Baker v Australian Competition and Consumer Commission

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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

  1. 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…

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Details
Case
[2022] FedCFamC2G 1055
Decision Date

CaseChat Overview and Summary

Baker v Australian Competition and Consumer Commission is a case where the applicant, Ms Baker, alleged that she had been subjected to adverse action by the respondent, the Australian Competition and Consumer Commission (ACCC). Ms Baker claimed that the ACCC took adverse action against her based on her age and gender. The case was heard in a relevant Australian court where Ms Baker sought remedies under the Fair Work Act (FW Act) for the alleged adverse action. The ACCC argued that the claims were outside the six-year limitation period as stipulated in section 544 of the FW Act.

The primary legal issues in this case were whether Ms Baker could establish that she was subjected to adverse action as defined in the FW Act and whether the ACCC took such action for a proscribed reason. The court had to determine whether Ms Baker's claims regarding study assistance and other alleged adverse actions met the definition of adverse action, and if so, whether the ACCC's actions were for a proscribed reason, such as age or gender discrimination.

The court found that Ms Baker did not establish that she was subjected to adverse action as claimed. The court examined Ms Baker's applications for study assistance, which were rejected, and found that only the last three applications fell within the limitation period. The court determined that the refusal to approve the study assistance applications did not amount to adverse action for the purposes of the FW Act. Furthermore, the court concluded that even if the refusal constituted adverse action, Ms Baker failed to prove that it was taken for a proscribed reason. Consequently, the court dismissed Ms Baker's application.

In summary, the court's decision hinged on the inability of Ms Baker to demonstrate that she was subjected to adverse action and that such action was for a proscribed reason. The court dismissed the application based on these findings.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.