Anstey v Mambourin Enterprises Ltd

[2020] FCCA 461

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANSTEY v MAMBOURIN ENTERPRISES LTD [2020] FCCA 461

Catchwords:
INDUSTRIAL LAW – FAIR WORK – Adverse action – suspension – allegations of misconduct – allegations of poor performance – refusal to convert a casual position to a permanent position – dismissal.

INDUSTRIAL LAW – FAIR WORK – Alleged underpayments – failure to pay annual leave loading for two weeks annual leave given in addition to the Award requirement for four weeks annual leave – alleged failure to pay penalty rates for weekends – alleged failure to pay for time worked without meal breaks.

Legislation:
Fair Work Act 2009 (Cth), ss.45, 55, 87, 90(2), 340(1), 341(1), 342(1), 360, 361(1), 539, 544, 789FD
Judiciary Act 1903 (Cth), s.78B

Other material:
Social, Community, Home Care and Disability Services Industry Award 2010, cll. 10.5, 31, 31.1, 31.3(a)
Mambourin Enterprise Inc Disability Services Victoria (Part 1) Collective Agreement 2008, cll. 11.3, 20.2, 21.1.1

Cases cited:
Australian Liquor Hospitality & Miscellaneous Workers Union v Metropolitan Ambulance Service [2002] FCA 1321
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; (2012) 290 ALR 647; (2012) 86 ALRJ 1044; (2012) 220 IR 445; [2012] HCA 32
Inghams Enterprises Pty Limited [2012] FWA 8668
Klein v Metropolitan Fire and Emergency Services Board (2012) 208 FCR 178; [2012] FCA 1402
Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72
State of Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441; [2014] FCAFC 184

Applicant: JUDITH ANSTEY

Respondent: MAMBOURIN ENTERPRISES LTD
(ACN 159 527 036)

File number: MLG 3174 of 2018

Judgment of: Judge Riley

Hearing dates: 2 and 3 December 2019

Date of last submission: 4 December 2019

Delivered at: Melbourne

Delivered on: 4 March 2020

REPRESENTATION

Counsel for the applicant: Sarala Fitzgerald

Solicitors for the applicant: McDonald Murholme

Counsel for the respondent: Nicholas Harrington

Solicitors for the respondent: K&L Gates

DECLARATION

1. The respondent breached s.45 of the Fair Work Act 2009 by breaching cl.31.3(a) of the Social, Community, Home Care and Disability Services Industry Award 2010 by failing to pay the applicant an annual leave loading of 17.5% on her pay for two weeks of annual leave each year that were additional to her standard four weeks and that were taken or accrued on or after 23 October 2012.

ORDER

1. The respondent pay the applicant annual leave loading of 17.5% on her pay for two weeks of annual leave each year that were additional to her standard four weeks and that were taken or accrued on or after 23 October 2012.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3174 of 2018

JUDITH ANSTEY

Applicant

And

MAMBOURIN ENTERPRISES LTD (ACN 159 527 036)

Respondent

REASONS FOR JUDGMENT

Introduction

1. In this proceeding, the applicant (“Ms Anstey”) claimed in her Form 2 dated 23 October 2018 that:

   a.the respondent, Mambourin Enterprises Ltd (“Mambourin”), took adverse action against her for prohibited reasons in breach of the Fair Work Act 2009 (“the Act”) in that:

   i)Mambourin issued a directive that drivers were now at the bottom of the casual list (“the directive claim”);

   ii)Ms Anstey’s casual shifts significantly decreased in 2018 relative to 2016 (“the work reduction claim”);

   iii)Ms Anstey was suspended on 15 March 2018 pending investigation into a driving incident on 10 February 2018 (“the suspension claim”);

   iv)Mambourin alleged on 15 March 2018 that Ms Anstey had engaged in serious misconduct by failing to report a bus accident for which she was responsible (“the misconduct allegation”);

   v)Mambourin alleged on 19 March 2018 that Ms Anstey had previous poor performance (“the poor performance allegations”);

   vi)on 19 March 2018, Mambourin refused to convert Ms Anstey’s casual position into a permanent position (“the refusal to convert into a permanent position claim”); and

   vii)on 16 August 2018, Mambourin dismissed Ms Anstey allegedly on the grounds of serious misconduct (“the dismissal claim”); and

   b.Mambourin breached the Social, Community, Home Care and Disability Services Industry Award 2010 (“the Award”) by failing to pay Ms Anstey annual leave loading on her pay for her two weeks of annual leave that were additional to her standard four weeks; and

   c.Mambourin breached the Mambourin Enterprise Inc Disability Services Victoria (Part 1) Collective Agreement 2008 (“the Agreement”) in that Mambourin:

   i)failed to give Ms Anstey meal breaks when she was working as a casual instructor; and

   ii)failed to pay Ms Anstey weekend rates.

2. In her outline of submissions filed on 6 November 2019, Ms Anstey said in paragraph 36 that she no longer pressed the directive claim or the work reduction claim, but that she did press the other five adverse action claims.

3. Mambourin, in its written closing submissions filed on 4 December 2019 at paragraph 13, said that the applicant only pressed the suspension claim, and the dismissal claim, and that the dismissal claim was put on the alternative bases of being motivated by Ms Anstey’s complaints and by her temporary absence from work. However, I have been unable to find anywhere, in the filed material or in the transcript, where Ms Anstey abandoned her other adverse action claims. Therefore, it is necessary for the court to deal with the five adverse action claims that were not expressly withdrawn.

4. Also, in her outline of submissions filed on 6 November 2019, Ms Anstey said in paragraphs 62 and 63 that, in addition to the breaches mentioned above:

   a.Mambourin breached the Award by failing to pay Ms Anstey the minimum hourly rate as defined in clause 15.2 of the Award; and

   b.Mambourin breached the Agreement by failing to pay Ms Anstey the minimum base hourly rate as defined by cl.15.1.1 of the Agreement.

5. However, in her amended Form 2 dated 29 November 2019, Ms Anstey formally withdrew her claim about failure to pay the minimum hourly rate under the Award. (See paragraph 50, which was crossed out.) In the amended Form 2, there was no claim regarding failure to pay the minimum hourly rate under the Agreement. I assume it was abandoned.

6. In addition, in her closing oral submissions, Ms Anstey indicated that she had conceded the meal break point factually, but did not formally abandon it.

Mambourin

1. Rohan Braddy was the Chief Executive Officer of Mambourin. Mr Braddy described Mambourin in paragraphs 5 to 8 of his affidavit sworn on 8 August 2019 as follows:

   5.Mambourin is an organisation engaged in the business of providing support and training to people with disabilities.

   6.It is funded by the Victorian Government through the the (sic) Department of Health and Human Services and the Education Department. It is also funded by the Commonwealth Government through the Departments of Social Services and Health, and the NDIS.

   7.It has ten campuses. Those campuses perform the following functions:

   (i)facilitating community and social participation for persons with a disability;

   (ii)providing supported employment for persons with a disability in commercial/business settings

   (iii)providing traineeships for persons with a disability in commercial/business settings.

   8.It employs 294 people.

Ms Anstey

1. Ms Anstey commenced employment with Mambourin on 1 February 2008 as a part time driver. As such, her role required her to drive a bus, transporting disabled people between their homes and their activities. The bus had 20 seats.

2. In 2014, Ms Anstey commenced work with Mambourin as a casual facilitator/instructor, in addition to her work as a part-time bus driver.

3. On 16 August 2018, Mambourin dismissed Ms Anstey from her employment. The reasons given were that Ms Anstey had failed to report a bus accident and later lied about it. 

Agreements

1. The parties agreed, after some dispute, that, when Ms Anstey was working as a bus driver, she was covered by the Social, Community, Home Care and Disability Services Industry Award 2010, and when she was working as an instructor/facilitator, she was covered by the Mambourin Enterprise Inc Disability Services Victoria (Part 1) Collective Agreement 2008.

Background

1. Ms Anstey described the background to this matter in her outline of submissions filed on 6 November 2019. Mambourin disputed many of Ms Anstey’s assertions in her outline of opening submissions. In any event, Ms Anstey’s version of events is as follows:

   1.On 1 February 2008 the Applicant commenced employment with the Respondent in the permanent part-time role of Driver, pursuant to a written contract of employment.[1]

   [1] Form 2 [1]; Affidavit of Judith Anstey sworn date 1 May 2019 [3].

   2.The Applicant’s employment in the part-time role of Driver was covered by the Social, Community, Home Care and Disability Services Industry Award 2010 (Award).

   3.The Applicant performed Driver shifts from 7am to 9am and 3pm to 5pm between Monday and Friday in accordance with school terms. That is, periods of approximately three to four months[2]. During term breaks, the Applicant took accrued annual leave.[3] Under the Award the Applicant was entitled to receive annual leave in addition to her ordinary rate of pay, which she did not always receive.[4]

   [2] Form 2 [3] and [5]; Defence [5(a)]; Affidavit of Judith Anstey sworn date 1 May 2019 [8] and [18].

   [3] Form 2 [5]; Defence [5(e)]; Affidavit of Judith Anstey sworn date 1 May 2019 [8];.

   [4] Form 2 [5]-[6]; Affidavit of Judith Anstey sworn date 1 May 2019 [20].

   4.In 2014 the Applicant commenced casual work with the Respondent in the role of Instructor/Facilitator.[5] The Applicant concedes that her employment in the role of Instructor was covered by the Mambourin Enterprises Inc Disability Services Victoria (Part 1) Collective Agreement 2008 (Agreement).[6]

   [5] Form 2 [8]; Affidavit of Judith Anstey sworn date 1 May 2019 [25]-[27].

   [6] Defence [9(d)(ii)].

   5.Instructor shifts commenced at 9am and finished at 3pm. During these shifts, the Applicant was not provided with a meal break nor was she paid for time worked, which she was entitled to under the Agreement.[7]

   [7] Form 2 [9]; Affidavit of Judith Anstey sworn date 1 May 2019 [35].

   6.From 2014 the Applicant also performed additional Instructor shifts on weekends as part of the Respondent’s Weekends at Mambourin program.[8] She did not receive an increased rate of pay for these shifts or scheduled meal breaks as entitled under the Agreement.[9]

   [8] Form 2 [10]; Defence [10(c)]; Affidavit of Judith Anstey sworn date 1 May 2019 [36].

   [9] Form 2 [10]; Affidavit of Judith Anstey sworn date 1 May 2019 [36]-[39].

   7.At the time of her dismissal the Applicant received remuneration of $21.40 per hour in the role of Driver and $32.60 per hour in the role of Instructor.[10]

   [10] Form 2 [11].

   8.In 2016 the Applicant began working from the Sunshine site.[11]

   [11] Form 2 [12]; Affidavit of Judith Anstey sworn date 1 May 2019 [46].

   9.From 2017 the Applicant was regularly assigned to Wednesday music program in addition to the Monday garden program Instructor shifts.[12]

   [12] Form 2 [14]; Affidavit of Judith Anstey sworn date 1 May 2019 [57].

   10.On 15 January 2018 the Applicant asked Raelene Cornell (Ms Cornell) – Team Leader, whether she was rostered to work her usual gardening shift, Ms Cornell replied that someone else had been given her shift. Ms Cornell explained, ‘Sorry, we have a directive from head office that Drivers are now at the bottom of the casual list’.[13]

   [13] Form 2 [17]; Affidavit of Judith Anstey sworn date 1 May 2019 [61].

   11.The Applicant then telephoned Cassandra Smith (Ms Smith) – People and Culture General Manager, who denied any knowledge about the directive.[14]

   [14] Form 2 [18]; Affidavit of Judith Anstey sworn date 1 May 2019 [63].

   12.On 16 January 2018 the Applicant attended a meeting with Mahal Lazaro (Mr Lazaro) – Sunshine Site Manager, who also denied knowing about the directive and explained that he had directed Olivier Mynyangeyo – Facilitator, to run the Monday gardening program, and hired Lester Pacuan (Mr Pacuan) – Facilitator, to run the Wednesday music program. The Applicant complained that the Respondent was operating ‘a boys club’ (First Employment Complaint).[15]

   [15] Form 2 [19]; Affidavit of Judith Anstey sworn date 1 May 2019 [65].

   13.In or around late January 2018 the Applicant discovered that Mr Pacuan is Mr Lazaro’s brother-in-law. She reported this to Ms Cornell, who confirmed this with Mr Lazaro.[16]

   [16] Form 2 [21]; Affidavit of Judith Anstey sworn date 1 May 2019 [69].

   14.On 5 February 2018 the Applicant wrote a formal complaint to Ms Smith regarding the Instructor selection process (Second Employment Complaint).[17]

   [17] Form 2 [22]; Affidavit of Judith Anstey sworn date 1 May 2019 [22].

   15.On 10 February 2018 at approximately 9.30pm the Applicant was parking the Respondent’s bus when she suspected that she may have come into contact with a parked vehicle. The Applicant inspected the bus and vehicle and did not see damage to either. The Applicant telephoned Lea Wright – Senior Instructor who confirmed that the incident did not need to be reported to the Respondent due to the lack of damage (Driving Incident).[18]

   [18] Form 2 [23]; Affidavit of Judith Anstey sworn date 1 May 2019 [73]-[74].

   16.On or around 5 March 2018 the Applicant attended a meeting with Rohan Braddy (Mr Braddy) – CEO. The Applicant inquired about whether there were any performance issues which had caused her reduction of Instructor shifts and about the Respondent’s position on nepotism. She also inquired whether she was eligible for a permanent Instructor position given her consistent shift pattern. Mr Braddy expressed, ‘I’m not sure you’re going to like what I come back with’. The Applicant also provided him with a copy of her formal complaint dated 5 February 2018 (Third Employment Complaint).[19]

   [19] Form 2 [24]; Affidavit of Judith Anstey sworn date 1 May 2019 [77].

   17.On 13 March 2018 Ms Cornell telephoned the Applicant outside of work hours and inquired [of] her about the damage to the Respondent’s bus. The Applicant was out with friends and could not hear what Ms Cornell was saying. The Applicant eventually ended the call.[20]

   18.Approximately 30 minutes later the Applicant called Ms Cornell back and provided details about the Driving Incident. Ms Cornell advised the Applicant that she had already submitted an incident report to Ms Smith. Ms Cornell asked the Applicant whether she had submitted an accident report. The Applicant replied that she had not but would do so the next day.[21]

   19.On 14 March 2018 Ms Cornell advised the Applicant that it was too late for the Applicant to submit an accident report.[22]

   20.On 15 March 2018 Ms Smith notified the Applicant that she was suspended effective immediately pending an investigation into the Driving Incident (Suspension).[23]

   21.On 19 March 2018 Mr Braddy sent the Applicant a letter outlining allegations of poor performance against the Applicant, which was the basis for the reduction in her Instructor shifts (Poor Performance Allegations). These issues had never been raised with the Applicant prior. The letter confirmed that the Applicant’s role as casual Instructor would not be converted to a permanent position (Refusal to Convert to Permanent Position).[24]

   22.On 19 March 2018 Scott Widdicombe (Mr Widdicombe), the owner of the other vehicle in the Driving Incident, sent Mr Lazarus and the applicant an email attaching a letter confirming that no damage had been done to his vehicle on 10 February 2018.[25]

   23.On 20 March 2018 the Applicant attended a disciplinary meeting with Ms Smith in regards to her alleged failure to report the Driving Incident to the Respondent (Misconduct Allegation). The Applicant explained that she had not been certain that she had even hit another vehicle and she did not report the matter on the advice of a Senior Instructor. She did not leave a note on the other vehicle as she did not see any damage. She provided a copy of Mr Widdicombe’s letter to Ms Smith.[26]

   24.On 20 March 2018 the Applicant commenced personal leave pursuant to medical certificates that were provided to the Respondent.[27]

   25.On 13 August 2018 Ms Smith asked the Applicant to attend a meeting on 16 August 2018 to resolve the March 2018 Misconduct Allegation and as she had exhausted her accrued personal leave.[28]

   26.On 16 August 2018 Ms Smith sent the Applicant an email confirming the cessation of her employment with the Respondent for serious misconduct (Dismissal).[29]

   [20] Form 2 [26]; Affidavit of Judith Anstey sworn date 1 May 2019 [80].

   [21] Form 2 [27]; Affidavit of Judith Anstey sworn date 1 May 2019 [81].

   [22] Form 2 [28]; Affidavit of Judith Anstey sworn date 1 May 2019 [82].

   [23] Form 2 [29]; Affidavit of Judith Anstey sworn date 1 May 2019 [83].

   [24] Form 2 [30]; Affidavit of Judith Anstey sworn date 1 May 2019 [89].

   [25] Form 2 [31]; Affidavit of Judith Anstey sworn date 1 May 2019 [88] and [90].

   [26] Form 2 [32]; Affidavit of Judith Anstey sworn date 1 May 2019 [91].

   [27] Form 2 [33]; Affidavit of Judith Anstey sworn date 1 May 2019 [93].

   [28] Form 2 [35]; Affidavit of Judith Anstey sworn date 1 May 2019 [107].

   [29] Form 2 [37]; Affidavit of Judith Anstey sworn date 1 May 2019 [115].

Adverse action legislation

1. Subsection 340(1) of the Act provided as follows:

   Protection

   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.

2. Subsection 341(1) of the Act provided as follows:

   Meaning of workplace right

   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.

3. Subsection 342(1) of the Act provided as follows:

   Meaning of adverse action

   The following table sets out circumstances in which a person takes adverse action against another person.

Meaning of adverse action
Item	Column 1 Adverse action is taken by ...	Column 2 if ...
1	an employer against an employee	the employer: (a)  dismisses the employee; or
(b)  injures the employee in his or her employment; or (c)  alters the position of the employee to the employee’s prejudice; or (d)  discriminates between the employee and other employees of the employer.

1. Section 360 of the Act provided as follows:

   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.

2. Subsection 361(1) of the Act provided as follows:

   Reason for action to be presumed unless proved otherwise

   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.

Authorities

1. The leading case on adverse action is Board ofBendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; (2012) 290 ALR 647; (2012) 86 ALJR 1044; (2012) 220 IR 445; [2012] HCA 32. In that case, French CJ and Crennan J said:

   42.Determining why a defendant employer took adverse action against an employee involves consideration of the decision-maker's “particular reason” for taking adverse action (s 361(1)), and consideration of the employee's position as an officer or member of an industrial association and engagement in industrial activity (union position and activity) at the time the adverse action was taken (ss 342, 346(a), 346(b), 347 and 361(1)).

   43.Clearly a defendant employer interested in rebutting the statutory presumption in s 361 can be expected to rely in its defence on direct testimony of the decision-maker's reason for taking the adverse action. The majority in the Full Court correctly rejected an argument put by the respondents that the introduction of the statutory expression “because” into a legislative predecessor to s 346http:// - , in place of the previous statutory expression "by reason of", rendered irrelevant the state of mind of the decision-maker.

   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.

   (citations omitted)

2. Also in Barclay, Gummow and Hayne JJ said at [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 [or other protected 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.

3. Significantly, s.361 of the Act creates a statutory presumption that adverse action was taken for a prohibited reason, but that presumption may be rebutted by evidence. Also significantly, s.360 of the Act recognises that there may be multiple reasons for a particular action. It is sufficient for an applicant to establish that any one of the reasons for the adverse action was a prohibited reason, provided that it was a substantial and operative reason.

4. In Barclay, French CJ and Crennan JJ also said.

   61.Central to the respondents’ argument on this appeal was the contrary and incorrect view that Mr Barclay’s status as an officer of an industrial association engaged in lawful industrial activity at the time that Dr Harvey took adverse action against him meant that Mr Barclay’s union position and activities were inextricably entwined with the adverse action, and that Mr Barclay was therefore immune, and protected, from the adverse action. If accepted, such a position would destroy the balance between employers and employees central to the operation of s 361, a balance which parliament has chosen to maintain irrespective of the fact that the protection in s 346(b) has a shorter history than the protection in s 346(a). That balance, once the reflex of criminal sanctions in the legislation, now reflects the serious nature of the civil penalty regime. Speaking more generally, that balance is a specific example of the balance of which Alfred Deakin spoke as being necessary for an effective conciliation and arbitration system.

   62.Secondly, it is a related error to treat an employee’s union position and activity as necessarily being a factor which must have something to do with adverse action, or which can never be dissociated from adverse action. It is a misunderstanding of, and contrary to, Bowling to require that the establishment of the reason for adverse action must be entirely dissociated from an employee’s union position or activities. Such reasoning effectively institutes an interpretation of the relevant provisions indistinguishable from that of Isaacs J in Pearce, which was rejected in Bowling. The onus of proving that an employee’s union position and activity was not an operative factor in taking adverse action is to be discharged on the balance of probabilities in the light of all the established evidence.

5. In State of Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441; [2014] FCAFC 184, Tracey and Buchanan JJ said that:

   48.A reading of the relevant passages in the joint judgments of French CJ and Kiefel J in CFMEU and of French CJ and Crennan J in Barclay does not support this contention. What was said in those judgments was that it will normally be necessary for direct evidence to be called from the decision-maker if an employer is to satisfy the onus imposed by s 361 of the Fair Work Act. If that evidence is called and it is accepted the onus will have been discharged. The Court is not, however, bound to accept the evidence and may consider it to 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”: Barclay at [45]; cf CFMEU at [8].

   49.In contrast, Crennan J, in CFMEU, contemplates circumstances in which the decision-maker has given an “honest and credible” exculpatory explanation for making the decision. Despite this the Court, after weighing all the evidence, for some reason, may remain unsatisfied that the employer had discharged the statutory onus. It is, with respect, difficult to conceive of circumstances in which the decision-maker is believed when he or she denies having acted for a prohibited reason and yet that evidence is somehow undermined by other evidence to the point where it will not be acted upon. That other evidence would, presumably, have to have called the decision-maker’s credibility into question or have led, contrary to the unanimous view in Barclay, to the conclusion that the decision-maker had subconsciously taken into account a proscribed reason.

   50.In the present proceeding the trial judge did not point to any material internal conflict in Mr Hyland’s evidence relating to his reasons for taking adverse action against Mr Grant. There was, for example, no documentary evidence which was at odds with Mr Hyland’s stated reasons. There was no suggestion of any prior dealings between Mr Hyland and Mr Grant which might have influenced Mr Hyland’s decision. Mr Hyland’s denial that Mr Grant’s medical condition played any part in his decision was not accepted by the primary judge for the sole reason that it must have been “entirely clear” to Mr Hyland that Mr Grant’s “conduct arose from or at the very least [was] in part caused by” Mr Grant’s ill health.  Mr Grant’s ill health was known to Mr Hyland and, as an intelligent man, Mr Hyland must, according to his Honour, have appreciated the link between the medical condition and the misconduct.

   51.For the reasons which we have given the evidence does not support his Honour’s reasoning. Nor was there any evidence to support his Honour’s unqualified finding that Mr Grant’s “conduct arose wholly out of his medical condition …”. (Emphasis added).

   52.We would add that we do not accept his Honour’s conclusion that Mr Grant’s misconduct “was completely interwoven with his medical condition” and the related finding that the misconduct and the ill health could not “be disaggregated” as Mr Hyland was said to have done.

   53.Such a finding was not open either on the evidence or consistently with the High Court’s reasoning in Barclay and CFMEU.

   54.In Barclay the complainant was a union official employed by the Bendigo Institute. He was suspended after he had circulated an e-mail to other union members alleging that some of the Institute’s officers had acted fraudulently in preparing documentation for a forthcoming audit. The employee alleged that he had been suspended for a number of proscribed reasons. They were that he was an officer of the union and that he had engaged in industrial activity. The High Court rejected this argument. French CJ and Crennan J said (at 523) that:

   “Central to the [employee’s] argument on this appeal was the contrary and incorrect view that [the employee’s] status as an officer of an industrial association engaged in lawful industrial activity at the time that Dr Harvey took adverse action against him meant that [the employee’s] union position and activities were inextricably entwined with the adverse action, and that Mr Barclay was therefore immune, and protected, from the adverse action. If accepted, such a position would destroy the balance between employers and employees central to the operation of s 361 …”.

   See also CFMEU at [20] (French CJ and Kiefel J).

   55.In CFMEU the complainant was a member of a union picket line which had been formed in the course of an industrial dispute. He held up a placard which had emblazoned on it pejorative comments directed to other workers who were passing through the picket line and going to work. Despite the fact that he was engaged in industrial action at the time his employer was found not to have contravened the Fair Work Act because the decision-maker was believed when he gave evidence that he had terminated the complainant’s employment because the employee had breached the company’s workplace conduct policy by failing to accord courtesy and respect to fellow employees and for no other reason.

6. In Grant, White J said that:

   73.… the circumstance that Mr Hyland knew of the appellant’s health condition did not, by itself, mean that his evidence as to the reasons for the termination was unreliable. It is commonly the case that a decision-maker knows of a circumstance which, if relied upon, would constitute action for a prohibited reason. The question is whether, in addition to knowing of the circumstance, the decision-maker has taken the action in question because of it. I observe that in each of Barclay and CFMEU v BHP Coal, the relevant decision-maker knew of the role of the dismissed employee in his union and knew that there was a relationship between that role and the activity which the decision-maker considered constituted misconduct. The circumstance that the decision-makers had that knowledge was not, by itself, sufficient to prevent the s 361 onus being discharged. Accordingly, a decision-maker’s knowledge of a circumstance or condition referred to in s 351(1) is a necessary, but not a sufficient, condition for a finding that action was taken for a prohibited reason.

   …

   77.… accepting for the moment that there was a causal relationship between Mr Grant’s conduct and his health condition, or that the two were “completely interwoven”, it did not mean that Mr Hyland’s evidence that it was the effect, and not the cause, which was the reason for the dismissal could not be accepted, nor did it mean that Mr Hyland must necessarily have made his decision for a prohibited reason. Again, reference to the circumstances considered in Barclay and in CFMEU v BHP Coal is instructive. It was claimed in each of those cases that the dismissed employee engaged in the impugned activity because of his role in his Union and as part of industrial activity and that the two could not be separated. This argument was rejected by French CJ and Crennan J in Barclay [at [61] and [62]] …

   78.Accordingly, the existence of a close relationship between the adverse action and a prohibited reason does not mean that the two cannot be disaggregated. The Circuit Court Judge does not appear to have considered this circumstance.

7. Injury in employment, and how it differs from alteration of an employee’s position to his or her prejudice, was explained by Gordon J, sitting in the Federal Court, in Klein v Metropolitan Fire and Emergency Services Board (2012) 208 FCR 178; [2012] FCA 1402 at [84] as follows:

   It was common ground that:

   1.the phrase “injures the employee in his or her employment” in Item 1(b) of s 342(1) of the FW Act extends to injury of any compensable kind, a legal injury, or an adverse effect on an existing legal right: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at [4]; Australian and International Pilots Association v Qantas Airways Ltd (2006) 160 IR 1 at [13]-[14] and Unsworth v Tristar Steering and Suspension Australia Limited (2008) 175 IR 320 at [25];

   2.the phrase “alters the position of the employee to the employee’s prejudice”, in Item 1(c) of s 342(1) of the FW Act, is a broad additional category of adverse action which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question; and

   3.a prejudicial alteration to the position of an employee for the purposes of Item 1(c) of s 342(1) of the FW Act, may occur even though the employee suffers no loss or infringement of a legal right; it will occur if the alteration in the employee’s position is real and substantial rather than merely possible or hypothetical: Patrick Stevedores at [4]; Australian and International Pilots Association v Qantas Airways Ltd at [15] and Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244 at [30]-[32].

The bus accident

1. Ms Anstey described the circumstances of the bus accident in paragraphs 73 and 74 of her affidavit sworn on 1 May 2019 as follows:

   73.At around 9:30pm on Saturday 10 February 2018 I was driving participants home in a Mambourin bus after a WAM respite shift. It was very dark at the time and difficult to see and manoeuvre the bus. I was therefore travelling very slowly. When outside a participant’s home I felt that I may have accidently come into contact with a parked vehicle. This was the first time in my 55 year driving history that I had any kind of driving incident. I then got out of the bus, inspected the bus and the parked vehicle close by. I did not see any visible damage to either the vehicle or the bus. Although I noticed several light marks on the bus, I thought that these could have accumulated from other Drivers. The bus had been parked in a public car park for approximately four hours that day. I was therefore confident that the light marks had not been caused by me. I remained unsure as to whether I actually had come into contact with the parked vehicle at all.

   74.I then called Ms Lea Wright (Ms Wright) – Senior Facilitator, and explained what had happened. Ms Wright worked full time in her role as Senior Facilitator and had worked with me on the WAM shift that day. I reported I could not see any damage to the bus except for a light scratch that could have been obtained at another time and there was no visible damage to the other vehicle. Due to my lack of experience with motor vehicle accidents, I was not certain whether I was required to inform the owner of the other vehicle if there was no discernible damage. Ms Wright stated that as there was no discernible damage, I probably had not caused any damage to either vehicle. She therefore stated that the incident did not need to be reported. I followed Ms Wright’s instructions as she was my lead Facilitator and I had no reason to question her instructions. I also had two participants waiting in the bus; it was late and I was anxious to get them home safely. I therefore did not report the driving incident to Ms Cornell or leave my details on the parked vehicle.

2. At paragraph 15 of her outline of submissions dated 6 November 2019, Ms Anstey said the following about the accident:

   On 10 February 2018 at approximately 9.30pm the Applicant was parking the Respondent’s bus when she suspected that she may have come into contact with a parked vehicle. The Applicant inspected the bus and vehicle and did not see damage to either. The Applicant telephoned Lea Wright – Senior Instructor who confirmed that the incident did not need to be reported to the Respondent due to the lack of damage (Driving Incident).18

   18 Form 2 [23]; Affidavit of Judith Anstey sworn date 1 May 2019 [73]-[74].

3. Neither party called Ms Wright to give evidence. There was some dispute about whether Ms Anstey had actually telephoned Ms Wright. But whether Ms Anstey did or did not telephone Ms Wright is largely irrelevant, because Ms Wright’s alleged advice was to the effect that, if there was no discernible damage, there was no need to report the event. As discussed below, there was discernible damage to the bus.

4. At the commencement of the trial, Ms Anstey’s position was that she had not caused any visible damage to the bus or any other vehicle. She said that the bus had some light marks on it, which may have been pre-existing and caused by other drivers.  Therefore, she said, there was no damage that she was required to report. She did not report to Mambourin or the police any damage to either the bus or the other vehicle, and she did not leave a note on the other vehicle regarding what had happened, and with her name and contact details.

5. However, exhibit 7, which was tendered after Ms Anstey had given oral evidence, is a bundle of photographs of the bus. They show a substantial scrape on the passenger side of the bus running from the tail light to the centre of the back wheel. The scrape is about 30cms high and about 80cms long. It is very visible in the photographs. It is hard to believe that the other vehicle involved would not have had some damage. The bus itself had significant and readily visible damage.

6. In cross-examination, it was put to Ms Anstey that she had formed the view on the night of 10 February 2018 that she had collided with something while driving the bus. Ms Anstey said that:

   Well, I heard a scrunching.  It could have even been a can.

7. It was put to her that she did not rule out at the time of the accident that she had made contact with a vehicle. She said that:

   I didn’t know whether I did or I didn’t. … I couldn’t be exact.  …

   I was absolutely able to ascertain that the other vehicle never had anything on it.  You couldn’t ascertain whether … my vehicle had anything on it because there were numerous marks all over it that had never, ever been fixed up anyway.

8. Ms Anstey conceded that, at the time of the accident, enough had happened that she felt the need to inspect both the bus and a nearby vehicle, which she said was a four wheel drive.

9. Ms Anstey said that, when the accident happened:

   a.she was in a residential street which had a number of parked cars in it;

   b.she needed to get into a position where she could see the client, Nick, go into his house;

   c.she pulled up next to a row of parked cars;

   d.there was a space between two of them;

   e.she attempted to do a parallel park by reversing into the space;

   f.she did not go the whole way into the space, because she knew the whole bus would not fit;

   g.she heard the scrunching noise as she reversed;

   h.the bus and the four wheel drive, which she inspected for damage, are both white;

   i.the four wheel drive was the car at the back of the space between the parked cars.1

   1 This was apparent from the demonstration Ms Anstey provided in the witness box, using the Bible, the Koran and a tissue box to represent the vehicles.

1. The court put to Ms Anstey that, as she attempted to reverse parallel park, if she had scraped a car with the rear passenger side of the bus, it would have been the car in front of the space, not the four wheel drive at the back of the space, that her bus connected with. Ms Anstey said, unresponsively, that she never drove forwards into a parallel park, and there was lots of pre-existing damage on the front of the bus.

2. Whether the bus connected with the car in front or the car behind is significant because Ms Anstey produced a letter from Scott Widdicombe, who she said was the driver of the four wheel drive, to say his car was undamaged (CB109). However, that is entirely irrelevant, because the four wheel drive was behind the space that Ms Anstey was trying to reverse into.  For what it is worth, the letter from Scott Widdicombe was dated 19 March 2019 and said:

   Dear Mahal,

   I wish to confirm with you that as per my phone conversation with yourself that there was no damage to my vehicle that was involved in an incident with one of your buses. In fact there was no obvious indication that my vehicle had been hit at all.

   It was only when I was approached by Judy to inform me that she had made contact with my vehicle that I became aware that an incident had occurred at all. This prompted me to check my vehicle over and I still was unable to determine that it was even involved in an incident.

   In fairness to Judy she would have been unable to determine who the vehicles (sic) owner was or it (sic) owner’s address, as I had only just acquired it to use temporarily, it was parked across the road and also up the street from my residence. It was only by chance that a fellow colleague driving the exact same vehicle pulled up in front of my house at the same time Judy was there trying to determine who/where the owner of the vehicle lived.

   I can assure you that I have no intention of making any claim for damages, due to the fact that there was none, and that I bear no hard feelings toward your organisation or its employees.

3. Ms Anstey agreed in cross-examination that Ms Cornell was her team leader, but that she did not report the incident to her either on the Saturday night or on the following Monday. Ms Anstey did not attempt to report the accident until 14 March 2018, after Mambourin was already aware of the damage.

Job description and procedure manual

1. In cross-examination, Ms Anstey was asked about her job description (CB370). It provided that Ms Anstey’s specific accountabilities included:

   To operate any Mambourin vehicle in a safe and effective manner in order to minimise risk or injury or property / vehicle damage.

   …

   Immediately report to your Manager and document any damage or defect to vehicles as per Mambourin procedures.

   …

   Report all accidents and any damage, no matter how minor, to your Supervisor and complete the appropriate documentation as required by Mambourin procedures.

2. Ms Anstey agreed in cross-examination that the document at CB370 was her job description, and that she had understood it and had signed it early in her employment with Mambourin. She said in oral evidence that she understood that her job description required her to report all accidents and any damage, no matter how minor, to her supervisor. 

3. Ms Anstey agreed in cross-examination that, at the time of the accident, she was aware of the requirement in clause 2.1.6 of the Mambourin Business Manual Procedure - Transport (exhibit 3) (“the manual”) that:

   Staff members must inform the manager of all traffic infringements or accidents incurred while driving a Mambourin vehicle or transporting the people we support.

4. Ms Anstey also agreed in cross-examination that, at the time of the accident, she was aware of the requirement in clause 2.6.4 of the manual that:

   In the event of an accident, the Emergency Procedure should be followed and the Accident Report Forms must be completed. Copies of these forms should be kept in each vehicle.

5. Clause 2.7.1 of the manual was drawn to Ms Anstey’s attention.  It stated:

   Any damage/problems with the vehicle are to be reported to the site manager as soon as possible…

Cross-examination on obligation to report

1. In relation to clause 2.7.1 of the manual, Ms Anstey said that she always reported any problems. 

2. After being reminded of the requirements set out above in her job description, Ms Anstey explained in cross-examination that:

   If you have an accident, that’s when you report. If you don’t have an accident, then you don’t need to report.2

   2 Tr. p.39.

3. When asked whether, if she thought that she might have caused some damage, the prudent course would have been to report it, Ms Anstey said:

   That’s if you did come in contact and if you actually could see some damage on your bus. Yes.  That would be correct.

4. When reminded that she was required to report any damage, Ms Anstey said that:

   There was a lot of damage on the bus always.  …

   If I didn’t think I caused it, I wouldn’t have to report it.

5. When asked again whether it would have been prudent to report any damage, even if she was uncertain whether she had caused it, Ms Anstey said:

   Well, only if you could see the damage and you thought you had done it, yes.

6. Ms Anstey also agreed in cross examination that her job description required her to:

   [Have] [d]emonstrated integrity, self-discipline and professionalism.

   Be honest and trustworthy.

   Have sound work ethics.

Failure to report

1. As mentioned above, the accident occurred at around 9:30pm on Saturday 10 February 2018. It may be accepted that it was dark at that time, and Ms Anstey did not see any damage on the Saturday night.  However, she drove the bus during daylight hours on Monday 12 February 2018 and following.  The damage would have been clearly visible then. Ms Anstey did not report it on Monday 12 February 2018 or ever to her team leader, Ms Cornell, or any of her other supervisors. As discussed above, Ms Anstey’s alleged report to Ms Wright is irrelevant, because Ms Wright was not her supervisor, and, at best, Ms Anstey told Ms Wright that there was no damage to the bus when obviously there was.

2. Ms Anstey maintained that Mambourin formally required drivers to do a bus check every day. However, she said that, in reality, Mambourin did not provide the appropriate paperwork for the daily bus checks, even though she asked for the forms repeatedly. Ms Anstey maintained in paragraph 92 of her affidavit sworn on 1 May 2019 that she conducted daily bus checks, even though Mambourin did not follow up on them.  Ms Anstey’s point about this was that:

   I was therefore confused that Ms Smith was disciplining me for breaching the Mambourin Vehicle Policy when Mambourin failed to follow so many of the requirements as well.

3. If Ms Anstey did indeed conduct daily bus checks, she could not have failed to see the damage to the bus.

Follow up to the complaint of 5 February 2018

1. As discussed above, Ms Smith maintained that she did not receive Ms Smith’s written complaint dated 5 February 2018 until Ms Anstey resent it to her on 2 March 2018. Ms Anstey and Mr Braddy met on 5 March 2018 to discuss Ms Anstey’s complaint of 5 February 2018. Mr Braddy indicated during the meeting that he would investigate the issues Ms Anstey had raised and respond to her in writing.  He did so on 16 March 2018.

The discovery of the damage

1. In her affidavit sworn or affirmed on 8 August 2019, Raelene Cornell said that:

   1.I am employed by Mambourin … as Hub Manager. I have been employed in that role since 2 November 2009.

2. Ms Cornell said in oral evidence in chief that Ms Anstey reported to her.  Ms Cornell went on to say in her affidavit that:

   7.On 13 March 2018, the bus Ms Anstey had been driving was parked in the yard at Sunshine.3 I walked past the bus and looked at it. I noticed damage to the bus. I spoke to one of Mambourin’s clients who told me Ms Anstey had run into a parked car in early February 2018. I had not been made aware of this incident in that recent 4 week period.

   8.I called Vicki O’Neill, Day Services Manager, to report the damage. I then called Ms Anstey to ask her about the accident. I said to her that I had seen some damage to the bus she had driven. She said to me that she had not been involved in an accident. She said she did not know anything about the damage to the bus. I said I had been told she had been driving the bus and there had been an accident when it collided with a parked car (the Accident). She did not respond directly to that issue. I refer to paragraph 80 of the Anstey Affidavit. Ms Anstey did not say to me during that conversation that she could not hear me.

   9.Later that evening, Ms Anstey called me back and admitted to the Accident. She said the bus had collided with a parked car in February and that it had happened at night when it was dark. She admitted that she had not responded truthfully in the earlier conversation. I made a second call to Vicki O’Neill, Day Services Manager, following this discussion with Ms Anstey. I said that Ms Anstey had admitted to lying to me about the Accident.

   10.On 14 March 2018, I contacted Cassandra Smith, General Manager - People and Culture, and said to her that Ms Anstey had failed to report the Accident. I said that she had initially lied to me when I asked her about the accident, saying that she was not involved.

   3 In oral evidence, year, appearing in the affidavit as sworn or affirmed was amended to read yard, and xxx was amended to read Sunshine.

3. Ms Cornell sent an email at 8.20am on the day after she discovered the damage (exhibit 5). She sent the email to Vicki O’Neill, and cc’d Ms Smith and others.  The email was in the following terms:

   Subject: Sunshine bus

   Hi Vicki

   Following up on my phone call to you late yesterday.

   As I explained to you, yesterday when I was walking past the bus (WFU) I noticed there was a large mark down the passenger side of the bus.
   It covers the area from the tail light down to the sliding door, with a depth of over a foot.
   My reaction was “what the heck has happened to the bus”, participant Shane Grainger came up to me and said, “I think I know what happened”

   Shane said “It happened when on respite, Judy Anstey was picking up participant Nick and she accidently scrapped a car in the street”.

   I spoke to Facilitator Lea Wright as she also was on this respite activity. Two busses were used that night with one driver in each bus.

   Lea was asked if she knew what happened to the bus, she said that Judy mentioned what had happened when they met up at the planned activity, but assumed an incident report was put in.

   I didn’t get time to speak to Judy before her bus run, however I called her tonight after her bus run. (At 4:42pm) (emphasis added)
   I asked Judy “Have you had an incident in the bus”, Judy replied “No why?”, “has someone put a complaint in”.
   I explained I noticed the bus and a participant has spoken to me about the incident.

   Judy still said she knew nothing about it, and she would look at it tomorrow.

   I said, “that’s fine but I have to report it”.

   At 4:52pm I rang yourself [Vicki O’Neill], to discuss the issue with you, then you rang me back at 4:58pm

   At 5:20pm I received a phone call from Judy to say I’m sorry I lied to you Raeleen.
   I told Judy I was very disappointed that she had lied to me, and that anyone of us could have an accident, but we must report it. At the end of the day it wasn’t a serious one.
   Judy said “I’m sorry for hurting you Raeleen, hope you can forgive me.”
   I then told Judy that I have had to report it and it will have to be looked into.

   Judy replied what will happen, I won’t lose my job will I, I explained that it’s not up to me now.

   Judy is a great person and works well with the participants, I feel bad that [I] have to report this myself but I was left with no other option.

   Thank you for your assistance with this matter Vicki.

   I shall await what has to happen next.

4. Although the email is dated 14 March 2018, it refers to Ms Cornell calling Ms Anstey tonight. I conclude that Ms Cornell drafted the email during the night of 13 March 2018, but did not send it until the following morning.  I consider that it was a contemporaneous record.

5. Ms Anstey said in her affidavit sworn on 1 May 2019 that:

   80.On 13 March 2018 Ms Cornell called me outside of work hours. I was at the park with friends at the time walking my dogs. Ms Cornell asked me about damage to a Mambourin bus. Calling me outside of work was not the usual formal process of Mambourin and the call caught me off guard. As I was in a public place with friends I was not able to engage in work-related conversation. I therefore said ‘no’ to Ms Cornell and stated that I could not hear her.

   81.I then immediately left the park and went home. As soon as I got home, approximately 30 minutes after Ms Cornell had called me, I called her back. I then provided details of what had occurred and stated that the bus may have come into contact with a parked car. I said that the damage noticed on the bus could have been caused by me but that I was not sure. Ms Cornell said that she had already submitted a report to Ms Smith. Ms Cornell did not state what she had put in the report. Ms Cornell then asked if I had submitted an accident report. I replied that I had not and stated that I would do so the next day.

   82.On 14 March 2018 I went to Ms Cornell’s office after I finished my morning driving shift. I asked Ms Cornell if I could complete an incident report for 10 February 2018. Ms Cornell said she was unsure if I could do so, but thought it was too late. I advised Ms Cornell that I had spoken to Ms Wright on the evening of 10 February 2018 regarding the driving incident, and that Ms Wright had told me not to report it.

The suspension

1. In her affidavit affirmed on 8 August 2019, Cassandra Smith said that:

   1.I am employed by Mambourin … as General Manager – People and Culture. I have been employed in that role since 4 October 2010.

   …

   5. On 14 March 2018, Raelene Cornell, Team Leader, said to me that Ms Anstey had failed to report a collision between the bus she was driving and a third party parked car (the Accident). Ms Cornell said to me she had noticed damage to the bus the previous day. She said to me that one of Mambourin’s clients had told her Ms Anstey had run into a parked car in early February 2018. She said she called Ms Anstey the previous evening and she initially lied about the Accident, denying that she was involved or knew anything about the Accident and damage to the bus. I was then told Ms Anstey subsequently telephoned Ms Cornell and admitted to her involvement in the Accident. She also admitted that she was not honest in denying involvement in the Accident.

2. Also on 14 March 2018, Ms Smith emailed Ms Cornell and others as follows:

   Hi Raeleen,

   Thanks for letting us know. We will commence our disciplinary investigation.

   Can you please confirm if Judy left appropriate contact details with the other vehicle that she hit? If not, failure to report is an illegal act and we will need to suspend her pending full investigation. I’ll prepare her letter once we confirm this. In addition to this she also failed to report to us.

   If she has failed to leave contact details with the other vehicle, upon receipt of her suspension letter she will need to immediately go and make a police report leaving appropriate contact details should the other driver make a report to police.

   Give me a call if you need to discuss.

3. Ms Cornell replied on 14 March 2018 as follows:

   Hi Cassandra,

   No I’m not sure if she did, this was a question I didn’t ask her, sorry

   Do you want me to follow this up with her ??

   Regards

4. There was no evidence about whether that issue was followed up with Ms Anstey. However, it is clear from her evidence that she did not leave a note of her contact details on any other vehicle. 

5. Ms Smith continued in her affidavit affirmed on 8 August 2019 as follows:

   6.On 15 March 2018 I called Ms Anstey. I said to her she was being suspended on full pay while allegations against her were being investigated, including that she had failed to report the accident and had subsequently lied about it. Ms Anstey said to me she had failed to report the accident. She said to me that she had told Ms Cornell that she was not involved in the Accident. Ms Anstey said to me she lied about the accident as she has been taken by surprise by the call. She said to me she was walking the dog in the park at the time.

   7.On 15 March 2018, I sent a letter to Ms Anstey, via email, confirming she was being suspended on pay pending the outcome of the investigation. My email and letter to Ms Anstey dated 15 March 2018 are attached as exhibit JA-5 to the Anstey Affidavit. The suspension was implemented by me for the sole reason that Mambourin was conducting an investigation into Ms Anstey’s conduct. It is my usual practice to suspend an employee on pay while carrying out an investigation into that employee’s behaviour. I considered there were two (2) serious issues under consideration: the Accident and Ms Anstey’s denial of any involvement in the Accident[.]

6. The suspension letter dated 15 March 2018 was as follows:

   Re: Suspension pending Investigation meeting – Alleged at fault bus accident, you failed to report this or leave contact details with the vehicle that you hit.

   This letter is to formally advise you that we need to address a serious allegation in relation to your bus driving. Given the seriousness of this allegation you are suspended on pay until we are able to conduct a full investigation.

   We request that you attend an investigation meeting on Monday 19 March 2018 at 10.30am …

   The purpose of this meeting is to conduct an investigation and provide you with an opportunity to respond. Information collected at this meeting will determine if any further actions are required.  Should these allegations be substantiated disciplinary actions will take place the most serious of which could mean the termination of your employment.

   In particular it is alleged:

   ·That you had an at fault accident while driving participants to a respite activity in Feb 2018 on WFU bus. You hit another car parked in the street. This caused a large mark down the passenger side of the bus covering from the tail light, down to the sliding door.

   ·You failed to report this to your supervisor or provide an incident report.

   ·You failed to leave your contact details on the other car, which is an illegal act.

   ·You have also failed to report this damage in your daily bus checks which is a requirement of your job role.

   ·On the 13 March 2018, your Team Leader, Raeleen Cornell, noticed the damage to the bus. Upon questioning at the centre, participant Shane stated that while you were picking up participant Nick for respite you scrapped a car in the street. This was also confirmed by another facilitator on the activity.

   ·Raeleen called you on the 13 March 2018 to ask if you had caused the accident. You replied “no” and asked if someone had put a complaint in. You indicated to Raeleen that you knew nothing about it. Raeleen indicated over the phone that she would need to report the damage.

   ·Later that evening you called Raeleen to apologise and you admitted to lying. You confirmed that you did have an accident.

   ·You attended your bus run as normal on 14 March 2018, we have still yet to receive an incident report given that this accident occurred several weeks ago.

   ·Given that our Mambourin bus regularly attends the residence in question and is well signed you have damaged the reputation of our Organisation and performed an illegal act.

   …

The response on 16 March 2018 to the nepotism claim

1. On 16 March 2018, the day after Ms Anstey had been suspended, Mr Braddy sent Ms Anstey a letter by email responding to her claims discussed at their meeting on 2 or 5 March 2018. The response was as follows:

   Dear Judy,

   Re: investigation of your concerns

   You met with me on 2 March 2018 and raised a number of concerns which I committed investigate and respond to you in writing about.

   You asked me to investigate:

   1.your belief that there is a prevailing view that people employed by Mambourin as bus drivers are ‘at the bottom of the casual list’ for shifts as facilitators during the day. I assured you that this is definitely not company policy, but undertook to investigate who if anyone said this and on what basis it might have been said;

   2.the basis on which casual shifts (and programs, in particular music and gardening) have been allocated at our Sunshine site in 2018;

   3.whether Mambourin has identified any issues regarding your performance and whether the allocation of shifts has been influenced by this; and

   4.whether your shift pattern as a casual over the last two years would make a case for permanency.

   I will address each matter in turn.

   1.  Bus drivers/facilitators

   I assured you in our meeting that your belief had no basis and I reiterate that this is the case. You indicated to me that Team Leader Raeleen Cornell had told you this and that she said she had been told this by Manager Mahal Lazaro. We enquired of both of these staff and both deny making any comment whatsoever along these lines. I can only speculate that there was a misunderstanding in the communication, but I again assure you that there is no such company policy.

   2.  The allocation of casual shifts

   You explained to me that you were concerned that you had ‘lost’ shifts/programs that you felt some affinity with, that you were only getting shifts when others were unavailable such as staff calling in sick, and that you were concerned that there was favouritism on display, in particular alleging nepotism involving another casual staff member.

   As I explained to you in our meeting, managers allocate shifts to casuals taking into account a range of factors including giving staff experience at different sites, giving participants a variety of staff with casual staff. In our HR communications regarding the new casuals we provided a brief around experience and background and based on this Mahal reached out to two new casuals for work at Sunshine.

   There is a 1:1 arrangement that you sometimes facilitate and Mahal has started sharing this shift around using other staff members as he doesn’t just want to rely on one staff member; he needs more staff trained with this participant so if someone is unavailable, others are able to take the shift.

   I explained to you that we offer fixed term contracts (and permanent roles) based on our knowledge of our casual staff. Recently, one fixed term contract was offered at Sunshine and this went to another person; someone Mahal didn’t know well but made this decision based on feedback about the person’s performance from Raeleen and Jane.

   Finally on this point, [I] reiterate my assurance to you that decisions at Mambourin are not based on nepotism. The relationship between Mahal and a casual staff member was declared to us at the time of the person’s application, and the decision to appoint him to our casual pool was recommended by our HR team following a fair and transparent recruitment process and this recommendation was accepted by me personally on review of all of the available information. Once on the casual pool, decisions to employ this casual staff member at Sunshine are generally taken by Raeleen, not Mahal. From the start of term Mahal told Raeleen that she is responsible for booking casuals when she needs them and that she could book whomever she chose.

   3.Your performance and whether the allocation of shifts has been influenced by this

   I explained to you in our meeting that even when a casual has not been given formal feedback during a performance review process, their conduct and the way they are perceived can influence the allocation of shifts. You indicated to me that you have not had any issues raised with you about your performance, but I do not believe that to be the case including a heated clash with a staff member about where a car was parked, although previous issues are considered closed.

   Current feedback from your supervisors is as follows:

   Your supervisors are concerned that you take ownership over programs and often get frustrated when other staff work ‘your’ programs and make changes; for example, you recently had a clash with a staff member over cutting a fruit tree. A colleague has noticed that you ignore Mahal in that when he comes in and says good morning you look away and pretend to be busy. I have also been made aware of regular clashes that you had with supervisors when you worked at Braybrook.

   Of course, your performance is not all ‘doom and gloom’ (or we would not employ you at all!). Raelene said you are really good with the participants, and your passion for your work is self-evident. So on balance, we are willing to continue to allocate you shifts as they are available and it suits our operational needs, but this is tempered somewhat by your sometimes negative interactions with others.

   4.Your shift patterns as a casual

   I can confirm that we have reviewed your allocation of shifts over the past two years and there is no discernible pattern which would give weight to an argument for converting your role to permanent. Whilst we acknowledge that you undertook the gardening and music programs regularly for some time, there was considerable variation around these shifts over the weeks and months. Further, any shift pattern was broken at times for weeks at a time.

   As agreed, please feel free to make an appointment with me if you wish to discuss this letter.

The meeting on 20 March 2018

1. Ms Smith said at paragraph 8 of her affidavit affirmed on 8 August 2019:

   On 20 March 2018, I met with Ms Anstey, together with her union representative, in order to provide her with an opportunity to respond to the allegations. Ms Anstey spoke in the meeting and admitted to failing to report the Accident and lying about it to Ms Cornell. She did not at any stage, either before, during or after the meeting, say that she has contacted Ms Lea Wright, Facilitator, or anyone else from Mambourin, to report the Accident. As far as I am aware, Ms Anstey did not during her employment at any time claim she had called Ms Wright about the Accident. I first heard about this suggestion when she made a General Protections Application.

2. Ms Anstey’s version of the meeting was set out in her affidavit sworn on 1 May 2019 and was as follows:

   91.On 20 March 2018 I attended the meeting with Ms Smith as instructed. Ms Green attended as my support person. At the beginning of the meeting Ms Smith gave me a copy of the Mambourin Vehicle Policy. Ms Smith stated that I had been involved in a driving incident on 10 February 2018 which had damaged the bus and that I had failed to report the incident, which was a breach of the Mambourin Vehicle Policy. Ms Smith asked for me to respond to this allegation. I apologised for the incident and for failing to report the incident. I stated that it had been very dark and that I was not sure whether I had hit a stationary vehicle on 10 February 2018. I did not say that Ms Wright had told me not to report the matter because I did not want to dob on her. I then handed Mr Widdicombe’s letter to Ms Smith. The meeting was very short. At the conclusion of the meeting Ms Smith stated that she would not be able to give me any feedback regarding the meeting as Mr Braddy would not be available until Thursday, being 22 March 2018.

   92.I already had a copy of the Mambourin Vehicle Policy, as did all Bus Drivers. The policy outlines the process and procedures regarding maintenance and use of the buses. These included the requirement to conduct a daily bus check and attend monthly Bus Driver meetings. Mambourin did not provide paperwork for the bus check at the Sunshine site even though I repeatedly requested one from Vina – Braybrook/Sunshine Receptionist. However, I still checked the bus daily even though no one followed up on this. Mambourin also did not arrange for the required monthly Bus Driver meeting. I was therefore confused that Ms Smith was disciplining me for breaching the Mambourin Vehicle Policy when Mambourin failed to follow so many of the requirements as well.

3. After the meeting, at 1.30pm on 20 March 2018, Ms Anstey sent an email to Ms Smith (CB114) saying:

   Please find details of the incident as requested by yourself [at] the meeting this morning.

   On the evening of Saturday 10 February, whilst dropping Nick Pavic - participant - home, I accidently came in contact with a large 4x4 Ute parked in front of Nick’s house with the Company Bus WFU290. (emphasis added)

   At the time of the incident, it was very dark and hard to see to manoeuvre the bus, thus, accidently making contact with the other vehicle. (emphasis added)

   I got out and surveyed the damage to both vehicles, there was no damage to the other vehicle and as this was the very first accident I have had in a 55 year driving history, I wasn’t sure whether I needed to notify the owner of the other vehicle.

   I went into complete shock at what had been done and my main concern was getting the last 2 participants home safely, which I did.

   I am very remorseful and regretful that I did not report the incident and contrite about the enormous impact this has had on my credibility and standing within the Company and the Management.

4. As can be seen, Ms Anstey admitted twice in that email that she came into contact with another vehicle while driving a Mambourin bus.

Cross-examination about the email dated 20 March 2018

1. Notwithstanding her admissions in the email dated 20 March 2018 that she had accidentally come into contact with another vehicle, Ms Anstey resiled from that position in oral evidence.  Ms Anstey said (Tr. 57):

   Well, when you say “accidentally”, that means that you could – you may or you may not have, because an accident is something that may or may not have happened.

2. Ms Anstey’s definition of an accident is not correct.  An accident is something that has happened.

3. In any event, when asked whether her email was truthful when it said that she had accidentally come into contact with another vehicle, Ms Anstey said:

   Well, I still don’t know whether I did. … At the … time that I … typed this out, … I was … under a lot of stress and duress.

4. When it was put to Ms Anstey again that her email was truthful when she said that she had come into contact with a 4x4 vehicle, she said:

   Well, no.  I wouldn’t say it’s exactly the truth.  I really think that I was more under stress and I probably put that in meaning that I really didn’t know whether I did or didn’t.  I had an accident, I think.

5. When asked again whether her email was truthful, Ms Anstey said:

   Well, it’s probably truthful … at the time, … when I’m writing that, but I don’t think it’s exactly what happened.

6. Ms Anstey was asked, if the email was truthful when she wrote it, it would still be truthful, so why was she changing her evidence today, she said:

   Well, it’s because I really don’t – I don’t think I did come in contact with it.

7. When pressed again, Ms Anstey said:

   … I probably accidentally put “accidentally” in there.

8. This evidence is very unpersuasive. I consider that Ms Anstey told the truth in her email when she said that she had accidentally come into contact with another vehicle and did not tell the truth in court when she said that she was not sure that she had come into contact with another vehicle. Ms Anstey’s untruthfulness about this issue in court, and her failure to report the bus accident for over four weeks, leads me to have grave concerns about her credibility.

Follow up to the meeting on 20 March 2018

1. After the meeting on 20 March 2018, Ms Smith emailed Ms Anstey in the following terms:

   Hi Judy,

   I just wanted to follow up from today’s meeting. We will be in a position to finalise the outcome from this disciplinary process by Thursday 22/3 as discussed today, we will have made a decision about your employment.

   Our preference is to communicate this in a face to face meeting. Would you be available to come into Derrimut on Thursday anytime from 8.30am to 10.30am or from 12.30pm to 2pm? Again you are welcome to bring a support person.

   In addition to this meeting I would like to organise for you to have access to our EAP support (Employee Assistance Program). This is a free and completely confidential counselling service based in Werribee that we regularly engage to support our employees. I’ll set up a referral for you and someone from Crookes Counselling will give you a call within the next 24 hours to discuss the service, explain how it works and set up an appointment should you choose to. It’s completely voluntary but there if you need it.

2. Ms Anstey commenced a period of extended sick leave on 20 March 2018. For that reason, she did not attend the meeting proposed for 22 March 2018.

3. Ms Anstey continued to be on sick leave until 13 August 2018, when Ms Smith emailed her in the following terms (JA-19, CB138):

   Dear Judy

   We are writing to you regarding your employment with Mambourin Enterprises Ltd (Mambourin).

   As you are aware, in March 2018 you were suspended on pay following a serious allegation of misconduct against you. A meeting was held on 20 March 2018 to put allegations regarding the incident to you, at which you were provided with an opportunity to respond to the allegations. A further follow up meeting [was] scheduled for 22 March 2018 to conclude the matter and communicate our decision as to the outcome of the process to you. However, you were unable to attend the follow up meeting due to personal illness, and since that time you have submitted successive medical certificates indicating that you are unwell and unable to attend the workplace.

   In the intervening period, Mambourin has engaged in discussions with various representatives of yours in an effort to seek an amicable outcome, however, these discussions have not resulted in a resolution.

   Mambourin has been respectful of your personal circumstances during this period, and has been waiting for you to recover before communicating the outcome of the process to you.

   However, as at 10 August 2018 you have used all of your accrued personal leave entitlements and accordingly, any further leave from that date will be leave without pay. As it has now been nearly 5 months since we sought to address the allegations of misconduct to you, unfortunately Mambourin cannot indefinitely postpone concluding this matter.

   Accordingly, Mambourin seeks to conclude this process and therefore, we seek that you attend … a meeting at 159 Derrimut Drive Derrimut on Thursday 16 August 2018 at 2pm so that we can communicate the outcome of the process to you. You may bring a support person to the meeting if you wish. We seek confirmation from you by close of business on Wednesday 15 August 2018 whether you will be attending the meeting, whether you will bring a support person with you and if so, who that person will be.

   If you do not confirm your attendance by this date, or you are unable to attend at the specified time, Mambourin will communicate the outcome of the matter to you via written correspondence.

   …

4. Ms Anstey did not respond to Ms Smith’s email dated 13 August 2018 and did not attend the meeting proposed for 16 August 2018.

The dismissal letter

1. Ms Smith sent Ms Anstey a letter dated 16 August 2018 in the following terms:

   TERMINATION OF YOUR EMPLOYMENT – INCIDENT 10 FEBRUARY 2018

   We are writing to confirm that Mambourin … having now completed its internal review of the incident, and having given you an opportunity to respond, has made the decision to terminate your employment.

   The reasons for your termination of employment is (sic) your conduct in (sic) regarding an incident in which you hit a stationary vehicle while driving the Organisation’s bus, failing to report the incident and your subsequent conduct thereafter.

   Your inappropriate conduct – Incident on 10 February 2018 and conduct thereafter

   Details of your misconduct were clearly articulated in our letter to you of 15 March 2018.

   On 10 February 2018, you hit a stationary vehicle while driving a Mambourin bus, and failed to leave your contact details on the other vehicle. You then also failed to report this incident to your supervisor or provide an incident report, as required by our procedures. You further failed to report this damage in your daily bus checks.

   On 13 March 2018, your Team Leader asked you about the damage to the Mambourin bus and you stated that you had not caused an accident and indicated that you knew nothing about the damage. The following day you then called her and admitted to lying.

   On 15 March 2018, you were suspended on pay while the Organisation undertook an investigation of the incident.

   Absence from the workplace since investigation meeting

   A meeting was held on 20 March 2018 to put allegations regarding the incident to you, at which you were provided with an opportunity to respond to the allegations. A further follow up meeting was scheduled for 22 March 2018 to conclude the matter and communicate our decision as to the outcome of the process to you. However, you were unable to attend the follow up meeting due to personal illness, and since that time you have submitted successive medical certificates indicating that you are unwell and unable to attend the workplace.

   On 13 August 2018, the Organisation sent you an email stating that you had exhausted your personal leave entitlements and accordingly, the Organisation sought to conclude the matter, as it could not indefinitely postpone doing so. This was further in light of the nearly 5 month intervening period since commencement of the investigation.  It invited you to a meeting on 16 August 2018 which you chose not to attend.

   Reasons for Termination

   The Organisation has considered your responses in the meeting held on 20 March 2018.

   The failing to report a car accident is not only a breach of our policies and procedures, of which you are fully aware, but a breach of the law. The incident occurred in public view, with a Mambourin vehicle, which clearly has the propensity to damage the reputation of our Organisation.

   Further, your conduct in lying when questioned about the incident clearly demonstrates a predisposition for being untruthful, and accordingly, the Organisation has lost trust and confidence in your ability to perform and act with integrity.

   Having considered your responses provided at the meeting we do not consider that your responses justified your conduct.

   For these reasons the Organisation has decided to terminate your employment for serious misconduct. Had you been open and honest with the Organisation from the outset, the outcome of this investigation may have differed.

   …

Suspension: alteration of position

1. Ms Anstey submitted that, when she was suspended from her employment, albeit on full pay, her position was altered to her prejudice. Mambourin did not dispute that, but said it might in the alternative have been an injury in employment. In my view, the suspension was an alteration of position, as it did not change her legal rights, including her to her right to be paid. However, instead of being an ongoing employee, who could expect to have continuing employment, Ms Anstey’s future employment with Mambourin was under a cloud.  As such, her position was altered to her prejudice.

The reasons for the suspension

1. Pursuant to s.361 of the Act, because Ms Anstey has alleged that Mambourin took adverse action against her for prohibited reasons, it is to be presumed that Mambourin took the adverse action against her for the alleged prohibited reasons unless Mambourin proves otherwise.

2. As noted above, at paragraph 7 of her affidavit affirmed on 8 August 2018, Ms Smith gave her reasons for suspending Ms Anstey as follows:

   … The suspension was implemented by me for the sole reason that Mambourin was conducting an investigation into Ms Anstey’s conduct. It is my usual practice to suspend an employee on pay while carrying out an investigation into that employee’s behaviour. I considered there were two (2) serious issues under consideration: the Accident and Ms Anstey’s denial of any involvement in the Accident[.]

3. Ms Smith agreed in cross-examination that she did not see a copy of Ms Anstey’s written complaint about nepotism made on 5 February 2018 until 2 March 2018. She said that Mr Braddy gave her a copy of the letter after his meeting with Ms Anstey on 2 March 2019.  Ms Smith said that, when Mr Braddy gave her a copy of the letter, he expressed concern that Ms Smith had not previously received a copy of the letter and had not responded to it.  Ms Smith said that Mr Braddy indicated that he would be responsible for the investigation of the complaints, but she provided him with some information relating to rosters, and conversations with managers about the allocation of shifts.

4. Ms Smith said that, when Ms Cornell told her on 14 March 2018 about the accident, Ms Anstey’s complaint about nepotism was not still fresh in her mind but she was aware that the issue was still on foot.

5. Ms Smith said that it was a matter of grave concern to us4 that Ms Anstey had not reported the accident and then not admitted it when asked.

   4 Tr. p.91.

6. Ms Smith said that Ms Anstey’s complaint about nepotism in February 2018 was her first written complaint but that she raises issues regularly5.

   5 Tr. p.92.

7. Ms Anstey submitted that Ms Smith’s stated reason for the suspension should not be believed. The first reason Ms Anstey gave for that was that Ms Smith knew on 14 March 2018, before she sent the suspension letter, that Ms Anstey had confessed to her role in the accident and was willing to set the record straight. Consequently, Ms Anstey submitted, it should not be accepted that there was a serious breach of trust, as Mambourin alleged.

8. However, that submission fails to take into account that Ms Anstey had concealed from her employer the fact of the accident from 10 February 2018 until she was confronted with it on 13 March 2018, a period of over four weeks.  Moreover, it fails to take account of the fact that Ms Smith said in her affidavit that the suspension was because the accident and Ms Anstey’s denial of it were being investigated, not because a breach of trust had been established at that point.

9. The second reason that Ms Anstey gave for urging the court to not believe Ms Smith’s reason for the suspension, as stated in her affidavit, was that, in her email dated 14 March 2018, Ms Smith gave a different reason for the suspension. In that email, Ms Anstey submitted, Ms Smith indicated that Ms Anstey would be suspended if she had committed the illegal act of failing to leave a note with her details on the vehicle she hit. Ms Anstey submitted that, when the issue of failing to leave a note was resolved, Ms Smith came up with a different reason for the suspension.

10. However, that submission failed to take into account that Ms Smith’s email was a reply to Ms Cornell’s email of 8.20am on 14 March 2018 which reported the damage and Ms Cornell’s telephone discussions with Ms Anstey on 13 March 2018. Ms Smith’s email began with the words, We will commence our disciplinary investigation. Ms Smith obviously meant that there would be a disciplinary investigation because of the various matters that Ms Cornell had put in her email. 

11. Ms Smith then went on to make the additional and important point in her email dated 14 March 2018 that, if Ms Anstey had not left her contact details on the other vehicle, she would have committed an illegal act and Mambourin would need to suspend her. Moreover, Ms Smith emphasised that, if Ms Anstey had not left her contact details on the other vehicle, she would need to report the accident to the police to assist if the owner of the damaged vehicle lodged a report with the police. 

12. Ms Anstey did not suggest that she had left a note on another vehicle. Her case was that she did not need to, because she had caused no damage.  She obtained a letter from Mr Widdicombe saying that there was no damage to his vehicle. However, as discussed above, it was not his vehicle that would have been damaged, but the vehicle in front of the parking space Ms Anstey was aiming for.  Be that as it may, it appears that Mambourin accepted on or about 20 March 2018 that there was no damage to another vehicle.

13. However, I do not consider that it was the case that Ms Smith came up with a different reason for suspension when the failure to leave a note ceased to be an issue. Ms Smith’s email was to the effect that there would be a disciplinary investigation in response to Ms Cornell’s email.  Ms Cornell’s email raised the issues of Ms Anstey having caused an accident, having failed to report it for over four weeks, and having initially and falsely denied causing the accident.

14. In addition, Ms Anstey’s failure to leave a note did not cease to be an issue until at least 20 March 2018 when Ms Anstey produced to Mambourin the letter dated 19 March 2018 from Mr Widdicombe. Therefore, on 15 March 2018, when Ms Smith suspended Ms Anstey, the failure to leave a note was a live issue.

15. Moreover, in her cross-examination, it was put to Ms Smith that her primary concern as at 14 March 2018 was that the failure to leave a note was an illegal act. Ms Smith responded:

    Along with the admission from Judy that she had had the accident, failed to report and was dishonest about it.6

    6 Tr. p.131.

16. However, Ms Smith later conceded that the failure to leave a note was a trigger point for the suspension. She also conceded that, on 20 March 2018, that issue was resolved by Mr Widdicombe’s letter. Ms Smith maintained that Ms Anstey’s dishonesty had always been a concern and was not a new reason for action against her.

1. In Ms Anstey’s role as a bus driver, she was covered by the Award.  Clause 10.5 of the Award provided for a regular casual employee to request that his or her position be converted to a permanent position.  However, Ms Anstey’s claim in relation to the conversion to a permanent position was only in relation to her role as an instructor.  As such, the Award had no bearing on the issue.

2. In her role as an instructor, Ms Anstey was covered by the Agreement.  The Agreement made no provision for conversion of casual positions to permanent positions. Therefore, Ms Anstey did not have a right to have her casual position converted to a permanent position, and the refusal to convert did not alter her position to her prejudice.

3. In any event, I accept Mr Braddy’s evidence that his decision not to convert Ms Anstey’s casual position to a permanent position was based on her shift patterns, and was not because she had made complaints or was otherwise for a prohibited reason.

The dismissal

1. Ms Smith said in her affidavit that, although she had sent the dismissal letter, it was Mr Braddy who had made the decision to dismiss Ms Anstey. Ms Smith said at [14] of her affidavit affirmed on 8 August 2019 that:

   Rohan Braddy, Chief Executive Officer, made the decision to dismiss Ms Anstey. I was involved in the decision-making process and discussed the dismissal with Mr Braddy. Mr Braddy told me that his decision to dismiss Ms Anstey was because he had lost faith in her as a consequence of her dishonesty concerning the Accident. He said that he could not tolerate lying from employees. He said he was once warned that if a person lies in the workplace, he/she might lie again. Mr Braddy made only one comment to me about his reason for deciding to dismiss Ms Anstey from employment: he said to me he decided to dismiss Ms Anstey from employment because of her conduct in failing to report the accident and then lying about it. I had no reason to doubt [Mr] Braddy. I agreed with him that Ms Anstey’s conduct as an employee was unacceptable.

2. Mr Braddy said in his affidavit sworn on 8 August 2019 that:

   17.I made the decision to dismiss Ms Anstey from her employment. I made the decision because Ms Anstey had admitted to certain conduct in her employment, namely:

   (a)failing to report to her employers that she had driven the bus which caused a collision with a … stationary vehicle (Accident); and

   (b)subsequently lying about that conduct when the matter was raised with her.

   It was this conduct (the Accident, the non-reporting of it, the lack of candour about her involvement) that was the sole basis for my decision to dismiss Ms Anstey from her employment. I had no regard whatsoever to Ms Anstey’s complaints or inquiries in relation to her employment. The matters raised in the 2 March 2018 meeting and then addressed in the 16 March 2018 letter did not feature in my reasoning to dismiss Ms Anstey from employment. I was only concerned with the Accident and her subsequent conduct. I had no regard to Ms Anstey’s absence from the workplace because of any illness or injury.

   18.Ms Anstey’s failure to provide a candid and honest response to the inquiry about the Accident when first asked about it was of particular concern to me. I considered it totally unacceptable behaviour by a long-standing employee. It caused me to lose confidence in Ms Anstey as an employee. I felt that her ongoing employment had become untenable because of it.

   19.I deny that I made the decision to dismiss Ms Anstey from her employment because she made any complaint or inquiry in relation to her employment. I did not dismiss Ms Anstey because she had any right or entitlement under an industrial award or agreement or the Fair Work Act 2009 (Cth).

   20.I deny that I made the decision to dismiss Ms Anstey from her employment because she was temporarily absent from the workplace because of any illness or injury.

3. It was put to Mr Braddy in cross-examination that he found challenging his meeting with Ms Anstey on 2 March 2018 when she raised various complaints with him, particularly in circumstances where Ms Anstey was accompanied by her daughter who is a human resources professional and who Mr Braddy felt had verballed him. Mr Braddy said in reply that:

   …  I meet with people every day and in circumstances where people are upset or find things challenging or [are] trying to put a particular point of view to me.  I don’t find those circumstances difficult at all.12

   12 Tr. p.166.

4. It was also put to Mr Braddy in cross-examination that he had been unable to segregate his feelings about the meeting on 2 March 2018 from his later decision to terminate Ms Anstey’s employment.  Mr Braddy said in reply that:

   I absolutely dispute that.  Staff make complaints to me on a regular basis, or to the organisation more generally on a regular basis, and there’s simply no evidence that staff are punished for making complaints.  The culture of our organisation is we promulgate a catchphrase, “It’s okay to complain,” among our participants – or you might know them as clients – and we certainly would apply the same cultural practice to our staff.  We see complaints as an opportunity to improve.  I absolutely dispute that the two are linked.13

   13 Tr. p.167.

5. Mr Braddy denied in cross-examination that Ms Anstey’s complaints were particularly challenging. Mr Braddy said in cross-examination that, prior to deciding to terminate Ms Anstey’s position, he was probably given a verbal briefing by Ms Smith.

6. Mr Braddy conceded in cross-examination that, when he made the decision to terminate Ms Anstey’s employment, he was aware that her lie to Ms Cornell about not being in a bus accident only existed until Ms Anstey telephoned Ms Cornell back the same evening and apologised for lying.  He said that he did not recall terminating any other person’s employment for lying.

7. Mr Braddy was asked in cross-examination what Ms Smith had said to him in relation to her investigation of the bus accident.  Mr Braddy said:

   In general terms, Ms Smith explained to me the outcome of her investigation and Ms Anstey’s responses at the meeting and that included, in principle, that there had been an accident that had gone unreported and when asked about it Ms Anstey had not told the truth about it.14

   14 Tr. p.175.

8. Mr Braddy said that he made the decision to terminate Ms Anstey’s employment during or very shortly after his meeting with Ms Smith on 20 March 2018. That was before Ms Anstey went on sick leave from 21 March 2018 until August 2018.

9. The following exchange occurred during cross-examination:

   If one of your supported employees had done what Mrs Anstey had done, and you were satisfied that they had cognitive ability, you would not have sacked them in these circumstances?‑‑‑Yes, we would.  We had a case – if I may, your Honour – about 15 years ago where we had an enclave of supported employees working at the RAAF Williams Airbase in Laverton and RAAF staff noticed money from a – a coffee tin or a buy chocolates or something like that missing, and cans of Coke missing out of the fridge, and they set up a hidden camera and detected that it was our supported employee who was on site to clean the office was stealing these materials.  We met with him and his representative and his mum, from memory, so two representatives, and he was able to articulate clearly that he knew what he was doing was wrong and we terminated his employment.15

   15 Tr. p.176.

10. It was put to Mr Braddy in cross-examination that one lie by a long standing employee, which had been corrected by the employee before Mr Braddy even knew that there had been a lie, was not enough for him to have lost confidence and trust in her.  Mr Braddy said in reply:

    … In my mind it clearly was and may I explain why?  Mambourin is a not for profit company providing services to very vulnerable people with disabilities ….  In some cases [they are] non-verbal.  There can be seven or eight or nine people on the bus with a bus driver and the bus driver is the only competent adult on that bus. I need to have absolute faith that if a person gets off the bus /I’m only talking hypothetically here.  I’m not alleging anything against Ms Anstey, but say, for example, with a scratch or a … bloodied nose … and the bus driver says, “She fell down stepping off the steps and bumped her nose … on the door that she was going out,” that I can absolutely believe that because I may not be able to rely on information from anybody else [about] what happened.  And at the point, where a staff member who has such profound responsibility in the workplace demonstrates that she’s willing to lie, in my opinion, that made her employment with us untenable.16

    16 Tr. p.177.

11. It was put to Mr Braddy in cross-examination that it was not credible that a momentary lie17 was his sole reason dismissing Ms Anstey.  Mr Braddy replied saying that as explained in his affidavit, there was the failure to report the bus accident for several weeks followed by the denial when asked about it.

    17 Tr. p.178.

12. It was put to Mr Braddy that, in addition, to those matters, he decided to dismiss Ms Anstey because she had made complaints. Mr Braddy said in reply:

    I categorically deny that.  Your Honour, if – if we were to terminate a staff member every time they made a complaint, honestly, we wouldn’t have any staff to do the jobs.  Staff are free to make complaints any time they want to, and they regularly do.18

    18 Tr. p.179.

13. Ms Anstey submitted that, as a human being, Mr Braddy could not have disaggregated her complaints from her failure to report the bus accident and her lie about it. Ms Anstey submitted that the bus accident was actually a non-event19, as demonstrated by the fact that Mr Braddy did not even look at the bus or seek details about the accident. Ms Anstey submitted that her complaints were, if not the only reason for her dismissal, at least an operative factor.

    19 Tr. p.183.

14. I do not accept Ms Anstey’s submissions on the reasons for the dismissal. Mr Braddy was a very credible witness. His reasoning made perfect sense. Primarily, Mambourin works with very vulnerable people, and, for the reasons Mr Braddy explained, it is imperative that Mambourin is able to rely absolutely on the honesty and integrity of its staff. I also accept his evidence that staff and clients of Mambourin are encouraged to complain, and that complaints at Mambourin are regular and unremarkable events.

15. Ms Anstey was correct to characterise the bus accident as a non-event in Mr Braddy’s mind. If Ms Anstey had promptly reported the bus accident, Mr Braddy probably would never have heard about it, or given it a moment’s thought.

16. However, Ms Anstey was very incorrect to characterise her conduct as a momentary lie20. While it may be true that Ms Anstey rang Ms Cornell back within the hour to apologise for her initial denial, the fact is that Ms Anstey concealed her part in the damage to the bus for about six weeks. As it is so often, the cover-up in this case was much worse than the initial transgression.

    20 Tr. p.178.

17. I am satisfied that Ms Anstey’s complaints were not an operative part of the reason that Mr Braddy dismissed her. I am also satisfied that Ms Anstey taking extended sick leave was not an operative reason for her dismissal, the decision to dismiss having been taken prior to the commencement of her sick leave.

Annual leave loading

1. Ms Anstey said that Mambourin breached the Award by failing to pay her annual leave loading on her two weeks of annual leave that were additional to the four weeks of annual leave that she had to be given under the National Employment Standards.  Mambourin conceded that it had not paid Ms Anstey an annual leave loading for her additional two weeks of annual leave, but said that it was not obliged to.

2. It was not clear why Ms Anstey received two additional weeks of annual leave each year. However, her counsel said from the bar table that all staff at Mambourin received an additional two weeks of annual leave each year, and had done so since Mambourin acquired the business on 1 July 2010. Mambourin’s counsel said from the bar table that Mambourin provided staff with the additional two weeks annual leave for operational reasons21, and said it was somehow connected with school term times.

   21 Tr. p.202.

3. The Award said in cl.31:

   31.1Annual leave is provided for in the NES. This clause contains additional provisions.

   …

   31.3Annual leave loading

   (a)In addition to their ordinary pay, an employee … will be paid an annual leave loading of 17.5% of their ordinary rate of pay.

4. Subsequent subclauses of the Award dealt with matters such as taking annual leave in advance, cashing out annual leave and accruing excessive annual leave. 

5. It was common ground that the National Employment Standards provided for four weeks annual leave for each year of service. Mambourin provided an additional two weeks of annual leave each year for each employee. Mambourin paid a 17.5% loading on the standard four weeks of annual leave, but not on the additional two weeks of annual leave.

6. Section 90(2) of the Act provided that:

   If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.

7. Ms Anstey referred to Inghams Enterprises Pty Limited [2012] FWA 8668, where Commissioner McKenna said at [12]:

   The proper interpretation of s.90 of the Act as it concerns the payment of annual leave loading on termination of employment is a matter about which reasonable minds can differ. The operation of the section is not entirely clear, as was noted in the recently-released review of the Act: “Towards more productive and equitable workplaces: An evaluation of the Fair Work legislation” (“the Review”). As to annual leave loading on termination of employment, the Panel wrote and recommended as follows (from p.100):

   …

   [Subsection 90(2) of the Act] has been interpreted by the FWO, based on advice from Senior Counsel, as requiring the payment of an annual leave loading entitlement, even where award or agreement provisions specifically preclude payment of the loading. …

   …

   The provision of annual leave loading was originally to compensate employees for the notional loss of overtime earnings while on leave, although the benefit then spread to most sectors of the workforce, including areas not generally subject to overtime payments. …

8. Commissioner McKenna continued in paragraph 13:

   The advice referred to by the Panel in the preceding extract was given by Mr J Phillips SC and has been used by the Fair Work Ombudsman concerning the interpretation of s.90 of the Act. The advice read in part:

   9. Consequently, the National Employment Standards are what is applicable for the payment of the base rate of pay for an employee's ordinary hours of work in the period of the taking of paid annual leave pursuant to s.90(1). Such a minimum provision can be supplemented by an award, enterprise agreement or contractual provision so long as it is not detrimental to the employee (see ss55(4)(b) referred to above). An additional payment could hardly be said to be detrimental to an employee. The provisions in subsection (2) could have been expressed in the same way were it the case that annual leave loading was not to be paid on untaken annual leave. However, it is instructive to note that the provision is expressed in quite different terms to what is to be found in subsection (1) of s.90. Subsection (2) has no reference to the expression “employee's base rate of pay”. What is to be found in subsection (2), is that an employee on termination who has a period of untaken paid annual leave must be paid by the employer the amount that the employee “would have been payable (sic) had the employee taken that period of leave.” In these circumstances, if there is an award or an enterprise agreement or a contract which permits the taking of annual leave upon which is paid an annual leave loading, then in my view that is the amount which would be payable as untaken paid annual leave to an employee on termination.

   10.Those who contend that untaken paid annual leave is to be paid at the base rate of pay on termination without any amount of annual leave loading added to it, neglect the words used in the subsection. In order to bolster their case they need in effect to add words to the subsection which are not there. In order to make good their argument, they would need to have the same provision of the expression “employee's base rate of pay” as found in subsection (1) repeated in subsection (2). Perhaps also to add the words “only will be paid the employee's base rate of pay for untaken paid annual leave on termination of employment.” It is not permissible in effect to add such words to the Act. This is particularly so when the words in subsection (2), in my opinion, are clear on their ordinary English meaning and in the context of the Act.

9. Inghams Enterprises Pty Limited concerns a related but nevertheless different provision to the one presently under consideration. However, it does make the point that words should not be read into legislation without a proper basis. The construction of industrial instruments is similar but different. In Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72, White J said:

   64.There are well developed principles concerning the construction of industrial awards and agreements, which take account of the fact that they are commonly drafted by lay persons and lack the precision and clarity to be expected in commercial contracts.

   65.The principles were reviewed recently by Tracey J in Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; (2014) 318 ALR 54 at [29]-[41]. It is not necessary to repeat the principles in detail in these reasons. It is sufficient to say that the Court will seek to identify, in an objective way, the meaning intended by the parties to the agreement having regard to the language they have used and, in doing so, avoid a narrow or pedantic approach. In particular, the Court takes account of the circumstance that the drafters of the agreement were likely of a “practical bent of mind” and likely to have been concerned with expressing their intentions in ways understood in the context of the relevant industry and industrial relations environment. As with commercial contracts, the Court will prefer a construction which gives effect to the presumed purpose of the parties.

10. Ms Anstey argued that Mambourin’s interpretation of cl.31.3(a) of the Award was that it required additional words to be added to the clause so that it read:

    In addition to their ordinary pay, an employee … will be paid an annual leave loading on their National Employment Standard annual leave of 17.5% of their ordinary rate of pay. (additional words in bold)

11. Mambourin argued that cl.31.3(a) of the Award should be understood as reading, somewhat awkwardly, that:

    In addition to their ordinary pay, an employee … will be paid an a National Employment Standard annual leave loading of 17.5% of their ordinary rate of pay. (additional words in bold)

12. Ms Anstey argued that annual leave in cl.31.3(a) of the Award should be interpreted in the same way as annual leave elsewhere in cl.31 of the Award, and argued that annual leave elsewhere in cl.31 of the Award was not confined to National Employment Standard annual leave. Ms Anstey said that it would not suit an employer, and it would be absurd, for the excessive annual leave provisions of the Award to only apply to the part of the excessive annual leave accruals that was derived from National Employment Standard annual leave. There is a lot of force in that submission.

13. Ms Anstey also relied on Australian Liquor, Hospitality & Miscellaneous Workers Union v Metropolitan Ambulance Service[2002] FCA 1321. In that case, it was held that the annual leave loading applied to annual leave in excess of the four weeks standard annual leave entitlement.  However, Ms Anstey conceded that the result in that case was very dependent on the words of the particular award that applied.22

    22 Tr. p.188.

1. In any event, in that case, Merkel J said:

   18Clause 7 of the Commonwealth Award provides that the annual leave loading is to be payable on “all annual leave taken” after 22 March 1994. Clause 32(a)(i) of the incorporated Victorian Award provides for an “annual holiday of four weeks on ordinary pay”. Clause 32(d) provides that, in addition to that leave, the shift employees will be allowed “one weeks leave including non-working days”. Clause 32(e) makes it quite clear that the one weeks leave referred to in cl 32(d) is intended to be an increase in the period of four weeks annual leave referred to in cl 32(a)(i). Clause 37 operates on the same premise namely, that the additional leave to which an employee is entitled as a result of working on a public holiday is to be “added to his annual leave”.

   19 It is clear that the annual leave referred to in cl 7 of the Commonwealth Award is the annual leave referred to in cll 32(a)(i), 32(d) and (e) and 37 of the Victorian Award. The respondents argued that such a construction would be anomalous as, for example, it would result in employees who work on public holidays obtaining benefits under cl 37 which have a different value for the same work. The respondents claim that the anomaly arises because the annual leave loading benefit only applies to an employee who applies his or her public holiday work entitlement to annual leave. While the premise upon which the argument is based might be accepted it does not follow that there is anything anomalous about the outcome, as it may be up to each employee to decide which of the benefits the employee will take. In any event, even if there was a possible anomaly in that outcome that would not be sufficient to change the clear and unambiguous meaning of the relevant clauses which is that the annual leave to which an employee is entitled, and upon which the employer is obliged to pay the annual leave loading, is the total amount of annual leave taken by that employee in accordance with the entitlements accruing under cll 32(a)(i), 32(d) and (e) and 37.

2. Mambourin argued that the Award simply adopted the National Employment Standard of four weeks annual leave. Mambourin said the parties contracted for an above-award arrangement of an additional two weeks annual leave, but there was no evidence that the above-award contractual arrangement included a 17.5% loading.

3. Mambourin noted that the National Employment Standards provided in s.87 of the Act that:

   Entitlement to annual leave

   Amount of leave

   (1)For each year of service with his or her employer, an employee is entitled to:

   (a)    4 weeks of paid annual leave; or

   (b) 5 weeks of paid annual leave, if [the employee is a shift worker] …

4. Mambourin said that s.87 of the Act was reflected in the Award. Mambourin submitted that the Award did not say, and could not say because it would be unconstitutional, that employees were entitled to a 17.5% loading for additional annual leave provided pursuant to a contract over and above their Award entitlements. Mambourin argued that its agreement to provide an extra two weeks annual leave could not be interpreted as an agreement to provide a 17.5% annual loading on that additional annual leave as well.23

   23 Tr. p.202.

5. Mambourin did not explain the constitutional point. Mambourin apparently did not serve notices under s.78B of the Judiciary Act 1903, so I can only assume that the point did not involve the interpretation of the Constitution or arise under the Constitution. In the absence of any development of the constitutional point, I can take it no further.

6. There is a difficulty with Mambourin’s submission, in that it requires words to be read into the Award, whereas Ms Anstey’s submission does not. Obviously, the court should not read additional words into an award where its plain words are clear.  Nothing in Qube suggests otherwise.

7. In accordance with basic principles of interpretation, the words annual leave would ordinarily be given the same meaning wherever they appear throughout the Award. Mambourin’s interpretation requires the words annual leave to mean National Employment Standard annual leave in cl.31.1(a) of the Award, and National Employment Standard annual leave plus additional contractual annual  leave in the many other places where it appears in cl.31, being in cl.31.2, cl. 31.3, cl. 31.4, cl.31.5, cl.31.6 , cl.31.7 and cl.31.8. There appears to be no reason to depart from the usual approach to interpretation. Nothing in Qube suggests otherwise.

8. I accept that Australian Liquor, Hospitality & Miscellaneous Workers Union v Metropolitan Ambulance Service concerned entirely different award provisions.  However, at a broad level of generality, that case does stand for the proposition that annual leave loading can apply to additional weeks of annual leave over and above the basic four weeks, depending on the wording of the relevant award.

9. It seems to me that the natural reading of the Award is that the 17.5% loading applies to all annual leave, not just the standard four weeks to which employees are entitled pursuant to the Award and the National Employment Standards. In accordance with Qube, it seems to me that the intention of the parties can be presumed to be what their words plainly and naturally indicate.

10. In the alternative, if I am wrong about the meaning of the Award, in circumstances where it is extremely common for a 17.5% loading to be payable in respect of annual leave to people who are covered by awards, and in circumstances where the relevant award provides for a 17.5% loading for annual leave, it would be an implied term of any contract for additional annual leave that a 17.5% loading would also be payable in respect of that annual leave, unless there was an express or implied term to the contrary. There was no indication of any express or implied term to the contrary in the present case.

11. Section 55 of the Act may appear at first blush to be relevant but it is not. It provided that:

    Interaction between the National Employment Standards and a modern award or enterprise agreement

    …

    Ancillary and supplementary terms may be included

    (4)A modern award or enterprise agreement may also include the following kinds of terms:

    (a)terms that are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards;

    (b)terms that supplement the National Employment Standards;

    but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the National Employment Standards.

    …

    Note 2:Supplementary terms permitted by paragraph (b) include

    (for example) terms:

    (a)that increase the amount of paid annual leave to which an employee is entitled beyond the number of weeks that applies under section 87; or

    …

    Effect of terms that give an employee the same entitlement as under the National Employment Standards

    (6)To avoid doubt, if a modern award includes terms permitted by subsection (4), … then, to the extent that the terms give an employee an entitlement (the award … entitlement) that is the same as an entitlement (the NES entitlement) of the employee under the National Employment Standards:

    (a)those terms operate in parallel with the employee’s NES entitlement, but not so as to give the employee a double benefit; and

    (b)the provisions of the National Employment Standards relating to the NES entitlement apply, as a minimum standard, to the award … entitlement.

    Note:For example, if the award … entitlement is to 6 weeks of

    paid annual leave per year, the provisions of the National Employment Standards relating to the accrual and taking of paid annual leave will apply, as a minimum standard, to 4 weeks of that leave.

    …

12. Section 55 does not assist with the present issue, because the entitlement to the additional two weeks of annual leave was not given by the Award, but by a separate contract, and the question was not what the National Employment Standards applied to, but what the Award applied to.

13. As Mambourin did not pay the 17.5% annual leave loading to Ms Anstey for her two weeks annual leave in addition to her National Employment Standard annual leave, Mambourin breached cl.31.3(a) of the Award and thereby breached s.45 of the Act. That section prohibits an employer to whom an award applies from contravening a provision of the award.

14. In that event, Mambourin argued that Ms Anstey could not recover the additional leave loading for the whole of her employment with Mambourin because s.544 of the Act imposed a limitation on actions. That section provided as follows:

    A person may apply for an order under this Division in relation to a contravention of one of the following only if the application is made within 6 years after the day on which the contravention occurred:

    (a)  a civil remedy provision;

    …

15. Section 539 of the Act defines civil remedy provision to include s.45 of the Act. Therefore, the time limit applies to the breach of cl.31.3(a) of the Award.

16. The application in the present case was filed on 23 October 2018. Therefore, the amount payable by Mambourin to Ms Anstey is the amount of annual leave loading that she should have been paid for her additional two weeks of annual leave that she took or accrued on or after 23 October 2012. I will hear the parties on the calculation of that sum.

Meal breaks

1. Ms Anstey said at paragraphs 5 and 6 of her outline of submissions filed on 6 November 2019 that Mambourin breached the Agreement by failing to give her meal breaks when she was working as a casual instructor.

2. In her closing oral submissions, Ms Anstey indicated that she had conceded the meal break point factually, but was not formally abandoning the point. 

3. The Agreement provided in cl.21.1.1 that:

   21.1.1   Centre Based Activities

   21.1.1(a)Except as provided in 21.1.1(b), a meal interval of not less than 30 minutes and not more than 60 minutes shall be allowed to each employee during each shift. Such meal interval shall not be counted as time worked.

   21.1.1(b)Where an employee is required, by the employer, to remain available for work during the meal break, the meal break will be counted as time worked.

4. Ms Anstey’s evidence was to the effect that she was not given a meal break, but always sat with Mambourin clients during meal times and they all ate their meals together.24

   24 Tr. p.146.

5. However, cl.21.1.1(b) of the Agreement meant that, if an employee was required by the employer to work during the meal break, that time was to count as time worked and, as such, needed to be paid for.

6. Ms Cornell gave evidence that Ms Anstey was required to work during meal times and was paid for that time.  That evidence was not ultimately disputed and I accept it.

7. Consequently, there was no breach of cl.21.1.1 of the Agreement.

Weekend penalty rates

1. Ms Anstey said that Mambourin breached the Agreement by failing to pay her weekend rates as required by cl.20.2.2(ii) of the Agreement. Subclause 20.2 of the Agreement provided that:

   Clause 20.2 applies to those Employees who were employed prior to the date of lodgement of the Agreement.

   20.2The ordinary hours of work shall be 152 per four week period to be worked either:

   20.2.1Monday to Friday between the hours of 7.30 a.m. and 7.30 p.m. and shall be worked as required by the employer as either:

   ·twenty days of not more than 7.6 consecutive hours each;

   or

   ·a maximum of 9 consecutive hours in any one day with a maximum average of 38 hours per week over a four week period by providing for rostered days off;

   or

   ·by mutual agreement any other arrangement provided that the length of any ordinary day shall not exceed 12 consecutive hours and provided that no more than 48 hours may be worked in any one week.

   The actual starting and finishing time shall be arranged at the workplace,

   OR

   20.2.2Where it is proposed that work be carried out on Saturday and Sundays, the following shall apply:

   ·by agreement between the employer and the employee, an employee may work ordinary hours on any five days out of seven between the hours of 7.30 a.m. and 7.30 p.m. provided that:

   (i)an employee receives two consecutive days off, and

   (ii)any ordinary time worked on Saturday and Sunday will be remunerated at time and one quarter. The extra quarter shall be taken as time in lieu except where the employer and the employee agree that payments may be made at the same rate as the time in lieu.

   (iii)any time worked that is additional to 38 hours shall attract the rates as prescribed for time off in lieu/overtime.

2. Ms Anstey said that her pay records at CB424 and following showed that she was not paid a weekend loading and there was no evidence that she was given time off in lieu.25

   25 Tr. p.189.

3. Mambourin said that it was not required to pay Ms Anstey a weekend loading under cl.20.2 of the Agreement, in addition to the casual loading under cl.11.3 of the Agreement, because cl.20.2 of the Agreement only applied to employees who were employed prior to the date of the lodgement of the Agreement. That is apparent from the heading to cl.20.2 of the Agreement. The Agreement was lodged in or around 2008, and certainly before Ms Anstey commenced working under the Agreement as a casual facilitator or instructor in 2014.26 I accept Mambourin’s submission on this point.

   26 Tr. p.203.

4. Mambourin also submitted that cl.20.2 was patently only applicable to part-time and full-time employees, and not to casual employees, such as Ms Anstey. Mambourin said that appeared from the opening words of cl.20.2 of the Agreement, which specify the ordinary hours of work as 152 hours per four week period. That works out to an average of 38 hours per week.

5. Obviously, casuals do not have ordinary hours as such. By the definition in cl.11.2 of the Agreement, a part-time employee works less than an average of 38 hours per week. However, Mambourin submitted that cl.20.2 of the Agreement applied to part-time employees, even though they do not have ordinary hours of 152 hours per four week period.

6. If a clause specifying that ordinary hours of work are 152 hours per four week period can apply to part-time employees, it would seem that it could also apply to casual employees. It is unnecessary to determine this issue, because I accept Mambourin’s primary argument that cl.20.2 of the Agreement did not apply to Ms Anstey because she was not employed under the Agreement as a facilitator or an instructor prior to the lodgement of the Agreement.

7. There was no dispute that Ms Anstey was employed as a casual.  As such, her pay was governed by cl.11.3 of the Agreement, which provided that:

   A casual employee shall be paid for all work done an amount equal to one thirty-eighth of the weekly wage appropriate to the employee’s classification per hour plus 20 percent. (emphasis added)

8. Because that clause applied to all work done, and did not distinguish between work done on weekdays and work done on weekends, it stated the extent of Ms Anstey’s entitlement to remuneration. She was not entitled to any extra payment for work on weekends.

Conclusion

1. As mentioned above, I will hear the parties on the quantum of the annual leave loading payable to Ms Anstey. I will also hear the parties on directions relating to a hearing on penalty in relation to the leave loading issue.

I certify that the preceding two hundred and ten (210) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  4 March 2020