Buksh v Holmesglen Institute
[2022] FedCFamC2G 154
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Buksh v Holmesglen Institute [2022] FedCFamC2G 154
File number(s): MLG 1802 of 2020 Judgment of: JUDGE BURCHARDT Date of judgment: 11 March 2022 Catchwords: INDUSTRIAL LAW – Application seeking remedies arising from alleged adverse action and/or underpayment of wages – applicant undoubtedly raised complaint/inquiry about his hours of work and an underpayment of wages upon his change from casual to part-time employment – employer’s evidence that applicant dismissed for poor performance – respondent’s witnesses wholly credible – clear that termination of applicant’s employment caused by genuine perception of applicant’s unsuitability – to the extent of it’s applicability, respondent comprehensively discharging reverse onus – adverse action claims dismissed – orders to be made to consider matters arising from admitted underpayment of wages. Legislation: Fair Work Act 2009 (Cth) Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] 248 CLR 500 Division: Division 2 General Federal Law Number of paragraphs: 89 Date of last submission/s: 22 February 2022 Date of hearing: 21 & 22 February 2022 Place: Melbourne The Applicant: The Applicant was self-represented Counsel for the Respondent: Mr Denton Solicitor for the Respondent: MinterEllison ORDERS
MLG 1802 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BEN BUKSH
Applicant
AND: HOLMESGLEN INSTITUTE
Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
11 MARCH 2022
THE COURT ORDERS THAT:
1.The applicant’s claims arising from alleged adverse action are dismissed.
2.The applicant file and serve written submissions on or before 25 March 2022.
3.The respondent to file and serve any written submissions in reply on or before 8 April 2022.
4.The applicant file and serve any written submissions in response on or before 15 April 2022.
5.The matter be listed for mention on 22 April 2022 at 9.00am.
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 BURCHARDT
INTRODUCTORY
The applicant, Mr Buksh, seeks remedies for adverse action he says was taken against him by his former employer, Holmesglen Institute. On one view, the adverse action is put in a fairly broad way, to which it will be necessary to return, but essentially, what he really complains about most is the termination of his employment on 17 December 2019. He also seeks remedies for underpayment of wages and annual leave arising out of an underpayment of salary, annual leave and superannuation, these being admitted and the underpayments being rectified in February 2021.
The respondent denies that the applicant exercised any workplace rights, and further denies that any adverse action within the meaning of the Fair Work Act 2009 (Cth) was taken in any event, asserting that Mr Buksh’s employment was ended because of poor work performance.
For the reasons that follow, I accept that the respondent was dismissed for poor work performance and for no other reason. It follows that, with the exception of the admitted matters, which will require further consideration as to the applicant’s civil penalties claim in respect of them, the application must be dismissed.
AGREED MATTERS
Although there are many points of dispute, there are a number of matters that can properly be said to be agreed or not the subject of controversy.
The applicant was first engaged as a casual employee in the Bachelor of Nursing (BAN) course run by the respondent in September 2019. The respondent was short of employees to teach both that course and the Diploma of Nursing course. On 28 October 2019, the applicant ceased his casual employment in the Bachelor of Nursing and became a permanent point 8 part time employee in the Department of Nursing course.
On 12 November 2019, the applicant signed a workplan template previously sent to him by his supervisor, Ms Pillay (CB 736 – countersigned 19 December 2019) which set out the weekly roster for Mr Buksh of 7.5 hours of work each day from Monday to Thursday, being a total obviously of 30 hours, albeit that the Time Fraction Duty Hours were 30.4.
A scanned copy of that document was forwarded on 14 November 2019 (KP10 to the affidavit of Ms Pillay, CB 320-322) and which followed a meeting on 13 November 2019 which is the subject of dispute. On 2 December 2019, Ms Pillay sent the applicant an email asserting, inter alia, “I was looking for you before 3 pm and you were not in” (and went on to request that he cover some sessions on the Tuesday). The applicant’s response is at various places in the Court book, but at CB 334, records:
Hi Kamini,
Sorry i missed you today, i was in early to do marking this morning from 6:30 till 10:30 then had class/ lab till 12:30. I had to leave soon after lunch because i was feeling unwell. Iv booked 2 medical appointments tomorrow for tuesday, so i will need to take sick leave for tomorrow. Sorry for the inconvenience, I will have a medical certificate for the time off. Sorry i cant fill in tomorrw. I was planning to speak with you today but was feeling really unwell after lunch. I should be ok for Wednesday, but ill let you know tomorrow after my appointments.
Kind regards, Ben.
Ms Pillay replied the same day (again, CB 334)
I am sorry you are not well. You are entitled to sick leave if you are not well.
I am concerned however that you are tating that you got here at 6 30 Maybe I did not make my elf clear at our workplan meeting . We had specifically discussed that staff are not to be working unsociable hours. This leaves you unavailable during work hours.
A per ecurity the building doe not open until 7 15
Another concern is that you left soon after lunch and did not let any of us know.
Let’ catch up on your return and we can di cu thi The EM are here to upport you and an wer any que tion Kind regards.
On 4 December 2019, Ms Pillay asked Mr Buksh to attend a meeting at her office (CB 336).
That meeting is the subject of vivid dispute to which, once again, it will be necessary to return. But following the meeting, Ms Pillay wrote to Kerry Hood, her own supervisor, with a copy to Michelle Hall and Jianbo Chang who had been at the meeting (or at least most of it) setting out a summary of Mr Buksh’s performance (CB 338-339).
On 5 December 2019, the applicant emailed Dr Hood and Ms Pillay about a problem he was having with Turnitin which was the Holmesglen software for posting results, and Ms Pillay undertook to come to his desk to see what the issue was (CB 342). Once again, there is a dispute as to what took place at the subsequent meeting that day between the applicant and Ms Pillay.
On the same day, the applicant sent an email to Dr Hood seeking a meeting (CB 344). The message stated:
If you can let me know when a suitable time would be available to have a brief meeting,
in regards to my last email and after looking into the VET teaching agreement I have some further questions in regards to attendance. The union has stated that under section/clause 31. The requirement for a full time staff member would be required 30 hr per week on campu for 42 week and I am wondering why Kamini ha tated 46 week at 38hr per week Pro rata to the VET agreement would be 0.8 x 30= 24 hours required for on campus time for 0.8 EFT.
if we can organise sometime to clarify this and the previous concerns mentioned that would much appreciated.
Ms Hood responded the same day indicating that she would arrange a time to meet the applicant and Ms Pillay the following week and invited him to get in touch with Trudy Wheeler to organise a time (CB 345). On the same day again, 5 December 2019, Ms Pillay wrote to Mr Buksh (CB 349) stating:
Dear Ben
As per our conversation today regarding your work hours, working extra hours and your 8 hour work day, I have emailed George and this is his response regarding the meal break.
So you are working only 7.5 hours per day.
A teacher is generally paid for 7.6 hours a day assuming a full day of work. This does not include a meal break, ie. half hour lunch is not paid.
I hope this clears things up for you but please feel free to contact George Dus regarding any TAFE teacher agreement questions.
The response from Mr Buksh on 6 December 2019 was:
Hi thank for the update On Thur day i did arrive at 7 15am and fini hed at 4pm I did al o have a hortened lunch break and worked thru my morning tea break. All assessments for case study one have been completed. I am unsure how to release the result as i have not been shown how to do this. There is one student whom has similarity issues at over 60%.
Their grade has come in at 40% final score.
In the meantime, and unknown to Mr Buksh, Dr Hood had written on 22 November 2019 to Dr Patricia Farnes, Associate Director Human Resources, indicating that she was considering terminating three employees for performance reasons by discontinuing the employment of three staff appointed to nursing who were then within their six-month qualifying period, one of whom she has deposed without challenge was Mr Buksh.
Thereafter, on 4 December 2019, Dr Hood received an email from Mr Buksh (CB 418) which stated:
Dear Kerry
After a brief meeting this morning in the EM's office, I do need to express my highest level of concern in regards to conduct and appropriate behaviors of staff.
This meeting was suppose to be about marking and if i could take on further responsibilities.
The meeting quickly turned to how much marking i was doing and that i had not for-filled my required teaching hours, i have expressed concerns about the large volume of marking and assessments i have already done.
In the short time i have been at Holmesglen i have not been given adequate time to complete the induction process completely and still have PER forms to complete.
Additionally at the meeting i did mention a staff member whom has been giving me a hard time since i came across from the casual employment to part time. All three EM staff insisted i come forth with the name so i believe a meeting to discuss this further with you would be more appropriate.
It should be noted that, according to her affidavit, Dr Hood had, in late November and early December 2019, considered Mr Buksh’s performance and conduct, in part, in the light of asserted prior conversations with Dr Pillay, and had come to the view that, “There was, to me, a clear mismatch between Mr Buksh's skill set and the requirements of his part time role ” (affidavit paragraph 34, CB 369)
She had other concerns expressed in that paragraph and made a decision to terminate the employment, which, from paragraph 35 of her affidavit, was plainly before 4 December 2019.
Thereafter, it is fair to say that a process was engaged in whereby approval was sought from human resources and from more senior officers of Holmesglen, and in the ultimate, Mr Buksh’s employment was ended on 17 December 2019 as earlier indicated.
THE AREAS OF DISPUTE
The Applicant’s Adverse Action Claims
Before coming to the various iterations of the claims advanced by Mr Buksh it is appropriate to bear in mind that the issues the Court has asked to determine are:
(a)what workplace rights does Mr Buksh assert?;
(b)did Mr Buksh exercise those rights?;
(c)was adverse action taken against Mr Buksh?; and
(d)was the adverse action taken wholly or substantially because of the exercise of the workplace rights?.
I propose to deal with the matter by taking each of the rights asserted in the applicant’s statement of claim. I will then consider any additional matters that might be said to have arisen during the conduct of the trial.
The First Query
This is described at paragraph 9 of the applicants further amended statement of claim as:
The Applicant had raised an initial question (the “First Query”) about underpayment wages to the Respondent’s staff in October 2019, and was told pay issues were to be expected, this was stated to the Applicant by the secretary to Ms Kerry Hood.
Those paragraphs of the applicant’s first affidavit filed 8 July 2021 that dealt with this were struck out following an earlier series of objections by the respondent. The matter is also not traversed in his second affidavit dated 2 November 2021.
Ms Hood at paragraph 63 of her affidavit (CB 375) deposed:
I am aware that Mr Buksh claims that he raised queries about his pay with my personal assistant, or a person who assisted me with booking meetings. As noted at paragraph 11 above, while employed at Holmesglen I did not have a personal assistant, although I did have administration support. If Mr Buksh did approach one of the administrative assistants they would have directed Mr Buksh to speak to Human Resources. No administrative assistant ever approached me to tell me that Mr Buksh had complained about his pay. Nor did any other person advise me at any time that Mr Buksh claimed he had been underpaid. The first time I was aware of Mr Buksh alleging that he had been underpaid was when he made this claim in the email he sent to me on 17 December 2019, after his employment was terminated.
The reference to paragraph 11 is as follows:
During my employment, I did not have a personal assistant. However, there were approximately four administrative staff members in the Department from time to time, some employed on a casual basis.
While it is clear of course that raising a query about underpayment would be the exercise of a workplace right within the meaning of section 340 and section 341 of the Fair Work Act, and I am prepared to assume in Mr Buksh’s favour that he did indeed press such an inquiry to some unnamed person in the administration of the respondent, it is immediately apparent that Ms Hood, who was in substance the person who made the decision to terminate the employment, was not activated in any way by it.
This brings us to a matter I might perhaps have raised earlier, namely, the credibility of the witnesses. Counsel for the respondent in final submissions submitted that the applicant was not a satisfactory witness. He also submitted that the respondent’s witnesses were to be believed.
It is sufficient if I say first of all Mr Buksh was not a satisfactory witness. His answers showed a very pronounced tendency to veer off to irrelevant matters and an inability to concentrate on the question at hand. A number of his answers struck me as being evasive and certainly numerous answers were nonresponsive to the questions put. By way of contrast, it is sufficient to say that each and every witness called by the respondent was clear, articulate, responsive to the questions put and plainly, having seen and heard them give their evidence, telling the truth. I bear in mind the applicant’s self-representation and the difficulty for him in formulating questions as a result, but the picture that emerged for me from the evidence as a whole could scarcely have been clearer. The respondent’s witnesses to a woman (and they were all female) were excellent witnesses and unfortunately the applicant was not.
The Second Query
This is described in paragraph 13 of the further amended statement of claim as:
On 4 December 2019 the Applicant attended the Respondent's office to enquire about how to lodge a sick leave certificate so he would be paid and to clarify further, the current work off campus arrangements that was to be recorded as paid work. The Applicant also complained about the disorganised rostering by Ms Pillay and how the students were very upset by this disorganised rostering. He also complained that he had not been paid properly for the days he worked as a casual employee on 22, 23 and 24 October 2019. (the "Second Query''). The Applicant met for an informal meeting with Ms Pillay at her office. Also present were Jianbo Chang and Michele Hall who were 2 other supervisors in the Nursing department at the Respondent
The statement of claim goes on at paragraph 14 to give more detail of the meeting:
Ms Pillay claimed in response to the Second Query that under the Enterprise Agreement as 0.8 EFT the Applicant was entitled to work 3.2 hours per week off campus. The Applicant advised Ms Pillay that this was inconsistent with the Enterprise Agreement and the advice he had received from the Union. Michelle Hall and Jianbo Chang criticised the Applicant's commitment to his work. The Applicant asked Ms Pillay what happened with the Applicant's lead teacher Dairy Kuar. In response Ms Hall and Ms Chang walked out of the office and screamed at the Applicant the meeting is over. At the time Daisy Kuar's employment had been terminated and Ms Pillay said the Applicant could have her job if he wished. Because of Ms Kuar's departure the Applicant was being required to do a substantial amount of additional assessment work that had formerly been the role of Ms Kuar. Ms Pillay made no further comment about the rostering. She refused to assist the Applicant with his sick leave application.
What the applicant said about this meeting in his first affidavit is not in fact as fulsome as the paragraph immediately above. What is said is at paragraphs 30-34 (CB 113):
30.On 4 December 2019, I exercised my workplace right to make reasonable enquiries to my manager in a meeting with Kamini Pillay to ask about how to lodge sick leave certificates to the Respondent's accounting department, about work off campus arrangements and issues of over-rostering. Annexed hereto and marked as the document, "BB-10" is my payslip which provides evidence of the initial underpayment.
31.Present in the office in that meeting on 4 December 2019 were 2 other staff members, known to me to be Jianbo Chang and Michelle Hall. At this meeting I was questioned by all three managers in what I would characterise as an aggressive tone. I exercised my workplace right to report a workplace issue and my concerns about being treated rudely by another staff member on 6 November 2019 after the presentation by another teacher and was told words to the effect that nothing would be done about this.
32.When the managers were notified about my concerns of conduct involving another staff member, the management staff did pressure me for further information in an unsupportive m; seemingly to try to find any way this was actually my fault. Additionally, they then criticized my teaching skills when I exercised my workplace right to ask for assistance with marking additional assessments; as my workload had increased recently after another staff member was dismissed.
Raising Query on s340 FWA
33.At this meeting, I exercised my workplace right to make reasonable enquiries with my management and questioned the compensation issues and attendance issues and the work off campus arrangements that had been allocated to me by the workplace, however, Kamini Pillay did not want to discuss this information. Two of the managers, Jianbo Chang and Michelle Hall, walked out of the office while Kamini Pillay and I were still discussing my attendance query. Kamini Pillay, told me when I asked if they could provide some assistance with my lodging the sick leave certificates, "to get your bloody sick leave certificates out of here". I do remember this to be the exact wording.
34.The other managers later came back and attempted to disrupt the meeting or halt the meeting from the corridor or doorway outside the office, by saying words to the effect, "Come on Kanimi, lets go .. Don't worry about it".
Ms Pillay’s responding material is at paragraphs 44-56 of her affidavit (CB 233-236). I do not propose to set it down in full. The salient points in her narrative are, that
(a)Ms Pillay called Mr Buksh to a meeting by an email sent on 4 December 2019 (CB 336) and in that email stated relevantly “Just want to check the status of the CNA case scenario 1 marking”. She intended to discuss concerns about Mr Buksh’s marking and matters she had raised in an email to Mr Buksh on 3 December 2019.
That email chain has been set out earlier but it is worth repeating it in the light of the way Mr Buksh puts the events. By his email of 2 December 2019, Mr Buksh had said he had left early because he was ill and the responding email from Ms Pillay relevantly said (CB 334), “I'm sorry you’re not well. You’re entitled to sick leave if you are not well.”
(b)Ms Pillay at the meeting on 4 December was told by Mr Buksh that he was taking an hour to mark each assessment and he was feeling overloaded and that he was being expected to work in excess of his contracted hours of work, to which Ms Pillay replied that an hour was too long. She explained the usual time was 15 minutes per assessment and outlined strategies that she and other teachers use to mark effectively.
(c)Ms Pillay deposed her perception that Mr Buksh did not understand her.
(d)Ms Pillay raised her concern that Mr Buksh needed to be on campus when he was scheduled to be and that if he needed to leave early, he should let her or another EM (Education Manager) know because, amongst other things, there were occupational health and safety reasons. Mr Buksh said he was 0.8 FTE and only required to be on campus for three days per week, which was in direct conflict with the work plan he had signed on 13 November 2019, and Ms Pillay told him this, that he needed to work 30.4 hours per week and needed to be on campus for three full periods of eight hours with a lunch break and a fourth day needed to be on campus for part of the day and could work 6.4 hours off campus.
(e)Mr Buksh said he had a heavy workload and referred to hours recorded in his diary, which included coming to work on campus on Sundays. Ms Pillay was confused by this as the building was locked, inaccessible to staff, on Sundays. She was also concerned as she previously told him on 13 November 2019 that he should not be working additional hours.
(f)Mr Buksh did refer to the departure of Daisy Kaur but her work had been divided among Mr Buksh and four other new staff who had not been fully allocated to teaching duties and were therefore available to mark for other units. Mr Pillay declined to discuss Ms Kaur’s circumstances with Mr Buksh. She denied offering Mr Buksh Ms Kaur’s job.
(g)Mr Buksh was unhappy about being allocated to lead a unit to begin in April 2020 not having been given sufficient preparation time. He was required to lead the teaching material that had already been prepared by the unit coordinator. Ms Hall and Ms Pillay asked Mr Buksh what his expectation of the role was, and he thought he would do the same work as a casual, which was essentially tutoring. Ms Pillay explained to him as she had when first considering the transfer to the EM program, the work of a teacher was different. All teachers led units. Others who had started at the same time as Mr Buksh were being allocated to lead unit from February 2020.
(h)Mr Buksh did not mention anything about rostering, disorganised or otherwise, during the conversation and did not mention sick leave or provide sick leave certificates.
(i)Mr Buksh did express concern about his pay, and Ms Pillay advised him to contact the BAN team as they would have the relevant records.
(j)Mr Buksh did raise the issue of being bullied by a BAN staff member. This was a serious matter, so Ms Pillay asked for more information and Ms Pillay said that if he believed he was being bullied, it was critical he raise a formal complaint so the matter could be dealt with. Mr Buksh said he was thinking about raising the matter with human resources which Ms Pillay thought was appropriate.
(k)Mr Buksh became angry during the meeting. His manner was agitated, and he started to raise his voice, and Ms Pillay did not raise her voice, nor did Ms Chang or Ms Hall.
Affidavit of Ms Hall
Ms Hall happened to be in the office when Ms Pillay attended. Mr Buksh wanted to talk to Ms Pillay about off-campus work arrangements and he kept saying he should get a full day working off campus. Ms Pillay explained that he would be entitled to 6.4 hours of work off campus time as a result of the enterprise agreement (paragraph 16) CB 720.
Ms Pillay raised concerns about the time it was taking Mr Buksh to mark assignments, Mr Buksh taking one hour when 15 minutes was usual (paragraph 18).
Mr Buksh said to Ms Pillay that his workload unmanageable which puzzled Ms Hall because he had the same workload as other new teachers who had just commenced (paragraph 19).
Mr Buksh expressed concern he was not being provided with sufficient preparation time to undertake the rule of unit leading Diploma of Nursing in April 2020, but the unit lead is just required to deliver the content and manage students. Most new teachers start acting as a unit lead within a few months of starting work (paragraph 20).
There was also discussion between Ms Pillay and Mr Buksh about him leaving the campus and not letting the EMs when he was leaving but Mr Buksh did not respond (paragraph 21).
Ms Hall only participated in the discussion when Mr Buksh raised allegations he had been bullied, and Ms Hall asked him for more information, including the names of staff members. Both Ms Pillay and Ms Hall strongly encouraged Mr Buksh to speak to Dr Hood and/or human resources and he said he was thinking about it (paragraph 22). Mr Buksh’s voice was raised as the meeting went on, repeating his request to have Thursdays off (paragraph 24). Because the discussion seemed to be going nowhere, Ms Hall stated to Ms Pillay and Mr Buksh that the meeting needed to end, as did Ms Chang. No one yelled at Mr Buksh. (paragraph 25).
The Affidavit of Jianbo Chang
Ms Chang’s affidavit noted that she happened to be in the room when Mr Buksh attended (paragraph 14, CB 742).
Ms Pillay raised concerns with Mr Buksh in relation to his request for work off campus, and he was only entitled to about six hours off campus, not a full day. Ms Pillay spent a lot of time attempting to explain this to Mr Buksh, and Ms Chang had witnessed her attempting to explain this to Mr Buksh on previous occasions as well, but he did not seem to understand (paragraph 16).
Ms Pillay raised concerns about Mr Buksh’s slow marking and time management with Mr Buksh saying he needed an hour to mark an assignment, but Ms Chang pointed out that other staff took 15 to 20 minutes (paragraph 17). Mr Buksh said he was not ready to be the unit lead in Diploma of Nursing. He needed more time to prepare. But Ms Chang thought this was excessive (paragraph 18).
Ms Pillay was calm and so was Ms Chang throughout the meeting. Mr Buksh became agitated and began to raise his voice (paragraph 20).
It should be noted, of course, that the above paraphrase is not the entire text of the affidavits of the respondent’s witnesses about this meeting.
Consideration
So far as there is any conflict as to the facts concerned, it is quite apparent from the respondent’s evidence that their evidence is both entirely relevantly the same and entirely credible. I repeat, they were all excellent witnesses. Furthermore, the respondent’s version of the events is consistent with the contemporaneous documentation.
It beggars belief that Ms Pillay, who responded entirely sympathetically about the sick leave issue on 3 October 2019 should have swung round like a weathervane to a diametrically opposite position the following day. The evidence given by Ms Pillay, Ms Hall and Ms Chang is evidence given by experienced teachers in their field. I accept that the normal marking time is 15 minutes, not one hour. I accept that Mr Buksh was pressing to have a full day off campus every week. I accept Ms Pillay’s evidence that the effect of the contract and the enterprise agreement was that the maximum Mr Pillay could have off campus was 6.4 hours. This is entirely consistent with his work plan template (See CB 736). Ms Pillay never told him he could have 3.2 hours off. While Mr Pillay was certainly asserting that he was working too long, Ms Pillay, to an extent supported by Ms Hall and Ms Chang, was trying to tell him what his actual responsibilities were.
It is clear that Mr Buksh did raise issue of underpayment at that meeting, but Ms Pillay simply referred him to the BAN team, being the appropriate department. Likewise, it is clear that Mr Buksh raised the issue of being bullied, and was encouraged by both Ms Pillay and Ms Hall to raise this with the appropriate authority. It is also clear that he did not raise the issue of sick pay.
In these circumstances, I am prepared to accept in Mr Buksh’s favour that he exercised a workplace right by raising the issue of his pay and asserted alleged bullying. I am also prepared to accept that he exercised a workplace right by querying his rostered hours of work. What is entirely clear, of course, again, what remains to be considered is whether adverse action was taken against Mr Buksh and whether this was caused by the exercising of the workplace right. This is a matter to which I shall return.
The Third Query
This is pleaded at paragraph 15 of the statement of claim as:
On 5 December 2019, the Applicant met with Ms Pillay at the Applicant’s desk and asked as he was employed for 0.8 EFT wasn’t he entitled to have one day a week off and he elected to have Fridays off, especially as working from about 8am to 4.30pm every other day (the “Third Query”) and more than 3.2 hrs a week for work off campus time. Ms Pilla refused to provide the Applicant with any roster in advance and screamed at the Applicant that he had to be available to work every day from 8am to 8pm if she wanted him to work. She was very rude and dismissive of the Applicant’s complaints.
At paragraphs 37-39 of his first affidavit, Mr Buksh’s narrative of the event is as follows (CB 114)
37.On the 5 December 2019, Kamini Pillay came up to my desk in the open office area. She began to discuss the working hours and explained to me I would need to be at the workplace for 30.4 hours per week for 46 weeks of the year and was allocated 3 .2 hours of work off campus time per week.
38.I then asked her if she would provide this information in writing. She did this by drawing on a timetable that was on my desk. Annexed hereto and marked as the document "BB-13" is the evidence of the explanation and picture I was provided when asking about start and finish times at work from the Respondent's managers.
39.It was then stated to me at this time by Kamini Pillay, words to the effect that she would have me teaching "5 days a week if she wanted, from 8am to 8pm." To which my reply was, words to the effect "I only work 0.8 EFT contract and I am not a full time rostered teacher". I exercised my workplace right by asking if the work off campus time could be modified to allocated correctly for each week. At that time, Kamini, raised her voice and gestured with her right hand towards my face pointing at me in an aggressive manner; very near my face.
Ms Pillay’s evidence about this incident is at paragraph 60 and following of her affidavit. Once again, I propose to try and paraphrase it rather than set it out in full:
(a)Mr Buksh emailed Dr Hood and Ms Pillay on 5 December 2019 about a problem he was having with Turnitin which is the Holmesglen software for posting results. A copy of the email correspondence was attached to the affidavit (paragraph 60).
(b)Ms Pillay went to Mr Buksh’s desk. Mr Buksh said he solved the problem and was now considering the issue of work hours under the Agreement (paragraph 61).
(c)Ms Pillay again explained how the work hours were structured, including that he had 6.4 hours of work off campus time. She did not say he had 3.2 hours. She said he was never going to be allocated classes in such a way that he was required to be at work on any day for more than eight hours, but he did not need to be in the office outside of those hours and should not be working outside of the span of 8 am to 8 pm. Because she was concerned that Mr Buksh did not understand her explanation, she again suggested the he speak to George Dus in human resources. But Mr Buksh responded Mr Dus was too vague, (paragraph 62).
(d)Ms Pillay did not scream or make any gesture towards Mr Buksh or suggest that he had to be at work every day from 8 am to 8 pm. She deposed at paragraph 63, “It is possible that I may have sounded slightly exasperated as I was explaining the same issue to the same employee for the fourth time. But I did not scream or make any gestures.”
On the same day, Ms Pillay emailed Mr Dus asking to see if he could clarify the work arrangements, which Mr Dus did, and she emailed Mr Buksh setting out the information that emerged back (paragraph 65). On 6 December 2019, Mr Buksh emailed her thanking her for the update. CB 349:
Hi thank for the update On Thur day i did arrive at 7 15am and fini hed at 4pm I did al o have a hortened lunch break and worked thru my morning tea break.
Once again, I am prepared to assume that the raising of his hours of work by Mr Buksh was indeed the exercise of a workplace right. On any view of the matter it was a complaint or inquiry in relation to his employment (section 141(1)(c)(ii)).
Again, the critical issue is, was adverse action taken against Mr Buksh because of this.
Did Mr Buksh Otherwise Exercise any Workplace Rights?
In his oral evidence (P 41-42), Mr Buksh raised an assertion that Ms Pillay threatened his future employment on 5 December. Although this evidence appeared to vacillate as to whether it was said at a meeting on 4 December or otherwise, he seemed to me to suggest that on 4 or 5 December, after he had emailed Kerry Hood, Ms Pillay said:
Don’t worry. He will get it. I will make sure he gets it.
This was not in his affidavit material or in his statement of claim. As I indicated at P42, I had made it plain that I would not allow an ambulatory series of claims in the matter. I should repeat. This was a completely new claim not articulated in terms in the statement of claim or indeed in Mr Pillay’s affidavit material. I do not propose to allow it.
Further it should be noted that I did not understand Mr Buksh to allege that his raising the issue of the “hard time” he was being given by another employee gave rise to adverse action against him. If it were to be pressed in this way I should make it clear that any such claim would fail. The response from Ms Hood was entirely appropriate and the complaint simply never progressed before the termination of employment. On the materials before the court it is clear it played no part in the decision of Ms Hood to terminate Mr Buksh’s employment.
WHAT ACTUALLY HAPPENED
The pattern of the events as I find them is as follows. Mr Buksh commenced working for the respondent in September 2019 as a casual in the Bachelor of Nursing program. Because the respondent was having difficulty finding suitably qualified staff at the time, Mr Buksh was transferred to a part-time position in the Diploma of Nursing. As Ms Pillay has deposed, and I accept (paragraph 14 of her affidavit CB 227) she had an informal meeting with him to discuss what the role would involve, which included taking on a number of responsibilities which were significantly different to those of a casual. If he accepted the role, he would lead the teaching of the particular unit and would be responsible for that unit.
Mr Buksh and a number of other employees started on 28 October 2019. Mr Buksh was in the DN role as 0.8 equivalent full-time. The description position is “KP-3” (CB 290-295). When the employment of Mr Buksh commenced, together with other new permanent staff, all teaching had already been allocated so none of them were immediately appointed as unit leads. It was expected that those with teaching experience would commence as unit leads in February 2020 but Mr Buksh, who had no previous experience as a teacher, would start acting as a unit lead in April 2020 (Ms Pillay’s affidavit, paragraph 19).
At a meeting on 13 November 2019, Ms Pillay met with the new teachers and it was apparent to her that Mr Buksh was having difficulty understanding his working hours (paragraph 13). His work plan had a weekly roster (see CB 736), which made plain what was required of him. At the meeting on 13 November, Mr Buksh stated he was over-allocated, working from 7.30am till 5pm, but Ms Pillay told him he was not required to work those hours and explained his hours to him (see Ms Pillay’s affidavit paragraphs 31-32).
In about November 2019 and then in early December 2019, Mary Reynolds, a teacher who had started at the same time as Mr Buksh, approached Ms Pillay with concerns about his marking of the assessments for the unit, Confirm and Analyse (Ms Pillay, paragraph 35). On 26 November 2019, Ms Pillay emailed Mr Buksh twice. The first email asked how many C & A assessments were marked the previous day at home (CB 324) and the second asked him to see her that day about marking support (CB 325).
By the same time in late November 2019, Ms Hall had become aware of staff member concerns about Mr Buksh disappearing from campus during scheduled hours and taking a long time to mark assignments (Ms Hall’s affidavit, paragraph 12, CB 719).
On 2 December 2019, Ms Pillay emailed Mr Buksh asking him to teach some sessions, noting that she had been looking for him before 3 pm on 1 December, but he was not there. This led to the email response already referred to more than once when he said he was ill (CB 334).
Ms Pillay was concerned with this because she had told him on 13 November that he should not work additional hours or outside the 8 am to 8 pm span as directed, and given the earliness of the start, Ms Pillay was concerned as to whether he was being truthful as the building was not open at 6.30 am as Mr Buksh’s email asserted (Ms Pillay, CB 232 paragraph 41).
By this stage (i.e. 3 December – 4 December 2019), Ms Pillay was concerned about Mr Buksh’s performance because he was taking too long to mark his assignments, he was leaving work without notice while he was scheduled to be at work, and was either working outside the 8 am to 8 pm span or was lying about the times he said he was working (Ms Pillay, CB 233 paragraph 43).
I have already traversed in some detail the meeting on 4 December 2019. As I have indicated, the account given by the three witnesses called by the respondents was entirely credible and I accept it for the reasons expressed.
On 4 December 2019, Ms Pillay wrote to Kerry Hood with a summary of Mr Buksh’s performance (CB 338-339). This speaks for itself. That sets out to Ms Hood the gravamen of the concerns that Ms Pillay had already formed in her own mind.
These concerns were not in any way assuaged by the conversation she had with Mr Buksh on 5 December 2019, which, to the contrary, only showed that Mr Buksh simply did not understand about his hours and what was required of him. As earlier indicated, Mr Buksh responded with his own email, and on 6 December 2019, Mr Buksh responded to Ms Pillay’s information provided from Mr Dus indicating to her mind that he was still working outside the hours he was supposed to be (CB 349).
As the affidavit of Ms Hood makes clear (see paragraphs 28-29, CB 366-367) Ms Pillay had been reporting he concerns about Mr Buksh’s performance to Ms Hood from the first week in his employment through to December. Those concerns are itemised at paragraph 29 of Ms Hood’s affidavit. Ms Hood formed the view (paragraph 30) of her affidavit, “Given all of these issues, it was apparent to me Mr Buksh was not an appropriate fit for the part time DN role”.
On 22 November 2019, Ms Hood wrote to Patricia Farnes, relevantly stating (CB 415)
I have 3 staff appointed to nursing who I think we discontinue. All are currently within the 6 month qualifying period.
Is there a policy or guideline about how to go about this?
Although that email did not mention Mr Buksh, Ms Hood has convincingly deposed that he was indeed one of the three referred to.
Ms Hood returned to the matter at paragraphs 34-35 CB 369 of her affidavit in the following terms:
In late November and early December 2019, Mr Buksh's performance and conduct continued to be of concern to Ms Pillay and I. After consideration of all of the material available to me, and after my discussions with Dr Farnes and Dr Koutoukidis, I formed the view that Mr Buksh was not suitable for the role he had been appointed to. Ongoing staff are responsible for not just teaching, but also the coordination of teaching delivery, which requires organisational skills and a significant proportion of administrative work. There was, to me, a clear mismatch between Mr Buksh's skill set and the requirements of his part time role. I formed this view based on the performance and conduct issues reported to me. I was not concerned by the fact that Mr Buksh had asked questions about his hours of work. Many employees, particularly new employees, have questions of this type, and they are easily answered. What I was concerned about was Mr Buksh's inability to understand the responses given to him, which suggested an inability to process information effectively that may have been linked to his underperformance in relation to his administrative duties. I was also particularly concerned about issues of Mr Buksh’s honesty, given he was leaving work without notice and telling Ms Pillay he was attending work at times when the building was locked.
Shortly after I made my decision to terminate Mr Buksh's employment, on 4 December 2019 at 1.48 pm, I received an email from Mr Buksh expressing concern about a meeting with Education Managers earlier that day. Mr Buksh noted that Ms Pillay had raised performance concerns with him around marking and teaching hours. He also stated that he had mentioned a staff member who was giving him a "hard time" and that the Education Managers had suggested that he identify that person. He said that he believed a meeting to discuss this with me would be appropriate. A copy of Mr Buksh's email is attached to this affidavit and marked 'KLH-6'.
That email is at CB 418 and relevantly says:
After a brief meeting this morning in the EM's office, I do need to express my highest level of concern in regards to conduct and appropriate behaviors of staff.
This meeting was suppose to be about marking and if i could take on further responsibilities.
The meeting quickly turned to how much marking i was doing and that i had not for-filled my required teaching hours, i have expressed concerns about the large volume of marking and assessments i have already done. In the short time i have been at Holmesglen i have not been given adequate time to complete the induction process completely and still have PER forms to complete.
Additionally at the meeting i did mention a staff member whom has been giving me a hard time since i came across from the casual employment to part time. All three EM staff insisted i come forth with the name so i believe a meeting to discuss this further with you would be more appropriate.
Ms Pillay’s assessment of Mr Buksh was received by Ms Hood several hours after Mr Buksh’s email.
On 5 December 2019, Mr Buksh sent Ms Hood another email (CB 425) which said:
If you can let me know when a suitable time would be available to have a brief meeting, in regards to my last email and after looking into the VET teaching agreement I have some further questions in regards to attendance. The union has stated that under section/clause 31. The requirement for a full time staff member would be required 30 hrs per week on campus for 42 week and I am wondering why Kamini has stated 46 week at 38hrs per week.
Pro rata to the VET agreement would be 0.8 x 30= 24 hours required for on campus time for 0.8 EFT.
if we can organise sometime to clarify this and the previous concerns mentioned that would much appreciated. .
Ms Hood responded the same day stating, “I will arrange a time to meet you and Kamini next week. Please get in touch with Trudy Wheeler to organise a time.” As earlier indicated, following an exchange between Ms Pillay and Mr Dus, Mr Buksh sent his response on 6 December 2019 (CB 429) already referred to.
The same day, Ms Hood emailed Ms Koutoukidis and Ms Yearns stating (CB 433):
I have a staff member - Benjamin Buksh - who commenced with us 28/10/2019. Since commencement there has been repeated concerns about his performance, attendance and honesty regarding workload and start/finish times on campus.
I believe we should terminate Ben. In the last week, he has emailed several times citing clauses from the agreement and union advice. He has contacted George, Kamini and I. He has also raised a complaint about the EM behaviour (following a meeting in their office to discuss marking).
He has also requested to meet with me.
Can you advise the steps I should take so that I get this absolutely right please? I am concerned that termination now may appear in response to his raising a compliant.
Ms Farnes was copied into that email, and responded the same day noting the six-month qualifying period applicable to Mr Buksh and noting that the contract could be determined by one week’s notice or payment in lieu.
Dr Farnes provided a draft termination letter to Ms Hood, and on 16 December 2019, a copy of the termination letter signed by Ms McKinnon was sent to Ms Hood (CB 443-444) noting the date on the letter was 13 December 2019.
On 17 December 2019, Ms Hood met Mr Buksh with Mr Dus present and Mr Buksh was dismissed. Mr Buksh endeavoured to raise objections to the assessment of his performance, but Ms Hood was having none of it.
CONCLUSIONS ARISING FROM THESE FACTS
The material before the court put by the respondent is, in my view, overwhelming. Although Mr Buksh vividly disagrees, it is quite apparent that he was dismissed because the respondent, through its relevant officers, had formed the view he was simply not up to the job.
As Counsel for the respondent correctly submitted, it is not, in fact, necessary in this case for the court to form its own conclusions as to whether those criticisms were valid.
Section 340 provides that a person must not take adverse action against another person because the 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.
It is, of course, the case that pursuant to section 361, it is presumed that action was taken or for the reason alleged or with that intent unless proven otherwise.
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] 248 CLR 500, French CJ and Crennan J relevantly said when considering the correct approach at [41]:
The question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act.
Their Honours went on to say at [44]-[45]:
There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression "because" in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?".
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
Gummow and Hayne JJ came to the same conclusion, (see at [119]-[128]).
In the end, it is all too easy to be distracted by the mass of material in this case. My conclusions can be expressed shortly. I have no doubt that Ms Pillay genuinely held the concerns she says she held, which I should note in passing seem to me to be valid in the sense that Ms Pillay was an experienced person in her role and in a position to make the evaluations of Mr Buksh’s performance that she did. Even if this were wrong, however, I have no doubt that these were genuinely held. These were communicated to Ms Hood, who came to the conclusion that Mr Buksh’s probationary employment should be terminated. The reason why she did so was essentially the concerns relayed to her by Ms Pillay. Even if Mr Buksh is correct as to some aspects of the matter, even if, contrary to the view I take, some of what Ms Pillay told Ms Hood was inaccurate, it was because of what she was told and the view that she formed as a result that Ms Hood terminated (to all effects and purposes) the employment of Mr Buksh.
Such exercise of his workplace rights as Mr Buksh did indeed take had no bearing upon his termination of employment. True it is that he raised his hours on repeated occasions, but it was not the raising of the question of his hours but rather his complete failure to understand the issue that in part led to the termination of his employment. I have expressly concluded, of course, that Mr Buksh did not raise the issue of sick pay. He did raise the issue of underpayment, but this had no operation whatever on Ms Hood’s decision and indeed, she was unaware of this at the time of the termination of employment.
So in conclusion, Mr Buksh’s claim of adverse action must comprehensively fail. Nonetheless, this leaves the admitted contraventions in relation to the (in the scheme of things small) contraventions that are implicitly admitted by the admission of the underpayments. The matter will need to be listed for consideration of what orders should be made as a result of those underpayments.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 11 March 2022
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