Atkins v Parks Victoria

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Atkins v Parks Victoria [2022] FedCFamC2G 439

File number(s): MLG 4337 of 2020
Judgment of: DEPUTY CHIEF JUDGE MERCURI
Date of judgment: 8 June 2022
Catchwords: INDUSTRIAL LAW – FAIR WORK – adverse action claim – where the employee made a number of complaints about workplace bullying – where the employee was investigated for misconduct allegations relating to harassment, sexual harassment and bullying – consideration of what conduct constituted adverse action as defined under the Fair Work Act 2009 (Cth) – consideration of whether the adverse action was taken for proscribed reason – where multiple people were involved in the decision-making process – circumstances distinguished from those in National Tertiary Education Union v Royal Melbourne Institute of Technology – finding that reverse onus on respondent has been discharged – application dismissed.
Legislation: Fair Work Act 2009 (Cth), ss 340, 342, 360, 361
Cases cited:

Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482

Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) (2013) 216 FCR 70

Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563

Lees v Asaleo Personal Care Pty Ltd [2021] FCFCA 347

National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139

Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244

Technologyone v Roohizadegan (2021) 309 IR 262

Unsworth v Tristar Steering and Suspension Australia Ltd (2008) 216 FCR 122

Division: Division 2 General Federal Law
Number of paragraphs: 173
Date of last submission/s: 15 December 2021
Date of hearing: 13-15 December 2021
Place: Melbourne
Counsel for the Applicant: Mr R Millar
Solicitors for the Applicant: McDonald Murholme
Counsel for the Respondent: Mr J Tracey
Solicitors for the Respondent: Minter Ellison Lawyers

ORDERS

MLG 4337 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

SHANE ATKINS
Applicant
AND:

PARKS VICTORIA
Respondent

ORDER MADE BY:

DEPUTY CHIEF JUDGE MERCURI

DATE OF ORDER:

8 JUNE 2022

THE COURT ORDERS THAT:

1.The applicant’s application filed on 21 December 2020 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

DEPUTY CHIEF JUDGE MERCURI:

INTRODUCTION

  1. Before the court is an application in which the applicant asserts that he has been subjected to adverse action in breach of the general protection provisions of the Fair Work Act 2009 (Cth) (‘FW Act’).

  2. In order to make out his claim, the applicant needs to establish that he was subjected to adverse action, as defined, and that the respondent has not satisfied…

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Details
Case
[2022] FedCFamC2G 439
Decision Date

CaseChat Overview and Summary

The matter of Atkins v Parks Victoria was heard in the Fair Work Commission. The applicant, Mr Atkins, who was employed by the respondent, Parks Victoria, as a park ranger, alleged that he was subjected to bullying and that his subsequent termination of employment was retaliatory. The respondent, however, denied these claims and argued that the actions taken against the applicant were not adverse actions within the meaning of the relevant legislation, and if they were, they were not for any proscribed reason. The court was tasked with determining whether the respondent's actions constituted adverse action and, if so, whether they were taken for a proscribed reason.

The primary legal issues before the court were whether the respondent's actions, including the investigation into the applicant's complaints, the issuing of misconduct allegations, and the subsequent termination of employment, constituted adverse action, and if they did, whether they were taken for a proscribed reason. The court had to examine the definitions and scope of adverse action under the relevant legislation and consider the evidence provided by both parties regarding the timing and nature of the respondent's actions.

The court found that there was a reasonable explanation for the timing and commencement of the investigation process, which was separate from the applicant's complaints. The investigation was initiated following a complaint by another employee and was not a direct result of the applicant's complaints. The court also found that the respondent's actions were not taken for a proscribed reason, as they were based on the findings of the investigation and not in retaliation for the applicant's complaints or exercise of workplace rights. The court dismissed the applicant's application on these grounds.

The final orders of the court were that the applicant's application be dismissed, and the respondent was not required to take any further action in response to the applicant's claims. The court's decision was based on the evidence presented and the legal framework governing adverse action and retaliatory conduct in the workplace.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In relation to the Threat, the Stand Down and the issuing of the Misconduct Allegations, the respondent’s primary argument is that none of these constitute adverse action as defined. In the alternative, the respondent submits that if any of these incidents are found to amount to adverse action, the evidence shows that none of these actions were done for a proscribed reason.FACTUAL BACKGROUND It is common ground that the applicant was employed as a park ranger by the respondent for approximately 20 years. The applicant was based in Traralgon.[1][1] Applicant’s Outline of Submissions filed on 25 November 2021 at paragraph [2]. From January 2015 to September 2019, the applicant reported to Mr Darren Hill, the Ranger Team Leader. It is also common ground that the working relationship between the applicant and Mr Hill was difficult and that the applicant made various complaints and inquiries in relation to his employment whilst he reported to Mr Hill and thereafter. These complaints and inquiries included that:(a)on 13 February 2017, the applicant sent an email to Mr Fenwick, the Manager of Regional Operations, complaining about Mr Hill micromanaging and bullying the applicant;(b)on 24 May 2018, the applicant attended a meeting with the Area Chief Ranger, Ms Bridget Grant, and requested an investigation into Mr Hill’s conduct, which the applicant described as being ‘bullying’ behaviour;(c)on 4 January 2019, the applicant sent an email to the respondent’s legal counsel regarding ‘workplace bullying East region’ in which he foreshadowed that he would be making complaints about these issues to a range of external bodies;(d)on 15 February 2019, the applicant sent an email to the respondent’s Chief Executive Officer (copying in a range of other senior executives) complaining about bullying being entrenched in the respondent’s management;(e)on 19 March 2019, the applicant inquired about the status of his bullying complaints and raised concerns about the lack of information provided about the progress of the complaints;(f)on 8 April 2019, the applicant repeated his complaints about Mr Hill’s conduct in the course of a mediation regarding his bullying complaints;(g)in late May[2] or August 2019,[3] the applicant made an application to the Fair Work Commission for a stop bullying order; and(h)after the Fair Work Commission proceeding was dismissed on 20 January 2020, the applicant attended a meeting with his new line manager in February 2020 at which two proposals were put forward regarding his ongoing working relationship with Mr Hill. The applicant complained that neither of these options were fair and rejected them both.[2] Affidavit of Ms Rebecca Quinn sworn and filed on 30 March 2021 at paragraph [31].[3] Applicant’s affidavit sworn on 8 March 2021 and filed on 9 March 2021 at paragraph [22]. It is also common ground that the applicant met with Ms Rebecca Quinn on 14 February 2019. There is a dispute as to whether Ms Quinn threatened Mr Atkins at this meeting. I will explore the evidence in relation to this further below.

Evidence

Evidence Before The Court

Mr Atkins raised his concerns about Mr Hill’s management style numerous times and with various different people within Parks Victoria. The applicant’s own evidence is that on one occasion, when complaining about Mr Hill to Ms Grant, Ms Grant advised him to ‘make an official complaint to Margaret Gillespie – People and Culture’.[5] In his email to Ms Gillespie, Mr Atkins said he would lodge complaints with various external agencies until ‘Parks Victoria [sic] current course of action is…looked at more seriously’.[6][5] Applicant’s affidavit sworn on 8 March 2021 and filed on 9 March 2021 at paragraph [14].[6] Applicant’s affidavit sworn on 8 March 2021 and filed on 9 March 2021 at paragraph [15].Evidence of Ms Rebecca Quinn It is Ms Quinn’s evidence that on 23 August 2018, another employee (i.e. not the applicant) made a complaint about Mr Hill’s management style.[7] Ms Quinn’s evidence is that following this complaint, the respondent engaged Metis Pathways to conduct a ‘health check’ to determine whether there were issues at the Traralgon branch, where Mr Atkins, the whistleblower and Mr Hill all worked. The health check involved Metis Pathways conducting interviews with staff from the Traralgon branch, collating the information gathered and preparing a report outlining their findings and recommendations.[7] Affidavit of Ms Rebecca Quinn sworn and filed on 30 March 2021 at paragraph [15] and following. Ms Quinn further states that in the course of the health check process, Mr Atkins made a complaint about Mr Hill bullying him. This led the respondent to commission a different agency, Grange Advisory, to conduct a preliminary external investigation into Mr Atkins’ complaints.[8] Grange Advisory was engaged to review the concerns raised by Mr Atkins to determine whether an external investigation was necessary.[8] Affidavit of Ms Rebecca Quinn sworn and filed on 30 March 2021 at paragraph [28] and following. In March 2019, Grange Advisory provided a report to Parks Victoria in which it concluded that even if the concerns raised by Mr Atkins were substantiated, they would not constitute bullying, as they fall within the concept of reasonable management action. Grange Advisory therefore did not recommend a formal investigation be undertaken. It is also common ground that in late May or August 2019, Mr Atkins lodged a stop bullying claim with the Fair Work Commission (‘FWC’). Ms Quinn’s evidence is that the matters raised in this application by Mr Atkins were substantially similar to those raised and reviewed by Grange Advisory.[9] Ultimately, on 20 January 2020, the FWC delivered its decision in relation to Mr Atkins’ stop bullying claim. In summary, the FWC concluded that Mr Atkins had not been subjected to workplace bullying, and rather, that the actions taken by Mr Hill amounted to reasonable management action.[9] Affidavit of Ms Rebecca Quinn sworn and filed on 30 March 2021 at paragraph [31]. It is not in dispute that in December 2018, following the Metis Pathways health check process, a debrief meeting was held with the staff of the Traralgon branch, including Mr Atkins. Ms Quinn’s evidence is that this meeting was attended by Mr Graeme Baxter, the Regional Director, Regional Victoria and Ms Galbally from People and Culture.[10] Ms Quinn says that Mr Baxter reported to her that the applicant had yelled at him and Ms Megan Galbally during the health check debrief meeting, that Mr Baxter believed that Mr Atkins was recording the meeting and that Ms Galbally was ‘quite shaken up’ after the meeting as a result of Mr Atkins’ behaviour. [10] Affidavit of Ms Rebecca Quinn sworn and filed on 30 March 2021 at paragraph [22] and following.

Decision

Reasons for decision

There is a reasonable explanation for the commencement of the investigation process, including its timing. I am not satisfied that Mr Atkins’ complaints about bullying in the workplace or any other complaint or inquiry he made led to the investigation. The two processes, whilst close in time, were not causative of each other.CONCLUSION For each of these reasons, I therefore dismiss the applicant’s application.

Ratio Decidendi

Legal Principle Established

As stated, the respondent then sent a ‘show cause letter’ to the applicant on 21 September 2020, and ultimately, the applicant was given notice of termination of his employment by letter dated 20 October 2020.ISSUES FOR CONSIDERATION As stated, it is conceded by the respondent that the applicant exercised workplace rights and/or made inquiries relating to his employment. The respondent also concedes that the Show Cause Letter and the Termination constitute adverse action. In relation to these issues, the only question for this court is whether the respondent took this action for a proscribed reason. In relation to the ‘Threat’, the ‘Stand Down’ and the putting of the ‘Misconduct Allegations’ to the applicant, the court must determine whether any of these actions amount to adverse action and then if so, whether any of these actions by the respondent were taken for one of the proscribed reasons. Before dealing with each of these issues, I will firstly deal with the evidence upon which each of the parties rely.EVIDENCEEvidence of the applicant The applicant has filed and relies upon his affidavit of 9 March 2021 and his reply affidavit of 15 April 2021. As stated, the applicant claims that he was bullied and micromanaged by Mr Hill in the period from 2015 to September 2019 when he ceased reporting to Mr Hill. Mr Atkins raised his concerns about Mr Hill’s management style numerous times and with various different people within Parks Victoria. The applicant’s own evidence is that on one occasion, when complaining about Mr Hill to Ms Grant, Ms Grant advised him to ‘make an official complaint to Margaret Gillespie – People and Culture’.[5] In his email to Ms Gillespie, Mr Atkins said he would lodge complaints with various external agencies until ‘Parks Victoria [sic] current course of action is…looked at more seriously’.[6][5] Applicant’s affidavit sworn on 8 March 2021 and filed on 9 March 2021 at paragraph [14].[6] Applicant’s affidavit sworn on 8 March 2021 and filed on 9 March 2021 at paragraph [15].Evidence of Ms Rebecca Quinn It is Ms Quinn’s evidence that on 23 August 2018, another employee (i.e. not the applicant) made a complaint about Mr Hill’s management style.[7] Ms Quinn’s evidence is that following this complaint, the respondent engaged Metis Pathways to conduct a ‘health check’ to determine whether there were issues at the Traralgon branch, where Mr Atkins, the whistleblower and Mr Hill all worked. The health check involved Metis Pathways conducting interviews with staff from the Traralgon branch, collating the information gathered and preparing a report outlining their findings and recommendations.[7] Affidavit of Ms Rebecca Quinn sworn and filed on 30 March 2021 at paragraph [15] and following. Ms Quinn further states that in the course of the health check process, Mr Atkins made a complaint about Mr Hill bullying him. This led the respondent to commission a different agency, Grange Advisory, to conduct a preliminary external investigation into Mr Atkins’ complaints.[8] Grange Advisory was engaged to review the concerns raised by Mr Atkins to determine whether an external investigation was necessary.[8] Affidavit of Ms Rebecca Quinn sworn and filed on 30 March 2021 at paragraph [28] and following.