Burgess v Unique Support Services Pty Ltd (No 2)
[2024] FedCFamC2G 1010
•10 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Burgess v Unique Support Services Pty Ltd (No 2) [2024] FedCFamC2G 1010
File number: PEG 223 of 2021 Judgment of: JUDGE LADHAMS Date of judgment: 10 October 2024 Catchwords: INDUSTRIAL LAW – alleged contraventions of ss 351 and 340 of the Fair Work Act 2009 (Cth) – where the applicant has failed to establish that steps taken by the respondent to accommodate her family and carer’s responsibilities amount to adverse action – where the applicant made complaints and inquiries in relation to her employment – where the respondent took adverse action against the applicant by removing her from a scheduled shift and dismissing her from her employment – where the respondent has failed to discharge the reverse onus in s 361 of the Fair Work Act – contravention of s 340(1) of the Fair Work Act established. Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 342, 351, 360, 361 Cases cited: Alam v National Australia Bank Limited (2021) 288 FCR 301; [2021] FCAFC 178
Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526; [2011] FCA 333
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32
Byrnes v Jokona Pty Ltd [2002] FCA 41
Dafallah v Fair Work Commission (2014) 225 FCR 559; [2014] FCA 328
Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (Hutchison Ports Appeal) [2019] FCAFC 69 at [132]
Macquarie Developments Pty Ltd v Forrester [2005] NSWSC 674
Pilbrow v University of Melbourne [2024] FCA 1140
Division: Division 2 General Federal Law Number of paragraphs: 99 Date of hearing: 26 June 2023, 27 June 2023, 10 July 2023 Place: Perth Applicant: The applicant appeared in person Counsel for the Respondent: Mr J Jo Solicitor for the Respondent: Rebus Legal ORDERS
PEG 223 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KRISTY BURGESS
Applicant
AND: UNIQUE SUPPORT SERVICES PTY LTD
Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
10 OCTOBER 2024
THE COURT DECLARES THAT:
1.The respondent contravened s 340(1) of the Fair Work Act 2009 (Cth) by taking adverse action against the applicant for a prohibited reason by:
(a)removing the applicant from a shift she was scheduled to work on 9 August 2021; and
(b)dismissing the applicant.
THE COURT ORDERS THAT:
2.The respondent pay compensation to the applicant in respect of the contravention declared above in the amount of $169.74, plus any superannuation entitlements payable to the applicant under the Superannuation Guarantee (Administration) Act 1992 (Cth).
3.Other than in respect of the declaration above, the application filed by the applicant on 22 October 2021 is dismissed.
AND THE COURT FURTHER ORDERS THAT:
4.The matter be listed for a directions hearing in relation to penalties on a date to be fixed.
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 LADHAMS:
INTRODUCTION
Ms Kristy Burgess, the applicant in this proceeding, was employed by the respondent, Unique Support Services Pty Ltd (Unique Support Services), as a disability support worker on a casual basis between February and August 2021. Unique Support Services is a National Disability Insurance Scheme registered organisation which provides personalised and supportive care and services to people with specialised needs.[1]
[1] Affidavit of Mr Wyatt at [1].
There are two main complaints that Ms Burgess makes against Unique Support Services in this proceeding. The first relates to a change in shifts to accommodate the night shift being able to take eight hours’ break between shifts. As a result of this proposed change, Ms Burgess was asked to finish her shift later. She said she could not finish later due to parenting responsibilities, and in response to this, Unique Support Services allowed her to finish at an earlier time, with the result that there was less time to hand over to the next shift. Ms Burgess alleges that Unique Support Services took adverse action against her by decreasing the time available for her to hand over to next shift because of her family or carer’s responsibilities, in contravention of s 351 of the Fair Work Act 2009 (Cth) (Fair Work Act). It is not disputed that Ms Burgess had family or carer’s responsibilities. There is, however, a live issue as to whether Unique Support Services took adverse action against Ms Burgess, and the onus is on Ms Burgess to establish this. If Ms Burgess discharges this onus, the onus will shift to Unique Support Services to establish that the reason the adverse action was taken was not because Ms Burgess had family or carer’s responsibilities.
Ms Burgess’s second complaint against Unique Support Services is that Unique Support Services took adverse action against her by removing her shifts for multiple clients, and then dismissing her from her employment, in contravention of s 340 of the Fair Work Act. Ms Burgess alleges that this was done because she exercised her workplace right to safe working conditions and advised that she would no longer attend shifts with a client who was causing her physical injuries. Based on the detail of the alleged contravention in her Form 2, and the evidence she gave in this proceeding, I understand that Ms Burgess is also asserting that she made complaints or inquiries in relation to her employment. Ms Burgess will need to establish that she had and exercised, or proposed to exercise, the asserted workplace rights, and that Unique Support Services took adverse action against her. If she can do this, the onus will shift to Unique Support Services to show that the reason it took the adverse action against Ms Burgess was not because she exercised or proposed to exercise a workplace right.
THE HEARING AND EVIDENCE BEFORE THE COURT
Ms Burgess has been self-represented throughout this proceeding. She commenced the proceeding by filing a Form 1 and a Form 2 on 22 October 2021. I have taken into account that Ms Burgess has represented herself in interpreting the assertions set out in her Form 2 and in the way in which the hearing was conducted.
Ms Burgess has filed one substantive affidavit in this matter on 21 October 2022. She has not filed evidence from any other witness.
Unique Support Services relies on the following affidavits:
(a)affidavit of Paul Richard Wyatt filed on 6 February 2023;
(b)affidavit of Julie Hilsz filed on 6 February 2023;
(c)affidavit of Cathy Constant-Stanley (or Cathy Stanley) filed on 6 February 2023[2]; and
(d)affidavit of Colette Knox filed on 6 February 2023.
[2] At the hearing, I asked Ms Stanley whether she was ‘Ms Stanley’ or ‘Ms Constant-Stanley’, to which she replied ‘both’ and indicated a preference to be call ‘Ms Stanley’ during the hearing: Transcript, 27 June 2023 at p 136. I will likewise refer to her as ‘Ms Stanley’ in this judgment.
Each of the witnesses gave evidence at the hearing and was cross-examined. Mr Wyatt is a director of Unique Support Services, Ms Stanley is employed by Unique Support Services as a Service Co-ordinator, Ms Knox is the Human Resources and Finance Manager of Unique Support Services and Ms Hilsz is a foster carer and is the legal guardian of one of the clients of Unique Support Services.
I have considered all of the evidence filed and given at the hearing, and I address the evidence that is most relevant to the resolution of each of the issues in the discussion below.
Identification of issues and procedural fairness considerations
In reviewing the affidavit evidence ahead of the hearing, I formed some concerns that there may be some matters that ought to have been addressed in the evidence, but were not addressed, or which were not addressed in detail. To address this, I spent some time at the commencement of the hearing identifying the issues in this proceeding as I saw them, and which party bore the onus of proving each of the issues, and I invited the parties to comment on the identification of issues. After the relevant issues were agreed, I stood the matter down to, amongst other things, give both parties an opportunity to reflect on whether they considered the evidence they had provided was sufficient to address the issues that they need to establish and, if not, what steps should be taken to address that, including the possibility of adjourning the hearing to another days to give both parties an opportunity to file further evidence.
When the matter resumed, both parties confirmed that they wished to proceed with the hearing on that day, but with the Court allowing oral evidence-in-chief, in addition to the affidavit evidence, to be given. I agreed to proceed in that manner, inviting both parties to tell me throughout the hearing if they felt disadvantaged by any evidence that was adduced for the first time in oral evidence and if they needed an opportunity to provide rebutting evidence.
I am satisfied that both parties had a fair opportunity to present their case. However, despite the identification of issues and the invitation for the parties to consider whether they had provided sufficient evidence to address the issues they need to establish, there are some significant gaps in the evidence before the Court, and much of the evidence that was presented did not directly relate to the issues identified by the Court and agreed by the parties.
Credibility of witnesses
On balance, I consider that each of the witnesses gave their oral evidence to the Court honestly, and I did not have any general credibility concerns in relation to the oral evidence of any witness. There were some issues regarding which the witnesses gave conflicting evidence and, where relevant, I address this below.
I do have some concerns about the identical wording of some parts of the affidavits of different witnesses in relation to important issues. Most significantly, I have concerns about identical paragraphs in the affidavits of Mr Wyatt and Ms Knox, which I have addressed below in the consideration of the alleged contravention of s 340 of the Fair Work Act. It is appropriate to treat this evidence with great caution: Byrnes v Jokona Pty Ltd [2002] FCA 41 at [14].
I do not know in the present case how those affidavits came to be prepared and therefore I do not intend to criticise any person involved in the preparation of the affidavits. I would, however, acknowledge the following observations of Palmer J in Macquarie Developments Pty Ltd v Forrester [2005] NSWSC 674 at [89]-[90], which explain why identical evidence can be of concern to the Court:
89.Clearly, the Defendants’ solicitor failed to appreciate that the evidence of each witness must be in the words of that witness and that it is totally destructive of the utility of evidence by affidavit if a solicitor or anyone else attempts to express a witness’ evidence in words that are not truly and literally his or her own.
90.Save in the case of proving formal or non-contentious matters, affidavit evidence of a witness which is in the same words as affidavit evidence of another witness is highly suggestive either of collusion between the witnesses or that the person drafting the affidavit has not used the actual words of one or both of the deponents. Both possibilities seriously prejudice the value of the evidence and Counsel usually attacks the credit of such witnesses, with good reason.
MS BURGESS’S EMPLOYMENT WITH UNIQUE SUPPORT SERVICES
Ms Burgess was employed by Unique Support Services pursuant to a written contract of employment.[3] The contract records that Ms Burgess was employed as a Support Worker on a casual basis commencing on 18 February 2021.[4]
[3] Affidavit of Mr Wyatt at [12]; Exhibit 2.
[4] Exhibit 2.
Prior to her employment by Unique Support Services, Ms Burgess did not have any relevant experience in the disability support services sector.[5] Upon her commencement, Ms Burgess participated in an induction and was provided with training and copies of Unique Support Services’ policies and guidelines.[6]
[5] Affidavit of Mr Wyatt at [8], [9]; Exhibit 1.
[6] Affidavit of Mr Wyatt at [15], [17], [18]; Exhibit 3.
Over the course of her employment, Ms Burgess was allocated to work with four clients.[7] In order to protect their confidentiality, I will refer to the clients as J, M, S and T in this judgment. The majority of Ms Burgess’s shifts were with J. J is a young adult male who lives independently, albeit with assistance, and who has complex needs. While it is unnecessary to describe J’s circumstances in detail, for the purpose of this judgment, it is relevant to note that J is non-verbal and relies on other methods of communication to express his needs and desires. This often includes taking people by the hand to show them things in his house, and his guardian Ms Hilsz and several of his support workers from Unique Support Services commented on the importance of human touch to J.[8]
[7] Exhibit 4.
[8] See, for example, affidavit of Ms Hilsz at [38]-[39]; Transcript 26 June 2023 at p 65 (Mr Wyatt); Transcript, 27 June 2023 at p 111 (Ms Knox); Transcript, 27 June 2023 at p 143 (Ms Stanley); Transcript, 10 July 2023 at p 165-168.
From July 2021 Ms Burgess raised with management and other employees of Unique Support Services a number of concerns that she had about working with J, including that he was scratching her and that his behaviour escalated, and she requested some form of personal protective equipment (PPE) to protect her arms. She also requested that afternoon shifts be staffed on a 2:1 basis, which I understand to mean that there be two support workers to assist J.[9]
[9] Affidavit of Ms Burgess at [2]-[11].
On or about 18 July 2021 Ms Burgess completed a Support Worker Supervision Survey, which was reviewed by Ms Knox on or about 2 August 2021.[10] Ms Burgess expressed concern in the survey that she did not feel supported and there was a lack of communication between supervisor and employee.[11]
[10] Affidavit of Ms Knox at [54], [55]; Exhibit 13.
[11] Exhibit 13.
Following her shift with J on 3 August 2021, Ms Burgess advised Unique Support Services that she no longer wished to attend shifts with J.[12]
[12] Affidavit of Ms Burgess at [9]; Exhibit 12.
Sometime in early August 2021 J’s guardian, Ms Hilsz, provided an informal written statement to Unique Support Services after she had watched approximately 30 minutes of video footage taken from cameras inside J’s house during times when Ms Burgess was assigned to provide care for J.[13]
[13] Affidavit of Ms Hilsz at [61]; Exhibit 5.
On 4 August 2021 Jay (or Jason) McSweeney, an employee of Unique Support Services, advised Ms Burgess that she had been removed from all future shifts.[14] It is unclear from the evidence before the Court whether Ms Burgess had been rostered for any future shifts with J as at 4 August 2021. She was rostered to work one shift with T from 9am to 3pm on 9 August 2021[15] and she was removed from this shift.
[14] Affidavit of Ms Burgess at Annexure 5.
[15] Exhibit 4.
Around this time, Unique Support Services began an ‘investigation’ in relation to Ms Burgess.[16]
[16] Affidavit of Mr Wyatt at [55]; affidavit of Ms Stanley at [34]-[35]; affidavit of Ms Knox at [59].
Unique Support Services terminated Ms Burgess’s employment on 10 August 2021.[17]
ALLEGED CONTRAVENTION OF S 351 OF THE FAIR WORK ACT
[17] Exhibit 15.
Relevant law
Section 351 of the Fair Work Act relevantly provides (emphasis added):
(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, natural extraction or social origin.
(2) However, subsection (1) does not apply to action that is:
(a)not unlawful under any anti-discrimination law in force in the place where the action is taken; or
(b)taken because of the inherent requirements of the particular position concerned; or…
The term ‘adverse action’ is defined in s 342 of the Fair Work Act. An employer takes adverse action 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.
Did Ms Burgess have family and carer’s responsibilities?
Ms Burgess is a single parent whose daughter, at all relevant times, attended childcare and needed to be collected by 6pm.[18] Ms Burgess gave evidence that she brought her child to the office during her initial training with Unique Support Services.[19] Unique Support Services did not dispute that Ms Burgess had family and carer responsibilities and there is evidence before the Court that Ms Burgess referred in writing in a message to Ms Knox sent on 8 March 2021 that she was a single parent and might find it difficult to consistently arrange a babysitter on the weekends.[20] Ms Knox also confirmed in cross-examination that she was aware from around February 2021 that Ms Burgess had parenting responsibilities.[21]
[18] Affidavit of Ms Burgess at [3].
[19] Transcript, 26 June 2023 at p 27.
[20] Exhibit 17.
[21] Transcript, 27 June 2023 at p 124.
I accept that Ms Burgess is a single parent and that, at all relevant times, she had family and carer responsibilities in relation to her child. I also accept that Unique Support Services was aware that Ms Burgess had family and carer responsibilities.
Did Unique Support Services take adverse action against Ms Burgess?
However, I do not accept that Unique Support Services took adverse action against Ms Burgess. Ms Burgess alleges in her Form 2 that Unique Support Services took adverse action against her by ‘decreasing [her] handover time due to [her] parental responsibilities resulting in added stress and pressure in [her] work and home life’.
Ms Burgess in her evidence in chief said that on or about 8 July 2021 she contacted Mr McSweeney and advised him that it is not feasible for her to continue taking work home due to her responsibilities as a single mother. She gave evidence that the recent change of shift time from 5.00pm to 5.30pm had negatively impacted her ability to collect her daughter before the childcare centre closed at 6.00pm.[22]
[22] Affidavit of Ms Burgess at [3].
Exhibit 4 is an email dated 22 June 2023 with the subject ‘timesheets’. The content of the email is a table which purportedly shows shifts that Ms Burgess was rostered to work between 18 February 2021 and 9 August 2021. This shows that a number of shifts Ms Burgess was scheduled to work between February and April 2021 ended at 5.00pm, and that from 22 April 2021 the scheduled end time of the shifts changed to 5.30pm.
The evidence before the Court shows that on or about 8 July 2021, Ms Burgess sent a text message to Mr McSweeney in which she relevantly said:[23]
I’m wondering if you could consider staggering the night shift work to every second night so I can keep my full 30 minute handover and be able to complete notes and discuss the day.
[23] Affidavit of Ms Burgess at Annexure 1.
Mr McSweeney replied:
I’ve been able to adjust 2 shifts next fortnight to a 5pm finish for you. Other days I’m unable to change as the same evening staff is returning within the same day and we legally have to give them a minimum 8hr break in between. Hope that helps.
The issue was further explained in Ms Knox’s oral re-examination, where she said:[24]
From my understanding with the shifts as a single parent, so what had occurred is during course of business, during Kristy’s employment as well we – as we learnt more about the award, we had to allocate our staff an eight hour break after a sleepover shift. So the staff would sleep over. They would wake up at 6 am, their shift would start, it would finish at 9 am. They would go home and they would often want to do that same night again. That was their availability. They wanted to do, say, Monday and Tuesdays, for example. By law, we weren’t allowed to put them on until 5 pm because they were required an eight hour break. So when we realised that, it did create all sorts of problems for our roster, so we actually went to the measures of creating an IFA, which is an individual flexibility agreement, so those staff are actually able to request that they start their shift earlier than 5 o’clock. So, appreciate that it made, for Kristy – I was unaware of this at the time, the specific detail, what that meant when that change happened initially that she – rather than the second staff member starting at 4.30 for the sleep shift and having half an hour handover and Kristy leaving at five, it meant they were starting at five and she was having a 30 minute handover and leaving at 5.30 and that was making it difficult to arrive at the childcare facilities and makes sense. We did put measures in place to correct that. It was a short amount of time, from my understanding. I don’t know how long Kristy was going through that five, 5.30 issue. She does make suggestions to the scheduler ..... if we could at least not do it consecutive shifts. She really wanted to maximise that 30 minutes that she had with the staff. It would have been acceptable for her to not have that 30 minute handover with the staff and leave earlier to meet the childcare duties. She wanted to maximise it so she wanted it to not be consecutive shifts. We do feel like we were aware of that and were trying to accommodate that and at no time was she ever, sort of, penalised for needing to leave earlier than 5.30.
[24] Transcript, 27 June 2023 at p 131-132.
Although Ms Burgess did not lead any detailed evidence on this issue, she did attempt to raise the issue in cross-examination of Ms Knox. Ms Burgess asked Ms Knox in cross-examination about whether she was aware of any differences in her specific handover routine, and then the following exchange took place:[25]
Yes?---I believe if you weren’t present for that whole entire 30 minutes, that wouldn’t have been a problem and I feel like that’s echoed by you saying, “Let’s make it consecutive so that I can have the 30 minutes because I desire to have that opportunity to have that handover”. I believe it would have been acceptable if you left at 10 past five, quarter past five and sped up that handover process.
I actually did – that was one of the ways that they did see it was appropriate for me to handle my, you know, need to leave on time so I could get to daycare before it closed for my daughter - - -?---Okay.
- - - so one of the ways that happened for me was I was given a shorter handover time and expected to take that work home with me. Were you aware of that?---The work home being your progress note, I imagine?
Yes?---Okay. I wasn’t especially aware of that.
[25] Transcript, 27 June 2023 at p 133.
As evidence, this is of low probative value. Ms Burgess was in the course of cross examining another witness and was not under any oath or affirmation. The questions that she asked do not of themselves amount to evidence and Ms Knox, in giving evidence in response to the questions, had no direct knowledge. However, I note for completeness, that even if I was to accept Ms Burgess’s questions as evidence, or if she otherwise gave evidence to that effect, it would not be enough to show discrimination or adverse action.
I am unable to find, based on the evidence before the Court that Unique Support Services took adverse action against Ms Burgess. Rather, I find based on the limited evidence before the Court that:
(a)Unique Support Services changed the afternoon shift end time from 5.00pm to 5.30pm and the evening shift start time from 4.30pm to 5.00pm for staff working with J in order to meet its legal obligations to the night shift staff;
(b)as a result of being scheduled to finish at 5.30pm instead of 5.00pm, Ms Burgess found it difficult to pick her daughter up from day care before the daycare centre closed at 6.00pm;
(c)Ms Burgess expressed this concern to Unique Support Services; and
(d)Unique Support Services listened to Ms Burgess’s concerns about the roster and the impact it had on her ability to meet her family and carer responsibilities and tried to offer solutions to accommodate Ms Burgess while still maintaining its legal obligations towards other employees.
The minor variation to a shift time, with the employer then allowing Ms Burgess some flexibility in how that was implemented, does not amount to dismissal, injuring Ms Burgess in her employment, altering her position to her prejudice, or discriminating between her and other employees. It is therefore not adverse action within the meaning of s 342 of the Fair Work Act.
Conclusion on the alleged contravention of s 351 of the Fair Work Act
Given that Ms Burgess has not established that adverse action was taken against her in the manner alleged, her claim that Unique Support Services contravened s 351 of the Fair Work Act cannot succeed.
ALLEGED CONTRAVENTION OF S 340 OF THE FAIR WORK ACT
Relevant law
Section 340(1) of the Fair Work Act provides:
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.
The term ‘workplace right’ is defined in s 341(1), which provides:
A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c)is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.
The definition of adverse action in s 342 of the Fair Work Act, considered above in the context of the alleged contravention of s 351, is also relevant to the consideration of the alleged contravention of s 340 of the Fair Work Act.
If Ms Burgess establishes that she had or exercised a workplace right and that Unique Support Services took adverse action against her, the onus will then shift to Unique Support Services to show that the adverse action was not taken because of a prohibited reason. In this regard, it is necessary to have regard to ss 360 and 361 of the Fair Work Act.
Section 360 provides:
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Section 361 puts the onus of proof on the employer to establish that an action was not taken for a reason that contravenes a provision in Part 3-1 of the Fair Work Act. Subsection 361(1) provides:
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 principles that inform the Court’s approach to its task under ss 360 and 361 are well-established. They are conveniently summarised in Alam v National Australia Bank Limited (2021) 288 FCR 301; [2021] FCAFC 178 (Alam) at [14]:
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).
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 (Barclay), French CJ and Crennan J said at [44]-[45], in relation to the way in which an employer might rebut the statutory presumption in s 361 of the Fair Work Act (footnotes omitted):
44.… The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”.
45. This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
I have had regard to the principles in Alam and Barclay in assessing the evidence in the present case.
Did Ms Burgess have and exercise a workplace right?
Pursuant to s 341(1)(c)(ii) of the Fair Work Act, Ms Burgess had the right to make an inquiry or complaint in relation to her employment. She also had the right to a safe workplace.
The evidence before the Court shows that Ms Burgess raised the following issues with her superiors at Unique Support Services:
(a)On 7 July 2021 Ms Burgess sent a Teams message to Ms Stanley, who is the Service Coordinator of Unique Support Services, requesting to cut down her hours with J. The message read:[26]
[26] Affidavit of Ms Stanley at [6], Exhibit 6.
Hey I think I need to cut down how many afternoons I’m doing with [J]. He’s being cutting me up almost every shift and it’s just hard to deal with constantly.
(b)On 8 July 2021 Ms Burgess sent the message to Mr McSweeney, referred to at [32] above, requesting that Unique Support Services stagger the night shift to every second night so that she can retain her handover.[27]
[27] Exhibit 7.
(c)On 22 July 2021 Ms Burgess sent a message to Mr McSweeney seeking an update in relation to her request for less afternoon shifts.[28]
[28] Exhibit 9.
(d)On 29 July 2021 Ms Burgess again requested that her shifts with J be reduced, in a Teams message to Ms Stanley that read:[29]
[29] Exhibit 6.
Hey looks like my shift was changed to an afternoon for tomorrow, not sure I can handle that
My afternoon on Tuesday was very hard on me.
I’m going to request again to have my afternoons with [J] reduced as I’m not coping.
(e)In the workplace survey that she completed in July 2021, Ms Burgess indicated that:
(i)she would appreciate more support and managerial check ups;
(ii)lack of communication and support between supervisor and employee has been an issue for her;
(iii)her workplace concerns that are met with hostility and heated confrontations make her feel like her attempts to provide feedback and receive support are an inconvenience;
(iv)she would benefit greatly from constant check-ins on her progress and feeling like she has more support in her role; and
(v)she would appreciate more support amongst support workers and not being met with hostility when attempting to discuss her concerns with her supervisors.[30]
(f)Ms Burgess raised questions in relation to the availability of PPE, albeit it not entirely clear to me on the evidence before the Court when this was first raised.[31]
[30] Exhibit 13.
[31] See, for example, Exhibit 7.
I accept that Ms Burgess made complaints and inquiries in relation to her employment. Some of the complaints and inquiries were directed to Ms Burgess’s desire to ensure that she was working in a safe environment.
Both parties addressed in evidence the actions taken in response to the concerns raised by Ms Burgess. The following actions were taken:
(a)Following Ms Burgess’s request on 7 July 2021 to reduce her shifts with J, Unique Support Services, through the actions of Mr Wyatt and Ms Knox, initiated a recruitment process to hire another staff member to assist with shifts.[32]
(b)The written communications show an intention to look at PPE options, although it appears that there was a delay in actioning this due to a misunderstanding.[33] Some of the witnesses gave evidence that PPE was already available and there were other steps employees could take, such as wearing long sleeved clothing.[34] Witnesses differed in what they identified as sufficient PPE to reduce the risk of harm from J grabbing employees by the arms and scratching them, with Mr Wyatt first identified surgical gloves, which he later acknowledged would not protect against scratches, and Ms Knox, Ms Stanley and Ms Hilsz identifying elastic tubular support.[35] Ms Hilsz expressed the view that the protective high arm gloves that Ms Burgess was hoping for would not have been acceptable for [J] as it would have deprived him of human touch.[36]
(c)Ms Knox gave evidence that Ms Burgess was given support in her role. In addition to being able to contact Ms Hilsz, Ms Burgess was offered ‘buddy shifts’ and had more 2:1 shifts with J than any other staff member at her request. Ms Knox gave evidence that Unique Support Services honoured Ms Burgess’s requests as much as they could.[37] Ms Stanley also gave evidence that Ms Burgess was the only employee who received approximately 12 to 15 2:1 shifts, as well as receiving training and having Ms Hilsz available on the phone.[38]
(d)Someone from Unique Support Services indicated on the survey form that they wished to hold a meeting with Ms Burgess to discuss her concerns. However, this did not actually happen because Ms Burgess ceased to be an employee of Unique Support Services around this time.[39]
[32] Affidavit of Mr Wyatt at [19], [21]; Affidavit of Ms Knox at [25], [32], [33]; Exhibit 9.
[33] Exhibit 7; Exhibit 9; Affidavit of Ms Stanley at [12].
[34] Transcript, 26 June 2023 at p 77 (Mr Wyatt); Transcript 27 June 2023 at p 153 (Ms Stanley).
[35] Transcript, 27 June 2023 at p 114; Transcript, 27 June 2023 at p 153; Transcript 10 July 2023 at p 181.
[36] Affidavit of Ms Hilz at [43].
[37] Transcript, 27 June 2023 at p 116.
[38] Transcript, 27 June 2023 at p 154.
[39] Transcript, 27 June 2023 at p 127 (Ms Knox).
Did Unique Support Services take adverse action against Ms Burgess?
In her Form 2, Ms Burgess alleges that Unique Support Services took adverse action against her by:
(a)removing all of her shifts from multiple clients after she advised she would no longer be attending shifts with a client who was causing her physical injuries, as well as a reduction of hours with that client; and
(b)dismissing her based on the lack of casual hours while other employees maintained employment with less or similar working hours resulting in discrimination against her.
In a text message sent on 4 August 2021, Mr McSweeney wrote to Ms Burgess:[40]
Hi Kristy, I’ve been advised to remove you from the remaining shifts this week with [T] and [J] and will keep you updated on other shifts if they become available. Please contact Dave W. or Paul if you need to discuss further. Thanks
[40] Affidavit of Ms Burgess at [10], Annexure 5.
Ms Burgess requested to be removed from shifts with J. Given this request, and that Unique Support Services, in removing Ms Burgess from shifts with J was essentially acceding to her request, I do not consider that removing her from shifts with J amounts to adverse action. It did not amount to dismissal, nor did it injure Ms Burgess in her employment or alter her position to her prejudice. There is no evidence to suggest that, in agreeing to Ms Burgess’s request, Unique Support Services discriminated between Ms Burgess and other employees.
As at 4 August 2021, Ms Burgess had one future shift scheduled with T on 9 August 2021.[41] Removing Ms Burgess from this shift altered her position to her prejudice, because she was denied a shift (and the associated income she would have received for completing that shift) that she had otherwise been rostered to work. I accept that removing Ms Burgess from her scheduled shift with T on 9 August 2021 amounts to adverse action within the meaning of s 342 of the Fair Work Act.
[41] Exhibit 4.
On 10 August 2021 Ms Knox sent an email to Ms Burgess terminating her casual employment. The subject line of the email was ‘Casual shifts’ and the email read:[42]
Dear Kristy,
Thanks for bearing with us regarding recent shift changes.
We have been finding it difficult to come up with a regular and secure routine of shifts for you. And in consideration that you are approaching the six months minimum probation period, we have made the decision not to continue with your casual contract.
We would be more than happy to act as a reference for you for other providers, we just are having difficulty with the matching and selection process surrounding your available hours and vacancies with clients. The only way forward would be removing shifts from employees on permanent contracts or long term casual contracts.
We do very much wish you all the best though, and I am happy to write a written reference for you if you so wish. Just let me know.
Kindest regards,
Colette Knox
[42] Exhibit 15.
This email shows that Unique Support Services dismissed Ms Burgess from her employment. This is adverse action within the meaning of s 342 of the Fair Work Act.
Based on Mr Burgess’s evidence and submissions, she appears to also be asserting that Unique Support Services took adverse action against her by discriminating between her and other employees. This argument appears to be advanced on the basis that Ms Burgess perceived another employee received more support than she did when raising concerns.
On 30 July 2021 another employee of Unique Support Services, Leah Hanrahan, sent a group message or email in which she referred to a difficult shift she had experienced with J and agreeing with some of the concerns raised by Ms Burgess in relation to the need for additional support. Also on 30 July 2021, Ms Stanley sent an email to the team working with J thanking the team members for their work with J and providing information about managing J’s behaviour.[43] Ms Burgess appears to be asserting that this was a more fulsome and supportive response than some of the briefer responses she received when she raised concerns and that this amounted to discrimination between employees. I am unable to draw any inference or make any findings that Ms Burgess was discriminated against based on comparing one email sent to a team (including Ms Burgess) and the various individual responses that Ms Burgess received when she raised concerns, particularly in the light of the action taken by Unique Support Services in response to Ms Burgess’s concerns, summarised at [52] above.
[43] Exhibit 11.
Why did Unique Support Services take adverse action?
The onus is on Unique Support Services to show that the existence and exercise of the workplace rights as found above was not a substantive and operative reason for the adverse action taken.
Given the findings I have made above, I therefore need to consider why Unique Support Services:
(a)removed Ms Burgess from her scheduled shift with T on 9 August 2021; and
(b)terminated Ms Burgess’s employment.
Removing Ms Burgess from her scheduled shift with T
I am unable to ascertain from the evidence before the Court who made the decision to remove Ms Burgess from her shift with T. None of the witnesses who gave evidence on behalf of Unique Support Services have claimed to have been involved in making this decision. The documentary evidence available shows that the decision to remove Ms Burgess from the shift was communicated by Mr McSweeney, who sent a message to Ms Burgess which read:[44]
Hi Kristy, I’ve been advised to remove you from the remaining shifts this week with [T] and [J] and will keep you updated on other shifts if they become available. Please contact Dave W. or Paul if you need to discuss further. Thanks.
[44] Affidavit of Ms Burgess at Annexure 5.
As can be seen from this, Mr McSweeney states that he was ‘advised’ to remove Ms Burgess from the shifts without indicating who advised him to do this.
Ms Burgess gave evidence that she phoned David Wolstenholme on 4 August 2021 to find out why she was removed from her shift and Mr Wolstenholme advised that she was removed from her shift with [T] due to the client no longer requiring support.[45] This evidence was not challenged in cross-examination.
[45] Affidavit of Ms Burgess at [11].
Ms Burgess subsequently sent a message to Mr Wolstenholme which read:[46]
Hey Dave, it appears Thursday my shift with [T] was worked by Sandee. I was told the shift was removed due to the client no longer requiring support. May I have an explanation as to why my shift was removed? Under the fair work act it is prohibited to take adverse action against an employee who attempts to exercise their workplace rights and given the mis information I received it feels that this may be some kind of discrimination against myself.
[46] Affidavit of Ms Burgess at Annexure 6.
Mr Wolstenholme replied:[47]
Hi Kristy , not sure on shift change for [T] rationale let me speak to Jay and revert , but certainly not the case of adverse action I advised all our team of our conversation and we are working hard to take on board your comments and work with you accordingly , as per our conversation last week , have you received shifts for next few weeks? …
[47] Affidavit of Ms Burgess at Annexure 6.
Based on this evidence before the Court, I am unable to make any findings about who decided to remove Ms Burgess from her shift with T and why. Unique Support Services therefore has not discharged its evidentiary onus of showing that it was not because she exercised her workplace right to make a complaint or inquiry in relation to her employment or because of her right to a safe workplace.
I observe for completeness that there was evidence given by multiple witnesses in relation to concerns that Ms Hilsz and some staff at Unique Support Services had about Ms Burgess’s interactions with J, including based on some video footage taken from inside J home that was reviewed by Ms Stanley and Ms Hilsz. I infer that this evidence was led to explain why Ms Burgess was removed from shifts with J. However, in circumstances where I have found that Ms Burgess requested to be removed from shifts with J and that it did not amount to adverse action for Unique Support Services to agree to this request, it is not necessary to describe that evidence in detail in this judgment. No witness gave evidence that the concerns in relation to Ms Burgess’s interactions with J were the reason she was removed from her shift with T.
Termination of Ms Burgess’s employment
In addition to the termination letter set out above, I have considered the evidence of the witnesses in this matter.
Mr Wyatt gave the following evidence in his affidavit:
55.Senior management, including myself, decided to commence an internal investigation about the Applicant and the allegations and complaints raised in the Survey.
56.As part of the investigation, the Respondent received an informal written statement from Julie on or around the 9 August 2021.
…
60.Senior management also reflected on an incident that occurred on 21 June 2021, where the Applicant left a client unattended in the shower for 30 minutes, which resulted in the Applicant having to be taken off for that client.
61.As a result of the above considerations, it was concluded that it was not appropriate for the Applicant to be assigned to [J].
62.Senior management considered and looked to see if any clients were appropriate for the Applicant.
63.Although there were potential clients that could be assigned to the Applicant, it would however, require permanent full-time or part-time employees to be removed and the Applicant assigned in their place, which was inappropriate and unfair on the other employees of the Respondent and the clients that had developed relationships with those other employees.
64.Senior management also considered in putting the Applicant on a performance improvement plan, however, the Respondent was struggling to provide casual hours for her and did not feel that it was beneficial for the Respondent to put the Applicant through a Certificate III.
65.Senior management also concluded that the Respondent was doing everything they could to support the employee, including but not limited to employing new staff to alleviate worker shortages, breaking up shifts so that they would be less stressful on the Applicant, and to provide arm protection.
66.In consideration of the above circumstances, senior management concluded that the best resolution was to release the Applicant from her contractual obligations but to provide her with a written reference so that she could find work at other disability support services providers.
Ms Knox’s affidavit at [59], [60], [67], [68], [69], [70], [71], [72] and [73] contains evidence in identical terms to the above extracts of Mr Wyatt’s affidavit, save for that [60] of Ms Knox’s affidavit differs from [56] of Mr Wyatt’s affidavit by omitting the word ‘the’ immediately prior to ‘9 August 2021’ and inserting the words ‘though I am unsure’ at the end of the sentence. As I indicated earlier in this judgment, the almost identical wording in the two affidavits undermines the probative value of the evidence and it should be treated with caution. The similarities in the affidavit evidence and the caution with which I have treated the evidence is not, however, the determinative consideration in this matter.
I have also had regard to the witness’s oral evidence. Mr Wyatt was not asked directly about the reasons he or the senior management team removed Ms Burgess from shifts or terminated her employment. In cross-examination, when Ms Burgess referred in a question to being ‘dismissed’, Mr Wyatt suggested that she was not dismissed but was rather ‘released because [she was] a casual member of staff and [Unique Support Services] didn’t have any further shifts for [her]’.[48]
[48] Transcript, 26 June 2023 at p 84.
When asked in her oral evidence in chief what happened after Ms Burgess requested to be removed from J and Unique Support Services thought that was a good idea as well, Ms Knox said:[49]
It’s a bit of unfortunate timing in a sense as well. I guess you could say that [J] is not the easiest client. The easy ones, there’s loads of people who are willing and want those shifts as well so by the time she was no longer working with [J] she was only working with [T] one day a week and it was quite a saturated team in terms of a lot of staff in that team at that point. It really does go swings and roundabouts. The scheduling itself of disability support is quite challenging. You’re thinking of a lot of people who have requested set hours and set days and a lot of other people with requested set availability, so fitting it all together, when you’ve got contracts in place, when you’ve got clients who want to change their shift finishing start time, when you’ve got staff who go on leave, constantly trying to move people around to fit contracts or to fit client needs or to fit client preferences is really important as well because the client does have the right to choose who they do and don’t work with. The verbal ones, you know, especially. So, not working for [J], it left her with one shift a week with [T] and there were some other factors occurring in the background in regard to shuffling staff around, making sure minimum hours were fit, making sure that [T] had enough hours with the staff who were really, kind of, leading that team. It just didn’t seem to become in the best interests of the client to squeeze all the staff out to fit Kristy into that team.
[49] Transcript, 27 June 2023 at p 118-119.
There are three main reasons why I am not satisfied that Unique Support Services has not discharged its evidentiary onus in this matter.
The first is that I am unable to ascertain with any precision who made the decisions to take the adverse action. In their affidavit evidence, Mr Wyatt and Ms Knox described the decision-maker in relation to the decisions to conduct an investigation and to terminate Ms Burgess’s employment as ‘senior management’ and identified themselves as being a member of the senior management, without indicting who else made the relevant decisions.
In his oral evidence in chief, Mr Wyatt used the phrase ‘management team’ in explaining that a Teams communication was between Ms Burgess and the ‘management team’. Counsel for Unique Support Services asked Mr Wyatt what he meant by ‘management team’ and he responded that it was ‘nearly all the staff at head office’, including the coordinator, support coordinator, rostering clerk and operations manager and directors. Mr Wyatt identified the people in this ‘management team’ at the relevant time to include Rourke Wolstenholme, Sibby Wyatt, Cathy Constant (Ms Stanley), Jason McSweeney, David Wolstenholme, Colette Knox and himself.[50] Mr Wyatt later confirmed, in response to a question from the Court, that the ‘senior management’ he referred to in the relevant paragraphs of his affidavit was the same group of people that he referred to as the ‘management team’ in his oral evidence.[51]
[50] Transcript, 26 June 2023 at p 69-70.
[51] Transcript, 26 June 2023 at p 89.
Ms Stanley in her oral evidence described herself as part of the ‘management team’, but then appeared to distinguish ‘senior management’. For example, upon receiving the communication from Ms Burgess that J was cutting her, Ms Stanley gave evidence that, ‘I’ve had to inform my senior management, which was Sibby Wyatt at the time, the operations manager’.[52] In her affidavit evidence, she gave evidence that on or around 4 August 2021 she was asked by ‘senior management, including Colette and Paul Wyatt’ to investigate Ms Burgess’s conduct, and in particular to locate and watch video footage of a shift on 3 August 2021.[53] Ms Stanley’s evidence was that after watching the video footage, she had to write a report and send it to her senior management, and then the matter was out of her hands and she had no further say.[54]
[52] Transcript, 27 June 2023 at p 139.
[53] Affidavit of Ms Stanley at [34], [35].
[54] Transcript, 27 June 2023 at p 143.
Based on the evidence before the Court, I accept that Mr Wyatt and Ms Knox were involved in the decision to take adverse action against Ms Burgess by terminating her employment. I do not accept that they were the only people involved in making the decision. Neither of those witnesses claimed that the decision was made by only those two people. Mr Wyatt’s evidence suggests that the decision was made by seven people, noting the people he identified as being part of the senior management team. However, Ms Stanley, who was identified by Mr Wyatt as part of the senior management team, then claimed that after she provided her written report, she had no further involvement in the decision. Ms Stanley’s written report was not adduced in evidence and was not referred to by any other witness, so it is not possible to make any findings from that report about the extent of Ms Stanley’s involvement in the decision to terminate Ms Burgess’s employment and whether it rose above a threshold level: see Pilbrow v University of Melbourne [2024] FCA 1140 at [78] and the cases cited therein.
Rourke Wolstenholme, Sibby Wyatt, Jason McSweeney and David Wolstenholme, who were the other members of the senior management team identified by Mr Wyatt, did not give any evidence in this proceeding. Mr Wyatt’s evidence suggests that they were involved in deciding to terminate Ms Burgess’s employment. While the evidence before the Court in this regard is unsatisfactory, I find on the balance of probabilities, based on Mr Wyatt’s evidence, that Ms Wyatt, Mr McSweeney, Mr David Wolstenholme and Mr Rourke Wolstenholme were involved in the decision to terminate Ms Burgess’s employment.
The second reason I am not satisfied Unique Support Services has discharged its evidentiary onus in relation to the decision to terminate Ms Burgess’s employment is that there is no direct evidence from the decision-makers other than Mr Wyatt and Ms Knox as to the reasons for taking this adverse action. I am unable to infer from the evidence before the Court as a whole that the reasons for the decision did not include any prohibited reason and, in the absence of evidence from Ms Wyatt, Mr McSweeney, Mr David Wolstenholme and Mr Rourke Wolstenholme, I cannot make any findings about their reasons for agreeing or deciding to terminate Ms Burgess’s employment.
The third reason is that there is no direct evidence from any witness that the reasons for removing Ms Burgess from shifts and terminating her employment did not include a prohibited reason. While I am prepared to accept that the reasons given by Ms Knox and Mr Wyatt for terminating Ms Burgess’s employment were reasons for that decision, that does not necessarily mean that they were the only reasons. None of the witnesses gave evidence that the complaints or inquiries that Ms Burgess made in relation to her employment, or her attempts to ensure that her working environment was safe for her, formed no part of the reasons for deciding to terminate her employment.
I therefore find that Unique Support Services took adverse action against Ms Burgess because she had or exercised a workplace right.
Conclusion in relation to the alleged breach of s 340 of the Fair Work Act
Given that I have found that:
(a)Ms Burgess had and exercised workplace rights;
(b)Unique Support Services took adverse action against Ms Burgess by:
(i)prejudicing her in employment by removing her from a scheduled shift with T; and
(ii)dismissing her; and
(c)in circumstances where Unique Support Services has not discharged the reverse onus, the adverse action was taken because Ms Burgess had or exercised a workplace right,
it follows that the claim made under s 340(1) of the Fair Work Act is established.
REMEDY
In her Form 2, Ms Burgess has indicated that she is seeking compensation and a pecuniary penalty. At the hearing, I proposed that any question of penalty be addressed, if relevant, separately. Both parties agreed to this course. Therefore, in this judgment, I address only the question of compensation and I will hear from the parties further and make directions to address the question of penalty.
Section 545 of the Fair Work Act allows the Court to make any order it considers appropriate if the Court is satisfied that a person has contravened a civil remedy provision, including making an order awarding compensation for loss that a person has suffered because of the contravention.
Ms Burgess seeks compensation in the amount of $45,000, explained in her Form 2 in the following way:
Due to the actions of my past employer my mental health has been affected. Over the last few months I have required consults with doctors and psychologists to arrange support for my mental health and the effects of long term exposure to high levels of stress. I have had panic attacks and depressive episodes. I have had issues holding down and seeking employment due to anxiety and mistrust for employers. I have had to address issues with defamation by my previous employer after my employment has stopped as I was receiving information from previous clients they have been providing false reasons for my dismissal. All of these reasons and the continual stress from this case leads me to request the courts for an amount of AUD$45,000
20,000 of which being for the amounts of lost income over the course of 6 months the other amount being for the physical and emotional distress as well as continual defamation and humiliation caused by the company.
It can be seen from Ms Burgess’s claim that she is seeking compensation for lost income and as a result of medical conditions.
I first address the claimed compensation based on medical conditions. There are two keys reasons why this claim fails. First, any compensation payable under s 545 of the Fair Work Act must have some causal relationship with the contravention found by the Court: Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526; [2011] FCA 333 at [423]; Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (Hutchison Ports Appeal) [2019] FCAFC 69 at [132]. That is, compensation in relation to her medical conditions will only be payable to Ms Burgess in this proceeding if it was caused by Unique Support Services removing her from her shift with T or terminating her employment. It is not compensation for any harm caused by her employment at large. The ‘causes’ of the medical conditions alleged by Ms Burgess are ‘long term exposure to high levels of stress’ and ‘defamation’ by her former employer. Neither of these causes appear to relate to the contravention of the Fair Work Act that I have found in this matter, and Ms Burgess has not explained how her claim for compensation based on her medical conditions relates to that contravention.
Further, and in any event, there is no evidence beyond Ms Burgess’s personal assertion that she suffered any medical condition resulting from her employment in any way. In these circumstances, Ms Burgess has not established any entitlement to compensation in relation to any medical conditions she may suffer.
I then turn to consider Ms Burgess’s claim for $20,000 in lost wages. In assessing the ‘appropriate’ amount of compensation to be awarded, it is open to the Court to consider that the employer would have discharged its obligations in a way which would have been least burdensome to it including by bringing the employment contract lawfully to an end in a way most beneficial to itself, being at the earliest date possible: Dafallah v Fair Work Commission (2014) 225 FCR 559; [2014] FCA 328 at [161]. In assessing Ms Burgess’s loss, if any, I have considered whether Unique Support Services would have ended the employment relationship at the first reasonable opportunity.
In this regard, it is appropriate to recall that Ms Burgess was employed on a casual basis. Her employment contract expressly provided that Unique Support Services ‘may cease offering [Ms Burgess] casual engagements at any time’, and that Ms Burgess had the ‘ability to refuse and cancel shifts or terminate [her] assignment in accordance with Clause 8 of this Contract of Employment’: clauses 1(d) and (e) of the Employment Contract. Clause 8(a) provided:[55]
Subject to the other provisions of this clause, this contract of employment may be terminated on any day by one party giving to the other party one (1) hours’ notice.
[55] Exhibit 2.
The following circumstances are relevant to the assessment of damages for lost wages in the present case:
(a)Ms Burgess, after requesting to be removed from shifts with J, had only one scheduled shift with one other client;
(b)Ms Burgess was employed on a casual basis that could be terminated on one hour’s notice by either party; and
(c)I accept the evidence of Ms Knox, extracted at [74] above, as to why going forward, other employees would have been offered shifts with T ahead of the applicant.
In these circumstances, I consider it likely that Unique Support Services would have ended its employment relationship with Ms Burgess in any event.
I am prepared to find that the adverse action taken Unique Support Services cost Ms Burgess the one shift she had scheduled with T on 9 August 2021. She is entitled to compensation in relation to this shift, which was scheduled to be 6 hours long and the rate of pay in Ms Burgess’s employment contract for a weekday shift was $28.29 per hour. That amounts to $169.74. The employment contract also provided that Unique Support Services would pay Ms Burgess superannuation in accordance with the Superannuation Guarantee (Administration) Act 1992 (Cth). She is therefore also entitled to compensation in respect of her superannuation entitlements in relation to the shift she would have worked on 9 August 2021, were it not for the contravention of s 340(1) of the Fair Work Act.
CONCLUSION
For the reasons above, I have found that the alleged contravention of s 340(1) of the Fair Work Act is established insofar as it relates to the adverse action of:
(a)altering the position of Ms Burgess to her detriment by removing her from a scheduled shift with T; and
(b)dismissing her from her employment.
I make a declaration in respect of this contravention and I order Unique Support Services to pay compensation to Ms Burgess in the amount of $169.74 plus any superannuation entitlements.
I have found that the other alleged contraventions of ss 340 and 351 of the Fair Work Act are not established.
I will list the matter for further directions on a date to be fixed to make directions in relation to a hearing on penalties.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 10 October 2024
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