FEDERAL COURT OF AUSTRALIA
Borg v Victoria University [2015] FCA 252
Citation: Borg v Victoria University [2015] FCA 252 Parties: DR VICTORIA BORG v VICTORIA UNIVERSITY (ACN 83 776 954 731) File number: VID 1092 of 2013 Judge: TRACEY J Date of judgment: 26 March 2015 Catchwords: INDUSTRIAL LAW – whether failure to re-engage employee taken because the employee had exercised a workplace right to complain to the employer and external bodies – whether failure to re-engage employee within Item 1 or Item 2 of the definition of “adverse action” Legislation: Equal Opportunity Act 2010 (Vic)
Fair Work Act 2009 (Cth)
Occupational Health and Safety Act 2004 (Vic)Cases cited: Attorney-General (NSW) v Perpetual Trustee Company Ltd (1952) 85 CLR 237 – cited
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 – cited
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25 – cited
Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17
Victoria v The Commonwealth (1996) 187 CLR 416 – citedDate of hearing: 10, 11, 12 and 13 March 2015 Date of last submissions: 13 March 2015 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 69 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr N Harrington Solicitor for the Respondent: Colin Biggers & Paisley
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 1092 of 2013
BETWEEN: DR VICTORIA BORG
ApplicantAND: VICTORIA UNIVERSITY (ACN 83 776 954 731)
Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
26 MARCH 2015
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 1092 of 2013
BETWEEN: DR VICTORIA BORG
ApplicantAND: VICTORIA UNIVERSITY (ACN 83 776 954 731)
Respondent
JUDGE:
TRACEY J
DATE:
26 MARCH 2015
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The applicant, Dr Victoria Borg, taught at Victoria University (“the University”) between 1997 and 2012. She taught a range of subjects in different departments. She was engaged, under a series of contracts, as a sessional teacher. This meant that she was a casual rather than a permanent employee of the University.
Early in 2013 she sought a further engagement as a sessional teacher in the University’s Faculty of Business and Law. She proposed that she should teach a unit entitled “International Human Relations” (“IHR”), a subject in which she had previously tutored, most recently in Semester 2 of 2012.
The co-ordinator of the subject area, Mr Austin Norman, decided not to engage Dr Borg.
Dr Borg then commenced the present proceeding alleging that, in failing to re-engage her, the University has taken adverse action against her in contravention of s 340 of the Fair Work Act 2009 (Cth) (“the Act”). Dr Borg also complained that the University had contravened…
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- Borg v Victoria University [2015] FCA 252
- Case
- [2015] FCA 252
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CaseChat Overview and Summary
The case of Borg v Victoria University was brought by Dr Borg against the University for failure to re-engage her as an employee. Dr Borg alleged that the University's actions constituted adverse action in contravention of section 340 of the Fair Work Act 2009 (Cth) and also breached the Equal Opportunity Act 2010 (Vic). Dr Borg's dispute with the University began in 2009 when she alleged that she had been bullied, harassed, discriminated against, and victimised during a study tour to Malta. After investigations by both the University and external bodies found her allegations unsubstantiated, Dr Borg was not re-engaged by the University when her last sessional engagement expired in November 2012.
The court had to decide whether the University's failure to re-engage Dr Borg constituted adverse action under the Fair Work Act and if it fell within the definition of adverse action provided in Items 1 or 2 of section 340. Dr Borg argued that her previous complaints and the University's handling of them led to her non-reengagement. The University maintained that Dr Borg was not re-engaged for legitimate reasons unrelated to her complaints. The court considered the evidence provided by Dr Borg and the University, including the investigation reports and the University's internal policies and procedures.
The court found that Dr Borg's allegations of bullying, harassment, discrimination, and victimisation were not substantiated by the evidence. The court also determined that the University's decision not to re-engage Dr Borg was not related to her previous complaints but was based on legitimate reasons, such as the University's assessment of its staffing needs. Therefore, the court concluded that the University's actions did not constitute adverse action under the Fair Work Act. The court dismissed Dr Borg's claims and found in favour of the University.
The final order of the court was that Dr Borg's application be dismissed. The court's decision was based on the evidence presented and the application of the relevant legal provisions. The University was not found to have contravened the Fair Work Act or the Equal Opportunity Act in its dealings with Dr Borg.
The court had to decide whether the University's failure to re-engage Dr Borg constituted adverse action under the Fair Work Act and if it fell within the definition of adverse action provided in Items 1 or 2 of section 340. Dr Borg argued that her previous complaints and the University's handling of them led to her non-reengagement. The University maintained that Dr Borg was not re-engaged for legitimate reasons unrelated to her complaints. The court considered the evidence provided by Dr Borg and the University, including the investigation reports and the University's internal policies and procedures.
The court found that Dr Borg's allegations of bullying, harassment, discrimination, and victimisation were not substantiated by the evidence. The court also determined that the University's decision not to re-engage Dr Borg was not related to her previous complaints but was based on legitimate reasons, such as the University's assessment of its staffing needs. Therefore, the court concluded that the University's actions did not constitute adverse action under the Fair Work Act. The court dismissed Dr Borg's claims and found in favour of the University.
The final order of the court was that Dr Borg's application be dismissed. The court's decision was based on the evidence presented and the application of the relevant legal provisions. The University was not found to have contravened the Fair Work Act or the Equal Opportunity Act in its dealings with Dr Borg.
Orders
Orders of the court
1. The application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Dr Borg then commenced the present proceeding alleging that, in failing to re-engage her, the University has taken adverse action against her in contravention of s 340 of the Fair Work Act 2009 (Cth) (“the Act”). Dr Borg also complained that the University had contravened provisions of the Equal Opportunity Act 2010 (Vic) (“the EO Act”). THE FACTUAL BACKGROUND Dr Borg’s dispute with the University can be traced back to events which occurred in 2009. In that year Dr Borg and other staff members of the University accompanied a party of students on a trip to Malta. As a result of events which occurred during that trip Dr Borg, in 2010, lodged a complaint with the University’s Human Resources Department, alleging that she had been bullied, harassed, discriminated against and victimised by other members of staff. The University engaged an independent investigator to enquire into Dr Borg’s complaints. The investigator found that none of the allegations, made by Dr Borg, had been substantiated and he recommended that each be dismissed. Dr Borg was dissatisfied with the outcome of the investigation and she prepared a written response disputing the investigator’s findings and made further allegations of bullying against officers of the University’s Human Resources Department. These allegations were investigated by a Deputy Vice Chancellor who concluded that they lacked substance. Dr Borg then made a series of complaints against the University with external organisations. In February 2012 she lodged a complaint with the Fair Work Ombudsman. Having considered the complaint the Fair Work Ombudsman concluded that the University had not contravened the Act. Later in that year she lodged a further complaint with WorkSafe alleging that the University had breached the Occupational Health and Safety Act 2004 (Vic) (“the OH&S Act”) because she has been subjected to bullying in the workplace. In January 2013 WorkSafe advised Dr Borg that it did not consider that the University had breached the OH&S Act. Dr Borg was dissatisfied with this finding and lodged an appeal in the Victorian Civil and Administrative Tribunal (“the Tribunal”). The Tribunal struck out the application on 22 July 2013 on the ground that, at relevant times, Dr Borg was not an employee of the University. During the period between 2010 and 2012 when Dr Borg’s various complaints were being considered and dealt with, she continued to teach at the University pursuant to a series of sessional engagements. The last of those engagements concluded on 30 November 2012. During January 2013 Dr Borg contacted Mr Norman and advised him that she was available to teach the IHR unit of study during semester 1 of that year. Shortly before the semester commenced Mr Norman decided that he did not need to engage her for the IHR unit of study and he did not make an offer to Dr Borg. Dr Borg considered that this refusal to employ her may have occurred because of her earlier complaints against the University and its staff.THE EVIDENCE
Evidence
Evidence Before The Court
Many, but by no means all, of the documentary exhibits to affidavits were placed before witnesses and tendered in evidence.DR BORG’S EVIDENCE In 2009 the University organised a Malta study tour. Planning commenced early in the year. Students were to be accompanied by a number of staff members. Dr Borg assumed that she would be one of those staff members but, initially at least, she was not included in the group. Later in the year it was decided that she would go and that she would provide welfare support to the students. The trip took place between 21 November and 15 December 2009. In the course of the tour a number of incidents occurred in Malta which led to friction between Dr Borg and other staff members of the touring party. Dr Borg considered that these events constituted bullying, harassment, discrimination and victimisation. On 21 May 2010 Dr Borg made a formal written complaint about these matters to the University’s Director of Human Resources. Dr Borg asked for a full investigation of her complaints. She was advised that her complaints would be dealt with under the University’s Staff Issue and Complaint Resolution Policy. She was provided with a copy of that policy and raised no objection to the complaints being dealt with in the manner proposed. The University appointed Mr Gary Rothville as “Conciliation Officer” under the policy. This title is something of a misnomer given that the policy provides for the Conciliation Officer to conduct an inquiry and, if he or she is unable to resolve the issues in dispute between the parties, to prepare a written report and make recommendations to a “Principal Officer” of the University about how the dispute should be resolved. Mr Rothville interviewed the staff members against whom Dr Borg had made accusations and Dr Borg herself. He did not interview some third parties whom Dr Borg had said might be in a position to confirm aspects of her complaints. After the interview, but before Mr Rothville reported, Dr Borg sent him an email in which she thanked him for his “compassion and understanding” in his conduct of the inquiry. On 20 July 2010 Mr Rothville provided the University with a written report in which he recommended that all of Dr Borg’s complaints should be dismissed. A copy of the report was provided to Dr Borg. She was dissatisfied with it and prepared a detailed written response which she provided to the “Principal Officer” Professor Alan Farley. Having considered Dr Borg’s objections, Professor Farley determined that Mr Rothville’s recommendations should be implemented. Professor Farley did not interview persons nominated by Dr Borg as potential corroborators of her account of events and explained his reasons for not doing so. Dr Borg remained dissatisfied and sought the intervention of the Vice Chancellor. The Vice Chancellor advised Dr Borg that she had exhausted all avenues of appeal within the University and that, if she wished to pursue the matter further, she would be required to lodge an appeal with the Victorian Ombudsman.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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