Austin v Honeywell Ltd - [2013] FCCA 662

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUSTIN v HONEYWELL LTD

[2013] FCCA 662

Catchwords:
INDUSTRIAL LAW – Adverse action – whether the Privacy Act 1988 is a workplace law – reason for termination of employment.

Legislation:
Civil Aviation Act 1988
Fair Work Act 2009 ss.12, 340, 341, 342, 343, 345, 351, 357, 360, 361
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Privacy Act 1988 ss.6, 6C, 7B, 12B, 18N, Schedule 3.
Civil Aviation Regulations 1988 regs.51, 215(9).
International Covenant on Civil and Political Rights Article 17

Cases cited:
Australian Licenced Aircraft Engineers Association v International Aviation Services Assistance Pty Ltd (2011) 193 FCR 526; (2011) 205 IR 392; [2011] FCA 333
Australian Licenced Aircraft Engineers Association v Sunstate Airlines (Qld) Pty Ltd (2012) 208 FCR 386; [2012] FCA 1222
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647; [2012] HCA 32
Fair Work Ombudsman v AJR Nominees [2013] FCA 476
General Motors-Holden's Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 51 ALJR 235; (1976) 12 ALR 605
On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No. 3) (2011) 279 ALR 341; (2011) 83 ATR 137; (2011) 206 IR 252; [2011] FCA 366
OPC v Employment Services Company [2005] PrivCmrA 13

Applicant:

FIONA AUSTIN

Respondent:

HONEYWELL LTD

File number:

MLG 1365 of 2012

Judgment of:

Judge Riley

Hearing dates:

28, 29 & 31 May 2013, 14 & 21 June 2013

Date of last submission:

21 June 2013

Delivered at:

Melbourne

Delivered on:

28 June 2013

REPRESENTATION

Counsel for the Applicant:

The applicant appeared in person

Solicitors for the Applicant:

The applicant was not represented

Counsel for the Respondent:

Robyn Sweet

Solicitors for the Respondent:

Reid Commercial Law

ORDERS

The application filed on 29 October 2012 and the application in a case filed on 13 May 2013 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1365 of 2012

FIONA AUSTIN

Applicant

And

HONEYWELL LTD

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application under the Fair Work Act 2009 (“the Act”). The applicant was not legally represented. Her application was not in the customary form. However, the respondent accepted that the applicant’s claims were made sufficiently clear in three documents, namely, her Form 4 Claim under the Act filed on 29 October 2012, her Statement of Claim (“SOC”) filed on 13 January 2013 and her application in a case filed on 9 May 2013.
In very brief summary, the applicant claimed that, during a pre-employment screening process, the respondent required her to provide, among other things, an electronic copy of her signature and a digital copy of her passport. The applicant declined to provide those things because she was concerned about identity theft and the bona fides of the agent who was engaged by the respondent to conduct the pre-employment screening.
The respondent withdrew the offer of employment it had made to the applicant. The applicant said this constituted adverse action because the applicant had exercised a workplace right that arose under a workplace law, namely, the Privacy Act 1988. The respondent also stopped engaging the applicant as an independent contractor or a casual employee. The applicant said the cessation of the engagement was for the same reason.
After the applicant commenced the present proceedings, the respondent did employ the applicant for a few months. However, her employment was then terminated. The applicant said the termination was adverse action taken against her because she had exercised her workplace rights as a prospective employee under the Privacy Act 1988 and under s.357 of the Act.
The applicant sought remedies including reinstatement and compensation for future earnings of over $2 million.
The respondent denied that the Privacy Act 1988 was a workplace law and denied that it had taken any adverse action against the applicant for a prohibited reason. The respondent said that:
a)the withdrawal of the initial offer of employment was because the applicant had refused to comply with its pre-employment screening process;
b)the independent contractor or casual employment arrangement had simply expired, and, in any event, was an arrangement with a company other than the respondent; and
c)the applicant’s subsequent employment was terminated because, in a nutshell, she would not accept the authority of her manager.

Background

The applicant began working for AlliedSignal (Australia) Sales Ltd (“AlliedSignal”) in 1996 in an administrative capacity while a full-time employee, Ms Arnfield, was on leave. Later, the applicant was engaged on an as needs basis to fill in for Ms Arnfield and to train Ms Arnfield in the use of certain software.
At a time and by an arrangement that was not explained to the court, AlliedSignal came to be known as Honeywell Polymers (Australia) Pty Ltd (“Polymers”). The applicant undertook duties for Polymers as directed by Mr Anderson, a former manager of Polymers, Mr Fawssett, a subsequent former manager of Polymers, and Ms Arnfield.
The applicant worked for Polymers:
a)in the early stages, during Christmas school holidays;
b)for three months in late 2010 and early 2011, during the illness of Ms Arnfield’s late husband; and
c)from January 2012 to 20 July 2012, mostly full time, because Honeywell International was setting up a new venture to be run by Polymers.
In late 2011, with the consent of Mr Fawssett, Ms Arnfield asked the applicant whether she would be interested in working for Polymers when Ms Arnfield retired. The applicant said that she would be interested. Ms Arnfield told her that Polymers would strongly recommend to the respondent’s HR Department that the applicant be given the position.
The position was advertised on 17 May 2012. The applicant applied. Four people were interviewed, including the applicant. On 8 June 2012, Rory Douglas, a Senior Staffing Specialist with the respondent, sent the applicant an email which included the following:
Hi Fiona,
Congratulations on making it to this stage in your job application with us here at Honeywell!
As part of the recruitment process we require every new employee to have completed Pre Employment Background and Drug Screening.
Our Pre Employment Background Checks cover a Criminal Record Check, Right to Work in Australia Check, Verification of Previous Employment, Verification of Qualifications and a Global Sanctions Check. These checks will be carried out by our vendor Hire Right.
The very first email that you will receive will be one from our online system requiring you to complete an Online Application Form. Once you complete this – our vendors will be in touch with you via email to request further information. Please ensure that you continue to check your email for updates until you get a notice that your background screen is complete.
During your background application process, HireRight may ask you to download, complete, and email or fax a special release form and copies of your identification. I would suggest getting ready your birth certificate/passport/drivers license, your first and last payslip from your previous employer if you can get it, as well as your educational certificates (if you have) scanned and ready to go as these are all pieces of information that may be asked of you.
…
Our Drug Testing will be carried out by our vendor Quest and you will receive an email with some instructions from them in the next 24 hours. You will be requested to select a collection site from the list provided to you to provide your sample. Please ensure that you provide your sample within 24-48 hours of receiving the email in order to avoid any delays.
Please remember the quicker the information/sample is provided, the quicker the results will be returned and we can onboard you here at Honeywell.
Also on 8 June 2012, HireRight sent the applicant an email asking her to logon to a particular website and provide the requested information. The email included the following:
Honeywell and HireRight will protect the personal data you provide by applying appropriate technical and organizational measures in accordance with applicable laws and Honeywell policies. You may request a copy of your data appearing in the results of the background check performed and, if any of it is factually inaccurate, you may correct it by contacting your human resources professional at Honeywell.
The data may be stored in countries with data protection laws that differ from the laws in your country. You may decline to provide the data to us. If you do, that may prevent Honeywell from offering you a position with the company. Honeywell may share this data with its affiliates located throughout the world. By providing this data, you consent to 1) the performance of a credit check if applicable to the position for which you are applying, 2) a criminal background check if applicable to the position, and 3) the results of the pre-employment screening being shared as described in this notice. HireRight will process the data on our behalf. By submitting the data to us, you consent to our use of the data as explained here and in our privacy statement >
On 9 June 2012, ES International/Quest Diagnostics, sent the applicant an email requesting that she attend Dorevitch Pathology within 48 hours of the email to provide a urine sample for drug testing. The email contained a consent form headed, “Notice and Consent for Drug Screening Test”.
The applicant marked up that document with certain amendments that she was prepared to agree to. The marked up document, showing the parts of the original that the applicant deleted and the parts that she substituted, is as follows:
Personal Data Protection
Notice and Consent for Drug Screening Test
The particular health or safety risks related to this position require the company to conduct a drug screening test. This Notice and Consent explains how Honeywell Australia will collect, process, transfer and protect your personal data if you agree to provide your personal data for the purposes of the drug screening test. If you receive an offer of employment from Honeywell Australia, the offer will be conditional on the satisfactory results of a drug screening test performed according to applicable law. In some countries, your fitness for employment will be determined by a medical professional..
1.The drug screening test will be conducted by analysis of a urine sample. Honeywell Australia has engaged Quest Diagnostics Inc. (“Quest”), a company located in the United States at the address below, to ~~obtain~~ receive t~~he sample and process the test~~the results of the test. Quest will send you a package regarding the test and ask you to attend a local collection site to provide a urine sample.
2.At the collection site you will be asked to provide basic personal data for the purposes of identification, including your name, unique identification number and your telephone number. The collection site will send your urine sample and the personal data to Quest. Quest will analyze the urine sample and determine the test result for unacceptable quantities of drugs that would impair your ability to perform your job-related duties. To make a final determination, it will engage University Services, a company based in the United States at the address below that specializes in confirming analyses of drug screening tests. University Services will also receive the personal data mentioned above. University Services may contact you to seek further information (including medical information). Subject to applicable law, any further information you provide to University Services may be disclosed to Honeywell Australia and Honeywell International in the United States at the address below and may become a factor in determining your suitability for employment with Honeywell Australia in the relevant rolesite will analyse your urine sample and provide the results to Quest. Your urine sample will NOT leave Australia. Your personal data will not leave the data collection site.
3.Depending on the test result, you may be asked to provide a second urine sample. If the test result is not negative, you will be contacted to identify the possible reasons for that result.
4.Quest will receive the final results of the test, update its records and notify Honeywell Australia. If the result of the drug screening test is not satisfactory, your offer of employment may be withdrawn or your employment terminated. In some countries, the results of the drug screening test will be provided to a medical professional who may make the final determination regarding your fitness for employment.
5.The results of your test will also be shared with a small number of staffing professionals in Honeywell International, Inc., an affiliate of Honeywell Australia, which is located in the United States at 101 Columbia Rd, Morristown, NJ. They will have access to the data to manage the drug screening program and it will process and protect your personal data in accordance with the requirements of the ~~U.S. – EU Safe Harbor framework~~Australian Privacy Act 1988.
6.Quest ~~and University Services have~~ has agreed to protect the personal data they receive from you in accordance with Honeywell Australia requirements and applicable Australian and International law. In particular, they will apply appropriate administrative and technical measures to safeguard the data. They will also be required to assure that any third parties that they engage to perform services related to the drug screening test, including the local collection sites, have agreed to protect the personal data appropriately. Quest, ~~University Services~~ and Honeywell International are located in the United States, and the data privacy laws there may be different than the laws in your country – your data will be treated in accordance with the data privacy laws in your country.
7.You can decline to participate in the drug screening test. However, if you decline, because of the particular health or safety risks related to this position, you will not be eligible for this position with Honeywell Australia.
8.You may request a copy of the personal data and, if any of it is factually inaccurate, you may have it corrected by contacting your Honeywell Australia representative. Before the drug screening test has been completed, you may request for the data to be cancelled. After the test is completed, subject to applicable law and Honeywell Australia’s records retention requirements, you may request for your personal data to be deleted. You may be required to submit your request in writing. ~~In accordance with applicable law, y~~Your data will be deleted ~~12 months after completion of the drug screening test~~ immediately upon receiving this request.
9.If you have any questions concerning this document, please contact your Honeywell Australia representative. In some countries, if you have a complaint regarding this processing of your personal data, you may submit your complaint to a competent court or agency.
Consent. Please take the drug screening test according to instructions that will be provided to you from Quest. Taking the test will qualify as a) your consent to the collection, use and transfer of your personal data as explained in this “Notice and Consent for Drug Screening Testing”; ~~b) your agreement that your consent is freely given, and c) your understanding that the testing is required because of the health and safety risks related to the position you have been offered.~~
Please retain this Notice and Consent for your records.
…
The applicant did not want her body samples being transported to the United States. She telephoned Dorevitch Pathology. Someone there assured her that her sample would not leave Australia and only the test results would be sent to ES International. After receiving that advice, the applicant proceeded with the drug testing. On 20 June 2012, the applicant emailed ES International her marked up consent form. She said in her email:
I have not, and will not, agree to the terms of consent attached to your email below.
On 21 June 2012, the applicant replied to the email from HireRight dated 8 June 2012. The applicant said, using the headings HireRight had provided:
Hello,
Background Request – Employment History
All necessary information is contained in my resume – as provided to Honeywell Australia during the application process and also attached for your convenience.
Background Request – Other Required Information
Australia Right to Work
My Australian passport was used to verify my identity with Honeywell Australia.
I do not provide consent for a copy of my passport to be stored on any server/computer anywhere in the world.
As my identity has been established, there is no longer any need for a copy of my passport to be kept by Honeywell Australia or any of its affiliates – or HireRight.
I have an Australian passport, therefore I have a right to work in Australia.
Criminal Records Check
This is currently being undertaken by the Australian Federal Police. Results will be sent to:

Rory Douglas

Senior Staffing Specialist

Honeywell Australia

45 Grosvenor Street
Abbotsford, VIC, Australia, 3067
Please email a copy of the photo from your Australia passport. Please email a copy of your Australia photo id (drivers license, passport, national ID, etc.)
See attached file:

OPC_v_Employment_Services_Company_2005_PrivCmrA_13.pdf
Note: my identification has already been verified (see above).
Background Request – Review Input Summary
Do we have permission to contact this current employer?
There is no way of changing the answer to this question.
It is misleading to include this as a question if there is no opportunity to say ‘No’.
Background Request – Consent & Submit Request
Please proof read the Certification Statement on your website (and review all instances of the word ‘Australia’ – most should be ‘Australian’).
This section of your website contains a lot of threats and does not provide the user with the opportunity to reject requirements such as: “I hereby release these companies, organisations, agents, individuals, and Honeywell International Inc. from any liability for any damage whatsoever resulting from the investigation, use or disclosure of such information.”
It is important you are very clear on my response to this – I do not release anyone from their legal obligations, nor do I waive any of my legal and/or human rights.
I have attached the Certification Statement to which I provide consent – see: HireRight_Honeywell_Certification Statement_Fiona Austin.pdf
By letter dated 21 June 2012, the respondent offered the applicant:
permanent employment with Honeywell Limited … .
The letter of offer included the following statement:
This offer is subject to successful Pre-Employment Screening and references, as well as your successful completion and passing the pre-employment drug tests conducted by Honeywell or any company designated by Honeywell to conduct the same.
Pre-Employment Screening involves Honeywell seeking information about criminal history, your identity, your prior employment, your education and qualifications, your right to work in Australia and other issues. It is very important that you have completed fully and accurately the Honeywell Online Application Form. Before you accept this offer, you should be satisfied that information about your background has already been disclosed.
If after you commence employment Honeywell is not satisfied that you meet all of the Pre-Employment Screening criteria, then Honeywell may terminate your employment by giving you notice of one week or paying you in lieu of that notice. However, if you have materially failed to disclose information about your background or you have provided inaccurate or misleading information which if disclosed fully would have led to Honeywell not offering you employment, then Honeywell may dismiss you without notice or payment in lieu. Honeywell’s rights to terminate as set out in this paragraph override all other requirements regarding notice of termination as provided in the terms and conditions of your employment.

On 23 June 2012, HireRight sent the applicant an email, which said, among other things:
Dear Fiona
HireRight is working to complete your background report on behalf of _$Customer Name=customer:name$_. To expedite this process, we would like your help providing the information below as soon as possible so that we can complete your report. We appreciate your assistance and prompt response.
What We Need:
·    A signed and completed Australia Right to Work Consent Form
·    A copy of your passport or Australian birth/citizenship certificate. (If you were born on or after Aug 20, 1986 and do not have a passport, please provide a copy of your birth certificate, a copy of a photo ID and evidence that at least one parent was an Australian citizen or permanent resident at the time of your birth.)
·    A signed and completed Australia Criminal Consent Form
·    A clear copy of your Government-Issued Photo ID. For example, this can be your passport or your driver license.
The email included a section on frequently asked questions, which included the following:
Frequently Asked Questions
Q:
Why could HireRight not verify this information without me?

A:
We make every effort to verify your information directly with the source provided. Unfortunately, there are times when we either need specific assistance from you or the source simply is not responding to our inquiries. We will continue to contact the source while reaching out to you so that we can complete your background check in the timeliest manner possible.
Q: Is my information secure?
A: All information sent to us, whether via email or by fax, is stored electronically and password protected and is ONLY accessible by authorized personnel. For additional information about HireRight’s data security, please visit What is the relationship between HireRight and Honeywell? Does this mean I am hired?
A: Honeywell has partnered with HireRight to conduct its background screenings. To learn more about HireRight, please visit Please note that HireRight does not make the hiring decision. For the status of your employment, we recommend that you contact _$Company Name=customer:name$_.
The applicant, in her statement of claim, said that she was concerned about identity theft and her privacy. She said that she was unwilling to provide to HireRight:
a)a consent to an Australian Right to Work check, because she had already provided a copy of her Australian passport to the respondent and, as a citizen, she obviously had the right to work here;
b)a consent to a criminal records check, because she had already sent to Rory Douglas her Australian Federal Police criminal records check which she had arranged directly with the AFP;
c)an emailed copy of her photograph from her passport or a copy of her driver’s licence, because providing HireRight with a copy of these documents is not a valid use of the documents under the Privacy Act 1988;
d)a consent to a Global Sanctions Check, because someone at the Australian Federal Police told the applicant that he or she had never heard of it so the applicant was not sure it was a valid check; and
e)a consent to HireRight’s certification statement, which required an electronic signature and consent to the use of information.
HireRight’s certification statement was as follows:
I understand that any omissions or misrepresentations by me in this application or any other documentation submitted in support of this application, including a resume, may be cause for dismissal or revocation of any employment offer. Any offer of employment is contingent upon satisfactory results of a job-related medical examination where applicable, a drug test by a company designated vendor at company expense, and a successful pre-employment screening. I understand I may be required to take and pass an employment test and/or provide military discharge certificate before I begin employment.
…
I authorise Honeywell International Inc. to verify information I provide on my employment application and to make whatever inquiries Honeywell considers appropriate concerning this information except information concerning HIV status, but including without limitation, my personal and employment references, public records, education and employment history. I authorise all my former employers, school officials, instructors, credit bureaus, local, state, and federal authorities, other persons named herein or subsequently provided as references, and other persons with information regarding my qualifications to give to Honeywell International Inc., or its agents, any oral or written information they have regarding me. I also understand that as a condition of being considered for employment I may be requested to authorise release of information to Honeywell and I will provide this authorisation upon request. I hereby release these companies, organisations, agents, individuals, and Honeywell International Inc. from any liability for any damage whatsoever resulting from the investigation, use or disclosure of such information. I further understand that as a condition of employment, I may have to obtain and retain necessary government security clearances.
…
PLEASE SIGN AND DATE THIS APPLICATION BELOW
I certify that all information I have provided is true and complete. By signing here, I agree that I read have and do understand and consent to the Certification Statement above.
Applicant Last Name Austin First Fiona Middle L

Electronic Signature

Applicant Signature Date 06/20/2012
On 27 June 2012, the applicant accepted the offer of permanent employment with the respondent.
On 28 June 2012, the applicant sent an email to Rory Douglas and others at the respondent’s office an email which provided a link to a ruling of the Privacy Commissioner in OPC v Employment Services Company [2005] PrivCmrA 13. That ruling relevantly included the following:
The Privacy Commissioner had received information that the employment services company … had photocopied applicants’ passports and required applicants to sign a form consenting to a wide range of uses and disclosures of their personal information
…
National Privacy Principle 7.2 allows the use of Commonwealth identifiers (such as passport numbers) in limited circumstances, including those in which an organisation is fulfilling obligations to the agency that assigned the identifier. In this case it was the practice of the employment services company to photocopy passports, including the passport number, and store that information to later verify the identity of the individual. The Privacy Commissioner was of the view that photocopying and storing a passport number was a use that was not authorised under NPP 7.2.
…
The Privacy Commissioner also raised concerns with the employment services company that its collection statement required applicants to consent to a broad range of uses and disclosures of individuals’ personal information which may not have been necessary. The Privacy Commissioner advised that broad or “bundled” consent forms diminish individuals’ freedom of choice, effectively coercing individuals to hand over their personal information and to agree to a variety of uses and disclosures in exchange for a service.
…
… The employment services company agreed that it would sight passports rather than copy them and it agreed to review its consent form to remove references to unnecessary uses and disclosures of personal information. The employment services company also agreed to review the application form with a view to allowing applicants to opt-in to future uses and disclosures of their personal information unrelated to their placement with employers.
On 29 June 2012, Ms Meldrum, the respondent’s Staffing Operations Leader – Pacific, telephoned the applicant. Ms Meldrum told the applicant that the successful completion of the pre-employment screening process was a condition of employment. The applicant told Ms Meldrum that she would not complete the process as it was illegal, and HireRight had been the subject of several legal cases in the United States including one in which HireRight had been sued for $2 million. Ms Meldrum told the applicant that she had confidence in the process and asked the applicant to reconsider her position.
On 10 July 2012, Ms Meldrum had another telephone conversation with the applicant in which Ms Meldrum confirmed that the pre-employment screening process was a condition of employment and that the respondent would not make any adjustments to the process for the applicant. The applicant said she did not understand why the respondent could not undertake the screens itself, without going through HireRight. Ms Meldrum said that the respondent did not have the technologies, skills or resources, but, even if it did, from a quality perspective, it was better for all candidates to go through an identical process. The applicant reiterated that she would not complete the process through HireRight and she would undertake the outstanding matters herself. Ms Meldrum told the applicant that was not acceptable.
Ms Meldrum arranged a meeting with the applicant on 12 July 2012. Ms Meldrum was in Sydney and attended by telephone. Mr Fawcett and Ms Jones, a Human Resources Generalist, attended the meeting in Melbourne with the applicant. Ms Meldrum advised the applicant that the respondent was not proceeding with the offer of employment because of the applicant’s refusal to complete the pre-employment screening process. Ms Jones provided to the applicant a letter dated

12 July 2012 from Ms Meldrum advising the applicant that the respondent had decided not to proceed with the applicant’s permanent employment. Ms Jones told the applicant that her temporary assignment with the respondent would continue until its completion on 20 July 2012.
The letter dated 12 July 2012 said:
As you know, it was a condition of the offer of employment dated 21 June 2012 that you successfully completed and passed various pre-employment processes conducted by Honeywell or any company designated by Honeywell to conduct them. Those processes required you to, amongst other things, fully and accurately complete the Honeywell Online Application Form and to follow certain steps that enabled information about you to be given to Honeywell.
The pre-employment processes conducted by Honeywell are applied to all people who apply for permanent employment with Honeywell in Australia.
As you have failed to satisfy the conditions required by Honeywell for your recruitment, it is with regret I must inform you that Honeywell has decided not to proceed with your permanent employment.
In the second half of 2012, an accountant named Cicilia was engaged on a temporary basis through an agency to do the work that Ms Arnfield had done.
On 29 October 2012, the applicant commenced proceedings in this court, alleging, among other things, that the respondent had taken adverse action against her (withdrawing the offer of permanent employment and stopping her temporary employment) as a result of her exercising a workplace right (protection of her rights under the Privacy Act 1988).
Ms Meldrum said that, as part of her review of the file for the purposes of these proceedings, it came to her attention that:
a)the results of the applicant’s drug screen had been released to the respondent by Quest and had a clear result; and
b)the Global Sanctions Check in respect of the applicant had been completed by HireRight and returned a clear result.
Ms Meldrum said that she was surprised by these results but was satisfied that the substance of the pre-employment screening process had been met. Accordingly, Ms Meldrum said that she was satisfied that a second offer of employment could be given to the applicant if a position for her existed.
Ms Bosch, the respondent’s Pacific Country HR Leader, said that on around 11 December 2012, Ms Meldrum told her that the applicant’s drug screen, Global Sanctions Check, and the Australian Federal Police check arranged by the applicant herself, had all returned clear results. Ms Bosch said that, as Mr Fawssett had said that the business would still like the applicant to be employed with the respondent, an offer of employment was made to the applicant.
Ms Bosch met with the applicant on 21 December 2012. Ms Bosch attended the meeting by telephone. Ms Jones attended the meeting in person with the applicant. Ms Bosch told the applicant that the respondent had decided to make an offer of employment to her. After some discussion, the applicant said that, notwithstanding the offer of employment, the legal proceedings would continue.
The second offer of employment was formally put in a letter dated

21 December 2012. The letter specifically acknowledged that the applicant had passed the pre-employment screening process. The applicant accepted that offer. She began work at the Polymers office on 14 January 2013.
In the meantime, Mr Fawssett had indicated that he intended to retire. Mr Hettrick, who was new to the respondent’s office, was engaged to take over Mr Fawssett’s position. Mr Hettrick began working with the respondent on 7 January 2013. Mr Fawssett continued at the Polymers office for a couple of weeks to provide a handover.
The Polymers office was in Queens Rd and was separate from the respondent’s main office in Abbotsford. The Polymers office was a two-person office, except during the period when Mr Fawssett was handing over to Mr Hettrick.
Mr Hettrick was the respondent’s Pacific Fluorine & Resins Sales Manager for the Performance Materials and Technologies Division. He was the applicant’s manager.
Starting on 4 April 2013, there was a chain of emails as follows:
From:
Austin, Fiona

Sent:
Thursday, April 04, 2013 4:59 PM

To:
Schoenhaus, Janet

Cc:
Hettrick, Michael; Dau, Jacob; Lee, Iris; Shirodkar,

Kiran; Cheng, Lilian; Takise, Katsuyuki
HI Janet,
SAP is still in the process of being set up for HPAPL [ie Polymers].
In essence, we cannot use SAP as we have no workable access to it and the tiny, tiny bit we do have access to does not work correctly.
A lack of adequate consultation with HPAPL resulted in the current situation, along with those setting up the system making inaccurate assumptions about HPAPL.
I have notified the relevant people of the problems with SAP, but so far, nothing has been done about it except try to avoid acknowledging the problems.
As has always been the case, HPAPL manages its own finances and has done so to a very high standard for many years – and it will continue to do so.
HPAPL accounts have been updated with the receipt of money – although, not in SAP. When I submit HPAPL’s monthly accounts to Fei Wang for consolidation into the group accounts, SAP will be updated. This is not ideal, but until something is done about the SAP setup for HPAPL, problems will continue to arise.
Thanks and regards,
Fiona Austin
From:
Dau, Jacob
Sent:            Thursday, April 04, 2013 5:08 PM

To:
Bengtsson, Martin

Does this sound like the problem is fixed? Read below…
From:
Bengtsson, Martin
Sent:            Friday, April 05, 2013 8:37 PM

To:
Lu, Jingping; Austin, Fiona
Cc:           Dau, Jacob

Jingping, Fiona,
After reading some previous emails on this topic, and also reading the emails below regarding SAP in Australia, it clearly sounds like we have issues that need to be addressed. I cannot say whether this is a system issue, process issue, training issue, or something else….but clearly there is an expectation gap between how Australia believes this should work, and how things are actually working at the moment.
Jingping – can you please schedule a discussion with Fiona to talk through the Australia SAP matter and involve relevant parties. Then please let me and Jacob know the outcome of that discussion and if you need any support from our end to get something done and if we need to give anyone a push to get something done to resolve the matter.
Many thanks,
Martin
From:
Lu, Jingping
Sent:            Tuesday, 9 April 2013 1:52 PM

To:
Austin, Fiona
Cc:           Qi, Jerry, Hettrick, Michael

Fiona – Can you please send Jerry and me a copy of all sales agreements so far? I would like to read it to understand the business in that legal entities.
Thanks,
Jingping
From:
Austin, Fiona
Sent:            Tuesday, April 09, 2013 3:33 PM

To:
Lu, Jingping
Cc:           Qi, Jerry; Hettrick, Michael

Jingping,
Jerry Qi is at the centre of all the problems.
It would be much more productive if you were to discuss the issues with me. You won’t get any idea about HPAPL as a legal entity or its business operations from Jerry and triple handling information only leads to misinterpretations and errors.
The processes Jerry has put in place are causing a large number of problems and I have spent a great deal of time correcting errors and providing information to people so they can complete tasks I could have done a billion times faster and more effectively than has been done – the “receipting” of the first invoice payment is a perfect example of this.
When you talk about “sales agreements” are you talking about “purchase orders”? If so, they look much the same as any other purchase order Honeywell Shanghai receives and they don’t contain any information that would help you gain a better understanding of HPAPL. If not, we don’t have “sales agreements” with our customers – they are existing customers of the Honeywell group of companies. In May 2012, there was talk of HPAPL signing a sales agreement between Honeywell Shanghai and another with Honeywell International, but as far as I am aware, the documents were never signed.
If you want to understand HPAPL’s business operations you are more than welcome to telephone me or to ask me specific questions in an email – I am even happy to provide you with a written outline and background to the Import Venture.
Thanks and regards,
Fiona Austin
From:
Qi, Jerry
Sent:            Tuesday, 9 April 2013 8:42 PM

To:
Austin, Fiona; Lu, Jingping
Cc:           Hettrick, Michael

Fiona
Definitely you have lots of first hand information because you are on site and close to customer very much, so it becomes very necessary for us to work as a team and share information rather than continue complaining. Like the cash application case stated below, it is late to be processed because you didn’t tell us that the money had been received until Apr. 4^th. Please understand it is not your responsibility to process it in SAP, Asia credit team is. Because credit role is segregated with customer service role per Honeywell segregation of duty policy. Obviously you are lack of compliance awareness and SAP training. So if you have anything unclear, please tell us in details, we are glad to help you. I think it is the right way to resolve matter.
By the way, Polymers is a small entity with less than 50 entries per month, a large number of problems or great deal of time may be overstated if you are serious.
Rgs,
Jerry
From:
Austin, Fiona
Sent:            Tuesday, April 09, 2013 02:54 PM

To:
Qi, Jerry

Cc:
Hettrick, Michael; Lu, Jingping

Jerry,
You need to stop avoiding the problems you have caused and stop blaming other people.
“Obviously you are lack of compliance awareness and SAP training” – rubbish – and assuming I am stupid is a really, really bad idea.
“It is late to be processed because you didn’t tell us that the money had been received until Apr. 4^th” – the money appeared in our bank account on the morning of April 4^th – you couldn’t have been notified any earlier!
I am not unclear on anything, nor am I overstating the problems you have caused.
You are not capable of “helping” as you refuse to acknowledge the problems you have created.
Thanks and regards,
Fiona Austin
From:
Hettrick, Michael

Sent:
Wednesday, 10 April 2013 5:41 PM

To:
Austin, Fiona

Hi Fiona,
Hope you are well.
I have read your email to Jerry and am disappointed with the personal nature and tone of the email. This is not helpful for anyone.
Please do not send any more correspondence on this issue until we can discuss face to face on Monday.
Regards
Mike H.
From:
Austin, Fiona

Sent:
Wednesday, April 10, 2013 01:37 AM

To:
Hettrick, Michael
Michael,
What has not been helpful is the way Jerry has been allowed to behave.
I will communicate in the way most effective to the situation.
We have already discussed this face to face – nothing has come of it.
You are in Shanghai, if you had wanted to contribute anything useful, you would have done so. From the emails I have received from Jerry and Jingping you have not done so. If anything, you have encouraged Jerry in his behaviour.
Thanks and regards,
Fiona Austin
From:
Hettrick, Michael

Sent:
Wednesday, 10 April 2013 6:46 PM

To:
Austin, Fiona
Fiona,
Once again you make assumptions that are not correct. As I have instructed you, please do not make any further accusations regarding this matter until we discuss further on Monday when we are face to face.
Thanks
Mike H.

Mr Hettrick returned to the office from Shanghai on 15 April 2013. He became aware of a chain of emails as follows:
From:
Takise, Katsuyuki
Sent:            Sunday, 14 April 2013 7:05 AM

To:
Austin, Fiona

Cc:
Hettrick, Michael

Fiona,
As you may know, all HON employee are required to have 6 sigma greenbelt within certain period after join HON
You are first required to take Fundamental Training for Six Sigma.
Please consult your HR for earliest training opportunity.
Thanks
Ken Takise
From:
Austin, Fiona
Sent:            Monday, April 15, 2013 6:51 AM

To:
Takise, Katsuyuki

Cc:
Hettrick, Michael

Ken,
In answer to your question as to why I have not yet completed the Six Sigma training………..
The training module does not work – it works for about an hour and then stops. When it is restarted it does not recognise any segments that have already been completed – you have to start from the beginning each time.
In addition, the mess that has been made of HPAPL data on SAP, combined with the refusal of Jerry Qi to work with me to fix those problems, has resulted in my having an increased workload and less time to spend on training modules that do not work.
Thanks and regards,
Fiona Austin
From:
Takise, Katsuyuki
Sent:            Monday, 15 April 2013 2:24 PM

To:
Austin, Fiona

Cc:
Hettrick, Michael

Fiona
Thank you very much for your explanation.
We are sorry that system did not worked well and it wasted your important timing.
I will ask HR to fix that system soon and registered you as trained if you took video training.
If you could not complete due to mechanical trouble, I would like you to take one more if the mechanical trouble fixed.
We are sorry for giving very inconvenience and wasting your time.
Thanks
Ken
From:
Austin, Fiona
Sent:            Monday, 15 April 2013 2:45 PM

To:
Takise, Katsuyuki

Cc:
Hettrick, Michael
No word on Jerry Qi or SAP?
Thanks and regards,
Fiona Austin
The applicant said in her affidavit affirmed on 1 May 2013 that Mr Hettrick told her late in the morning of Friday 19 April 2013 that there would be a meeting at 3pm that day between the applicant, Mr Hettrick and Amanda Jones. She said that she was not given any reason for the meeting.
Mr Hettrick said in his affidavit affirmed on 23 May 2013 that he was concerned about the manner in which the applicant had used the issue of Six Sigma training to escalate her issues relating to SAP and Mr Qi in a manner that targeted Mr Qi personally.
The meeting occurred on 19 April 2013. The applicant walked out before it had concluded.
On 23 April 2013, between 8.30am and 9.00am, Mr Hettrick asked the applicant to produce a report including some information that could only be obtained from SAP. The applicant had access to SAP and Mr Hettrick did not. The applicant said that she could not produce the report, because she was busy doing the accounts which were due at the end of the following day.
By email sent at 9.03am on 23 April 2013, Mr Hettrick asked the applicant to send him the report by return email. He had not received the report by 9.30am when he had to leave the office for a meeting.
Later on 23 April 2013, Mr Hettrick asked the applicant by letter to attend a disciplinary meeting on 24 April 2013. The letter said:
DISCIPLINARY MEETING
As you are aware, I met with you and Amanda Jones on Friday, 19th April 2013 for the purpose of discussing a number of concerns arising out of your recent conduct. Although I was able to briefly raise with you my concerns regarding your email to Jerry Qi and your apparent unwillingness to accept Honeywell process, there were additional matters which I was prevented from raising due to your premature termination of the meeting.
From the outset and as your Manager, I want you to understand that I found your behaviour during the meeting to itself be of great concern and was unsatisfactory.
I also want you to understand that I have found your conduct this morning to be openly hostile, defiant to my authority as your manager and completely unacceptable moving forward.
Accordingly, I have scheduled a meeting for Wednesday 24^th April at 3.00pm, for the purposes of:
(a)completing the discussion with respect to your email to Jerry Qi and your apparent unwillingness to accept Honeywell process;
(b)discussing the additional concerns which I was prevented from raising with you on 19th April 2013 (which are broadly in the nature of the disrespect you show to me as your Manager);
(c)discussing my concerns about your behaviour on 19th April during and surrounding the meeting itself; and
(d)you repeated conduct this morning in refusing to complete work which I had asked you to do.
Amanda Jones will also be in attendance.
So that there is no misunderstanding, it is my belief that the above matters constitute potential misconduct by you. The meeting I have scheduled is a disciplinary meeting during which I propose to detail my concerns, and to provide you with an opportunity to respond to them. Please understand that should you either fail to attend the meeting as directed, or fail to provide a satisfactory explanation for your conduct, disciplinary action may be taken.
You are entitled to have a support person attend this meeting, if you require. This may be someone internal or external to Honeywell. Should you wish to bring along someone external to Honeywell please notify me in advance.
Yours faithfully,
Mike Hettrick
The meeting on 24 April 2013 was attended by Mr Hettrick, the applicant, Ms Jones and Mr O’Loughlin, an industrial officer with the Australian Services Union. At the conclusion of the meeting, Mr Hettrick gave the applicant a letter informing her that her employment was suspended. The letter said:
Dear Fiona
Letter of Suspension
As I communicated in our meeting today, I propose to give your responses to the allegations made today further consideration. To that end, I would like to give you further opportunity to provide me with any new information, not presented today, that you consider relevant and most importantly any reason why you believe that either:
(a)Your conduct, taken individually and as a whole does not constitute serious misconduct; and
(b)Why your employment should not be terminated, including potentially on a summary basis.
This information must be provided to me via email by 3.00pm Friday 26^th April 2013.
As I consider your responses to date, I have decided to suspend you on full pay pending that decision. While you are suspended, you are not to:
(c) Access or attempt to access any Honeywell premises;
(d)Access or attempt to access any Honeywell computer systems;
(e)Contract (sic) or attempt to contact any Honeywell customer or supplier;
(f)Access the Honeywell Polymers company bank accounts; and/or
(g)Contract (sic) or attempt to contact any Honeywell employee other than myself, Amanda Jones or Caroline Bosch.
I would also like to take this opportunity to remind you of our EAP service and remind you that you are free to access that service at any time.
If you have any further questions, please contact Amanda Jones or Caroline Bosch.
Honeywell will be in contact with you regarding your employment in the near future.
Yours Sincerely,
Mike Hettrick Amanda Jones
The applicant said that she wanted to email HR in the United States. Ms Jones agreed that the applicant could do so before commencing her suspension. After some time, the applicant had not left the building. Mr Hettrick called the police. After they arrived, the applicant left.
By letter dated 7 May 2013, Mr Hettrick invited the applicant to a meeting on 8 May 2013. The meeting was attended by Mr Hettrick, the applicant, Ms Jones and another HR person from the respondent. Mr Hettrick gave the applicant a letter indicating that her employment was terminated due to misconduct and she would be given four weeks pay in lieu of notice.

Ground 1: s.340(1): Refusal to employ prospective employee and termination of independent contractor arrangement: para 31 of Form 4 and para 34 of the SOC

The applicant said that the respondent contravened s.340 of the Act by taking adverse action against her because she had exercised a workplace right. Subsection 342(1) item 2 of the Act provides that a prospective employer takes adverse action against a prospective employee if the prospective employer refuses to employ the prospective employee. Subsection 343(1) item 3 of the Act provides that a principal takes adverse action against an independent contractor if the principal refuses to make use of services offered by the independent contractor.
The applicant said that she had a workplace right under s.341(1) of the Act because she was entitled to the benefit of a workplace law, namely, the Privacy Act 1988.
The respondent argued that the Privacy Act 1988 is not a workplace law, within the meaning of s.12 of the Act, because it is not a law:
that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).
Indeed, the respondent submitted that s.7B(3) of the Privacy Act 1988 specifically exempts acts related to a current or former employment relationship. That subsection is as follows:
Employee records
(3)An act done, or practice engaged in, by an organisation that is or was an employer of an individual, is exempt for the purposes of paragraph 7(1)(ee) if the act or practice is directly related to:
(a)a current or former employment relationship between the employer and the individual; and
(b)an employee record held by the organisation and relating to the individual.
Nevertheless, the applicant relied on Australian Licenced Aircraft Engineers Association v International Aviation Services Assistance Pty Ltd (2011) 193 FCR 526; (2011) 205 IR 392; [2011] FCA 333 at [234] to establish that the Privacy Act 1988 does regulate the relationship between employers and employees. Paragraph 234 of that case is as follows:
Both parties recognise that the Court must give effect to the definitions of “workplace law” and “workplace instrument” as they are found in s 12 of the FW Act. In my view, the argument of the respondent, to the effect that the [Fair Work (Transitional Provisions and Consequential Amendments) Act 2009] does not of itself regulate relationships between employers and employees when it provides for the continuance of an [individual transitional employment agreement], should be rejected. I understand the argument put on behalf of the respondent. But it advances a constrained view of a law “that regulates the relationships between employers and employees”. It depends on that expression being interpreted to mean a law that directly impacts, whether in a positive of negative way, or authorises a court or some other body to make decisions that directly impact, on, or on the exercise of, particular rights, duties or obligations that define the relationships of employers and employees. No doubt laws of such a description would very clearly be within the definition of a “workplace law” provided by s 12 of the FW Act. However, that is not to say a law that preserves the underlying agreement that gives rise to such rights, duties and obligations does not also answer the description.
Barker J went on at [235] to say:
In my view, the [Fair Work (Transitional Provisions and Consequential Amendments) Act 2009] “regulates the relationships between employees and employers” by expressly providing that an [individual transitional employment agreement] has force and effect and continues to govern the relationship between an employee and employer.
The Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 is obviously quite far removed from the Privacy Act 1988 in terms of the how those Acts might be said to regulate the relationship between employers and employees. The applicant did not articulate the manner in which the Privacy Act 1988 regulates the relationship between employers and employees and did not articulate how Australian Licenced Aircraft Engineers Association v International Aviation Services Assistance Pty Ltd assists her in this case.
Some light is shed on the matter by the decision in Australian Licenced Aircraft Engineers Association v Sunstate Airlines (Qld) Pty Ltd (2012) 208 FCR 386; [2012] FCA 1222. The applicant in that case argued that regulations 51 and 215(9) of the Civil Aviation Regulations 1988, made under the Civil Aviation Act 1988, were workplace laws. Those regulations relevantly provided:
51         Reporting of defects in Australian aircraft — general
(1)Where a person who, in the course of his or her employment with an employer, is engaged in the maintenance of an Australian aircraft becomes aware of the existence of a defect in the aircraft, the person shall report the defect to his or her employer.
...
(4)If the holder of the certificate of registration for an Australian aircraft becomes aware of the existence of a defect in the aircraft, he or she must:
(a)     have an investigation made of the defect;
...
215   Operations manual
...
(9)Each member of the operations personnel of an operator shall comply with all instructions contained in the operations manual in so far as they relate to his or her duties or activities.
Penalty: 25 penalty units
In Sunstate, Logan J said:
31.… it is not fatal to the case which the ALAEA seeks to make against Sunstate that the sources of what it particularises as a workplace right are regulations, not provisions in an enactment.
32.It does not follow from this conclusion that the two particularised CA Regs are a law of the Commonwealth “that regulates the relationships between employers and employees”. It is trite that this descriptive clause must be construed as a whole. Not only must the law “regulate” but there must be an object of regulation of a particular specified kind – “relationships between employers and employees”.
33.A regulation which, like reg 51 or reg 215(9) of the CA Regs, imposes a duty on a person as an incident of undertaking a particular task in the course of employment – “engaged in the maintenance of an Australian aircraft” (reg 51) or as an incident of a particular type of employment –operations personnel of an operator (reg 215(9)) does not regulate the relationship between that person and his employer. Having regard to the dictionary definitions cited by Barker J in ALAEA v International Aviation Service, each of these provisions in the CA Regs might readily be characterised as a provision which “regulates” the conduct of a person to whom it applies but the object of that regulation is not the relationship between that person as an employee and his employer but rather that of air safety by the imposition of particular reporting obligations. Common to the definitions of “workplace instrument” and “workplace law” in s 12 of the Fair Work Act is the object of the relationship between employer and employee. Provisions which do no more than use the status of employer or employee as an incidental touchstone for the imposition of duties serving other ends do not fall within the terms of these definitions. (emphasis added)
34.Insofar as there may, because of this feature of the definitions, otherwise be room for debate as to whether provisions in statutes or regulations dealing with occupational health and safety matters had as their object the relationship between employer and employee, that debate is quelled by the express inclusion of such provisions in the definition of “workplace law”. That express inclusion also sets the limit of the additional reach of the definition.
Sunstate was not a decision on appeal. Consequently, it is not strictly binding on this court. Nevertheless, for reasons of judicial comity, I ought to follow it unless I am satisfied that it is plainly wrong. I am not so satisfied, so I do follow Sunstate.
The consequence is that I am unable to accept that the Privacy Act 1988 is a workplace law. At most, the Privacy Act 1988 incidentally imposes duties on prospective employers to achieve ends that do not primarily concern the regulation of the relationship between employers and employees. Indeed, s.7B(3) of the Privacy Act 1988 specifically exempts acts or practices that directly relate to:
(a)a current or former employment relationship between the employer and the individual; and
(b)an employee record held by the organisation and relating to the individual.
It is very difficult to see how, in such circumstances, the Privacy Act 1988 could be said to regulate the relationship between employers and employees. The applicant certainly did not articulate how the Privacy Act 1988 could be said to regulate such a relationship.
The applicant noted that s.7B(3) of the Privacy Act 1988 does not contain an exemption that relates to prospective employees, as she was. However, the relevant question at this point is whether the Privacy Act 1988 is a workplace law, not whether it had any application to the applicant. I am not persuaded that the Privacy Act 1988 can be said to regulate the relationship between employers and employees.
Having said that, Logan J in Sunstate made it clear that a particular provision within an Act or regulation could be said to regulate the relationship between employers and employees, even though the Act or the regulations as a whole did not do so. His Honour said at [24]:
One submission advanced bySunstate was that the case brought against it required that either the CAA or the CA Regs as a whole be able to be characterised as a “workplace law” or “workplace instrument” in order to be a source of a “workplace right”. I do not accept this. The case as particularised by the ALAEA againstSunstate identified reg 51 and reg 215(9) of the CA Regs as the sources of the “workplace rights”. Each of these regulations has a discrete meaning and effect. If their meaning and effect are such that, considered individually, each falls within the defined terms “workplace law” or “workplace instrument”, I do not see that they lose that status because one would not, reading either the CAA or the CA Regs as a whole characterise either that Act or those regulations as concerning or regulating relations between employers and employees even though these individual provisions had that character. That approach to the construction of the statutory definitions of “workplace instrument” and “workplace law” would be subversive of an evident, beneficial parliamentary purpose in s 340 and the definitions it incorporates of protecting workers from adverse action (as defined) taken as a result of an exercise or a proposed exercise of a workplace right.
The only specific provisions in the Privacy Act 1988 that the applicant relied upon were National Privacy Principle 7.2 and s.18N.
National Privacy Principle 7.2 is as follows:
7.2An organisation must not use or disclose an identifier assigned to an individual by an agency, or by an agent or contracted service provider mentioned in subclause 7.1, unless:
(a)the use or disclosure is necessary for the organisation to fulfil its obligations to the agency; or
(b)one or more of paragraphs 2.1(e) to 2.1(h) (inclusive) apply to the use or disclosure; or
(c)the use or disclosure is by a prescribed organisation of a prescribed identifier in prescribed circumstances.
“Organisation” is defined in s.6C(1) of the Privacy Act 1988 to mean:
(a)     an individual; or
(b)     a body corporate; or
(c) a partnership; or
(d)     any other unincorporated association; or
(e)     a trust;
that is not a small business operator, a registered political party, an agency, a State or Territory authority or a prescribed instrumentality of a State or Territory.
“Agency” is defined in s.6 of the Privacy Act 1988 to mean:
(a)     a Minister; or
(b)     a Department; or
(c)a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a Commonwealth enactment, not being:
(i)     an incorporated company, society or association; or
(ii)an organisation that is registered under the Fair Work (Registered Organisations) Act 2009 or a branch of such an organisation; or
(d)a body established or appointed by the Governor-General, or by a Minister, otherwise than by or under a Commonwealth enactment; or
(e)a person holding or performing the duties of an office established by or under, or an appointment made under, a Commonwealth enactment, other than a person who, by virtue of holding that office, is the Secretary of a Department; or
(f)a person holding or performing the duties of an appointment, being an appointment made by the Governor-General, or by a Minister, otherwise than under a Commonwealth enactment; or
(g)     a federal court; or
(h)     the Australian Federal Police; or
(ha)   a Norfolk Island agency; or
(i)     an eligible case manager; or
(j)     the nominated AGHS company; or
(k)     an eligible hearing service provider; or
(l)the service operator under the Healthcare Identifiers Act 2010.

“Identifiers” are things such as passport numbers assigned by the passports office.
Clearly, National Privacy Principle 7.2 has an operation that extends far beyond employers and employees. Consequently, on the authority of Sunstate, National Privacy Principle 7.2 cannot be regarded as a law that regulates the relationship between employers and employees.
Section 18N of the Privacy Act 1988 provides that:
(1)A credit provider that is or has been in possession or control of a report must not disclose the report or any personal information derived from the report to another person for any purpose unless:
(a)the report or information is disclosed to a credit reporting agency for the purpose of being used:
(i)          to create a credit information file in relation to the individual concerned; or
(ii)     to include information in a credit information file, maintained by the credit reporting agency, in relation to the individual concerned; or
(b)the individual concerned has specifically agreed to the disclosure of the report or information to another credit provider for the particular purpose; or
(ba)   the report or information is disclosed:
(i)          to the guarantor of a loan provided by the credit provider to the individual concerned; and
(ii)     for any purpose related to the enforcement or proposed enforcement of the guarantee; or
(bb)the report or information is disclosed to a mortgage insurer:
(i)          for the purpose of assessing whether to provide insurance to, or the risk of providing insurance to, a credit provider in respect of mortgage credit given by the credit provider to the individual concerned or applied for by the individual concerned to the credit provider; or
(ii)     for the purpose of assessing the risk of the individual defaulting on mortgage credit in respect of which the mortgage insurer has provided insurance to the credit provider; or
(iii)   for any purpose arising under a contract for mortgage insurance that has been entered into between the credit provider and the mortgage insurer; or
(bc)   the report or information is disclosed:
(i)          to a person or body generally recognised and accepted in the community as being a person appointed, or a body established, for the purpose of settling disputes between credit providers, acting in their capacity as credit providers, and their customers; and
(ii)     for the purpose of settling a dispute between the credit provider and the individual concerned; or
(bd)   the report or information is disclosed:
(i)          to a Minister, Department or authority, of a State or Territory whose functions or responsibilities include giving assistance (directly or indirectly) that facilitates the giving of mortgage credit to individuals; and
(ii)     for the purpose of enabling the Minister, Department or authority to determine the extent of assistance (if any) it will give in relation to the giving of mortgage credit to the individual concerned; or
(bda) the report or information is disclosed:
(i)          to a Minister, Department or authority, of a State or Territory whose functions or responsibilities include the management or supervision of schemes or arrangements under which assistance is given (directly or indirectly) that facilitates the giving of mortgage credit to individuals; and
(ii)     for the purpose of enabling the Minister, Department or authority to manage or supervise any such scheme or arrangement; or
(be)   the report or information:
(i)          is disclosed to a person or body carrying on a business of supplying goods or services; and
(ii)     is disclosed for the purpose of enabling that person or body to decide whether to accept, as payment for goods or services supplied to the individual concerned, payment by means of credit card or electronic transfer of funds; and
(iii)   does not contain or include any personal information derived from a credit report, other than:
(A)information of a kind referred to in paragraph 18E(1)(a); and
(B)information as to whether the individual has a line of credit with the credit provider, or funds deposited with the credit provider, sufficient to meet the payment concerned; or
(bf)    the report or information:
(i)          is disclosed to a person or body that is considering taking an assignment of, or discharging on the individual's behalf, a debt owed by the individual to the credit provider; and
(ii)     does not contain or include any personal information derived from a credit report, other than:
(A)information of a kind referred to in paragraph 18E(1)(a); and
(B)information as to the amount of the debt, or the amount required to be paid in order to discharge the debt; or
(bg)the report or information is disclosed to a person who is a guarantor in respect of, or who has provided property as security for, a loan given by the credit provider to the individual concerned, and:
(i)          the individual has specifically agreed to the disclosure of the report or information to any such person; or
(ii)     the following circumstances apply:
(A)the guarantee or security was given before the commencement of this paragraph;
(B)the report or information is disclosed for the purpose of giving to the person information that is relevant to the amount or possible amount of the person's liability under the contract of guarantee or security;
(C)the credit provider has, prior to the disclosure, informed the individual that such disclosures may take place; or
(bh)the report or information is disclosed to a person for the purpose of that person considering whether to offer to act as guarantor in respect of, or to offer property as security for:
(i)          a loan given by the credit provider to the individual concerned; or
(ii)     a loan for which the individual concerned has applied to the credit provider;
and the individual has specifically agreed to the disclosure of the report or information to any such person for that purpose; or
(c) the report (not being a credit report) or information:
(i)          is disclosed to a person or body carrying on a business or undertaking that involves the collection of debts on behalf of others; and
(ii)     is disclosed for the purpose of the collection of payments that are overdue in respect of credit provided to the individual concerned by the credit provider; and
(iii)   does not contain or include any personal information derived from a credit report, other than:
(A)information of a kind referred to in paragraph 18E(1)(a); and
(B)information of a kind referred to in subparagraph 18E(1)(b)(vi), not being information that relates to an overdue payment in respect of which a note to the effect that the individual is no longer overdue in making the payment has been included, under subsection 18F(4), in the credit information file from which the credit report was prepared; and
(C)information of a kind referred to in subparagraph 18E(1)(b) (viii) or (ix); or
(ca)   the report (not being a credit report) or information:
(i)          is disclosed to a person or body carrying on a business or undertaking that involves the collection of debts on behalf of others; and
(ii)     is disclosed for the purpose of the collection of payments that are overdue in respect of commercial credit provided to a person by the credit provider; and
(iii)   does not contain or include any personal information derived from a credit report, other than information of a kind referred to in paragraph 18E(1)(a) or subparagraph 18E(1)(b) (viii) or (ix); or
(d)where the credit provider is a corporation – the report or information is disclosed to a corporation that is related to the credit provider; or
(e)the report or information is disclosed to a corporation (including the professional legal advisers or professional financial advisers of that corporation) that proposes to use the report or information:
(i)     in the process of considering whether to:
(A)accept an assignment of a debt owed to the credit provider; or
(B)accept a debt owed to the credit provider as security for a loan to the credit provider; or
(C)purchase an interest in the credit provider (including, in a case where the credit provider is a corporation, a corporation that is related to the credit provider); or
(ii)     in connection with exercising rights arising from any acceptance or purchase of a kind referred to in subparagraph (i); or
(f)the report or information is disclosed to a person who manages loans made by the credit provider, for use in managing those loans; or
(fa)the report or information is disclosed to another credit provider in the following circumstances:
(i)          the credit provider and the other credit provider have each provided to the individual concerned mortgage credit in respect of which the same real property forms all or part of the security;
(ii)     the individual is at least 60 days overdue in making a payment in respect of the mortgage credit provided by either credit provider;
(iii)   the disclosure is for the purpose of either credit provider deciding what action to take in relation to the overdue payment; or
(g)disclosure of the report or information to that other person for the particular purpose is required or authorised by or under law; or
(ga)   the report or information is disclosed to:
(i)     the individual; or
(ii)     a person (other than a credit provider, mortgage insurer or trade insurer) authorised, in writing, by the individual to seek access to the report or information; or
(gb)the report or information is disclosed in the following circumstances:
(i)          the individual concerned maintains an account with the credit provider;
(ii)     the report or information relates to the operation of the account;
(iii)   the report or information is disclosed to another person who is authorised by the individual to operate the account;
(iv)    either:
(A)the report or information contains no information about the credit worthiness, credit standing, credit history or credit capacity of the individual concerned, other than basic transaction information; or
(B)the disclosure takes place in the ordinary course of the other person operating the account in the way authorised by the individual concerned; or
(h)the credit provider believes on reasonable grounds that the individual concerned has committed a serious credit infringement and the report or information is given to another credit provider or a law enforcement authority.
(1A)For the purposes of paragraph (1)(b), the individual's agreement to the disclosure of the report or information to another credit provider:
(a)     must be in writing unless:
(i)          the disclosure is sought for the purpose of assessing an application for credit or commercial credit that was initially made orally; and
(ii)     the application has not yet been made in writing; and
(b)     must be given to:
(i)          the credit provider with possession or control of the report or information; or
(ii)     the other credit provider.
(1B)For the purposes of paragraphs (1)(bg) and (bh), the individual's agreement to the disclosure of the report or information must be in writing unless:
(a)the disclosure relates to an application for a loan that was initially made orally; and
(b)     the application has not yet been made in writing.
(1C)Paragraph (1)(ga) does not affect the operation of paragraph (1)(g) in relation to an individual obtaining access to credit report under section 18H.
(1D)For the purposes of paragraph (1)(gb), basic transaction information is any one or more of the following:
(a)     the account balance;
(b)the amount of available credit in relation to the account;
(c) the minimum payment (if any) due on the account;
(d)information relating to transactions on the account by the other person.
(2)A credit provider that intentionally contravenes subsection (1) is guilty of an offence punishable, on conviction, by a fine not exceeding $150,000.
(3)A credit provider that is or has been in possession or control of a credit report, or a report containing personal information derived from a credit report, must not:
(a)disclose the report to another person unless all personal information concerning individuals that is not information of a kind referred to in subsection 18E(1) has been deleted from the report; or
(b)disclose to another person any personal information derived from the report if the information is not information of a kind referred to in subsection 18E(1).
(4)References in subsection (3) to information that is not information of a kind referred to in subsection 18E(1) do not include references to information the disclosure of which is taken, because of the application of subsection 18K(3), not to be in contravention of subsection 18K(2).
(5)The Commissioner may determine, in writing, the manner in which a report or personal information derived from a report may, under subsection (1), be disclosed (including the manner in which an individual's agreement may be obtained for the purposes of paragraph (1)(b)).
(6)Where the Commissioner so determines, a report or information that is disclosed in a manner contrary to the determination is to be taken, except for the purposes of subsection (2), to have been disclosed contrary to subsection (1).
(7)A determination is to be made by notice published in the Gazette.
(8)A notice so published is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(9)     In this section, unless the contrary intention appears:
"report" means:
(a)     a credit report; or
(b)subject to subsection (10), any other record or information, whether in a written, oral or other form, that has any bearing on an individual's credit worthiness, credit standing, credit history or credit capacity;
but does not include a credit report or any other record or information in which the only personal information relating to individuals is publicly available information.
(10)For the purposes of the application of this section to a credit provider that is not a corporation, a record or information (other than a credit report) is not taken to be a report for the purposes of this section unless it is being or has been prepared by or for a corporation.
Similarly, s.18N of the Privacy Act 1988 has an operation that extends far beyond employers and employees. Consequently, on the authority of Sunstate, s.18N of the Privacy Act 1988 cannot be regarded as a law that regulates the relationship between employers and employees.
The applicant submitted that the fact that the Fair Work Ombudsman has issued a Best Practice Guide relating to workplace privacy indicates that the Ombudsman believes that the Privacy Act 1988 regulates the relationship between employers and employees. I do not accept that the issuing of a Best Practice Guide does demonstrate such a belief. However, even if it did, it is ultimately for the courts to determine whether the Privacy Act 1988, or any part of it, regulates the relationship between employers and employees. For the reasons stated above, it does not.
The applicant also submitted that the Attorney-General, in 2007, had signified a clear intention to review the extent of privacy protection for employee records. The applicant submitted that this made it clear that there was an intention for privacy laws to apply to the employment relationship. That may be so. However, the court must apply the law as it is, not as it might be in the future.
The applicant also noted that s.12B of the Privacy Act 1988 provides that the Privacy Act 1988 is to give effect to the International Covenant on Civil and Political Rights, Article 17 of which protects privacy. None of that means that the Privacy Act 1988 is a workplace law.
The applicant submitted that there is considerable legislative recognition of the threat posed by identity theft, and those administering the Act should address that problem when interpreting and applying the legislation. It may be accepted that identity theft is a growing problem. However, the court can only interpret and apply legislation in accordance with proper principles.
The applicant also submitted that s.351 of the Act confirmed that the Privacy Act 1988 gave her workplace rights. However, that submission misunderstood s.351 of the Act. That section prohibits adverse action on certain grounds. The State anti-discrimination legislation is only mentioned in s.351 in the context of exemptions to the general prohibition in s.351 of the Act.
The applicant has not established that the Privacy Act 1988 is a workplace law. Therefore, ground 1 is not made out.

Ground 2: s.342: paras 32 and 33 of the Form 4 and paras 35 and 36 of the SOC

Section 342 of the Act simply describes the circumstances in which a person takes adverse action. It does not in itself prohibit any action. It is not possible to contravene s.342 of the Act. Ground 2 is not made out.

Ground 3: s.343(1)(a): Coercion: para 34 of the Form 4 and para 37 of the SOC

Section 343(1)(a) of the Act is as follows:
(1)A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a)exercise or not exercise, or propose to exercise or not exercise, a workplace right; … .
This provision concerns the exercise of a workplace right. As discussed above, the applicant has not identified a relevant workplace right because she has not identified a relevant workplace law. The applicant did not claim that there was any relevant workplace instrument or complaint or inquiry. Consequently, ground 3 is not made out.

Ground 4: s.345(1)(a): Misrepresentation of workplace rights: para 35 of Form 4 and para 38 of the SOC

Paragraph 345(1)(a) of the Act provides as follows:
(1)A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; … .
Again, the applicant has not identified a relevant workplace right because she has not identified a relevant workplace law. Ground 4 is not made out.

Ground 5: s.351: Discrimination: paras 36 and 37 of Form 4 and paras 39 and 40 of the SOC

Section 351 of the Act provides as follows:
(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note:     This subsection is a civil remedy provision (see Part 4-1).
(2)     However, subsection (1) does not apply to action that is:
(a)not unlawful under any anti-discrimination law in force in the place where the action is taken; or
(b)taken because of the inherent requirements of the particular position concerned; or
(c)if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed – taken:
(i)     in good faith; and
(ii)     to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3)     Each of the following is an anti-discrimination law:
(aa)   the Age Discrimination Act 2004 ;
(ab)   the Disability Discrimination Act 1992 ;
(ac)   the Racial Discrimination Act 1975 ;
(ad)   the Sex Discrimination Act 1984 ;
(a)     the Anti-Discrimination Act 1977 of New South Wales;
(b)     the Equal Opportunity Act 2010 of Victoria;
(c) the Anti-Discrimination Act 1991 of Queensland;
(d)     the Equal Opportunity Act 1984 of Western Australia;
(e) the Equal Opportunity Act 1984 of South Australia;
(f)     the Anti-Discrimination Act 1998 of Tasmania;
(g)the Discrimination Act 1991 of the Australian Capital Territory;
(h)     the Anti-Discrimination Act of the Northern Territory.

Unfortunately, there was relatively little evidence in this case that dealt with the question of whether the applicant was a casual employee or an independent contractor. As a result, many of the questions posed in On Call Interpreters simply cannot be answered. However, the evidence, such as it is, is as follows.
The applicant described herself in oral evidence as a business administrator. Her first engagement with AlliedSignal was through a placement agency. She was free to accept or reject offers of work as she saw fit. She provided specialised administrative services to Polymers and training for Ms Arnfield in computer software. The applicant conducted that training as she saw fit. When Polymers established a new venture in 2012 importing refrigerants, the applicant gave Polymers advice, set up a database for the venture and advised a staff member, Cicilia, in how the database and reports worked.
The applicant conceded that, in her resume, she described herself as a consultant assisting small business with their financial records using both MYOB and Quickbooks. She claimed that was “resume writing licence”.
The applicant agreed that she provided invoices to Polymers for her work, which she described in 2012 as “import venture advice and setup” and “import venture access database and training in its use”. In her invoices to Polymers, the applicant quoted her own ABN.
The applicant used her own laptop computer for the work she did for Polymers in 2012.
The applicant agreed that in 2008, she worked 127 hours for Polymers. That amounts to a little under three and half weeks based on a 38 hour week. In 2009, she worked 85 hours for Polymers, or just over two weeks. In 2010, the applicant worked 746 hours for Polymers or about 19 weeks. In 2011, she worked 228 hours for Polymers, or six weeks.
The applicant agreed that she had provided no evidence about any other time that she had worked for Polymers in the previous 10 or so years. She did not produce invoices, payslips, bank statements or tax returns.
The applicant conceded that at no time prior to the commencement of her permanent position on 14 January 2013 did Polymers provide her with annual leave, sick leave or employer superannuation. She also agreed that at no time did she ever complain about that.
The applicant’s invoices to the respondent were in evidence. They showed that the applicant provided her ABN, described herself as a consultant and charged GST.
Many working arrangements will have numerous factors that tend to suggest one type of relationship as well as numerous factors that tend to suggest the other type of relationship. The court is required to assess all of the relevant evidence provided to the court and determine the nature of the relationship on the basis of that evidence.
It seems that there would have been a good deal of evidence that both parties could have provided to the court in support of their particular positions but did not provide. Neither party put before the court any documents that purported to define the nature of the relationship between the applicant and Polymers. For example, there were no letters of engagement produced to the court. There was no evidence about the nature or circumstances of the applicant’s work placements with other enterprises. There was no evidence about whether the applicant filed business activity statements.
The case is complicated by the fact that the applicant’s first placement with Polymers was via an agency. It may be that the applicant was initially employed by the agency and hired out to Polymers. However, that is speculative, as the agency was not called to give evidence and no documents relating to the agency were provided to the court.
The applicant in the present case set out a number of allegations in her closing submissions in reply that had not been the subject of evidence before the court. I am not able to take them into account.
Taking into account all the evidence that is before the court, I am not satisfied on the balance of probabilities that the applicant was a casual employee of Polymers rather than an independent contractor. The main factors that lead me to that conclusion are:
a)the applicant in some years worked for only a few weeks with Polymers;
b)during her longest engagement with Polymers, in 2012, the applicant used her own laptop computer at Polymers, although on previous occasions she may have used Polymers’ computer;
c)the applicant invoiced Polymers for her work;
d)the applicant put her ABN on her invoices;
e)the applicant described herself as a consultant in her resume and on her invoices;
f)the applicant charged Polymers GST;
g)the applicant provided high level administrative services to Polymers (the applicant has a Bachelor of Commerce and a Masters in Information Technology in Education, both from Melbourne University);
h)the applicant exercised her own judgment in how to provide training to others; and
i)the applicant was free to accept or reject work as she saw fit.
I accept that there were some features of the applicant’s engagement with Polymers that are consistent with both casual employment and an independent contractor relationship, such as no sick pay or annual leave. However, overall, I consider that the circumstances were more consistent with an independent contractor relationship. Consequently, I do not consider that there has been a misrepresentation about the nature of the relationship between Polymers and the applicant. Ground 6 is not made out.
For completeness, I note the applicant’s argument that, because the offer of employment dated 21 June 2012 said that her employment might be terminated if she did not meet the pre-employment screening criteria, the respondent had in fact confirmed that her earlier relationship with it was an employment relationship. That submission involves a misreading of the letter. It meant that, if, after commencing employment in accordance with the letter dated 21 June 2012, the respondent discovered that the applicant had, for example, a criminal history that had not previously been disclosed, the employment could be terminated. The letter dated 21 June 2012 was not referring to the applicant’s pre-existing work placement with the respondent.

Ground 7: adverse action: application in a case

In her application in a case filed on 13 May 2013, the applicant sought leave to amend her statement of claim to add some additional grounds relating to her employment by the respondent between January and May 2013. That leave was granted.
The first additional ground was that the respondent had taken adverse action against the applicant as a result of her exercising her workplace rights as a prospective employee under the Privacy Act 1988 and as a result of the respondent misrepresenting her employment with it as an independent contractor.
Essentially, the applicant claimed that:
a)the respondent had employed her in January 2013 in the expectation that doing so would cause the applicant to withdraw these proceedings; and
b)when the applicant did not withdraw these proceedings, the respondent took adverse action against her because she had previously exercised her workplace rights as a prospective employee under the Privacy Act 1988 and because, contrary to s.357 of the Act, the respondent had misrepresented her engagement with it as an independent contractor relationship.
For the reasons given previously, the Privacy Act 1988 is not a workplace law. However, the respondent accepted, in paragraph 92 of its closing submissions, that the Act is a source of workplace rights and that the applicant, throughout her employment with the respondent from January to May 2013, had the present proceeding on foot in which she alleged a contravention of s.357 of the Act. As such, the respondent conceded, the applicant was exercising her workplace rights pursuant to s.357 of the Act throughout her employment with the respondent from January to May 2013.
The adverse action that the applicant alleged was:
a)altering her position to her prejudice (item 1(c) of s.342 of the Act) by being in the process of transferring 90% of her role to Shanghai;
b)injuring her in her employment (item 1(b) of s.342 of the Act) by:
i)denigrating her to her work colleagues;
ii)telling her work colleagues not to pay attention to her;
iii)damaging her reputation by preventing her from fulfilling her work obligations (by suspending her the day before the monthly accounts of Polymers were due to be consolidated into the respondent’s accounts); and
iv)manufacturing reasons to justify its suspension of her; and
c)terminating her employment on 8 May 2013 (item 1(a) of s.342 of the Act).
Section 360 of the Act provides that:
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
The consequence of that provision is that, if there were multiple reasons for an adverse action, and a prohibited reason was only one of those reasons, the adverse action is considered to have been taken for the prohibited reason.
Section 361(1) of the Act provides that:
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, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
The effect of this provision is to reverse the onus so that, when an applicant alleges that an adverse action was taken for a prohibited reason, it is presumed that the adverse action was taken for that reason, unless the respondent proves otherwise.
On the other hand, it is necessary for the applicant to prove that adverse action was taken or is being taken. That is made clear by Fair Work Ombudsman v AJR Nominees [2013] FCA 476 at [40] where Gilmour J held:
In Stevenson v Murdoch Community Services Inc (2010) 202 IR 266 at [100], Gordon J, discussing s 659 of the Workplace Relations Act 1996 (Cth), a reverse onus provision, observed that:
[N]otwithstanding that presumption [of adverse action], an applicant must prove the existence of objective facts which the applicant contends provide a basis for the respondent’s contravening conduct: see Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd [1999] FCA 1531; (1999) 140 IR 131 at [161]- [162]. The presumption “simply ... alleviate[s] the evidentiary difficulty facing the applicant of providing proof of the intent or reason which motivated, or formed part of the motivation for, the respondent’s conduct following the absence of the employee from work” ...
[I]f an applicant proves those facts and alleges that the conduct was carried out for a prohibited reason, then the onus shifts to the respondent to prove, on the balance of probabilities, that it was not motivated by a proscribed reason: Geraldton Port Authority (1999) 93 FCR 34 at 68 ... (Emphasis added)

Ground 7.a: altering the applicant’s position to her prejudice by transferring most of her role to Shanghai

The applicant asserted that the majority of her role was being transferred to Shanghai. She did not provide any documentary or other evidence to substantiate that claim.
Mr Hettrick, Ms Austin’s former supervisor, said very clearly in his affidavit that he denied that the majority of the applicant’s role had been transferred to Shanghai. He said that he had not made any changes to the role since commencing on 7 January 2013 and said that he was not aware of any changes in the applicant’s role made by others in that time.
Mr Hettrick’s evidence on these matters was not effectively undermined in cross examination. He did say in cross examination that there was a need to “segregate duties” in the financial area and that some of the work in Polymers’ financial area was done in Shanghai. Mr Hettrick’s evidence was that, from the time he commenced with Polymers on 7 January 2013, the same arrangement had been in place in relation to the applicant’s role.
On the evidence, I am not persuaded that any change had been, or was being, made to the applicant’s role at all. I accept Mr Hettrick’s evidence that he was not aware of any changes in the applicant’s role. I also accept that, where financial matters are concerned, there is a sound basis for a segregation of duties. Consequently, his evidence on this point is inherently plausible.
The onus was on the applicant to prove that the identified adverse action had occurred or was occurring. She has not done so.
As a result, I do not accept that adverse action, in the form of changing the applicant’s role, had been or was being taken by the respondent against the applicant. That being so, there is no occasion to consider the reason for the alleged adverse action. Ground 7.a is not made out.

Ground 7.b.i: injuring the applicant in employment: denigrating her to work colleagues

The applicant alleged that the respondent, through its other employees, denigrated the applicant to her colleagues. The applicant asserted this, but did not provide any documentary or other evidence to support her claims. More particularly, the applicant did not call any of her colleagues to substantiate that the respondent had denigrated the applicant.
Mr Hettrick in his affidavit denied denigrating the applicant. Ms Jones said in her second affidavit that she was not aware of the respondent, through any of its employees, denigrating the applicant to her colleagues. There was nothing in the various emails and other records before the court that indicated that the respondent had denigrated the applicant. The evidence of Mr Hettrick and Ms Jones on this point was not effectively undermined in cross examination.
I accept the evidence of Mr Hettrick and Ms Jones on this point. They seemed to me to be witnesses of truth. The applicant did not nominate anyone in particular, other than Mr Hettrick, who she alleged had denigrated her. I do not accept her assertions in this regard.
I do not consider that the applicant has discharged the onus on her of establishing that the nominated adverse action occurred. Consequently, the question of the reason for the alleged adverse action does not arise.

Ground 7.b.ii: injuring the applicant in her employment: telling her work colleagues to pay no attention to her

The applicant asserted that the respondent injured her in her employment by telling her work colleagues to pay no attention to her. The applicant provided no detail about this allegation and no documents or other evidence in support of it. In particular, the applicant did not identify anyone, apart, possibly, from Mr Hettrick, who she alleged injured her in that way.
In his affidavit, Mr Hettrick denied telling the applicant’s work colleagues to pay no attention to her. His evidence on this point was not effectively undermined in cross examination. I accept it.
The applicant has not discharged the onus upon her to establish that the respondent injured her in the way alleged. Consequently, the reason for the alleged adverse action does not arise for consideration. Ground 7.b.ii is not made out.

Ground 7.b.iii: injuring the applicant in her employment: damaging the applicant’s reputation by preventing her from fulfilling her work obligations (by suspending her the day before the monthly accounts of Polymers were due to be consolidated into the respondent’s accounts)

The applicant asserted that the respondent damaged her reputation by suspending her the day before the monthly accounts of Polymers were due to be consolidated into the respondent’s accounts. The gist of the applicant’s claim was that the accounts not being done on time reflected badly on her.
The respondent accepted that it suspended the applicant the day before the monthly accounts of Polymers were due to be consolidated into the respondent’s accounts. However, the respondent did not accept that, by doing so, it damaged the applicant’s reputation.
I do not consider that it is self-evident that the applicant’s reputation would have been damaged by her being suspended the day before the accounts of Polymers were due to be consolidated into the respondent’s accounts. Whether the applicant’s reputation was damaged depends on:
a)who knew that the applicant was responsible for, but did not, finish the accounts on time;
b)what the applicant’s reputation was amongst the people who knew that she was responsible for, but did not, finish the accounts on time; and
c)what those people understood was the reason for the accounts not being finished on time.
The only person identified in the evidence who knew that the accounts were not finished on time was Mr Hettrick. He was obviously very well aware that the applicant did not finish the accounts on time because she was suspended, not because she was tardy or incompetent. Obviously, the applicant’s reputation with Mr Hettrick was not damaged because she did not finish the accounts on time.
The court is able to draw inferences from established facts. However, the court is not able to make findings based on speculation or guesswork. The applicant did not place evidence before the court that permits a conclusion that the respondent damaged her reputation by not allowing her to finish the accounts in time. That is, the applicant has not discharged the onus of establishing that the nominated adverse action occurred. Consequently, no occasion arises to consider the reason for alleged adverse action. Ground 7.b.iii is not made out.

Ground 7.b.iv: injuring the applicant in her employment: manufacturing reasons to justify her suspension

This ground concerned the request by Mr Hettrick on 19 April 2013 for the applicant to provide him with a report. As it is closely related to the next ground, I will deal with it there.

Ground 7.c: termination of employment on 8 May 2013

The applicant did not dispute that the decision to suspend and then terminate her employment was made by Mr Hettrick. Both of those decisions constituted adverse action. The applicant alleged that the adverse action was taken for a prohibited reason, namely, that she had exercised her workplace rights. It was for the respondent to prove that the adverse action was not taken for a prohibited reason.
The High Court considered the effect of s.361 of the Act in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647; [2012] HCA 32. In that case, the alleged reason for the adverse action was that the employee was an officer or member of an industrial association, or engaged or proposed to engage in particular kinds of industrial activity. French CJ and Crennan J said:
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)

French CJ and Crennan J also considered the effect of s.360 of the Act at [57] to [59]. Their Honours adopted the reasons of Mason J in General Motors-Holden's Pty Ltd v Bowling (1976) 136 CLR 676, (1976) 12 ALR 605, (1976) 51 ALJR 235 to the effect that, for an applicant to succeed, the reason for the adverse action must be “a substantial and operative factor” in the reasons for the adverse action.
Gummow and Hayne JJ said much the same at [127]:
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a "substantial and operative factor" as to constitute a "reason", potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence [said] to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
Heydon J said at [146]:
To search for the "reason" for a voluntary action is to search for the reasoning actually employed by the person who acted. Nothing in the Act expressly suggests that the courts are to search for "unconscious" elements in the impugned reasoning of persons in Dr Harvey's position. No requirement for such search can be implied. This is so if only because it would create an impossible burden on employers accused of contravening s 346 of the Act to search the minds of the employees whose conduct is said to have caused the contravention. How could an employer ever prove that there was no unconscious reason of a prohibited kind? An employer's inquiries of the relevant employees would provoke, at best, nothing but hilarity. The employees might retort that while they could say what reasons they were conscious of, they could say nothing about those they were not conscious of.
In the present case, Mr Hettrick in his affidavit denied that he took adverse action, or any action, against the applicant because she had exercised a workplace right or because of the alleged misrepresentation about the applicant’s employment with the respondent or Polymers.
Mr Hettrick also said in his affidavit that he considered that, at the meeting on 23 April 2013, the applicant had not provided an adequate explanation of her previous conduct and he decided to proceed with the suspension. He said that he had prepared the suspension letter in advance of the meeting but would not have given it to the applicant if she had been contrite and showed a willingness to correct her behaviour.
Mr Hettrick also said in his affidavit that he had terminated the applicant’s employment because she had engaged in misconduct.
In cross examination, Mr Hettrick said that the reasons for the applicant’s dismissal were the matters listed for discussion in his letter dated 23 April 2013 and misconduct. Additionally, Mr Hettrick said that another reason was the:
continual way [the applicant] spoke to [him] in the office when things weren’t going [her] way.
There was a great deal of evidence about the way the applicant spoke to Mr Hettrick and behaved towards him. Without setting out all that evidence in these reasons, it is fair to summarise the evidence as going beyond disrespect to a manager. If true, the evidence would establish significant and frequent rudeness over a period of months on the applicant’s part towards Mr Hettrick and others.
The applicant did not accept that she was rude to Mr Hettrick. However, I have no hesitation in accepting his evidence on this matter. The applicant’s tone and words in her emails, some of which are set out above, suggest that the applicant has a capacity to be sharp and rude in her dealings with others. I consider that Mr Hettrick was actually remarkably tolerant and patient in his dealings with the applicant, given her behaviour towards him, and given that they worked in a two person office.
The applicant challenged Mr Hettrick’s credibility. In particular, the applicant challenged his estimate of the time that it would have taken her to produce the report on 23 April 2013. Mr Hettrick said at one point in his affidavit that it would have taken seconds and at another point that it would have taken minutes. The applicant claimed that it would have taken one to two hours.
I do not consider that this issue significantly detracts from Mr Hettrick’s credibility. He conceded in cross examination that the estimate of seconds was a “bit glib”. However, he maintained that it would not have taken long. In the cross examination of Mr Hettrick, it appeared that he and the applicant thought that the production of the report entailed different things.
I accept Mr Hettrick’s evidence that the report would have taken minutes. He appeared in the witness box to be a reasonable, thoughtful and credible witness. Having also seen the applicant in the witness box, I prefer Mr Hettrick’s evidence to hers.
It is worth noting that the applicant’s job description required her to be an executive assistant for Mr Hettrick. The job description also expressly required her to be courteous and able to work harmoniously in a team environment.
In these circumstances, the applicant ought to have complied with Mr Hettrick’s reasonable request for the report. Her other duties did not relieve her of her obligation to meet Mr Hettrick’s request for the report.
Mr Hettrick conceded in cross examination that he became aware that the applicant had instituted the present litigation against the respondent in the week beginning 7 January 2013. Mr Hettrick said that he had enquired why there was not a permanent person in the job Cicilia was doing and Mr Fawssett told him that there had been a problem in the applicant’s hiring. Mr Hettrick said that in February or March 2013, he was told by HR that he might need to give the applicant some time off work for her court case. He said he had no idea about the details of the case and felt that he did not need to know. I accept Mr Hettrick’s evidence on these matters. He presented as entirely credible in the witness box. There was no evidence to the contrary.
Mr Hettrick specifically denied in cross examination that the reasons alleged by the applicant were a reason for the applicant’s suspension and termination. I accept Mr Hettrick’s evidence on this matter. He appeared in the witness box to be an entirely credible witness. The reasons that Mr Hettrick gave for the suspension and termination were plausible and to some extent supported by documentary evidence. I do not accept that Mr Hettrick, or anyone else on the respondent’s behalf, “manufactured” grounds for the applicant’s suspension.
Consequently, I accept that the respondent has discharged the reverse onus of proof in relation to the suspension and termination. Grounds 7.b.iv and 7.c are not made out.

New grounds in closing submissions: adverse action to prevent the exercise of workplace rights: s.340(1)(b) and workplace rights under s.341(1)(b) and (c)

In her closing submissions, the applicant said that the respondent had taken adverse action against her contrary to s.340(1)(b) of the Act to prevent her from exercising her workplace rights and that she had workplace rights under s.341(1)(b) and (c) of the Act. The court reconvened to hear submissions on whether these were new claims, and if so, whether the applicant should be granted leave to amend to add them.
The applicant had at no stage before filing her closing submissions:
a)suggested that adverse action was taken against her to prevent her from exercising a workplace right; or
b)suggested that that she had a workplace right arising under s.341(1)(b) or (c) of the Act.
The applicant maintained that, in her closing submissions, she had merely clarified her claims. I do not accept that submission. The basic nature of the applicant’s claims should have been clear long before closing submissions were filed. The points mentioned in the previous paragraph were entirely new claims. They substantially altered the case that the applicant sought to run and that the respondent had to meet.
Consequently, the court ruled that the claims were new. Following that ruling, the applicant told the court that she did not seek leave to amend to include the new claims in her case. Therefore, I will not consider them further.

Conclusion

As none of the applicant’s grounds has been made out, the application must be dismissed. Consequently, there is no need to address the remedies that the applicant sought.

I certify that the preceding one hundred and fifty nine (159) paragraphs are a true copy of the reasons for judgment of Judge Riley.

Date: 28 June 2013