Brown v Action Industrial Catering Pty Ltd
[2023] FedCFamC2G 1157
•8 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Brown v Action Industrial Catering Pty Ltd [2023] FedCFamC2G 1157
File number(s): SYG 372 of 2021 Judgment of: JUDGE OBRADOVIC Date of judgment: 8 December 2023 Catchwords: FAIR WORK – General protections claim – Adverse action – Exercise of workplace right – Complaints and Inquiries – Whether investigation inadequate – Casual employment – Whether dismissal – Prohibited reason – Race – Disability – Family and Carer’s responsibility – Reverse Onus - Application dismissed Legislation: Fair Work Act 2009 (Cth) ss 340, 342, 351, 361, 545, 546, 368, 370
Sex Discrimination Act 1984 (Cth) s 4A(1)
Cases cited: Alam v National Australia Bank Limited (2021) 288 FCR 301; [2021] FCAFC 178
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The North Queensland Stadium Case) (10 July 2020) [2020] FCA 947; 297 IR 151
Banque Commerciale SA, En Liquidation v Akhil Holdings Pty Ltd [1990] HCA 11, (1990) 169 CLR 279
CFMEU v Peabody Energy Australia Coal Pty Ltd [2014] FCA 394
Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1
Cross v Harbour City Ferries t/as Harbour City Ferries [2017] FCCA 514
Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545
Hamzy v Tricon International Restaurants (2001) 115 FCR 78
Hodkinson v Commonwealth (2011) 248 FLR 409; [2011] FMCA 171
Lamont v University of Queensland (No.2) [2020] FCA 720
Liu v Compuworld Pty Ltd [2020] FWC 2569
Martires v Endura Paint Pty Ltd (No 4) [2023] FedCFamC2G 218
Pigozzo v Mineral Resources Ltd [2022] FCA 1166
Shea v TRUenergy Services Pty Ltd (No.6) [2014] FCA 271
Thompson v Big Bert Pty Ltd t/as Charles Hotel [2007] FCA 1978
Walker v Cape Australia Onshore Pty Ltd [2019] FCCA 2397
WorkPac Pty Ltd v Rossato [2020] FCAFC 84
Division: Division 2 General Federal Law Number of paragraphs: 151 Date of last submission/s: 9 November 2022 Date of hearing: 8-9 November 2022 Place: Parramatta Solicitor for the Applicant: Mr Lynch of Gorval Lynch Counsel for the Respondent: Mr Darams & Mr Meagher Solicitor for the Respondent: FCB Lawyers and Consultants ORDERS
SYG 372 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHERRIE ANN BROWN
Applicant
AND: ACTION INDUSTRIAL CATERING PTY LTD ACN 071 228 807
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
8 DECEMBER 2023
THE COURT ORDERS THAT:
1.The Originating Application filed 10 March 2021 together with the Amended Statement of Claim filed 26 November 2021 are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
INTRODUCTION
This is a general protections claim pursuant to Part 3-1 of the Fair Work Act 2009 (Cth).
The applicant, Ms Cherrie Ann Brown (“Ms Brown”), commenced casual employment with the respondent, Action Industrial Catering Pty Ltd (“AIC”), on or about 22 September 2017.
AIC provides auxiliary services, such as accommodation, catering, cleaning and retail services to remote mining operations. Ms Brown was employed by AIC in the position of ‘Utility’ on a fly-in fly-out (“FIFO”) basis at various locations.
Between November 2019 and October 2020, Ms Brown says that she made a number of complaints and inquiries to AIC, in exercise of her workplace rights. Ms Brown alleges that AIC did not adequately or properly investigate her complaints, and that this amounts to adverse action.
Ms Brown says that she is diabetic and insulin dependent, and that this constitutes a disability. Some of the complaints she made related to alleged discrimination due to her diabetes and its effects.
Furthermore, Ms Brown says that she suffered instances of racial discrimination throughout the course of her employment with AIC and that she lodged complaints about such racial discrimination.
Lastly, Ms Brown says that she had the care of her young daughter who was ill, and due to her family and carer’s responsibilities she was unable to provide confirmed availabilities to AIC. She says that she notified AIC of these responsibilities on a number of occasions in 2020.
The last time Ms Brown performed work for AIC was on 23 July 2020.
On 16 December 2020, Ms Brown received a letter from AIC which indicated that AIC assumed Ms Brown no longer wished to work for AIC and that it will process her resignation. Ms Brown asserts that this was a letter of termination of employment.
Ms Brown alleges that AIC contravened ss.340 and 351 of the Act, seeking compensation and a pecuniary penalty consequent upon AIC’s contraventions.
The judgment in this matter comes over 12 months since the hearing concluded. The Court regrets the delay, which was in party due to personal circumstances of the trial judge. Every care has been taken to review and re-read the pleadings, the evidence, the detailed contemporaneous notes of evidence taken during the hearing (including listening back to the recording of the evidence), and the submissions, including oral submission of which careful and detailed contemporaneous notes were taken.
THE CLAIM
Ms Brown relies on the amended statement of claim filed 26 November 2021. AIC relies on its amended defence to the amended statement of claim filed 17 December 2021.
The parties are bound by their pleadings.
The purpose of pleadings is well known. Pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. Cases are, however, determined on the evidence, not the pleadings.[1]
[1] Banque Commerciale SA, En Liquidation v Akhil Holdings Pty Ltd [1990] HCA 11, (1990) 169 CLR 279 at [15].
The Court understands that Ms Brown alleges that, in contravention of s.340 of the Act, AIC took adverse action against her by terminating her employment and injuring her by failing to properly investigate her complaints because she exercised workplace rights in the form of making complaints and inquiries relating to her employment.
The Court further understands that Ms Brown also alleges that, in contravention of s.351 of the Act, AIC took adverse action against her by terminating her employment and injuring her by failing to properly investigate her complaints because of her race, physical disability and/or family or carer’s responsibilities.
AIC says that, fundamentally, Ms Brown’s claim must fail because AIC did not legally injure Ms Brown nor dismiss Ms Brown from her casual employment. AIC says that, even if the Court finds that AIC did dismiss her, the reasons for doing so were not prohibited or in contravention of the Act.
Ultimately, the Court finds that Ms Brown fails in her claim. This is, firstly, because AIC’s actions in investigating the complaints and inquiries made did not injure Ms Brown in her employment. Secondly, it is because the action in removing Ms Brown’s name from the pool of casual employees was not an act of dismissal and, even if it was, it was not done for a prohibited reason.
Relevant Statutory Provisions and Legal Principles
Section 340 of the Act relevantly 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
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Section 351 of the Act relevantly 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, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Sections 340 and 351 are civil remedy provisions within the meaning of Part 4-1 of the Act.
Section 342 of the Act defines the term “adverse action” for the purposes of ss.340 and 351. Relevantly, adverse action is taken by an employer against an employee if 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.
Section 361 of the Act provides:
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
The reverse onus provided by s.361 applies the same way to proceedings alleging contraventions of s.351 as it does to those alleging contraventions of s.340 of the Act.[2]
[2] Hodkinson v Commonwealth (2011) 248 FLR 409; [2011] FMCA 171 at [127] (“Hodkinson”).
The principles in respect of s.361 are well known. They are, with respect, conveniently summarised in Alam v National Australia Bank Limited:[3]
[3] (2021) 288 FCR 301; [2021] FCAFC 178 (Alam) at [14], cited in Martires v Endura Paint Pty Ltd (No 4) [2023] FedCFamC2G 218 at [53].
Several matters bearing upon the application of s 361 in relation to s 340 are settled:
(a)in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute “adverse action” and the particular reason or particular intent with which it is said the action was taken: Short v Ambulance Victoria (2015) 249 IR 217 (Dowsett, Bromberg and Murphy JJ) at [55];
(b)the party making the allegation that adverse action was taken “because” of a particular circumstance must establish the existence of that circumstance as an objective fact: Tattsbet Ltd v Morrow (2015) 233 FCR 46 at [119]. That is, it is for the applicant to establish all the elements of the alleged contravention other than the reasons of the respondent for taking the adverse action: Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 (ABCC v Hall) at [100];
(c)an employer takes adverse action in contravention of s 340 if a proscribed reason is a “substantial and operative” reason for the action or if the reasons for the action include the proscribed reason: [Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 (Bendigo v Barclay)] at [104] (Gummow and Hayne JJ);
(d)the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision-makers to give direct evidence of their reasons for taking the adverse action: Bendigo v Barclay at [43]-[44];
(e)the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding: Bendigo v Barclay at [41], [45] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 (CFMEU v BHP Coal) at [7] (French CJ and Kiefel J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 (CFMEU v Anglo Coal) at [27]; ABCC v Hall at [19];
(f)while the evidence of the decision-maker as to the reasons for the taking of the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre-condition: CFMEU v BHP Coal at [192]; Australian Red Cross Society v Queensland Nurses’ Union of Employees (2019) 273 FCR 332 at [72];
(g)the Court’s rejection of the evidence of the decision-maker as to the reasons for the adverse action will ordinarily be “a weighty consideration and often a determinative consideration” in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action (Cummins South Pacific Pty Ltd v Keenan (2020) 281 FCR 421 at [116]), but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated: ibid; CFMEU v Anglo Coal at [27]; Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 at [272]. When there is evidence of a broad range of facts and circumstances, which are not dependent on acceptance of the decision-maker’s evidence about his or her asserted reason for the dismissal, such evidence must be taken into account in assessing whether the reasons asserted by an applicant were a substantial and operative reason for the action; ibid at [113]; TechnologyOne Ltd v Roohizadegan (2021) 309 IR 262 at [105]-[106];
(h)even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption: National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139 at [20]; PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 at [154] (Snaden J);
(i)the decision-maker’s knowledge of the circumstance asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance: Bendigo v Barclay at [62]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) (2012) 228 IR 195 at [80] (Jessup J); Shea v TRUenergy Services Pty Ltd (No 6) (2014) 242 IR 1 at [777]. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason: CFMEU v BHP Coal at [20], [87]-[88]; Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 at [32], [47]-[48] (Jessup J); and
(j)adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition: CFMEU v BHP Coal; Endeavour Coal at [52] (Perram J).
The adverse action claimed by Ms Brown is the same for both her s.340 claim and her s.351 claim, and it is two pronged. Firstly, it is that her employment was injured by reason of AIC’s failure to properly/adequately investigate and address her complaints. Secondly, it is that she was dismissed.
Although the allegation that AIC’s conduct was for a prohibited reason enables that allegation to stand as sufficient proof of fact unless AIC proves otherwise, it does not relieve Ms Brown from proving each of the ingredients of the contravention.[4]
[4] Hodkinson at [130].
In this case, Ms Brown needs to prove:
(a)AIC dismissed her or injured her in her employment; and
(b)Depending on the particular allegation, that she had one of the particular attributes described in ss.340 or 351.
FINDINGS OF FACT
Background
Ms Brown identifies as Aboriginal.
Ms Brown is a type-2 diabetic and insulin dependent. She self-injects insulin on a daily basis.
Ms Brown is a caregiver for six children, her sixth child being born after her employment with AIC ended.
Ms Brown commenced employment with AIC in September 2017 on a casual basis, in the position of Utility. Ms Brown’s duties varied from assignment to assignment, however, they included housekeeping and food catering services at remote mining sites where Ms Brown worked on a FIFO basis.
Between late 2017 and June 2018, Ms Brown was employed on a rolling roster, typically working 12-hour shifts on a 14 days on, 7 days off roster.
From approximately June 2018, at Ms Brown’s request, she was put in a pool of casual employees, and commenced working on a “needs” basis, but still as a FIFO worker. This arrangement was suitable to Ms Brown as it provided her with the flexibility to meet her university and study commitments.
Between late 2018 and December 2020, AIC offered numerous work assignments to Ms Brown, which were at times accepted and at time rejected by Ms Brown. Ms Brown did not, inter alia, accept swings[5] with AIC for the periods of:
(a)23 June 2018 to 17 September 2018;
(b)24 December 2018 to 8 May 2019;
(c)June 2019 to 28 October 2019; and
(d)18 November 2019 to 22 March 2020.
[5] A term used in the FIFO industry for a roster.
Relevant Matters: Incidents, Complaints and Inquiries
In or about mid-2019, Ms Brown was working a swing at a remote mining site and during this swing, Sarah Luckhurst, a colleague of Ms Brown said to her:
Why do you work anyway? Do you even need to? Surely you get enough pay from Centrelink?
Ms Luckhurst had made the same remark to Ms Brown on a number of occasions before. Ms Brown understood these comments to infer that because she was Aboriginal, she was entitled to welfare benefits and therefore did not need to work. Ms Brown tried to speak to Ms Luckhurst about why she thought these statements were discriminatory and stereotypical.
Ms Brown did not, at any point in time, make any complaint in relation to the words spoken to her by Ms Luckhurst.
On 5 October 2019, Ms Brown emailed Ms Anna Evans, a human resources officer of AIC, advising that she would be available until 21 November 2019 and be unavailable thereafter during the festive period.
Ms Brown was offered by Ms Evans a swing at the Kangi site from 28 October to 8 November 2019 which she accepted.
Ms Brown was offered and accepted nightshift utility work from 11 to 18 November 2019. On 16 November 2019, Ms Brown was working this swing. She was sitting with multiple colleagues when one of her colleagues, who was not employed by AIC but by a labour hire company, Ms Janinne Van Der Sluys, put her arm next to Ms Brown’s and said words to the effect of “white girl, even I’m darker than you.”
Ms Brown interpreted this comment as questioning the genuineness of her ethnicity because of the colour of her skin and inferring that Aboriginal people should have dark skin.
Following this comment, Ms Brown made a verbal complaint about Ms Van Der Sluys’ comment to AIC’s camp manager, Mr Paul Allen, on 16 November 2019 and later that day a further verbal complaint to her supervisor, Ms Lisa Frost, who invited Ms Brown to lodge a written complaint, which was completed on 17 November 2019 (“November 2019 Complaints”). Ms Frost obtained a statement from Ms Van Der Sluys which she gave to Mr Allen.
On 17 November 2019, after receiving Ms Brown’s and Ms Van Der Sluys’ accounts, Mr Allen had a meeting with Ms Van Der Sluys about Ms Brown’s complaint and suggested it would be good to talk to Ms Brown and maybe have a mediation or apologise, to which Ms Van Der Sluys indicated that she would be happy to do so. Mr Allen also spoke to another employee, Tia, who was present at the time to understand the context and tone of the conversation. That evening, Mr Allen says that he had a follow up conversation with Ms Brown where he conveyed Ms Van Der Sluys’ desire to apologise. Mr Allen believed that Ms Van Der Sluys did apologise to Ms Brown.
Ms Brown’s rostered swing ended on 18 November 2019, and she left the site in the morning.
On 23 December 2019, Ms Brown sent an email to AIC advising she would not be available until the end of January to take on any work.
On 6 January 2020, Ms Brown sent a further email to AIC advising that she would be available to work from 21 February to 19 March 2020. On 8 January 2020, Ms Evans made enquiries with another staff member of AIC to obtain work for Ms Brown in the period she was available. Ms Evans sent a similar email on 22 January 2020.
By 30 January 2020, Ms Brown’s availability had changed and she sent a text message to her supervisor asking if there were any shifts available and was advised that, while it was busy at the site, they had sufficient staff.
In February 2020, Ms Brown and Ms Evans had two telephone calls. Ms Brown called to find out what was happening with the November 2019 Complaints (“February 2020 Inquiry”). Ms Evans called back and told Ms Brown that she had been advised that the complaint had been resolved at a meeting on site on 18 November 2019. Ms Brown indicated to Ms Evans that no such resolution occurred, and that she had left the site on the morning of 18 November 2019.
Ms Evans made enquiries and was informed by email from the managers of the Kangi site on 26 February 2020, that Mr Allen and Ms Frost were of the understanding that the complaint was managed on site with discussions between both parties. Ms Evans replied and told the manager of the Kangi Site that, in future, a file note should be recorded to show the investigation was closed and that “if this was to go further we would need to show that we followed procedural fairness and the investigation process, as on this occasion we wouldn’t be able to.”
On 17 March 2020, Ms Evans offered Ms Brown a swing at the Kartajirri site from 23 March to 6 April which Ms Brown accepted.
On 14 April 2020, Ms Brown was working a swing at the Eliwanna mine site. As she was working in the camp kitchen, she was given a direction by AIC’s Camp Manager, Mr Graeme Shinnick, that she tuck in her shirt, and that this was policy. She did not follow that direction. Later that same day, Mr Shinnick again directed Ms Brown to tuck her shirt in. It was at this point that Ms Brown told him that tucking her shirt in irritates her injection site as her pants are tight fitting, and she enquired about the policy. She was again directed by Mr Shinnick to tuck her shirt in.
Ms Brown says that later that day she spoke to a man named “Gerry” from Health Safety Environment and Community (“HSEC”) and told him about what Mr Shinnick had directed her to do, despite her objection. AIC denies that anyone by the name of Gerry was employed by AIC in the role of HSEC Manager[6] and does not know of any such alleged complaint being made by Ms Brown.
[6] Ms Brown pleads that Gerry was the HSEC Manager, while her evidence is that he was simply “from” HSEC.
On 22 April 2020, Ms Brown says that Mr Shinnick and Mr Mitchell Fishwick, the relief Camp Manager, made threats during a staff meeting that she felt were directed to her and that she interpreted to mean that if she did not follow the rules it would result in her employment with AIC, or in the mining industry in general, being at risk.
On 26 April 2020, Ms Brown had a conversation with her daughter, Kym, who was also working at the same mine site. Kym told Ms Brown that Mr Fishwick had made what she considered to be racist comments to her the day before. Kym and Ms Brown then proceeded to call Ms Oria Wilson, the Camp Manager, to make a verbal complaint about what Mr Fishwick had said to Kym (“April 2020 Complaint”). Ms Wilson invited Kym and Ms Brown to have a meeting with her on 27 April 2020. This meeting took place outside. Kym gave Ms Wilson a written complaint and Ms Wilson told Kym and Ms Brown that the matter would be dealt with onsite and that Mr Shinnick would be in touch. Ms Brown says she sent a text message to a colleague and asked her to ask Ms Wilson to escalate the complaint to the human resources department.
On 28 April 2020, Ms Brown had a conversation with Mr Fishwick in which Mr Fishwick gave some context about his comments to Kym, and Ms Brown told him why they were not appropriate. Ms Brown felt that the matter had been “somewhat resolved” but that she wanted AIC to act on the complaint.
On 5 May 2020, Mr Shinnick again asked Ms Brown to tuck in her shirt when she was in the kitchen and Ms Brown again told him she could not because of her injection sites. Ms Brown says Mr Shinnick told her that she just did not want to tuck in her shirt and that Mr Shinnick made a joke about her medical condition and her body:
Graeme then said something about my pants that I was not able to catch. However, I remember that he and Michael started to laugh loudly……… I was deeply upset that Graeme was using my medical condition and my body as the substance of his jokes and especially that he was maliciously making such jokes to my face.
On 6 May 2020, Ms Brown called Ms Natalie Kale, AIC’s human resources advisor, to seek an update on Kym’s April 2020 complaint and to raise additional concerns about her employment (“May 2020 Complaint”). Ms Brown’s and Ms Kale’s respective accounts of the conversation differ. Ms Brown says she read to Ms Kale notes she had prepared and that the topics discussed were almost identical to those that formed part of her later 5 June 2020 written complaint, which is detailed below. Ms Kale says that the conversation was brief and that Ms Brown ventilated her complaint about being asked to tuck in her shirt by Mr Shinnick and a complaint that Ms Wilson was dismissive of her. Ms Kale also says she explained AIC’s grievance policy to Ms Brown in this conversation.
On 28 May 2020, whilst working a swing, Ms Brown told the kitchen supervisor, Ms Karlsen, that she felt like she was being micromanaged by her.
On 29 May 2020, Ms Brown was asked to have a meeting with Ms Karlsen, which was a performance review. Mr Sloan, the relief Camp Manager was also present. Ms Brown’s performance and attitude was criticised in this meeting and Ms Brown felt that the assessment was unfair to her.
In or about late May or early June 2020, Ms Brown telephoned Ms Kale to complain about her performance review.
On 5 June 2020, Ms Brown made a verbal complaint to Ms Kale during a telephone conversation which subsequently resulted in the scheduling of a meeting on the same day at approximately 2pm with Ms Brown, Ms Kale, Ms Wilson and Mr Sloan.
After the telephone call but before the 2pm meeting on 5 June 2020, Ms Brown sent a lengthy written complaint to Ms Kale which complained of, inter alia, disability discrimination, racial discrimination, micromanagement, the dismissive attitude of Ms Karlsen and the performance review on 29 May 2020 (“June 2020 Complaint”).
After sending the written complaint but before the 2pm meeting, Ms Brown and Ms Kale had a second telephone conversation. Ms Kale says that Ms Brown told her during this conversation to hold off on processing the written complaint and to manage it at a site level. Ms Brown says that she only asked Ms Kale to not raise it in the meeting but to otherwise process the complaint as usual.
Ms Kale and Ms Brown agree that in the 2pm meeting Ms Brown made complaints regarding:
(a)Roster rotations, in particular, that Ms Brown was being asked to complete the same task repeatedly; and
(b)Ms Karlsen’s dismissive attitude towards Ms Brown.
Ms Brown further asserts that she made enquiries at the 2pm meeting about swapping duties to an alternate site due to ongoing bullying, harassment and discrimination she was facing by management (“First June 2020 Inquiry”).
Later that day, on 5 June 2020, Ms Brown left the swing early after seeing the medical officer and being given a medical certificate.
On 19 June 2020, Ms Brown sent Ms Kale an email following up her June 2020 Complaint (“Second June 2020 Inquiry”). Ms Kale replied the same day and stated that she was of the understanding that Ms Brown would not be moving forward with the complaint. Ms Brown responded to that email stating that there must have been a misunderstanding and asked for the complaint to be investigated. Ms Brown felt that AIC had “systemically failed to take any of [her] grievances into account.”
On 19 June 2020, Ms Evans and Ms Kale received an email from Civeo’s (AIC’s parent company) recruitment manager, Rory Peterson, which stated:
Can we please look at reducing the number of inactive casuals on the RES document. I would like to increase our relief pool utilisation and my initial thought is that we need to reduce the length of time that a casual can go without doing a swing before they’re terminated.
I know our threshold for terminating casuals is 3 months at the moment. I’d like to get your thoughts on reducing it to 2 months – what do you think the workforce planning and HR/IR implications are?
Ms Kale responded saying “No issues from my side.”
Prior to June 2020, Ms Kale deposes that it was generally the policy of AIC to remove casual employees from the casual relief pool if they were unavailable for a period of three or more months, however, this was not a consistently applied practice.
Ms Evans says that up until July 2020, she would maintain a pool of casual relief employees who would be contacted by her via email when a supervisor or camp manager would contact her seeking to cover vacancies. In July 2020, Ms Evans says that the process for managing the relief pool changed when new software was introduced to identify any vacancies that needed filling. In cross-examination, Ms Evans accepted that, prior to June 2020, there was a practice of removing casuals from the pool after a period of unavailability of three months or more but that this practice was not strictly enforced or followed.
From 30 June 2020 until 5 September 2020, Ms Brown obtained casual employment with another employer.
In or around July 2020, Ms Brown’s daughter, Jordan, was diagnosed with depression.
On 3 July 2020, Ms Kale telephoned Ms Brown. The parties account of the conversation differs, but they both agree that they discussed the June 2020 Complaint, that an investigation had commenced in relation to it, that AIC could not investigate allegations against Mr Fishwick and Ms Wilson as they were no longer employed by AIC, the health issues of Ms Brown’s daughter, Jordan, and Ms Brown’s potential return to work. Ms Brown told Ms Kale that she could not work from 3 to 7 August 2020 but could probably work from 7 July 2020 depending on the health of her daughter, Jordan. Ms Kale said she would let the rostering team know of these availabilities.
On 6 July 2020, Ms Brown received two emails from AIC offering her work from 7 to 21 July 2020 and 14 to 21 July 2020. Ms Brown told AIC that she could not accept the first swing as she had an appointment for her daughter, Jordan, during that period. Ms Brown accepted the second swing. However, she had not worked at that mine site previously and, subsequently, had to pass a medical examination to work on that site. She undertook that medical examination on or around 10 July 2020 but did not pass and, subsequently, could not work the swing.
On 13 July 2020, Ms Kale telephoned Ms Brown to advise her of the outcome of the investigation into the June 2020 Complaint. The outcome of the investigation included that:
(a)If Ms Brown could not tuck her shirt in, she needed to provide a medical certificate and the policy would be reviewed and/or amended in accordance with this;
(b)Village Managers were counselled as to their use of threatening language;
(c)No investigation could be taken in relation to complaints about Mr Fishwick and Ms Wilson as they no longer worked for AIC;
(d)Mr Shinnick was spoken to about his language; and
(e)Ms Karlsen was found not to have breached any policies or procedures, but Ms Brown’s feedback was considered.
Ms Brown was aggrieved at how AIC had conducted the investigation and at the outcome.
On 16 July 2020, Ms Brown was offered a swing by Ms Evans at the Dally site which Ms Brown accepted. This swing was meant to start on 16 July 2020 but, due to flight unavailability, Ms Brown did not begin the swing until 20 July 2020. Approximately 2 days into that swing, Ms Brown says she was feeling very anxious and stressed, and that her blood sugar dropped to a dangerously low level.
On 23 July 2020, Ms Brown attended the medical officer on site and was directed to leave the swing early and seek medical treatment in Perth. She left the swing early, later that day. This is the last date Ms Brown completed any work for AIC.
In or around August 2020, Jordan’s condition deteriorated and in or around September 2020, Jordan was admitted to hospital.
On 3 August 2020, Ms Brown received an email from Ms Evans offering her a swing from 11 to 25 August 2020. Ms Brown says she declined this swing and said she did so due to her responsibilities with Jordan. Ms Evans says she never replied.
On 17 August 2020, Ms Brown received an email from Ms Evans offering her a swing from 18 to 24 August 2020. Ms Brown replied, declining the swing because she was “dealing with some family stuff” and would be “out of action for a few weeks with appointments etc with my young daughter.”
On 17 September 2020, Ms Evans emailed Ms Brown and asked her to advise of her upcoming availabilities. Ms Brown responded and said that she was unable to give availabilities at that time due to appointments for her daughter, Jordan. Ms Evans told Ms Brown in an email on 19 October 2022 that:
We only allow our Relief Pool to be without work for 2 months, unfortunately if you are unavailable to work next week we may need to look at parting ways for the time being. You are always welcome to re-apply when the time suits you.
On 23 October 2020, Ms Kale received an email from the Construction, Forestry, Maritime, Mining and Energy Union (“CFMEU”) attaching a letter dated 22 October 2020 on behalf of Ms Brown that, inter alia:
(a)Made complains of bullying and harassment;
(b)Sought compensation for time not worked because she left a swing early; and
(c)Advised of Ms Brown’s caring responsibilities for her daughter and its effect on her availability.
(“October 2020 Complaint”)
On 3 November 2020, Lesley Jolly, the Executive General Manager of AIC’s parent company, Civeo, responded to this letter. This reply to the CFMEU, inter alia:
(a)Provided further details and context to Ms Brown’s previous complaints;
(b)Confirmed that AIC was aware of Ms Brown’s caring responsibilities;
(c)Declined to make any further payments to Ms Brown; and
(d)Advised that if Ms Brown was continually unavailable to work, AIC would deem that she no longer wishes to be a part of the casual relief pool.
On 19 November 2020, Ms Kale says that Ms Evans sent a “non-contact warning letter” to Ms Brown’s daughter, Kym, which required her to respond by 23 November 2020. Ms Kale says this email was sent because of AIC’s practice of only retaining casuals in the relief pool for two months. Ms Kale says other employees were also sent a non-contact letter on the same date.
On 3 December 2020, Ms Brown received a letter from Ms Kale which stated that, inter alia:
(a)The purpose of the letter was to clarify Ms Brown’s availability to work;
(b)AIC has a practice of removing casual staff from the relief pool if they are unavailable for a period exceeding two months; and
(c)If Ms Brown wished to remain in the casual relief pool, she needed to contact Ms Kale no later than 7 December 2020 to explain any mitigating circumstances that supported her extended unavailability.
On 7 December 2020, Ms Brown deposes that she attempted to talk to Ms Kale about the 3 December 2020 letter during a telephone meeting between Ms Brown’s daughter, Kym, and Ms Kale which Ms Brown was present at in the capacity of a support person. Ms Brown says that Ms Kale refused to discuss the letter at that meeting. Ms Kale denies that Ms Brown tried to speak to her about the 3 December 2020 letter in this meeting.
Ms Brown otherwise did not respond to the 3 December 2020 letter or provide details of mitigating circumstances which explained her prolonged unavailability.
On 15 December 2020, Ms Kale and Ms Brown had a telephone conversation. Their respective evidence of the content of this conversation significantly differ. Ms Kale and Ms Brown agree that Ms Kale asked Ms Brown whether she had received the 3 December 2020 letter. Ms Brown deposes that during the conversation, they discussed:
(a)The policy of removing casuals from the relief pool after two months;
(b)That Jordan was still unwell and that this affected Ms Brown’s availability;
(c)That Ms Brown had concerns for her safety due to her perception of AIC’s mishandling of her complaints; and
(d)That Ms Brown was obtaining legal advice in relation to the letter and that she did not agree that her employment should end with AIC.
Ms Kale’s account of this telephone conversation is, in comparison, very brief. She says that she informed Ms Brown that she would be processing her resignation as she received no response to the 3 December 2020 letter and that Ms Brown told her she is obtaining legal advice in relation to the letter. Ms Kale denies they discussed:
(a)Ms Brown’s family commitments;
(b)The 2 month policy; or
(c)Ms Brown’s concerns for her safety or the alleged mishandling of Ms Brown’s complaints.
On 16 December 2020, Ms Brown received a letter from Ms Kale which stated:
As per the letter emailed to you on the 3 December 2020 titled ‘Employment Status – Clarification’ I have not heard back from you by the 7 December 2020 and therefore as per the letter assume you no longer wish to work for Action Industrial Catering/Civeo and will process your resignation.
Ms Kale says that the effect of the 16 December 2020 was to ‘process the cessation of employment’ whilst the letter itself says ‘process your resignation.’ In cross-examination, when Ms Kale was asked whether Ms Brown resigned from her employment with AIC, Ms Kale said that she did because of her lack of response.
On 22 February 2021, Ms Brown gave birth to her sixth child. She had been unable to do any FIFO work from 30 November 2020 due to her pregnancy.
DETERMINATION
The Court will, firstly, consider a number of preliminary issues, namely:
(a)Whether the complaints and inquiries made by Ms Brown were an exercise of a workplace right; and
(b)Whether Ms Brown has established the necessary attributes to ground a discrimination claim.
Secondly, the Court will determine whether the actions complained of by Ms Brown against AIC amounted to adverse action, namely:
(a)Whether there was an injury to Ms Brown’s employment by virtue of the matters she pleads, that is, an improper or inadequate investigation of her complaints; and
(b)Whether Ms Brown was dismissed from her employment on 16 December 2020.
Lastly, the Court will determine whether the adverse action (if found) was taken for a prohibited reason.
What are the complaints and inquiries and were they an exercise of a workplace right?
For the sake of clarity, the Court has, in its findings of fact, defined the various complaints and inquiries using the same terms as those pleaded by Ms Brown. Mere reference to terms as defined in the pleadings earlier in these Reasons for Judgment should not be understood as an indication by the Court that those matters have been established.
Ms Brown pleads that she exercised “workplace rights” within the meaning of s.341(1)(c)(ii) of the Act by making the November 2019 Complaints, February 2020 Inquiry, April 2020 Complaint, May 2020 Complaint, June 2020 Complaint, First June 2020 Inquiry, Second June 2020 Inquiry and October 2020 Complaint.
The words “complaint” and “inquiry” are not defined in the Act, however, each has been considered judicially:[7]
[42]As to the meaning of ‘complaint’ in s 341(1)(c)(ii), in Alam v National Australia Bank Ltd[2021] FCAFC 178; (2021) 288 FCR 301 the Court said (at [59] – [60]):
[59]In the context of s 341(1)(c), the term “complaint” connotes an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved: Cummins South Pacific at [13]. A complaint is more than a mere request for assistance and should state a particular grievance or finding of fault: Shea v TRUenergy at [579]‑[581]; Cummins South Pacific at [13] per Dodds‑Streeton J. Her Honour continued, at [626]‑[627], by saying that it is unnecessary for the employee to identify expressly the communication as a complaint or grievance, or to use any particular form of words. Instead, what is required is a communication which, whatever its precise form, is reasonably understood in context as an expression of grievance and which seeks, whether or expressly or implicitly, that the recipient at least take notice of, and consider, it. The characterisation of a communication as a complaint is to be determined as a matter of substance, and not of form.
[60]The distinction between a complaint and a mere request for assistance had been made in earlier authorities: Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99, (2005) 144 FCR 347 at [36]‑[37]; and Hill v Compass Ten Pty Ltd [2012] FCA 761, (2012) 205 FCR 94 at [48]. It is possible that some requests for assistance may be able to be characterised as “inquiries” for the purposes of s 341(1)(c) (for example, an inquiry as to whether the recipient is able to provide the requested assistance) but it was not suggested that a characterisation of that kind was appropriate in relation to any of the appellant’s alleged requests or inquiries.
[43]As to the meaning of ‘inquiry’ in s 341(1)(c)(ii) of the FW Act, an inquiry involves an investigation or an examination made for the purposes of acquiring knowledge or information: Flageul v WeDrive Pty Ltd[2020] FCA 1666 at [248]. It includes a request for information or the posing of a question by an employee in relation to his or her employment: PIA Mortgage Services Pty Ltd v King[2020] FCAFC 15; (2020) 274 FCR 225 at [136] – [138]. It need not be an inquiry made of the employer and may include an inquiry made of a third party such as the employee’s lawyer: Murrihy v Betezy.com.au Pty Ltd[2013] FCA 908; (2013) 238 IR 307 at [143].
[7] Pigozzo v Mineral Resources Ltd [2022] FCA 1166 at [42]-[43].
Importantly though, a complaint or inquiry which an employee is able to make in relation to his or her employment is not at large, but “must be founded on a source or entitlement, whether instrumental or otherwise”.[8] Ms Brown does not clarify in her pleadings what the underpinning source or entitlement to make the complaint/inquiry is said to be, nor are these matters addressed in her submissions. The submissions focus on whether the matters pleaded fall within the meaning of a “complaint” and are said to do so because they are “in relation to” employment.
[8] Shea v TRUenergy Services Pty Ltd (No.6) [2014] FCA 271 at [29(f)]; Approved in Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16 at [28], cited in Alam at [76], [97].
Even accepting (and independently so of any concessions made by AIC) that Ms Brown had a workplace right, in that she was able to make a complaint or inquiry in relation to her employment within the meaning of s.341(1)(c)(ii) of the Act, and that the November 2019 Complaints, February 2020 Inquiry, April 2020 Complaint, May 2020 Complaint, June 2020 Complaint, First June 2020 Inquiry, Second June 2020 Inquiry, and October 2020 Complaint, did constitute a “complaint or inquiry”, and were therefore an exercise of a “workplace right”, Ms Brown fails in her claim nonetheless for reasons which are explained below.[9]
[9] See [113]-[150], dealing with proper investigation and dismissal.
Family or Carer’s Responsibilities
The phrase “family or carer’s responsibilities” is not defined in the Act, but its use is derived from the Sex Discrimination Act 1984 (Cth),[10] which provides in s.4A(1) that family responsibilities means the responsibilities of the person to care for or support a dependent child of the person or any other immediate family member who is in need of care and support.
[10] Cross v Harbour City Ferries t/as Harbour City Ferries [2017] FCCA 514 at [44] (“Cross v Harbour City Ferries”) (not disturbed on appeal).
As noted earlier in these reasons:
(a)Ms Brown is a caregiver of 6 children; and
(b)In July 2020, one of Ms Brown’s children was diagnosed with depression and was hospitalised. Ms Brown notified AIC from time to time that she was unable to work due to family responsibilities in respect of that child.
In the circumstances, the Court finds that Ms Brown did have family or carer’s responsibilities for the purposes of s.351 of the Act.
Race
The term “race” is not defined in the Act.
As noted earlier in these reasons Ms Brown identifies as Aboriginal. The Court accepts that she is of Aboriginal descent and race for the purposes of s.351 of the Act.
Disability
The terms “disability” is not defined in the Act.
In respect of the proper definition of disability in s.351 of the Act, it has been held that:[11]
[T]he word “disability” should be understood to refer to a particular physical or mental weakness or incapacity and to include a condition which limits a person’s movements, activities or senses. Examples can be found in the definition of disability in the Disability Discrimination Act. Importantly, however, while physical or mental limitations may be a disability or an aspect of a disability, their practical consequences, such as absence from work, are not. This distinction is significant when a party is required to identify the disability said to be the reason of adverse action alleged to have been taken against them.
[11] Hodkinson at [146].
In Liu v Compuworld Pty Ltd[12] the Fair Work Commission found that gestational diabetes was a disability within the meaning of s.351 of the Act.[13] In an interim hearing where the applicant sought an injunction, the Federal Court of Australia in CFMEU v Peabody Energy Australia Coal Pty Ltd[14] was satisfied that type-1 diabetes was a disability within the meaning of s.351 of the Act. In Walker v Cape Australia Onshore Pty Ltd,[15] the then Federal Circuit Court did not dispute that type-2 diabetes was a physical disability.
[12] [2020] FWC 2569 at [149].
[13] This case was appealed but not on this point.
[14] [2014] FCA 394.
[15] [2019] FCCA 2397.
As noted earlier in these reasons, Ms Brown is type-2 diabetic and insulin dependent. She self-injects with insulin on a daily basis. It is a manifestation of her condition that the site of the injections is irritated by having to tuck in her shirt.
In these circumstances, the Court finds that Ms Brown has a physical disability for the purposes of s.351 of the Act.
Was there a failure to properly investigate Ms Brown’s complaints and did AIC injure Ms Brown in her employment?
It is important for the purposes of determination of the applicant’s claim, to carefully consider the pleadings and the way that Ms Brown has argued her case.
During oral submissions, it was submitted on behalf of the applicant that the adverse action was that the complaints and inquiries were not investigated and no conclusion or outcome was reached through those processes. For example, it was submitted that there was a failure to investigate the November 2019 Complaints because the investigation was not concluded, and there was no outcome and no apology. It was submitted that the Court could take judicial notice of the proposition that a proper investigation needs to have a written outcome or some sort of formal outcome. It was submitted on behalf of the applicant that AIC had its own policy which was not applied, a matter which was not pleaded. It was further submitted that the adverse action is a lack of adequate investigation and that there needs to be a concluded outcome presented to Ms Brown. No evidence was led about this nor was the Court taken to any authority in support of these propositions.
In respect of the November 2019 Complaints (which the February 2020 Inquiry was a follow up about), the Court finds that AIC did investigate and respond to Ms Brown’s various complaints and inquiry. AIC met with the employee who made the comments Ms Brown complained about, it met with another employee who was present during the conversation to get that employee’s perspective, and ultimately notified Ms Brown about the outcome of its investigations. While Ms Brown did not receive a personal apology from the employee who made the statements, she was advised that the employee had been willing to apologise and that the relevant employees had been spoken to about the conversations.
In respect of the April 2020 Complaint, having regard to the findings at [55], it is clear that AIC did investigate and respond to Ms Brown’s complaint, appropriately and adequately. It is further noted that the complaint by Ms Brown was not in respect of her employment, but rather in respect of her daughter’s, Kym’s, employment.
The complaints and inquiries made by Ms Brown being May 2020 Complaint, June 2020 Complaint and the First and Second June 2020 Inquiries, dealt with the same issues raised at different times and in different ways, but were for the most part ultimately encompassed in the June 2020 Complaint. Having regard to the findings at [55]-[77], Ms Brown’s concerns were addressed and she was notified of the outcome of not only the investigation of her complaint, but also of processes which were in place and how to utilise them. The evidence establishes that Ms Brown was not happy with the outcome of the investigation rather than any lack of “proper” investigation. She was disappointed with the process.
Lastly, in respect of the October 2020 Complaint, this was responded to in detail by AIC on 3 November 2020. Ms Brown has not established how this response was inadequate or improper in the way alleged.
The Court finds that AIC’s actions in investigating the complaints did not amount to a failure to properly investigate, a failure to adequately investigate nor a failure to adequately address Ms Brown’s complaints.
Lastly and most importantly, Ms Brown has not established how the failure to properly investigate has resulted in an injury in the requisite sense.
Ms Brown pleads that the adverse action “injured” her in her employment, not that her position was altered. In Lamont v University of Queensland (No.2) (“Lamont”)[16] the Court held that what is required by s.342(1) is that the employer injures the employee, and that “it is not enough that an action by an employer is itself wrong or unjust – it must cause some kind of material harm or detriment to the employee.”
[16] [2020] FCA 720 at [67].
The Court further held in Lamont that “distress falling short of a recognisable psychiatric illness may be regarded as an injury if it causes sufficient harm, damage, hurt or impairment to the employee’s emotional state.”[17] This requires a qualitative judgement to be made by the Court as to whether the level of emotional distress demonstrated by the evidence amounts to an injury.[18]
[17] Lamont at [71].
[18] Lamont at [72].
The evidence in the present case, does not demonstrate any “injury” resulting from the disappointment suffered by Ms Brown in respect of AIC’s investigation process. When determining whether an injury has occurred, it is necessary for the Court to take an objective view, “the employee’s subjective view alone is insufficient to make out an injury.”[19]
[19] Lamont at [74]
As is clear from the factual findings at [51] to [83], notwithstanding the making of the complaints, Ms Brown was offered swings by AIC both during and after the complaints and inquiries were made. Ms Brown’s oral evidence is that the reason she did not accept the shifts offered to her was because of her family responsibilities, and not for any other reason.
Despite pleading that Ms Brown repeatedly notified AIC that she did not feel safe returning to work due to AIC’s failure to appropriately investigate the complaints, the evidence does not establish that any such notifications were made, lest of all repeatedly. The most that the evidence establishes is that Ms Brown told Ms Kale that “I still have concerns about safety if I was to return to site given the way my complaints were handled in the middle of the year” in a phone call the day before the letter of 16 December 2020.
The evidence does not establish that Ms Brown did not accept shifts because she felt unsafe.
The evidence does not establish that Ms Brown told AIC that she was feeling unsafe due to its lack of “proper” investigation of her complaints and inquiries or for any other reason.
What Ms Brown deposes to is that she was “entirely disappointed” in AIC’s investigation “particularly given their severity and the impact the statements could have on the health and safety of the site.”[20] Ms Brown does not put before the Court any evidence that there was any impact on her health and safety in respect of that or indeed any particular site.
[20] Affidavit of Cherrie Brown 18 February 2022 [94] (emphasis added).
It was put to Ms Brown in cross-examination that she never told Ms Evans, when replying to emails from Ms Evans offering swings or asking for her availability, that she was afraid for her health and safety on site. Ms Brown accepted that she never mentioned this to Ms Evans but said that this was because it would not have been appropriate to ventilate these concerns with Ms Evans because it was Ms Kale who was dealing with the complaints.
On an objective view of the evidence, the Court is not satisfied that an injury has occurred and, as such, that the applicant has not established that AIC took adverse action as alleged in respect of the complaints and inquiries.
Was Ms Brown dismissed and, if so, was it for a prohibited reason?
Ms Brown was employed as a casual employee.
The term “casual” is not one of any precision or fixed meaning.[21] Traditionally, casual employees were regarded as employed only for the duration of a specific engagement:[22] “The essence of casualness is the absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work.”[23] It is however, now also recognised that a person may be engaged as a casual employee under a single continuing contract, and that the actual performance of work under that contract may be intermittent or irregular.[24]
[21] Doyle v Sydne Steel Co Ltd (1936) 56 CLR 545 at 551.
[22] Thompson v Big Bert Pty Ltd t/as Charles Hotel [2007] FCA 1978 at [58] cited in Cross v Harbour City Ferries at [17].
[23] Hamzy v Tricon International Restaurants (2001) 115 FCR 78 at [38].
[24] Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The North Queensland Stadium Case) (10 July 2020) [2020] FCA 947; 297 IR 151 (Rangiah J) at [75] citing WorkPac Pty Ltd v Rossato [2020] FCAFC 84, White J at [412].
The terms and conditions of Ms Brown’s casual employment with AIC were as set out in the letter of appointment dated 13 September 2017. Her casual employment was subject to the Action Industrial Catering Enterprise Bargaining Agreement 2017 (“EBA”).[25] Clause 5.2(d) of the EBA provides that:
'Casual employee' means an employee engaged by the day, from time to time, as work is offered and will be paid a casual loading of 25% as provided for in this agreement. The casual loading is paid as compensation for annual leave, personal/carer's leave, notice of termination, redundancy benefits and the other entitlements of full-time or part-time employment. 25% casual loading is only applicable to base rate and not on all-purpose flat rate.
[25] [2017] FWCA 5085. Between September 2017 and 8 October 2017, Ms Brown’s employment was subject to the Action Industrial Catering Enterprise Agreement 2013 [2013] FWCA 4705, which had an identical term.
The terms and conditions of Ms Brown’s employment expressly provided the employment to be “day to day”. As such, her employment terminated at the end of each day she was engaged.
The last shift Ms Brown worked for AIC was on 23 July 2020, when she left a swing she started on 20 July 2020 early due to a medical episode. Therefore, Ms Brown’s last day of employment was 23 July 2020.
Ms Brown was offered employment between 23 July 2020 and December 2020, but did not take up any of the offers. The effect of the letter of 16 December 2020 was to remove her from the pool of casual employees, such that she would no longer be offered any casual employment.
Despite the language used in AIC’s parent company Civeo’s email of casuals being “terminated” and Ms Kale using the terms processing “resignation” and “cessation of employment”, the parties’ use and understanding of such words is not conclusive of the establishment and/or cessation of the legal relationship, including the legal effect of the 16 December 2020 letter.[26]
[26] See for example: Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [58] (Kiefel CJ, Keane and Edelman JJ).
In any event, for reasons which are explained below, even if the Court is wrong about this and Ms Brown was dismissed from her employment on 16 December 2020, it was not for a prohibited reason.
During closing submissions, Ms Brown, through her lawyer submitted that even if the 16 December 2020 did not have the effect of dismissing her but that it removed her from the pool of casual employees, such an action would still constitute adverse action against her. Parties are bound by their pleadings and such adverse action was not pleaded. Regardless, given the Court’s findings that the 16 December 2020 letter was not sent for a prohibited reason, the substance of this submission, if pleaded, would not have changed the outcome for Ms Brown.
From about June 2018, Ms Brown was offered swings by AIC and she had the choice of whether to take them or not. In cross-examination, Ms Brown agreed that she would, at times, approach AIC for shifts and, at other times, AIC would approach Ms Brown to offer shifts or seek availability.
Prior to June 2020, it was generally AIC’s policy to remove casual employees from the casual relief pool if they were unavailable for a period of 3 or more months, however, this was not a consistently applied practice.
For two periods in 2018 and 2019, Ms Brown did not work any swings for AIC for a period of five months and six months respectively. She was not removed from the casual relief pool during or after these periods.
Up until July 2020, Ms Kale maintained a pool of casual relief employees who would be contacted by her via email when a supervisor or camp manager would contact her seeking to cover vacancies. In July 2020, the process for managing the relief pool changed when new software was introduced to identify any vacancies that needed filling. Thereafter, casual employees were contacted to enquire of their future availability and if no contact was received or if a casual was not available, AIC would write to the casual employee to inform them that their employment had ceased. This practice was applied consistently to all casual employees.
As noted at [136] above, Ms Brown was offered employment between 23 July 2020 and December 2020. She either did not respond to the offers or she declined the employment due to having to care for her daughter.
In October 2020, AIC wrote to Ms Brown, asking for an ‘update on your work availability’ and explaining AIC policy only allows the “Relief Pool to be without work for 2 months” and that if she was not available to work the following week, then the parties may need to look at parting ways for the time being.
In accordance with AIC practice, Ms Kale attempted unsuccessfully to phone Ms Brown on 3 December 2020, and then subsequently sent the 3 December 2020 letter to Ms Brown. Due to a lack of reply to the letter of 3 December 2020, Ms Kale sent the 16 December 2020 letter.
Ms Kale says that the two reasons why she sent this letter were that:[27]
a.I did not hear from Cherrie about her availability to work despite the letter of 3 December 2020; and
b.from June 2020 AIC’s practice was to only retain staff in the casual relief pool for a period of two months due to their unavailability to work.
[27] Affidavit of Ms Kale 8 April 2022 [95].
The Court accepts Ms Kale’s evidence that these were the sole reasons why she sent the 16 December 2020 letter. She expressly denies sending the 16 December 2020 letter because of Ms Brown’s complaints or because of Ms Brown’s family and carer responsibilities, race or disability:[28]
I had no other reasons for sending the letter to Cherrie on 16 December 2020. I did not send the letter on 16 December 2020 to Cherrie because of her 5 June 2020 complaint or because of any other complaint Cherrie said she has made. I did not send the letter on 16 December because of any family or carers responsibilities Cherrie had, or because of Cherrie’s race or because of any disability.
[28] Affidavit of Ms Kale 8 April 2022 [97].
Ms Kale says that she was not aware that Ms Brown was pregnant in August 2020 or gave birth in February 2021 until she read her evidence in these proceedings.[29]
[29] Affidavit of Ms Kale 8 April 2022 [98].
The Court accepts Ms Kale’s evidence about the reasons for sending the 16 December 2020 letter to Ms Brown. The reason that the letter was sent was not for any prohibited reason and it did not include as part of the reason, any prohibited reason.
CONCLUSION
For reasons which have been explained, Ms Brown’s claims have all been rejected. The application will therefore be dismissed.
I certify that the preceding one hundred and fifty-one (151) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Deputy Associate:
Dated: 8 December 2023
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