Cassar v Wilckens Roche Pty Ltd

FEDERAL CIRCUIT COURT OF AUSTRALIA

CASSAR v WILCKENS ROCHE PTY LTD

[2018] FCCA 940

Catchwords:
INDUSTRIAL LAW – Application seeking remedies as a result of adverse action taken because of the applicant’s workplace rights – applicant dismissed summarily for serious misconduct – whether applicant exercised workplace rights – dismissal was because one director thought the applicant complicit in theft and the other director thought she was threatening violence – dismissal not because of exercise of workplace rights – application dismissed.

Legislation:

Fair Work Act 2009, s.341(1)

Applicant:

TANIA CASSAR

Respondent:

WILCKENS ROCHE PTY LTD
(A.C.N. 162 410 291)

File Number:

MLG 290 of 2016

Judgment of:

Judge Burchardt

Hearing dates:

26 & 28 February 2018

Date of Last Submission:

28 February 2018

Delivered at:

Melbourne

Delivered on:

24 April 2018

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Muller

Solicitors for the Respondent:

Parke Lawyers

ORDERS

The application filed 16 February 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 290 of 2016

TANIA CASSAR

Applicant

And

WILCKENS ROCHE PTY LTD (A.C.N. 164 410 291)

Respondent

REASONS FOR JUDGMENT

Introductory

The applicant seeks remedies arising out of the termination of her employment, on 13 November 2015, by the respondent company. She says that she was dismissed as a result of exercising workplace rights within the meaning of s.341(1) of the Fair Work Act 2009 (“the Act”). The respondent denies that the applicant did anything that might constitute a complaint or inquiry in the relevant sense and says, furthermore, that the applicant was not dismissed as

a result of any complaint or inquiry she may have made. Rather,

the respondent says that the applicant was dismissed for gross misconduct.
I think that some of the applicant's actions did amount to complaints

or inquiry within the meaning of the Act, but have come to the conclusion that the dismissal did not arise from these complaints

or inquiries. It follows that the application must be dismissed.

Agreed or Uncontroversial Facts

The respondent is an incorporated body which carries on business as a legal firm specialising in family law. It is a small firm, albeit that the numbers of employees varies from time to time. Laszlo Kohegyi (also known as Les Kohegyi) is a director of the respondent, and is the principal of the law practice within the meaning of the Legal Profession Uniform Law (Victoria). Vincenzo Leone is the second and only other director of the respondent. He also operates a separate business trading as Boss Consulting & Advisory Group Pty Ltd.
On 16 October 2014, the applicant commenced employment with the respondent in the position of legal secretary/executive assistant. Her contract of employment is exhibit TDC-1 to the applicant's affidavit filed 16 June 2017, and is at Court Book (“CB”) 36 - 50. From its style, this document would seem to me to be likely to be a standard

pro forma for all employees of the company.
On 2 June 2015, the applicant sent a text message to Mr Kohegyi (CB52) as a result of concerns she had about the conduct of a fellow employee, Ms Van de Leur. Ms Cassar says that she raised with

Mr Kohegyi an act of misconduct on Ms Van de Leur's part in relation to trust funds allegedly wrongly dealt with by Ms Van de Leur.

Mr Kohegyi's position, on affidavit, is that he does not recall the incident. This is described in the statement of claim as the first workplace complaint. On 10 July 2015, a series of emails were sent between the applicant and Mr Kohegyi which are exhibits TDC-3, TDC-4, TDC-5 and TDC-6 to the applicant's first affidavit. Their relevance, for these purposes, is that Mr Kohegyi expressed himself in language that includes swear words.
On 10 September 2015, the then-receptionist at the respondent was dismissed. Although there is dispute as to exactly how much work she actually performed, there is no disagreement that the applicant was required to perform receptionist duties thereafter. There is dispute, to an extent, between the applicant and the respondent as to the extent to which other employees also fulfilled this task, or whether the applicant undertook all of it.
On 9 October 2015, Mr Leone sent an email to all staff announcing that Robert Tebbs, Lynnette Rizzoli, and Jennifer Eichler were no longer associated with Wilckens Roche Lawyers, (CB62). Given the contents of the email, it is apparent that there was quite a significant falling out within the firm leading to those persons leaving. This is of some significance because both Mr Tebbs and, more importantly, Ms Eichler, played a role in the matter. The applicant's appointment was initially to work as a personal assistant to Ms Eichler. Following this departure, the respondent introduced a new instant dismissal policy in October 2015.
The applicant met Mr Leone on 20 October 2015 to discuss a salary review. In the course of that discussion, she also raised the new immediate dismissal form, and indicated that she would not be prepared to adopt it. Mr Leone concedes (paragraph 8 of his affidavit) that the matter was discussed, and that the applicant objected to signing the policy. On his version of the events, Mr Leone:
“... suggested that we could look at including an exception if there was a specific need that did not adversely affect her performance, nor WRL.”
On either the applicant or Mr Leone's version of the events, nothing was done further about the matter.
On 2 November 2015, the applicant asserts that she complained to

Mr Kohegyi about him urinating in the office toilet without closing the door. Mr Kohegyi deposes that he has no recollection of the matter.
On 9 November 2015, the applicant was absent from work allegedly due to illness. There is a dispute, to which it will be necessary to return, as to what happened to the medical certificate that the applicant says she left on Mr Leone's desk.
To this point, the recitation of relevant facts is really as to matters that are expressly agreed or, in effect, undisputed. The events of 12 and 13 November 2015, which culminated in the applicant's dismissal, are the subject of vivid disagreement.

The Applicant's Version in her Affidavits

The applicant has deposed that on 12 November 2015, she noticed that her pay was slightly less than the normal amount. She says she called Mr Leone and queried the discrepancy. Mr Leone said he had not paid the personal leave because he had not received a medical certificate. The applicant explained that she had provided a medical certificate and, as she and her family were going through a difficult time financially, she really needed payment of the personal leave. As deposed at paragraph 32 (CB28) of her affidavit:
“I offered for my husband to attend the office to explain to him why I needed the payment.”
On the same day, the respondent placed an advertisement for

a receptionist/administrative assistant. It should be noted from exhibit TDC-9 (CB67), a document circulated by Ms Fuimaono on

6 November 2015 the applicant's designated title was "legal secretary" and the position of receptionist was shown as blank. On 13 November 2015, there was an exchange of emails between the applicant and

Mr Kohegyi in which the applicant, relevantly, asserted (TDC-13, CB76):
“… I am of the presumption that I am now the Wilckens Roche Receptionist in consideration that I have been placed here pretty much since the last receptionist has left and further, in consideration that now my ‘Title’ on the Staff Contact details is listed as “Secretary/Reception”. So it seems instilled that this is my new role?
I am happy to discuss it with you next week as I believe that I do deserve advice (and some sort of respect) with regard to my current position within the firm.”
Shortly thereafter, on the applicant's version, she was approached by Mr Kohegyi and Mr Leone who asked her to come to the back office. She said to them:
“I'm going to get the sack, aren't I.”
What was said is the subject of some dispute in the affidavits filed by the parties, but the Court is fortunately in possession of a transcript of the proceeding which is at CB191-199. The audio version of the recording was checked in Court against the transcript and, subject to minor alterations, is accepted by all concerned as an accurate record. It is sufficient, for present purposes, to note that the interview ended with the applicant's summary dismissal.

The Respondent's Version of the Events on 12 and 13 November 2015

Mr Kohegyi has deposed that on 12 November 2015, the applicant was out of the office for an extended lunch. According to Mr Kohegyi, when she returned, she was red in the cheeks, louder than usual and swearing more than usual which indicated to him that she was intoxicated. As he deposes in his affidavit (at paragraph 10, CB89),

he decided to leave the issue until the following day. On the same day, Mr Kohegyi located a letter from Pitcher Partners NSW Pty Ltd, dated 7 July 2015 addressed to a Mr David Seery, care of the respondent (CB116-117).
As Mr Kohegyi was unable to identify Mr Seery as a client, he emailed a copy to staff including the applicant, and asked if they could indicate whether it was related to any matter. The applicant responded (annexure LK-3) by email at 3.15 pm. She asserted (CB119):
“I have heard this name before “david Seery”. I am not sure where I have seen it although I have heard of that particular name.
I shall get back to you if anything springs to mind.”
Later that evening, Mr Kohegyi undertook searches and reviewed emails on the respondent's system to investigate the Pitcher Partners letter. Annexure LK-5 is a copy of the email thread he found. That email thread bears some examination. Nonetheless, it is appropriate

to commence with the correspondence from Pitcher Partners first.

At CB130, there is a letter from Pitcher Partners to Mr David Seery, care of Robert Tebbs, Senior Associate at Wilckens Roche Lawyers. Mr Tebbs is referred to in the materials and, I understand, is the partner of Ms Eichler. It is a letter relating to Mr Seery's discharge from bankruptcy.
At CB133, there is an email to Ron Bishop and David Seery, dated

24 July 2015. It encloses a copy of the letter from Pitcher Partners, and having advised that the bankruptcy would be automatically discharged, wishes both "Ron and David" well in their future endeavours and, note worthily, concludes:
“and thank you for your instructions.”
Immediately underneath, the letter is signed:
“Yours faithfully
Jennifer Eichler / Lawyer
WILCKENS ROCHE LAWYERS”
Mr Bishop responded the same day stating:
“Thanks Jen.
You are very kind to do this for him, I appreciate it very much.
Although he is of limited means he does want to make some payment to you.
Can you advise me of the fee please?”
The next email is an email to Ms Eichler from the applicant on 27 July 2015 which reads:
“Jennifer, Ron emailed me thanking you for your help regarding the Bankruptcy.
He has wondered how much you wished to charge them (however minimal).”
On 31 July 2015, the applicant wrote to Mr Seery, with a copy to

Mr Bishop stating:
“Dear David
Further to the email (below) I have sought Jennifer's advice as to her appropriate fee in relation to this matter.
Jennifer is happy to discount her normal rate and therefore the fee is $110.00.
Kindly deposit same into the account details below:
Name:     Jennifer Eichler
Bank:     National Australia Bank Savings Account
BSB:            083 157
Account: 46 677 4649
Once again, Jennifer wishes you well in your future endeavours.
Yours faithfully
Tania Cassar, Secretary on behalf of
Jennifer Eichler / Lawyer
WILCKENS ROCHE LAWYERS
Mr Kohegyi was very concerned to discover this correspondence and forwarded it to Mr Leone by email on 12 November 2015 at 6:51 PM. It is clear from his email (CB127) that Mr Kohegyi took the most serious view of the matter. The email, relevantly, asserts:
“It would appear that Tania was assisting Jennifer to bill personally, whilst still employed (on maternity leave) and also whilst Jennifer did not have a practising certificate and without my knowledge. These is not file opened in LEAP for this matter. Unless there is a proper explanation for this, this is pretty serious for the following reasons.”
The relevant statement regarding the applicant is:
“Tania assisted in this serious misconduct; and
As the letter was addressed to Rob, he was also complicit in this.”
Additionally, the email noted:
“Also, I don't know if you notice, but both Tania and Fiona appeared intoxicated from their long lunch today. I thought it best not to say anything as I didn't want a confrontation with either and you can't reason with drunk people.”
The letter concluded:
“What do you think we should do?”
Mr Leone replied, at 7:57 PM that day (annexure LK-7, CB135). Annexure LK-7 records Mr Leone's version of a conversation with the applicant about her sick leave pay on 12 November 2015. His email (CB135) relevantly states:
“I'm really worried about Tania's behaviour …….. apart from being intoxicated when she returned from her extended unapproved lunch today with Fiona and some Barrister, she rang me to ask why her pay was short … I indicated because we didn't have a Doctor's certificate for her sick leave. She then said she’ll bring it in and I said we’ll adjust her pay accordingly if she does. She then said that her husband was going to come and visit you and I to make sure it doesn't happen again! This is the same guy that tried to suicide about a month ago. At that time Tania told me how crazy her husband was and gave me an example of a road rage incident he was involved in in Moonee Ponds where ……… he got out of his car and beat/punched up the 3 guys in the other car (I believe the police were called).

So, I don't like her threat that her husband was going to come an sort you and I out. This is a serious concern for you and me, our staff and clients in the office. Lynn's husband made

a similar threat and you reported it to the police. Can you please follow-up with the police to see what’s happened

re Lynn's husband? We should also let the Police know about this other theat.”
Mr Kohegyi's reply (LK-8, CB137) relevantly says:
“Re Tania's threat about ger husband, I don't think the police cwould care.they have done nothing re Lynne's husband

- I folliwed up a few weeks ago- and won't do anything here. Except maybe after some trouble, in which case they’ll claim to be sorry and wring their hands. I will however follow up again and if there is trouble tomorrow, then we’ll csll them nonetheless. It’s sad things get to this:(… [sic]
The final relevant email which, effectively crossed (it was sent at exactly the same time) from Mr Leone to Mr Kohegyi relevantly says (CB140):
“The contents of your email are very serious and concerning. I’ve never come across such Serious and Co-operative Misconduct. We need to confront Tania and ask her to explain, but the evidence is very damning as is her attitude. As a further example, when she finally delivered the Family Law hand-over letters to me today, I reached out to collect them for signing and she said "Che Cazzo Vuoi?" Italian for "What the Fuck do you want?" Totally inappropriate. From the look on my face, she asked me "do you know what that means? Oopss" and said "I shouldn't have said that"… Tania knows I lived in Italy for nearly 6years. Her vulgar language, sexual innuendoes and message sent to Rob Tebbs are totally inappropriate and further examples of serious misconduct. Who knows what she says/does to/with clients? We definitely need to address this mtter asap.” [sic]
Mr Kohegyi continued to rummage through his email system, and found materials that suggested to him that the applicant may have misused her position to conduct a title search to the benefit of her husband's business in an improper way.
At 2:00 PM on 13 November 2015, Mr Kohegyi received a text message from Ms Fuimaono (annexure LK-12, CB148). Relevantly, this asserts the applicant:
“She told about her stupid husband threatening to come in and deal with you two.”
It is clear that this was Mr Kohegyi and Mr Leone.
Mr Kohegyi emailed Mr Leone at 3.34 PM on 13 November 2015 (CB150), and I note that he had trawled through Ms Cassar's emails and found several more matters of concern. I note that the terms of the emails suggest that he was taking the alleged threats seriously.

The Transcript of the Meeting on 13 November 2015

I do not propose to paraphrase the transcript in detail. It speaks for itself. It is clear that Mr Leone and Mr Kohegyi taxed Ms Cassar with the title search issue, the payment to Ms Eichler of the $110 from

Mr Seery, allegedly sexually explicit material sent to another employee, the alleged threat that Ms Cassar's husband would come and sort out Mr Leone and Mr Kohegyi, her alleged intoxication on 12 November 2015 and the allegedly obscene remark, "Che cazzo vuoi" on

12 November 2015 in terms.
Almost from the commencement of the interview, Ms Cassar adopted the position that she would not comment. At CB192 - 193, she says:
“I'm not going to comment any - any of it, so you may as well just don't question me, because I'm - I - legally I won't comment ‘till I get advice.”
Mr Kohegyi then asked her if she wanted someone present, but

Ms Cassar repeated that she wanted to wait until she had advice. She was asked if she wanted a support person present and responded:
“Yeah well they may not be here today.”
And when Mr Kohegyi repeated that she could have a friend or someone else from the office present, Ms Cassar replied, relevantly:
“I'm not speaking about it, today.”
That remained her position throughout the rest of the interview. Some brief remarks about her going out to celebrate the end of the employment of another employee, and about her husband, were the applicant's only material contribution to the discussion.
The actual dismissal, which followed Mr Kohegyi discussing the payment to Ms Eichler is CB197 in the following terms:
“Thank you Tania, please hand your key. Um we are dismissing you for serious misconduct effective immediately. You are prejudicing our business, you are acting contrary to the interests of the business and we cannot afford to keep you here because you are damaging our reputation.”
Ms Cassar replied:
“Okay, no problem, I was half expecting it anyway to be honest.”
When asked why she was expecting it - and Mr Kohegyi mentioned the David Seery email - Ms Cassar's reply was, first, indistinct and, subsequently:
“I don't know what you're talking about.”
When challenged with the email to Ron Bishop, she refused to comment.

The Evidence Given at Court

The proceeding opened with an application for an adjournment by

Ms Cassar which, for reasons that I gave at the time, I did not grant. In opening, Ms Cassar pointed to the fact that there were numerous accusations made against her at the time of dismissal. She had not received any previous written or verbal warnings, and was not given time to seek a support person at the interview. She said she was seen in a dark and dingy back room. She was accused of having had a long luncheon and being intoxicated the day before.
She complained that the respondent had allowed her to drive home which would be a breach of their duty of care. She denied being intoxicated. She complained that the respondents were demeaning in the interview, and she was frightened to respond there and then. The matter involved Jennifer Eichler, but no charges were made against

Ms Eichler. Ms Cassar complained that she had been sacked for

Ms Eichler's actions. She had rung at 6:30 on 12 November 2015 and had a doctor's certificate to get her pay. She has still not been paid for her day's sick leave.
The applicant was sworn, and adopted her affidavit as true and correct. Under cross-examination, the applicant confirmed that she had seen the staff contact details set out at CB186. When it was put to her that from September 2015, she had spent more time on the reception desk, Ms Cassar confirmed that this was the case. She had been absent on

9 November 2015, and thought that she might have emailed about her leave. She did not now remember for certain. She had sent a message to Ms Fuimaono, at CB188, which says:
“So sorry jenna!!! Ive got bad like stomach. !!! Up all night.”
She said there might have been other messages.

Ms Cassar confirmed that she had had an interview on 12 November 2015 about her pay. She had an argument with Mr Leone. He said he had not paid her for the 9 November absence, but would do if she gave him a certificate. She said she would. She told him that she had put the certificate on his desk, but she could not now remember whether she provided a further copy of the certificate. She had put it on his desk on 10 November.
Ms Cassar said she told Mr Leone her husband could explain why she should get paid. She said every day was important to the family. She said she was happy to come in with her husband to explain. He is the man of the house. She conceded her husband had nothing, however, to add. She totally denied that she knew where Mr Kohegyi or Mr Leone lived. She told Mr Leone that her husband could attend and sort it out with him. She repeated that she left the certificate on Mr Leone's desk the day after her leave. There was no threat involved.
Ms Cassar denied Ms Fuimaono's version of events on 13 October 2015, and denied making a punching gesture when describing that her husband would attend the office. She admitted, however, saying words to the effect, "the war is coming" to Ms Fuimaono. Ms Cassar had not seen Ms Fuimaono's email to Mr Kohegyi, at CB190, but had said previously that her husband had been involved in a road rage incident, and had held his own against three other men at the time.
When asked why she thought she was dismissed, Ms Cassar said that she was quite confused; so many reasons were given to her.

She admitted sending an email with sexual material to Mr Tebbs.

She conceded giving Mr Seery and also Mr Bishop, Ms Eichler's bank account. She confirmed the email sent to Mr Seery and Mr Bishop in which she gave Ms Eichler's bank account details. Ms Eichler had come into the office that day to assist a junior lawyer, and told

Ms Cassar to send the email. She told her to quote the minimum rate so that Mr Seery did not think he was getting it for free. Ms Cassar said that she presumed it was a private client for work that Ms Eichler was doing at home. It was not sent from her private email as she had nothing to hide. There was no discussion with Ms Eichler about

Mr Seery. Ms Cassar confirmed the email sent by Ms Eichler, at CB133, to Mr Bishop. She did not understand why Ms Eichler was not sanctioned for this. She had been a legal secretary for nine months at the respondent's office at that time.
She believed that Mr Kohegyi ran the trust account and had firm rules. He then gave Ms Van de Leur permission to run the trust account, and Ms Cassar's concerns were in her affidavit. When further questioned, Ms Cassar said she believed Ms Eichler's client was a private client. Ms Eichler was on maternity leave, but still came in to assist a new family lawyer. It was $110 and she thought it was a private client.
Ms Cassar was cross-examined about the title search for Cassar Constructions. Mr Kohegyi had told her she could do it if she paid for it, but she forgot to pay. It was paid twice and she asked that one be repaid. She had genuinely forgotten about it, and the issue was thrown at her on the date of dismissal. Ms Cassar confirmed that she did not respond to the allegations put to her on the day. She said they were looking for lots of reasons. They had said she had consumed alcohol. There was a no‑alcohol policy, and she had had a drink on

12 November 2015 at her lunch break as she was with Fiona Halloran and Nigel Livesey of counsel. It was a send-off for Ms Halloran who was leaving.
She passed Mr Leone back in the office, and he asked her to send out letters to clients to welcome Bernadette Nicoli as the new family lawyer. She prepared those letters. She gave them to Mr Leone at about 4.30 PM on 12 November 2015. She was at reception, and

Mr Leone pestered her for them. She did not agree using vulgar language in Italian to Mr Leone. It was put to her on 13 November 2015, and Mr Kohegyi said he had heard it, too. She is not fluent in Italian, but she understands Mr Leone understands her. She said that everybody swore at one another in humour, and she denied the particular remark, "Che cazzo vuoi", put to her.
Ms Cassar confirmed having seen the emails about David Seery. She had not seen the letter from Pitcher Partners. Ms Eichler had told her that it was a private client. Ms Cassar confirmed receiving an email from Mr Kohegyi on 27 November 2015 (CB78 - 79). This was two weeks after her dismissal. When cross-examined about the complaint about Mr Kohegyi using the office toilet, Ms Cassar confirmed that the complaint was what Mr Kohegyi was doing or, rather, not doing in the toilet. I infer that the complaint was limited to the fact that

Mr Kohegyi had failed to shut the door.

The Opening by Counsel for the Respondent

Counsel submitted that the respondent was not at Court to fight an unfair dismissal claim. The only issue was adverse action.

The Evidence of Jenna Fuimaono

Ms Fuimaono adopted her affidavit as true and correct. Under cross‑examination by Ms Cassar, Ms Fuimaono confirmed that

Ms Cassar was employed as a legal secretary, and worked with Fiona Halloran while Ms Fuimaono was employed. Ms Eichler came in as

a mentor. She was not sure if Ms Eichler was employed at the time. She was on maternity leave. Ms Halloran was replaced by Bernadette Nicoli who was not then admitted to practise. Ms Fuimaono did not recall letters being sent out on 12 November 2015 about Ms Nicoli's arrival.
At the time of the dismissal, Ms Cassar was a legal secretary helping with reception as everyone was. She confirmed that everybody covered reception. She herself had been out for lunch from time

to time, and sometimes had a wine or two. There was no no-alcohol policy as far as she was aware. In re-examination, Ms Fuimaono confirmed that on 12 November 2015, she had seen Ms Cassar with flushed cheeks.

The Evidence of Mr Kohegyi

Mr Kohegyi adopted his affidavit as true and correct. He had recorded the dismissal conversation on his telephone, and had copied it onto

a USB stick. Ms Cassar asked Mr Kohegyi if she had exercised workplace rights about her demotion, and Mr Kohegyi confirmed that she did. He denied, however, that she had been placed on reception. Several people did reception - Paul Snow and even himself and

Mr Leone. Mr Kohegyi conceded that the letter setting out the reasons for dismissal was two weeks after it had occurred. It was the first opportunity he had had to write it because it was a very busy small law firm. Things are now different as he has more staff. The applicant asked for reasons and he gave her them.
When asked by Ms Cassar if she had been given any warnings for alleged sexual harassment, Mr Kohegyi said no written warnings were given. He said these things were discovered when looking at her emails. Mr Kohegyi denied that the interview on 13 November 2015 was held in a dingy room. When Ms Cassar put it to Mr Kohegyi that she had no opportunity to respond and no warning because he had already made up his mind, Mr Kohegyi replied, "Yes." Absent any cogent explanation, she was going to be dismissed for permitting an employee solicitor to steal money. Dismissal would occur.
Mr Kohegyi confirmed that his email to Mr Leone, sent on

12 November 2015 at 6:51 PM, (CB127) was sent from his desk.

Ms Eichler had already resigned in October. The matter had been reported to the police, and he had spoken to the Legal Services Commission. He had seen an unsigned sickness certificate.

He conceded swearing can be commonplace in the office. Ms Cassar cross-examined about the allegation of intoxication on 12 November 2015. She asked why she was not dismissed on that day, and

Mr Kohegyi said he was not a medical practitioner. He said that

Ms Cassar was intoxicated enough for it to be noticed and he did not want to have a fight. He said Ms Cassar was always combative.

He did not know she had driven home.
Bernadette is a paralegal and will be admitted on 8 December (no year was given). She advertised for a receptionist after Ms Cassar left. When Ms Cassar asked if she was regarded as a valuable employee,

Mr Kohegyi said, "You had your moments." She had been placed on reception additionally. When Ms Cassar asked if this was to demote her, Mr Kohegyi said, "No." He denied that he had done this with the intention of dismissing her. Ms Cassar asked whether, when she asked for sick pay, that started the ball rolling and Mr Kohegyi said, "No." He denied that Ms Cassar was a scapegoat.

The Evidence of Mr Leone

Mr Leone adopted his affidavit as true and correct. Ms Cassar cross‑examined about her absence on 9 November 2015. Mr Leone conceded that she was not in the office and said, "You told us you were unwell." He did not receive the sick certificate. He had not received another copy of it. He did not pay 9 November 2015 because no certificate had been received. He denied that the complaint about the non‑payment of sick leave led to the termination of employment.
Mr Leone was unaware of any verbal warnings given to the applicant. She was only intoxicated on 12 November 2015. She was quite intoxicated. He did not know the applicant was driving home on the day. He had no idea how she was getting home. He knew that she had had some problems with the sheriff about her car. When asked about events on 13 November 2015, Mr Leone said there was a farewell for

a staff member. The farewell came after the finish of work which was usually between 5:30 and 6:00 PM. He drove home.
Information had been received about the applicant on the Wednesday and Thursday. Then she was intoxicated in the office. When

Ms Cassar put it to him that on 12 November 2015, he and Mr Kohegyi were planning her instant dismissal, Mr Leone said this was not the case. They were just investigating. When cross-examined about the vulgar language in Italian, Mr Leone denied that he and Mr Kohegyi were in the office together. He was alone. He reached for the letters, and she said, "Che cazzo vuoi." Mr Kohegyi asked Mr Leone what it meant.
Mr Leone reviewed all the information after work on 12 November 2015. He wished to discuss the issues. He wanted to explain what had been found. When it was put to him by Ms Cassar that his main concern was the $110 sent to Ms Eichler, Mr Leone said he was more concerned about threats to himself and his staff. He confirmed that

Ms Cassar assisted the transfer of funds to steal money from the firm. There was an email about transferring funds. When Ms Cassar was challenged about her vulgar language, she said, "Oops. You know what it means," to which he replied, "You know I lived in Italy."
The room where the interview took place on 13 November 2015 is a meeting room and lunch room. He wanted Ms Cassar's view on their evidence. He confirmed that he had written (annexure LK-4, CB122) to Mr Kohegyi on 12 November 2015 commenting on the amount that Ms Cassar and Ms Halloran had had to drink. Mr Leone was taken to annexure LK-9 (CB140 - 141), being an exchange on 12 November 2015 between himself and Mr Kohegyi. He confirmed that

Mr Kohegyi sent the email to him. Ms Cassar put it to him that the emails were fabricated and fictitious. Mr Leone did not directly respond, but said he was happy to organise a complete IT audit.
When challenged with the fact that there had been an advertisement on 12 November 2015 for a receptionist, Mr Leone said advertisements were out all the time. They were seeking an administrative assistant/receptionist, and were always seeking staff. Mr Leone said most people did reception, and said even he did.
Ms Cassar cross-examined about the letter from Mr Kohegyi, at CB78 - 79, setting out the reasons for her dismissal. The reference to "partners" was a reference to Mr Kohegyi and Mr Leone. Mr Leone said he had heard Ms Cassar referring work to a former employee working for another law firm. On Wednesday and Thursday, matters had concerned Mr Kohegyi and Mr Leone, and things were getting worse and worse. He had never met Ms Eichler. When Ms Cassar put it to him she was only doing what Ms Eichler told her to, Mr Leone said she was not required to accept illegal orders. He said “You helped an employee direct funds to a former employee”.
It was put to him Ms Eichler had not ceased employment. Mr Leone said she was on maternity leave. Mr Leone confirmed that his main concern was the risk to staff from the threat from Ms Cassar's husband.

Some Brief Observations about the Credit of the Witnesses

There is no doubt that Ms Cassar remains deeply aggrieved by what she perceives to have been the unlawful treatment of her by the respondent. Her remarks were, at all times, marked by vivid and strong emotion. It is clear, from what she said and how she said it, that she is a naturally somewhat combative individual. Nonetheless, I have no doubt that she believed what she said, even though - for reasons to which I shall come - I do not accept all of her evidence.
Mr Kohegyi was by no means an entirely satisfactory witness.

A number of his answers were prevaricating and non-responsive. Nonetheless, in the main, I thought he was a witness of truth. One area of difficulty I had is the complaint made about the alleged language to Mr Leone. Whether Mr Leone found the expression in Italian offensive or not, Mr Kohegyi's email to Ms Cassar, at CB60, in which he describes himself as "really pissed off at you at the moment", and goes on to say, "when you're stirring shit in the office," do not suggest to me that Mr Kohegyi is a man who could properly raise complaint about bad language. Mr Leone was a calm and measured witness. His answers were responsive and clear. The same can be said of

Ms Fuimaono.

Findings as to the Facts

Ms Cassar was employed as a legal secretary and worked, it is clear, predominantly with Ms Eichler throughout her employment.

Ms Eichler went on maternity leave at a date not indicated in the materials, but her employment clearly came to an end in October 2015. There is no doubt, as I find, that Ms Cassar raised, in June 2015,

the alleged misconduct of Ms Van de Leur. There is equally no doubt in my mind that Mr Kohegyi thought nothing of it. There is, equally, no doubt that on 20 October 2015, the applicant sought a pay increase from

Mr Leone, and made a complaint about the new instant dismissal policy.
There is no doubt that on 2 November 2015, Ms Cassar complained

to Mr Kohegyi about him urinating in the office toilet without closing the door. Mr Kohegyi professed not to remember the matter, and

Ms Cassar's evidence was clear. Ms Cassar was absent from work due to illness on 9 November 2015. I am unable to say whether she placed the original of that certificate on Mr Leone's desk on the following day. What can be said for certain is that it was not received by Mr Leone.

It may well have been extracted by some third party for some reason if it was, indeed, put on Mr Leone's desk.
Ms Cassar complained about the deduction from her pay to Mr Leone on 12 November 2015, and the upshot of that was that Mr Leone offered to pay provided a medical certificate was provided. No signed medical certificate has apparently yet been provided. In the context of this underpayment, the applicant herself concedes that she offered for her husband to come and discuss the underpayment. I accept the evidence of Mr Leone about this conversation. Some sort of remark was made to the effect that her husband would come and sort out Mr Leone and Mr Kohegyi.
Mr Leone immediately acted on his concerns by writing to Mr Kohegyi at 7:57 PM on 12 November 2015 (CB135). I reject any assertion that any of the emails before the Court have been fabricated or invented. There is no earthly reason, in any event, why Ms Cassar would have suggested that her husband come to explain matters. She conceded he had nothing to add to what she had already put. It beggars common sense that the conversation was as innocuous as Ms Cassar seeks to present it.
While I do not know for certain what she said, she plainly intimated to Mr Leone that her husband would come and sort out Mr Leone and

Mr Kohegyi. Furthermore, it is plain from Ms Fuimaono’s email on

13 November 2015 that this threat was repeated to Ms Fuimaono.

Ms Fuimaono was a good and straightforward witness whose description of the events (the punching of the hands) was obviously correct.
The complaints and concerns about the perceived threats of violence were not, however, the only matter in the march of events. It is clear that Mr Kohegyi had developed suspicions and started checking

Ms Cassar’s emails. He found the material from Pitcher Partners. The letter from Pitcher Partners was plainly written to an employee of the firm acting in that capacity. He happens to be Ms Eichler’s partner. The email sending the Pitcher Partners letter to Mr Bishop and

Mr Seery was plainly written on Wilckens Roche Lawyers letterhead (see CB125). It is equally clearly sent by Ms Cassar.
Mr Bishop replied to Ms Cassar’s email address but to Ms Eichler, and Ms Cassar forwarded that message to Ms Eichler as it had been sent to her email address. Clearly, there was then interaction between

Ms Eichler and Ms Cassar, which caused Ms Cassar to write to

Mr Bishop indicating Ms Eichler’s bank account details and the amount of $110. I note that the letter said relevantly (CB124):
“Jennifer is happy to discount her normal rate and therefore the fee is $110.00.”
I have to say that it is not possible to avoid the impression that

Ms Cassar, at the very least, ought to have known that what Ms Eichler was doing was improper. Her assertions that she thought Ms Eichler was undertaking work for a private client (and therefore not a client of Wilckens Roche) is hard to believe. The standard form employment contract that Ms Cassar herself signed has a clause prohibiting work for other persons while employed by the respondent. It is reasonable to suppose that she would have assumed Ms Eichler, as an employee solicitor, to be subject to the same restriction.
In the ultimate, however, this does not matter. It is possible that

Ms Cassar, as she says, merely saw herself doing what a superior officer in the company was asking her to do. She obviously had a good personal relationship with Ms Eichler. What matters is what

Mr Kohegyi and Mr Leone made of it.
The combination of the contemporaneous emails and the oral evidence given in Court lead me in no doubt whatever that the reason that the applicant was dismissed was, in the mind of Mr Kohegyi, the theft

(as he described it in Court) of the funds from the firm, and the associated dishonesty to enable it to occur in which Ms Cassar had participated. On the part of Mr Leone, it is clear that what operated on his mind was the perceived physical threat from Ms Cassar’s husband.
As I find, the earlier matters raised and relied upon by the applicant played no part whatever in the respondent’s decision to dismiss. So much is entirely clear from the transcript of the dismissal interview. While a number of other matters (the remarks in Italian and the title search) were raised, having seen and heard Mr Kohegyi and Mr Leone give their evidence, it is clear that their motivation is that I have described above. The various matters described as workplace complaints or inquiries set out in the applicant’s statement of claim had no operation on the decision to dismiss whatever.

Were workplace complaints made?

In the light of the findings I have set out immediately above, this issue is, in fact, now of no moment in any event. For completeness I will deal, however, with the antecedent issue as to whether or not the applicant exercised any workplace right.
Workplace right is defined in s.341 of the Act as:
“(1)   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.”

Even construing that section at its broadest, I do not think that the approach made by Ms Cassar to Mr Kohegyi about Ms Van de Leur is capable of giving rise to the exercise of a workplace right. Nor did it involve action to prevent the exercise of a workplace right by another person (s.340(1)(b)). It was a process whereby the applicant told

Mr Kohegyi of the misconduct of Ms Van de Leur. It did not involve Ms Cassar making a complaint in relation to her employment. If it was anything, it was a complaint or inquiry about Miss Van de Leur’s employment.
There is no doubt that the discussion in October 2015 between

Ms Cassar and Mr Leone in which she inquired about a pay rise and made a complaint about the instant dismissal policy is properly characterised as exercising a workplace right. She was making an inquiry, at the least, in relation to her employment. As earlier indicated, however, those matters had nothing whatever to do with the termination of her employment. Nor is any other adverse action alleged arising out of those matters.
The complaint about Mr Kohegyi urinating in the office toilet, once again, is clearly capable of constituting a complaint about her employment, but it did not give rise to any adverse action.
The applicant was entitled to take personal leave in relation to sickness on 9 November 2015 and undoubtedly exercised a workplace right in so doing. She was not paid for that day and complained about it.

I accept, however, the submission made by counsel for the respondent that this did not constitute adverse action because the certificate did not comply with the Act or Regulations. Mr Leone moreover made it plain that the respondent would pay the sick leave if a certificate was provided. The applicant’s statement of claim relevantly pleads that “the underpayment was motivated by the reason of, or for reasons including, the Personal Leave.” Bearing in mind Mr Leone’s response, it was not the taking of leave that led to non-payment but the non-provision (as Mr Leone understood it to be) of a sickness certificate.
The applicant’s email to Mr Kohegyi on 13 November 2015 about her role in the respondent (exhibit TDC-13, CB76) clearly did constitute an inquiry in relation to her employment, but no adverse action emerged as a result.
The failure to pay the applicant her sick leave was, in my view, petty and vindictive and got caught up in the process of the dismissal. Nonetheless, for the reasons earlier given, this did not constitute adverse action.
The misconduct allegations, their investigation and outcome, owed nothing to the earlier complaints made by the applicant.
Finally, the respondent did not dismiss the applicant because she had taken a day’s worth of personal leave.

Conclusion

For these reasons, it is clear that the application cannot succeed.

A number of the matters relied upon do not involve workplace rights and therefore do not involve the exercise of same. Those that do involve workplace rights did not give rise to any adverse action. The application will be dismissed.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 24 April 2018

[2018] FCCA 940

24 April 2018

Key Legal Topics

Areas of Law

Negligence & Tort

Employment Law

Legal Concepts

Duty of Care

Negligence

Causation

Damages

Vicarious Liability