Baker v Australian Competition and Consumer Commission
[2022] FedCFamC2G 1055
Federal Circuit and Family Court of Australia
(DIVISION 2)
Baker v Australian Competition and Consumer Commission [2022] FedCFamC2G 1055
File number(s): MLG 213 of 2021 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 21 December 2022 Catchwords: INDUSTRIAL LAW – FAIR WORK – alleged contraventions of section 351 of the Fair Work Act 2009 (Cth) – on the basis of physical or mental disability, political opinion or age – where claims lack particularity in relation to nature of adverse action and/or alleged proscribed reasons – consideration of definition of ‘adverse action’ in section 342 – onus on applicant to establish that she was subjected to ‘adverse action’ – failure to establish claims amount to ‘adverse action’ – where adverse action established, respondent has discharged reverse onus – application dismissed. Legislation: Fair Work Act 2009 (Cth), ss 342, 351, 361, 544 Cases cited: Daghlian v Australian Postal Corporation [2003] FCA 759 Division: Division 2 General Federal Law Number of paragraphs: 160 Date of last submission/s: 9 August 2022 Date of hearing: 8-9 August 2022 Place: Melbourne Solicitor for the Applicant: The Applicant appeared in person Counsel for the Respondent: Ms C Dowsett Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
MLG 213 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KERRY BAKER
Applicant
AND: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
21 December 2022
THE COURT ORDERS THAT:
1.The applicant’s application filed on 10 February 2021 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
Introduction
This is an application in which the applicant, Ms Kerry Baker, alleges that the respondent, the Australian Competition and Consumer Commission (‘ACCC’), contravened section 351 of the Fair Work Act 2009 (Cth) (‘the FW Act’). In her application filed on 10 February 2021, the applicant identifies the following matters at Part G as the grounds for the claim that adverse action has been taken or threatened:
(a)the refusal of her various applications for study assistance, such refusal being due to her age; (‘study assistance claims’)
(b)targeted harassment and bullying (‘harassment and bullying claims’);
(c)failure to accommodate her vegan diet at the formal opening of the new Melbourne office and adverse comments by co-workers about her vegan views (‘vegan claims’);
(d)breach of her privacy (‘privacy claims’);
(e)suggesting that she was faking her illness (‘faking claims’);
(f)failure to provide support (‘support claims’);
(g)manner in which the seating changes were made (‘seating changes claims’);
(h)exposing the applicant to exacerbation of vision and hearing issues and failing thereafter to make reasonable adjustments to accommodate those issues (‘reasonable adjustments claims’); and
(i)denying the applicant access to hot desking, thereby further exacerbating her hearing and vision issues (‘exacerbation claims’).
By her application, the applicant alleges that the claimed adverse action on the basis of her physical or mental disability, her political opinion or her age. The applicant seeks compensation for loss of income, loss of superannuation and compensation for psychological harm and ongoing psychological treatment. The applicant also seeks payment of her HELP debt of $77,889.79.
By its response, the respondent denies taking adverse action against the applicant and further denies that any adverse action that it is found to have taken, was taken for a proscribed reason as claimed.[1] It therefore seeks an order dismissing the applicant’s application.
[1] Response filed on 12 March 2021.
In addition, the respondent asserts that any action taken by the respondent which occurred prior to 10 February 2015 occurred outside of the six year limitation period in section 544 of the FW Act and therefore cannot be the subject of determination by this court. That proposition was properly conceded by the applicant.[2]
[2] Court transcript at page 13.
Background
The applicant relies upon her affidavit affirmed and filed on 28 February 2022 and her reply affidavit affirmed and filed on 2 May 2022.
The respondent relies upon the following affidavits filed in these proceedings:
(a)affidavit of Mr Peter James Conlon affirmed 8 April 2022;
(b)affidavit of Ms Colleen Anne Newsome affirmed 8 April 2022;
(c)affidavit of Mr Adrian Philip Walkden affirmed 8 April 2022; and
(d)affidavit of Mr Douglas Keith Cross affirmed 9 April 2022.
Whilst the characterisation of, and the reason for, various actions taken by the respondent is at issue, many of the underlying facts are not in dispute.
Commencement of applicant’s employment with the respondent
The applicant commenced employment with the respondent in December 2010 as the Assistant Director Human Resources in the respondent’s Melbourne office.[3] In about June 2011, the applicant was moved into a newly created area, namely the Project Management Office (‘PMO’). In that role, she worked with the newly recruited Director of the PMO, Mr Conlon.[4] When initially established, the PMO was part of the Finance branch.[5] In 2012 or 2013, the PMO was moved to form part of the Information Management and Technology Services (‘IMTS’) branch.
[3] Affidavit of Ms Kerry Bronwyn Baker affirmed and filed on 28 February 2022 at paragraph [1].
[4] Affidavit of Ms Kerry Bronwyn Baker affirmed and filed on 28 February 2022 at paragraph [2].
[5] Respondent’s Outline of Submissions filed on 25 July 2022 at paragraph [9].
Ms Baker was at all relevant times based in Melbourne.[6] Mr Conlon was at all relevant times based in Canberra.[7] Mr Conlon managed Ms Baker remotely, generally having weekly catch ups by telephone, and where appropriate, by videoconference or in person.[8] Ms Baker was employed as an Executive Level 1 employee, whereas Mr Conlon was employed as an Executive Level 2 employee.[9]
[6] Respondent’s Outline of Submissions filed on 25 July 2022 at paragraph [10].
[7] Respondent’s Outline of Submissions filed on 25 July 2022 at paragraph [11].
[8] Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraph [12].
[9] Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraphs [6] and [7].
Relevantly, between March 2011 and April 2019, Mr Walkden was employed as the Chief Information Officer and General Manager of the Information Management and Technology Services branch with the respondent.[10] In his capacity as Director of the PMO, Mr Conlon reported to Mr Walkden once that office became part of the IMTS.[11] Like Mr Conlon, Mr Walkden was also based in Canberra.[12]
[10] Affidavit of Mr Adrian Philip Walkden affirmed and filed on 8 April 2022 at paragraph [1].
[11] Affidavit of Mr Adrian Philip Walkden affirmed and filed on 8 April 2022 at paragraph [9].
[12] Affidavit of Mr Adrian Philip Walkden affirmed and filed on 8 April 2022 at paragraph [2].
Move of the PMO to the IMTS branch
It is common ground that when the PMO moved into the IMTS branch, Ms Baker expressed a concern to Mr Conlon about her ability to undertake project management work in relation to IT projects. Ms Baker has at all times maintained that she did not believe that she had the appropriate skillset to undertake project management work in respect of IT projects.[13]
[13] See, for example, Affidavit of Ms Kerry Bronwyn Baker affirmed and filed on 28 February 2022 at paragraph [3].
The respondent’s witnesses concede that Ms Baker expressed this concern. However, Mr Conlon assured Ms Baker that she did not need to have specialist IT skills to manage an IT project.[14] It is also not in dispute that Mr Conlon assured Ms Baker that she could have specialist IT support if that was necessary, although there is a dispute as to whether that support was subsequently required. I will discuss this issue further below.
[14] Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraph [10].
In the course of her discussions with Mr Conlon, Ms Baker discussed the possibility of a move outside of the PMO to another role either within the ACCC or elsewhere in the Australian Public Service. In the context of her 2012-2013 Individual Action Plan (‘IAP’), Ms Baker noted that she would ‘investigate external opportunities that [she] consider[ed] may be useful for [her] personally for [her] career development’.[15] In this same document, Ms Baker also identified possible further training support and in this context, among other things, indicated that she was seeking admission to do a university law course. I will refer to this in more detail below.
[15] Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at Annexure PC-1.
Applicant’s applications for study assistance
In or about November 2013, Ms Baker was accepted in the Monash University Juris Doctor (Masters of Law) course and applied to the Respondent for study support to assist with that endeavour.[16] Ms Baker made further applications for study support in the following years.[17] Each of those applications was denied. The circumstances in which this occurred is one of the key issues in this matter and will be explored in greater detail below. In essence, Ms Baker asserts that her applications for study assistance were denied due to her age, her political views and/or her physical or mental disabilities. The respondent maintains that Ms Baker’s age was not a reason, or part of the reason, nor was any of the other proscribed reasons identified by Ms Baker, the reason or part of the reason, for the denial of the various study assistance applications. Rather, the respondent asserts that the study assistance request was denied on the basis of cost, relevance and the impact it would have on resourcing.[18]
[16] Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraphs [16] and [18].
[17] Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraph [25] and following.
[18] See, for example, Response filed on 12 March 2021 at paragraph [8(a)]; Respondent’s Outline of Submissions filed on 25 July 2022 at paragraph [13] and following.
Ms Baker suffered from anxiety and depression in or about 2014.[19] Ms Baker asserts that notwithstanding being aware of her condition, Mr Walkden sent her an email in April 2016 in which he claimed that she was ‘faking’ her condition.[20] Mr Walken admits sending an email to Ms Baker in which he asked whether she was attending university lectures whilst on sick leave, but denies that he suggested that she was faking her condition.[21]
[19] Affidavit of Ms Kerry Bronwyn Baker affirmed and filed on 28 February 2022 at paragraph [5].
[20] See Affidavit of Mr Adrian Philip Walkden affirmed and filed on 8 April 2022 at Annexure AW-11.
[21] See Affidavit of Mr Adrian Philip Walkden affirmed and filed on 8 April 2022 at paragraph [49]; Annexure AW-13.
Relocation of Melbourne office to Casselden Place
In or about October 2017, staff in the respondent’s Melbourne office relocated to Casselden Place.[22] This resulted in staff being required to work in an open plan arrangement, whereas they had previously worked in a more traditional office arrangement. It is not in dispute that the move to an open plan office structure involved a period of adjustment for staff, including for Ms Baker. Shortly afterwards, a function was held to mark the official opening of the Casselden Place office. There is a dispute about whether and if so how, vegans were catered for at that function.[23]
[22] Affidavit of Ms Kerry Bronwyn Baker affirmed and filed on 28 February 2022 at paragraph [7].
[23] See Response filed on 12 March 2021 at paragraph [8(c)].
Feedback provided to the applicant
On or about 14 December 2017, Mr Conlon provided feedback to Ms Baker following concerns being raised about Ms Baker’s work effort and her references to veganism and animal rights issues in the workplace.[24] Mr Conlon noted that staff had reported that they felt uncomfortable about this.[25] Ms Baker takes issue with the manner in which these matters were raised with her. In particular, she asserts that, in essence, allegations were made against her in respect of which she was not able to respond, nor was she told the origin of those allegations.[26]
[24] See Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraph [41] and following.
[25] Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraph [48].
[26] Affidavit of Ms Kerry Bronwyn Baker affirmed and filed on 28 February 2022 at paragraph [8].
Mr Conlon denies that the matters he raised with Ms Baker were in the nature of complaints or allegations per se. Rather, he says rather that he had received feedback about her work performance and he was simply passing this feedback on so that she could have an understanding about how her behaviour was perceived.[27] Ms Baker asserts that in dealing with this matter in this way, Mr Conlon created an unsafe workplace which exacerbated her anxiety and depression.[28]
[27] Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraph [55].
[28] Affidavit of Ms Kerry Bronwyn Baker affirmed and filed on 28 February 2022 at paragraph [8].
Discussions in relation to this issue continued the following day, on 15 December 2017, by telephone between Mr Conlon and Ms Baker.[29] Mr Conlon concedes that he asked Ms Baker about her workload and whether she was using work time to undertake her studies or otherwise attend to personal matters.[30] Ms Baker was unhappy with the manner in which these issues were raised and was also unhappy about the way in which Mr Conlon dealt with these issues.[31]
[29] See Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraph [49].
[30] Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraph [49].
[31] See Affidavit of Ms Kerry Bronwyn Baker affirmed and filed on 28 February 2022 at paragraphs [8] and [9].
Ms Baker claims that in the course of managing her, Mr Conlon often spoke to her in a derogatory manner, including by repeatedly saying something to the effect of, ‘When it comes to work and life balance you seem to have more life than work’.[32] Mr Conlon admits that he did refer to work/life balance in some of his weekly discussions with Ms Baker, but denies that he said it in the manner attributed to him by Ms Baker.[33]
[32] Affidavit of Ms Kerry Bronwyn Baker affirmed and filed on 28 February 2022 at paragraph [11].
[33] Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraphs [60] to [66].
Change to applicant’s desk arrangements and subsequent events
Ms Baker also claims that she experienced difficulties in her relationship with the Assistant Director (Corporate Operations), Ms Anita Mousa, from about August 2017.[34] In or about June 2018, Ms Baker was asked to swap desks with Ms Mousa.[35] Ms Baker initially agreed but says that she subsequently formed the view that she had been misled as to the need for the move. Ms Baker was upset about this and indicated that she was no longer prepared to move. Ms Baker states that Mr Conlon was rude in his response when she communicated this to him. Ms Baker eventually moved, although she was unhappy about being required to do so.
[34] Affidavit of Ms Kerry Bronwyn Baker affirmed and filed on 28 February 2022 at paragraph [6].
[35] Affidavit of Ms Kerry Bronwyn Baker affirmed and filed on 28 February 2022 at paragraph [10].
Following Ms Baker’s desk move, she raised concerns about the lighting and its impact on her,[36] as well as the noise of a slamming door.[37] Various reports were commissioned by the ACCC to address these concerns. Notwithstanding various adjustments made to Ms Baker’s work area,[38] she maintained that the issues were not resolved from her perspective. Ms Baker asserts that the ACCC failed to make reasonable adjustments to accommodate her needs arising from her vision and hearing issues.[39] This issue is discussed in greater detail below.
[36] Affidavit of Ms Kerry Bronwyn Baker affirmed and filed on 28 February 2022 at paragraph [12].
[37] Affidavit of Ms Kerry Bronwyn Baker affirmed and filed on 28 February 2022 at Annexure 6.
[38] Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraph [102] and following.
[39] Affidavit of Ms Kerry Bronwyn Baker affirmed and filed on 28 February 2022 at paragraph [15].
Ms Baker took sick leave from July 2019 due to increased anxiety and depression.[40] It is common ground that whilst she was on leave, she was asked whether she would accept a voluntary redundancy package. While there is a dispute as to who initiated the discussion between the parties about a voluntary redundancy package,[41] it is not in dispute that Ms Baker accepted the voluntary redundancy package on 19 August 2019 and her employment came to an end with effect on 27 August 2019.
[40] Affidavit of Ms Kerry Bronwyn Baker affirmed and filed on 28 February 2022 at paragraph [21].
[41] Affidavit of Ms Kerry Bronwyn Baker affirmed and filed on 28 February 2022 at paragraph [21] cf Affidavit of Ms Colleen Anne Newsome affirmed and filed on 8 April 2022 at paragraph [50].
Legislation
The applicant’s claim is brought under Part 3-1 of the FW Act. In particular, the applicant’s claim alleges a breach of section 351 which provides:
(1)An employer must not take adverse action against a person who is an employee … of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Adverse action by an employer against an employee is in turn defined in section 342 of the FW Act to arise where the employer:
(a) dismisses the employee;
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
The applicant asserts in her application that the continued refusal to make reasonable adjustments to accommodate her hearing and vision issues led to a recurrence of her psychological injury and ultimately constituted a constructive dismissal (‘constructive dismissal claim’).[42]
[42] Application filed on 10 February 2021.
The applicant also asserts that the conduct she complains of constitutes adverse action in that it amounts to an injury in her employment, it changed her role to her detriment and it failed to treat her equitably with regards to her study support compared with other members of staff.[43]
[43] Applicant’s Outline of Submissions in Reply filed on 8 August 2022 at paragraph [1].
Moreover, in her closing submissions, Ms Baker said that the various incidents which she says constitute adverse action were taken primarily because of her age. She says that once she developed a psychological illness, the subsequent decisions were then also taken because of her mental disabilities. In explaining this, she said:
… I think I became – for my age and for my … psychological injury, became seen as a liability for the organisation … I received no support because of those things.[44]
[44] Court transcript at page 74.
Ms Baker went on to say that ‘the veganism was just an irritant’.[45]
[45] Court transcript at page 74.
At the heart of this case is whether any action taken against Ms Baker constitutes adverse action, as defined, and if so, whether that action was taken because of, or for a reason which included, a proscribed reason. In this case, the applicant alleges that the adverse action was taken against her variously because of her age, her mental or physical disabilities and/or her political opinion, namely her veganism.
Section 361 of the FW Act relevantly provides:
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part:
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
The effect of section 361 is that if the applicant establishes that she was subjected to adverse action, then the onus shifts to the respondent to prove that such adverse action was taken for a reason which did not include a proscribed reason as claimed.
Issues for consideration
As noted by counsel for the respondent in her opening, it is important in a proceeding such as this to be clear on the nature of an application under section 351, and importantly, those matters that are beyond the scope of such an application.[46]
[46] See court transcript at page 4.
Relevantly, an application under section 351 is not a general inquiry into the various grievances that Ms Baker has against the respondent or about all of the events which happened or are alleged to have happened during her employment. Nor is it an application about general obligations under work health and safety legislation, under the Disability Discrimination Act1992 (Cth) or anti-bullying provisions of the FW Act.
The onus is on the applicant to establish that she was subjected to ‘adverse action’ as defined. It is only once she has done so that the reverse onus in section 361 comes into operation and it is presumed that that adverse action was taken for one or more of the proscribed reasons asserted by the applicant, unless the respondent is able to establish that it was not taken for that reason or for a reason which included that reason.
Consideration
I will therefore consider the nature of the claims made, whether the applicant has established that the individual claim made constitutes adverse action as defined, and then if so, I will consider whether the respondent has discharged the reverse onus of proof in relation to the reason for any such adverse action.
Study assistance claims
In the period from 2013 to 2016, Ms Baker made a total of five applications for study support. All of them were rejected. It is conceded that only the last three fall within the limitation period and therefore only the last three applications could properly be the subject of determination in this matter.[47] Having said that, if there was evidence that the initial study assistance had been rejected and that this was for a proscribed reason; that could be relevant to the determination of the issue of whether any subsequent rejection was also tainted by the same reasoning.
[47] See court transcript at page 13.
Was the refusal to approve Ms Baker’s applications for study assistance ‘adverse action’?
The first question which arises is whether the refusal to approve Ms Baker’s various requests for study assistance is adverse action as defined.
In anti-discrimination laws, unlawful discrimination is defined to include both direct and indirect discrimination. Both state and federal anti-discrimination laws contain various exemptions. However, unlike anti-discrimination legislation, the term ‘discriminate’ is not defined in the FW Act.
‘Discriminate’ is defined in the Oxford English Dictionary to mean:
… distinguished from others; perceived as distinct; differentiated
… to treat a person or group in an unjust or prejudicial manner, esp[ecially] on the grounds of race, gender, sexual orientation, etc…
In this case, by deciding which applicants for study leave will be approved or otherwise, a distinction or differentiation is made. Using the term ‘discriminate’ in this broadest of senses, it could be said that the decision not to approve Ms Baker’s study support applications constitutes discrimination for the purposes of the definition of ‘adverse action’ in section 342. However, it would only amount to a breach of section 351 if the adverse action was taken for a proscribed reason. Moreover, section 351(1) is further qualified by section 351(2) in so far as determining what action would be captured by the prohibition in section 351(1).
Was the adverse action taken for a proscribed reason?
Ms Baker has consistently asserted that the decision not to approve her study leave from 2015 onwards is based on her age, and in part, on her gender.
In support of her assertion that the decision to refuse to grant her study assistance application was based on her age, Ms Baker refers to a discussion she had with Mr Conlon by videoconference in which she asked Mr Conlon whether the reason for not approving her study support request was based on his age, and she says he ‘nodded in agreement’.[48] In this context, the following exchange occurred in cross-examination:
[48] Applicant’s Outline of Submissions in Reply filed on 8 August 2022 at paragraph [5].
Ms Baker:We were in a VCU meeting, and the VCU was actually magnified. And when I said, ‘This is about my age,’ he went yes. He nodded in agreement.
Counsel for respondent: You’re not in a position to know whether he was merely nodding to show that he was following the discussion, are you?
Ms Baker: He didn’t deny it either, Ms Dowsett.
…
Counsel for respondent: Well, he told you why he didn’t recommend approval, didn’t he?
Ms Baker:No, he didn’t. He just denied responsibility. He told me that it was Mr Walkden’s decision.[49]
[49] Court transcript at page 14.
Each of Ms Baker’s managers, and the ACCC witnesses more broadly, have consistently maintained that the reason for the rejection of Ms Baker’s applications for study leave were based on relevance, cost and time.[50]
[50] See, for example, Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraph [13] and following; Affidavit of Mr Adrian Philip Walkden affirmed and filed on 8 April 2022 at paragraph [12] and following.
Mr Conlon, whilst not the delegate with authority to approve her application, was clearly consulted about his views on the matter by Mr Walkden.[51] Mr Conlon’s evidence was that he considered each of Ms Baker’s study support applications and that he did not support those applications on the basis of relevance, costs to the agency and workload within the team.[52] He expressly denied that he was in any way motivated by her age, or indeed any other proscribed attribute in coming to this view. I accept that evidence.
[51] See Affidavit of Mr Adrian Philip Walkden affirmed and filed on 8 April 2022 at paragraph [14].
[52] See Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraph [13] and following.
I do not accept that Mr Conlon conceded in a conversation with Ms Baker that he had rejected her application on the basis of her age. Rather, I accept his evidence that he did not support her undertaking the Juris Doctor of Law course on the basis of relevance, cost and resourcing issues.
In her November 2013 application, Ms Baker also indicated that the study commitment was 25 hours in the first trimester, 30 hours in the second and 6 hours for tutorials. The expected completion date was noted to be December 2017. The application on its face seeks both study leave and financial assistance. The cost of the degree is noted to be $25,425 per year.
Mr Walkden, as the relevant Branch Head, had the authority to approve the study assistance request. He declined the November 2013 request both in relation to study leave and financial assistance. The reason given was ‘with significant cuts to staffing I don’t have the capacity to release Kerry for 20% of the time’.[53]
[53] See Affidavit of Mr Adrian Philip Walkden affirmed and filed on 8 April 2022 at Annexure AW-2.
Mr Walkden followed up on this decision by email to Ms Baker on 16 December 2013 in which he said:
… As mentioned in my call to you, I have not approved your application for Studies Assistance for Juris Doctor. My reasons are that it is a significant cost to the ACCC but that it is also a significant call on your time away from work, when we are experiencing staff losses and a very limited opportunity to replace staff as they leave. This directly affects the ability of this branch to provide the required level of support to the agency. I do not see the staffing restrictions changing for some time.[54]
[54] Affidavit of Mr Adrian Philip Walkden affirmed and filed on 8 April 2022 at Annexure AW-3.
There was a further email exchange between Ms Baker and Mr Walkden on 23 December 2013 regarding this decision.[55] This email exchange is consistent with the evidence given in these proceedings as to the reasons for the rejection of the study assistance request. Whilst these documents relate to the initial request, the reasons given were consistent with those given for all subsequent requests for study leave. The decision to refuse the study assistance was based on relevance and cost, as well as the implications for resourcing. These reasons must be viewed in the context that at the relevant time, the ACCC was subject to financial and resourcing constraints.[56]
[55] Affidavit of Mr Adrian Philip Walkden affirmed and filed on 8 April 2022 at Annexure AW-4.
[56] See Affidavit of Ms Colleen Anne Newsome affirmed and filed on 8 April 2022 at Annexure CN-1.
As stated, Mr Conlon did not have the requisite authority to approve the applicant’s study assistance request, although he did have the power to recommend or not recommend the request for approval.[57] I accept Mr Conlon’s evidence that he did not support the applications, for the same reasons given by Mr Walkden.
[57] Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraphs [13] and [38].
In early 2014, Ms Baker sought a review of action in relation to the decision by Mr Walkden not to approve her application for study support. A review was conducted by Mr Ian Avis, Director, Recruitment and Payroll Management. In his report to Ms Jo Schumann, Executive General Manager, Corporate, dated 13 February 2014, Mr Avis relevantly notes:
… there appears to be evidence that a discussion had occurred and there is no reason to doubt this. However there is no direct evidence to suggest that agreement was given that studies assistance to undertake legal studies would be automatically supported or approved. The SAS policy indicates that while there is intention to undertake studies, and it may be specified in an individual’s IAP, there should not be an assumption that approval to undertake the study will be given. Indeed the approval criteria as detailed in the SAS policy, together with the responsibilities of the manager and delegate, must be factored in.
…
While it can be said that the course of studies planned would fit with the approval criteria regarding ‘relevance of the proposed study to employment in the ACCC’ it can also be said that it does not have any direct relevance to the work Ms Baker is currently undertaking in the IT Project Management Office.
Furthermore, as referenced earlier the approval criteria details key points to consider when determining whether to support and approve an application. These points include ‘any other factor considered relevant’. Mr Walkden stated in his email that he considered the impact on IMTS productivity during the period of downsizing as a prime reason for non-approval. He also referenced the tight budgetary environment in the context of financial approval. In his role as a delegate and in the context of the policy, this approach seems reasonable. In addition, study approvals so far this year indicate that this approach to financial approval is being applied across the organisation.
Therefore, having considered all the available information, documentation and relevant policy, I have formed the view that the delegate’s decision not to approve Ms Baker’s studies assistance application for both financial support and study leave was reasonable and as such should be upheld.[58]
[58] See Affidavit of Ms Colleen Anne Newsome affirmed and filed on 8 April 2022 at Annexure CN-1.
On 27 May 2014, Ms Baker made her second studies assistance application, which was subsequently refused by Mr Walkden.[59]
[59] Affidavit of Mr Adrian Philip Walkden affirmed and filed on 8 April 2022 at paragraphs [26] to [30].
Ms Baker then made a third application for studies assistance on 13 May 2015. This too was refused by Mr Walkden on the same day.[60]
[60] Affidavit of Mr Adrian Philip Walkden affirmed and filed on 8 April 2022 at paragraphs [31] to [36].
Mr Cross was, at all relevant times, the General Manager, People and Culture, also based in Canberra.[61] In 2015, he dealt with Ms Baker’s grievance in relation to the refusal of her third study support application, a process available to her under the Public Service Act1999 (Cth).[62]
[61] Affidavit of Mr Douglas Keith Cross affirmed on 9 April 2022 and filed on 11 April 2022 at paragraph [1].
[62] Affidavit of Mr Douglas Keith Cross affirmed on 9 April 2022 and filed on 11 April 2022 at paragraphs [9] and [19].
Mr Brenton Philp was engaged to undertake an investigation and prepare a report into this grievance.[63] Mr Cross reviewed the Philp report and confirmed the decision to decline study support. To the extent that it could be said that Mr Cross was involved in the decision to refuse Ms Baker’s study support application, I find that the reasons that he did so are as set out in the Philp report and in the letter dated 7 August 2015 at Annexure DC-2 of Mr Cross’ affidavit.
[63] Affidavit of Mr Douglas Keith Cross affirmed on 9 April 2022 and filed on 11 April 2022 at paragraph [20(a)].
Relevantly, the Philp report records that Ms Baker had raised the issue of age discrimination in her statement to Mr Philp. After setting out the various factors relevant to the decision made about the study support application, Mr Philp made the following conclusions and recommendation:
… I find no information to suggest that the decision by Mr Walkden in considering the SAS application by Ms Baker was wrong, without power, or considered irrelevant considerations/did not consider relevant considerations. Mr Walkden considered relevant considerations, particularly around resource cost and relevance to the work of the IMTS/PMO. There was no information to indicate that Mr Walkden considered irrelevant considerations, including involving discrimination, bullying or harassment. It was open to Mr Walkden to arrive at the decision he did. The decision was consistent with ACCC policy, with the SAS framework, and reasonable in the circumstances.
I encourage Ms Baker to take advantage of the flexible working hours scheme to continue her studies.
I also strongly encourage her to provide any information or evidence of bullying, harassment or misconduct to an independent person or workplace contact officer so that it might be properly assessed.[64]
[64] Affidavit of Mr Douglas Keith Cross affirmed on 9 April 2022 and filed on 11 April 2022 at Annexure DC-2.
There is nothing in the report from Mr Philp, nor in the August 2015 letter from Mr Cross, which suggests that in affirming the decision to refuse the study leave, he was motivated in any way by Ms Baker’s age or indeed any other proscribed ground. Moreover, in his affidavit, Mr Cross states that whilst he did not have a specific recollection of this grievance, that the reasons for his action were as stated in his letter of 7 August 2015.[65] Moreover, he goes on to say that he did not make his decision of the 7 August 2015 because of, or for reasons which include, Ms Baker’s age.[66] I accept that evidence.
[65] Affidavit of Mr Douglas Keith Cross affirmed on 9 April 2022 and filed on 11 April 2022 at paragraph [21].
[66] Affidavit of Mr Douglas Keith Cross affirmed on 9 April 2022 and filed on 11 April 2022 at paragraph [23].
Ms Baker subsequently sought a Merit Protection secondary review of action of the 13 May 2015 decision. In that application, Ms Baker included the following under the heading ‘Brief statement about why review is sought’:
The refusal to provide me with any level of study support is discriminatory, and does not align with my career development planning as discussed with and approved by my manager.
By letter dated 8 January 2016, a delegate of the Merit Protection Commissioner (‘MPC’) confirmed the decision under review. The decision of the MPC is at Annexure CN-2 of Ms Newsome’s affidavit.
Relevantly, at paragraph [5.2] of its decision record, the MPC report sets out the basis of Ms Baker’s concerns as articulated at that time. It also records the view expressed by Ms Baker, and repeated in these proceedings, that some of the subjects that she was undertaking were relevant to her role in IMTS, such as contract law and intellectual property.[67]
[67] MPC decision dated 8 January 2016 at paragraph [5.4].
At paragraph [5.6] of the MPC decision, it states the following:
5.6In her application for secondary review, Ms Baker said that she thought the refusal to provide her with any level of study support was discriminatory. She appears to base this view on her submission that Mr C ‘nodded in agreement’, and did not challenge her, when she suggested to him that the refusal of her study support was based on her age. …
Ultimately, the MPC report concluded that the decision under review should be confirmed.
Having regard to the totality of the evidence, I find that each of Ms Baker’s requests for study support to allow her to undertake a Juris Doctor was refused, both initially and subsequently, due to the view taken at the time that it was not relevant to her role and, importantly, that it would impact on the resources available within the IMTS. I further accept that the overall cost and duration of the course were also relevant. I find that Ms Baker’s age, or indeed any other proscribed reason, played no part in the decisions to refuse her study assistance.
Harassment and bullying claims
At paragraph (1)(b) of her application, Ms Baker asserts that she was subjected to targeted harassment and bullying. In particular, she refers to a telephone discussion with Mr Conlon in December 2017, in which he conveyed comments to her made by colleagues about her work ethic and her veganism without disclosing who made the comments.
This claim does not clearly assert the proscribed reason upon which it is alleged the adverse action was taken. Nor does it clearly identify the nature of the adverse action. As outlined above, adverse action is defined in section 342 of the FW Act, in the context of an employment relationship, to arise where an employer:
(a)dismisses an employee;
(b)injures the employee in his or her employment; or
(c)alters the position of the employee to the employee’s prejudice; or
(d)discriminates between the employee and the other employees of the employer.
In this case, the matters contained in paragraph (1)(b) of the application do not make out a claim of adverse action on a proscribed ground for the purposes of section 351.
Moreover, even if it could be said that ‘conveying these comments’ amounts to an injury in Ms Baker’s employment or an alteration to her prejudice in her employment, or discrimination if it could be said that he treated her differently to how he treated other employees, the applicant has not asserted the proscribed attributed upon which she relies to make out this claim, other than her vegan philosophy. I accept Mr Conlon’s evidence as to the reason why he raised these matters with Ms Baker, none of which relate in any way to a proscribed reason.
I accept the evidence of Mr Conlon that he had received some feedback from some of the employees who worked alongside Ms Baker and as her manager, he felt it appropriate to pass that feedback on so that she was aware of it, could respond to it and could consider whether any changes were required to her behaviour.[68] Mr Conlon gave evidence, which I accept, that this was not a formal process nor was it the commencement of any type of performance management process.[69] Rather, his evidence, which I accept, was that he was simply passing on feedback which he had received about perceptions of others regarding a member of his team.
[68] Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraph [41] and following.
[69] See, for example, court transcript at page 36.
It also appears uncontentious that by mid to late 2016, there was increased tension between Ms Baker and Mr Conlon about Ms Baker’s work performance and output, and for her part, Ms Baker’s perception that she was not being supported in her efforts to undertake further study. Ms Baker was using her flex time arrangements to manage her study commitments and this resulted in her accruing a negative balance. This was brought to her attention and she made arrangements to bring her flex balance back to zero.[70]
[70] Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraph [63]; Annexure PC-10.
Mr Conlon’s email of 21 October 2016, annexed at PC-13 of his affidavit, is a contemporaneous record of his discussions with Ms Baker and reflects the difficulties in their relationship by this time. Ms Baker was clearly frustrated with his lack of support for her law studies. Mr Conlon appears equally frustrated with her lack of focus on her role.
I find that Mr Conlon appropriately raised the issue of Ms Baker’s negative flex balance and that this did not constitute adverse action as defined. Moreover, even if I am wrong about this, I accept his evidence that he was not motivated by her age or any other proscribed reason in the manner in which he addressed this or any other employment issue with her.
Furthermore, at paragraph (1)(f) of her application, Ms Baker asserts that Mr Conlon made disparaging comments about her attitude to work/life balance. Again, Ms Baker does not clearly articulate how she says this conduct constitutes adverse action, in so far as she does not identify how she says that it amounts to an injury to her in her employment, an alteration to her position to her prejudice or how it amounts to discrimination as compared to other employees.[71] Even if one accepts that is could be so characterised, Mr Conlon’s evidence is that while he had discussions with Ms Baker about her work/life balance, he did not do so for a proscribed reason.[72] I accept that evidence.
[71] Fair Work Act 2009 (Cth), s 342.
[72] Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraphs [68] and [69].
It is clear from a review of the emails at Annexures PC-15 to PC-18 of Mr Conlon’s affidavit, as examples, that there were concerns being raised over the period from 2018 to 2019 about Ms Baker’s work product, both in terms of output and quality. These matters were the subject of discussion between Ms Baker and Mr Conlon. They were also the subject of concern raised by other employees. It is also clear from the totality of the evidence, that Ms Baker raised concerns about the expectations on her in terms of workload and her responsibilities.
For example, at Annexure PC-18 is a file note that Mr Conlon prepared on 27 March 2018 regarding a discussion he had had with Ms Baker the previous day. It records a difficult conversation between him and Ms Baker in which Ms Baker had suggested mediation between them and had asserted that Mr Conlon and ‘Adrian’, a reference to Mr Walkden, did not understand her concerns. This note also refers to a concern raised by Ms Gina D’Ettore about Ms Baker’s ‘seeming lack of workload’.
The applicant further claims that in the period from December 2017 to August 2019, she was subjected to regular and deliberate bullying which was intended to make her employment so distressing that she would be forced to leave.[73]
[73] Applicant’s Outline of Submissions in Reply filed on 8 August 2022 at paragraph [3].
Again, having regard to the totality of the evidence, I do not accept this characterisation of the situation at that time. As discussed above, there were tensions between Ms Baker and Mr Conlon. I accept that Mr Conlon found managing Ms Baker difficult. I do not find that he engaged in conduct which was either aimed at forcing Ms Baker to leave or could otherwise be said to amount to injuring her in her employment.
For each of these reasons, I find that Ms Baker has not established that the conduct she alleges Mr Conlon engaged in occurred in the manner she claims. She has not established that his conduct amounted to adverse action as defined. Moreover, even if I am wrong about that and it could be said to amount to adverse action, I accept Mr Conlon’s evidence about why he engaged with Ms Baker in the manner he did. I accept that he was in no way motivated by her age or any other proscribed reason, but rather was motivated by his desire to have Ms Baker engage in her role and perform to the expected standard.
Vegan claims
At paragraph (1)(c) of her application, Ms Baker refers to the fact that a formal function to mark the opening of the new Melbourne office did not cater for her dietary requirements. Ms Baker alleges that as a result, she was discriminated against on the basis of her veganism. This was a mid-afternoon event and the invitation to staff indicated that light refreshments would be provided.[74] Ms Baker confirmed in cross examination that as a vegan, she could eat fruit from the fruit platter.[75]
[74] See Affidavit of Ms Colleen Anne Newsome affirmed and filed on 8 April 2022 at Annexure CN-6.
[75] Court transcript at page 19.
Annexed to Ms Newsome’s affidavit at CN-7 is an invoice for food orders for the opening function which suggests that two fruit platters were ordered for the function. Ms Baker has not established that the provision of food for the opening function constitutes adverse action as defined, and consequently, for the purpose of this analysis, I do not need to determine whether veganism is a political opinion for the purposes of section 351 of the FW Act.
Ms Baker also alleges that she was subject to adverse comments by her colleagues about her veganism. To the extent that this relates to the manner in which Mr Conlon provided feedback to her that some of her colleagues took issue with the way in which she expressed her views about veganism in the workplace, she has not established that this amounts to adverse action as defined. Providing feedback does not amount to an injury in her employment or an alteration to her position as an employee to her prejudice, nor does it amount to discrimination.
Mr Conlon conceded that he spoke to Ms Baker about some concerns raised by some colleagues regarding the way in which she expressed her views on veganism in the workplace.[76] He also conceded that he did not tell her who had made those comments nor did he provide her with details of the specific comments made.[77] When asked about this in cross-examination, Mr Conlon said:
… I treated them as feedback, rather than allegations. It was part of our regular catchups. And so it was about passing on the feedback, rather than suggesting allegations had been made.[78]
[76] Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraph [48].
[77] Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraph [53].
[78] Court transcript at page 36.
Mr Conlon also conceded that this was a difficult conversation but he went on to say that he ‘felt obliged to pass on the feedback. It had been conveyed to me that it was the feedback from several staff, and so I felt I couldn’t do nothing’.[79]
[79] Court transcript at page 37.
At paragraph (1)(d) of her application, Ms Baker further claims that an unidentified member of staff made a comment about leather shoes and vegans which Ms Baker found deeply upsetting. Again, Ms Baker does not identify how the making of such a claim amounts to adverse action taken by the employer and a breach of section 351 of the FW Act.
The allegation lacks specificity; it does not identify the person who allegedly made the comment and to whom Ms Baker was speaking at the time. No evidence was led by the person with whom Ms Baker was allegedly speaking at the time which might have corroborated this allegation. In those circumstances, Ms Baker has not established on the balance of probabilities that this allegation is made out, nor has she pleaded how such a comment, even if made, could amount to adverse action as defined in section 342 of the FW Act. For each of these reasons, she has not made out her section 351 claim in relation to this matter.
Privacy claims
At paragraph (1)(e) of her application, Ms Baker asserts that Mr Conlon breached her privacy by discussing her with anonymous staff members. This is a reference to Mr Conlon discussing Ms Baker with those staff members who raised concerns with him about her conduct in the workplace.
As discussed, Mr Conlon’s evidence, which I accept, is that he received feedback from various colleagues about Ms Baker’s work performance and that he felt it necessary to pass this feedback on to Ms Baker. I find that Mr Conlon did not deal with this as a complaint as such, but rather, simply provided Ms Baker with feedback.
His evidence, again which I accept, is that he did not take this action for any proscribed reason, but rather was simply seeking to manage an interpersonal issue between work colleagues. Whether he did so well or not, is not the issue. The issue for this court, assuming that it could amount to adverse action as defined, is whether he took this action for a proscribed reason.
Having regard to the totality of the evidence, I find that he did not.
In coming to this view, I have also had regard to the evidence given by Ms Newsome that there were increasing tensions in the relationship between Ms Baker and two other employees, Ms D’Ettore and Ms Mousa at about this time.[80] Ms Newsome says that although Ms Baker was offered support to do so, Ms Baker did not wish to formalise her complaints.
[80] Affidavit of Ms Colleen Anne Newsome affirmed and filed on 8 April 2022 at paragraph [23].
Faking claims
In paragraph (1)(g) of her application, Ms Baker asserts that Mr Conlon and Mr Walkden were aware of her diagnosed work-related depression and anxiety and that notwithstanding this, Mr Walkden suggested that Ms Baker was faking her condition.
Both Mr Conlon and Mr Walkden state that they were not aware of the specific diagnosis that Ms Baker had.[81] Notwithstanding this, I accept that both Mr Conlon and Mr Walkden were aware that Ms Baker suffered from some psychological condition, in respect of which she had taken a period of sick leave.
[81] See Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraph [70]; Affidavit of Mr Adrian Philip Walkden affirmed and filed on 8 April 2022 at paragraph [45].
As outlined above, the basis of this claim is an email Ms Baker received in which she says Mr Walkden suggested that she was faking her psychological injury.
Mr Walkden has given evidence, which I accept, that in October 2015, Ms Baker had sought to postpone her performance review and an agreement was reached that she be independently assessed to determine her fitness to participate in that process.[82] It was in this context, according to Mr Walkden, that Ms Baker attended an independent medical assessment.
[82] Affidavit of Mr Adrian Philip Walkden affirmed and filed on 8 April 2022 at paragraph [46].
To this end, on 5 November 2015, Ms Baker was assessed by an occupational physician, Dr Bernadette Trifiletti.[83] On 30 November 2015, Ms Baker was then assessed by psychiatrist, Dr Dielle Felman. Dr Felman found that Ms Baker was fit to participate in the IAP process although she did recommend some modifications. Similarly, Dr Felman said that:
In the medium to longer term, it is my opinion that Ms Baker would benefit from being transferred to another department although there is insufficient information to deem her unfit to remain in her current role while an alternative role is sought.[84]
[83] Affidavit of Ms Colleen Anne Newsome affirmed and filed on 8 April 2022 at Annexure CN-9.
[84] Affidavit of Ms Colleen Anne Newsome affirmed and filed on 8 April 2022 at Annexure CN-9.
Mr Walkden’s evidence is that he does not recall seeing these assessments but that he was advised that Ms Baker was assessed to be fit to participate in the performance review process.[85]
[85] Affidavit of Mr Adrian Philip Walkden affirmed and filed on 8 April 2022 at paragraph [47].
It was in this context that Mr Walkden advised Ms Baker of this advice on 31 March 2016.[86] In that email, he also asked Ms Baker if she had been using sick leave to attend lectures or undertake course work.[87] This email is contained in full at Annexure AW-13.[88]
[86] Affidavit of Mr Adrian Philip Walkden affirmed and filed on 8 April 2022 at paragraph [48].
[87] Affidavit of Mr Adrian Philip Walkden affirmed and filed on 8 April 2022 at paragraph [49].
[88] See Affidavit of Mr Adrian Philip Walkden affirmed and filed on 8 April 2022 at Annexure AW-13.
Relevantly, in that email, Mr Walkden delayed Ms Baker’s performance review until her return from leave on 14 April 2016. It was in this context that Mr Walkden said in this email to Ms Baker:
… As you have brought to my attention the timing of your university exams and noting the amount of sick leave you have applied for, could you please advise whether you have attended lectures or undertaken university coursework during any period of the sick leave you have applied for since 1 January this year.
Ms Baker replied by email, also on 31 March 2016, indicating that she had ‘attended lectures during periods of sick leave’.[89]She went on to say that, ‘Monash University is aware of my situation and have been supportive and able to make appropriate accommodations to enable me to continue’.
[89] Affidavit of Mr Adrian Philip Walkden affirmed and filed on 8 April 2022 at Annexure AW-14.
It was in this context that on 22 April 2016, Mr Walkden wrote to Ms Baker in the following terms:
Kerry
I have reflected on your response regarding use of personal leave to attend lectures and I thank you for being forthright in your response.
I would like to convey my concern about the use of personal leave for purposes other than what is outlined in our EA. Your attendance at lectures during personal leave is outside the spirit and intent of our personal leave provisions. To do so would require a recommendation from a health professional and while you have provided a Doctor’s medical certificate stating you were unwell during January/February, it does not state that you are able to undertake other activities. It appears you have taken it upon yourself to make this assessment. Unless there is other certification that you have not provided stating it is reasonable to attend university, it only raises doubt in my mind about the nature of purported illness. Perhaps you could provide me with an explanation to help me better understand the situation.
For any future personal leave from the workplace, I now require you to provide a medical certificate. … I will advise Peter separately of my direction to you.[90]
[90] Affidavit of Mr Adrian Philip Walkden affirmed and filed on 8 April 2022 at Annexure AW-14.
Mr Walkden states that the reason for sending the email on 22 April 2016 was as set out in that email exchange, namely that he was:
… concerned that Kerry’s practice of using personal leave to attend university lectures and course work was not consistent with the spirit and intent of the Enterprise Agreement. I wanted to put her on notice of my concerns, and to invite her to assist me to understand her position.[91]
[91] Affidavit of Mr Adrian Philip Walkden affirmed and filed on 8 April 2022 at paragraph [53].
Moreover, Mr Walkden expressly states that he was not motivated by Ms Baker’s age, any disability that she suffered from or any political opinion that she held in sending that email.[92] I accept that evidence.
[92] Affidavit of Mr Adrian Philip Walkden affirmed and filed on 8 April 2022 at paragraph [54].
Putting her claims at their highest, it might be said that in sending the 22 April 2016 email, Mr Walkden was putting Ms Baker on notice that he did not believe that she was abiding by the spirit as well as the letter of the Enterprise Agreement. Even if I were to accept that in doing so, this amounts to injuring Ms Baker in her employment, I accept Mr Walkden’s evidence that he was not motivated in any way by a proscribed reason.
In circumstances where an employee is absent from work due to anxiety, it is not unreasonable that Mr Walkden would be concerned about ensuring that anything that she was doing whilst she was on sick leave was not further exacerbating her condition. I note that Ms Baker does has not produced, and importantly at the time did not produce, any medical evidence which supported her taking time off work but continuing to attend her lectures.
This aspect of Ms Baker’s claim is therefore not made out.
Support claims
At paragraph (1)(h) of her application, Ms Baker alleges that Mr Conlon did not provide her with support that had previously been promised according to her. It may be said that if Ms Baker indeed needed that support to undertake her role, a refusal to provide that support may amount to an injury to the employee’s employment such that it would fall within the definition of adverse action.
However, Mr Conlon’s evidence is that the reason why he did not provide this additional resource was because of his view that it was not necessary in the circumstances, having regard to the project management role that Ms Baker had in the said project.[93] Mr Conlon denies that he refused to provide this support for any proscribed reason.[94] I accept Mr Conlon’s evidence in this regard.
[93] Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraph [78] and following.
[94] Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraph [86].
Mr Conlon confirmed that he did not agree to Ms Baker’s request for a business analyst to assist with the Aurion project which she was asked to work on.[95] That project related to a program used to ‘onboard’ new staff. In the course of cross-examination, Mr Conlon conceded that Ms Baker was struggling with the Aurion project. He said that he did not agree to a business analyst being provided because he:
… didn’t think it was necessary. It was a non-technical project. I felt you had the skills to be able to undertake that work. I was also limited in the ability to engage somebody for such a short period of time. It was perhaps only one or two days of work, and the possibility of engaging a third party to do that work was … limited, so I chose not to go down that path.[96]
[95] Court transcript at page 44 and following.
[96] Court transcript at page 44.
In this context, the following exchange occurred with Ms Baker and Mr Conlon:
Ms Baker:So what effort did you make to provide me with some support that I might have been able to use to help complete that?
Mr Conlon:I would have offered to review any work that you had done. I would have offered to open doors with any people you needed to make contact with. I would offer other team members to assist, and I would have attended meetings with you to help.
Ms Baker: And why didn’t you Mr Conlon?
Mr Conlon: Why didn’t I what, sorry?
Ms Baker: Do any of those things?
Mr Conlon: I believe I did.
Ms Baker: No. I have to disagree there, but we will move on from that.[97] …
[97] Court transcript at page 45.
In relation to the issue of the business analyst, the minutes from the performance meeting between Ms Baker and Mr Conlon on 25 June 2019 record the following:
I do not agree that a HR business analyst is necessary to make improvements to the onboarding or separations processes. This is a non-technical piece of work and the core skills of a business analyst (communication, problem-solving and critical thinking) are consistent with an EL1, especially an EL1 who has worked in the IMTS branch for approx. six years.[98]
[98] Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at Annexure PC-20.
This file note also records the following:
The project management framework is an example of work not being delivered within a reasonable timeframe. We first discussed this work in October with Kerry committing to a November delivery. In April it was ready for a review session with the team. Post the review session a revised draft was prepared. As of June no elements of the framework have been finalised. This is work internal to the team and is not dependent on resources from other teams.
In response to this feedback Kerry cited health issues and stress. I advised that we continue to do everything reasonably practicable to provide a safe work place.
It is clear from the evidence when viewed in its entirety that Mr Conlon and Ms Baker had a different view about what was required for Ms Baker to perform her role. Mr Conlon’s evidence, which is consistent with the evidence given by the respondent’s other witnesses, was that in order to undertake the project management role, one did not need to be a subject matter expert. In this case, one did not specifically need to be an IT expert to undertake the project management role in respect of an IT project. It is also clear that Ms Baker had a strongly held and opposing view. That difference of opinion, however, does not establish that the decision taken was taken for a proscribed reason. I am satisfied on the totality of the evidence that the respondent has discharged the onus of proof in relation to this allegation.
Seating changes claims
In paragraph 1(i) of her application, Ms Baker asserts that Mr Conlon deliberately lied to her to have her agree to move from her workstation. This, she claims, resulted in her being separated from her team and that by asking her to move seats, the needs of Ms Mousa and Ms D’Ettore were given priority over her need to sit with others in her team. Mr Conlon denies that he misled Ms Baker as to the reason for the move.[99] I accept his evidence in this regard.
[99] Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraph [94].
However, in any event, Ms Baker has not articulated how this incident, even if it were true, constitutes adverse action as defined. She has not established how it is said to amount to an injury in her employment or an alteration of her position to her prejudice.
Moreover, even taking her claim at its highest, Ms Baker does not clearly articulate the proscribed reason for such action, even if she could show that it did constitute adverse action. In any event, Mr Conlon has given evidence, which I accept, that he did not take any action related to the change to Ms Baker’s seating arrangements because of the grounds identified in general terms, namely, because of her age, her disability or any political beliefs.[100]
[100] Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraph [142] and following.
Reasonable adjustments claims
As stated, it is not disputed that Ms Baker was asked to move from her desk in about mid-2018. She initially agreed when she understood this to be part of a broader seating reallocation.[101] As stated, when she became aware that she was only being asked to move to accommodate Ms Mousa and Ms D’Ettore sitting together, she took issue with the move.
[101] Affidavit of Ms Kerry Bronwyn Baker affirmed and filed on 28 February 2022 at paragraph [10].
For example, at page 652 of the court book is an email dated 8 June 2018 from Ms Sharon Alley-Myers to Ms Baker and Ms Mousa, which relevantly said:
Hello Anita and Kerry
Following discussions with all parties (Anita, Kerry and Peter C) could you please effect a desk swap between your two desks by the end of next week. Please ensure all belongings and work related materials are moved to your new desk, relocated to appropriate storage or disposed of.
This change is part of a larger desk reallocation on level 17 and better consolidates the IMTS and Property teams.
Thank you for your cooperation.
Thereafter, there was further email exchange between Ms Baker and Mr Conlon about the desk move. For example, also on 8 June 2018, Ms Baker sent an email to Mr Conlon and Ms Alley-Myers in the following terms:
Good morning Peter and Sharon
Following my discussion with Sharon and clarification of certain aspects of the situation I confirm that I will swap desks with Anita at the earliest convenience. There was conflicting information Anita told me which gave me a different understanding to what had initially been said.[102]
[102] Court book at page 655.
Subsequent to the desk move, Ms Baker began experiencing significant difficulties with the light and sound in the open plan office.[103] She asserts that these complaints were not properly handled nor was she provided with reasonable adjustments and that this situation simply worsened after her desk move.[104] Ms Baker further claims that when she tried to seek out alternative workspaces which were less taxing on her in terms of light and noise, she was repeatedly told that she had to return to her assigned desk.[105]
[103] Affidavit of Ms Kerry Bronwyn Baker affirmed and filed on 28 February 2022 at paragraph [12].
[104] Affidavit of Ms Kerry Bronwyn Baker affirmed and filed on 28 February 2022 at paragraph [13] and following.
[105] Affidavit of Ms Kerry Bronwyn Baker affirmed and filed on 28 February 2022 at paragraph [13].
The nature of the problems that Ms Baker experienced following her desk move were outlined in her email of 6 August 2018 to Ms Alley-Myers in which she said:
…
I am finding that the workstation I have been moved to is creating significant problems with my eyesight and I need to ask for a move. The issue is that where this particular desk is situated has a direct line of fluorescent lights creating significant glare just at the top of my line of sight. The lighting is over the whole passage involving 4 groups of workstations.
…
My former desk position I had my back to the lights so this wasn’t an issue. I have noticed a deterioration in my vision in the past few weeks. I have eye strain, headaches and blurred vision which has come on over a relatively short space of time, and which I attribute to my current desk location. It is consequently something that I’d appreciate regarded as fairly urgent.[106]
[106] Court book at page 659.
At page 664 and following of the court book is a further email which sets out some of the steps taken and suggestions made to accommodate Ms Baker’s concerns and Ms Baker’s response and/or lack of response to those suggestions.
Mr Walkden, Ms Newsome and Mr Conlon each give evidence about the difficulties in accommodating all staff in the Melbourne office at the time and complaints received generally from managers about this issue.
Mr Walken says he was not directly involved in the issues specifically involving the applicant although he concedes that she, like other employees, would have been affected by the constraints on available space and the move generally to an open plan office.[107]
[107] Affidavit of Mr Adrian Philip Walkden affirmed and filed on 8 April 2022 at paragraph [55] and following.
Ms Newsome gives evidence about the fact that the ACCC moved to new premises in Melbourne in late 2017[108] coincided with an increase in staff numbers, which according to Ms Newsome, occurred in 2018, and consequently, led to capacity issues in the Melbourne office. She gives evidence about the reconfiguration in seating arrangements and the fact that Ms Baker was affected by this change.
[108] Affidavit of Ms Colleen Anne Newsome affirmed and filed on 8 April 2022 at paragraph [14] and following.
Ms Newsome further gives evidence about Ms Baker’s complaints about the issues arising from her seating location from late 2017 onwards.[109] This included raising concerns about noise and glare. Ms Newsome details the process followed by the organisation to explore the issues raised by Ms Baker and determine what, if any, reasonable adjustments could be made to address those issues.[110] This included sourcing equipment, and the like.[111]
[109] Affidavit of Ms Colleen Anne Newsome affirmed and filed on 8 April 2022 at paragraph [24] and following.
[110] Affidavit of Ms Colleen Anne Newsome affirmed and filed on 8 April 2022 at paragraph [26].
[111] Affidavit of Ms Colleen Anne Newsome affirmed and filed on 8 April 2022 at paragraph [27] and following.
Ms Newsome then details various meetings and communications with Ms Baker over the latter part of 2018 to 2019 to explore and address her concerns regarding her seating and noise and light issues.[112] In particular, Ms Newsome details the steps she undertook in trying to resolve this issue over the period from September 2018 to July 2019, which included undertaking various work health and safety assessments, including:
·a report on lighting levels by Recover dated 24 August 2018 which recommended certain adjustments be made;[113]
·a sound report by JTA dated November 2018 which noted that the noise levels in the Melbourne office were consistent with Australian standards but also made some suggested improvements which could be adopted;[114] and
·a report by Dr Wilkins dated 18 December 2018 in which he concluded that in his opinion there was no contraindication to Ms Baker working in an office workspace that does not exceed noise exposure standard 85dB(A)[115]
in addition to attending various meetings with Ms Baker and her union official.[116]
[112] Affidavit of Ms Colleen Anne Newsome affirmed and filed on 8 April 2022 at paragraph [29] and following.
[113] Affidavit of Ms Colleen Anne Newsome affirmed and filed on 8 April 2022 at Annexures CN-14 and CN-15.
[114] Affidavit of Ms Colleen Anne Newsome affirmed and filed on 8 April 2022 at Annexure CN-17.
[115] Affidavit of Ms Colleen Anne Newsome affirmed and filed on 8 April 2022 at Annexure CN-18.
[116] Affidavit of Ms Colleen Anne Newsome affirmed and filed on 8 April 2022 at paragraphs [35] and [43].
At Annexure CN-19 of Ms Newsome’s affidavit is a copy of a letter from Ms Newsome to Ms Baker dated 18 January 2019 in which she addresses Ms Baker’s request for a change in her desk position. Ms Newsome outlines the reasons why the ACCC would not accede to Ms Baker’s request for the ACCC to either arrange for her to move back to the desk she occupied prior to 8 June 2018 or to redesign or refurbish the entry area so that a screen is put in between her current desk position and an entry door so as to block noise created by that door.
At Annexure CN-20 of Ms Newsome’s affidavit is a copy of Ms Baker’s response dated 1 February 2019 to Ms Newsome’s January 2019 letter. In this letter, Ms Baker maintains that the ACCC has not made reasonable adjustments to accommodate her needs in relation to the noise and distraction caused by her change in desks. She also indicated that she had a further appointment with the ENT specialist on 8 March 2019. She sought a relocation back to her original desk to ‘alleviate what is for me a situation that is causing me significant nervous tension and stress’.Ms Newsome replied to this letter on 20 February 2019.[117]
[117] See Affidavit of Ms Colleen Anne Newsome affirmed and filed on 8 April 2022 at Annexure CN-21.
On 14 March 2019, Ms Baker sent an email attaching a letter from Dr Claire Iseli which she said supported her need to move desks. That letter simply stated:
This is to certify that Kerry had a complex infection in her right ear some years ago. Though the infection has now cleared she has been left with adhesions in her middle ear and some inner ear damage, that results in moderate mixed hearing loss in her right ear. Though with her left ear hearing being predominantly normal she will likely hear well in very quiet rooms, this right ear hearing loss will make it very difficult to both localise sound and to filter noise in background noise. This will make it difficult for her to hear clearly in complex listening environments. She is definitely fit for work but would benefit enormously from working in a quiet environment whenever possible.[118]
[118] Affidavit of Ms Colleen Anne Newsome affirmed and filed on 8 April 2022 at Annexure CN-22.
Following receipt of this further medical evidence, the ACCC engaged JRS property services to consider what measures, if any, could be taken to minimise the door noise.[119]
[119] Affidavit of Ms Colleen Anne Newsome affirmed and filed on 8 April 2022 at Annexure CN-23.
By letter dated 4 June 2019, Ms Newsome wrote to Ms Baker confirming that after reviewing all of the information, the ACCC was not agreeable to her request to change locations. In that letter, Ms Newsome set out the steps taken by the ACCC to address and accommodate the concerns raise by Ms Baker relating to the change of desk issue.[120] Ms Baker responded to this letter on 19 June 2019 and took issue with much of Ms Newsome’s statements.[121]
[120] Affidavit of Ms Colleen Anne Newsome affirmed and filed on 8 April 2022 at Annexure CN-24.
[121] Affidavit of Ms Colleen Anne Newsome affirmed and filed on 8 April 2022 at Annexure CN-25.
Mr Conlon’s evidence is that steps were taken to try and accommodate the concerns that Ms Baker raised regarding the glare and noise in the office.[122] Relevantly, this included trying different desks, adjustments made to the doors in the area, adjustments made to the lighting in the area and some sound treatments to address concerns about the noise levels.
[122] Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraph [99] and following.
For example, Mr Conlon wrote to Ms Baker on 6 September 2018 noting the advice given by the WHS team. In this email, Mr Conlon went on to say:
As I have noted, it is not appropriate for you to remain at your current workstation as you have made it clear that you believe the lighting at this workstation is having an adverse impact on your health, despite the lighting survey advice that the Lux level is within standard range. Continuing to work at your current workstation is not consistent with our duties under WHS legislation…
I have provided you with the option of moving to alternative IMTS desks which, to date, you have chosen not to take up.[123]
[123] Court book at page 670.
Moreover, at page 692 of the court book is an email from Mr Conlon to Ms Baker dated 13 September 2018 in which Mr Conlon records his understanding that Ms Baker was:
uncomfortable with the behaviour of Anita Mousa and, consequently, you wish to change your desk location to another floor rather than to desk 2 …
I am sorry and concerned in hearing that this is the case as I am committed to ensuring that you have a safe and respectful work environment.
Unfortunately, the constraints I have outlined in my previous email mean that the option of a move to another floor remains not possible.
…
It is clear from the email exchanges between Ms Baker, Mr Conlon and others that Ms Baker’s concerns about the lighting and noise issues were taken seriously and various options to resolve it satisfactorily were explored. It is also clear that various options were put forward both by both Ms Baker and Mr Conlon as to how these issue could be resolved. Whilst these issues were ultimately not resolved to Ms Baker’s satisfaction, there is no evidence that the manner in which this matter was handled by the respondent constitutes adverse action as defined.
The email exchanges referred to also support the evidence given by the respondent’s witnesses about the steps taken to accommodate the concerns raised by Ms Baker about her desk allocation whilst balancing her health and safety concerns, the organisation’s capacity constraints at the time and the desire to try and keep individuals co-located as far as possible with other team members. As stated, the email exchange also refers to the interpersonal issues that Ms Baker had raised at this time about two of her co-workers which also were factors to be considered in the balance.[124]
[124] See, for example, court book at page 684.
Relevantly, in her email of 5 October 2018, Ms Baker made the following observations:
Notably, when I was originally directed to move, I did indicate a preference to remain where I was to be with my team. I feel you did not consider this necessary at the time. When the glare issue was identified in addition to the excessive noise, I was encouraged to work flexibly to manage the OH&S issues, including moving to other desks as required.
While I acknowledge attempts to seek remedies as required to deal with the OH&S issues, I don’t consider these have been reasonable. I do not see the reason why I could not have been returned to my original desk where I didn’t experience the glare problems. In addition, suggestions I have made in an effort to be cooperative and find effective solutions I feel have been dismissed prematurely. I feel this situation is also impacting on other staff, which I think is unnecessary given the availability of the sensible options I have suggested.[125]
[125] Court book at page 699.
These comments are consistent with the evidence given by Ms Baker in these proceedings. I accept that Ms Baker believed that the easiest solution to the problem was to allow her to move back to her original desk where she did not experience any of the difficulties she subsequently encountered. However, for reasons previously explained, the respondent did not agree that that solution was appropriate in all the circumstances. Irrespective of the reasonableness or otherwise of this decision, the evidence given by Mr Conlon and Ms Newsome, which I accept, is that in dealing with this issue, they were not motivated by any of the proscribed reasons identified by the applicant.[126]
[126] See Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at paragraph [144] and following; Affidavit of Ms Colleen Anne Newsome affirmed and filed on 8 April 2022 at paragraph [61].
In order to succeed in her claim, in so far as it relates to the alleged failure to make reasonable adjustments to accommodate her needs arising from her physical and/or mental disabilities, the applicant would need to show that, as a matter of fact, reasonable adjustments were not made and that the failure to do so constituted adverse action as defined. If she was able to establish each of those matters, then the onus would shift to the respondent to establish that the reason for such adverse action was not one of the proscribed reasons in section 351.
In this case, for the following reasons, I am not satisfied that the applicant has established on the balance of probabilities that reasonable adjustments were not made to accommodate her particular needs. It is acknowledged by the respondent that the move to an open plan office structure was challenging as people adjusted.
It was also conceded by the respondent that the applicant raised issues about the noise and glare in her workspace. As outlined above, the respondent’s evidence, however, is that it looked into these complaints and, where possible, tried to accommodate her concerns. At times, this was not possible.[127]
[127] See, for example, Affidavit of Mr Peter James Conlon affirmed and filed on 8 April 2022 at Annexure PC-14.
The applicant has not established that the adjustments made were not reasonable in all of the circumstances. The fact that she would have preferred not to have worked in the PMO area anymore does not alter that conclusion.
For completeness, I note that in her final submissions, Ms Baker refers to the decision of Daghlian v Australian Postal Corporation [2003] FCA 759, in which it was held that the failure to make reasonable adjustments for an employee who had a physical disability amounted to unlawful discrimination.[128] This case involved a claim of unlawful discrimination on the grounds of disability under the Disability Discrimination Act 1992 (Cth). There is no similar obligation under section 351 of the FW Act to make reasonable adjustments. This decision is of no assistance in determining the issues before this court.
[128] Court transcript at page 60.
On the totality of the evidence, I find that in or about late 2017 and 2018, the respondent was facing limitations in the space available to accommodate employees in the new Melbourne office. A request was made of Ms Baker to move desks to accommodate the needs of a co-worker. Ms Baker initially agreed, her understanding at the time being that this was necessitated by a general re-organisation. She subsequently formed the view that there was no general restructure and that the request to move was made of her to accommodate another employee. Ms Baker was dissatisfied with the move and subsequently raised a series of concerns about the lighting and noise in her new allocated seating. Much evidence was given about the investigation of these concerns by the ACCC. Ultimately, an agreement could not be reached which met the organisation’s needs as well as the concerns raised by Ms Baker.
Again, the issue in these proceedings is not to explore whether the applicant’s concerns about her desk allocation was handled well or poorly. The issue is whether the change in her desk allocation and the respondent’s handling of her complaints about this issue amounts to adverse action, and only if it does, to consider whether this action was taken for a proscribed reason. The respondent has given evidence about these matters, which I accept. Having regard to that evidence, I find that there is no causal nexus between the reallocation of Ms Baker’s desk (even if that could amount to adverse action) and the respondent’s response to the applicant’s concerns about her seating arrangements and any proscribed ground.
Exacerbation claims
At allegation (1)(k) of her application, Ms Baker asserts that she was denied the ‘hot desking’ arrangements available to other Melbourne based staff, and rather, that she was redirected back to her allocated desk notwithstanding her complaints about the lighting and the noise.
This claim fails for a number of reasons. First, the facts as alleged are not made out. The respondent’s evidence, which I accept, is that the ACCC did not have a ‘hot desking’ policy.[129]
[129] See Affidavit of Ms Colleen Anne Newsome affirmed and filed on 8 April 2022 at paragraphs [62] and [63] and Annexure CN-26.
At Annexure CN-26 is information provided to staff about the way in which desks were to be allocated in the ACCC at the relevant time. This material makes clear that the ACCC intentionally did not adopt a ‘hot-desking’ arrangement, but rather, implemented a desk-sharing arrangement which meant that staff had an allocated desk available to them at all times. As noted in that document, the distinction is that in the case of ‘hot desking’, individuals do not have an assigned desk, whereas in a desk-sharing arrangement, multiple people use a single desk on different days or at different times of the day.
Ms Baker has not established that she was denied access to the desk-sharing policy that applied to all staff. Rather, her own evidence is that she sought to choose where to sit rather than sitting at an allocated desk. Moreover, on the basis of the totality of the evidence I find that in applying this policy, the respondent made efforts to provide Ms Baker with a range of options as to possible desks that she could use.
The factual basis of this claim has therefore not been made out. Moreover, Ms Baker has not established that the issue of the desk allocation and the respondent’s handling of it otherwise amounts to adverse action as defined.
Voluntary redundancy
As indicated, Ms Baker claims that as a result of the respondent’s failure to make reasonable adjustments for her conditions, that she was effectively constructively dismissed.
For the reasons set out earlier, on a factual basis, I do not accept that the respondent failed to make reasonable accommodations for the applicant as alleged. I accept that the respondent took appropriate action to address the concerns that Ms Baker raised about the lighting and sound issues in the workplace.
Moreover, the evidence before the court is that Ms Baker accepted a voluntary redundancy package and that she was being supported in her discussions with the ACCC at this time by her union representative. She maintained that by August 2019, her mental health had significantly deteriorated to the point where the CPSU suggested she consider a redundancy package as they were concerned for her well-being.[130]
[130] Court transcript at pages 19 to 20.
Ms Baker had been on sick leave since July 2019.[131] The voluntary redundancy package details were sent to Ms Baker’s home email address whilst she was on sick leave. She concedes that she accepted the redundancy package on 19 August 2019 to take effect on 27 August 2019, although she indicated that she had wanted more time to consider it.
[131] Court transcript at page 20.
By letter dated 14 August 2019, the ACCC formally offered Ms Baker a voluntary redundancy package which was formally accepted by Ms Baker on 19 August 2019.[132]
[132] See Affidavit of Ms Colleen Anne Newsome affirmed and filed on 8 April 2022 at Annexure CN-27.
In the course of cross-examination, Ms Newsome conceded that the work area in which Ms Baker was located had a reasonable amount of traffic. In this context, the following exchange then occurred:
Ms Baker:… When you consider my anxiety about not being able to do IT work, plus the occupational health and safety requirements, do you think that trying to find me an alternative position either in another APS agency perhaps would have been appropriate at the time?
Ms Newsome: I think again it comes back to what was suitable, what was available. … there was obviously jobs that were available for you to apply for and go through a process, if you had have expressed an interest in those vacancies. If there was no vacancies then, as I said before, there was a meaningful job in project management that happened to be within the ITMS team.[133]
[133] Court transcript at page 57.
At the heart of Ms Baker’s complaint is the concept that having identified that she did not believe she had the requisite IT skills to undertake the project management role in the ITMS team, it was incumbent upon the ACCC to engage with her to assist her to find an alternative role that better suited her skill set. Although she did not expressly articulate it in this way, I understood this to be based on the fact that the PMO role that she initially was appointed to was moved by the ACCC from the finance team to the ITMS team.
In her closing submissions, Ms Baker stated that had this been done, it would have resolved the issue, however, she went on to say:
Instead of finding an alternative suitable placement, the issue was turned basically into a performance issue, despite the fact that I continued to express anxiety about being given IT-related work which was way above my skillset. … There was no strategy to relocate me, even though I clearly had occupational health and safety and HR skills that could have been utilised in the Melbourne office.[134] …
[134] Court transcript at page 60.
Conclusion
For each of these reasons, Ms Baker has not established that she was subjected to adverse action as claimed and/or to the extent that she has established that she has been subjected to adverse action, I find that having regard to the totality of the evidence, the respondent did not take adverse action for a proscribed reason.
I therefore dismiss the applicant’s application.
I certify that the preceding one hundred and sixty (160) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 21 December 2022
0