Barlow v St Vincent de Paul Society Queensland - [2025] FedCFamC2G 133

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Barlow v St Vincent de Paul Society Queensland [2025] FedCFamC2G 133

File number(s): BRG 517 of 2021

Judgment of: JUDGE EGAN

Date of judgment: 7 February 2025

Catchwords: INDUSTRIAL LAW – Where applicant alleged adverse action taken for a prohibited reason – where adverse action conceded – whether first respondent was involved in a contravention of the Fair Work Act – whether the second respondent was knowingly concerned in or a party to a contravention of the Fair Work Act – where the claim against the first respondent had been established – where the claim against the second respondent had not been established – orders accordingly.

Legislation: Fair Work Act (2009) (Cth), s. 340, s. 341, s. 361 and s. 550

Cases cited:
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Qantas Airways Ltd v Transport Workers Union of Australia (2023) 326 IR 179

Russel v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250

Tsilibanks v Transfield Services (Australia) Pty Ltd [2015] FCA 740

Wong v National Australia Bank Ltd [2022] FCAFC 155

Wood v City of Melbourne Corporation [1979] FCA 42

Division: Division 2 General Federal Law

Number of paragraphs: 175

Date of last submission/s: 7 November 2024

Date of hearing: 16, 17, 18, 19 October 2023; 13, 14 December 2023; 29, 30 July 2024; 29 October 2024

Place: Rockhampton and Brisbane

Counsel for the Applicant: Mr A. McLean-Williams

Solicitor for the Applicant: Esser Legal

Counsel for the Respondents: Mr J. McLean

Solicitor for the Respondents: Colin Biggers & Paisley
ORDERS

BRG 517 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
SHANNON BARLOW

Applicant

AND:
ST VINCENT DE PAUL QLD
First Respondent

TANYA DOHERTY
Second Respondent

ORDER MADE BY:

JUDGE EGAN

DATE OF ORDER:

7 FEBRUARY 2025

IT IS ORDERED THAT:
1.Judgment be entered in favour of the Applicant against the First Respondent on the question of liability.
2.The Applicant’s claim against the second respondent 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
JUDGE EGAN
Introduction

The applicant (Barlow) is a 52-year-old female. She was aged 47 years at the time she commenced her employment as a Retail Operations Manager (“ROM”) with the first respondent (SVdP) on or about 13 May 2019.
Barlow was employed pursuant to the terms of a letter of offer of employment dated 3 May 2019. [1] The position description for the role of ROM was as set out in Ex. 9, and was as follows:
[1]           Ex. 10.
Position Title   Retail Operations Manager (ROM) 1083
Position Number                  1083
Position Status   Full Time
Classification Location        SVDP 8.1 + Motor Vehicle
Location  Rockhampton Diocese
Central Council                    Rockhampton Diocesan Central Council
Line Manager   Executive Officer
Incumbent Name                  Shannon Barlow
Commencement Date           13 May 2019
Society Mission Statement
The Society is a lay Catholic organisation that aspires to live the gospel message by serving Christ in the poor with love, respect, justice, hope and joy, and by working to shape a more just and compassionate society.
Position Summary
The Retail Operations Manager is responsible for managing and coordinating the Rockhampton Diocese Retail Operations, they will be required to assist the Executive Officer focusing on strategic planning, financial control, preparation of budgets, reporting on performance, accountability, effectively and efficient processes in all facets, workplace health and safety and ensuring all works are conducted in accordance with the St Vincent de Paul Society policies and procedures.
Key Accountabilities
Retail Operations
•Oversee retail centre operations within the Rockhampton Diocese
•Ensuring all retail facets are managed to a high standard
•Liaise with local business in regard to donating goods to Society
•Employee performance and accountability if applicable
•Financial performance of stores
•Volunteer Member numbers
•Training of volunteer member/employees
•Liaise with JSA providers
•Marketing strategies/advertising
•Merchandising
•Store presentation
•Workplace Health and Safety
•Property maintenance
•Retail Operations manual
•Manage and oversee product, stock management and merchandising
•Develop operational team and individual plans that migrate the Society's Centres and
•associated operations objectives through the Rockhampton Diocesan Central Council area
•Provide operational and strategic recommendations in regards to future planning,
•evaluation and implementation of policies and procedures
•Ensure a culture of best practice standards
•Continuous improvement processes are developed
Human Resources
> Position Description
•Plan for current and future retail operations including identification of suitable new site locations and opportunities, including undertaking research and reporting on new commercial/retail operations through financial assessment of implications and benefits
•Undertake completive analysis of operations in relation to industry standards and like structure operations
•Identification and introduction of new commercial lines to generate increased sales revenue and dollar spend per customer
•Establish and maintain effective compliance of all operations and works in the areas (retail) including Workplace Health and Safety, Statutory obligations and Society requirements
Financials
•first point of contact for all retail financial queries, training staff in understanding reports and budgets and analysing figures to produce accurate and useful reports to Central Council/Executive Officer
•Assist the Executive Officer with checking and monitoring monthly financial reports ensuring all operations, are achieving set targets including non-retail areas
•Monitor actual financial results against budgets, advising Executive Officer and Central Council of any variances
•Ensure that all delegated authorities, capital acquisitions and the like are approved and managed in accordance with State and Diocesan policies and procedures
General
•People focused mentality - Conference Members, customer, staff and Volunteers
•Meet safety, cost quality and time targets through the application of proficient business management skills
•Work under the limited direction of the Executive Officer in relation to established priorities, task methodology and work practices to achieve results in line with the goals of the society
•Develop and maintain effective relationships with clients and stakeholders through close interactions with all relevant state, regional and local authorities within the Diocesan Central Council, State and general public
•Work in conjunction with Executive Officer and Central Council in all areas of property, insurance, accounting, media, human resource, funding submissions, central council and state council submissions, government acquittals
•Take responsibility for appropriate and ongoing professional development of staff/volunteer members within the Dioceses retail operations
Project Work
•Develop property proposal principles for retail Centres of Charity
•Measures will be provided as per project work objectives
Additional Position Requirements
•Ensure all work is performed to meet safety and environmental responsibilities in accordance with organisation policies and procedures
•Participate in regular tool box talks for staff training purposes
•Contribute effectively to the team and provide accurate and timely support and advise
•Acknowledgment that throughout the course of employment employees may be requested to work at different Society locations due to operation requirements.
•Interstate travel may be required
•Ensure compliance with organisation policies and procedures, employee agreement, employee team book and legislative requirement and maintain accurate record keeping
•May be required to work flexible hours to meet set deadlines and objectives. Out of hours and/or weekend work may be required
•Participate in the Organisation's performance reviews
•Perform all other duties as required
•Understanding that duties and responsibilities identified in the position descriptions are only an overview of expectations when the document is developed and the position may mature throughout the employee relationship including the duties and responsibilities required to be performed
Organisational Chart
Delegations
Financial delegation as stated in the St Vincent de Paul Society Queensland Financial Delegation of Authority.
Qualifications [Essential / Desirable]
Essential
•Relevant Tertiary or Tafe Qualification or equivalent in Business Management in Retail environment
•Demonstrated experience in multi-site retail management for a minimum 3 years
Knowledge, Skills and Abilities
•Contribute positively within a team environment
•High managerial ability including the ability to supervise staff, set priorities, monitor work flow and to develop local strategies or work practices
•Knowledge of and commitment to ensuring compliance with legislation, policy, ethical practice, client service standards, change management principles and contemporary human resource management approaches
•Effective ability to develop budgets
•Ability to effectively provide detail and logical reports to senior management
•Efficient ability to demonstrate and manage a diverse workforce (paid and volunteers)
•Establish skills to improve workforce moral and developed further effectiveness of a management team
•Demonstrate a friendly, positive attitude, with a willingness to learn
•Effective written, oral communication and interpersonal skills, including effectively communicating with stakeholders from a diverse range of backgrounds and groups
•Demonstrate excellent time management skills
•Ability to maintain confidentially on information at all times
•Demonstrate genuine respect for all people regardless of their situation
•Understanding of risk management principles including current WHS legislation and regulations
Special Requirements and Working Conditions
•Current Queensland Driver’s licence
•Satisfactorily completion of a National Criminal History Records Check prior to commencement and every 3 years thereafter
Employee Acknowledgement:
I acknowledge that I have read and agree with the position description given, and will adhere to the tasks and performance expectations therein
…
The terms of the employment were also governed by the provisions of an enterprise agreement firstly approved in 2017, but more recently by the St Vincent De Paul Society Queensland Employee Agreement 2020, which had been approved by the Deputy President of the Fair Work Commission on 21 February 2020. [2]
[2] Ex. 44.
Other documents of relevance to the applicant’s employment were:
a.The Centre Operations Security Policy; [3]
b.The Health, Safety and Wellbeing Policy; [4]
c.The Code of Conduct; [5]
d.
e.
[3]           Ex. 11.
[4]           Ex. 12.
[5]           Ex. 13.
To appreciate the nature of the applicant’s contractual responsibilities, which fell under the heading “Key Accountabilities – Retail Operations” as set out in the HR position description for the ROM role, one has to accept that the applicant was required to relevantly manage the first respondent’s operations over an extremely large geographical area.
The applicant’s responsibilities covered at least 23 retail outlet sites. These were constituted in total by 24 separate stores and 4 warehouses from as far west as Longreach, as well as sites in Calliope, Gladstone, Callide, Ford St North Rockhampton, Rockhampton, Mackay, Johanna Boulevard Bundaberg, Bargara, McLean St Bundaberg, Yeppoon, Emu Park, Biloela, Emerald, Blackwater, and the Glenmore Shopping Village Rockhampton. All the locations were set out in [1b] of the Third Further Amended Statement of Claim filed on 25 September 2023 (SOC).
Barlow was responsible for the supervision and management of 29 paid staff and some unpaid store managers, as well as volunteers. [8] Such a diverse area of operation required effective co-ordination between Barlow and senior management, as well as a realistic appreciation by senior management as to how Barlow was effectively going to be able to manage and supervise everyone and everything at the same time. She couldn’t be everywhere at once, nor could she simultaneously be on site at every venue to ensure that instructions earlier given by her were in fact carried out. A lack of appreciation of that reality on the part of Ms Kirsten Hinchliffe (Hinchliffe) was starkly evident upon a viewing of a video recording of Barlow’s disciplinary hearing interview. [9] Reference to such video recording will later be made in these reasons.
[8] See para 5 of aff of Barlow filed on 26 July 2023 and para 1(b) of the Third Further Amended Statement
of Claim (SOC).
[9] See Ex. 7.
Applicant’s Claims
For ease of reference, at [10] – [50] inclusive of the SOC, it was pleaded on behalf of Barlow as follows:
THE APPLICANT’S WORKPLACE GRIEVANCES
10.Between about May 2019 and approximately December 2019, the Applicant engaged in regular (generally weekly) Retail Meetings with the Second Respondent and with Mr Phillip Cranny (President, Rockhampton Diocese). Generally, these meetings occurred at Gladstone Road. The purpose of the meetings was to update the Second Respondent, and also Mr Cranny, in relation to retail operations in the Rockhampton Diocese ('the retail update meetings').
11.       During the retail update meetings, and between about May 2019 and September 2019, the Applicant complained to both the Second Respondent and to Mr Cranny regarding the conduct of two retail staff, a Ms Valmay Burns (Manager of the Yeppoon Store), and a Ms Susan Gabriel (Manager of the Ford Street Store).
PARTICULARS OF VALMAY’S CONDUCT
Yelling crying screaming at the Applicant and directing personal insults to the Applicant including in about late May or early June 2019, at a face-to-face meeting when Valmay said to the Applicant: '/ don't want you in my store. I want you back in your office in the big girl chair'.
Also in June 2019, Valmay told a fellow-employee Ms Ayse Pickering (who then reported it to the Applicant) that Valmay said about the Applicant: 'She was hired only because she was the best of bad bunch'.
Also in June 2019, in a telephone conversation with the Applicant, Valmay said words to the following effect: 'Staff and volunteers don't want you in the store. They're not used to Management being in the store and it's intimidating. I don't like the way you talk. I just have to get used to you'.
On or about 29 July 2019 the Applicant met at the Ford Street Store with Ms Valmay Burns, and with Ms Susan Gabriel. Upon returning to Gladstone Road, the Applicant was advised by the Second Respondent that the Second Respondent had just got off the phone with Ms Valmay Burns, who had told the Second Respondent that the Applicant had 'intimidated Ms Gabriel' and had also made Ms Burns to 'feel excluded, during the meeting' (as just concluded at the Ford Street Store). The Applicant reiterated to the Second Respondent that she did not see how things could be improved, without some involvement by the SVdP Human Resources Department.
In or around August 2021, the Applicant had cause to meet with Ms Valmay Burns regarding Ms Burns making negative comments that had been reported to the Applicant by other retail staff in the Rockhampton Diocese about the fit-out at the new Longreach Store, as well as about the allegedly inferior efforts of the staff who had been tasked to arrange that fit-out, as matters that were now likely to cause prospects for the new Longreach Store to fail ('the adverse comments'). In the meeting, Ms Burns confirmed to the Applicant that she had made the adverse comments as now alleged, and that she would, in future desist from making further adverse comments about the Longreach Store.
On 19 September 2019 at approx 3.00 pm Valmay called the Applicant's immediate superior, the Second Respondent, and screamed and cried saying words to the following effect: 'Shannon has accused me of bullying Bianca Murphy'. This was untrue and was later confirmed to be baseless.
PARTICULARS OF MS SUSAN GABRIEL’S CONDUCT
Ms Gabriel expressing concerns to the Applicant that she would lose her job because of the Applicant, and expressing an unwillingness to take directions from the Applicant as the new Retail Operations Manager.
612.    At all material times the First Respondent was aware of the conduct of Valmay and Susan, by reason that the Applicant had complained about the said conduct to her immediate superior, the Second Respondent, and to Mr Cranny.
PARTICULARS OF COMPLAINTS MADE ABOUT VALMAY AND SUSAN
The complaints were made verbally during the retail update meetings. In making these reports about the conduct of Valmay and Susan, the Applicant:
(i) Was Complaining about matters that were the subject of Workplace Policy.
(ii) Complained about on-going difficulties caused for the Applicant by the behaviours of Ms Burns and Ms Gabriel, particularly in terms of their undermining of the authority of the Applicant during the performance of her duties as the Retail Operations Manager.
(iii) Complained that the magnitude of the difficulties warranted the involvement of the SVdP Human Resources Department (based in Brisbane), to help effect a resolution of the issues.
Yet was told by the Second Respondent not to report this conduct to HR under any circumstances because these were 'internal matters to do with the Diocese' and therefore HR 'should not be involved'. Also, for this reason, the Applicant was actively discouraged by the Second Respondent from seeking guidance or support from the First Respondent's HR department.
~~6A.~~13. At all material times the Second Respondent was aware of Valmay's and Susan's conduct directed at the Applicant since it was to the Second Respondent that the Applicant reported that conduct.
PARTICULARS
The Applicant refers to and repeats the particulars in paragraphs 10 - 12 of this Statement of Claim.
14.      In or around 25 September 2019 the Applicant was contacted by Ms Mikayla Walker from the SVdP Human Resources Department in Brisbane, and was told that complaints of workplace bullying had been made against the Applicant over an extended period by each of Ms Valmay Burns, by Ms Susan Gabriel, and also by a Ms Joanne Hellyer (who had already resigned). Particulars of those complaints were provided to the Applicant in a letter from the First Respondent dated 25 September 2019.
15.      On or about 2 October 2019 the Applicant attended a meeting with Mr Kevin Mercer (CEO) and Ms Kirstin Hinchliffe (General Manager, People & Safety) at Gladstone Rd to discuss the allegations now made against the Applicant by Ms Valmay Burns, by Ms Susan Gabriel and by Ms Joanne Hellyer. On or about 1 October 2019 the Applicant had provided written responses to these allegations, which were discussed during the meeting on 2 October 2019.
16.      On 9 October 2019 the Applicant was advised of the outcome of an investigation of the complaints by Ms Burns, Ms Gabriel and Ms Hellyer. The Applicant was advised that there was insufficient evidence to support allegations of bullying or unreasonable management action, such that the complaints had been concluded, yet the Applicant was instructed to participate in a mediation with each of Ms Burns, and Ms Gabriel.
17.      On 24 December 2019 mediation outcomes were finalised with Ms Susan Gabriel. On 28 January 2020 mediation outcomes were finalised with Ms Valmay Burns. In the premises, any prior workplace issues between the Applicant with each of Ms Valmay Burns and Ms Susan Gabriel as now particularised in paragraphs 11 - 12 of this Statement of Claim were 'concluded' matters.
STUART ROCHE COMPLAINTS
7.18. On or about 21 November 2019 the Applicant lodged a formal complaint with ~~both~~ the First Respondent's CEO, Kevin Mercer, concerning the conduct of a fellow-worker and employee of the First Respondent, Stuart Roche, which which was intended by Stuart to prejudice the Applicant and undermine the Applicant when carrying out her employment duties.
PARTICULARS OF COMPLAINT ABOUT STUART ROCHE
On or about 21 November 2019 the Applicant received an e-mail from Ms Carmel Jackson, Centre Coordinator for the SVdP Longreach retail store, complaining that Mr Stuart Roche (Executive Officer, SVdP Northern Diocese), had been pressuring Ms Jackson, in his capacity as a representative of the CEO Mr Kevin Mercer, to now lodge a bullying complaint against the Applicant. The Applicant was advised by Ms Jackson that when Ms Jackson refused to lodge such a complaint, that Mr Roche had informed Ms Jackson that 'he was sending one in anyway with your name on it, so expect to be getting a call', as well as Mr Roche having advised Ms Jackson of the names of other staff who had already allegedly lodged bullying complaints against the Applicant.
On or about 21 November 2019 the Applicant complained to the Second Respondent about the conduct of Mr Stuart Roche, as now particularised immediately above.
Other than to say to the Applicant words to the effect "/knowhow to deal with Stuart, leave Stuart to me" the Second Respondent took no action in response to the substance of the Applicant's complaint regarding the conduct of Mr Stuart Roche ('the first Roche complaint').
On or about 21 November 2019 the Applicant made a complaint to Mr Kevin Mercer (CEO SVdP Queensland) regarding the conduct of Mr Stuart Roche now particularised above, after the failure of the Second Respondent to deal with the substance of the first Roche complaint ('the second Roche complaint').
On or about 25 November 2019 the Applicant followed up the second Roche complaint via the provision of additional information, in an e-mail from the Applicant to each of Ms Kirstin Hinchliffe (SVdP Human Resources Department, Brisbane) and to Mr Kevin Mercer, including therein information from the original informant, Ms Carmel Jackson, at Longreach.
19.      …/
COMPLAINTS ABOUT THE SECOND RESPONDENT
~~11.~~20. In November 2019, during the re-fit of the First Respondent's Longreach store, the Applicant was subjected to bullying and harassing behaviour by the Second Respondent.
PARTICULARS OF THE SECOND RESPONDENT’S CONDUCT
The Second Respondent wrongly and improperly blamed and publicly berated the Applicant for the Longreach store re-fit being over budget and for not having the store prepared properly in time for the scheduled opening, yet in circumstances in which the Second Respondent had fixed the opening date without discussion or consultation with the Applicant.
The Second Respondent publicly accused the Applicant of having told her 'to fuck off' (ie to leave the store) whereas the Applicant had said no such thing to the Second Respondent.
The Second Respondent also made disparaging public remarks about the Applicant in Longreach, and did nothing to assist or support the Applicant in preparing for the store opening and instead created and fostered a culture amongst other employees and volunteers which had the effect of undermining the Applicant and her authority in the workplace.
~~13.~~21. Ihe Longreach store incident was merely part of an on-going sequence of a continuing bullying and harassing pattern of behaviour directed at the Applicant by the Second Respondent.
PARTICULARS
On 23 September 2020, the Second Respondent became extremely loud, intimidating and aggressive in a telephone call with the Applicant, while the Applicant was visiting the Yeppoon store alleging that Tammy Washington (the Multi Centre Coordinator of Bundaberg) had disrespected her (ie the Second Respondent). The Second Respondent's tone, language and delivery were unwarranted and un-acceptable in any workplace.
On or about 13 November 2020, the Second Respondent again became extremely loud, intimidating and aggressive in a telephone call with the Applicant when the Applicant informed her that labels on foodstuffs on sale at St Joseph's market stall at the Biloela store needed to be removed, because the First Respondent did not hold a licence to sell labelled foodstuffs.
On 12 March 2021 at approximately 3.30pm and whilst enroute by road from Mackay to Rockhampton, the Applicant informed the Second Respondent that the position of Warehouse Manager (Mackay) had just been 'offered to Tom' (Mr Hugh Thomas Brackenbury), whereupon:
(a)    The Second Respondent yelled at the Applicant and said words to the effect "No! I specifically gave you a directive not to hire that guy. You are so disrespectful! And now you have put me in a situation with Kathie. I promised her I wouldn't hire him!".
(b) The Applicant denied ever having received such a directive from the Second Respondent, and:
(i) Explained to the Second Respondent the expressed preferences for the position being offered to Tom, as had been made clear to the Applicant by the Mackay SVdP Conference President, Mr Frank Gilbert.
(ii) Advised the Second Respondent of the approvals already given by the SVdP Human Resources Department for the job offer to be made to Tom.
(iii) Inquired of the Second Respondent as to the basis for now being able to discriminate against Tom, as the person who had been assessed as the best available candidate, because of some personal prejudice, as had been enunciated by the Second Respondent to the Applicant.
(c) In response to the matters particularised in sub paragraph (b) (above), the Second Respondent then said words to the effect of: "You don't get to ask me that, I am the EO. You do what I say. HR are just trying to dump a problem. I'll call you right back. Right now, I have to call HR and fix this situation".
In consequence of the verbal exchanges between the Applicant and the Second Respondent particularised at paragraph (b) immediately above, the Applicant was left in a state in which she was tearful, highly distressed, shaken, filled with dread, and thus unable to drive safely for a period.
Complaints lodged with the First Respondent about the Applicant's Grievances.
~~14.~~22. Although after the incidents concerning Valmay and Susan (as set out in para. 11 herein) the Applicant complained to Phillip Cranny, President of the Rockhampton Diocese as now particularised in paragraph 11 and 12 of this Statement of Claim, no action was taken and the Applicant was told by the Second Respondent 'to wait' and 'Valmay will come around'.
~~15.~~23. As to the incident concerning Stuart (as set out in paras 18_herein) in or about mid November 2019 the Applicant initially complained to her immediate superior, the Second Respondent, who then told the Applicant: '/knowhow to handle Stuart. Leave this up to me. This is not a matter for HR so don't report Stuart to HR. I will handle it'
PARTICULARS
The complaint was made by the Applicant in a face-to-face meeting with the Second Respondent held at the First Respondent's administration offices situated at 67 Gladstone Rd Rockhampton. This was followed up with a phone call from the Applicant to the Second Respondent on or about 15 November 2019. When the Applicant realised this complaint was falling on deaf ears, and that Stuart's bullying would very likely continue, the Applicant was then prompted to complain direct to Kevin Mercer.
~~16.~~24. When nothing come of this complaint to the Second Respondent, on or about 21 November 2019, the Applicant lodged a formal complaint with the First Respondent's CEO, Kevin Mercer, as now particularised in paragraph 18 of this Statement of Claim.
~~17.~~25. Even though the First Respondent was aware Stuart's conduct was baseless, prejudicial to the Applicant in her employment, Stuart faced no censure or disciplinary action initiated by the First Respondent, and was allowed to continue in his position.
~~18.~~26. Between the months of March 2021 and June 2021 the Applicant regularly complained to upper management about the Second Respondent's on-going bullying and harassment directed at her, particulars whereof are as follows:
PARTICULARS
In addition to the particulars set out in paragraphs 20 & 21 of this Statement of Claim, the Applicant complained about the Second Respondent personally and in telephone calls, Teams calls and in e-mails sent to the Second Respondent, and in telephone calls, Team calls and in e-mails sent to representatives of the First Respondent's Human Resources Department between the months of March 2021 and June 2021. Complaints were lodged by the Applicant direct to Mikayla Walker. As well, during this period the Applicant spoke about these matters face-to-face and via email to Bianca Brophy and Erin Adcock in HR.
The Applicants complaints about the Second Respondent included a detailed verbal complaint made on 14 June 2021 to Kirstin Hinchliffe and Mr Drew Eide (General Operations Manager) at a meeting held in the conference room at Gladstone Road, Rockhampton conducted between the Applicant, Mr Drew Eide, Ms Kirstin Hinchliffe and the Second Respondent.
During the 14 June 2021 meeting, the Applicant articulated a sequence of complaints about each of the following aspects of the workplace conduct of the Second Respondent that were of concern to the Applicant (‘the 14 June 2021 meeting complaints enunciation’):
(a) A lack of support from the Second Respondent regarding 'line management' processes. In particular, the Second Respondent undermining the Applicant by encouraging members of the Rockhampton Diocese retail team to directly communicate with the Second Respondent rather than to go through the Applicant as their Retail Operations Manager.
(b)The Second Respondent undermining the Applicant's capacity and potential to achieve her key performance indicators ('KPls'). In particular, by the Second Respondent instructing staff "don't worry about the budget", in circumstances in which the Applicant had previously explained to the Second Respondent (and on more than one occasion) that comments of this nature undermined opportunities for staff development, and deprived the Applicant of key indicators required by the Applicant to be able to identify opportunities for staff development and training.
(c) The Second Respondent distributing misleading information around the Second Respondent's decision, as made on 10 March 2021to deploy Kim Horswood to the Biloela store (in lieu of Tammy Washington as proposed by the Applicant), and later using the problems that arose from the Second Respondent's decision as a basis to deflect the impact of that decision onto the Applicant, by asserting that the problems had arisen because of the Applicant having failed to arrange support for Cameo Kitchen during the absence of Kim Horswood in Biloela.
(d) The Second Respondent undermining the Applicant's authority as the Retail Operations Manager by reversing the decision by the Applicant to deploy Tammy Washington to support the Biloela store, and instead sending Ms Kim Horswood.
(e) The Second Respondent asserting that she had 'not even been aware' that Mr Heath Flannery had been abusive towards the Applicant, despite the Second Respondent's prior knowledge of those complaints, these having been raised with the Second Respondent by the Applicant, both in conversation and by way of e-mail.
(f) The Second Respondent soliciting a written complaint from Mr Heath Flannery about the Applicant, to be addressed to the SVdP Human Resources Department, and in relation to which, despite her requests, the Applicant had never even seen a copy, or been afforded any opportunity to respond.
(g) The Second Respondent having instructed the Applicant, during 2020, to 'remain in the office' to focus on recruitment, such that the Applicant was significantly impeded in her abilities to discharge her other tasks over the vast geographic expanse of the Rockhampton Diocese.
(h) The Second Respondent having told the Applicant on a number of occasions "that staff have made complaints about you", yet in circumstances in which the Applicant was neither provided with a copy of those complaints; or given sufficient particulars of the complaints so as to either know the nature of the alleged problem; or so as to assist in a low level resolution of any specific concerns. The Applicant complained to Ms Kirstin Hinchliffe and Mr Drew Eide she was 'very concerned about the Second Respondent's behaviour in this regard', and felt - in consequence - that the Second Respondent was deliberately soliciting such complaints about the Applicant.
(i) The Second Respondent having provided no clarification as to the recruitment policy of the Rockhampton Dioceses after this had been requested by the Applicant following the controversy claimed by the Second Respondent surrounding the hiring of 'Tom' in March 2021 (and as now particularised at paragraphs 21 of this Statement of Claim), and the Second Respondent having removed all decision-making responsibility in relation to future recruitment decisions from the Applicant after the hiring of Tom.
The 14 June 2021 meeting complaints enunciation constituted a workplace grievance or matter of concern to the Applicant in relation to her employment referable to the First Respondent's Policies and Procedures such that it was the exercise of a workplace right by the Applicant for purposes of s.341(1)(c)(ii) of the Act.
Later, in the afternoon of 14 June 2021, the Applicant met with Ms Kirstin Hinchliffe and Mr Drew Eide in the conference room at Gladstone Road at approximately 2:45pm, and in the absence of the Second Respondent ('the afternoon meeting'). During the afternoon meeting the Applicant further complained that she had repeatedly asked the Second Respondent for more support with administration, recruitment, and staff management, yet that no additional support had ever been forthcoming. That further complaint raised by the Applicant during the afternoon meeting constituted the further exercise of a workplace right by the Applicant for purposes of s.341(1)(c)(ii) of the Act.
Workplace rights
~~20.~~27. At all material times the Applicant held a workplace right within the meaning of section 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) to lodge and pursue a complaint with the First Respondent in relation to her employment including about matters covered by those policies particularised in paragraph 7 of this Statement of Claim.
21.28. In the premises of the complaints made by the Applicant as now particularised in paragraphs 11-12, 18, 22, 23, 24 and 26 of this Statement of Claim and in the premises of those matters particularised in paragraphs 7, 8 and 27 of this Statement of Claim, the Applicant exercised her workplace rights to make a complaint covered by s.341(1)( c)(ii).
29. On 12 July 2021, at 12:56pm the Applicant received an e-mail from the Second Respondent attaching correspondence from Ms Kirstin Hinchliffe, advising the Applicant that she was to be stood down from her employment effectively immediately, pending an investigation into various concerns regarding the Applicant's conduct and actions ('the stand down and allegations letter' and 'investigation').
29A. The First Respondent's actions in conducting the investigation and standing the Applicant down from her employment:
(i) injured the Applicant in her employment or caused a prejudicial alteration in her employment position, such as to constitute adverse action for purposes of s.342(1) Item l(b) and/or Item l(c) of the Act;
(ii) were actions taken for a prohibited reason, being that the Applicant had exercised a workplace right under s.341(1)(c)(ii), as now particularised in paragraph 28 of this Statement of Claim.
30. The stand down and allegations letter required the Applicant to respond in writing to the allegations contained therein, by 5pm on 15 July 2021, alleging that the Applicant had 'failed to adequately lead and manage the Retail Centre of Charities in the Rockhampton Diocese', on the basis that:
30.1 In consequence of the matters recorded in the Johanna Boulevard Audit Report:
(a) Various policies and procedures were not being adhered to, yet without specifying, with any necessary particularity, the specific policies and procedures that it was now alleged were not being adhered to.
(b) Breaches of the Code of Conduct had been found, yet without particularising with any necessary particularity which specific aspects of the Code of Conduct it was alleged had been breached by the Applicant.
(c)There had been non-compliance with various workplace health and safety requirements.
(d) The Warehouse Supervisor at Johanna Boulevard (Mr David Bartlett) had 'not been correctly trained', and was 'unsure of his role and responsibilities'.
30.2 That both the Applicant and Mr Allan West had worked from 5pm until lam at Johanna Boulevard, in breach of the St Vincent de Paul Society Queensland Employee Agreement.
30.3 The Applicant had breached the SVdP Code of Conduct, yet without the provision of any necessary particulars of which aspect of the Code of Conduct that it was now alleged had been breached, on the basis of:
(a) The Applicant's alleged conduct during a claimed visit to the Biloela Store on 25 June 2021.
(b) A complaint, as apparently made by Ms Anka Stevens.
(c) A complaint, as apparently made by Ms Kim Horswood on 15 June 2021.
(d) The Applicant having visited the Emerald Store in May 2021, with her pet dog.
30.4And further, that:
(a) Ms Valmay Burns had made a complaint, back in October 2019.
(b) Ms Susan Gabriel had made a complaint, back in October 2019.
(c) The Applicant had received a formal warning in relation to discrete aspects of the SVdP Recruitment and Selection Policy, back in January 2020.
(d) It was alleged, without any particularity, that the Applicant was having a "significant detrimental effect upon staff mental health and wellbeing."
31. On 16 July 2021 at 10:01am the Applicant received an e-mail from Ms Kirstin Hinchliffe requesting a written response to the stand down and allegations letter by 5pm on 20 July 2021. The e-mail also noted a further Teams meeting, scheduled for 10:30am on 22 July 2021, to discuss the allegations raised against the Applicant in the stand down and allegations letter.
32. On 20 July 2021 at 3:49pm the Applicant e-mailed Ms Kirstin Hinchliffe a thirteen-page response (dated 18 July 2021) to the stand down and allegations letter. By means of an exchange of further e-mails, the Applicant and Ms Hinchliffe also agreed that the Teams meeting originally scheduled for 10:30am on 22 July 2021, would now be conducted on Friday, 23 July 2021, at 2pm.
33. In her written response to the stand down and allegations letter, as now referenced in paragraph 32 of this Statement of Claim the Applicant, inter alia:
(a)Indicated that she had specifically nominated the Johanna Boulevard site for an audit because the Applicant was aware of problems, and had hoped that an audit could be used to document these, to afford an official basis for commencing necessary improvements, in the context of past difficulties and unwillingness expressed by key staff and volunteers at Johanna Boulevard in terms of getting these staff and volunteers to focus on the nature of these problems.
(b) Advised that she had met with the SVdP internal auditor Mr Vivek Chopra on the evening prior to the audit, and had raised with Mr Chopra her specific concerns about the problems at Johanna Boulevard; in order that Mr Chopra would know to look for these, and to document them, in the audit report.
(c) Indicated that 'end of day process' irregularities had been reported to the Applicant for the first time on 14 June 2021, only 9 days prior to the audit, then further explaining the potential origins of those practices at Johanna Boulevard.
(d)Advised that the Applicant had not been aware of 'novel' (ie: site specific) petty cash procedures at Johanna Boulevard, at least until the Applicant received the results of the audit report.
(e)Explained the circumstances of the sale at Johanna Boulevard of electrical items that had not been tested and tagged as being one aspect of the failure by Mr David Bartlett to follow prior specific instructions, and as being one of the matters that the Applicant had brough to the attention of Mr Chopra to identify and record, in his audit report.
(f) Explained that the Applicant and Mr West had seen the display of lewd items in the Johanna Boulevard Warehouse for the first time on 22 June 2021 and had ordered Mr David Bartlett to immediately remove the items. When these were still evident on the morning of the audit on 23 June 2021, the Applicant specifically drew the issue of the items to the attention of the Second Respondent, and to Vivek Chopra for further inclusion in the audit report. The Applicant also gave to Mr Chopra copies of the photographs of the lewd items (as are now annexed to the stand down and allegations letter.
(g) Advised, that Mr David Bartlett had received training and direction in workplace health and safety procedures and other relevant policy matters, and that Mr Bartlett had previously confirmed his understanding of those things.
(h) Advised, that despite having received on-site support, instruction, and training that had been arranged by the Applicant, Mr David Bartlett has 'either wilfully ignored, raised concerns about and/or registered complaints against those persons who attended site' and that "I have expressed concerns that I hold about David Bartlett's ability and commitment in running the warehouse with Tanya Doherty and to date have had minimal assistance or support forthcoming in this regard; other than to be told "there is a culture problem in Bundaberg".
(i) Indicated, that the Applicant has never received any particulars of the complaints alleged to have been raised against her by staff from Bundaberg, such that she could not respond to these allegations.
(j) Advised of the circumstances of the Applicant and Mr Allan West working until 12.30am on 16 June 2021; that the Second Respondent was aware of that by 17 June 2021, and had raised no issue with same, and, in light of the expectation by the Second Respondent that the Applicant work overtime beyond the standard 38-hour week it was not now reasonable to hold that late-night effort against the Applicant.
(k) Denied the unparticularised claims of the Applicant having breached the Code of Conduct, as well as having breached unparticularised policies.
(l) Denied the unparticularised complaints regarding interactions with staff at the Biloela store on the basis the Applicant did not attend at Biloela on the dates as claimed, and because the allegation was unparticularised.
(m) Complained that the Applicant had referred the complaint by Ms Anka Stevens to Human Resources for full investigation, and that the matter was still not yet investigated and finalised, such that the inclusion of this unresolved complaint in the stand down and allegations letter was not reasonable in all the circumstances.
(n) Complained about the suspicious circumstances of the making of the Kim Horswood complaint on 15 June 20201, and further complained that the Applicant had never received any particulars of this complaint from the First Respondent, such that it was now impossible for the Applicant to be able to respond.
(o) Explained the precise circumstances, being matters beyond the control of the Applicant, in which her pet dog had accompanied the Applicant during a trip to the Emerald Store in late May 2021.
(p)Complained about the failure to provide any particulars of the alleged 'concerns with the Applicant's leadership and management style' in the stand down and allegations letter, such that it was now impossible for the Applicant to meaningfully respond to the allegation.
(q) Complained about the inclusion as part of the allegations in the stand down an allegations letter of the fact of a prior complaint by Ms Val may Burns and Ms Susan Gabriel. In the circumstances of those matters now particularised in paragraph 14- 17 of this Statement of Claim, these matters were concluded matters, and no longer relevant and their inclusion as part of the basis for any proposed termination of the Applicant's employment was unreasonable.
(r) Complained that the Applicant having received a written formal warning in January 2020 related to a matter of policy confusion that had arisen more than 18 months previously, and in circumstances in which there had been no further similar problems, such that the inclusion of this matter in the stand down and allegations letter was neither reasonable, nor fair.
(s) Complained that the unparticularised allegation that the Applicants management behaviours were 'alleged to have a significant detrimental effect upon staff mental health and wellbeing' was unparticularised and was neither reasonable, or fair.
34. In the circumstances of the matters now pleaded in paragraph 33 (above) the Applicant was complaining about the unreasonableness of the stand-down action and investigation, and her response provided to the stand down and allegations letter constituted the further exercise of a workplace right for purposes of s.341(1)(c)(ii) of the Act.
35.      On 23 July 2021at about 10:30am the Applicant was diagnosed by Dr Adda as suffering from severe anxiety, and was certified as unfit for work for the period 23 July 2021 until 27 July 2021inclusive.
36.      On 23 July 2021at about 2pm the Applicant attended the Teams meeting with Ms Kirstin Hinchliffe and Ms Mikayla Walker as now particularised in paragraph 32 of this Statement of Claim.
36.1 The Applicant was accompanied by her partner Mr Evan Pritchard, acting as her support person;
36.2 The Applicant was told that the meeting was to be recorded by means of Teams and was advised that she would be entitled to a copy of the recording. Despite request, the Applicant has never received a copy of the recording.
37.      At the meeting aforesaid:
(a) There was no attempt at discussion or any seeking of elaboration or clarification by either Ms Hinchliffe or Ms Walker of any of the points raised in the 13 pages as submitted by the Applicant on 20 July 2021in response to the stand down and allegations letter.
(b) The Applicant indicated that she would be able to provide additional exculpatory information, whereupon it was subsequently confirmed by Ms Hinchliffe by way of an e-mail sent at 8.30am on 26 July 2021that the Applicant could provide that further information to the First Respondent by close of business on 27 July 2021 ('the further information').
38.      On 26 July 2021 the Applicant was diagnosed as suffering from depression with severe anxiety, and was certified under a WorkCover Queensland workers' compensation medical certificate, that was provided to the First Respondent by the Mandalay Medical Centre on 27 July 2021 by way of an e-mail sent at 9.08am.
38.1The medical certificate indicated that the Applicant had no capacity for work between 26 July and 26 August 2021.
38.2 In the premises of that certificate, the First Respondent's investigation into the Applicant as commenced by way of the stand down and allegations letter should have been suspended, as it was not reasonable for the First Respondent to continue with the investigation and disciplinary process in all the circumstances.
39. On 27 July 2021 at 7:48am the Applicant received an e-mail from Ms Kirstin Hinchliffe to advise that the further information that had been foreshadowed by the Applicant and as now particularised in paragraph 37(b) of this Statement of Claim was now required to be provided to Ms Hinchliffe by 10am on 29 July 2021, and if not received by that time then " I will assume that you will not be providing any additional information for the investigation process".
40. On 28 July 2021 and notwithstanding those matters particularised in paragraph 39 of this Statement of Claim~
40.1by way of an e-mail sent to Mr Kevin Mercer at 2.17pm, Ms Kirstin Hinchliffe requested approval to terminate the employment of the Applicant;
40.2 by an e-mail sent on 28 July 2021 at 2.25pm, Mr Mercer gave approval to Ms Kirstin Hinchliffe to proceed and terminate the employment of the Applicant; and
40.3 on 28 July 2021at 3.39pm the Applicant received an e-mail from Ms Kirsten Hinchliffe advising that the investigation had been 'concluded', and the Applicant's employment was terminated immediately, for misconduct ('the dismissal').
41. In the premises of those matters particularised in paragraphs 34, 37(b), 38, 39 and 40 of this Statement of Claim, the First Respondent:
(a) Dismissed the Applicant from her employment for a prohibited reason, thus taking a form of adverse action within s.342(1) of the Act.
(b)       Unilaterally;
(bi)      without evident reason;
(bii)      without any intelligible justification; and
(biii)     without any notice to the Applicant
and therefore unreasonably, unfairly and prejudicially, foreclosed on the prior invitation now particularised in paragraph 39 of this Statement of Claim for the Applicant to have an opportunity to provide the further information by 10am on 29 July 2021.
(c) In those premises, denied the Applicant procedural fairness during the investigative process now claimed by the First Respondent as the ostensible basis for the Applicant's dismissal.
42. Immediately after the termination on 28 July 2021 Mr Allan West (Warehouse Manager, Rockhampton) informed the Applicant that he had not been contacted, or interviewed at any stage by any representative from the First Respondent regarding an investigation into matters relating to:
(i)        the Applicant;
(ii)       the results of the Bunda berg Audit and its underlying causes;
(iii) the allegation of his having worked between 5.00pm and 1.00am at Johanna Boulevard, or
(iv)      the claimed poor work performance of Mr David Bartlett.
In the further premises of the matters informed to the Applicant by Mr West, the First Applicant:
(a) conducted the disciplinary investigation into the Applicant unreasonably, and incompetently; and
(b) in consequence, further unfairly and without reasonable cause dismissed the Applicant from her employment, thus altering the Applicant’s position to her detriment.
ADVERSE ACTION
43.      For a reason that:
43.1included the the Applicant having exercised one or her workplace rights as noted in paragraph 28 of this Statement of Claim, and
43.2while the Applicant was absent from work and incapacitated on medical grounds;
The First Respondent took adverse action within the meaning of section 342 of the Act, by dismissing the Applicant from her employment, thereby altering the Applicant's position to her detriment and in a manner that has been causative of financial loss and other harm.
~~44.~~
Contravention of s. 340(1)(a) and s. 550 of the Fair Work Act
~~23A.~~45. In the premises, by taking adverse action in the form of terminating the Applicant's employment for the prohibited reason or for reasons which include having exercised her workplace rights under s.341(1)(c)(ii) as now particularised in paragraphs 28 and 34 of this Statement of Claim:
•the First Respondent has contravened s. 340(1)(a)(ii) of the Fair Work Act
•the said contravention in turn gives rise to a civil penalty
~~23B.~~46. In the premises by taking adverse action in the form of terminating the Applicant's employment for the reason of for reasons which include having exercised her workplace rights under s.341(1)(c)(ii), the Second Respondent is a person involved in a contravention of s. 340(1)(a) of the Fair Work Act.
~~23C.~~47.          The Applicant refers to paragraphs 12, 13, 20, 21, 22, 23 and 26 of this Statement of Claim to say that the Second Respondent had personal knowledge of the facts matters and circumstances leading up to the Applicant exercising her workplace rights as set out in paragraph 28 hereof.
~~23D.~~48.
~~23E.~~49. In the premises, the Second Respondent had knowledge that the First Respondent had contravened s.340(1)(a) of the Fair Work Act for having terminated the Applicant's employment in response to the Applicant having exercised a workplace right.
~~23F.~~50. By reason of the Second Respondent's knowledge of the First Respondent's contravention of s.340(1)(a) of the Fair Work Act, a civil remedy provision for the purpose of s.550(1) of the Fair Work Act, the Second Respondent is 'knowingly concerned in or a party to' the said contravention for the purposes s 550(2)(c) of the Fair Work Act, and is also liable for that contravention.

In its Second Further Amended Defence filed on 6 October 2023, denials were pleaded in respect of most of the allegations pleaded on behalf of Barlow.
The trial of the proceeding commenced on 16 October 2023 and was held over eight days, firstly in Rockhampton, and later in Brisbane. A separate day was set aside for the making of oral submissions.
The Court has had the benefit of written submissions respectively filed on behalf of the respondents and Barlow on 29 October 2024 and 7 November 2024.
The Law
The provisions of ss. 340, 341 and 361 of the Fair Work Act (2009) (Cth) (FWA) are respectively as follows:
“Section 340 – Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4-1).
…
Section 341 – Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee – in relation to his or her employment.
Meaning of process or proceedings under a workplace law or workplace instrument
(2) Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a) a conference conducted or hearing held by the FWC;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f) appointing, or terminating the appointment of, a bargaining representative;
(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer’s leave;
(i) making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);
(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k) any other process or proceedings under a workplace law or workplace instrument.
Prospective employees taken to have workplace rights
(3) A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.
Note: Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.
Exceptions relating to prospective employees
(4) Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earning.
(5) Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2-8 or 6-3A (which deal with transfer of business).
…
Section 361 – Reason for action to be presumed unless proved otherwise
(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.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.”
For Barlow’s adverse action claims to be proven, she must have asserted, and established, that:
•she exercised a workplace right or rights as pleaded in her Third Amended Statement of Claim;
•the conduct complained of in fact occurred; and
•the conduct constituted adverse action pursuant to the provisions of s. 342(1) of the FWA.
If it was established by Barlow that the impugned conduct was conduct which contravened provisions of the FWA, it was for the respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason in respect of the termination of her employment.
As to the proper approach to be adopted by a court when considering whether impermissible adverse action has been established or not, the Court respectfully adopts the principles as set out in the decision of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [5] per French CJ and Crennan J; at [104] and [129] per Gummow and Hayne JJ; and at [140] and [141] per Heydon J where it was respectively said:
“[5] The task of a court in a proceeding alleging a contravention of s 346 is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason. This appeal was concerned with identifying the correct approach to that task.” – at [5] per French CJ and Crennan J
“[104] In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised “a substantial and operative” reason, or reasons including the reason, for the employer’s action and that this action constitutes an “adverse action” within the meaning of s 342.” – at [104] per Gummow and Hayne JJ
“… The test is whether adverse action has been taken because of a proscribed reason.” – at [129] per Gummow and Hayne JJ;
“… Examining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action.” – at [140] per Heydon J;
“… The assessment of a witness’s mental processes is an assessment of that witness’s state of mind. It is pre-eminently a matter in which a trial judge has a considerable advantage over an appellant court…” – at [141] per Heydon J.
A causal link must be established between the adverse action the subject of complaint, and the matters referred to in s. 340(1)(a)(i) – (iii) inclusive of the FWA, due to the use of the word “because” in s. 340(1)(a) of the FWA. That issue was dealt with by Foster J in Russel v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 at [60] and [63] where His Honour said:
“[60] The provisions particularly relied upon by the applicant (ss 44, 97, 340, 341, 351 and 352 of the FWA) all use the expression “because” or “because of” as describing the necessary causal link between the adverse action and the relevant prohibited reason for that action.
...
[63] It is not necessary for an applicant to establish that the only reason or the dominant reason that adverse action was taken was a prohibited reason. It is sufficient if the prohibited reason is one of several reasons for the taking of the action although it may be that the prohibited reason must have operated as a substantial and operative factor in the taking of the adverse action.”
On the issue of what evidence was needed to be canvassed in relation to the impugned action taken by an employer, it was said by French CJ and Crennan J in Barclay at [41], [44] and [45] as follows:
“[41] The question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act. These provisions must be construed together in accordance with the principles of statutory construction established by this Court, which must begin with a consideration of the text of the relevant provisions and may require consideration of the context including the general purpose and policy of the provisions.
…
[44] There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”
[45] This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.”
(Footnotes omitted) (Emphasis added)
On the question of onus, it was said by French CJ and Crennan J in Barclay at [50] as follows:
“[50] The following description of a legislative predecessor to s 361 given by Mason J in General Motors-Holden’s Pty Ltd v Bowling remains pertinent: “the plain purpose of the provision [is to throw] on to the defendant the onus of proving that which lies peculiarly within his own knowledge.”
(Footnotes omitted)
An employer’s onus may not be satisfied by a mere statement that the action taken by the employer was not for a proscribed reason. As was said by French CJ and Crennan J at [54] of Barclay:
“[54] … a question arose as to whether the director’s evidence was sufficient to satisfy the onus cast upon the employer. In deciding that the director’s evidence was sufficient, the majority in Pearce recognised that mere declarations of an innocent reason or intent in taking adverse action may not satisfy the onus on an employer if contrary inferences are available on the facts.”
(Emphasis added)
When deciding, for the purposes of s. 361 of the FWA, who the relevant decision-maker was, or upon whose advice or recommendation the decision-maker relevantly acted upon when taking any adverse action, White J in Tsilibanks v Transfield Services (Australia) Pty Ltd [2015] FCA 740 at [121] – [127] inclusive said:
[121] My conclusion that the applicant’s exercise of his workplace rights played no part in the decision of Mr De Angelis and the recommendation of Mr Kerswell is not conclusive of the applicant’s case with respect to the termination of his employment. Regard should also be had to the basis for the underlying recommendation on which they acted. If those making the recommendation to Mr De Angelis did so because of the making of the applicant’s First Complaint, Transfield would not discharge the s 361 onus. This is evidenced by the authorities.
[122] In Voigtsberger v Council of the Shire of Pine Rivers (No 2) (1981) 58 FLR 239, the finance committee of the respondent Council had recommended that the applicant’s position be abolished. The report of the finance committee was adopted later that same day by the full Council. Evatt J held at 256 that the decision of the finance committee was the critical decision in the case because the full Council had merely rubber stamped its recommendation. Accordingly, it was essential that the Court have evidence from the members of the finance committee so that it could determine whether a proscribed reason had been a substantial and operative factor influencing the decision of any individual councillor.
[123] Smithers J addressed the question of principle involved in Wood (on behalf of the Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1 at 19 in a context analogous to the present:
[19] In the task of ascertaining the mind of the defendant corporation, with respect to the standing down of Mr Kane, that mind may be located in the mind of one authorised officer or of more than one person exercising the executive power of the corporation. It is a pure question of fact where in particular circumstances that corporate mind may be located. In a case where two officers are concerned in the solution of an administrative problem and are working jointly to solve it and decide what the corporation is to do and are working in harmony and in full confidence, the one with the other, the mind of the corporation is to be found in the course of conduct agreed upon between them and the reasons which in the end are the operating reasons for the policy agreed upon.
However, as Smithers J went on to acknowledge, that does not preclude the possibility that one of the participants may have as his or her motive an undisclosed proscribed reason for joining in the decision.
[124] Gray J also noted the issue in Gibbs v Palmerston Town Council (unreported, 21 December 1987) at 84‑5 when he said:
[T]here is still a difficult question of the extent to which the improper purpose of one person may be a substantial operative factor in the decision of another. Clearly, if the actual decision maker simply “rubber stamps” a decision in fact made by another, the purpose of that other will be a substantial operative factor. At the other extreme, if the actual decision maker truly believes the false and innocent reasons advised by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person. The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority.
[125] Gray J reviewed and applied these authorities in National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 at [25]‑[29].
[126] Counsel for the applicant referred to Rowland v Alfred Health [2014] FCA 2. The decision in that case confirms that it is appropriate to have regard to the reasons actuating the members of a selection committee making a recommendation, and not just to the reasons of the ultimate decision maker.
[127] Accordingly, it is appropriate in the present case to have close regard to the reasons of those who made the recommendations to Mr De Angelis and Mr Kerswell. This includes their reasons for recommending the restructure which Transfield adopted as well as their reasons for selecting the applicant as a person to be made redundant in consequence of that restructure. The evidence of Mr Rynja and Mr Hall is particularly significant in this respect. Mr Handy did not contribute to the recommendation to Mr De Angelis, and Mr Vigus had only a limited role.”
It will always be a question of fact as to whether the proscribed reasons, as pleaded in a statement of claim as constituting the reason/reasons or motive for the taking of the adverse action, have been rebutted. Motive is a relevant consideration for the Court to have regard to when assessing the evidence before it, in that regard.
Whether or not a complaint or inquiry has been made by an employee in relation to his or her employment for the purposes of s. 341(1)(c)(ii) of the FWA is factual and is to be considered objectively.
In this proceeding, the respondent conceded that the termination of the applicant’s employment on 28 July 2021 constituted adverse action under s. 342 of the FWA.
As later canvassed in these reasons, the Court finds that the exercise by Barlow of her workplace rights on 14 June 2021 was in respect of her employment as governed by the provisions of s. 341(1)(c)(ii) of the FWA.
Analysis of the Evidence
Barlow impressed the Court as being a forthright and truthful witness. Her answers to questions during cross-examination were logical and considered. She did not prevaricate. To the extent that issues of credit arose as between Barlow and a witness or witnesses called on behalf of the respondents, the Court has preferred the evidence of Barlow on all important questions for decision by the Court.
Central to a consideration as to whether SVdP had, on the balance of probabilities, discharged its reverse onus of proof that the adverse action taken by it had not been taken for a prohibited reason, was the evidence surrounding the manner in which Barlow had been stood down, and the alleged evidentiary bases advanced in support of such stand down.
On 12 July 2021, a letter on SVdP letterhead was sent to Barlow by Hinchliffe, [10] who had been employed by SVdP in the position of General Manager of People and Safety since October 2012. Hinchliffe reported directly to one Kevin Mercer (Mercer), who at all material times was the Chief Executive Officer (CEO) of SVdP. The letter advised Barlow that she was being stood down, effective immediately, and that such action was being taken “ … pending an investigation into your involvement in the alleged behaviour.”
[10] See Annexure KTH-19 to the Aff of Hinchliffe filed on 21 April 2023.
That 12 July 2021 letter relevantly provided as follows:
PRIVATE AND CONFIDENTIAL
Shannon Barlow
E: [email protected]
Cc: [email protected]
12 July 2021
Dear Shannon,
St Vincent de Paul Society Queensland (SVdP) has received concerns regarding your conduct and actions while performing duties in relation to your employed position as Rockhampton Central Council Diocese Retail Operations Manager.
I am hereby standing you down effective immediately. This action is pending an investigation into your involvement in the alleged behaviour.
It is alleged that:
1.   You have failed to adequately lead and manage the Retail Centre of Charities in the Rockhampton Diocese in accordance with SVdP policies and procedures. Examples can be provided from the recent independent audit conducted on Johanna Boulevard Retail Centre of Charity located in Bundaberg:
a)   SVdP policies and procedures not being adhered to:
i.   Johanna Boulevard Retail Centre’s end of day processes were not being performed in accordance with SVdP Retail Operations Manual specifications
ii.   Petty cash was not being processed in accordance with the policy outlined in the Retail Operations Manual at Johanna Boulevard Retail Centre
iii.Electrical items being sold at Johanna Boulevard Retail Centre without being tested and tagged
b)   Breaches of the Code of Conduct
i.   Derogatory photos and clothing items displayed at the Johanna Boulevard Retail Centre. Please refer to Appendix A.
c)   Non-compliance with Workplace Health and Safety requirements
i.   Volunteers unloading trucks at the Johanna Boulevard Retail Centre are handling heavy and sharp items without wearing correct personal protection equipment such as gloves
ii.   Warehouse racking evidence could not be provided to confirm that racks have been quality tested at Johanna Boulevard
iii.Internal traffic management plan at Johanna Boulevard is not adequate and does not accommodate the truck unloading items through the side door or provide a safe pathway for the forklift to operate
iv.No risk assessments regarding the Johanna Boulevard Retail Centre restoration area and works has been completed, including processes implemented to ensure that that the machines used are in good operational condition and personnel have been trained correctly
v.35 litres of petrol being stored incorrectly at the Johanna Boulevard Retail Centre beside the electrical testing and tagging area in a wooden cupboard
vi.Glue is being stored in the Johanna Boulevard fridge without adequate processes in place
vii.Inadequate fire safety processes are in place at Johahna Boulevard; no evidence of fire evacuation drills being conducted and inadequate exit safety signs as per the site evacuation diagram presented at the store
viii.Rag cutting checklist was not used at the Johanna Boulevard Retail Centre; instructions were not provided, and volunteers had not been trained
d)   Limited training and support being provided to key personnel
i.   Warehouse Supervisor based at Johanna Boulevard has not received training on correct policies and procedures and is unsure on his role and responsibilities.
I understand that prior to the audit being conducted for Johanna Boulevard that you attended the site to ensure that correct processes were in place and to support staff. I confirm that the audit was scheduled in advance and you had knowledge of it being conducted.
2.   Non-Compliance with SVdP Employee Agreement 202 and failure to provide a safe work environment:
a)   you instructed Mr Allan West to work from 5pm to 1am in the morning in preparation for the Johanna Boulevard audit after traveling from Rockhampton to Bundaberg
b)   You worked outside of your approved working arrangements without approval from your line manager. You worked from 5pm to 1am at the Johanna Boulevard Retail Centre.
3.   Your behaviour and interactions are not in accordance with SVdP Code of Conduct and policies:
a)   Complaint received from Biloela volunteer(s) on the 08 June 2021, stating that when you visited the Biloela Retail Centre of Charity in early June that you failed to make any effort to acknowledge or introduce yourself to any of the volunteers who were on site. Volunteers felt unsupported by your leadership and felt intimated by your presence at the store.
b)   Ms Anka Stevens raised concerns with HR stating that you have not provided support to her during her higher duties period and feels that your behaviour towards her makes her feel embarrassed and undermined. Ms Stevens was also concerned how you changed the retail centre layout and processes without any consultation or engaging her in the process.
c)   Ms Kim Horswood raised concerns with HR on the 15 June 2021 stating you have bullied and harassed her. Kim stated that you constantly ask her about her mental health and personal life in front of others. Ms Horswood conveyed that she feels that you undermine her and there is a lack of communication, you have asked her not to contact other staff in the Diocese and she is often in tears after meeting with you.
d)   You have been instructed on numerous occasions that your dogis not able to attend site at SVdP Retail Centres. When you attended the Emerald Retail Centre in late May 2021volunteers raised concerns that you had your dog in a cage located in the Raw Sort area for the duration of your visit.
Further concerns regarding your leadership and management behaviour in your employed position:
•Concerns and allegations have been discussed and documented with you on previous occasions during your employment with SVdP.
•Ms Valmay Burns raised concerns regarding your communication and management style in October 2019. The matter was raised formally with you and you were provided an opportunity to respond to the matters raised.
•Ms Susan Gabriel raised concerns alleging bullying and harassment, communication and management style in October 2019. The matter was raised formally with you and you were provided an opportunity to respond to the matters raised.
•Concerns regarding your adherence with the SVdP Recruitment and Selection policy was raised with you In August 2019 and again in January 2020. It was sustained that you had breached the SVdP Recruitment and Selection policy in January 2020 and you received a formal warning.
•Your management behaviours are having a significant detrimental effect upon staff mental health and wellbeing. Staff have reported they are obtaining professional help due to your management style.
During your employment with SVdP you have received training and development on SVdP policies and procedures, including the Code of Conduct and opportunity to attend Mission day training. SVdP has supported you with mediation sessions with staff to address concerns that they have raised in relation to your leadership and management.
You are requested to prepare a written response to the above allegations. Your written response is to be received at [email protected] by 5pm 16 July 2021. It is further requested that you attend a meeting at 1pm on Monday 19 July 2021 via Microsoft Teams to discuss allegations and your response. Details of the meeting will be sent to your personal email address.
To allow you sufficient time to prepare your response, I am suspending you from duty on full pay pending your written response and the meeting being held. During this period, you are directed to not attend any Society location and/or have contact with any person associated with your employment.
It is important to understand that during an investigation process, you are required to adhere to SVdP policies and procedures, including SVdP Bullying and Harassment policy Clause 7.1 ' .... If a complaint is made against a Worker, that Worker must be careful to not to treat the complainant unfavourably by, for example, punishing or ridiculing them for making the complaint. Engaging in such behaviour may amount to victimisation, which is against the law ... '
You are entitled to natural justice and to seek professional advice and support and as such are welcome to bring a support person to the meeting. Please note however if you do choose to have a support person present, they are not to be any person who has been Involved in the above allegations.
Please be advised that these allegations are serious and may result in disciplinary action up to and including dismissal. The purpose of your written response and the meeting being held, is to give you an opportunity to respond to the allegations and to provide any information pertinent to your involvement in the allegations prior to any decisions being made regarding this matter.
I understand that it can be difficult for all when matters are being investigated and wish to remind you about the Society's Employee Assistance Program (EAP) which provides free and confidential counselling services to all employees and their family. EAP can be contacted on 1800 8187 28.
If you have any questions in relation to the contents of this letter or the processes being undertaken, please do not hesitate to contact me via email or on (07) 3010 1060.
Yours sincerely,
Kirsten Hinchliffe
General Manager People & Safety

Having been granted an extension of time for the giving of a response to the 12 July 2021 letter, Barlow provided a response to all the allegations made against her by a letter dated 18 July 2021. [11] The allegations are set out in bold in the response, but those allegations were not numbered. For ease of reference, the Court has inserted in red the respective numbers of each of the allegations made against Barlow in the 12 July 2021 letter. Barlow’s responses, in normal font, were as follows:
[11] Ex. 8.
18 July 2021
Dear Kirstin,
Thank you for supporting my request for an extension to respond to the allegations outlined in the correspondence dated 12^th July 2021.
As per my email to you dated the 12^th of July, I was notified by Tanya Doherty that I was being stood down after I had sent advice I was leaving work, suffering a Migraine Headache.
In response to the concerns received regarding my conduct and actions while performing duties in relation to my employed position as Rockhampton Central Council Diocese Retail Operations Manager, please find my responses below.
It is alleged that:
(First Allegation)
You have failed to adequately lead and manage the Retail Centre of Charities in the Rockhampton Diocese in accordance with SVdP policies and procedures. Examples can be provided from the recent independent audit conducted on Johanna Boulevard Retail Centre of Charity located in Bundaberg:
I would like to highlight that I nominated Johanna Boulevard and Mclean Street as priority sites for audit for the following reasons:
1. The Johana Boulevard site had never been audited.
2. The Johanna Boulevard site has experienced key-staff turnover within the past 10 months.
3. The Johanna Boulevard site has experienced low levels of Volunteers hours over the past 12 months, particularly in the Warehouse.
4. The Mclean Street site had been audited previously and I was interested in feedback from the auditor regarding any improvements/deviation from process since that has occurred.
5. To uncover and address any areas of non-compliance.
6. To learn from the Audit process and use the outcome as a training mechanism for the Multi Centre Coordinators, Retail Assistant Managers and Warehouse Supervisors in our business.
7. To identify areas in the business that requires refocus for all staff (including myself) moving forward.
I met with Vivek Chopra on the evening prior to the audit and briefed him regarding the specific concerns I had in relation to the Johanna Boulevard site. A new Warehouse Supervisor and Retail Assistant Manager had commenced late in 2020. There had been ongoing issues between the Multi Centre Coordinator, Warehouse Supervisor and Retail Assistant Manager, with all receiving high levels of pushback from a volunteer workforce who do not naturally embrace change.
Originally the audit had been scheduled for the 8ᵗʰ of April 2021. When the audit was eventually performed on the 23ʳᵈ of June 2021 Tammy Washington, the Multi Centre Coordinator had been absent on long service leave for 5 weeks. During this time, there was ongoing conflict between site staff and the backfill Multi Centre Coordinator, Ms Anka Stevens.
I regard the audit process as one of the most valuable and constructive tools a business can apply to highlight training needs, staff development and to achieve best practice. The recent audits at Johanna Boulevard and McLean Street provided valuable information and the required direction for Retail and Warehouse Centres in the Diocese.
ALLEGATIONS (IN BOLD)
Second Allegation
SVdP policies and procedures not being adhered to.
Johanna Boulevard Retail Centre's end of day processes were not being performed in accordance with SVdP Retail Operations Manual specifications.
The quality checking process to ensure that end of day procedure is being followed by the Centres of Charity, lies with the Rockhampton Administration Manager, Marcia Fowler.
I was first notified about the low numbers of No Sales receipts from the end of day process at Johanna Boulevard by Vivek Chopra on the 14^th of June 2021; 9 days prior to the audit.
This issue was immediately investigated with Marcia Fowler, who I discovered had prior knowledge about my Predecessor training Store Managers to 'back end' access the End of Day Process.
I confirmed the correct process with the acting Multi-Centre Co-ordinator, Anka Stevens, to train and followed through with all staff/ Volunteers performing the end of day process at Johanna
Boulevard. This issue has now been rectified and adequate direction and support provided to staff at Johanna Boulevard.
Increased inspection and communication between Senior Managers in the business is required to ensure procedural compliance across all stores within the Rockhampton Diocese.
Third Allegation
Petty cash was not being processed in accordance with the policy outlined in the Retail Operations Manual at Johanna Boulevard Retail Centre.
During the audit, Patricia Derrick (Retail Assistant Manager) acknowledged the petty cash process was not being followed. Patricia gave the reason for this as: purchases are often made on the way to the centre in the morning or after work in the afternoons. Tammy Washington will often shop for sundries on her day off. On occasion a Volunteer will present a receipt for reimbursement. It is common occurrence at that site for purchases to be made first and the money receipted via petty cash later.
The auditor confirmed that Staff/Volunteers are not to use their own money when making purchases for the centre and the required cash is ALWAYS to be issued in advance. During the audit, a problem associated with entering a 'float in' transaction on QDos was discovered.
At no time prior to the audit was I made aware the correct process was not being followed at the Johanna Boulevard site or of any problems when performing a float-in transaction via QDos. Petty cash procedures are managed by the Centre Co-ordinator and the petty cash reconciliations are performed by the Administration Manager, Marcia Fowler.
Increased inspection and communication between Managers will be required herein to ensure procedural compliance across all stores within the Rockhampton Diocese.
Following the audit, I acknowledge an immediate need exists to inspect petty cash procedures across all Vinnies Stores in the Rockhampton Diocese. It is my experience that when one store is not following correct procedure there is a high likelihood there will others who are also not compliant.
Fourth Allegation
Electrical items being sold at Johanna Boulevard Retail Centre (JB) without being tested and tagged.
On 22nd June 2021 (the day prior to audit) I inspected the McLean Street Store. During my visit I saw and removed a box of priced chargers from sale. Later that same day, I inspected the Johanna Boulevard Store and found another box containing priced chargers for sale. I again removed this from the shop floor and placed all the chargers I had removed from both stores into one box at the tagging and testing station in the Johanna Boulevard Warehouse.
That same day, I showed David Bartlett (Warehouse Supervisor) the priced chargers and asked him how the chargers had come to be on the shop floor? He told me that he presumed Volunteers had priced them and put them out. I advised David Bartlett that none of the items had been testing or tagged and that we did not sell chargers as they are peripheral components. David responded with words to the effect 'the wastage in this place is ridiculous. Why would we throw out a perfectly good charger when people come in looking for them?" I told David it was because we could not effectively test the unit as being safe for purpose. David became argumentative and asked me if 'I would prefer we throw out items that were perfectly good and often in near new condition'? David said he was looking forward to talking to the auditor about it the following day. (It was later confirmed by the auditor to both David Bartlett and 'Colin' (Volunteer, who performs testing and tagging of Electrical Items for the Bunda berg Stores) that chargers and electrical items with internal heating elements are not to be sold.
Prior to the audit, I met with Vivek Chopra on the evening of the 22nd and told him about the sale of chargers. I showed Vivek a picture I had taken of these items in the box at the JB Warehouse. This picture clearly showed the chargers priced with $2 tags. Vivek asked me if they had been tested and tagged? I confirmed that not one charger had a tag on it showing it had been tested and that I did not think we sold chargers in any case. I told Vivek I had removed all chargers from both stores and placed them in the Warehouse for recycling. Vivek asked if the box was still there, and I confirmed it was. I told Vivek that I had received push back from David Bartlett regarding the sale of these items. Vivek asked me to point out these items to him during the audit process the following day, which I did.
At no time did I attempt to hide or alter the fact that these items had been displayed for sale in stores. Although I had removed the items from sale and placed them in the Warehouse, I did not dispose of the items, nor did I remove the price tags. Instead, I highlighted these items to the auditor as I was concerned, they would appear for sale in future if it were not made clear to the Warehouse Supervisor, by the Auditor, that chargers were not to be sold.
Fifth Allegation
Breaches of the Code of Conduct
Derogatory photos and clothing items displayed at the Johanna Boulevard Retail Centre. Please refer to Appendix A.
The items in question were displayed by Volunteers at the Johanna Boulevard Warehouse (not by me or with my consent). I noticed this display during my second pre-audit site inspection on the 22^nd of June 2021.
When asked about the display, David Bartlett (Warehouse Supervisor) joked that it was just a bit of fun, describing it as a 'bloke's area'. I told David the display was unacceptable in any inclusive work environment and that I personally considered the display to be offensive. I asked David how he could allow such a display in the Warehouse? David Bartlett made a comment to the effect that it was only a joke and the Volunteers liked it. I gave David Bartlett immediate direction to remove the display permanently and to bin every item as they were not suitable for sale.
That night (22^nd of June 2021), I advised the Auditor of the "display", showed him a picture that I had taken of the display and conveyed my direction to David Bartlett. The Auditor requested that if the display was still there, to point it out when he was conducting the audit.
The following day I noticed the display had not been removed and so pointed it out to the Auditor. The Auditor spoke with David Bartlett directly and flatly refuted David's assertion that the display was in any way humorous or that Male Volunteers should be allowed to display such items in an area where Female Volunteers were working. The Auditor ordered David Bartlett to remove the display and then reaffirmed that it was to be removed NOW. He then waited until David did so. The display was subsequently identified on the audit report.
On the morning of the 23^rd at approximately 7:05am, I sent Tanya Doherty a photo of the display and a text message to highlight concerns relating to the Warehouse Supervisor. The display had not been present during my previous visit (the week before) when preparing the site for Audit. In this text I described the display as "horrible". After the audit, I returned to the Rockhampton Office and told Tanya Doherty that I was so concerned about David Bartlett's work performance in the lead-up to and during the audit that I felt he should be stood down.
When the Audit Report was received, Tanya Doherty approached me to ask why I had not stood down David Bartlett. I told Tanya Doherty that when I had previously mentioned my cause to stand down David Bartlett, I had not felt this action was supported by her as my EO as she had said nothing in response.
Prior to the audit, I had intended the outcome of the audit to be used to address the ongoing concerns I hold in relation to the work performance of the Warehouse Supervisor. Now this display has been recorded in the audit it will support me when addressing future issues relating to the code of conduct and provide the basis for disciplinary action for any further breaches, if required.
Sixth Allegation
Non-compliance with Workplace Health and Safety requirements.
Volunteers unloading trucks at the Johanna Boulevard Retail Centre are handling heavy and sharp items without wearing correct personal protection equipment such as gloves.
The Warehouse Supervisor is responsible for the day-to-day operations of the volunteers and paid staff. Training and direction on the use of PPE has been provide to David Bartlett, the Warehouse Supervisor on numerous occasions by both me and Alan West (Rockhampton Warehouse Manager) during our prior visits to Johanna Boulevard.
David Bartlett has previously confirmed he is aware that the correct PPE must be worn by Volunteers, however, at the time of audit the appropriate PPE was still not being worn by Volunteers loading the truck.
Prior to the audit, I had intended to use the outcome of the audit as a performance management tool to correct the ongoing failure of the Warehouse Supervisor to give adequate direction and correct supervision to Warehouse Volunteers.
Seventh Allegation
Warehouse racking evidence could not be provided to confirm that racks have been quality tested at Johanna Boulevard.
The reporting, checking and maintaining a safe working environment in the Warehouse is the Warehouse Supervisor's responsibility.
The 6 monthly WH&S checklist was prepared and completed by David Bartlett in March 2021. When I spoke with David Bartlett, I checked items marked as not compliant were being attended to/rectified as priority. In March 2021 when I spoke with David regarding the lighting and evacuation diagrams noted as N/C on the WH&S checklist, David told me these items were being attended to and identified his next priority as fire-warden training.
At no stage was the non-compliance with racking checks ever disclosed. It was identified the pallet racking checks had not been done at time of audit. These items were marked as compliant on the WHS Checklist.
Again, the audit process is beneficial in identifying such issues so that they can be rectified and utilised as a performance management tool.
Eighth Allegation
Internal traffic management plan at Johanna Boulevard is not adequate and does not accommodate the truck unloading items through the side door or provide a safe pathway for the forklift to operate.
On the 20^th of August 2020, prior to David's recruitment, a traffic management plan was put in place for the JB warehouse. Signs were created for each access door; to be attached to bollards and placed inside the sorting room door and the warehouse access doors, creating a safe zone as required for loading and unloading the truck or operating the forklift.
No Forklift zones have ever been marked on the Warehouse floor since the building was occupied in 2015. Previously bollards had been utilised to create access pathways.
The audit revealed that the traffic management process had not been maintained and identified the immediate need to create forklift pathways. The auditor pointed out that the site may also require changes to the current layout.
Ninth Allegation
No risk assessments regarding the Johanna Boulevard Retail Centre restoration area and works have been completed, including processes implemented to ensure that that the machines used are in good operational condition and personnel have been trained correctly
I was advised by Alan West after his visit to the JB warehouse in May 2021, that the 'Furniture Restoration Area' had been identified as an area of major concern as it had been expanded by Volunteers without management approval OR knowledge beyond the Warehouse Supervisor.
Upon the advice of Alan West, I thoroughly inspected this area prior to the auditor's arrival and flagged specific concerns to bring to his attention in order to get direction as to how this area should be set-up to comply. I could not locate any risk assessments for this area and David Bartlett confirmed he has not seen any. (This requirement will also be checked with the Multi Centre Coordinator upon return from leave; 26^th July 2021.) The concerns I raised with the Auditor were inspected during the audit and later noted in the audit report.
The auditor advised that he recently attended the Gympie site and that they have such an area. He contacted them to obtain their risk assessment process so we could implement this at the Johanna Boulevard site. This has been received however the Warehouse Supervisor has since advised that he is unable to action any progress (due to issues managing Volunteers) and has requested I attend the Johanna Boulevard Warehouse to implement the necessary changes that will ensure compliance.
A meeting with the Staff and Volunteers has been scheduled for the 27^thof July 2021to progress this matter.
Tenth Allegation
35 litres of petrol being stored incorrectly at the Johanna Boulevard Retail Centre beside the electrical testing and tagging area in a wooden cupboard
On Alan West's visit of May 2021, David Bartlett was given direction to store petrol in a lockable, ventilated cupboard.
Following Allan's departure David Bartlett placed the Petrol inside a donated wooden cabinet, drilled holes in the cabinet and installed a lock on the doors. The cabinet was then placed adjacent to the tagging and testing area. Again, this is one of the reasons that I called for the audit as it relates to my concerns regarding the work performance of David Bartlett.
The issue of the petrol storage was dealt with immediately on the day of audit and the cupboard moved outside. David Bartlett was also given instruction by the Auditor to dispose of the fuel and instead source an appropriate business to maintain the grounds.
Eleventh Allegation
Glue is being stored in the Johanna Boulevard fridge without adequate processes in place
Glue was being stored in a fridge inside the 'Furniture Restoration Area'. This issue was identified during my visit to the site on the 15^th of June 2021. I could not understand why such large volumes of glue were being stored on site and I asked David Bartlett about this.
David Bartlett agreed this was a concern and requested the auditor's report to ensure compliance.
Since the auditor's report was received, the Warehouse Supervisor has advised he is unable to progress this issue without my intervention. A meeting with David Bartlett and Warehouse Volunteers has since been scheduled for the 27^th of July 2021 to progress this matter and rectify issues with the 'Furniture Restoration Area'.
Twelfth Allegation
Inadequate fire safety processes are in place at Johanna Boulevard; no evidence of fire evacuation drills being conducted and inadequate exit safety signs as per the site evacuation diagram presented at the store.
Fire Drills are to be performed, recorded and the records maintained by site Managers/ Supervisors.
David Bartlett advised me in February 2021that he required training in the area of Fire Safety and Evacuation Procedures. On-site training was arranged and conducted by Neil Irvine (of AFS Bundaberg). During follow-up from my June 15^th 2021visit, David Bartlett advised me that he felt the training provided by Neil Irvine was insufficient. David told me that he understood the performance requirements but not specific requirements relating to the Johanna Boulevard site. Alan West then provided site specific training as a result of this request, to both David Bartlett and Anka Stevens.
Since that time, and following the audit, David Bartlett had still not performed the required Fire Evacuation Drill.
During a phone conversation with David Bartlett on the 7^th of July 2021, he told me a Fire Evacuation Drill was now planned but said he had not received any support from Anka Stevens and was thus unable to advise me of a date for this activity.
Owen Thomson has the software and prepares the site evacuation diagrams in the Rockhampton Diocese and will attend to the additional requirements noted during the audit.
Thirteenth Allegation
Rag cutting checklist was not used at the Johanna Boulevard Retail Centre; instructions were not provided, and volunteers had not been trained
The rag-cutting checklist was present at the time of audit. The last 3 machine operators had noted on the checklist that the rag cutter belt needed replacement.
When the Auditor asked David Bartlett about the notes made on the checklist, David responded that he had spare belts on site but had not yet attended to the replacement request.
David confirmed with the Auditor that Volunteers had been inducted to use the rag cutting machine. I have not sighted the induction paperwork for the Volunteers operating the rag cutting machine.
Following the audit, I have noted this paperwork and the induction procedure as items requiring further investigation.
Fourteenth Allegation
Limited training and support being provided to key personnel
Warehouse Supervisor based at Johanna Boulevard has not received training on correct policies and procedures and is unsure on his role and responsibilities. I understand that prior to the audit being conducted for Johanna Boulevard that you attended the site to ensure that correct processes were in place and to support staff. I confirm that the audit was scheduled in advance and you had knowledge of it being conducted.
Ongoing support has been provided to the Warehouse Supervisor since he commenced in October 2020. Tammy Washington (Multi-Centre Co-ordinator) provided the initial induction and handover following the departure of the prior warehouse storeman, Paul Nugent. At this time David Bartlett was supplied with all manuals and procedural guides and made aware of the requirements of the position. Tammy Washington also provided a handover to the Warehouse Operation at Johanna Boulevard as she had been overseeing the site during Paul's illness and absence from work.
A teams meeting was held by me on the 8^th of February 2021 with David Bartlett and Tammy Washington in attendance. This meeting was held to address concerns raised by David Bartlett about Tammy Washington 'interfering' with the warehouse operation. The purpose of this meeting was to discuss David Bartlett performing the role of Warehouse Supervisor. David Bartlett was still relatively new to the role at this time but confirmed that he fully understood the role, was familiar with the duties outlined on his position description and stated his confidence in performing the role to meet expected requirements.
Following this meeting Mark Spencer (Gladstone Warehouse Supervisor) attended the Johanna Boulevard Warehouse to support David onsite. Allan West (Rockhampton Warehouse Supervisor) has now attended the Johanna Boulevard Warehouse on multiple occasions to provide assistance, additional training and skilling support to David Bartlett in relation to Warehouse Operations. I have also supported David Bartlett on a regular basis, providing policy and procedural resources and related information since he commenced his employ with the Society.
On each occasion of being provided on-ground support to ensure required safe process and standard procedures are in place, David Bartlett has either wilfully ignored, raised concerns about and/or registered complaints against those persons who attended site. This practice also occurred during and following both my visits to the Johanna Boulevard site in June.
Immediately following Allan West's audit preparation visit to Johanna Boulevard, 13^th-15^th of May 2021, Tanya Doherty advised me that complaints about Allan West's visit had been made to Conference President Dennis Beckton, by staff. Allan West advised Tanya Doherty that David Bartlett had not supported his visit and had made comments like "Bundaberg is not Rockhampton" when Allan West had identified necessary process improvements and addressed WHS concerns.
Allan West told me that during his visit David Bartlett had not assisted or been proactive in implementing any of the requirements Allan West identified. Allan West requested that he return to the Rockhampton Warehouse earlier than planned due to the level of push back and lack of support he received from David Bartlett during this visit.
During the pre-audit visit to Johanna Boulevard by Allan West and myself on the 15^th & 16^th of June, several concerns (previously raised by Allan West and followed up with David Bartlett by me) relating to issues of non-compliance in the Warehouse had not still been addressed. In addition, hazards (broken picture frame glass, black mould on items for sale, unsafe furniture, unwashed children's pottys etc.) were found for sale in the shop at Johanna Boulevard.
I returned to the office on the 17^th of June 2021. At this time Tanya Doherty told me that complaints were being sent to HR by 'staff' who were unhappy about the 'negativity during the visit' and remedial action undertaken by myself in the store on the evening of the 15^th of June. I asked Tanya Doherty if the complaints were about me or about Allan West and was told "they concern both of you". Some days later, I followed up these complaints with Tanya Doherty as I had heard nothing since. I was told by Tanya Doherty that she did not think the complaints had been sent to HR, that they may have only been sent to Conference. To date I have not received any further information regarding these complaints or confirmation that these complaints were ever lodged.
I have personally provided David Bartlett with ongoing and detailed assistance, support and training during the period of his employment as Warehouse Supervisor. I am in regular contact with David Bartlett working through issues that were previously identified or that arise during daily operation. I have also enlisted the assistance of Owen Thompson, Administration Officer at Bundaberg (also WHS committee representative for the Diocese) to assist David Bartlett where relevant.
David Bartlett raised concern in June 2021 that he had not received sufficient Training in Fire Safety and Evacuation procedures. Neil Irvine (AFS Bundaberg) has attended the Johanna Boulevard site on two occasions to provide related training to staff including David Bartlett. Owen Thompson has also provided both verbal and written training information to David Bartlett and visited the site to assist him in this regard. Allan West ran site-specific training relating to Emergency Evacuation Procedures (Fire Drill) with both Anka Stevens and David Bartlett on the 16^th of June 2021. At the time of writing this response I have still not received confirmation the overdue Fire Drill has been conducted.
I have expressed concerns that I hold about David Bartlett's ability and commitment to running the Warehouse with Tanya Doherty and to date have had minimal assistance or support forthcoming in this regard; other than to be told "there is a culture problem in Bundaberg".
Fifteenth Allegation
Non-Compliance with SVdP Employee Agreement 2020 and failure to provide a safe work environment:
You instructed Mr Allan West to work from 5pm to lam in the morning in preparation for the Johanna Boulevard audit after traveling from Rockhampton to Bundaberg
At no time did I instruct Allan West to undertake work duties outside of standard hours. Allan West chose to attend the site after work hours. Please consult Allan West as to his reasons for working outside hours.
Sixteenth Allegation
You worked outside of your approved working arrangements without approval from your line manager. You worked from 5pm to 1am at the Johanna Boulevard Retail Centre.
On the 15^th of June 20211 worked outside working hours at the Johanna Boulevard Site in Bundaberg. I arrived at the site at approximately 12pm after driving from Rockhampton with Allan West. I signed off-site at approximately 5pm to check into the Motel and eat dinner. I later returned to the site at approx. 6:45pm to rectify hazards that I had identified on the shop floor during that day. I also worked to resolve concerns/risks/non-compliance matters that had been ongoing in the Warehouse and not attended to by David Bartlett. I signed out again at approximately 12:30am.
The times stated here are my best recollection. Time sheets for the 15^th and 16^th of June would confirm the exact times I was onsite.
On my return to the Rockhampton Office, I informed Tanya Doherty of the circumstances and that Allan West and I had attended the Johanna Boulevard site after hours, as an alternative to closing the site on the morning of the 16^th to resolve risks and hazards identified on the 15^th. I advised Tanya Doherty of the concerns and showed her photos of hazards identified.
At no time prior to receiving the allegations being made in this investigation was I notified that Allan and myself working after hours in this instance was of concern to my Line Manager. If anything, her response indicated that she acknowledged the requirement existed, saying words to the effect "You shouldn't have to do that."
Further background to my response to this allegation:
Following a Retail Team Meeting held in the first half of 2021 and recorded on Teams, Tanya Doherty phoned me regarding a comment I had made during the meeting. It was a comment about 'how I could not easily perform the requirements of my role within a 38hour week'. I had made this comment to highlight the importance of time management to the Retail Managers and to reinforce the requirement to work within the hours mandated under the SVdP Employee Agreement 2020.
Tanya Doherty called me after that meeting with the sole purpose of informing me that as a Senior Manager, I was not working a 38hours week and that I was expected to perform extra hours AS REQUIRED. I cannot recall the exact date of this conversation however it was within the past two months and immediately afterwards, I contacted Mikayla Walker (HR) to clarify what the SVdP expectation was regarding working additional hours in my position. Mikayla Walker referred me back to Tanya Doherty, to discuss this requirement.
There have been multiple times during my employment where hours have been attended out of work hours where Tanya Doherty was fully aware and at no time have these matters been addressed as a non-compliance issue or any issue for that matter (i.e. Longreach store fit-out where Tanya Doherty was IN PRESENCE and fully aware of hours worked. On the day prior to the store- opening I worked 24hours straight). Over these occasions I was been advised by Tanya Doherty to take future TOI for the additional hours worked. During my time with SVdP I have worked many additional hours, far exceeding the 3 TOIL days I have taken.
Seventeenth Allegation
Your behaviour and interactions are not in accordance with SVdP Code of Conduct and policies:
I refute this allegation. I consistently conduct myself in a professional and ethical manner to support the SVdP Code of Conduct. I do my utmost to lead by example and raise the standard of workplace behaviours exhibited in the Rockhampton Diocese.
During my time with the St Vincent De Paul Society of Qld, I been exposed to unprofessional behaviours by staff and senior management within the Rockhampton Diocese.
I have recently discussed my concerns about the unprofessional workplace behaviour and poor management practices demonstrated by my direct line manager Tanya Doherty (Executive Officer Rockhampton Diocese) with Kirstin Hinchliffe (General Manager of People and Safety) and Drew Eide (General Operations Manager) of the St Vincent De Paul Society Qld.
Eighteenth Allegation
Complaint received from Biloela volunteer(s) on the 08 June 2021, stating that when you visited the Biloela Retail Centre of Charity in early June that you failed to make any effort to acknowledge or introduce yourself to any of the volunteers who were on site. Volunteers felt unsupported by your leadership and felt intimated by your presence at the store.
I have no knowledge of this allegation as I did not attend the Biloela Store early in June or on the 8^th of June 2021. Please provide evidence of this alleged complaint as I am unable to comment on unsubstantiated allegations.
Whenever I attend any site I do so with enthusiasm and commitment to my duty. I make it a ritual to introduce myself and greet every person onsite when I arrive. Site visits are a highlight of my role and I embrace the opportunity to meet/work alongside Volunteers.
Nineteenth Allegation
Ms Anka Stevens raised concerns with HR stating that you have not provided support to her during her higher duties period and feels that your behaviour towards her makes her feel embarrassed and undermined. Ms Stevens was also concerned how you changed the retail centre layout and processes without any consultation or engaging her in the process.
This complaint has been fully documented and I requested it be referred to HR by Anka Stevens for HR involvement and support. As this matter is ongoing and no findings are yet able to be produced, please explain the inclusion of this matter in this investigation.
I met with Ms Anka Stevens on the 24^th of June 2021in the upstairs conference room at Johanna Boulevard. At that meeting Anka Stevens read me a letter of complaint she had written to me but not yet sent. After hearing the letter. I requested Anka send the letter to me and HR. I told Anka I appreciated her raising the concerns and l wanted to provide her with the support she required. I asked her what additional support she needed? Anka did not communicate additional support requirements during this meeting.
I have since been working with HR to resolve any concerns Anka Stevens has raised.
In early July, Mikayla Walker attempted to set up a.Teams meeting between herself, Anka Stevens and myself. The purpose of this meeting was to unpack the concerns Anka Steven had raised and to provide an outcome for those concerns. Mikayla Walker informed me she had invited Anka Stevens to attend this meeting however Anka Stevens had declined to participate.
Twentieth Allegation
Ms Kim Horswood raised concerns with HR on the 15 June 2021 stating you have bullied and harassed her. Kim stated that you constantly ask her about her mental health and personal life in front of others. Ms Horswood conveyed that she feels that you undermine her and there is a lack of communication, you have asked her not to contact other staff in the Diocese and she is often in tears after meeting with you.
The events that occurred on the 15^th of June 2021at Gladstone Road, Rockhampton have been documented on email.
I was attending the Bundaberg site on the 15^th /16^th of June 2021 and so have no insight into the events that transpired during a meeting held between Kim Horswood & Tanya Doherty. I was told by Tanya Doherty that Neal Lethlean and Phillip Cranny were also in attendance.
Allegations from Kim Horswood relating to bullying and harassment have not been provided to me to address.
To the contrary, I was told by Tanya Doherty on the 18^th of June 2021that "nothing specific was mentioned" just that "Kim said she was dreading a future working with you."
Kim Horswood is the Manager of the Gladstone Road Store in the Rockhampton Diocese. On the pt of October 20191 promoted Kim Horswood from Retail Assistant Manager at the Glenmore Store, to become the Centre Manager at Gladstone Road. During my time with SVdP I have supported Kim Horswood in performing her role at every opportunity to do so.
Kirstin Hinchliffe (HR) advised me on Friday 25^th of June 2021 by phone that HR have spoken with Ms Horswood and that there were no concerns from HR's point of view but there was feedback to share with me. We were unable to continue the conversation at that time as I was in transit to Gladstone.
On the 28^th of June 20211 received an email from Kim thanking me for my understanding of recent events that had affected her personal life. I have no knowledge of the events to which she refers. (Email available on request.)
It is my personal experience that the behaviour of Kim Horswood can often be unpredictable. I have recently discussed the need for training relating to professional workplace behaviours in the Rockhampton Diocese with Mikayla Walker.
Twenty-First Allegation
You have been instructed on numerous occasions that your dog is not able to attend site at SVdP Retail Centres. When you attended the Emerald Retail Centre in late May 2021 volunteers raised concerns that you had your dog in a cage located in the Raw Sort area for the duration of your visit.
Please qualify this allegation and provide specific details of the concerns raised.
In May, I received a call late on a Friday night from Heath Flannery (Centre Coordinator at Vinnies Emerald) to advise he had to attend to an urgent family matter the following week and needed support to open the store. On Saturday, I called Foster Care Kennels in Rockhampton and they had one spot available for the following week, which I booked for my dog Ruby. I arranged for private care for my other dog in Emerald. That care arrangement ended at approximately 12pm on Wednesday, when the carer called to advise my dog was sick and should be collected. (This dog is currently taking medication). I collected my dog and brought her to the Emerald site while I attempted to make alternative care arrangements.
I told the Volunteers that I planned to place the dog in a donation bin outside in the shade while I arranged care with the Marraboon Pet Resort in Emerald. Maureen (Volunteer) told me to stop
being cruel when the poor little thing was sick, to leave the cage in the sorting shed and that it was fine to have the dog in there because no one was sorting. I checked with the Volunteers onsite that this arrangement did not create concern or would cause anyone an allergic reaction. I was subsequently unable to arrange care at the MarraOboon Boarding Kennels as our Rockhampton Vet was unavailable and I could not supply the Kennel with Titre Test results.
In hindsight I should acknowledged the late notice, accepted my personal priorities and not travelled to Emerald. Alternatively, I should have closed the Emerald Store when I discovered a care option was not available and immediately returned to Rockhampton. My priority was to keep the store open and while that was achieved, I was unable to find alternative accommodation for my dog in Emerald despite my best efforts to do so.
When I next visited Emerald, the Volunteers told me that Heath Flannery (Centre Manager Emerald) had lodged a complaint about my dog being onsite.
In addition, I have personally witnessed staff (Kim Horswood, Marcia Fowler and Theresa Langusch) bring their dogs to Vinnies sites during the time I have been employed.
Twenty-Second Allegation
Further concerns regarding your leadership and management behaviour in your employed position:
•Concerns and allegations have been discussed and documented with you on previous occasions during your employment with SVdP.
Please provide details of the concerns and allegations to which this statement refers. No information has been provided for me to address.
•Ms Valmay Burns raised concerns regarding your communication and management style in October 2019. The matter was raised formally with you, and you were provided an opportunity to respond to the matters raised.
The above complaint was investigated in October/ November 2019, over 20 months ago.
Following the investigation, I was fully vindicated and subsequently participated in mediation with Valmay Burns to establish a professional working relationship.
Please provide the basis for the inclusion of this prior matter in the current investigation and advise how it is relevant to the action taken in standing me down from my employment.
•Ms Susan Gabriel raised concerns alleging bullying and harassment, communication and management style in October 2019. The matter was raised formally with you and you were provided an opportunity to respond to the matters raised.
The above complaint was investigated in October/ November 2019, over 20 months ago.
Following the investigation, I was fully vindicated and subsequently participated in mediation with Susan Gabriel to establish a professional working relationship.
Susan Gabriel no longer works for the St Vincent de Paul Society having resigned in June 2020 following the COVID shut down; some 13 months ago.
Please provide the basis for the inclusion of this prior matter in the current investigation and advise how it is relevant to the action taken in standing me down from my employment.
•Concerns regarding your adherence with the SVdP Recruitment and Selection policy was raised with you in August 2019 and again in January 2020. It was sustained that you had breached the SVdP Recruitment and Selection policy in January 2020 and you received a formal warning.
This above issue was identified and addressed in January 2020, over 18 months ago and I have since worked to comply with the SVdP Recruitment and Selection Policy.
Please provide the basis for the inclusion of this prior matter in the current investigation and advise how it is relevant to the action taken in standing me down from my employment.
•Your management behaviours are having a significant detrimental effect upon staff mental health and wellbeing. Staff have reported they are obtaining professional help due to your management style. During your employment with SVdP you have received training and development on SVdP policies and procedures, including the Code of Conduct and opportunity to attend Mission-day training. SVdP has supported you with mediation sessions with staff to address concerns that they have raised in relation to your leadership and management.
Please provide the basis for the inclusion of these statements and advise how they are relevant to the action taken in standing me down from my employment.
Twenty-Third Allegation
Your management behaviours are having a significant detrimental effect upon staff mental health and wellbeing. Staff have reported they are obtaining professional help due to your management style.
The above statements are unsubstantiated and do not contain any information to assist me address a specific allegation/s. I regard these statements as defamatory, and I will be seeking legal opinion in relation to the inclusion of unsubstantiated statements of this nature supporting the action ta ken in standing me down from my employment. Please confirm the author/authors of the above statement and advise whether this statement is a general opinion held by the St Vincent de Paul Society Qld.

I would like to extend my appreciation for the opportunity to respond to the above allegations and reiterate my dedication to the role of Rockhampton Central Council Diocese Retail Operations Manager.
Please confirm details of the meeting to be held on Thursday 22nd July to discuss these matters further, to my personal email address.
Sincerely
Shannon Barlow
(Numbered Allegations Inserted in Red For Identification Purposes)

It was subsequently agreed that a Microsoft Teams meeting/interview to discuss Barlow’s responses to the allegations made against her would be held at 2.00 pm on 23 July 2021. Those intended to be present at that meeting/interview were Hinchliffe, one Mikayla Walker (HR Operations Manager) (Walker) and Barlow. Additionally, one Evan Pritchard, Barlow’s partner, was allowed to attend the meeting as a support person for Barlow. A video of that whole meeting was tendered as Exhibit 7. The video was viewed during the trial.
After the meeting was held on 23 July 2021, Hinchliffe sent a letter by e-mail to Mercer on 28 July 2021. That email recommended to Mercer the termination of Barlow’s employment. [12] It was significant that the evidence of Mercer was that he had never read Barlow’s written response of 18 July 2021 to the allegations made against her. [13] It was also significant that Hinchliffe misrepresented in her email of 28 July 2021 sent to Mercer that Barlow’s responses to the allegations made against her were attached to that email. It is clear on the face of Hinchliffe’s email of 28 July 2021, that no document was attached to Hinchliffe’s email.
[12] Annexure KTH-27 to Hinchliffe affidavit filed on 21 April 2023.
[13] Transcript of 30 July 2024 at p. 412.35 - .43.
It was also asserted at dot point three (3) of Hinchliffe’s 28 July 2021 email to Mercer that “Allegations regarding non-compliance with SVdP EA 2020 were confirmed by Shannon (Barlow)”. The Court finds that such statement also misrepresented the nature of responses given by Barlow at the meeting/interview. Barlow consistently rejected criticisms made of her, both in her written response to the allegations as well as in her evidence given at trial, and to the extent that she made reasonable concessions, she qualified her answers appropriately at length.
The Court finds that Barlow was responsive to all questions asked of her during the 23 July 2021 meeting. Barlow was transparent about the fact of non-compliance by certain SVdP employees/volunteers concerning the updating of certain checklists and other procedures at certain of the retail outlets and warehouses. She discussed that non-compliance in the context of her not being allowed by Doherty, during most of 2020, to physically go out to visit the various sites as and when circumstances required her to do so. Doherty denied that she had ever discouraged Barlow from regularly visiting stores outside Rockhampton as and when required.
In an email from Barlow to Doherty dated 3 June 2021, [14] an email to which Doherty did not demur, Barlow referred Doherty to her stated preference that Barlow work in the office. The email relevantly read as follows:
“For the past 24 months, I’ve been working under a hybrid working agreement and since COVID an agile agreement has been in place; although rarely used as your stated preference has been I work in the office. Where you hold specific concerns in relation to store support these should be raised prior to our one-on-one so a course of action can be discussed and agreed at the meeting.”
[14] Annexure 64 to the affidavit of Barlow filed on 19 July 2023.
It was not in dispute at trial that 2020 was a time when travel was restricted due to Covid protocols. Surprisingly, Hinchliffe asked Barlow on numerous occasions during the meeting why Barlow, knowing of non-compliance at the Johanna Boulevard store, hadn’t remedied the problem. Barlow responded that she had done her best by talking to local site managers and other personnel with a view to emphasising the importance of adhering to checklists, procedures and protocols, as well as by requesting photographs evidencing that there had been compliance with her directions.
The Court finds, contrary to the evidence of Tanya Doherty, Barlow’s line manager, that Doherty had restricted Barlow’s ability to physically appear on site at stores outside Rockhampton during 2020. Doherty had a flexible working arrangement whereby she worked from home on Mondays, Wednesdays and Fridays. The Court accepts Barlow’s evidence that when she raised her concerns with Doherty about not being able to attend on site at the various stores as was required, Barlow said to prioritise her time on recruitment. [15]
[15] Dot point 8 of Para 144 of Barlow’s Affidavit filed on 13 March 2023.
Exhibit 7 – Hinchliffe’s Approach and Demeanour During the 23 July 2021 Meeting
The dialogue between Hinchliffe and Barlow during the 23 July 2021 meeting was not transcribed, and therefore did not appear in the transcript of proceedings for 17 October 2023 when the audio was played in Court. Relevant passages of the audio recording which illustrate Hinchliffe’s attitude and approach during the conduct of the meeting/interview, as identified in the Court’s reasons, are so identified based upon the times as recorded in the time clock which appears on the bottom left of the recording.
Before the start of the formal interview, and in response to an invitation by Hinchliffe for Barlow to ask any question about the processes which had been undertaken leading to her having been stood down pending the conduct of an investigation into her conduct, Barlow asked “What was the process which has taken place”. [16] Hinchliffe’s inarticulate, confusing and unhelpful response was as follows: [17]
“Yes so we’ve been talking to you so in regards to that there’s been the audits, all the information, the complaints, all that has been provided to you in your written response. We’ve taken your written response and then we’re having this information here. Based on the information that you’ve provided in your written response and information that you disclosed at the meeting held here today, there may need to be additional measures taken in regards to that investigation process however we won’t know until we finalise that process as well.”
[16] At 1.25 of video
[17] At 1.30 – 2.02
The allegations made against Barlow constituted the basis for Hinchliffe’s adverse findings against Barlow. It was important that the Court make findings in relation to each of the allegations corresponding to the red numbering above as a matter of convenience.
First Allegation In answer to the first allegation made against her, Barlow identified that Tanya Doherty, her line manager, had kept Barlow “in the office” for most of the 2020 year, such that Barlow was conducting remotely most of the management of the sites for which she was responsible. [18] Notwithstanding that Barlow had given such response, Hinchliffe nonetheless pressed Barlow as to what measures Barlow had put in place to “ensure” that instructions given by Barlow were in fact adhered to. [19] Barlow gave an entirely reasonable response by saying to Hinchliffe that where she wasn’t satisfied that her instructions had been carried out, she had requested photographic evidence of compliance. That was particularly so in relation to the display of Covid distancing stickers / signs. Barlow gave examples of how there was inconsistent compliance with her instructions across the stores due in part to new personnel turnover, and otherwise for reasons she was unable to explain. [20] Barlow referred, by way of example, to her having dealt with “pushback from a volunteer workforce who do not naturally embrace change” which required her to personally attend at the Johanna Boulevard site in Bundaberg to address concerns with an aggressive employee called “Greg”. She did attend the store, reminding him of his responsibilities concerning his behaviour both toward and in front of others, and how such behaviour had to comply with SVdP policies and procedures. Barlow also answered Hinchliffe’s question by referring to her having regularly sat down with the site manager named David Bartlett (Bartlett) to again request that he comply with her instructions. [21] Hinchliffe affirmatively stated that “Shannon it is your responsibility to ensure that the stores are compliant”. [22] Hinchliffe asked Barlow what steps she had taken as ROM in the light of her knowledge of volunteer pushback and Barlow responded in an entirely reasonable way, saying that she had approached the site managers to bring to their attention what Barlow considered to be compliance issues so as to enable such site managers to deal with the issues. [23] Inherent in Barlow’s responses was the proposition, which was accepted by the Court, that unless someone is regularly personally present to ensure that their remotely issued instructions are complied with, it is extremely difficult to “ensure compliance”.
[18]          Video at 3.30 – 4.09.
[19]          Video at 4.09 – 4.42.
[20]          Video at 4.45 – 6.25.
[21]          Video at 6.30 – 8.34.
[22]          Video at 9.20 – 9.30.
[23]          Video at 9.45 – 11.38.
Hinchliffe referred to the carrying out of audits but stated that it was the responsibility of the ROM to ensure that policies and procedures were being complied with. [24] Rather than agreeing that it was her responsibility to ensure that policies and procedures were being complied with, Barlow agreed with the proposition that it was her responsibility as ROM to use her best efforts to endeavour to ensure that policies and procedures were adhered to. She said that she did her best in the context of her having also been responsible for recruiting new personnel due to the turnover of at least 17 positions over the previous year. [25]
[24] Video at 11.40 – 12.14.
[25] Video at 12:20 – 13.38.
The Court accepts that Barlow had also raised non-compliance issues at stores with her line manager, Doherty, in February 2021. Barlow said to Doherty that she couldn’t properly do her job. Hinchliffe said “So you acknowledge that the stores were non-compliant. What action did you take to make them compliant?” [26] Barlow said “No, I acknowledge that that was a concern that I held.” [27] Hinchliffe then spoke over Barlow saying “That was the responsibility of your position.” Barlow said that she spoke to each of the managers of each of the sites to emphasize the need for compliance. [28]
[26]          Video at 13.39 – 13.47.
[27]          Video at 13.48 – 14.02.
[28]          Video at 14.05 – 14.56.
When again pressed by Hinchliffe as to why Barlow hadn’t ensured that there had been compliance with relevant policies and procedures, Barlow reiterated again how she had been prevented by Doherty from having her attend appropriately on site to not only emphasize to managers the need for compliance, but also to see for herself whether that was the case or not. [29] Barlow was again pressed by Hinchliffe about compliance over time from 2019 – 2021, and why Barlow hadn’t been able to ensure compliance. Barlow again told Hinchliffe how for all of 2020, and up until March 2021, Barlow had been responsible for recruiting and training in circumstances where a key employee named Donna had left the organisation. The Court finds that recruiting did not fall within either the Position Summary or Key Accountabilities Criteria as set out in Barlow’s Human Resources Position Description. [30] Hinchliffe’s continual questioning of Barlow as to why she had not ensured compliance was unreasonable.
[29] Video at 14.58 – 16.10.
[30] See Ex 9.
The Court is not satisfied, on the basis of Barlow’s reasonable responses to the allegation, that this allegation had been made out.
Second Allegation Hinchliffe put to Barlow that it was her reasonable assumption that as the ROM Barlow would have been across the end of day processes, because the centre coordinators reported to her and not to the administration manager. [31] Hinchliffe put to Barlow that it was Barlow’s responsibility under the Operations Manual for Barlow to ensure that centre paperwork was properly recorded and actioned, but she did not point to any particular part of the manual that governed such responsibility. Barlow explained that the issue which had arisen in relation to end of day processes was the late delivery of centre paperwork. Barlow said that that had been brought to the attention of Walker because her follow up with centre managers had had no impact. On the video, Walker is seen to be nodding in agreement with Barlow in that regard. [32] Barlow said that she had never received any report of a failure in procedures or processes in relation to No Sales Receipts. [33] Barlow again said that she had followed up with Marcia Fowler (an administrator) about No Sales Receipts, as well as the failure to make entries into the system, and that she had asked Fowler to forward the receipts to her so that she could attend to doing whatever was required. Barlow said that that never happened. Again, Walker was seen on the video to be nodding in agreement with Barlow. [34] Hinchliffe complimented Barlow about her entries relating to a Qdos Report. [35] Barlow did not concede that it was her responsibility to deal with No Sales Receipts in an end of day context but agreed that things might be able to be done differently in the future. [36] Hinchliffe noted that in relation to the reports that they ultimately got to Barlow and she dealt with them. [37]
[31]          Video at 17.25 – 18.15.
[32]        Video at 18.45 – 18.50.
[33]          Video at 19.05.
[34]          Video at 18:48.
[35]          See 5.1.3 of Ex. 11 – Operations Manual under the heading “End of Day Balancing on Qdos”.
[36]          Video at 21.50 – 22.30.
[37]          Video at 25.00 – 25.23.
The Court is not satisfied, on the basis of Barlow’s reasonable responses to the allegation, that this allegation had been made out.
Third Allegation Barlow acknowledged that procedures relating to petty cash had not been followed but said that she had ensured that petty cash withdrawals were reconciled so that there were no discrepancies. [38] She stated that at no time prior to the audit had she been made aware that the correct processes were not being followed. She confirmed that petty cash procedures were in any event managed by the Centre Co-ordinator, and that petty cash reconciliations were performed by the Administration Manager, namely Marcia Fowler. In that regard, the Court noted that at 3.18.4.2 of the Centre Operations Security Policy & Procedures Manual [39] under the heading “Petty Cash Reimbursement” it was recorded as follows: Petty Cash is to be balanced and reconciled as a minimum each month. The Petty Cash reimbursement sheet is to be completed in full and forwarded to the Diocesan Central Council office monthly for reimbursement of the float. The requirement in the manual provided for monthly reconciliations, not end of day reconciliations, in any event.
[38] Video at 27.35 – 28.09.
[39] Ex. 11.
During the course of her cross-examination, Hinchliffe conceded that in the stand down letter of 12 July 2021 there was no specific allegation as to how the Operations Manual Policy in respect of petty cash had been breached. Hinchliffe agreed during the course of her cross-examination that Barlow could not have possibly responded to the allegation made against her in the absence of her being provided with clear detail as to what policy was alleged to have been breached. [40] Hinchliffe’s questions directed to Barlow during the course of the interview were not directed to the procedural requirement in 3.18.4.2 as set out in bold above.
[40] Transcript p. 225.5 – .25.
The Court is not satisfied, on the basis of Barlow’s reasonable responses to the allegation, that this allegation had been made out.
Fourth Allegation This allegation related to the sale of electrical items at the Johanna Boulevard Retail Centre in Bundaberg without those items being recorded as having been tested and tagged as being compliant. The allegation must be looked at in the context of Barlow being the person who asked for the operations at Johanna Boulevard to be the subject of an internal audit. Doherty agreed during her cross examination that it was Barlow and not her who had requested the audit. Doherty also agreed that it was Barlow who had highlighted to her a whole raft of non-compliance issues at Johnanna Boulevard which Barlow hoped would be resolved if highlighted in an audit report. Doherty agreed that it was Barlow who wanted Bartlett to be stood down because of his ongoing non-compliance with her instructions. [41] One issue which was ongoing was the non-compliance by volunteers at Johanna Boulevard with Barlow’s instructions. For example, those volunteers thought that it was wasteful for electrical chargers to be thrown out as required by Barlow. The Court accepts the evidence of Barlow that such items would be removed from sale by volunteers when Barlow was due to attend the store, only to be replaced onto the shelves for sale after Barlow had finished her visit and had left. [42] The Court also finds that Bartlett was complicit in such disregard of Barlow’s instructions. He disregarded Barlow’s instructions because he believed that such items were of value and that it was wasteful to throw them out.
[41] Transcript of 13 December 2023, p. 111.20 – .25.
[42] Ex. 7 audio at 30.45 – .50.
Hinchliffe’s response to Barlow during the interview was to ask Barlow whether she had raised the actions of the volunteers with HR. Barlow said that she had intended to do that, but that she hadn’t had time to do so, bearing in mind her having been stood down shortly after the audit report had been received. [43] Barlow explained how she had removed untested chargers from each of the McLean Street and Johanna Boulevard stores, and that she had had a conversation with Bartlett concerning untested chargers not being able to be sold, after which Bartlett became argumentative. Barlow also confirmed that prior to the audit, she had told the auditor about untested chargers being put up for sale in breach of her instructions. The Court finds that it was reasonable for Barlow to have requested the audit for not only confirmation of the unsanctioned sale of untested chargers and other items contrary to instructions issued by Barlow, but in respect of non-compliance with processes and procedures and her instructions generally at the Johanna Boulevard store. [44] The Court further finds that Barlow had done everything which she could reasonably have been expected to do to ensure that at all stores there was compliance with her instructions.
[43] Ex. 7 audio at 31.04 – 32.08.
[44] Ex. 7 audio at 33.50 – 35.01 and p. 3 of Ex. 8.
Walker was again seen to be nodding in agreement with what Barlow had been saying when Barlow had been answering Hinchliffe’s questions.
The Court is not satisfied, on the basis of Barlow’s reasonable responses to the allegation, that this allegation had been made out.
Fifth Allegation This allegation related to the display of paraphernalia at the Johanna Boulevard warehouse which was said by Hinchliffe to be photographs and clothing items which were “derogatory”. In Barlow’s response to the allegations on p. 3 – 4 of Exhibit 8, Barlow had satisfactorily explained that she had nothing to do with the display, that it was not sanctioned by her, and that she had told Bartlett that the items should be removed immediately after she had first seen them. Notwithstanding that instruction, Bartlett had not caused the items to be removed. The auditor later told Bartlett that the display of the items was unacceptable, and he also directed Bartlett to immediately remove the items.
Hinchliffe unreasonably asked Barlow “How long had they been on display Shannon and why hadn’t they been removed?”. The Court finds that such question was unnecessary in the light of the detailed responses provided by Barlow in her letter of response dated 18 July 2021. Barlow said that the items had not been there the week beforehand, stating that as soon as she saw them on display, she instructed Bartlett to immediately put them in the bin. [45] By this point in the interview it was clear that Hinchliffe was dogged in her attempt to get Barlow to acknowledge that if there was some non-compliance at a store – particularly at Johanna Boulevard – that any such non-compliance was Barlow’s fault.
[45] Ex. 7 audio at 35.40 – 36.46.

The 14 June 2021 meeting lasted for at least one (1) hour, [101] and possibly two (2) hours based on the evidence of Doherty. It was of significance that Eide recalled “very clearly that there was some tension between Ms Doherty and Ms Barlow”. The Court accepts Barlow’s version of what happened at the meeting concerning the matters raised by her.
[101] Transcript of 14 December 2023 at p. 202.44.
If the meeting had only been confined to discussing ways of improving the relationship between Doherty and Barlow, as well as Barlow wanting instructions given to her by Doherty to be in writing, the meeting would have taken far less time than the one (1) hour which the Court accepts was the least time that the meeting spanned. The Court finds that the time which would have been required for Barlow to have raised all the issues deposed to by her in paragraph 144 of her affidavit filed on 13 March 2023 would have been at least one (1) hour. The Court accepts as truthful the evidence of Barlow concerning what matters were raised at the meeting and does not accept the evidence of Hinchliffe that only two (2) issues were raised by Barlow at the meeting.
The Court accepts that Mr Eide was doing his best to recall events when he gave evidence but does not consider that he was a reliable witness due to his memory problems. His involvement was peripheral and not much turned on his evidence in any event.
Mercer The Court finds that Mr Mercer was a truthful witness who innocently, but erroneously, acted upon the advice and recommendations of Hinchliffe.
The Court had the benefit of observing Mercer when giving evidence. He was clearly discomforted by the proposition that he may have signed off on the termination of Barlow’s employment based upon representations made to him by Hinchliffe which were untrue. The Court finds that Mercer was sincere when he gave evidence that if there had been misrepresentations made to him about significant matters going to his decision-making process, and had he known about those misrepresentations, he would have re-visited the recommendation made to him. As it was, he abrogated his responsibility in the making of the decision to terminate by accepting in full the recommendation made to him by Hinchliffe.
The Reason for the Taking of Adverse Action Against Barlow
The evidence adduced on behalf of the applicant did not demonstrate that Doherty played any part in the decision-making process which led to the termination of Barlow’s employment. Though it was likely that Doherty was undermining Barlow’s position after the 14 June 2021 meeting, she was not part of any decision-making process.
On the question of how to determine the operative state of mind leading to the taking of adverse action, the Court respectfully adopts the reasons of the Full Court in Wong v National Australia Bank Ltd [2022] FCAFC 155 at [18] – [26] per Katzmann, Charlesworth and O’Sullivan JJ where it was said:
The corporate mind
18.As French CJ and Crennan J said in Board of Bendigo Regional Institute of Technical and Further Education v Barclay[No 1] (2012) 248 CLR 500, the question of whether adverse action was taken for a prohibited reason is one of fact to be answered in light of all of the facts and circumstances established in the proceeding (at [45]). The effect of s 360 of the FW Act is that an employer contravenes s 340 if the prohibited reason is a “substantial and operative” reason for the employer’s adverse action: Barclay at [104] (Gummow and Hayne JJ there citing Mason J in General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235).
19. In Barclay, an employee exercised a workplace right by virtue of his being an officer of an industrial association and by reason of his engagement in industrial activity. The employee alleged that his employment was terminated because of his exercise of those rights. The trial judge accepted the direct testimony of a single decision-maker who had acted on behalf of the corporate employer and, on the basis of that evidence, concluded that the employer had not contravened s 346 of the FW Act (then in equivalent terms to s 340). The Full Court allowed the employee’s appeal. The employer appealed to the High Court.
20.      French CJ and Crennan J observed:
44        There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression ‘because’ in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains ‘why was the adverse action taken’?
45 … Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
(footnotes omitted)
21.      To similar effect, Gummow and Hayne JJ said (at [127]):
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a ‘substantial and operative factor’ as to constitute a ‘reason’, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
22. In Wood v City of Melbourne Corporation [1979] FCA 42; 26 ALR 430 an employee was stood down by a municipal council in circumstances alleged to amount to a contravention of a general protection provision similar to s 340 of the FW Act. In identifying the relevant human actors, Smithers J considered the state of mind of the town clerk (Mr Rogan) who gave directions to the acting town clerk (Mr Reilly) after an exchange of information between them. His Honour observed that whilst “technically” it was Mr Reilly who took the adverse action on the corporation’s behalf (as he was authorised to do), he had done so on the advice of Mr Rogan. Accordingly, his Honour said (at 446 – 447):
… in this case, I think the better view is that it was Rogan’s mind which was the mind of the defendant. Possibly the mind of the corporation has to be inferred from Rogan and Reilly’s joint mind. What is in issue is a decision of the corporation. A decision is defined in the Shorter Oxford English Dictionary as including ‘the action of deciding’ and, notwithstanding that Rogan characterized his part in the affair as giving advice, the corporation is entitled to have the total transaction looked at objectively by the court. It is the duty of the court to draw such inferences as are proper on the evidence as to who it was that played the decision-making part in the joint administrative activities culminating in Reilly performing the actual act of standing down. So doing I would attribute the decisive factor in the matter to have been Rogan’s so-called advice. A relevant statement of principle in this connection is to be found in the judgment of Bray CJ in Brambles Holdings Ltd v Carey (1976) 12 SASR 270 at 275-6: ‘Of course, if mental states like knowledge or belief are to be attributed to a notional and metaphysical entity like a corporation, this can only be done by attributing to it the knowledge or belief actually possessed by some one or more of its officers. … Very difficult questions can arise in this connection. … It is enough to say that, in my view it is a fallacy to say that any state of mind to be attributed to a corporation must always be a state of mind of one particular officer alone and that the corporation can never know or believe more than that one man knows or believes. …’
23. In Voigtsberger v Pine Rivers Shire Council (1981) 1 IR 198, Evatt J concluded that in examining the reasons of a decision of a municipal council to dismiss an employee it was relevant to consider the reasons of a finance committee that had recommended that course. The decision of the finance committee was the “essential and material decision to be considered” (at 205). In circumstances where two members of that committee were also members of the Council, his Honour was not satisfied on the balance of probabilities that their minds were not actuated by the prohibited reason alleged by the employee.
24. In Roberts v General Motors-Holden’s Employees’ Canteen Society Inc (1975) 172 CAR 1073 the Full Court of the Australian Industrial Court (Smithers, Woodward and Evatt JJ) said this of decisions made by a committee managing the affairs of a corporate body (at 1079):
… considerations may have operated on the minds of the various members of the committee, and not all the considerations operating on the mind of every member would necessarily be known to the others. In addition it could well be that, in the decision-making process, the influence of one or more members may, for various reasons, have been greater than that of others. The effective decision may even have been made by a person who was not a member of the committee. In any particular case, a recommendation of one man may have been rubber-stamped by others without their giving the matter independent consideration. In another case a person actuated by improper motives may have overborne the minds of others who were not so motivated. Or a person improperly motivated may have presented a dishonest case to others.
Of course there may be cases in which it would not be proper to go behind the proceedings of a formal meeting of a particular body. But in the circumstances of this case it is our view that the problem should be approached through an analysis of the motives and parts played by the individual actors.
25. As the decisions in Wood, Voigtsberger and Roberts demonstrate, the word “because” as it appears in s 340 of the FW Act directs attention to the reason for an action, which is to be found in the state of mind of the person alleged to have taken the adverse action. Where (as here) that person is a corporate entity, it will in all cases be necessary to examine the state of mind of the human actor or actors who (alone or together) caused the corporation to take the action that it did or, to adopt a phrase from Wood, who “played the decision-making part in the joint administrative activities” culminating in the actual act that constitutes the adverse action. It may be convenient to refer to the person whose conduct directly visited the adverse action on the employee as the “decision-maker” but his or her decision-making process may incorporate the state of mind of other people, including by adopting facts or opinions asserted by them.
26. The authorities show that in asking whether an adverse action was taken by a corporate entity, the Court should remain alert to the possibility that the answer may reside in the mind of more than one natural person. The state of mind of the human actor who said or did the thing that bound the corporation to the action will of course be important, and in many cases determinative. However, the cases illustrate that a person who does the act or thing constituting the adverse action may act on information or advice the provision or content of which is actuated by a prohibited reason. The adoption of such information or advice may necessitate the conclusion that the corporation’s reasons for the adverse action include that prohibited reason. In such cases, it matters not that the person providing the information and advice does not formally possess the authority or power to effect the decision based on the information and advice. Whether the person performing the act constituting the adverse action is aware that he or she is acting on information or advice given for a prohibited reason may not be relevant in cases of that kind.
The Court further respectfully adopts what was held by Steward J in Qantas Airways Ltd v Transport Workers Union of Australia (2023) 326 IR 179 at [104] where it was said:
But the task is the identification of the actual, immediate or operative reason or reasons for taking adverse action. That is a question of fact. In a given case, it may well require one to reject as a reason for taking adverse action the musings or thoughts of employees that ultimately play no part in the ultimate decision-making process. It may also require one to differentiate between the actual reasons for taking adverse action, and factors or issues which may have contributed in only some causal way in the leadup to the occurrence of such conduct.
The Court finds that the power and authority to terminate Barlow’s employment was vested in Mercer, and that, therefore, his state of mind at the time of the dismissal was relevant. It was also necessary, in the circumstances of the matter, for the Court to determine the state of mind of Hinchliffe at the time she recommended to Mercer that Barlow’s employment be terminated, because Mercer had relied entirely upon what Hinchliffe had recommended for the purpose of making the decision to terminate such employment. After consideration was given to the joint mind of Mercer and Hinchliffe, the Court finds that the operative corporate mind of SVdP was that of Hinchliffe. Mercer relied upon the recommendations of Hinchliffe in toto.
The Court finds that the adverse action admitted as having been taken against Barlow was so taken based upon the state of mind of Hinchliffe, and that it was taken for a prohibited reason. The prohibited reason for the taking of adverse action was because notwithstanding that Hinchliffe had spent considerable time and energy in endeavouring to de-escalate tensions between Barlow and Doherty by arranging for an external consultant to engage with both of them on an ongoing basis, Barlow had nonetheless exercised a workplace right by making further complaints against Doherty in the 14 June 2021 meeting/interview. It was because Barlow made those complaints that Hinchliffe recommended that the adverse action be taken. The Court accepts that those complaints were as deposed to by Barlow in [144] of her affidavit filed on 13 March 2023.
It was no coincidence that Hinchliffe acted against Barlow after she made those further complaints. There was nothing of significance which had relevantly occurred after the 14 June meeting. The Hopwood complaint was merely a request by Hopwood for her to be updated as to the status of any investigation of a complaint made by her in March 2021. It had been determined by HR that such complaint was to be resolved “internally”. It was merely an unresolved allegation. The findings in the audit report confirmed what Barlow had been complaining about and was a vindication of Barlow’s decision to call for the audit to be undertaken.
The Failure of the Respondents to Call Mikayla Walker
Walker was a HR person in the employ of the first respondent who dealt with allegations made by and against Barlow.
It was pleaded in paragraph 26 of the SOC that Barlow had made complaints directly to Walker in the HR department of SVdP. By paragraph 26(a) of the Second Further Amended Defence filed on 6 October 2023, the respondents denied such allegations.
The Court finds that Barlow did make complaints to Walker both verbally and in writing, and that Hinchliffe knew that. Relevant email complaints sent by Barlow to Walker were as follows:
a.On 23 March 2021, Barlow sent an email to Walker forwarding to her email correspondence of that day between Doherty and Barlow concerning recruitment issues involving one Hugh Brackenbury. In Barlow’s forwarded email she wrote to Doherty: [102]
“This conversation ended abruptly with you stating that you’d call HR immediately to “fix the situation” which I took to mean to prevent the internal transfer of Hugh Brackenbury.
During that phone call you also confirmed that there is no mutual concession to a considered management approach toward retail recruitment. In the event that I consider a directive to be discriminatory, unethical or unreasonable I am expected to act and not question. As you stated, “I am the EO, I expect you to do what I ask”.”
b.On 21 April 2021, Barlow sent an email to Walker setting out four complaints. Walker sent an email to Barlow on 22 April 2021 acknowledging receipt of Barlow’s email and advising that she would follow up with the relevant parties and address the concerns raised. [103]
c.On 3 June 2021, Barlow forwarded to Walker email correspondence which she had sent to Doherty regarding a number of complaints about the way Doherty was processing information and how she misunderstood issues. [104]
[102]        Annexure 28 to Barlow affidavit filed on 19 July 2023.
[103]        Annexures 37 and 38 to Barlow affidavit filed on 19 July 2023.
[104]        Annexure 65 to Barlow affidavit filed on 19 July 2023.
The Court further finds that in respect of the complaints raised in the emails, Barlow likely had follow-up telephone or in person conversations with Walker. The Court does not accept the respondents’ pleaded case to the contrary.
Walker was clearly a person who would objectively be seen as being in the SVdP camp. The Court accepts the submissions made on behalf of Barlow that, in circumstances where the making of complaints by Barlow to Walker about Doherty’s conduct towards Barlow was an important issue in the trial going to the validity of the allegations made against Barlow, the unexplained failure on the part of the respondents to call Walker gave rise to the inference that had Walker been called, her evidence would have been prejudicial to the respondents’ case. The Court accordingly draws an adverse inference against the respondents for such failure to call Walker.
Conclusion
The facts of this case are not analogous to those as found in Wood v City of Melbourne Corporation [1979] FCA 42; 26 ALR 430. In this case, the Court finds that Hinchliffe concocted allegations against Barlow. She did so well-knowing that the allegations were either inconsequential, groundless or unjustifiable. She did so for the purpose of conducting a sham investigation from which she could make findings of alleged serious misconduct by Barlow for referral on to Mercer.
The Court finds that Barlow has succeeded in her claim against the first respondent, but not the second respondent.
The Court directs that the parties confer for the purpose of arriving at draft declarations and/or orders consonant with the reasons of the Court.
And it is so ordered.

I certify that the preceding one hundred and seventy-five (175) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.
Associate:
Dated: 7 February 2025

[6] Ex. 23.

[7] Ex. 43.

from Mercer to Barlow referring to meeting on 2 October 2019 when Hinchliffe was present at the time
Barlow was exonerated.

paragraph 130 of Barlow affidavit filed on 13 March 2023.

5^th dot points of Allegation 22 as well as Allegation 23.

593 at [46] – [47] per French, Sackville and Healy JJ.

File number(s):	BRG 517 of 2021
Judgment of:	JUDGE EGAN
Date of judgment:	7 February 2025
Catchwords:	INDUSTRIAL LAW – Where applicant alleged adverse action taken for a prohibited reason – where adverse action conceded – whether first respondent was involved in a contravention of the Fair Work Act – whether the second respondent was knowingly concerned in or a party to a contravention of the Fair Work Act – where the claim against the first respondent had been established – where the claim against the second respondent had not been established – orders accordingly.
Legislation:	Fair Work Act (2009) (Cth), s. 340, s. 341, s. 361 and s. 550
Cases cited:	Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Qantas Airways Ltd v Transport Workers Union of Australia (2023) 326 IR 179 Russel v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 Tsilibanks v Transfield Services (Australia) Pty Ltd [2015] FCA 740 Wong v National Australia Bank Ltd [2022] FCAFC 155 Wood v City of Melbourne Corporation [1979] FCA 42
Division:	Division 2 General Federal Law
Number of paragraphs:	175
Date of last submission/s:	7 November 2024
Date of hearing:	16, 17, 18, 19 October 2023; 13, 14 December 2023; 29, 30 July 2024; 29 October 2024
Place:	Rockhampton and Brisbane
Counsel for the Applicant:	Mr A. McLean-Williams
Solicitor for the Applicant:	Esser Legal
Counsel for the Respondents:	Mr J. McLean
Solicitor for the Respondents:	Colin Biggers & Paisley

BRG 517 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	SHANNON BARLOW Applicant
AND:	ST VINCENT DE PAUL QLD First Respondent TANYA DOHERTY Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	7 FEBRUARY 2025