asked me to come to his office, where showed me the pictures he had taken down from Adriana’s noticeboard which had offended Shupi.
[55] I am aware that Deb was also offended by the pictures. She has told me that she is either part-Aboriginal or married to an Aboriginal man.
[56] On 18 and 19 December 2018, Peter and I discussed what he should do about the pictures and Shupi's complaint. We agreed that he should conduct a full and impartial investigation into Shupi's complaint.
[57] At 11.52am on 18 December 2017, Peter and I received an email from Shupi setting out her complaint. A copy of that email is attached to my Affidavit at page [7] of Annexure "LAR-1".
[58] At 12.14pm on 18 December 2018, I received an email from Shupi via the Respondent's internal "Lee Care" messaging system notifying a formal complaint. A copy of that email is attached to my Affidavit at page [6] of Annexure "LAR-1".
[59] Around this time, I also had a number of discussions with various Board members, and informed them about the nature of Shupi's complaint.
[60] As a result of those discussions, I advised Peter that he was authorised to suspend Adriana on full pay pending the outcome of his investigation into Shupi's complaint.
19-December 2017
[61] At 8.04pm on 19 December 2017, I received an email from Peter about Shupi's formal complaint, and attaching a draft letter of suspension for me to authorise (the Suspension Letter). A copy of that email is attached to my Affidavit at page [1] of Annexure "LAR-1".
[62] I am aware that on or around this date, Shupi and Deb gave Peter a detailed statement dated 19 December 2017 which set out the history of bullying and harassment they had experienced from Adriana. I did not see this document until after Adriana's dismissal.
20-December 2017
[63] At 9.03am on Wednesday, 20 December 2017, I sent Peter an email authorising him to send the Suspension Letter to Adriana. A copy of that email is attached to my Affidavit at page [1] of Annexure "LAR-1".
[64] Shortly after Peter advised Adriana that she was stood down and escorted her from the building, I was in my office when it was quite literally stormed by three angry employees: Julianne Winchester, Bronwyn Kennedy-Wykes and Helen Dein.
[65] Julianne, Bronwyn and Helen each took turns yelling at me about Adriana's suspension, saying words to the effect of:
"How dare you do this to Adriana!"
"St Andrews needs Adriana!"
"Peter was wrong to suspend Adriana!"
"This is ridiculous!"
[66] Eventually, Bronwyn said, "Hey, it's not Lee's fault, we should all stop yelling at her."
[67] At 3.27pm on 20 December 2017, I sent Peter Hackett and David Nunn (the then Chairman of the Board) an email which set out what had occurred with the deputation of angry employees in my office. A copy of that email is attached to my Affidavit at page [2] of Annexure "LAR-1".
[68] Ultimately, the 3 employees received counselling in relation to their behaviour.
[69] At 3.48pm on 20 December 2017, I was copied into an email from Peter Hackett to David Nunn. That email attached copies of the photographs, Shupi's complaint to me dated 18 December 20217, and Shupi's email to me and Peter dated 18 December 2017. A copy of that email is attached to my Affidavit at pages [41 to [71 of Annexure “LAR-1”.
21-December 2017
[70] From 21 December 2017 to 2 January 2018, I took annual leave.
[71] On 21 December 2017, I received an email from David Nunn recommending counselling for the 3 employees who had stormed into my office on 20 December 2017. A copy of that email is attached to my Affidavit at page [8] of Annexure "LAR-1".
22-December 2017
[72] At 3.40pm on 22 December 2017, I received an email from Peter about his meeting earlier that day with Adriana. The email attaching the agreed minutes of that meeting and a draft letter of termination (Letter of Termination). A copy of that email is attached to my Affidavit at pages [9] to [12] of Annexure "LAR-1".
[73] Peter's email sought my authorisation for him to sign the Letter of Termination.
27-December 2017
[74] At 10.33am on 27 December 2017, I sent an email to Peter Hackett which authorised him to sign the Letter of Termination. A copy of that email is attached to Peter's Affidavit. A copy of that email is attached to my Affidavit at page [9] of Annexure "LAR-1".
22-December 2017
[75] On 22 December 2017, I received an email from David Nunn asking me to advise staff that Aurora was no longer employed by the Respondent. A copy of that email is attached to my Affidavit at page [13] of Annexure "LAR-1". I complied with this direction.
REASON FOR TERMINATION
[76] As I have stated above, the decision to terminate Ad1iana's employment was made by me.
[77] In making the decision to terminate Adriana's employment, I took into account (and based my decision on) the following matters:
(a) I did not think Adriana was a good fit personality wise for the Respondent;
(b) I believed Shupi and Deb when they said Adriana had bullied and harassed them (and I had even personally witnessed some of this conduct);
(c) I thought Adriana likely had intended to bully Shupi by putting up those 2 pictures on the notice board in their shared office;
(d) I did not require an Assistant, and, since around the beginning of December 2017, it had been my intention to terminate Adriana's employment on account of the redundancy of her position; and
(e) even if I did not intend to make Adriana's position redundant, I would never have confirmed her employment beyond her probationary period because of her poor conduct in the workplace.
[78] In making my decision, I did not consider:
(a) the occupational therapist's report from Konekt dated 27 October 2017 (the Konekt Report);
(b) any alleged complaints made by Adriana to Peter Hackett or Aurora relating to alleged bullying by Deb or Shupi of Adriana; or
(c) any alleged requests made by Adriana to Peter (or to anyone else) for "adjustments" to her work space based on the Konekt Report;
(d) any alleged complaints made by Ad1iana to Peter (or to anyone else) about the Respondent's alleged failure to implement the "adjustments" recommended in the Konekt Report; and
(e) the Applicant's alleged need for adjustments to her work space based on any alleged hearing disability.
[79] I knew about the Konekt Report, and read it for the first time after Aurora was stood down. However, I had no knowledge at all of the matters in paragraph 65(b), (c), (d) or (e) above at or before the time I authorised Adriana's dismissal.”
On or about 18 December 2017, drawings were placed by the applicant on the applicant’s noticeboard in the ACFI office. [33] The drawings themselves could not be described as depicting placidity. They were open to be considered confrontational. Those drawings in part gave rise to the Maduveko complaint. The hanging up of those drawings was interpreted by Ms Maduveko as not only being confronting in a racial ‘black face’ sense, but also as illustrative of the ongoing harassment and bullying of both her and Ms Lacey by the applicant. Ms Maduveko gave evidence that she had been born in Zimbabwe and that she had dark skin. [34] Those drawings were but part of the basis for, firstly, the making of the Maduveko complaint on 18 December 2017, [35] and secondly, the handing of a joint complaint by Ms Maduveko and Ms Lacey to Mr Hackett on 20 December 2017. [36] The Court accepts that each of Ms Maduveko and Ms Lacey were upset, distressed and offended by the posting up of the drawings.
[33] See pages 71 and 72 of Annexure “PH-1” to Hackett Affidavit filed on 25 October 2018
[34] Paragraph [24] of Maduveko Affidavit filed on 25 October 2018.
[35] Affidavit of Hackett filed on 25 October 2018 at “PH-1”, page 73.
[36] Affidavit of Hackett filed on 25 October 2018 at “PH-1”, pages 80 – 82 inclusive.
The applicant had been condescending toward each of Ms Maduveko and Ms Lacey when they had been together in the ACFI office, and that had understandably given rise to tension. Had it not been for the prior tension and antagonism between the applicant and Ms Maduveko and Ms Lacey, Ms Maduveko may not have lodged the complaint as she did. However, the applicant put the drawings up on the notice board, without first seeking the approval or consent of either Ms Maduveko or Ms Lacey, at a time when each of them would have first been confronted with such drawings when arriving at the ACFI office on the morning of Monday, 18 December 2017. That the actions of the applicant in putting up the drawings had the effect of causing offence was likely, bearing in mind the incendiary atmosphere already existing in the ACFI office. That the drawings may have been made by, or produced by, one or other of the applicant’s young children, was contextually of no moment. It was what the effect of such drawings being put up on the noticeboard was which was relevant. Ms Maduveko was a dark skinned woman who took offence to the drawings which she took as racial abuse of her by the applicant. Ms Lacey was also offended by the drawings, explaining that her partner was aboriginal, and that she was offended by the drawings in a racial sense. She said as much in her evidence which was as follows:
“Yes. Have you finished your answer?---Yes, I have. Yes. At this point of time. Also, your Honour – actually, I haven’t finished because my husband is – or my partner is of aboriginal. It also upset me, seeing black and white sort of photos like that.
But why would the fact that your partner is an aboriginal make you - - -?---He was from the stolen - - -
Let me finish my question?---Sorry. Beg your pardon.
Why would your partner being an aboriginal at the time, presumably, cause you to be upset when seeing these black and white sketches? Why would a sketch in black and white upset you?---Well, it was the lead up to the actual photos being on the wall.
So you’re not saying the photograph was offensive; you’re saying the photograph, in conjunction with other things, was offensive?---Absolutely. Yes. It was the lead up and then the ending with the photos up on the wall.
Well, the lead up is – you referred to as what?---As the offensive tones and the way she would speak about Shupi and being black in colour.”
The Court finds that the applicant well appreciated that by her pinning the drawings up on the board, such act would be demeaning each of Ms Maduveko and Ms Lacey. It was a power play on the part of the applicant designed to both harass and act as a means of asserting her self-perceived superiority over Ms Maduveko and Ms Lacey. She knew that it would further inflame tensions within the ACFI office. She intended that result. Her actions constituted unacceptable intimidation and harassment in the workplace. The respondent, through Ms Roach, was correct to identify such behaviour as gross misconduct which warranted the applicant’s dismissal as an employee.
As to the applicant’s other conduct the subject of the Maduveko and Lacey complaints, the applicant said that she had never done any of the things that she had been accused of doing. Her evidence in chief on point was as follows:
“MS ANDERSON: So firstly, with regards to paragraph 33, I have never scared anyone. I have never been volatile. I have never been dangerous. I have never gone into white-hot rages. I have never thrown things. I have never shoved anyone. I have never screamed at anyone in the workplace. And I believe that all of these allegations about my behaviour, as opposed to my performance, have been made retrospectively by the staff members mentioned in this paragraph by Shupikai Maduveko and Deborah Lacey, with whom I shared a very small office, known at St Andrew’s as the ACFI office, from 24 August 2017 until my employment was terminated.
HIS HONOUR: Yes.
MS ANDERSON: I note to this Court that I have never had these issues drawn to my attention. I was never disciplined. I was never counselled. I did not have the benefit of any probationary measures about my performance or my behaviour, and I note to this Court that by virtue of my position as assistant to the facility manager, I not only had day-to-day contact with the senior managers and the senior executive manager of the facility, but I also had contact with residents and their families.”
The Court finds that Ms Maduveko and Ms Lacey had not at any time conspired to give false evidence against the applicant.
During Ms Lacey’s cross-examination, the applicant put to her that she was lying about all of the allegations made by her against the applicant. Ms Lacey responded in a reasoned and forthright manner as follows:
HIS HONOUR: Yes, answer the question please?---Right. Well this had nothing to do with how I care for residents. This is how you intimidated, bullying every day when you walked into that office. I would be sitting there on my chair, you would walk past, you would shove that chair, you would ignore me, you would snarl, you would straight to your desk, you would throw your bag down and slam windows, pull down blinds and just carry on so rudely and then “I’m going to see the boss.” Intimidating consistently.”
On 20 December 2017, the applicant’s employment with the respondent was suspended. The letter of suspension dated 19 December 2017, signed by one Peter Hackett, the respondent’s Human Resources Manager, asserted that the placement of the two drawings on the applicant’s notice board exhibited a lack of judgment as to the impact of such action ‘… in the light of the recent history of tension between you.’ The letter of suspension was as follows: [37]
[37] Exhibit 17 – Behind “Employee Information” tab.
The sending of the letter of suspension was in line with the procedures as set out in the Human Resources Management Manual in circumstances where “Summary (Instant) Dismissal for Gross Misconduct” was under consideration. [38]
[38] See Annexure “PH-1” to Hackett Affidavit filed on 25 October 2018 at page 135.
There can be no doubt that the applicant well appreciated that the allegations levelled against her were of such a character so as to constitute “Gross Misconduct”. The letter sent to her by Mr Hackett requiring her attendance at a meeting with him on 22 December 2017 foreshadowed that disciplinary action would result if the allegations were accepted as proven. At that meeting, the applicant thrice acknowledged that the allegations made against her were serious. Minutes taken at the 22 December 2017 meeting which recorded that concession were as follows: [39]
[39] Exhibit 17 behind “Employee Information” tab.
“Adriana: I understand this is a serious allegation. Procedural fairness must be followed. I have had legal advice. I reserve the right to have legal representation. I reserve the right to respond in writing. I would like to note that these are serious allegations and that whilst I understand that St Andrews has obligations to take complaints seriously I also note that I am entitled to procedural fairness.
…
Adriana: I’m unable to continue. I’ve attended this meeting in good faith. I’ve asked for an explanation because I don’t understand the premise for being stood down. Relevant information has not been provided. I believe as a member of staff I’m entitled to know which policies and instruments have been relied on when I’ve been summoned to a meeting to answer serious allegations. I reserve all my rights. …”
(emphasis added)
The applicant’s attempt, during the 22 December 2017 meeting, to portray herself as the victim of a lack of due process, was manufactured and disingenuous. The applicant well knew why she had been required to attend the meeting. The 19 December 2017 suspension letter was headed “MEETING TO RESPOND TO ALLEGATIONS OF INTIMDATION AND/OR HARASSMENT”. There was no conceivable basis for the applicant’s having said, during the course of such meeting, “I don’t understand the premise for being stood down.” The applicant was being untruthful when she said that.
Any failure on the part of Mr Hackett to more fully address the serious allegations levelled against the applicant, before the meeting came to an end, was caused by the applicant's own obfuscation and belligerence. A reading of the full minutes taken of that meeting evidences just that. Mr Hackett’s persuasive evidence on point, including the content of the minutes, was as follows: [40]
[40] See explanation of Mr Hackett in his Affidavit filed on 25 October 2018 at paragraphs [194] –
[211].
“22 December 2017
[194] On 22 December 2017, a meeting was to be held in my office which was attended by the following persons
(a) Adriana;
(b) Helen Dien (Coordinator, Leisure & Lifestyle) as Adriana’s support person; and
(c) Leisa Foley (Deputy DOCS) as minute taker.
[195] I had requested the meeting so that I could discuss with Adriana the allegations made by Shupi in her complaint.
[196] Where I refer below to the discussion that occurred at this meeting, I have refreshed my recollection from the minutes of that meeting taken by Leisa Foley contemporaneously during the meeting, and signed at the end of the meeting by me and Adriana as a true and correct record.
[197] After some initial greetings and formalities, a conversation to the following effect took place:
Me: The purpose of this meeting is to give you an opportunity to respond to the allegations set out in the letter I gave you on Wednesday.
Adriana: I understand this is a serious allegation. Procedural fairness must be followed. I have had legal advice. I reserve the right to have legal representation. I reserve the right to respond in writing. I would like to note that these are serious allegations and that whilst I understand St Andrews has obligations to take complaints seriously, I also note that I am entitled to procedural fairness. Firstly, for reasons you know of, but I can't mention here in this room, I'm unable to have the meeting here. The conference room is vacant.
[198] At the time, I had no idea why Adriana didn't want the meeting to be in my office, and I didn't ask why.
[199] To save time and argument, I just agreed to move the meeting to the conference room on the first floor.
[200] We adjourned the meeting to allow for everyone to move to the conference room.
[201] Once relocated to the conference room, the meeting then resumed as follows:
Adriana: Firstly, I need to address the minutes. I don't agree to have a minute taker. I am prepared to agree but legal advice is that I have to leave here with a copy of the minutes and they have to be a true and accurate representation of the meeting.
Me: As long as the minutes respond to the letter.
Adriana: Peter has agreed, and the minutes will be signed by both Peter and I will take away signed minutes when we leave. A lack of procedural fairness has already occurred with regard ... [In an angry and hostile tone of voice] ... please don't interrupt Peter ... With regard to me being suspended and escorted off the premises. I'm instructed to ask what policy or instrument you referred to as HRM in order to stand me down and remove my swipe card and keys? Where is this action applicable as a provision for the type of actions I've been accused of?
Me: I've also taken legal advice.
Adriana: Are you refusing to answer the question?
Me: I've answered it. Are we going to get to the substance of the matter please?
Adriana: [in an angry tone of voice] I'm unable to continue. I've attended this meeting in good faith. I've asked for an explanation because I don't understand the premise for being stood down. Relevant information has not been provided. I believe as a member of staff I'm entitled to know which policies and instruments have been relied on when I've been summoned to a meeting to answer serious allegations on I reserve all my rights .
Me: Let the minutes show Adriana has called a halt to the meeting.
Adriana: I'm unable to continue. I've not called the meeting to a halt. I have not been provided with information. Information that you as HRM can provide. Let the minutes show the meeting has been called to a halt because the HRM refuses to answer my questions and provide me with information that I as a member of staff am entitled to receive.
[202] The meeting, effectively conducted by Adriana in a contemptuous manner, ended al around 11.18am.
[203] At the end of the meeting, Leisa Foley went downstairs to type up the minutes. This took around 30 minutes.
[204] After numerous changes were made to the minutes, a final version was arrived at which all parties agreed was an accurate record of the meeting. A copy of that document is attached to my Affidavit at page [90] of Annexure "PH-1".
[205] While Leisa was downstairs typing up the minutes, I remained at the Conference Room table and was surprised at the upcoming Christmas small talk happily exchanged between Adraiana and Helen. There seemed to be no recognition given to the seriousness of the meeting or the attempt being made by St Andrew's to resolve a difficult situation. At the end of the meeting, I said to Adriana words to the effect that she would remain suspended with full pay until a decision was made by St Andrews. Adriana left the premises escorted by Helen and me a short distance behind.
[206] Following my meeting with Adriana, I formed the view I would recommend to Lee Roach that the Respondent consider terminating Adriana's employment for the following reasons:
(a) I believed Shupi and Deb's complaint that Adriana had bullied and harassed them over a period of months;
(b) I formed the view that Adriana very likely had put the pictures up on her noticeboard to antagonise Shupi;
(c) I was of the view that Adriana's conduct was a breach of the Respondent's Code of Conduct;
(d) I was of the view that Adriana had a very difficult personality and was not a good fit for St Andrews;
(e) while I recognised that Adriana very likely would take legal action against the Respondent, in my view the benefits of dismissing Adriana and having her out of the workplace as a disruptive force outweighed the risks of her potentially suing the Respondent;
(f) I was aware from discussions with Lee Roach that she did not want an Assistant, and had already sought Frank's permission to make Adriana's role redundant; and
(g) Adriana was within her probationary period and so the Respondent could terminate her without providing a reason provided it gave her the appropriate notice.
[207] I believed that St Andrews had afforded Adriana procedural fairness. That included me giving her every opportunity to respond to the allegations set out in my letter of 20 December 2017. Insofar as Adriana refused to talk about the allegations on 22 December 2017, I believed she was deliberately trying to frustrate the process.
[208] I did not form this view because of (as Adriana alleges):
(a) Adriana said to me on 15 November 2017 that she was going to make a formal complaint under the Agreement that the Respondent had failed to implement the adjustments contained in the Konekt Report (a conversation I say never occurred); or
(b) because Adriana exercised any workplace right (real or purported) or made any complaint; or
(c) in defence of my own position (as I was completely unaware of the discussions between Adriana and Frank Gerhmann about my role until after January 2018).
[209] Of course, I did not (and do not) have the authority to hire or fire employees of the Respondent. At that time, the relevant person with that authority was Lee Roach who was on annual leave.
[210] At 3.40pm on 22 December 2017, I sent Lee an email about my meeting earlier that day with Adriana, and attaching the minutes of that meeting and a draft letter of termination (Letter of Termination). A copy of my email and its attachment is attached to my Affidavit at page [91] of Annexure ''PM-1".
[211] My email sought Lee's authorisation for me to sign the letter of termination to dismiss Adriana. It was necessary for me to sign the letter only because Lee was on leave.”
Mr Hackett deposed that the St Andrews Village Ballina Collective Agreement 2008 formed part of the applicant’s employment contract. [41] Clause 12.1 of the Collective Agreement allowed each of the applicant and the respondent to terminate the probationary contract of employment upon the giving of one (1) day’s notice. The Collective Agreement relevantly provided as follows:
[41] See paragraph [15] of Affidavit of Mr Hackett filed on 25 October 2018.
“12. EMPLOYEE ENGAGEMENT
12.1 Probation: Employees (other than casual employees) will be on probation for the first three months of engagement for the purpose of determining the employee’s suitability for ongoing employment. The employer may specify in writing in advance a longer period of probation depending on the nature and circumstances of the employee’s role with the employer. At any time during the probationary period, the employer or the employee can terminate the employment by giving one day’s notice.”
(emphasis added)
It has been held that the legal effect of a probation clause in a contract of employment will be determined, in each particular case, by the intention of the parties when the contract is looked at as a whole. It was said in Northern Land Council v Hansen at [24] - [25] as follows: [42]
[42] [2000] NTCA 1 at [24] – [25].
[24] We were referred to a number of cases as to the meaning of “probation” in an effort to demonstrate that the word had a usual and fixed meaning that called for a subjective assessment. We were referred to: Connolly v The Labor Daily Ltd (1925) 42 WN (NSW) 109; Hogan v Tumut Shire Council (1954) 54 SR (NSW) 284; In re Alchin v South Newcastle Leagues Club Ltd (1977) AR 236; O’Rourke v Miller (1984-1985) 156 CLR 342; Director General of the Department of Corrective Services v Mitchelson (1992) 26 NSW LR 648; Ryan v Furneys Stock Feeds Limited (1996) 66 IR 298; Lang v Reid & Vasely (unreported decision of Sams DP of the Industrial Relations Commission of New South Wales, 11 October 1999).
[25] In each of those cases the concept of probation was discussed. However the cases make it clear that the meaning to be given to the term was to be determined by reference to the intention of the parties looking at the whole of the agreement: Hogan v Tumut Shire Council (supra at 291); or by reference to the relevant statutory regime: O’Rourke v Miller (supra at 350 et seq). In Connolly v The Labor Daily Ltd (supra at 110) Street CJ observed that:
“The question is primarily one of intention. What did the parties mean by their agreement?”
The contract of employment provided that the terms of employment were to be in accordance with the provisions of the Collective Agreement. The applicant accepted that the terms of the Collective Agreement governed how a workplace complaint was made.[43] So too, she must have appreciated that under Clause 12.1 of the Collective Agreement, insofar as the applicant’s appointment was probationary, either party could terminate the contract of employment by giving one (1) day’s notice of termination to the other. [44]
[43] See Transcript Day 7 at p. 786.10 - .13
[44] See Annexure “PH-1” to Hackett Affidavit filed on 25 October 2018 at page 147.
For the parties to have mutually agreed that there be a one (1) day notice period for termination of a probationary contract, such contract ought to be so construed that, irrespective of whether there were allegations of gross misconduct or not, either party intended that they were entitled to be released from their contractual obligations on the giving of such notice. The applicant was paid one (1) week’s salary at the time of the termination of her employment.
By Clause 28 of the Collective Agreement, it was provided that certain procedures were to be followed prior to the termination of an employee’s contract of employment. However, those procedures did not apply to grounds which would justify “summary dismissal”. [45]
[45] See Clause 28.1 of Collective Agreement at Annexure “PH-1” to Hackett Affidavit filed on 25
October 2018 at page 187.
It is significant that the applicant undertook, as a condition of her employment, to abide by the terms of the St Andrews Code of Conduct. [46] On 26 September 2017 the applicant signed the Code of Conduct document, an acknowledgement at the end of which relevantly provided as follows:
[46] See Code of Conduct in Exhibit 17 behind “Employee Information” tab.
“ACKNOWLEDGEMENT OF THE CODE OF CONDUCT
All employees, volunteers and key personnel are required to abide with this policy in accordance with the St Andrews Core Values. It is a condition of an employee’s employment to sign this code of conduct, acknowledging that they have read the Code of Conduct and understand their obligations.
For employees, breaches of this Code of Conduct may lead to disciplinary action or even dismissal in the event that the breach is of such a serious nature that this action is warranted.
Breaches of certain sections of this Code of Conduct may also be punishable under law and could result in criminal charges being laid against the offending person or persons.
I acknowledge that I have read, understood and will abide by St Andrews Code of Conduct.”
(emphasis added)
The specific parts of the Code which related to personal and professional behaviour required of an employee were as follows:
“PERSONAL AND PROFESSIONAL BEHAVIOUR
When carrying out their duties and responsibilities, workers and key personnel will:
·Interact in a respectful manner towards each other, respecting the rights and responsibilities of other workers as they undertake their duties;
…”
The specific parts of the Code which related to harassment by an employee were as follows:
“HARASSMENT
Essentially, harassment is any behaviour which results in a worker or key personnel feeling threatened, uncomfortable or unable to cope in their work environment. Examples of harassment include, but are not limited to:
·Unwelcome remarks … or taunting about a person’s … ethnic or national origin …
·…
·… or intimidation which can cause awkwardness or embarrassment;
·Persistent and unwelcome language …
·…
·Physical intimidation and/or verbal abuse or threats;
·…”
At page 8 of the Code, still under the heading “Harassment”, there appeared the following:
“A zero tolerance policy applies in relation to any forms of harassment committed by a worker or key personnel or external stakeholder of St Andrews. NOTE Unlike bullying which is defined as a repeated behaviour, harassment can occur as a result of a single incident.”
(emphasis added)
Quite apart from a consideration of the hurtful impact upon Ms Maduveko of the applicant’s posting up of the drawings in the ACFI office – an act which the Court finds was intended to, and did, intimidate and harass Ms Maduveko as set out in her letters of complaint – the applicant’s general conduct as detailed in paragraph [23] hereof, from the time of the commencement of her employment until the date of the termination of her employment, constituted sustained harassment of each of Ms Maduveko and Ms Lacey which was both serious and unacceptable. The conduct warranted the termination of the applicant’s employment. In dismissing the applicant from her employment, the respondent’s actions were proportionate and commensurate with a finding of gross misconduct warranting termination on the giving of one (1) days’ notice.
The Court finds that the applicant breached the Code of Conduct relating to both personal and professional behaviour and harassment. The breach of the provision of the Code of Conduct relating to harassment was not to be tolerated, and entitled the respondent to summarily dismiss the applicant from employment.
The decision to suspend, and then terminate, the applicant’s employment with the respondent, was made by Ms Roach. Ms Roach impressed the Court as a competent manager who by early December 2017 was already fed up with the disruption in the workplace which she reasonably attributed to the applicant’s influence. She had arrived at that opinion well prior to the making of the Maduveko complaint. Ms Roach impressed as a witness of credit, and the Court has accepted and preferred her evidence to the extent that it was in conflict with the evidence of the applicant.
Ms Roach well knew that the applicant was on probation. She said in her evidence that even if the applicant’s employment had not been terminated when it was, she would not have sanctioned the employment of the applicant by the respondent beyond the end of the six (6) month probation period. The Court finds that Ms Roach exercised her managerial responsibilities in relation to the termination of the applicant’s employment in a reasonable and well considered way. She was empowered to terminate the applicant’s contract of employment, and the Court finds that in terminating the applicant’s employment, Ms Roach acted reasonably and in accordance with the terms of the Collective Agreement applicable to a finding of gross misconduct committed by the applicant during the course of the applicant’s employment.
The applicant’s employment with the respondent was terminated by letter dated 28 December 2017. The Court accepts that Ms Roach made the decision to terminate the applicant’s employment for reasons unrelated to issues of alleged discrimination or for any alleged proscribed reason in contravention of the FWA. The letter of termination was sent on Ms Roach’s instruction. Such letter, signed as it was by Mr Hackett, was as follows: [47]
[47] See Annexure “PH-1” to Hackett Affidavit filed on 25 October 2018 at page 94.
The applicant was a probationary employee whose employment was terminated because she had harassed her fellow workers, not because of any threatened complaint under either the FWA or the DDA.
The Applicant’s Pleaded Claims
This proceeding was case managed by another judge before being listed for trial before this Court. The applicant’s claims are contained within a voluminous document filed on 11 July 2019 entitled:
“Form 2 – Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection” (Further Amended Application) (“FAA”).
The claims actually made by the applicant, by a process of distillation, were as follows:
a)Alleged breaches of ss. 5, 6 and 35 of the Disability Discrimination Act 1992 (Cth) (“DDA”) in respect of direct and indirect discrimination together with harassment in employment claims (“DDA Claims”);
b)Alleged breaches of s. 340(1)(a)(i), (ii) and (iii), s. 340(1)(b), s. 341(1)(a), (b), (c)(i), (c)(ii), and s. 341(2)(k) of the Fair Work Act 2009 (Cth) (“FWA”) in respect of unlawful adverse action because of the exercise by the applicant of a workplace right (“Adverse Action Claims”);
c)Alleged breach of s. 351 of FWA in respect of adverse action based upon discrimination (“FWA Discrimination Claim”);
d)Common Law Claim for:
“Information;
Clear, consistent, accurate and unambiguous information;
Natural justice – probationary, suspension, disciplinary and termination processes and communications related to such that are legally compliant, comprehensive, thorough, fair, transparent and just.”
(“Common Law Claim”) [48]
[48] Page 5 of Further Amended Application filed on 11 July 2019.
The damages/compensation/remedies sought by the applicant as claimed in the Further Amended Application filed on 11 July 2019 were as follows: [49]
“1. COMPENSATION
12. I ask the Court to impose the maximum penalty upon the Respondent Employer St Andrews Village Ballina Ltd T/A St Andrews Village Ballina Ltd.
13. …
14. Compensation as per amended application 30 April 2019
15. Loss of Income – up to 8 April 2019, $133,950.00
16. Hurt, Humiliation, Distress, Stress, Anxiety $60,000.00
17. Loss of Opportunity/Cost of that Loss $320,738.00
18. Income Loss, from 8 April 2019, $3,328.98 Gross per fortnight”
[49] Further Amended Application filed on 11 July 2019 – Part H.
DDA Claims
The applicant has made claims of both direct and indirect discrimination under ss. 5, 6 and a harassment claim pursuant to s. 35 of the DDA. Those sections relevantly provided as follows:
“Section 5 – Direct disability discrimination
Direct disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
(3) For the purposes of this section, circumstances are not material different because of the fact that, because of the disability, the aggrieved person requires adjustments.
…
Section 6 – Indirect disability discrimination
Indirect disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and
(c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and
(c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.
(3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.
(4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.
…
Section 35 – Harassment in employment
Harassment in employment
(1) It is unlawful for a person to harass another person who:
(a) is an employee of that person; and
(b) has a disability;
in relation to the disability.
(2) It is unlawful for a person to harass another person who:
(a) is an employee of a person by whom the first-mentioned person is employed; and
(b) has a disability;
in relation to the disability.
(3) It is unlawful for a person to harass another person who:
(a) is seeking employment by the first-mentioned person or by an employer of the first-mentioned person; and
(b) has a disability;
in relation to the disability.
(4) It is unlawful for a person to harass another person who:
(a) is a commission agent or contract worker of that person; and
(b) has a disability;
in relation to the disability.
(5) It is unlawful for a person to harass another person who:
(a) is a commission agent or contract worker of a person of whom the first-mentioned person is a commission agent or contract worker; and
(b) has a disability;
in relation to the disability.
(6) It is unlawful for a person to harass another person who:
(a) is seeking to become a commission agent or contract worker of the first-mentioned person or of a person of whom the first-mentioned person is a commission agent or contract worker; and
(b) has a disability;
in relation to the disability.”
(emphasis added)
It has been held in Sklavos v Australasian College of Dermatologists (2017) 256 FCR 247 at [13] per Bromberg J and in Munday v Commonwealth of Australia (No 2) (2014) 226 FCR 199 at [57] per Katzman J that the same conduct cannot amount to both direct and indirect discrimination under the DDA. To that extent, the practice as adopted in Sklavos and Munday was for the Court to examine each of the claims separately.
As to this Court’s jurisdiction to hear and determine the applicant’s DDA claims, jurisdiction is limited to such of the complaints which had been made to the Australian Human Rights Commission (“AHRC”), and which had been terminated by the President of such Commission. An application filed in this Court is so filed subject to the provisions of s. 46PO(1) – (3A) of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”), which relevantly provided as follows:
“Section 46PO – Application to court if complaint is terminated
Application to court if complaint is terminated
(1) If:
(a) a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
Note: Part IVA of the Federal Court of Australia Act 1976 allows representative proceedings to be commenced in the Federal Court in certain circumstances.
(2) The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.
(3) The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) act, omissions or practices that were the subject of the terminated complaint.
(3A) The application must not be made unless:
(a) the court concerned grants leave to make the application; or
(b) the complaint was terminated under paragraph 46PH(1)(h); or
(c) the complaint was terminated under paragraph 46PH(1B)(b).”
Save in respect of the applicant’s claim made in paragraph [86](j) of the FAA filed on 11 July 2019, to the extent that the applicant made a PTSD discrimination claim in paragraphs [2], [3], [4], [79], [82] and [86] thereof, the Court had jurisdiction to hear such claims on the basis that complaints had been made in respect of the termination of her employment for a proscribed reason or reasons pursuant to the provisions of s. 351 of the FWA, but not under ss. 5 or 6 of the DDA.
This Court did not have jurisdiction to hear and determine the applicant’s PTSD DDA claims, or the harassment claim in paragraph [86](j) of the FAA, under s. 35 of the DDA, based as they were upon PTSD allegations, because no such complaints/claims had been made to, accepted, and subsequently terminated by, the President of the AHRC.
Admissibility of Medical Evidence
For the purposes of the Court’s consideration of the applicant’s direct and indirect discrimination claims, and the applicant’s general protection claims, the Court has exercised its discretion to exclude from its consideration, pursuant to the provisions of s. 135 of the Evidence Act 1995 (Cth), the contents of the report of Dr Malouf. [50] The Court has had no regard to the contents of that report which was only admitted into evidence as a business record of the respondent because it had likely been handed to the applicant’s direct line manager, one Mr Carter, by both Ms Kennedy-Wykes and by the applicant, in or about September 2017 before the applicant was employed.
[50] See Exhibit 2.
The evidence of Ms Kennedy-Wykes was that though the Malouf report was handed to Mr Carter, the applicant did not require or ask for any action to be taken in relation to it. Mr Carter said that if the applicant wanted anything done, presumably because of the contents of the report, she was to speak to Ms Kennedy-Wykes about it. There was no evidence that the applicant subsequently ever did. Ms Kennedy-Wykes evidence on point in her examination in chief was as follows: [51]
“Thank you. Do you have any recollection of what you did with the information about my hearing problems that you’ve just referred to, and what you may have done with that information?---Well, you were with me; we went to Pip together and it would have been just put on the file as Pip ordered me to do; put it on the file afterwards. I think it also – at the time, because it was to do with hearing, he asked me what needed to be done about it. I pretty sure your answer was nothing at this stage; and then he has just told me to file away and if there’s anything you need to speak me about it.”
[51] Transcript Day 3 – p. 282.30 - .38.
Dr Malouf was not called to give evidence at the hearing of the trial. The context in which the Malouf report was written was unable to be explored or tested. The opinions expressed in his report were unable to be tested. In such circumstances, the Court has considered that it would be unfairly prejudicial to the respondent for the Court to place any reliance upon the contents of any report of Dr Malouf. The Court has adopted what was said by Finkelstein J in La Trobe Capital & Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd (2011) 273 ALR 774 at [65] – [68] inclusive where His Honour said:
“[65] Mr Riordan refers to two authorities in support of his submission. The first is the Guide Dogs case. The applicant, a guide dog organisation, argued that the terms “seeing eye dog” and “guide dog” were particularly associated with the applicant. It claimed that the respondent, another guide dog association, had committed the tort of passing off and had contravened s 52 of the TPA by using the term “seeing eye dog” in relation to its services. The Chief Executive Officer of the defendant gave evidence the following evidence:
19. Since I became chief executive officer of the Association, I have had extensive dealings with members of the public and the media in New South Wales and the ACT in relation to guide dogs. I have travelled to all States of Australia except Western Australia and the Northern Territory to represent the Association on [sic], and have had dealings with members of organisations interested in providing assistance to blind and vision impaired persons. All persons with whom I have so dealt have used the terms “seeing eye dog” and “guide dog” interchangeably and have not used such terms to distinguish between any particular organisation or its method of training guide dogs.
20. Often acquaintances of mine, who know that I am the chief executive officer of the Association, will, in general conversation, ask me a question in words to the effect: “How are the seeing eye dogs?” or “How are the guide dogs?” or “How are the blind dogs?”. The term “guide dogs”, “seeing eye dogs” and “blind dogs” are used about equally by persons speaking to me in these conversations. Recently, in a discussion with friends at my golf club, one of my friends was complaining about his family dog and another said words to the effect: “You should give it to Joe, he will turn it into a seeing eye dog.”
Objection was made to the final sentence of paragraph 19 and all of paragraph 20.
[66] Sackville J determined (at 532) that the final sentence of paragraph 19 should be excluded under s 135, but that paragraph 20 should not be excluded. In respect of the final sentence of paragraph 19, Sackville J said (at 531-2) that the evidence was of limited weight, the witness having made no attempt to recount the nature and context of the conversations. Without having that context, the plaintiff did not have a full and fair opportunity to test the opinion in cross-examination, particularly given that the opinion went to the most critical issue to be resolved. On the other hand, he said (at 532-3) that the evidence in paragraph 20 gave sufficient substance of particular conversations (even though some were not precisely identified) and did not purport to characterise their effect in terms of the issues in the case.
[67] A number of observations can be made about the Guide Dogs decision. The first is that the decision to exclude the last sentence of paragraph 19 was based on Sackville J concluding that it concerned opinions about the effect of conversations. The requirements for giving evidence about the effect of conversations are more stringent than for most other forms of evidence. Professor Wigmore explained that when a witness testifies about an ordinary act or occurrence, there is no requirement, for admissibility purposes, that the whole of the deed or occurrence be offered or taken together. On the other hand, where the evidence reproduces a conversation, it is necessary for at least the substance of the conversation to be reproduced so as to allow it to be properly interpreted in context: 7 Wigmore on Evidence (Chadbourn rev 1978) Ch 73. The second observation is that Sackville J admitted the evidence in paragraph 20, notwithstanding that full particulars were not provided about most of the conversations. So long as the substance of the conversations was apparent, there was no unfair prejudice to the applicant in not knowing the precise particulars of the conversations, such as where and when they took place.
[68] The second case upon which Mr Riordan relied was another decision of Sackville J, Seven Network Ltd v News Ltd (No 8) (2005) 224 ALR 317. An employee of the applicant, Seven Network, gave contentious evidence about his assessment that Seven had a number of strategic advantages in adapting to developments in the emerging pay TV market. The employee’s opinions about those advantages were high-level and abstract in nature. The respondents accepted that the evidence was admissible to the extent that it showed that the witness held the expressed opinions. However, the respondents argued that the evidence should be excluded if used to prove the truth of the belief or the facts relied upon in forming that belief. This was because the evidence was effectively expert evidence tendered without complying with the requirements governing the admissibility of expert evidence, as to which see Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705. Sackville J accepted the respondents’ argument. He noted (at [22]-[24]) that the witness’ opinions concerned highly complex and contentious issues, without divulging any basis for those opinions. Given the very large volume of documents in the case, he said it would be difficult to test in cross-examination any further evidence ascertained about the basis of the opinions.”
The Court finds that there has been no breach of the provisions of s. 5(2) of the DDA.
Section 6 – Indirect Discrimination Claims
This claim fails because the applicant has failed to identify or establish the basis for her claim. Nowhere did the applicant identify any “requirement or condition” which the applicant is alleged to have been required to comply with for the purposes of s. 6(1)(a) of the DDA. The applicant failed to identify/plead what was a fundamental requirement for proof by her of an essential element of the cause of action under s. 6(1)(a) of the DDA.
Further, the Court finds that throughout the entirety of her employment with the respondent, the applicant confirmed that she had been well able to attend to, and perform, the tasks required of her. There was no evidence that the applicant did not, or would not, comply, or alternatively was not able, or would not be able, to comply with any work direction. Section 6(1)(b) of the DDA was therefore not satisfied. Accordingly, no requirement or condition to do anything during the course of the applicant’s employment with the respondent was because of any claimed disability on the part of the applicant, nor could any requirement or condition to do anything have had, or was likely to have had, the effect of disadvantaging the applicant in her employment, as provided for in s. 6(1)(c) of the DDA. Such issues were not pleaded in the FAA.
The applicant complied with directions given to her during the course of her employment, save in respect of her not agreeing to work in the reception area on 27 October 2017. The Court finds that:
a)During the time the applicant was a contractor to the respondent, and from September to late October 2017, the applicant did work in the reception area at the respondent’s premises without complaint.
b)Whilst the applicant was an employee, she did share the ACFI office with Ms Maduveko and Ms Lacey.
c)Of a Wednesday, the applicant did work in locations other than the ACFI office, including at spare desks in and around the facility as well as most often in the conference room.
It was the unacceptable manner in which the applicant interacted with her fellow employees, whilst she attended to and performed her employment tasks, which caused the respondent, through Ms Roach, to reasonably form the view that the applicant was not a good fit for permanent employment with the respondent.
To the extent that the applicant raised matters in her written outline filed on 6 November 2019 relating to alleged disadvantage suffered by her – as in paragraphs [42](f)–(i) thereof – such matters were not part of the terminated AHRC complaint, nor were they either pleaded, or the subject of evidence adduced at trial. They cannot therefore be taken into account as part of the applicant’s claims able to be considered by this Court. In any event, none of those matters had, or were likely to have had, the effect of disadvantaging the applicant because, as claimed by the applicant, she was able, during the whole of her employment, to fulfil tasks required of her at a high level. Such requirements or conditions as were applied to the applicant during the course of her employment were, pursuant to s. 6(3) of the DDA, reasonable in the light of the applicant’s demonstrated capacity to perform such work at a high level, and also because of the limited financial capacity of the respondent to otherwise accommodate the applicant as she might have wished.
The applicant’s claims made pursuant to s. 6(2) of the DDA claim fail.
Section 35 – Harassment Claims
Independently of this Court’s finding that there was no jurisdictional basis for the Court to entertain the applicant’s harassment claim, the Court finds that the applicant was at no time harassed during the course of her employment by Ms Maduveko, Ms Lacey, or anyone else employed by the respondent.
The Court accepts the evidence of Ms Maduveko and Ms Lacey that they were each afraid of the applicant because of her bullying and aggressive behaviour toward them.
The applicant had an assertive disposition and was blunt in her manner toward her fellow employees, including those holding superior positions to her. The Court accepts the evidence of each of Ms Maduveko and Ms Lacey on all questions relating to how the applicant harassed and bullied them.
The Court finds that whatever reaction each of Ms Maduveko and Ms Lacey made to the applicant’s conduct, such reaction was because of the natural offence that they felt as a result of the applicant’s conduct and manner, rather than because of any disability claimed to have been suffered by the applicant. In such circumstances, the Court finds that the applicant was not harassed within the meaning of s. 35 of the DDA.
The Law as to the Adverse Action Claims and FWA Discrimination Claim
The provisions of ss. 340, 341, 351 and 361 of the FWA are respectively as follows:
“Section 340 – Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4-1).
…
Section 341 – Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee – in relation to his or her employment.
Meaning of process or proceedings under a workplace law or workplace instrument
(2) Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a) a conference conducted or hearing held by the FWC;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f) appointing, or terminating the appointment of, a bargaining representative;
(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer’s leave;
(i) making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);
(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k) any other process or proceedings under a workplace law or workplace instrument.
Prospective employees taken to have workplace rights
(3) A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.
Note: Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.
Exceptions relating to prospective employees
(4) Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earning.
(5) Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2-8 or 6-3A (which deal with transfer of business).
…
Section 351 – Discrimination
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the particular position concerned; or
(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed – taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) Each of the following is an anti-discrimination law:
(aa) the Age Discrimination Act 2004;
(ab) the Disability Discrimination Act 1992;
(ac) the Racial Discrimination Act 1975;
(ad) the Sex Discrimination Act 1984;
(a) the Anti-Discrimination Act 1977 of New South Wales;
(b) the Equal Opportunity Act 2010 of Victoria;
(c) the Anti-Discrimination Act 1991 of Queensland;
(d) the Equal Opportunity Act 1984 of Western Australia;
(e) the Equal Opportunity Act 1984 of South Australia;
(f) the Anti-Discrimination Act 1998 of Tasmania;
(g) the Discrimination Act 1991 of the Australian Capital Territory;
(h) the Anti-Discrimination Act of the Northern Territory.
…
Section 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 that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.”
For the applicant’s adverse action claims to be proven, the applicant must have asserted, and established, that:
·she exercised a workplace right or rights as pleaded in her Further Amended Application;
·the conduct complained of in fact occurred; and
·the conduct constituted adverse action pursuant to the provisions of s. 342(1) of the FWA.
If it is established by the applicant that the impugned conduct was conduct which contravened provisions of the FWA, it is for the respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason. In that regard, ss. 360 and 361 of the FWA provided as follows:
“Section 360 – Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Section 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 that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.”
As to the proper approach to be adopted by a court when considering whether adverse action has been established or not, the Court adopts the principles as set out in the decision of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [5] per French CJ and Crennan J; at [104] and [129] per Gummow and Hayne JJ; and at [140] and [141] per Heydon J where it was respectively said:
“[5] The task of a court in a proceeding alleging a contravention of s 346 is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason. This appeal was concerned with identifying the correct approach to that task.” – at [5] per French CJ and Crennan J
“[104] In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised “a substantial and operative” reason, or reasons including the reason, for the employer’s action and that this action constitutes an “adverse action” within the meaning of s 342.” – at [104] per Gummow and Hayne JJ
“… The test is whether adverse action has been taken because of a proscribed reason.” – at [129] per Gummow and Hayne JJ;
“… Examining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action.” – at [140] per Heydon J;
“… The assessment of a witness’s mental processes is an assessment of that witness’s state of mind. It is pre-eminently a matter in which a trial judge has a considerable advantage over an appellant court…” – at [141] per Heydon J.
A causal link must be established between the adverse action the subject of complaint, and the matters referred to in s. 340(1)(a)(i) – (iii) inclusive of the FWA, due to the use of the word “because” in s. 340(1)(a) of the FWA. That issue was dealt with by Foster J in Russel v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 at [60] and [63] where His Honour said:
“[60] The provisions particularly relied upon by the applicant (ss 44, 97, 340, 341, 351 and 352 of the FWA) all use the expression “because” or “because of” as describing the necessary causal link between the adverse action and the relevant prohibited reason for that action.
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[63] It is not necessary for an applicant to establish that the only reason or the dominant reason that adverse action was taken was a prohibited reason. It is sufficient if the prohibited reason is one of several reasons for the taking of the action although it may be that the prohibited reason must have operated as a substantial and operative factor in the taking of the adverse action.”
On the issue of what evidence was needed to be canvassed in relation to the impugned action taken by an employer, it was said by French CJ and Crennan J in Barclay at [41], [44] and [45] as follows:
“[41] The question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act. These provisions must be construed together in accordance with the principles of statutory construction established by this Court, which must begin with a consideration of the text of the relevant provisions and may require consideration of the context including the general purpose and policy of the provisions.
…
[44] There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”
[45] This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.”
(Footnotes omitted) (Emphasis added)
On the question of onus, it was said by French CJ and Crennan J in Barclay at [50] as follows:
“[50] The following description of a legislative predecessor to s 361 given by Mason J in General Motors-Holden’s Pty Ltd v Bowling remains pertinent: “the plain purpose of the provision [is to throw] on to the defendant the onus of proving that which lies peculiarly within his own knowledge.”
(Footnotes omitted)
An employer’s onus may not be satisfied by a mere statement that the action taken by the employer was not for a proscribed reason. As was said by French CJ and Crennan J at [54] of Barclay:
“[54] … a question arose as to whether the director’s evidence was sufficient to satisfy the onus cast upon the employer. In deciding that the director’s evidence was sufficient, the majority in Pearce recognised that mere declarations of an innocent reason or intent in taking adverse action may not satisfy the onus on an employer if contrary inferences are available on the facts.”
(Emphasis added)
When deciding, for the purposes of s. 361 of the FWA, who the relevant decision-maker was, or upon whose advice or recommendation the decision-maker relevantly acted upon when taking any adverse action, White J in Tsilibanks v Transfield Services (Australia) Pty Ltd [2015] FCA 740 at [121] – [127] inclusive said:
[121] My conclusion that the applicant’s exercise of his workplace rights played no part in the decision of Mr De Angelis and the recommendation of Mr Kerswell is not conclusive of the applicant’s case with respect to the termination of his employment. Regard should also be had to the basis for the underlying recommendation on which they acted. If those making the recommendation to Mr De Angelis did so because of the making of the applicant’s First Complaint, Transfield would not discharge the s 361 onus. This is evidenced by the authorities.
[122] In Voigtsberger v Council of the Shire of Pine Rivers (No 2) (1981) 58 FLR 239, the finance committee of the respondent Council had recommended that the applicant’s position be abolished. The report of the finance committee was adopted later that same day by the full Council. Evatt J held at 256 that the decision of the finance committee was the critical decision in the case because the full Council had merely rubber stamped its recommendation. Accordingly, it was essential that the Court have evidence from the members of the finance committee so that it could determine whether a proscribed reason had been a substantial and operative factor influencing the decision of any individual councillor.
[123] Smithers J addressed the question of principle involved in Wood (on behalf of the Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1 at 19 in a context analogous to the present:
[19] In the task of ascertaining the mind of the defendant corporation, with respect to the standing down of Mr Kane, that mind may be located in the mind of one authorised officer or of more than one person exercising the executive power of the corporation. It is a pure question of fact where in particular circumstances that corporate mind may be located. In a case where two officers are concerned in the solution of an administrative problem and are working jointly to solve it and decide what the corporation is to do and are working in harmony and in full confidence, the one with the other, the mind of the corporation is to be found in the course of conduct agreed upon between them and the reasons which in the end are the operating reasons for the policy agreed upon.
However, as Smithers J went on to acknowledge, that does not preclude the possibility that one of the participants may have as his or her motive an undisclosed proscribed reason for joining in the decision.
[124] Gray J also noted the issue in Gibbs v Palmerston Town Council (unreported, 21 December 1987) at 84‑5 when he said:
[T]here is still a difficult question of the extent to which the improper purpose of one person may be a substantial operative factor in the decision of another. Clearly, if the actual decision maker simply “rubber stamps” a decision in fact made by another, the purpose of that other will be a substantial operative factor. At the other extreme, if the actual decision maker truly believes the false and innocent reasons advised by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person. The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority.
[125] Gray J reviewed and applied these authorities in National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 at [25]‑[29].
[126] Counsel for the applicant referred to Rowland v Alfred Health [2014] FCA 2. The decision in that case confirms that it is appropriate to have regard to the reasons actuating the members of a selection committee making a recommendation, and not just to the reasons of the ultimate decision maker.
[127] Accordingly, it is appropriate in the present case to have close regard to the reasons of those who made the recommendations to Mr De Angelis and Mr Kerswell. This includes their reasons for recommending the restructure which Transfield adopted as well as their reasons for selecting the applicant as a person to be made redundant in consequence of that restructure. The evidence of Mr Rynja and Mr Hall is particularly significant in this respect. Mr Handy did not contribute to the recommendation to Mr De Angelis, and Mr Vigus had only a limited role.”
It will always be a question of fact as to whether the proscribed reasons, as pleaded in a statement of claim as constituting the reason/reasons or motive for the taking of the adverse action, have been rebutted. Motive is a relevant consideration for the Court to take into account, when assessing the evidence before it, in that regard.
Whether or not a complaint or inquiry has been made by an employee in relation to his or her employment for the purposes of s. 341(1)(c)(ii) of the FWA is factual and is to be considered objectively.
The respondent conceded that the termination of the applicant’s employment on 28 December 2017 constituted adverse action under s. 342 of the FWA.
Even accepting that the applicant exercised, or proposed to exercise, a workplace right as provided for under s. 341 of the FWA, the Court finds that no claimed exercise or proposed exercise of any such right was the reason for the adverse action which was taken.
Ms Lee Roach was the authorised representative of the respondent who decided to terminate the applicant’s employment. As set out earlier in this judgment, Ms Roach’s evidence was relevantly unchallenged in cross-examination. The Court has accepted Ms Roach as a witness of truth. There was no reason to find that Ms Roach was other than credit worthy. She gave direct evidence as to why she terminated the applicant’s employment, and the Court has accepted that evidence. In those circumstances, the Court finds that the respondent has rebutted the presumption as provided for under s. 361(1) of the FWA.
The applicant’s termination of employment was not for a proscribed reason. The applicant was so combative and unnecessarily confrontational in her dealings with her fellow workmates, as well as with those in authority working at the respondent’s nursing home, that she was reasonably identified by Ms Roach as being a person whose conduct was likely to adversely impact upon the future operations of the respondent. She was subjectively, and reasonably, considered by Ms Roach to not be a “good fit”, personality wise, for continued employment by the respondent. The respondent’s termination of the applicant’s employment was justifiable on that basis alone.
Additionally, at the time of the applicant’s termination of employment, the applicant was only half way through a period of probation. Her period of employment had been tumultuous and confrontational. Ms Roach, at [77(e)] of her affidavit filed on 25 October 2018, clearly stated that she would not have confirmed the applicant’s employment even had she worked until the end of the probation period. Ms Roach was convincing in the evidence which she gave, and was not relevantly challenged on that aspect of the respondent’s case. The Court accepts her evidence without question.
The Court finds that the respondent did not take adverse action against the applicant based on any of the claims advanced by the applicant. The Court, in the light of its reliance upon the evidence of Ms Roach, is accordingly not required to traverse such claims.
FWA Discrimination Claim
For the same reasons as given in respect of the applicant’s DDA and FWA adverse action claims, the Court finds that the respondent did not discriminate against the applicant during the course of her employment with the respondent.
Further, the applicant’s discrimination claim made pursuant to s. 351 of the FWA is entirely lacking in particularity. In the absence of any particularisation, such claim must fail.
The absence of any established disability on the part of the applicant is a further basis for dismissal of the claim. The adverse action taken against the applicant had nothing to do with any disability, or any claimed disability, on the part of the applicant.
Common Law Claim
The applicant’s claim based on common law or equitable principles relating to her having a right to information, or a right to procedural fairness/natural justice is un-particularised. The contract of employment had no conditions, to either effect, which were binding upon the contracting parties. Such claims, in the absence of particularisation, were meaningless and must fail.
Conclusion
The applicant has failed in all of her statutory and other claims.
The applicant has consequently failed in her claims for compensation and for the imposition of pecuniary penalties.
The applicant’s further amended application filed on 11 July 2019 is dismissed.
I certify that the preceding one-hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 26 November 2020
[email protected] (email address of McTigue).
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