Batista v Wells Fargo International Finance (Australia) Pty Ltd (No.2)
[2020] FCCA 829
•15 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BATISTA v WELLS FARGO INTERNATIONAL FINANCE (AUSTRALIA) PTY LTD (No.2) | [2020] FCCA 829 |
| Catchwords: INDUSTRIAL LAW – General protections claim – whether adverse action was taken – whether applicant’s constitutes the exercise of a workplace right – whether applicant was dismissed because he had exercised a workplace right – whether adverse action was taken because of applicant’s mental disability – where adverse action found not to have been taken for a prohibited reason – application dismissed. |
| Legislation: Evidence Act 1995 (Cth), ss.81, 136 |
| Cases cited: Ashby v Slipper [2014] FCAFC 15 Batista v Wells Fargo International Finance (Australia) Pty Ltd [2019] FCCA 3384 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 |
| Applicant: | NUNO BATISTA |
| Respondent: | WELLS FARGO INTERNATIONAL FINANCE (AUSTRALIA) PTY LTD (ACN 611 029 148) |
| File Number: | PEG 358 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing dates: | 27-28 November 2019 and 29 January 2020 |
| Date of Last Submission: | 29 January 2020 |
| Delivered at: | Perth |
| Delivered on: | 15 April 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr N Burmeister |
| Solicitors for the Respondent: | Baker Mackenzie |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 358 of 2018
| NUNO BATISTA |
Applicant
And
| WELLS FARGO INTERNATIONAL FINANCE (AUSTRALIA) PTY LTD (ACN 611 029 148) |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in these proceedings, Mr Batista, alleges that his former employer, Wells Fargo International Finance (Australia) Pty Ltd (“Wells Fargo”), dismissed him from his employment in contravention of ss.340 and 351 of the Fair Work Act 2009 (Cth) (the “FW Act”).
Mr Batista seeks relief in the form of reinstatement, compensation and damages suffered as a result of these alleged breaches. He also asks that penalties be imposed on Wells Fargo for their actions.
Background
Wells Fargo operates as a Commercial Distribution Finance business. The company uses a “high risk” business model that works as follows:
a)Wells Fargo purchase “assets” from a wholesale manufacturer and acquire the title to those assets;
b)Wells Fargo then bails these assets to “dealers” who have physical possession of those assets;
c)when the asset is sold to a third party, the dealer is required to pay Wells Fargo for the sale. If the dealer does not pay Wells Fargo, Wells Fargo has no right to recover the asset from the third party or to seek recourse against the dealer; and
d)to reduce risk, Wells Fargo employs “stock checkers” who travel to and attend the dealers’ locations and physically check that the assets are where they are meant to be. If they are not, the stock checkers “escalate” the matter for further attention.
Mr Batista was employed by Wells Fargo as a “Stock Checker” in 2016.
On 29 September 2016, Mr Batista contacted his direct manager, Ms Rhodes, and advised her that he was having a “meltdown”. Mr Batista took time off work and provided a medical certificate that stated that he had a “medical condition”. Ms Rhodes communicated with Mr Wilson, the Human Resources Manager, about Mr Batista’s “meltdown”. Mr Batista returned to work the following week.
During the course of 2017, Ms Rhodes had reason to “counsel”, and communicate with, Mr Batista regarding issues arising in relation to his role with the company. This included advising Mr Batista of identified breaches (on his part) of the Wells Fargo Commercial Distribution Finance Stock Checking Procedures (the “Policy”) and other matters (such as a failure to attend work).
On 16 October 2017, Mr Batista emailed Ms Rhodes, copying in Mr Wilson, stating that he was feeling harassed by Ms Rhodes (the “October Email”).
On 30 November 2017, Ms Rhodes, Mr Wilson and Mr Batista had a telephone discussion. During the course of that conversation concerns about Mr Batista’s conduct and work performance were raised (the “November Discussion”). Mr Batista was issued with a “Letter of Expectations” on 6 December 2017 (dated 30 November 2017) which outlined the matters raised in the November Discussion. Relevantly, the Letter of Expectations detailed what Wells Fargo expected of Mr Batista in the future.
On or about 25 January 2018, Mr Batista attended a telephone conference with Mr Wilson and Mr Bennett, the head of Risk Management at Wells Fargo. Mr Batista was issued with a written warning (the “Written Warning”).
On 20 February 2018, during a discussion with Ms Yun (the Employee Relations Manager), Mr Batista reiterated his concern that he thought Ms Rhodes was bullying him and harassing him.
On 22 February 2018, Mr Batista was placed on administrative leave (the “Administrative Leave Decision”) pending the resolution of an investigation (the “Investigation”) into his conduct and work performance. The Investigation was undertaken by Ms Yun.
On 27 February 2018, Mr Batista commenced proceedings in the Fair Work Commission seeking an order that the company “stop bullying” (the “FWC Application”). Wells Fargo became aware of the FWC Application on or about 2 March 2018.
On 13 March 2018, Ms Yun concluded the Investigation and made findings in relation to Mr Batista’s performance and conduct and the allegations made against Ms Rhodes. That same day, Mr Bennett, Ms Yun and Mr Wilson decided that Mr Batista’s employment would be terminated. That decision was approved by Mr D’Angelus.
On 27 March 2018, Mr Batista attended a meeting to discuss the findings of the Investigation. Mr Batista was advised that his employment was being terminated.
Hearings before this Court
This matter was heard over three days: 27 and 28 November 2019 and 29 January 2020. Mr Batista appeared on his own behalf without legal representation. Wells Fargo was represented by Mr Burmeister of Counsel.
At the hearing on 29 January 2020, Mr Batista told the Court that his case would have been better prepared if he had had the assistance of a legal representative.
The Court acknowledges the difficulties faced by self-represented litigants. While Mr Batista may have felt overwhelmed prior to the hearing (and during the hearing), there is no right to legal representation in matters of this sort. The Court notes that Mr Batista had legal assistance for part of these proceedings. For reasons that are not entirely clear, all legal assistance ceased prior to the final hearing of this matter.
The Court made every effort to ensure that Mr Batista understood what was happening and had every opportunity to present his case.
At the start of the proceedings on 27 November 2019, the Court explained to Mr Batista how the hearing would proceed. The Court explained the procedures relevant to matters of this sort, including matters relating to cross-examination (such as “putting” matters to a witness). The Court indicated that, to the extent it was able to assist or could clarify any legal technicalities (such as objections to evidence), it would do so.
During the course of the proceedings, Mr Batista indicated that he had not had time to properly review all of the affidavit evidence filed by Wells Fargo and, as such, had not prepared any questions for the witnesses.
While unfortunate, it is noted that Mr Batista received Wells Fargo’s affidavit evidence approximately one month before the hearing. His request for an adjournment of the hearing dates because he felt he was not prepared was refused the week prior to the hearing commencing: Batista v Wells Fargo International Finance (Australia) Pty Ltd [2019] FCCA 3384. In those reasons for judgment, the Court indicated to Mr Batista that he had had sufficient time to prepare. Mr Batista was on notice that the matter was to proceed and had a full week after the adjournment was refused to prepare.
At the hearing, Mr Batista was able to ask questions of some witnesses. The questions he asked were probative. Indeed, Wells Fargo’s closing submissions were required to address the matters that Mr Batista adverted to in his cross-examination of Ms Yun.
At the conclusion of the hearing on 29 November 2019, both parties agreed that closing submissions should be made in writing. This approach gave Mr Batista a further three weeks. Mr Batista himself agreed that this was sufficient time for him to prepare and provide written submissions. Wells Fargo was provided a further three weeks to respond.
Noting that Mr Batista was self-represented, the Court also granted liberty to apply to either party for further oral submissions if they so wished.
Mr Batista filed his closing submissions three weeks after the hearing of the matter. Those submissions indicated that Mr Batista had read the affidavit material and drew attention to certain matters in the evidence presented by Wells Fargo.
Wells Fargo also filed closing submissions in accordance with the Court’s orders which the Court has considered.
After the filing of Wells Fargo’s closing submissions, Mr Batista exercised his liberty to apply. The Court reconvened on 29 January 2020 to receive further oral submissions from the parties.
The Court is satisfied that Mr Batista had sufficient opportunity to prepare and present his case.
The Legislative Framework
Given the complexity of the legislative framework central to these proceedings, it is useful to set out the legislative provisions relevant to these proceedings.
Mr Batista pleads that s.340(1)(a) of the FW Act has been breached. Section 340(1)(a) provides:
(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…
Mr Batista must satisfy the Court that “adverse action” has been taken. Adverse Action is defined in s.342 of the FW Act as follows:
(1)The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action
Item
Column 1
Adverse action is taken by…
Column 2
if…
1
An employer against an employee
the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
Once Mr Batista has satisfied the Court that adverse action has been taken, he must then satisfy the Court that he has exercised a “workplace right”.
“Workplace Right” is defined in s.341 of the FW Act, of which the following subsections relevantly provide:
(1) A person has a workplace right if the person:
…
(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.
Mr Batista also pleads that there has been a breach of s.351 of the FW Act. Section 351 provides:
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the particular position concerned; or
(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed--taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
Mr Batista has made claims under Part 3-1 of the FW Act. If Mr Batista satisfies the Court that adverse action has been taken and that he had exercised a workplace right or has a protected attribute under s.351, the onus then shifts to Wells Fargo to prove that any adverse action was not taken because of these matters.
This “reverse onus” occurs by virtue of s.361, which provides as follows:
(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.
With this legislative background in mind, the Court will now consider the issues in dispute.
The Issues in Dispute
Mr Batista claims that the following adverse actions were taken against him:
a)the Written Warning was issued to him. Wells Fargo denies this was adverse action under s.342(1) item (b) and (c) of the FW Act;
b)Wells Fargo commenced the Investigation. Wells Fargo denies this was adverse action under s.342(1) item (b) and (c) of the FW Act;
c)Wells Fargo placed him on paid administrative leave from 23 February 2018 pending an investigation into his misconduct. Wells Fargo denies this was adverse action under s.342(1) item (b) and (c) of the FW Act;
d)Wells Fargo, on 24 March 2018, made findings adverse to Mr Batista at the end of the Investigation. Wells Fargo denies this was adverse action under s.342(1) item (b) and (c) of the FW Act; and
e)Mr Batista was dismissed on 27 March 2018 as a result of the findings of the Investigation. Wells Fargo concede that a “dismissal” of Mr Batista was adverse action pursuant to s.342(1) item (a).
Mr Batista claims that these adverse actions were taken because he exercised the following workplace rights:
a)Mr Batista complained about bullying in the October Email. This was a workplace right as defined by s.341(1)(c)(ii);
b)Mr Batista made a further complaint in the November Discussion. This was a workplace right as defined by s.341(1)(c)(ii);
c)Mr Batista repeated allegations of bullying and harassment to Ms Yun in a telephone conversation on 20 February 2020. This was a workplace right as defined by s.341(1)(c)(ii). The Court notes that Wells Fargo submitted that Mr Batista does not allege that adverse action was taken because of this particular incident. However, the Amended Statement of Claim clearly states at [38] and [39] that a reason for the adverse action was the complaint to Ms Yun. At the hearing on 29 January 2020, Wells Fargo conceded this was an error on their part; and
d)Mr Batista made the FWC Application on 27 February 2018. Wells Fargo conceded that the commencement of proceedings in the Fair Work Commission was the exercise of a workplace right pursuant to s.341(1)(b).
Wells Fargo submitted (at [61] of the written submissions filed 18 November 2019) that it does not deny that Mr Batista made the complaints described above. Rather, Wells Fargo denies that these complaints constitute the exercise of a “workplace right” as defined in s.341(1)(c)(ii).
Mr Batista also claims that there has been a breach of s.351 of the FW Act. He contends that one of the reasons Wells Fargo took adverse action against him was because he was unable to attend work by 9.00am on the days he was required to be in the office. Mr Batista claims that his inability to attend work was a “manifestation” of a mental disability (that being depression and anxiety). He says Wells Fargo was aware of this disability and that, as such, adverse action was taken for a prohibited reason. Wells Fargo denies that it was aware that Mr Batista suffered from a mental disability and denies that that it dismissed Mr Batista for any prohibited reason.
Wells Fargo denies that Mr Batista is entitled to any relief. They say that the actions taken against Mr Batista (which Wells Fargo does not concede constitutes “adverse action”) were, in any event, motivated solely by Mr Batista’s repeated failure to comply with Wells Fargo’s policies and directions and because Mr Batista had engaged in misconduct in the workplace.
Both parties filed written submissions before and after the hearing. The Court has closely considered those submissions.
Unfortunately, Mr Batista’s submissions did not address many of the issues in dispute. For example, Mr Batista did not address why the particular actions taken were “adverse” or whether his complaint constituted the exercise of a workplace right.
In effect, Mr Batista’s written opening submissions dated 26 November 2019 did little more than repeat the contents of the affidavit he relies on in these proceedings. The submissions provide a narrative of what occurred during Mr Batista’s employment and discuss how, or why, the process which led to Mr Batista’s termination was flawed. In particular, Mr Batista submits that not all of the relevant information was presented to the decision-makers (such as his phone calls to his manager to “escalate” issues and his mental disability). He appears to contend that, as these matters were not communicated to the decision-makers, his dismissal (at least) was unfair or was biased.
In his submissions dated 19 December 2019, Mr Barista made submissions that addressed the credibility of Mr Wilson and Mr D’Angelus as witnesses. The Court will consider those submissions below to the extent it is able to do so (noting that Mr Batista never “put” any of these matters to Mr Wilson).
Mr Batista also made general submissions that:
a)the Written Warning should be considered void as he was not given the opportunity to address the issues after being provided with the Letter of Expectations;
b)he had made Wells Fargo aware of his mental disability and his contract of employment specifically prohibits terminating an employee because of ill-health;
c)all of the relevant information was not passed on to the decision-makers and there were matters (such as the email dated 15 March 2018) that were not referenced at any time and should have been as they contained relevant information;
d)there was a close proximity between the FWC Application and Mr Batista’s termination; and
e)his life during the past two years has been a “nightmare”. He has a wife and children and he fears that he will be unable to return to the workforce given that he has no qualifications and has worked in the “specialised” role at Wells Fargo for 13 years.
During the course of his closing submissions on 29 January 2020, Mr Batista responded to a number of matters in Wells Fargo’s closing submissions. It is noted that some of Mr Batista’s submissions appeared to abandon points of his claim. For example, Mr Batista said that he was not claiming that the Written Warning, the Administrative Leave Decision and the Investigation were implemented because of his complaints. He was only claiming that the process became more formal after the complaints had been made. Mr Batista also suggested that he was not alleging that a reason for his dismissal was because of a manifestation of his disability. Counsel for Wells Fargo correctly addressed these submissions and noted that Mr Batista may not have intended to argue as he had and proceeded to address the case as pleaded in any event.
More specifically, Mr Batista’s oral submissions to the Court were that:
a)he does not believe the disciplinary process was a sham. Rather, it was flawed. The matters that were referred to in the Written Warning were the same as those in the Letter of Expectations and so there was a “double handling”;
b)Ms Rhodes, whom Mr Batista had made complaints against, was asked to provide examples of errors from other employees. This process was open to abuse as Ms Rhodes had the opportunity to be selective in the emails she would forward when the complaints were being looked at;
c)Mr Batista was accustomed to having a manager raise mistakes to all employees on a regular basis. The errors that Wells Fargo relies on here were simply raised with Mr Batista via email and they were never put to him as “counselling”. Mr Batista did not expect those emails to be a sticking point for his performance issues;
d)Ms Rhodes’ affidavit states that other similarly situated employees had made mistakes. Ms Rhodes was largely okay with those employees having made those mistakes but in his situation it was considered worthy of disciplinary action;
e)the point where Mr Bennett decided that Mr Batista’s performance was no longer tolerable was not (in actual fact) an error as Mr Batista sought approval from management as per the Policy, but received no response;
f)although Mr Batista did not challenge every witness at the hearing, his cross-examination of Mr D’Angelus and his written closing submissions highlight various discrepancies in the accuracy of statements, accuracy of dates and what knowledge the witnesses had at the time of making their decisions. As such, credibility needs to be somewhat diminished;
g)a lot of the errors that Wells Fargo has relied upon are simply coding errors and not escalation failures. Mr Batista may have had two errors each month but this must be considered within the context of Mr Batista conducting up to 50 audits a month with some 100 assets to be coded;
h)during the Investigation, Ms Yun asked more questions in relation to the missed escalations and very little on the harassment claim;
i)the FWC Application was, in part, a motivational reason for the dismissal as the dismissal occurred in close proximity to this and at the time the decision-makers had knowledge of the FWC Application and have acknowledged that the FWC Application made references to Mr Batista’s disability;
j)Mr Batista suffered discrimination or differential treatment in the sense that Wells Fargo had not treated similarly situated employees in the same manner when it came to disciplinary action for missed escalations or Policy failures. Ms Rhodes’ affidavit stated that she had looked into the errors from other employees but was okay with their errors. This suggests the evidence that the failed escalations were the sole reason for the disciplinary action lacks credibility;
k)Mr Batista supplied doctors’ reports and medical certificates to Wells Fargo from at least 16 September 2016 which clearly outlines the diagnosed disability, along with the effects experienced as part of the disability which included lack of concentration, fatigue and struggling with tasks at work;
l)Mr D’Angelus acknowledged that he saw references to Mr Batista’s disability in the FWC Application; and
m)Wells Fargo continues to deny knowledge of Mr Batista’s disability yet in their defence they claim to have allegedly requested documents on his health condition. However, they have not provided any evidence to suggest they have requested these documents.
Wells Fargo filed submissions dated 18 November 2019 and 10 January 2020. Those submissions were detailed. They outlined the principles applicable to proceedings of this sort and explained why the case should be dismissed.
Wells Fargo’s submissions can be summarised as follows:
a)Wells Fargo does not deny that Mr Batista made the “complaints”. However, Wells Fargo denies that Mr Batista making those complaints was an exercise of a “workplace right”. There must be a “right” to make the complaint for Mr Batista’s complaints to be a “workplace right”. Mr Batista does not plead as much, and none of the evidence supports the proposition that any of his complaints are so grounded;
b)Mr Batista’s misconduct was extensive, repeated and critical to Wells Fargo’s business. The misconduct is well-documented. There is no evidence refuting the particulars of the misconduct. It is conduct of a quality and nature that would ordinarily attract discipline, up to and including dismissal. Each of the decision-makers have provided evidence that the reasons for taking the disciplinary process and termination were not because of any prohibited reason;
c)Mr Batista cannot prove that he had a mental disability at the time of the alleged contraventions as there is no admissible evidence in support of that proposition. There is also no admissible evidence in support of the allegation that Mr Batista’s inability to attend work at 9.00am on any given day was a manifestation of his disability (nor, for that matter, even a consequence of his disability). Further, Mr Batista will not be able to prove that the relevant decision-makers were aware that he had the alleged disability at the time they made their decisions;
d)Mr Batista may be able to show that some of the decision-makers observed some symptoms consistent with the disability he now says he had, but that is not enough;
e)Mr Batista’s claim in relation to mental disability only goes so far as to impugn decisions insofar as they relied on his failures to attend work on the first business day of each month. The evidence shows that this was a minor aspect of the disciplinary process and was not the operative reason for Mr Batista’s dismissal; and
f)in any event, the evidence establishes that the requirement to attend the office at 9.00am on the first business day of each month was an inherent requirement of Mr Batista’s position. As such, s.351(2) of the FW Act applies and s.351(1) does not (thus there can be no breach).
In response to Mr Batista’s submissions of 29 January 2020, Mr Burmeister of Counsel submitted as follows:
a)there is no proof of any medical condition which is enough to reject the s.351 claim. Insofar as Annexure 32 was received by Ms Yun and Mr Wilson, both say very clearly that to the extent Mr Batista was suffering from a medical condition, this was not an actuating factor in any of their decisions;
b)a general theme in Mr Batista’s submissions was that the process was somehow flawed because there were other employees who had committed similar breaches and who were not disciplined. Mr Batista also says that he had inadvertently made these mistakes and that he had completed most of his tasks without mistakes. These submissions have no evidential basis;
c)the evidence shows that there were over 20 errors by Mr Batista in a 12 month period. Regardless of whether those incidents are deliberate or negligent, given the evidence about what Wells Fargo’s business is and the risk caused by errors of the sort Mr Batista made can have, the process undertaken with Mr Batista was reasonable, as was the outcome;
d)the doctors’ reports that Mr Batista says are in evidence and upon which he seeks to rely are hearsay and, in any event, their content is not enough to prove the matters that he seeks to establish;
e)while Annexure 19 of Mr Batista’s affidavit (which was a psychological report) was struck out, in any event it was published on 11 February 2019 (which is after the termination of his employment). It cannot therefore be said to ground a proposition that he suffered from that medical ailment during the employment, nor that anyone at Wells Fargo knew about it;
f)while Mr D’Angelus conceded he had seen an email dated 15 March 2018 in which Mr Batista discussed his disability, it is absurd to think that after four managers put together a detailed business case, Mr D’Angelus, in the “eleventh hour”, simply decided that because of a vague reference to a disability in an email he has just received, Mr Batista should be dismissed for that reason; and
g)it is not for the Court to simply find that because Mr Batista says he had a condition that he would then have been forgetful at a certain point in time because of that condition.
Evidence
Mr Batista was the only witness providing evidence in support of his case. Wells Fargo relied on the evidence of five witnesses. Each of these witnesses was identified as a “decision-maker” in, or as being involved in, the decisions to take the alleged adverse actions.
Wells Fargo’s witnesses appeared by video-link from various locations. The Court confirmed with these witness that they could both see and hear the Court. The Court also confirmed that it could see and hear each witness.
Mr Batista’s Evidence
Mr Batista read his affidavit sworn 5 September 2019. Much of Mr Batista’s substantive affidavit is more akin to submissions than to evidence.
Mr Batista’s evidence can be summarised as follows:
a)Mr Batista suffers from anxiety and depression: Mr Batista’s Affidavit at [2]. Annexure 6 indicated that Wells Fargo was aware that Mr Batista had “mental health issues” and that it sought to allow him flexibility in his working arrangements to enable him to attend counselling;
b)Mr Batista made a complaint in the October Email. However, after an investigation by Wells Fargo he was advised that his manager’s version of events was more probable: Mr Batista’s Affidavit at [3];
c)after the October Email, Mr Batista was disciplined for “minor errors of missed email escalations and errors that…were commonplace amongst other staff members”. Mr Batista apologised for the mistakes: Mr Batista’s Affidavit at [4]-[5]. At Annexure 13, Mr Batista attributed the mistakes to his “stress, anxiety and heavy medications”;
d)Mr Batista had a conversation with Mr Bennett in early October 2017 where he raised concerns about travel to the office on the first day of each month and stated that he had been using that time to conduct administrative duties from home as 90% of his time throughout the month involved travel. Mr Bennett stated that “he would look into this and that he thought that it would not be an issue”. The only time Mr Batista heard back from Mr Bennett about the office attendance was after being issued the Letter of Expectations, which noted his absence: Mr Batista’s Affidavit at [22];
e)after receiving the Letter of Expectations on 30 November 2017, Mr Batista took 3-4 weeks annual leave. Upon his return to work, Mr Batista was issued with the Warning Letter. Mr Batista was given no warning, was unprepared and was not asked if he would like a support person when he was with issued the Written Warning. Mr Batista felt “ambushed”: Mr Batista’s Affidavit at [6] and [20];
f)three of the missed escalations identified in the Written Warning occurred prior to the Letter of Expectations being issued and Mr Batista recalls that those missed escalations identified in the Written Warning (which were not included in the Letter of Expectations) were discussed in November Discussions: Mr Batista’s Affidavit at [21];
g)one of the reasons that Mr Batista was placed on administrative leave was because he had not attended the office on 1 February 2018. However, Mr Batista was given approval not to attend by his manager. Mr Batista also did not conduct any physical inspections on 1 February 2018. However, Mr Batista did not think there was an issue with his not doing so as he was told that he had a discretion as to how and when the inspections would be conducted throughout the month as long as all work required was completed by the month’s end: Mr Batista’s Affidavit at [7] and [22]. The Policy also suggested that Mr Batista had the full month, and in some cases five days into the new month on approval from management, to conduct stock checks: Mr Batista’s Affidavit at Annexure 12;
h)at Annexure 13 (an email dated 15 March 2018), Mr Batista stated that he did not attend work on 1 February 2017 as Ms Rhodes had requested that scheduling (which is what attendance at the office was required for and was the main task that would be completed on the first day of the month) be completed in mid-January. As this had been completed, Mr Batista and a colleague believed that it was reasonable to complete other duties from home. By the time Mr Batista had completed his tasks he was unable to undertake any physical inspections and he again referred to his belief that the inspections were to be completed by month’s end – not on a particular day;
i)during the time Mr Batista was on administrative leave he had a conversation with Ms Yun where he again raised concerns about the treatment he was receiving. Mr Batista also asked Wells Fargo to consider his health condition and medications but he was advised that Wells Fargo did not believe that his medication and health were playing a part in the situation: Mr Batista’s Affidavit at [9];
j)Mr Batista made the FWC Application to stop bullying. However, after his termination he was advised that the proceedings could no longer continue: Mr Batista’s Affidavit at [10];
k)Mr Batista asserts that he attempted to seek a reasonable accommodation request to allow him to work from home 12 business days per year for reasons of his medical conditions, namely social anxiety. Wells Fargo flatly denied the request by not engaging in any conversations or discussions about accommodating him: Mr Batista’s Affidavit at [13];
l)Mr Batista attempted to escalate a matter, by phone or email, as per the Policy and sought permission from Ms Rhodes on one occasion as per the Policy. On more than one occasion he received no response to either of these requests despite following up: Mr Batista’s Affidavit at [14] and Annexures 13 and 17;
m)Mr Batista sent an email to two different senior employees with a medical certificate from his GP clearly outlining his medical condition and the three medications that he had trialled to date: Mr Batista’s Affidavit at [15] and Annexure 32; and
n)an accusation of using foul language towards Ms Rhodes was made against Mr Batista in the Written Warning. Mr Batista explained in the Investigation that the language was used in frustration and was not directed at the manager: Mr Batista’s Affidavit at [19].
During cross-examination, Mr Batista gave the following evidence:
a)there had been 11 incidents between January 2017 and October 2017 whereby Mr Batista had committed “minor errors”; however, Mr Batista was not made aware of any of these errors until two weeks prior to the hearing. Other staff members had committed these minor errors as well;
b)at the time Mr Batista made these errors there were discussions with Ms Rhodes about them; however, these matters were not discussed in the Letter of Expectations, the Written Warning or the Investigation. None of these errors were followed up with disciplinary action and it was “all of a sudden” in October and November 2017 that these started to become more serious;
c)while there is no excuse for the errors (and Mr Batista does not deny that the errors were made), these errors were a regular occurrence with Mr Batista and with his colleagues;
d)Mr Batista had been directed to attend the office on 1 October 2017 and did not do so. When put to Mr Batista that he was directed to attend the office on the first business day of November he indicated that he could not recall. He also could not recall whether he attended the office on the first day of November;
e)Mr Batista maintained that he had permission not to attend the office on 1 February 2018. He stated that the Investigation “actually found” that this was the case as he had “already done the schedule” in mid-January and another manager said it was “fine” for Mr Batista to do physical inspections;
f)when put to Mr Batista that he was directed or warned seven times about attendance at the office and that he did not comply two or three times, Mr Batista stated that this was incorrect. Mr Batista says he only failed to attend the office on one occasion in October 2017. He agreed that he was warned several times that he was required to attend the office but there were no further incidents of not attending the office until 1 February 2018 (when he had permission not to attend in any event); and
g)Mr Batista made a number of statements (in correspondence exchanged at the time) that explained why he did not attend the office or why he disagreed with having to attend the office. When put to him that none of these matters included his health he disagreed and stated that he had made a request that he have the first day of the month off so that he could attend psychologist appointments.
Mr Batista struck the Court as a credible witness in so far as he honestly believes he was wronged. It is clear that this litigation has proved extraordinarily stressful for him and his family. He was candid in admitting that he had made errors and that the emails that he sent at the time “looked bad”. He stressed, however, that these emails needed to be read in context and that he was under a great deal of stress at the time.
The Court does not doubt that Mr Batista believes that he has been “wronged” by Wells Fargo and that he perceives that what happened happened for unlawful reasons.
Ms Rhodes’ Evidence
The affidavit of Talena Rhodes of 1 November 2019 was read without objection. Ms Rhodes appeared for cross-examination. Ultimately, Mr Batista chose not to ask any questions of Ms Rhodes.
Ms Rhodes evidence can be summarised as follows:
a)Ms Rhodes was Mr Batista’s direct manager: Ms Rhodes’ Affidavit at [11];
b)while Mr Batista’s performance review in 2016 was positive, Ms Rhodes held concerns about Mr Batista’s behaviour. Specifically, she was concerned that Mr Batista did not always adhere to company policies. These concerns came to the forefront in in early 2017: Ms Rhodes’ Affidavit at [14];
c)Ms Rhodes was contacted by Mr Batista in late September 2016. Mr Batista told Ms Rhodes he was having a “meltdown”. Ms Rhodes advised Mr Batista to take some time off work and contacted Mr Batista in early October to check-in. Ms Rhodes was told by Mr Batista that he was on medication and was referred to counselling. Ms Rhodes did not seek any further details. Nor were any provided by Mr Batista. A medical certificate for the period in which Mr Batista was absent after the “meltdown” indicated that he was unfit for work: Ms Rhodes’ Affidavit at [37]-[49];
d)Ms Rhodes detailed a number of Policy breaches and behavioural concerns (commencing from January 2017) that arose in relation to Mr Batista. This included “missed escalations” and “incorrect coding” ;
e)Ms Rhodes was never told by Mr Batista that his inability to attend the office on the first day of each month was because of any medical condition or disability. Rather, Mr Batista had only indicated that he did not want to attend the office because he did not want to drive and would prefer to work from home: Ms Rhodes’ Affidavit at [85]-[90];
f)Ms Rhodes received the October Email (Ms Rhodes’ Affidavit at [98]-[99]) and was a party to the November Discussions: Ms Rhodes’ Affidavit at [115]-[125]. Ms Rhodes contributed to the drafting of the Letter of Expectations;
g)in January 2018, a number of phone calls took place between Ms Rhodes, Mr Bennett, Mr Wilson and Ms Yun regarding what steps should be taken in relation to Mr Batista given his continued breaches of the Policy. As a result of those phone calls, Mr Bennett, Mr Wilson and Ms Yun decided to issue Mr Batista with the Written Warning. To the extent that Ms Rhodes was involved in any decision (which she does not admit) it was not motivated by the October Email or the November Discussions: Ms Rhodes’ Affidavit at [156]-[157] and [198];
h)Ms Rhodes identified three further Policy breaches after the Written Warning was issued. Ms Rhodes relayed the breaches to Mr Bennett, Mr Wilson and Ms Yun. On 22 February 2018, Ms Rhodes was informed that Mr Batista had been placed on administrative leave: Ms Rhodes’ Affidavit at [163]-[185]. Ms Rhodes did not take any active role in the decision to place Mr Batista on administrative leave and to the extent she did so inadvertently, it was not because of the October Email or the November Discussions: Ms Rhodes’ Affidavit at [199];
i)Ms Rhodes became aware of the Investigation in or around late February. She was not involved in the decision to commence the Investigation. Nor was she made aware of the findings of the Investigation until after Mr Batista was terminated. Ms Rhodes was aware that the Investigation related to Mr Batista’s performance and conduct. She was also aware of the harassment claims made by Mr Batista against her. Ms Rhodes took part in the Investigation by outlining her account of matters to Ms Yun. However, her reasons for doing so were not motivated by the October Email or the November Discussions: Ms Rhodes’ Affidavit at [186]-[192] and [200];
j)Ms Rhodes became aware of the FWC Application on 5 March 2018. This played no part in any of her involvement, inadvertent or otherwise, with the processes being undertaken in relation to Mr Batista: Ms Rhodes’ Affidavit at [193]-[195] and [201];
k)Ms Rhodes was only made aware that Mr Batista had been terminated after the termination had been effected: Ms Rhodes’ Affidavit at [196]-[197]. To the extent that Ms Rhodes may have been involved, none of the reasons for Ms Rhodes acting as she did arose from the October Email, the November Discussions, the FWC Application or any disability Mr Batista may have had: Ms Rhodes’ Affidavit at [202];
l)the “meltdown” in 2016 was not a matter taken into account by Ms Rhodes in any of her dealings with or involving Mr Batista. Ms Rhodes was not aware of any formal diagnosis by a medical practitioner of any condition prior to the termination of Mr Batista’s employment. Nor does she recall Mr Batista informing her that he was anxious or depressed prior to the termination of his employment. Ms Rhodes became aware, by virtue of receiving the FWC Application, that Mr Batista was receiving treatment for anxiety and depression: Ms Rhodes’ Affidavit at [203]; and
m)to the extent that Ms Rhodes was aware, or ought to have been aware, of any disability Mr Batista had, this did not contribute to any decision Ms Rhodes made in relation to Mr Batista’s employment: Ms Rhodes’ Affidavit at [203].
Mr Wilson’s Evidence
The affidavit of Jake Wilson affirmed 1 November 2019 was read without objection.
Mr Wilson was made available for cross-examination. Mr Batista indicated that he had not read Mr Wilson’s Affidavit, had no questions prepared and did not wish to ask anything. This is despite the Court having explained to Mr Batista at the commencement of the hearing why cross-examination is important.
The Court excused Mr Wilson.
Prior to Ms Yun giving her evidence (which immediately followed Mr Wilson’s evidence and which is discussed below) the Court re-iterated the importance of putting questions to the witnesses. Mr Batista indicated that he understood this. Following Ms Yun’s evidence, the Court made inquiries as to whether Mr Wilson might still be available for cross-examination if necessary. Counsel for Wells Fargo indicated Mr Wilson was still available. The Court again asked Mr Batista whether he wished to cross-examine Mr Wilson. Mr Batista again said that he had no questions for Mr Wilson.
Mr Wilson’s affidavit evidence can be summarised as follows:
a)Mr Wilson is a Human Resources Manager for Wells Fargo: Mr Wilson’s Affidavit at [2]-[5];
b)Mr Wilson was contacted on 29 September 2016 by Ms Rhodes’ then direct manager, Ms Kilpatrick, and was advised that Mr Batista had indicated that he was having a “bit of a meltdown”. Mr Batista took a period of personal leave until 10 October 2016 when he returned to work. The medical certificate that Mr Batista provided for that period did not indicate what medical condition Mr Batista was suffering from during this period. Mr Wilson was only aware that Mr Batista was prescribed some form of medication and had been referred for counselling: Mr Wilson’s Affidavit at [16]-[26];
c)Mr Wilson became involved with matters concerning Mr Batista in June 2017, September 2017 and October 2017: Mr Wilson’s Affidavit at [27]-[54];
d)Mr Wilson was copied into the October Email. He chose to engage the assistance of Ms Yun and contacted Ms Yun on 16 October 2017 for the purpose of having Ms Yun become involved in the matter as an “independent lens”: Mr Wilson’s Affidavit at [54]-[62];
e)Mr Wilson suggested that a Letter of Expectations be issued to Mr Batista in light of the increasing concerns about him. Mr Bennett and Ms Rhodes agreed that the Letter of Expectations was appropriate. On 30 November 2017, Mr Wilson, Ms Rhodes and Mr Batista had a telephone conversation to discuss the Letter of Expectations and what Wells Fargo expected of him: Mr Wilson’s Affidavit at [83]-[66];
f)Mr Wilson denies that (at any time during the November Discussions) Mr Batista advised that he had been referred to a psychologist for treatment of an illness. Mr Wilson also denies that Mr Batista requested that he be allowed to attend work late so that he could attend treatment for an illness. Finally, Mr Wilson denies that Mr Batista provided a medical certificate by email other than the certificate dated 30 September 2016 (which was provided by Ms Rhodes): Mr Wilson’s Affidavit at [88];
g)while it was intended that Ms Rhodes issue the Letter of Expectations to Mr Batista following the November Discussions, this did not occur. On 1 December 2017, Ms Rhodes received an email. In that email, Mr Batista accused Ms Rhodes of “targeted intimidation” and “borderline harassment”. In light of this, it was decided that the Letter of Expectations would be signed by Mr Bennett. On 6 December 2017, Mr Bennett, Mr Wilson and Mr Batista had a discussion by telephone. Mr Batista was advised that he would receive the Letter of Expectations and was advised as to why it was being sent: Mr Wilson’s Affidavit at [97]-[100];
h)Mr Wilson was engaged in a number of email exchanges with Ms Rhodes and Ms Yun in December as a result of Ms Rhodes seeking guidance on communicating with Mr Batista: Mr Wilson’s Affidavit at [101]-[114];
i)it became apparent to Mr Wilson in January 2018 that the Letter of Expectations had failed to result in any improvement and that a Written Warning would be appropriate. Mr Wilson, with Mr Bennett and Ms Yun, decided to issue the Written Warning. Mr Wilson’s reasons for doing so were confined to concerns about Mr Batista’s performance and conduct: Mr Wilson’s Affidavit at [118]-[123];
j)on 25 January 2018, Mr Wilson led a phone call with Mr Batista and Mr Bennett. He explained to Mr Batista that he would be issued with the Written Warning. Later that day, Mr Wilson emailed Mr Batista the Written Warning and requested that he sign the Written Warning and return it to Mr Wilson. Mr Batista did so on 29 January 2018: Mr Wilson’s Affidavit at [124]-[132];
k)in February 2018, Mr Wilson was copied into various email exchanges between Ms Rhodes and Mr Batista. Mr Wilson was made aware by Ms Rhodes that Mr Batista had failed to attend the office on 1 February 2018 and that there had been further Policy breaches: Mr Wilson’s Affidavit at [143]-[151];
l)by mid-February 2018, Mr Wilson was very concerned about Mr Batista’s conduct and received an email from Mr Bennett requesting that Mr Batista be placed on administrative leave. Mr Wilson agreed that this was an appropriate course of action, as did Ms Yun. With Mr D’Angelus’, approval it was decided that Mr Batista would be placed on administrative leave. Mr Wilson’s reasons for deciding this was appropriate related to his concerns about Mr Batista’s performance and conduct: Mr Wilson’s Affidavit at [152]-[166];
m)Mr Wilson assisted Ms Yun in the Investigation. Mr Wilson was kept appraised by Ms Yun throughout February and March 2018 as to the progress of the Investigation;
n)the following matters were taken into account in the Investigation (Mr Wilson’s Affidavit at [170]-[177]):
(a) The overall responsibilities of the Field Services Collateral representative role and the critical part this role plays in minimising risk of loss for Wells Fargo;
(b) The significance of the Policy, which is again to minimise risk of loss for Wells Fargo; and
(c) The necessary trust and confidence placed on FSCRs given the remoteness of team member location to their link manager (and, in Mr Batista’s case, his remoteness to his manager, Ms Rhodes, based in Brisbane – noting that Mr Batista was based on Western Australia).
o)Mr Wilson and Ms Yun agreed on the findings of the Investigation. Mr Wilson’s reasons for making the findings he made were limited to the evidence that Ms Yun had obtained during the course of the Investigation. The evidence made it clear to Mr Wilson that Mr Batista had a history of repeated failures to adhere to the Policy, he had not demonstrated that he was willing to comply with the Policy, he had displayed a poor attitude and behaviour when requested to work in line with the Policy and that these issues persisted despite the previous actions that had been taken: Mr Wilson’s Affidavit at [178]-[179];
p)Mr Wilson became aware that Mr Batista had made the FWC Application on 2 March 2018: Mr Wilson’s Affidavit at [180];
q)Mr Wilson had a telephone discussion with Mr Bennett and another person, Mr Beckett, on 14 March 2018 to discuss the findings of the Investigation. During that conversation Mr Bennett recommended that Mr Batista be terminated. Mr Wilson shared the view that Mr Batista should be terminated: Mr Wilson’s Affidavit at [181]-[184];
r)on 27 March 2018, Mr Wilson advised Mr Batista that his employment was being terminated for the reasons set out in the letter of termination of the same date. In particular, Mr Wilson formed the view that Mr Batista’s termination was appropriate. Wells Fargo could no longer have trust and confidence in Mr Batista to perform his role. He had a history of repeated failures to adhere to the Policy, a lack of willingness to comply with the Policy, he displayed a poor attitude when requested to work within the Policy and these issues, or “problems”, persisted despite the previous actions that had been taken: Mr Wilson’s Affidavit at [187]-[195];
s)none of the decisions that Mr Wilson made were made because of the October Email, the November Discussions, the FWC Application or any alleged disability that Mr Batista might have: Mr Wilson’s Affidavit at [196]-[201];
t)at [203], Mr Wilson states as follows in relation to Mr Batista’s alleged mental disability:
(a) I was aware as a result of my involvement in the February Investigation that Mr Batista had informed Ms Yun during the February Investigation that he suffered from anxiety, that he had been referred to a psychiatrist, and was on medication. I was also aware from reviewing the FWC Application that Mr Batista indicated in it that he was receiving treatment for anxiety and depression. However, prior to the termination of Mr Batista’s employment, I do not recall knowing, as a matter of fact, that Mr Batista had any disability;
(b) as far as I am aware, at no time prior to the February Investigation did Mr Batista claim that any issues related to his performance or conduct, including his non-attendance at the office on the first business day of each month, or any Policy breaches, were related to:
(i) a disability; or
(ii) any medication Mr Batista may have been taking at the time which allegedly caused him to be forgetful.
(c) at no time did Mr Batista provide medical evidence to suggest that any of Wells Fargo’s concerns in relation to his performance or conduct were related to a disability;
(d) at no time did Mr Batista provide medical evidence to suggest that any medication he may have been taking caused him to be forgetful;
(e) I do not recall receiving any medical evidence that indicated that Mr Batista had a mental disability, noting my comments at paragraph 209 below in relation to the medical certificate allegedly provided by Mr Batista on 13 March2018;
(f) I did not conclude that any of Mr Batista’s performance or conduct issues were a manifestation of any disability;
(g) to the extent that I was, or ought to have been, aware that Mr Batista had a disability, this was not a reason for any decision I made in respect of Mr Batista’s employment.
u)Mr Wilson denied that Mr Batista made a “reasonable accommodation request” to work from home the first day of each month as such a request would have come to him in his capacity as Human Resources Manager. He has no knowledge of any request ever being made: Mr Wilson’s Affidavit at [207]; and
v)Mr Wilson does not recall receiving an email from Mr Batista dated 13 March 2018 enclosing any medical certificates (referencing Annexure 32 of Mr Batista’s Affidavit). Mr Wilson has searched his email inbox for this email and has been unable to locate it: Mr Wilson’s Affidavit at [209].
Mr Batista made submissions to the effect that Mr Wilson’s experience as a Human Resources Manager suggested that some of the matters Mr Wilson said he was not aware of were “hard to believe”. While Mr Batista may find that Mr Wilson’s statements are “hard to believe”, the Court does not share this view. Mr Wilson’s evidence was not implausible. That Mr Wilson states he was not aware that Mr Batista, as a matter of fact, had a disability is not hard to believe. As will be explained further below, establishing a disability as a matter of fact is a high threshold. Mr Wilson never stated that he did not believe that Mr Batista had a disability. He simply stated that he did not know at the relevant time.
Mr Batista also made reference to the ambiguity surrounding the conversation between Mr Bennett, Mr Batista and Mr Wilson alleged to have occurred on 6 December 2018. He noted that he could not recall any discussion on this date and that the correspondence at the time does not indicate any such discussions taking place. Mr Batista says this demonstrates that Mr Wilson is “changing the facts to suit the outcome”.
There is nothing before the Court to suggest Mr Wilson and Mr Bennett fabricated any of their evidence in this regard.
Almost all aspects of Mr Wilson’s evidence were corroborated by the evidence of the other witnesses (which Mr Batista did not challenge) and, for that reason, the Court accepts his evidence as entirely plausible.
Ms Yun’s Evidence
Wells Fargo read the affidavit of Shukyi Yun sworn 1 November 2019 without objection. Ms Yun was also the subject of a brief cross-examination (in the form of one question from Mr Batista).
Ms Yun’s affidavit evidence can be summarised as follows:
a)Ms Yun is the Employee Relations Manager in the Asia Pacific Region for Wells Fargo. She first became involved with Mr Batista after the October Email was brought to her attention by Mr Wilson: Ms Yun’s Affidavit at [2]-[9];
b)Ms Yun held a number of discussions with Mr Batista and Ms Rhodes during October and November 2017. These discussions involved the October Email and other matters Mr Batista had concerns with in his employment – specifically, travel: Ms Yun’s Affidavit at [10]-[23];
c)Ms Yun suggested that Mr Batista be issued with a Letter of Expectations in order to address the concerns Ms Rhodes, Mr Bennett and Mr Wilson were having. Ms Yun drafted the Letter of Expectations and provided it to Ms Rhodes for amendments: Ms Yun’s Affidavit at [24]-[34];
d)on 13 December 2017, Ms Yun had a lengthy discussion with Mr Batista by telephone in relation to the concerns about his behaviour and non-adherence to Policy. Ms Yun gave Mr Batista an opportunity to explain a number of the issues. Further discussions took place in January 2018 between Ms Yun, Mr Batista, Ms Rhodes, Mr Wilson and Mr Bennett. Mr Bennett indicated to Ms Yun that the Letter of Expectations did not appear to have had the intended effect and he wished to take the next step. Ms Yun advised that this would require that Mr Batista receive a written warning: Ms Yun’s Affidavit at [35]-[48];
e)Ms Yun drafted the Written Warning. Ms Yun, Mr Bennett and Mr Wilson made the decision to issue the Written Warning to Mr Batista and Mr D’Angelus was required to approve that decision. Once Mr D’Angelus approved the decision, Mr Batista was issued with the Written Warning. Ms Yun’s sole reason for issuing the Written Warning was that she had formed the view that this was an appropriate step to take in light of continued concerns about Mr Batista’s performance and conduct: Ms Yun’s Affidavit at [49]-[60];
f)Ms Yun decided that it was necessary to commence the Investigation. Her reasons for deciding to do so were limited to what she perceived to be the need to formally investigate concerns about Mr Batista’s performance and conduct and again investigate Mr Batista’s allegations against Ms Rhodes as Mr Batista has raised the allegations despite the Written Warning finding that the allegations were not proven: Ms Yun’s Affidavit at [68]-[69];
g)on the recommendation of Mr Bennett, Ms Yun and Mr Wilson made the decision to place Mr Batista on administrative leave. Ms Yun’s reasons for placing Mr Batista on administrative leave were limited to ensuring that Wells Fargo was not placed at risk because of Mr Batista’s performance and conduct: Ms Yun’s Affidavit at [72]-[88];
h)during a call with Mr Batista on 28 February 2018, which was scheduled as part of the Investigation, Mr Batista advised Ms Yun that he felt Ms Rhodes was singling him out, spending time trying to find issues and giving others selective information to make Mr Batista look incompetent. Ms Yun was also made aware during that conversation that Mr Batista had made the FWC Application and that Mr Batista believed his medication was resulting in side effects that could be affecting his work performance: Ms Yun’s Affidavit at [89]-[93];
i)the findings of the Investigation were made on the basis of the evidence that Ms Yun had gathered, which indicated that Mr Batista had repeatedly failed to escalate matters as per the Policy and had not shown a willingness to comply with the Policy. This posed an unacceptable risk to Wells Fargo and was not consistent with the fundamental role of a Stock Checker. Mr Batista’s behaviour towards Ms Rhodes was also noted, as was his failure to follow reasonable instructions. These issues were ongoing, despite attempts to address them (via the Letter of Expectations and Written Warning): Ms Yun’s Affidavit at [95]-[106];
j)Ms Yun was one of the decision-makers (with Mr Wilson and Mr Bennett) who recommended that Mr Batista be terminated. Ms Yun prepared the business case for Mr Batista’s termination and provided it to Mr D’Angelus, who approved the termination. The reasons for Ms Yun recommending Mr Batista be terminated were limited to the reasons set out in the Termination Letter that was provided to Mr Batista. In particular, Ms Yun formed the view that it was appropriate and necessary to terminate Mr Batista’s employment because Wells Fargo no longer had the necessary trust and confidence in his ability to perform his role: Ms Yun’s Affidavit at [107]-[116];
k)Ms Yun denied that her reasons for any of the decisions that were made involved, or were because of, the October Email, the discussion between Mr Batista and Ms Yun that took place on 20 February 2018 (where he repeated the matters in the October Email), the FWC Application or any disability: Ms Yun’s Affidavit at [117]-[122];
l)Mr Batista had told Ms Yun in the phone call on 20 February 2018 that he suffered from anxiety, had been referred to a psychiatrist and was on medication. At no time prior to this call had Mr Batista ever claimed that the issues relating to his employment were related to any disability or medication. Further, no medical evidence was provided by Mr Batista to support his claim that his disability or medication and Ms Yun formed the view that none of the issues arose from the manifestation of any disability: Ms Yun’s Affidavit at [71] and [124]; and
m)Ms Yun does not recall having received an email dated 13 March 2018 from Mr Batista which enclosed a medical certificate. Ms Yun has attempted to locate that email in her email account but has been unable to do so: Ms Yun’s Affidavit at [131].
Ms Yun appeared for cross-examination via video from Hong Kong. Mr Batista initially indicated that he had no questions for Ms Yun as he has was not “across the affidavit”. When the Court explained to Mr Batista the importance of asking any questions he might have and gave him time to reflect he indicated that he had one question for Ms Yun.
Mr Batista referred Ms Yun to an email he had sent to her on 15 March 2018 at 2.04pm wherein Mr Batista provided further information that he says substantiated his claims of harassment and which referred to his medical condition. The information in the email was detailed. Mr Batista questioned why this information was not taken into account or addressed in the findings of the Investigation. Ms Yun admitted in cross-examination that she had not seen the email but confirmed that it was sent to her email address. Mr Batista placed some emphasis on this email.
Nothing turns on this email in terms of both Ms Yun’s credibility and Mr Batista’s case generally.
The email which Mr Batista refers to was sent to Ms Yun and Mr Wilson after they had made the Investigation findings and communicated these findings to Mr Bennett: Ms Yun’s Affidavit at Annexure SY-28. The business case for Mr Batista’s termination was sent to Mr D’Angelus the morning of 15 March 2018 (at 7.15am): Ms Yun’s Affidavit at Annexure SY-29. The email Mr Batista referred to was sent on 15 March 2018 at 2.04pm. Hence, the decision to dismiss Mr Batista was made prior to Mr Batista sending the email.
There would have been no purpose in Ms Yun denying that she had seen the email in circumstances where the decision had already been made.
For this reason, the Court accepts Ms Yun’s evidence on this matter.
Overall, Ms Yun was highly credible. Her answers were concise and clear. There is nothing in the way Ms Yun gave her evidence that suggests to the Court that she is not a witness of truth.
Mr Bennett’s Evidence
The affidavit of Shane Bennett affirmed 1 November 2019 was read without objection. Mr Bennett appeared from Sydney by video-link for cross-examination. Mr Batista asked Mr Bennett one question in cross examination.
Mr Bennett’s affidavit evidence can be summarised as follows:
a)for the purposes of this this proceeding, it is relevant to note that Mr Bennett was Ms Rhodes’ direct manager from around June 2017 until December 2017. After this, Ms Rhodes reported to another manager. However, Mr Bennett continued to work closely with Ms Rhodes in his position as the Head of Credit which, relevantly, was responsible for ensuring Wells Fargo policies and procedures were followed so that losses were minimised and the relevant risk ratings and audits were satisfactory: Mr Bennett’s Affidavit at [1]-[8];
b)Mr Bennett first became aware of issues with Mr Batista in June 2017 when he was advised by Ms Rhodes that she had concerns with Mr Batista’s failure to adhere to the Policy: Mr Bennett’s Affidavit at [30]-[31];
c)Mr Bennett was sent a copy of the October Email by Mr Wilson on 16 October 2017: Mr Bennett’s Affidavit at [36]-[37];
d)Mr Bennett signed the Letter of Expectations and discussed the content of the Letter of Expectations with Mr Batista. Mr Bennett stated that the Letter of Expectations was not personal. Rather, it was intended to ensure that Mr Batista understood what was expected from him in the future: Mr Bennett’s Affidavit at [42]-[47];
e)Mr Bennett became aware of further issues with Mr Batista after the Letter of Expectations was sent. He became concerned that Mr Batista was not willing to change his workplace behaviour and was not satisfied the Letter of Expectations had had the desired effect. He, Ms Yun and Mr Wilson determined that the next appropriate step would be to issue Mr Batista the Written Warning. Mr Bennett signed the Written Warning: Mr Bennett’s Affidavit at [50]-[54];
f)on 25 January 2018, Mr Bennett, Mr Batista, and Mr Wilson had a phone conversation. Mr Wilson explained to Mr Batista that the Written Warning was being issued because of Mr Batista’s continued breaches of the Policy, his failure to follow up on unconfirmed coding in relation to a customer and because he had inappropriately challenged Ms Rhodes on this issue. Further, he had used inappropriate language (both in emails and phone calls with Ms Rhodes) and was late to work on 1 December 2017. Mr Bennett issued the Written Warning because he had significant concerns about Mr Batista’s behaviour and performance: Mr Bennett’s Affidavit at [55]-[58];
g)Mr Batista’s failure to conduct a coordinated stock check on a “watchlist” customer on 20 February 2018 was a “tipping point” for Mr Bennett in relation to Mr Batista’s employment. Mr Bennett sent an email to Ms Yun and Ms Rhodes indicating that he wanted Mr Batista to be stood down. He felt it necessary to take decisive action given the major risk that his conduct posed to Wells Fargo. Following consultation with Mr Wilson and Ms Yun, the decision was made to place Mr Batista on administrative leave: Mr Bennett’s Affidavit at [59]-[70];
h)Mr Bennett was not involved in the decision to commence the Investigation. The extent to which Mr Bennett was involved in the Investigation was limited to explaining to Ms Yun the importance of adherence to the Policy. On 14 March 2018, Mr Bennett was provided with the Investigation findings: Mr Bennett’s Affidavit at [71]-[76];
i)following receipt of the Investigation findings, Mr Bennett recommended that Mr Batista’s employment be terminated. Mr Wilson and Ms Yun supported him in relation to this recommendation and Mr D’Angelus provided the necessary approval. Mr Bennett believed this was necessary because Mr Batista had a history of repeated failures to escalate issues in accordance with the Policy, he demonstrated a lack of willingness to comply with the Policy, he displayed a poor attitude towards Ms Rhodes and these issues persisted notwithstanding the actions already taken: Mr Bennett’s Affidavit at [78]-[82];
j)Mr Bennett became aware of the FWC Application in early March 2018. None of the actions and decisions that Mr Bennett made were influenced by or made because Mr Batista had commenced those proceedings: Mr Bennett’s Affidavit at [77] and [86]-[87];
k)Mr Bennett denied that the October Email played any role in the actions he took. Nor did the FWC Application or any disability (as Mr Bennett was not aware of any disability until after Mr Batista’s employment was terminated): Mr Bennett’s Affidavit at [83]-[90];
l)while it is true that “escalation misses” happen from time to time, the frequency of Mr Batista’s breaches of the Policy, the seriousness of some of those breaches and Mr Batista’s unwillingness to change his behaviour justified the disciplinary action taken against him: Mr Bennett’s Affidavit at [93]; and
m)Mr Bennett does not recall ever advising Mr Batista that he would “look into” Mr Batista working from home on the first day of each month. Mr Bennett recalls having a conversation about office attendance with Mr Batista at least once in the course of Mr Batista’s employment and says that he would have explained to Mr Batista the purpose of that requirement. Without that requirement, team members would be isolated from the business for extended periods of time: Mr Bennett’s Affidavit at [97].
Mr Batista asked Mr Bennett whether he was aware that Mr Batista had, in accordance with the Policy, sought to postpone the inspection that he missed on 20 February 2018. It was this missed inspection that Mr Bennett described as “inexcusable” and which led to the Administrative Leave Decision and the Investigation commencing. Mr Bennett responded that he was not aware that Mr Batista had made any such request.
The Court considers Mr Bennett to be an entirely credible witness. The one question asked of him by Mr Batista, and his response, did not necessarily favour Wells Fargo. There was nothing in Mr Bennett’s evidence that causes the Court to doubt the truth of his statements.
Mr D’Angelus’ Evidence
The affidavit of Antony D’Angelus affirmed 31 October 2019 was read without objection. Mr D’Angelus appeared by video-link from San Francisco for cross-examination by Mr Batista.
Mr D’Angelus’ affidavit evidence can be summarised as follows:
a)Mr D’Angelus is the Senior Vice President and International Employee Relations Manager of Wells Fargo: Mr D’Angelus’ Affidavit at [2];
b)Mr D’Angelus first became aware of Mr Batista in October 2017. Ms Yun had advised Mr D’Angelus that there were concerns with Mr Batista’s conduct and performance. Mr D’Angelus was also aware, though not fully informed of the details, that Mr Batista had made allegations of bullying and harassment: Mr D’Angelus’ Affidavit at [9]-[10];
c)Mr D’Angelus was required to approve the decision to issue Mr Batista with the Written Warning. Mr D’Angelus reviewed the business case Ms Yun had prepared in relation to Mr Batista. Mr D’Angelus noted that he thought that “termination may be just a step too far” and that a “warning may be just right”. Mr D’Angelus made some minor amendments to the Written Warning prior to it being sent to Mr Batista. This included adding that it be indicated that Ms Rhodes version of events seemed “more probable”: Mr D’Angelus’ Affidavit at [11]-[16];
d)the only reason he issued the Written Warning was because of concerns about Mr Batista’s performance and conduct: Mr D’Angelus’ Affidavit at [17];
e)Mr D’Angelus took part in a meeting with Ms Yun, Mr Wilson and two other senior employees on 22 February 2018. Mr D’Angelus was advised that Mr Bennett had requested that Mr Batista be placed on administrative leave and Ms Yun and Mr Wilson indicated that they both supported this approach. Mr D’Angelus agreed with the recommendation. He did so because he was concerned about Mr Batista’s ongoing performance and conduct: Mr D’Angelus’ Affidavit at [18]-[26];
f)on 15 March 2018, Ms Yun provided Mr D’Angelus with the business case for Mr Batista’s termination. Mr D’Angelus approved the termination: Mr D’Angelus’ Affidavit at [27]-[30];
g)Ms Yun’s business case in relation to Mr Batista’s termination makes reference to Mr Batista being on “medications”. Mr D’Angelus was not aware of any medications that Mr Batista may have been taking. Nor did he seek any further details on this issue. Ultimately, the medication was not a factor he considered when approving the decision: Mr D’Angelus’ Affidavit at [31];
h)Mr D’Angelus’ actions were not influenced in any way by Mr Batista’s allegations against Ms Rhodes. Mr D’Angelus was generally aware that Mr Batista had made allegations but did not consider this issue when making the decisions he made: Mr D’Angelus’ Affidavit at [32] and [34];
i)Mr D’Angelus was aware of the FWC Application but this was not a factor he considered. Nor was it a reason for him making the decisions he made in relation to Mr Batista’s employment: Mr D’Angelus’ Affidavit at [35]; and
j)Mr D’Angelus was not aware of any mental disability that Mr Batista alleges he had. As he was not aware of any mental disability at the time of making the decision it did not actuate any decision that he made: Mr D’Angelus’ Affidavit at [36].
Mr Batista asked a number of questions of Mr D’Angelus in cross-examination. The questions were generally clear. It is apparent from Mr Batista’s cross-examination of Mr D’Angelus that Mr Batista was capable of meaningfully participating in these proceedings.
Mr D’Angelus’ evidence in cross-examination can be summarised as follows:
a)Mr D’Angelus bases any decision he makes on fairness. To an extent this depends on the advice he receives and any local legislation and/or policies that are applicable;
b)Mr D’Angelus was aware on 15 March 2018 that claims of mistreatment and harassment had been raised by Mr Batista. The final decision to dismiss Mr Batista was in no way related to this;
c)the decision to terminate Mr Batista did not in any way relate to the issue of medication. Rather, the decision was based entirely on Mr Batista’s conduct;
d)Mr D’Angelus read the FWC Application which made reference to a mental disability. However, when Mr D’Angelus approved the decision to terminate Mr Batista, he was not aware of any mental disability;
e)Mr D’Angelus’ addition to the Written Warning that the manager’s version of events was “more probable” was not a “biased statement”. Mr D’Angelus suggested the addition as it was what Ms Yun represented to him and Mr D’Angelus thought it was appropriate to add to the Written Warning as Ms Yun had not made any comment to that effect in the draft;
f)Mr Batista sought to determine whether Mr D’Angelus was aware that the missed escalations identified in the Warning Letter pre-dated the Letter of Expectations and that Mr Batista was on leave for the period after that. Mr D’Angelus accepted that there were no dates of the alleged breaches in the business case Ms Yun provided and his decision to issue the Written Warning was based on the matters that had been set out by Ms Yun;
g)Mr D’Angelus was asked whether he was aware that Mr Batista had sought approval to postpone the inspection which Mr Bennett described as “inexcusable” and led to Mr Batista being placed on administrative leave. Mr D’Angelus said that he was not aware that this was the case. Mr D’Angelus added, however, that it was that Mr Bennett had stated that Mr Batista was “doing whatever he wants and always comes with up an excuse for anything we raise” that he noted and found most concerning;
h)Mr D’Angelus was asked whether, in circumstances where he was aware of the substance of the October Email, that Mr Batista had repeated the claim to Ms Yun in February, that a FWC Application had been made and that that application made reference to a mental disability, any of these events triggered an inclination to “dig deeper” into the situation. Mr D’Angelus indicated that he just reviewed the evidence that was presented to him at that point in time; and
i)Mr D’Angelus confirmed that his approval of the decision to terminate Mr Batista did not refer in any way to the medications Mr Batista was receiving or anything in any way related to that.
Mr D’Angelus was a confident witness. His responses when asked why he did what he did were direct and communicated without hesitation. For example, Mr D’Angelus said that what was of concern to him was that Mr Batista was “doing whatever he wants and always comes with up an excuse for anything we raise” and not necessarily the breaches. There was nothing the evidence given by Mr D’Angelus to suggest that he was not a witness of integrity and truth.
Mr Batista made submissions questioning Mr D’Angelus’ credibility as a witness largely by referring to what Mr D’Angelus did not know. The Court does not consider Mr D’Angelus’ evidence to be lacking in credibility. Mr D’Angelus was frank in indicating that he acted on the advice and information that was provided by Ms Yun in telephone conversations and the business case that was presented to him. Mr Batista says that Mr D’Angelus was in possession of some information (such as the FWC Application which references his disability and medication) that ought to have led him to obtain all the “relevant facts”. Mr Batista also noted that his medical condition (or the extent of it) was not disclosed to Mr D’Angelus.
None of these matters undermine Mr D’Angelus’ evidence as to the reasons why he made the decisions he made. Whether Mr D’Angelus ought to have made further enquiries or not acted on the information of other people is not a matter that diminishes Mr D’Angelus’ credibility.
Consideration
Was there adverse action?
Wells Fargo concedes that adverse action was taken in terminating Mr Batista’s employment: the FW Act, s.342(1), item 1(a).
Wells Fargo does not admit that the Warning Letter, Administrative Leave Decision, the Investigation and the findings of the Investigation constitute “adverse action”. As Wells Fargo submits, Mr Batista seeks to impugn every step of the disciplinary process as “adverse action”.
It is for Mr Batista to prove that “adverse action” was taken.
Mr Batista pleads that the disciplinary action constituted adverse action as it injured him in his employment and/or altered his position to his prejudice: the FW Act, s.342(1), item 1(b) and (c).
The case law on whether the commencement of disciplinary action (including issuing a warning letter and commencing an investigation) constitutes “adverse action” is divergent (see: Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399 at [81]-[82] (“Jones”); Police Federation of Australia v Nixon [2008] FCA 467 at [48] (“Nixon”); Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No.3) [2013] FCA 525 at [114] (“Visy Packaging”)).
It is accepted, however, that a failure to afford natural justice during an investigation (which Mr Batista averts to in his submissions) is not “adverse action”: Jones at [116]-[122]. Overall, the Court is not concerned with the “process”. Rather, it is concerned with the “action” when determining if s.342 is met.
In Visy Packaging, it was alleged that commencing an investigation into an employee’s conduct, the suspension of an employee and the issuance of a final written warning were each “adverse action”.
Here, the Written Warning contained the following paragraph:
The above matters are viewed seriously and you are hereby being issued with a Formal Warning. The company will institute a more severe form of disciplinary action against you which could include the termination of your contract of employment should there be repeated acts of misconduct on your part.
The Court finds that the Written Warning constitutes adverse action pursuant to s.342(1), item 1(c) of the Act. As a result of the Written Warning, any conduct engaged in by Mr Batista would be “subject to regular reviews” and further conduct “could lead to a more serious form of disciplinary action” than an employee who had not received a written warning would be subjected to: Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [95].
The circumstances in which an investigation into an employee’s performance and conduct can constitute “adverse action” will depend on the particular circumstances of the case: Jones at [80].
It was held in Visy Packaging that the commencement of the investigation was adverse action as it reduced the security of future employment (at [103]). It was said that an investigation which threatens the possibility of dismissal (as it did in that case) will operate to reduce the security of future employment of the employee concerned. Here, the letter Mr Batista received outlining the scope of the Investigation indicated that “corrective action” may be taken. “Corrective action” can, and did in this case, equate to dismissal. On this basis, the Court finds that the Investigation (both the commencement of it and the findings of it) constitute adverse action.
In relation to the suspension, in Visy Packaging it was also held that this action was “adverse”. The same reasoning applies here. Mr Batista, like the applicant in Visy Packaging, was advised that he could not contact “any team members”: Mr Wilson’s Affidavit at Annexure JW-40.
While the correspondence Mr Batista received relating to his being placed on administrative leave indicated “…Administrative Leave is not a form of corrective action in itself.”, and thus could be considered not to have reduced the security of Mr Batista’s future employment, the Court is nonetheless satisfied that it was “adverse action”.
It can be accepted that Wells Fargo had a right to “suspend” Mr Batista (Clause 11 of Mr Batista’s employment contract) and Mr Batista also continued on full pay during the period of administrative leave (such that it can be said he was not injured or his position altered). However, in Nixon at [46], it was noted:
However, in my view, ‘alteration’ in this context requires a substantive change in, or reduction of, the advantages enjoyed by the employee in that capacity. Merely to be subject to a disciplinary inquiry or investigation does not, without more, constitute such a substantive change. Examples of relevant substantive changes include reduction of salary, deprivation of overtime, diversion to a less congenial shift, forced taking of leave, transfer to lower duties or suspension from duties.
The Court finds that, when considered together, the Investigation and Administrative Leave Decision created a real and substantial, not merely possible or hypothetical, alteration of Mr Batista’s position: Community & Public Sector Union v Telstra Corporation Ltd [2001] FCA 267 at [17]-[18]. They were adverse action.
Overall, the Court is satisfied that adverse action has been taken against Mr Batista in the form of the disciplinary process and his dismissal.
Did Mr Batista exercise a “workplace right”
Mr Batista filed an application to “stop bullying” and Wells Fargo concedes that the FWC Application was the exercise of a workplace right under s.341(1)(b) of the FW Act.
In relation to the October Email, the complaint Mr Batista made during the November Discussions and his repetition of the bullying and harassment allegations to Ms Yun on 20 February 2018, Mr Batista must satisfy the Court that these were “complaints” as defined in s.341(1)(c) of the FW Act.
The contemporaneous documentation (being the email exchanges between the decision-makers, the business case and the notifications provided to Mr Batista) make it clear that, on each occasion, Wells Fargo was concerned about Mr Batista’s performance and conduct. For example, in the Written Warning it is stated that “…the above matters are viewed seriously and you are hereby issued with a Formal Warning. The company will institute a more severe form of disciplinary action…should there be repeated acts of misconduct on your part”. The “above matters” did not include the complaints. To the extent that the complaints were referred to, it was an ancillary statement at the end of the letter after Mr Batista had been advised of the reason for the Written Warning and what was expected of him going forward.
Further, in the letter advising Mr Batista of the Administrative Leave Decision, it is clearly stated “… you will proceed on a period of Administrative Leave pending an investigation into recent shortcomings with your behaviour and your performance of the duties and responsibilities of your role”. This is corroborated by Mr Bennett’s email which indicates that the “missed stock check” showed defiance towards the Policy and a risk that “cannot keep going”.
The Court accepts that reference is made to the complaints in the letter outlining the scope of the Investigation and in the letter outlining the findings of the Investigation and advising Mr Batista of his dismissal.
The Court also accepts that in the business case in relation to Mr Batista’s dismissal reference was made to Mr Batista’s allegation against Ms Rhodes, the FWC Application and “medications”. However, the bulk of the evidence indicates that these references were not the substantial or operative reason, or a reason at all, for any of the adverse action taken. They were, in effect, ancillary matters that were addressed as part of the process and were aimed at ensuring that Mr Batista’s concerns were given due consideration and fair process.
The mere reference to a matter does not mean that it was the substantial and operative factor for the decision or a factor at all. The substantial and operative factor here was Mr Batista’s conduct and performance. As noted in the letter outlining the findings:
As part of the investigation, I have taken into consideration the relevant broad considerations as mentioned in the second paragraph. I have reached the following conclusions based on these:
a) It is imperative that team members follow lawful and reasonable instructions from their manager, including instructions in line with company processes and procedures. In situations where a team member and his or her line manager are in different work locations, the result of which is that it is impractical for close supervision and face-to face contact, it is more the important that the manager can have the trust and confidence that instructions are followed, and for any differences to be resolved through professional and respectful communications.
a) From the investigation, I have established that the Procedures (in particular, the escalation process) is a critical part of the early detection of potential risk in the Wells Fargo Commercial Distribution Finance portfolio for the following reasons:
a. Stock checkers have to notify by phone first when scenarios arise that fall under specific given exception codes and need to be validated to understand the true position of the dealer.
b. If the information is not provided in a timely manner the risk to the business is significantly increased as they are unable to folly investigate the position and quickly respond to any potential issues.
c. Escalation emails are also shared with the portfolio management team so when they approach the dealer they have additional information which may not be visible when reviewing the PCS system queue.
Following the Procedures is a critical component of the FSCR responsibilities as it allows the wider business to focus its attention on potential high risk events within the business portfolio. Wells Fargo has experienced cases where team members have failed to escalate and these have resulted in significant financial loss. This is the core purpose why the FSCR role exists to mitigate against these losses.
You have a history of repeated failure to escalate issues in line with the Procedures, you have shown a lack of understanding and willingness to comply with these critical Procedures, and you have a poor attitude and behavior towards your manager when she requested that you work within these Procedures. These problems persist despite verbal coaching on 30 November 2017, followed by a letter to remind you from your line manager dated 6 December 2017; and following that, the written warning dated 23 January 2018.
The conclusion is that the company is no longer able to have the necessary trust and confidence that you are able to fulfil the core purpose of the FSCR role. To the contrary, your continued employment will expose the company to an unacceptable level of risk.
(Without alteration)
Consistent throughout the documentary evidence in relation to each decision is a central concern about Mr Batista’s poor behaviour and poor performance. This also supports the evidence of each of the decision-makers.
In relation to any matters which might suggest that adverse action was taken for a prohibited reason, Mr Batista also drew attention to the fact that the adverse action was not taken until after he had sent the October Email.
This is accurate. The first instance of adverse action occurred in late January – relevantly, after the October Email and after the November Discussions. In Mr Batista’s case, the minor breaches only became a problem or “issue” after he had made the complaint against Ms Rhodes.
Mr Batista also drew attention to the fact that his employment was terminated shortly after he had filed the FWC Application.
Proximity does not automatically assume a causal connection: BHP Coal.
Here, the Court does not find that the proximity between the complaints and the commencement of the adverse action and the FWC Application and the adverse action undermines the evidence of any of the witnesses.
The Court does not accept that the fact that the “formal” nature of the action taken against Mr Batista occurred after the October Email is significant. Ms Rhodes had contacted Mr Wilson and Mr Bennett on a number of occasions to advise them of issues with Mr Batista: Ms Rhodes Affidavit at Annexure TR-14, Annexure TR-21 and Annexure TR-22. More importantly, Ms Rhodes indicated on 6 October 2017 that she felt a formal performance management plan was required for Mr Batista. This was prior to the October Email. The Court gives this some weight as it suggests that concerns were raised and formal action was being requested prior to any of the complaints occurring.
As for the FWC Application, there is nothing other than proximity to the Investigation findings and Mr Batista’s termination to connect these matters. This is not enough. The only reference to the FWC Application in the “business case” proposing dismissal was a reference to the fact that Mr Batista had made the FWC Application. Each of the decision-makers denied the FWC Application had any bearing on their decisions. The Court accepts that evidence.
Mr Batista also made submissions that the entire process was flawed and that, while this is not a “fairness” case, the lack of fairness should lead to an inference that the adverse action was taken for a prohibited reason. Mr Batista referred to:
a)the lack of information that was passed on to the decision-makers (namely Mr D’Angelus);
b)the fact that the process was open to bias and was biased. Ms Rhodes provided all of the information and she may not have passed on all of the emails;
c)the fact that issues raised in relation to Mr Batista’s performance were inconsistent with the Policy. For example, Mr Batista had the discretion to complete stock checks by a particular time therefore missing a stock check was not a breach;
d)the fact that other employees made the same mistakes and were not disciplined in the same way; and
e)the fact that Mr Batista requested documents for his case and they had not been provided to him. This, he says indicates that things may have been hidden.
None of these matters undermine the evidence given by the decision-makers.
The process undertaken by Wells Fargo was objectively fair, thorough and detailed. On many occasions Ms Yun indicated that she would need to hear Mr Batista’s side, sought clarification on particular matters and disclosed matters that assisted Mr Batista. For example, Ms Yun noted that it appeared that one of the Policy breaches may have related to another employee and sought clarification before she considered this issue as being relevant to Mr Batista. On another occasion (when Ms Rhodes indicated that Mr Batista’s work log indicated that he had done “nowhere near a full-day’s work”), Ms Yun responded that she had spoken to Mr Batista for over one hour on that day and that this might account for the failure to work a full day: Ms Yun’s Affidavit at Annexure SY-21.
Mr Batista took part in the process and had an opportunity to provide his explanations and concerns.
It is true that Mr Batista requested certain documents from Wells Fargo and Wells Fargo requested other documents in exchange. It appears that Wells Fargo’s concern with some of the documents that were requested related to relevance. This does not indicate that Wells Fargo was seeking to “hide” something.
As for the other matters raised, there is simply no evidential basis for these matters.
Put simply, the fact that Mr Batista made complaints and filed the FWC Application were not the reasons for the adverse action. Wells Fargo undertook a fair and thorough process to ensure that Mr Batista’s concerns were investigated and resolved. This process and the investigation undertaken was entirely distinct from the views formed about the conduct and performance of Mr Batista – views that were the only reason for the adverse action ultimately taken.
The Court is satisfied that, on the balance of probabilities, adverse action was not taken against Mr Batista for a prohibited reason. Adverse action was taken against Mr Batista for an entirely lawful reason (i.e., that his conduct and performance had caused Wells Fargo to lose the necessary trust and confidence in him).
The discrimination claim
To summarise, Mr Batista alleges that adverse action was taken against him because his anxiety and depression rendered him unable to attend the office (or made it more difficult for him to attend the office) at 9.00am on the first day of each month. That is, the inability (or difficulty) to attend the office was a “manifestation” of his disability. As Mr Batista’s failure to attend the office was expressly referenced in the Written Warning and was a part of Mr Batista’s conduct and performance (which was a reason for the decisions to take adverse action being made), it is alleged that a part of the reason for the adverse action being taken was for a prohibited reason.
Further, while not pleaded per se, Mr Batista in his closing submissions stated that his disability had an adverse effect on his performance due to the fatigue and sleeping difficulties that he suffered (a manifestation of his disability). Mr Batista’s written submissions refer to the fact that his Employment Contract states that an employee cannot be dismissed if the employee neglects or otherwise fails to carry out lawful instructions because of “accident or ill health”. Mr Batista appears to submit that his performance and conduct issues were “because” of his ill health.
In relation to his claim under s.351 of the Act:
a)Mr Batista must demonstrate that he had, at the relevant time, a physical or mental disability: Tattsbet Ltd v Morrow [2015] FCAFC 62 at [119]; and
b)Mr Batista must satisfy the Court that it was his disability or a “manifestation” of his disability that he was not able to attend the office at 9.00am on the first day of the month. Alternatively, Mr Batista must satisfy the Court that it was a manifestation of his disability that caused the many issues he has outlined.
The evidence makes it clear that in 2016 concerns were raised about Mr Batista’s mental wellbeing. Mr Batista was referred to the Employee Assistance Program and Mr Wilson and Ms Rhodes were aware that Mr Batista was on medications (that were “non-drowsy”) and attending counselling.
The medical certificate that Mr Batista provided at this time indicated that Mr Batista was “unfit for work” between 30 September 2016 and 7 October 2016: Ms Rhode’s Affidavit at Annexure TR-10. Relevantly, it did not indicate what Mr Batista’s condition was and what his treatment plan included.
Mr Batista’s Affidavit also contains a medical certificate which he appears to have sent to Ms Yun and Mr Wilson on 13 March 2018 at 9.18am. The medical certificate states:
Mr Nuno Batista has a medical condition in anxiety with depression for which he has been treated from this office since September 2016. He has been trailed on Zoloft, Pristiq and now parozetine. He has been referred for counselling and also has a pending referral for a psychiatric assessment.
(Without alteration)
Notwithstanding the lack of probative evidence one might expect in proceedings of this sort, the Court (noting that Mr Batista was unrepresented) is satisfied that Mr Batista had anxiety and depression at the relevant time and, as such, suffered from a disability.
The next issue in the context of this case is the effect, if any, of the disability on Mr Batista’s ability to perform his duties.
The Court does not accept that it was a “manifestation” of Mr Batista’s disability that he could not attend work on the first day of each month. Relevantly:
a)Ms Rhodes, who was present in the November Discussion, denies Mr Batista raising at any time a request to work from home for “health reasons”. This corroborates Mr Wilson’s affidavit evidence that no request was ever made: Ms Rhode’s Affidavit at [212];
b)in correspondence dated 6 October 2017, Mr Batista sent an email stating that his reason for not attending the office was as follows:
This is one of the points I raised with Shane when he was in Perth. When I have to go to the office it’s a 120 kilometre round trip just to do things that can be done from home. We email everyday from home so why can’t we do the same for our admin day. The admin day is just a day to get the admin stuff out the way.
This is just another example of how our job is being controlled in every aspect.
By not going into the office, I get to save on fuel, work and still interact with family which is a sma11 compensation for all the time we have to spend away from home;
c)Ms Yun’s unchallenged evidence was that at no time did Mr Batista indicate he could not, or did not, attend the office for medical reasons. Rather, Mr Batista indicated that he could complete the administrative tasks from home: Ms Yun’s Affidavit at [11] and [70(a)];
d)Mr Batista’s Affidavit states that he raised his need to attend the office with Mr Bennett at some time between 29 September and 5 October 2017. Mr Batista specifically stated that he raised concerns with Mr Bennett about the travel to the office. He does not say he indicated to Mr Bennett that medical appointments made it difficult for him to attend;
e)accepting that reference is made in Annexure 6 of Mr Batista’s affidavit to Wells Fargo being aware that he wished to be in Perth at certain times to seek counselling (and that this was accommodated), the evidence nonetheless only goes so far as to say that Mr Batista attended counselling. It does not indicate that Mr Batista was unable to attend the office on the first day of the month specifically because of his treatment;
f)in cross-examination when it was put to Mr Batista that he had never indicated that he could not attend the office because of his mental illness, Mr Batista indicated that he asked to “do all the admin work from home” and that the “plan was” that he could “pop down” to his psychologist. The fact that Mr Batista indicated the “plan was” to undertake medical appointments suggests to the Court that Mr Batista did not actively seek the “accommodation request” on the basis of his disability. Rather, he simply thought it convenient to seek the treatment on the day where he could do the administrative work from home;
g)there is no medical evidence before the Court to suggest that a manifestation of Mr Batista’s anxiety and depression was that he could not attend work on the first day of the month. Insofar as Mr Batista submitted that he suffered fatigue, this is not referred to in the evidence. The Court cannot draw inferences of whether this was a “manifestation” or consequence of the disability; and
h)on the two occasions that it was not in issue that Mr Batista did not attend the office (in November and February), Mr Batista’s reason for not attending was that he worked from home or he had permission not to attend. It was not because he was receiving medical treatment for an illness.
The Court is not satisfied that Mr Batista made any accommodation request or indicated to Wells Fargo that his inability to attend the office was “because of” his mental illness or a manifestation of it.
The weight of the evidence supports the finding that Mr Batista did not attend the office because he felt it was unnecessary to travel for tasks that could be completed at home. The Court so finds.
It is also the case that there is no evidence to suggest that Mr Batista ever advised he had difficulty attending the office because of his disability. Hence, the Court is also satisfied that the decision-makers were not aware that the inability of Mr Batista to attend the office at 9.00am was in any way attributable to a mental disability. In the absence of any knowledge that Mr Batista’s inability to attend the office was a symptom of a disability, the Court cannot find that adverse action was taken because of this: RailPro Services Pty Ltd v Flavel [2015] FCA 504 at [128] (“RailPro”).
Mr Batista’s claim, insofar as it relates to his inability to attend the office at 9.00am, is rejected. Mr Batista has failed to satisfy the Court that this was a “manifestation” of his mental disability that he could not attend the office.
As for whether it was a “manifestation” of Mr Batista’s disability that had an adverse effect on his performance, again there is a lack of evidence to suggest this was the case. Mr Batista submitted that it was well-known that people with his disability are impacted and their performance and memory suffer. As Wells Fargo submit, it is not for the Court to take judicial notice of matters such as these. It was confirmed in Pallett v Commonwealth of Australia, Department of Human Services - Centrelink [2017] FCA 1132 at [58] that the Court is not equipped to determine whether a person’s illness or disability had an effect on their capacity to work.
Here, there is no material before the Court to indicate the effects of Mr Batista’s disability on his performance or the medications Mr Batista was taking (such as fatigue or memory loss).
In Western Union at [137]-[138], the Court stated as follows:
137. We agree with Kerr J that it is not every consequence of a disability which is to be regarded as a ‘manifestation’ of the disability such that the consequence is to be regarded as comprising a part of the disability. The question is what the disability is, which does not necessarily equate to what the disability causes. The name given to a medical condition merely identifies the condition and not the collection of physiological or behavioural or other changes or symptoms which comprise the condition. For example, behaviours associated with a particular mental illness might be shown to be a ‘manifestation’ of the illness (harmoniously with the definition of “disability” in the Disability Discrimination Act). However, the fact that the collection of attributes which comprise the disability result in incapacity for work would not necessarily compel the conclusion that the incapacity for work was part of the disability as opposed to being a consequence of having the disability. In many contexts, for example workers’ compensation, there is a distinction between incapacity and the causes of that incapacity, namely the underlying medical condition. The question in that context would more likely be whether the disability caused incapacity, rather than whether the incapacity was part of the disability.
138. The present legislative context does not require the conclusion that, if a disability has an effect on capacity for work, that effect must be part of the disability. In our respectful view, the primary judge assumed that Mr Robinson’s incapacity for work was caused by an underlying mental condition and then reasoned that the incapacity therefore must be part of the mental condition such that Ms Pickles took action because of the mental condition, rather than identifying the disability and what it comprised and asking whether Ms Pickles took action because of the disability so characterised.
There is insufficient evidence before the Court to find that Mr Batista’s assertions of forgetfulness or fatigue were manifestations of his mental disability.
Further, the Court is not satisfied that Wells Fargo was aware that any disability existed which might have manifested itself in the ways claimed by Mr Batista.
Ms Rhode’s evidence did indicate that she was aware that Mr Batista was “on medication” and was “seeing a counsellor”: Ms Rhodes’ Affidavit at [207]. This information was passed on to Mr Wilson. Ms Yun admits that Mr Batista advised her that he had anxiety in the course of the Investigation. It was also disclosed by Mr Batista to Ms Yun that he was taking medication that he thought may make him “forgetful”. It was also indicated in the FWC Application that Mr Batista claimed to suffer from anxiety and depression.
Both Mr Wilson and Ms Yun denied having seen the medical certificate referred to at [179] above. Their affidavit evidence indicated that they had attempted to locate the email but had been unable to find any such email. The Court does not doubt their evidence in this regard. In these circumstances, there was nothing other than Mr Batista’s assertion that he had anxiety, that he was stressed and that he was on medications.
While it is no impediment that Mr Batista had not communicated a “formal diagnosis” the fact remains that it is not enough for a decision-maker to have observed (or had the applicant claim to suffer from) symptoms and behaviours consistent with a disability of some type: RailPro at [128]. Here, all the decision-maker observed were symptoms and behaviours. This does not amount to knowledge.
In addition to the matters discussed at [129]-[173] above about the reasons for the adverse action, the Court also makes the following remarks about why the Court is not satisfied the adverse action was taken because of any disability.
In Western Union, an employer terminated an employee for two reasons:
a)failing to attend a medical appointment as requested; and
b)concern about the employee’s capacity to return to work.
The employee had provided medical certificates indicating that he had anxiety and depression. The decision-maker denied that the employee was terminated because of any mental disability. Rather, it was solely for the reasons set out above. The primary judge accepted that evidence. However, the primary judge found that no distinction could be drawn between the applicant’s capacity to return to work and his disability. Hence, the employer had breached s.351.
On appeal, the Full Federal Court found the primary judge had erred as they had assumed that the employee’s incapacity for work was caused by an underlying mental condition. The primary judge used that assumption to reason that the incapacity was, therefore, part of the mental condition and that adverse action was thus taken because of the mental condition. The primary judge was found to have erred in finding that the incapacity and disability could not be severed.
At [143] of Western Union the Court stated that:
Further, if the effect of Mr Robinson’s mental condition on his ‘capacity’ for work was a part of Mr Robinson’s mental disability because it was a ‘manifestation’ of it and Ms Pickles was shown to have thought that his incapacity was nothing more than the manifestation of his mental disability, that did not necessarily require the conclusion that Ms Pickles must have terminated Mr Robinson’s employment because of his mental disability. The two considerations could be severed or disaggregated.
After citing the facts and relevant passages from Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76, the Court stated:
152. In the present case, as Kerr J explains, the primary judge accepted in its entirety the testimony of Ms Pickles, who was extensively cross-examined, as to why Mr Robinson’s employment had been terminated. She swore that she did not terminate Mr Robinson’s employment because he suffered a mental disability. The primary judge expressly found that the reasons given by Ms Pickles in her 8 May 2017 letter and in her affidavit were the genuine reasons for the termination of Mr Robinson’s employment: J[30], [33], [34], [56]-[70]. His Honour expressly accepted Ms Pickles evidence given in her affidavit, and in cross-examination, and found that she gave “a truthful and accurate account of her reasons for terminating the employment of Mr Robinson”: at J[68]. That was “the totality of the operative and immediate reasons” for the termination of employment (cf Gageler J in BHP at [90]).”
153. Adopting the primary judge’s summary of Ms Pickles’ second reason for termination (J[36]), having accepted that Ms Pickles genuinely believed that action should not be taken because of a disability (J[56]), his Honour should have accepted that Ms Pickles was concerned with respect to Mr Robinson’s capacity for work and that the underlying causes of that incapacity played no role in Ms Pickles’ decision.
Here, each of the decision-makers expressly denies that adverse action was taken because of any disability Mr Batista has (noting that they were not aware of any disability). The Court accepts that evidence. It is noteworthy that on previous occasions when Mr Batista had experienced difficulties, he was referred to the Employee Assistance Program. This indicates to the Court that Wells Fargo is proactive in supporting their employees.
Wells Fargo’s employment contract also prevents an employee from being terminated for reason of accident or ill health. In the Court’s view, this indicates that Wells Fargo does not believe in taking adverse action because of a disability.
Here, Mr Batista’s conduct and performance issues can be severed or disaggregated from any disability he has. The cause of Mr Batista’s conduct and performance issues played no role in any of the decisions ultimately made. It was entirely the loss of trust and confidence in Mr Batista to carry out his role that resulted in him being terminated.
Overall, the Court is not satisfied that adverse action was taken because of Mr Batista’s disability or because of any manifestation of that disability. The s.351 claim must, accordingly, be dismissed.
For completeness, had it been proven that adverse action was taken because of Mr Batista’s disability (i.e., that the conduct and performance issues were a manifestation of his disability and the decision-makers were aware of the disability), the Court finds that s.351(2)(b) of the FW Act would have exempted Wells Fargo from liability.
Here, the need to comply with the Policy was critical to Wells Fargo’s operations. It cannot be said that if compliance with the Policy were dispensed with, or that the frequency of errors made by Mr Batista were acceptable, the position would essentially be the same: Qantas Airways Limited v Christie (1998) 193 CLR 280.
Mr Bennett’s Affidavit indicates that adhering to the Policy is “essential” to minimise potential loss. While there is room for error (Mr Bennett’s Affidavit at [93]), the scale and frequency of Mr Batista’s errors indicate that there was significant concern that he was putting the business at risk. It is essential to Wells Fargo’s business model that a person in Mr Batista’s position comply with the Policy. Hence, it was an inherent requirement of Mr Batista’s position as a stock checker that he adhere to the Policy or demonstrate that he was able to do so consistently.
In relation to the requirement to attend the office at 9.00am each month, there is evidence that strict attendance at the office was not required on every occasion. For example, Ms Rhodes’ evidence indicates that on one occasion a staff member did not attend as he was attending to his wife who had been in hospital.
Mr Batista further argues that attendance at the office was “relaxed” for a period of time.
The unchallenged evidence of Ms Rhodes and Mr Bennett was that attendance at the office was a “requirement” and was “important” as without it, employees would be isolated from the business for extended periods of time. Mr Wilson’s evidence (at [46]-[47]) was that the office planning day was “essential” as this was where stock checkers coordinated schedules (an important event given the many shared territories).
The Court is, on the balance of probabilities, satisfied that it was an inherent requirement of Mr Batista’s position that he attend the office on the first day of the month. Without the coordination of rosters (which is what the first day of the month was used for), the position’s requirements would be difficult to fulfil because of Wells Fargo’s business model. Again, the Court focuses on the high-risk nature of Wells Fargo’s business model and the need for stock checkers to remain up to date in circumstances where most of their work is undertaken “on the road”.
In light of the above, the Court is satisfied that even if the Court had determined that the company had taken adverse action for a prohibited reason, s.351(2) would nonetheless apply to the circumstances of this case.
Other matters
Mr Batista referred to a number of ancillary matters that the Court feels it ought to address.
First, Mr Batista claims that he was treated differently to other employees in the same situation. Other employees who had also breached the Policy or caused significant loss, did not face the same disciplinary action as Mr Batista.
Mr Batista advanced no evidence to support this claim. He claimed, from the bar table, that there were others who had caused major losses for the company and that his record had to be considered in context.
The evidence before the Court suggests that Mr Batista was not treated any differently from other employees. For example:
a)Ms Rhodes followed up on other employees in the same way she followed up on Mr Batista: Ms Rhode’s Affidavit at Annexure TR-33;
b)disciplinary action, in the form of a written warning, had previously been taken against an employee for missed escalations: Ms Yun’s Affidavit at Annexure SY-15; and
c)when asked why disciplinary action had not been taken against an employee with five missed escalations (where Mr Batista had 8 over the same period of months), Ms Rhodes explained:
I have been addressing these on a case by case with M - and I have had a discussion with Shane previously around M and managing his performance and keeping an eye on him going forward. Nuno’s warnings were not based solely on missed escalations its all the other issues and behaviors as well, M’s behavior outside of the escalation issues is not really an issue and when the issue is raised with him he understands and doesn’t dispute what he needs to do and why this is also being addressed in his performance review. There is a huge difference between Nuno and M and I don’t feel like M yet warrants formal HR action.
M has never ignored a direct instruction or failed to attend the office when asked or been abusive towards me in any way which is a huge basis of the actions against Nuno and also if you compare escalation misses as a percentage of completed stock checks, Nuno’s percentage would be much higher as his number of completed stock checks is quite a bit less.
Here, there is nothing to suggest that Mr Batista was treated differently to other employees.
Second, while the Court has addressed this above, Mr Batista variously claimed that the disciplinary process was biased and unfair. He pointed to the fact that Ms Rhodes could manipulate the process and selectively provide information, Mr Bennett was not advised that Mr Batista had sought to “escalate” a matter by phone and he received no response and Mr D’Angelus was not provided with information (such as his illness and medications).
Unfortunately, these matters are akin to those seen in an unfair dismissal case – as opposed to a general protections claim. Whether or not the process was flawed is not significant in the context of these proceedings and, in any event, the Court does not consider that the process was in fact unfair or biased. The Investigation was thorough, Mr Batista was given a number of opportunities to take part in the process and there is nothing to suggest that Ms Rhodes was biased or selective in relation to the information that she provided.
Third, Mr Batista made a number of references to an incident (referred to in the Written Warning) where it is alleged that he swore at Ms Rhodes.
Mr Batista maintains that he did not swear at Ms Rhodes; rather, he swore out of frustration at the situation he was dealing with. The Court accepts that Mr Batista did not swear at Ms Rhodes. Nonetheless, Mr Batista did swear during the conversation and expressed some frustration about the subject being discussed. While Mr Batista was not acting with malice, this was nonetheless unsatisfactory behaviour.
Fourth, one of the reasons for Mr Batista’s dismissal was that he had failed to attend the office at 9.00am on 1 February 2018. Mr Batista refuted the allegation that he had failed to attend the office in February. He said he had permission not to attend. The Court accepts this. However, Mr Batista indicated that he would be undertaking stock checks as opposed to attending the office on 1 February 2018. He did not undertake any stock checks. Hence, the issue was not whether Mr Batista attended the office (the Investigation found that he had consent not to attend). Rather, it was that Mr Batista did not conduct the stock checks that he was rostered to undertake (instead of attending the office). Hence, while Mr Batista may believe that any reference to this being a “serious infraction” in the letter of termination was wrong, the Court does not give it any weight as evidence suggesting that adverse action was taken for a prohibited reason. It is simply an example of Mr Batista not undertaking the tasks which he had rostered himself to complete.
Finally, the Court accepts that Mr Batista has spent 12 years with Wells Fargo and feels a sense of injustice in relation to the way things have transpired. The Court feels considerable sympathy for this gentlemen. This litigation has clearly taken its toll on him and his family. Unfortunately, while Mr Batista may feel embarrassed, betrayed, humiliated and exhausted by these proceedings and what occurred during his employment, the Court does not consider that any of the actions taken against him were for a prohibited reason.
Conclusion
The Court is satisfied that no adverse action was taken against Mr Batista for a reason prohibited by Pt.3-1 of the FW Act.
The application is, accordingly, dismissed.
The Court notes that s.570 of the FW Act provides that the Court may only award costs in certain circumstances. The threshold is high. Any application for costs must be made by way of application in a case with supporting affidavit.
I certify that the preceding two hundred and twenty-six (226) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 15 April 2020
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