Celand v Skycity Adelaide Pty Ltd
[2016] FCCA 399
•29 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CELAND v SKYCITY ADELAIDE PTY LTD | [2016] FCCA 399 |
| Catchwords: EVIDENCE – Privilege against disclosure of settlement negotiations – application of section 131 of the Evidence Act and exception thereto – whether evidence is necessary to avoid court being misled – attempt to negotiate a settlement. |
| Legislation: Fair Work Act 2009 (Cth), ss.12, 340(1), 341(1), 342(1), 346, 351(1), 360, 361, 545(2) Evidence Act 1995 (Cth), ss.131(1), 131(2)(g), 131(5), 140(1), 140(2), |
| Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399 Koompahtoo Local Aboriginal Land Council & Anor v Sanpine Pty Ltd & Anor (2007) 233 CLR 115 Azzi & Ors v Volvo Car Australia Pty Ltd [2007] NSWSC 319 |
| Applicant: | JENNIFER CELAND |
| Respondent: | SKYCITY ADELAIDE PTY LTD |
| File Number: | ADG 394 of 2014 |
| Judgment of: | Judge Brown |
| Hearing dates: | 31 November, 1, 2, 3 & 4 December 2015 |
| Date of Last Submission: | 4 December 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 29 February 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Heywood-Smith QC |
| Solicitors for the Applicant: | Hamdan Lawyers |
| Counsel for the Respondent: | Ms Eastman SC |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application filed on 20 October 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 394 of 2014
| JENNIFER CELAND |
Applicant
And
| SKYCITY ADELAIDE PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, in these proceedings, Jennifer Celand,[1] claims that she was subject to “adverse action” in contravention of section 340(1)(a) of the Fair Work Act 2009 (Cth),[2] during the course of her employment with the respondent, Skycity Adelaide Pty Ltd.[3]
[1] Hereinafter referred to as Ms Celand or the applicant
[2] Hereinafter referred to as the FWA or the Act.
[3] Hereinafter referred to as Skycity or the Casino or the respondent
Essentially, Ms Celand claims Skycity infringed various of her “workplace rights” as defined by section 341(1) of the Act by discriminating between her and other employees; altering the terms of her position at Skycity; injuring her, whilst in the course of her employment; and ultimately dismissing her from her position.[4]
[4] See section 342(1) of the FWA at item 1
As a consequence of this adverse action, Ms Celand seeks compensation for loss of wages and monetary damages for the distress, hurt and personal injury she has suffered as a consequence of her dismissal from her employment, pursuant to section 545(2) of the Act.
Skycity seeks the dismissal of the action. It denies that it has taken any “adverse action” against Ms Celand and that any “workplace rights”, which she claims have been illegally infringed, are not in fact workplace rights, as envisaged by the provisions of section 341 of the Act, when the allegations raised by Ms Celand are subject to a proper level of scrutiny.
In this context, Skycity asserts that any adverse action allegedly suffered by Ms Celand did not take place because of any workplace rights pertained to her. Further, the respondent asserts Ms Celand resigned from her employment and was not dismissed, either constructively or otherwise. In all these circumstances, it is Skycity’s positon that Ms Celand has suffered no loss or damage, as a consequence of any of its actions.
Background
Skycity operates a casino in Adelaide. Ms Celand began her employment, with Skycity, as a part-time rotating dealer, on 7 July 2001. She was promoted from time to time. In 2014, she was employed as a full-time supervisor of table games – roulette; black jack; and baccarat; at the Casino.
In August of 2014, Ms Celand’s employment with Skycity ceased, in circumstances which are controversial, so far as both parties are concerned. It is the applicant’s position that she was constructively dismissed because Skycity made her ongoing employment untenable.
Ms Celand asserts that she was targeted by Skycity, for various reasons, and, as a consequence, the management at the Casino made her duties more and more difficult for her to discharge, including singling her out not to be promoted; causing her to be disciplined on a spurious basis; and denied access to overtime, which was central to her ongoing economic support.
On the other hand, it is the respondent’s position that Ms Celand indicated her intention to resign from her position, in writing, on 11 July 2014. The respondent further asserts that, through its human resources manager, Mr Tannock, it urged Ms Celand to reconsider her resignation, which she did not do, instead electing not to attend at the Casino, when scheduled for work.
The terms of Ms Celand’s employment, with Skycity, are governed by an enterprise agreement known as the Sky Adelaide Casino/United Voice Enterprise Agreement 2011. In September of 2005, Ms Celand joined the Liquor, Hospitality and Miscellaneous Union, now known as United Voice.
In January 2008 the applicant was elected as the union delegate for the table games department of the respondent. In 2012, she was elected to the position of work health and safety representative for table games. Ms Celand’s claims of having suffered adverse action, whilst employed by Skycity can be summarised as follows:
·In 2009/2010 serious allegations of sexual harassment arose at Skycity’s Casino premises, at Adelaide, concerning female staff members. These complaints were investigated by management at the Casino. Ms Celand was requested to be a support person, whilst female victims of this harassment were interviewed by management;[5]
·One of the victims of the sexual assault, which occurred at Skycity’s premises and involved one of its employees sexually assaulting another, commenced proceedings in the Federal Court at Adelaide. Ms Celand prepared an affidavit in support of the complainant concerned and was subpoenaed to give evidence before the court. The proceedings were compromised between the parties concerned;[6]
·In December of 2010 the applicant asserts that she was passed over for promotion allegedly because of her union associations and because she was perceived to be a trouble maker as a consequence of her involvement in the sexual harassment claims against Skycity;[7]
·The applicant claims that she was harassed, whilst performing her role as a work health & safety representative, when she sought advice from Safe Work SA regarding an incident of workplace bullying, which arose at Skycity;[8]
·In January 2014, Ms Celand attended an off-site staff training session organised by Skycity, for its customer service employees of which she was one. This session was presented by an external consultant. Following this session, Mr Capurso, the respondent’s table games shift manager, met with Ms Celand to provide feedback about the training session. In this meeting, the applicant alleges she was unfairly disciplined for alleged offensive behaviour, during the training session in question;[9]
·On 28 January 2014, the applicant alleges that she was denied access to her personnel file;[10]
·In January of 2014, Ms Celand alleges that she was singled out, as a table games employee, who was not to be offered overtime in the form of working on rostered days off, which had previously been available to her and on which she relied to make her living. This action arose because of her union associations; her work health & safety role; and because of her involvement in the claims of sexual harassment against Skycity.[11]
·It is the applicant’s position that the decision of Skycity, not to allow her this overtime, made her continued employment, with the respondent, untenable and, as such, amounted to repudiatory conduct, leading to the constructive termination of her employment.[12]
[5] See amended statement of claims filed 12 January 2015 at paragraphs 11-13
[6] Ibid at paragraphs 19 & 27
[7] Ibid at paragraph 15
[8] Ibid at paragraphs 20 & 26
[9] Ibid at paragraph 29
[10] Ibid at paragraph 30
[11] Ibid at paragraph 31
[12] Ibid at paragraph 40
The legal provisions applicable
Section 340(1) of the FWA provides as follows:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
The expression adverse action is defined by a table set out in section 342(1) of the FWA. Relevantly, in the present matter, item 1 of the table reads as follows:
Meaning of adverse action
Item
Column 1
Adverse action is taken by …
Column 2
if …1
an employer against and employee
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
In this case, Ms Celand alleges that she has suffered adverse action because Skycity dismissed her; prejudicially altered her position, which caused her injury, as well as discriminating between her and other employees, particularly in reference to her promotion and her access to overtime.
Given the terms of section 340, particularly the use of the conjunction because it is necessary for there to be a nexus between any adverse action suffered by the holder of the relevant workplace right. The expression workplace right is defined by section 341(1) of the FWA;
(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.
Section 12 of the Act defines workplace law and workplace instrument. Relevantly, workplace law means the FWA itself or any other law of the Commonwealth or a State, which regulates the relationships between employers and employees (including by dealing with occupational health & safety matters). A workplace instrument is any document made pursuant to a workplace law, which concerns the relationship between employers and employees.
Given the structure of section 340, the central evidentiary issue in the case is the reason or reasons why Skycity acted in the manner in which it did, in respect of matters relevant to Ms Celand’s promotion, overtime and otherwise. Were these actions taken for illegal reasons or legitimate ones, relating to the operation of Skycity’s business. Necessarily, this issue involves an examination of why particular decision makers, at Skycity, did what they did.
Employers can take a particular action, against one of their employees, for a combination of reasons, some potentially illegal, under the FWA, some potentially not. In this context, the question arises as to who has the onus of establishing why adverse action has occurred and how any such onus is to be discharged.
In this context, sections 360 and 361 of the FWA are relevant. Section 360 is headed Multiple reasons for action and reads as follows:
“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 provides as follows:
“Reason for action to be presumed unless proved otherwise
(1)If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2)Subsection (1) does not apply in relation to orders for an interim injunction.”
Section 361 creates a reverse onus. The onus is on the employer rather than the employee to establish why a person was adversely affected, in the workplace. If this onus is not discharged, it is to be assumed that the action in question was taken for a prohibited purpose.
Collier J in Jones v Queensland Tertiary Admissions Centre Limited (No 2)[13] explained the operation of section 361 of the FWA in the following terms:
“That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason … it is not sufficient for [an applicant] to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that [an applicant] is able to prove these allegations, the burden is then cast on to [the employer] to prove that adverse action was not taken against [an applicant] because of [her] workplace rights for the purposes of section 340 and 361 of the Act.” (citations removed).
[13] Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399 at [10]
In Bendigo Regional Institute of Technology and Further Education v Barclay & Anor[14] the High Court, in the context of section 346 of the Act, which provides protection for employees against adverse action motivated by an employer in respect of industrial activities, discussed the application of the onus arising under section 361. In the case, Gummow and Hayne JJ said as follows:
“In determining an application under s 346 [it is necessary to] to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.”[15]
[14] Board of Bendigo Regional Institute of Technology and Further Education v Barclay [No1] (2012) 248 CLR 500
[15] Ibid at 542[127]
In Shortv Ambulance Australia[16] the Full Court of the Federal Court (Dowsett, Bromberg and Murphy JJ) provided an erudite and useful summary, in respect of the application of section 361 and the authorities which relate to it, as follows:
When an employee alleges that an employer has taken action against him or her because the employee exercised a workplace right s 361 casts the onus on the employer to “prove otherwise”. Under s 360, while there may be multiple reasons for an employer to have taken the adverse action, the employer takes action for a prohibited reason if the reasons for the action include that reason. The rationale for the presumption was explained by Mason J in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 617 per Mason J as being to throw on to the employer the onus of proving that which lies peculiarly within its own knowledge (cited with approval in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [50] (French CJ and Crennan J)).
Where adverse action is taken by one person against another, the task of a court in a proceeding alleging contravention of s 340 or s 351 is to determine why the person took the adverse action and to ask whether it was for a prohibited reason or reasons which included a prohibited reason (Barclay at [5], [44] per French CJ and Crennan J). The question is whether a prohibited reason was a “substantial and operative” reason for the respondent’s action (Barclay at [104] per Gummow and Hayne JJ, see also [59] per French CJ and Crennan J). The relevant inquiry is therefore into the “particular reason” of the decision-maker for taking action (Barclay at [42] per French CJ and Crennan J, [102] per Gummow and Hayne JJ), which is a determination of fact to be made by the court taking account of all the facts and circumstances of the case and available inferences (Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 88 ALJR 980 at [7] per French CJ and Kiefel J, Barclay at [45] per French CJ and Crennan J, [79] per Gummow and Hayne JJ).
To displace the presumption created by s 361 in light of the effect of s 360, the respondent must prove that its conduct was not motivated in whole or in part by the prohibited reason alleged. A failure to displace the presumption enables the allegation by an applicant of adverse action for a prohibited reason to stand as sufficient proof of that fact: Davids Distribution Pty Ltd v National Union of Workers (1991) 91 FCR 463 at [109] per Wilcox and Cooper JJ.
[16] Shortv Ambulance Australia [2015] FCAFC 55 at [54] – [56]
It must also be borne in mind that the issue, in an adverse action claim, arising under section 340 of the Act, is not whether the employee concerned was unfairly dismissed or otherwise unreasonably or poorly treated. The task is to determine, if it is found that adverse action has been taken against the person concerned, what is the reason for that action and whether it was for a proscribed reason. As White J said in Tsilibakis v Transfield Services (Australia) Pty Ltd[17]
It is necessary to keep in mind that the focus in a case like the present must be on whether the employer has taken the adverse action for a proscribed reason. It is not a review generally of the fairness of the employer’s conduct. The Full Court made this point in Khiani v Australian Bureau of Statistics[18] when it said:
“... A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3–1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts. In the present case, the question is whether the respondent has taken adverse action against the appellant because she had a workplace right to be on sick leave, or because she had exercised that right.
The first question to be addressed in such a case is whether adverse action was taken. Determining this question requires identification of the adverse action alleged. ...”
[17] Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740 at [16]
[18] Khiani v Australian Bureau of Statistics [2011] FCAFC 109 per Gray, Cowdroy & Reeves JJ
Nor is an application under section 340 of the FWA an opportunity for an applicant to raise any type of grievance, arising from his/her employment. Accordingly these proceedings are not a broad inquiry as to whether Ms Celand has been “subject to a procedurally fair or substantially unfair outcome.”[19]
[19] Ermel v Duluxgroup (Aust) Pty Lty (No 2) [2015] FCA 17 at [48] per Bromberg J
Given these considerations, I agree with Ms Eastman SC, counsel for Skycity, that the following broad issues arise for the court’s determination, in this matter:
a) did the Applicant suffer ‘adverse action’ within the meaning of s 342(1) Item 1 of the FW Act;
b) was the alleged ‘adverse action’ taken because the Applicant had or exercised a relevant workplace right. In this context,
i) did the Applicant have or exercise a relevant workplace right within the meaning of s 341 of the FW Act;
ii) what is alleged to be the nexus between the alleged workplace right and the alleged adverse action;
c) if the Applicant establishes a prima facie connection between the alleged adverse action event and a workplace right, then the onus shifts to the Respondent. The Court’s inquiry is why did the adverse action occur. Did the adverse action occur because the Applicant exercised a workplace right;
d) if there is a finding of adverse action, what loss or damage did the Applicant suffer?[20]
[20] See respondent’s closing submissions at paragraph 3
The relevant witnesses and documents relied upon
In addition to her application and amended statement of claim, Ms Celand relies on the following documents:
i)Two affidavits of herself filed on 3 March 2015 and 3 July 2015;
ii)An affidavit of Christopher Hamilton, a consulting psychologist, who treated the applicant before and after she left her employment with the respondent, filed 19 October 2015;
iii)An affidavit of Scott Cowen, formerly a union organiser at United Voice, filed 1 July 2015;
iv)An affidavit of David Lower, Ms Celand’s medical practitioner, filed 16 October 2015.
In addition, Ms Celand called evidence from three current employees of the respondent, who were unwilling to provide affidavits of their evidence in chief to Ms Celand’s solicitors. These witnesses were the following:
i)Nicholas John May, who was employed in the respondent’s scheduling department for table games, particularly in January of 2014, following the off-site staff training meeting. He attended the meeting between Mr Capurso and Ms Celand, as a support person for Ms Celand, following the staff training;
ii)Linda May Hirkham, who was the scheduling supervisor for table games at the Casino. She was involved in issues relating to the applicant’s promotion, which occurred in 2010. She was also involved in matters relating to the alleged denial of overtime to the applicant;
iii)Meg Rosevear, who at relevant times was both a pit manager and tables games training manager, at Skycity’s Adelaide casino. A pit manager manages an area of gaming tables and is therefore superior to a gaming supervisor, who looks after a smaller group of tables. She too was involved in issues arising from Ms Celand’s promotion in 2010.
In addition to its response, filed on 19 January 2015, the respondent relies on the following affidavits:
i)An affidavit of Vincent Peter Capurso, the table games shift manager at Skycity, filed 24 March 2015;
ii)An affidavit of Cameron Graeme Tannock, the human resources manager for Skycity filed 20 March 2015;
iii)An affidavit of Ken Devine, formerly head of table games for Skycity, filed 20 March 2015;
iv)An affidavit of Natalie Brooks, a health and safety coordinator, at Skycity, filed 26 March 2015.
All of these witnesses, apart from Dr Lower, were cross-examined by counsel for the opposing party. The proceedings occupied approximately five days of hearing time. In addition, senior counsel for each of the respective parties – Mr Heywood-Smith QC for the applicant and Ms Eastman SC for the respondent – provided extensive written submissions, for which I am grateful.
The evidence
The events raised by these proceedings occurred over a period of approximately five years. Ms Cleland’s position is that, over this period, the adverse actions of the respondent incrementally accumulated, until she reached the conclusion that she was being singled out by Skycity and her rights, as an employee were being trammelled.
Necessarily, this state of mind will have the consequence of requiring Ms Celand to reflect on these past events, for the purpose of these proceedings and quite possibly re-interpret them, some significant time after they occurred, through the prism of quite significant hostility, which she now holds for the respondent.
I do not doubt the validity of Ms Celand’s perception that she has been unfairly treated by Skycity. However, underpinning her case, is her perception that there is some form of vendetta, against her personally, which emanates from senior management at the Casino.
In my assessment, this perception is likely to have implications for Ms Celand's ability to reconstruct past events objectively and accurately convey what occurred to her. It is my view that Ms Celand has a tendency to interpret events and speculate about the actions of management, at the Casino, on the assumption that Skycity were out to get her.
The various incidents, of which Ms Celand complains, occurred over a period of around four years. I accept that Ms Celand perceives that the incident are directly connected with one another and therefore the court should find that there is an escalating level of animosity emanating from the management of Skycity towards her. For the reasons which follow in more detail, I have struggled to find any such connection, other than in Ms Celand’s mind.
Skycity maintained a large workforce at its Adelaide casino. Inevitably, in such a workplace, there will be gossip and speculation, amongst the general staff, about the motivation and actions of the upper echelon of management. This speculation will not always be accurately informed and one of the natural tendencies of the gossip is to tell his or her interlocutor, what he or she wants to hear and then believe it to be true. Such sentiments also encourage an us and them mentality.
In this particular case, Ms Celand heard things about herself, at the Casino and believed them necessarily to be true. This added weight to her opinion that she was being unfairly treated. Her affidavit evidence uses expressions such as “it was common knowledge” or “it was often remarked by pit managers” in the context of adverse comments about herself. Such prefixes provide only the most generic form of attribution. I approach such statements with caution.
Whilst giving her evidence, Ms Celand presented as a forceful advocate for her cause. She was argumentative, seeking to answer what she thought was the agenda behind a question, rather than the question itself. Although I do not consider her to be a dishonest person, it is my view that her evidence overall lacks objectivity.
In addition, much of Ms Celand’s current sense of being hard done by, at the hands of Skycity, rests on her notes of meetings and conversations, which occurred in the workplace. My concern is that these meetings and conversations were not always neutrally recorded by her. In all these circumstances, I approach Ms Celand’s evidence with some caution.
Mr Tannock, Mr Devine, Mr Capurso and Ms Brooks each presented as a polished and confident witness, as one would expect of a managerial person, from a large public corporation, which had an emphasis, in its business, on customer relations. They each gave their evidence logically and coherently. I assess each to be credible. Ms Celand described feeling intimidated by Mr Devine. I acknowledge that he may present differently away from the witness box, but he did not seem so to me.
Those acting for Ms Celand indicated that Ms Rosevear, Ms Hurcombe and Mr May were unwilling to provide formal affidavits because of concerns that each might be subject to some form of retaliatory conduct because of it. In addition, I was told that no proofs had been obtained of their testimony. No attempt was made to clarify these issues in oral evidence. In my estimation, each of them gave their evidence freely and without any degree of reluctance.
In any event, I did not regard their evidence as being particularly controversial. Ms Hurcome and Ms Rosevear are likely to be more aligned to Ms Celand’s view of things but not markedly so. This is because they have a more natural affinity with a former colleague, whom they liked, than with management. As a consequence, in their evidence, they are likely to reinforce one another.
At the end of the day, Ms Celand’s case rest on her view that the management of Skycity, particularly Mr Devine targeted her, in the workplace, because of her behaviour. As a consequence, there was a covert campaign to deny her advantages, including overtime and promotion. Essentially, Ms Celand’s case rests on her view that she was the victim of some form of conspiracy.
Management has explained why particular decisions were made in these regards. I will have to assess the credibility of those explanations, which arise in the context of a large organisation called upon to administer a complex workforce.
It is a common occurrence, when such organisations are closely examined, to find that apparent conspiracies are more easily explained by more mundane considerations relating to issues of miscommunication, misunderstanding and general administrative ineptitude.
In all these circumstances, it is my view that the respondent’s witnesses are likely to be more reliable and to have a more dispassionate account of what occurred in the various relevant dealings between Skycity and Ms Celand.
In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observations of the demeanour of each of the witnesses concerned.[21] I have tried to reach my conclusions as to credibility and reliability, on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[22]
[21] See Evidence Act (1995) (Cth) at section 140
[22] See Fox v Percy (2003) 214CLR 118 at 129 [31] per Gleeson CJ, Gummow & Kirby JJ
In addition, I bear in mind section 140(2) of the Evidence Act, which indicates that in applying this standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matters alleged.
Two areas of significant evidentiary controversy arise in the case, both turning on the application of section 131 of the Evidence Act 1995 (Cth). The section provide a general exclusion of evidence relating to settlement negotiations.
Section 131(1) reads as follows:
(1) Evidence is not to be adduced of:
(a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or
(b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.
The subsection is subject to a number of exceptions, which are detailed in subsection (2). In the context of these proceedings, the exception contained in section 131(2)(g) is relevant. It reads as follows:
(g) evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence; or
The first evidentiary issue arises in connection with two discrete claims of sexual harassment, which occurred at the Skycity staff Christmas show in 2009 and 2010 respectively. The complaints were made by female employees of the Casino against a particular casino manager. Ms Celand attend neither function but became aware of the alleged transgressions through discussions she had at the Casino with the female staff members affected.
In December 2010, Ms Celand was asked by Ms Rosevear, then the head of table games training and a sexual harassment officer, to be a support person for the various complainants, during the course of their interviews with casino management organised to investigate the 2010 incident. These interviews were conducted by Mr Devine and Mr Tannock.
One of the complainants, a Ms Winra lodged a complaint in the Australian Human Rights Commission alleging sexual harassment in the course of her employment. Subsequently, Ms Winra commenced proceedings in the Federal Court, at Adelaide, in November of 2011, against Skycity, seeking relief under the Sex Discrimination Act. Ms Winra’s solicitor was Ms Hamden, who has been Ms Celand’s solicitor throughout the current proceedings, which were commenced on 20 October 2014.
Ms Celand prepared an affidavit in support of Ms Winra’s application to the Federal Court, which was sworn on 1 October 2013.[23] In the affidavit, Ms Celand indicated that she had been a union representative, at the Casino, for approximately three years, but had resigned from this position in early 2010.
[23] See exhibit A
She provided further evidence regarding her knowledge of Casino Christmas staff shows and the staff social club, which apparently organised it. She further advanced complaints, of sexual harassment, against the employee concerned, which she had not personally witnessed but had heard about, during the course of her employment.
In addition, she provided evidence, regarding her role as a support person, at various interviews, including Ms Winra’s. She expressed some disquiet that she was not qualified to be such a support person. Ms Celand also has some criticisms of how Mr Tannock conducted the interview, particularly the direction that she (Ms Celand) was not to speak during the interview. In this context, Ms Celand deposed that she voiced her view that one of the complaints (not Ms Winra’s) should be regarded as an assault and referred to the police.
In the context of Ms Celand’s apparent sense of general dissatisfaction, with the interview process, she deposes that at one stage Ms Winra broke down in tears and left the interview room. At this stage, Ms Celand deposes that she suggested to Ms Winra that she need not persist with the interview. However, Ms Winra did finish the interview. Ms Celand further deposed that she did not know Ms Winra well, at this stage, and believed that she should have had a support person “whom she knew well and trusted instead of me.”
In an affidavit deposed by her on 2 July 2015, in the current proceedings, Ms Hamden deposes as to the monetary basis of the settlement ultimately negotiated between Ms Winra and Skycity, to which she (Ms Hamden) was privy. Ms Eastman objected to this evidence on the basis that it was covered by the exemption created by section 131(1) of the Act.
From the applicant’s perspective, she wished the evidence to be adduced on the basis that it would provide an evidentiary context from which it could be deduced that senior management figures, at Skycity, had a grievance against Ms Celand because she had assisted Ms Winra in obtaining significant financial redress from Skycity.
I declined to accept the evidence contained in Ms Hamden’s affidavit. Ms Celand was not a party to the proceedings between Ms Winra and Skycity. She was a witness. As such, she was not privy to the settlement negotiations, which occurred between Skycity and Ms Winra and those representing her.
I do not know why or on what basis Skycity elected to compromise the action against it brought by Ms Winra. I am not assessing the gravamen of the complaints made by Ms Winra or the appropriateness of Skycity’s response to them. I also accept that it is Skycity’s preference that the terms of its settlement, with Ms Winra, be kept confidential.
In these circumstances, it is only as a consequence of the coincidence of Ms Hamden being both Ms Winra and Ms Celand’s solicitor that the evidence of the terms of Ms Winra’s settlement are available to Ms Celand.
The community has a public interest in the efficient settlement of litigation. The confidentiality of settlements is an aid to such an objective.[24] I also accept that Skycity itself has a private right that the communications leading to its compromise with Ms Winra be kept confidential and not potentially used as a tool to influence these proceedings. In White v Overland[25] Allsop J (as His Honour then was) said as follows:
“The privilege is rooted in public policy - in the encouragement and promotion of settlement of disputes: Cutts v Head [1984] 1 Ch 290, 305-306; Rush and Tompkins v Greater London Council [1988] UKHL 7; [1988] 3 All ER 737, 739-740. There is a public benefit in, and a private right to, the confidentiality of such negotiations: see generally McNicol The Law of Privilege (1992) p 438. The latter underpinning reflects the tacit acceptance and agreement of the parties as to the confidentiality and limited purpose to which the communications can be used.”
[24] See Silver Fox Co Pty Ltd v Lenard’s Pty Ltd (No3) [2004] FCA 1570 at [36] per Mansfield J
[25] White v Overland [2001] FCA 1835 at [89]
In addition and significantly, I am not entitled to infer the intent of decision makers, in general protection cases, from extraneous circumstances. That is deduce that because Ms Celand played a part in Ms Winra’s action against Skycity, which resulted in Skycity settling the case, therefore relevant decision makers, at the respondent, are ill-disposed against her.
The court’s obligation is to illicit the substantial and operative reason why relevant persons acted, as they did vis-à-vis Ms Celand. In my view, in addition to the objections arising under section 131(1) of the Evidence Act, the evidence of the settlement between Skycity and Ms Winra is not relevant to these proceedings, as it represents an attempt, on Ms Celand’s part, to induce the court to conjecture as to the subliminal or subconscious motivations of management in its actions taken in respect of Ms Celand.
In Barclay Heydon J expressly prohibits the court from attempting to illicit any unconscious reason as to why an employer took the particular adverse action in question. His Honour rejected any notion that there could be a difference between “what actuated the conduct in question and what the person in question thought he or she was actuated by.”[26]
[26] See Board of Bendigo Regional Institute of Technical and further Education v Barclay & Anor [1](2012)248CLR500 at 545-6 [144]
In my view, much of Ms Celand’s case is based on what she thinks the various decision makers at Skycity were actuated by. As I observed earlier, she now has a very dim view of the management of Skycity. In such circumstances, it is a natural human tendency to attribute clandestine motivations to those with whom one is in conflict.
The second evidentiary issue, in conflict between the parties, relates to the letter written to Mr Tannock, by Ms Celand, on or about 11 July 2014.[27] Ms Celand herself did not include the letter, in her affidavit material, and opposes its admission. Ms Celand’s letter responds to an earlier letter, from Mr Tannock, dated 24 June 2014.[28]
[27] See affidavit of Mr Tannock filed 20 March 2015 at paragraph 100
[28] Ibid at paragraph 99
The chronology of events, leading up to this exchange of correspondence between Mr Tannock and Ms Celand can be summarised as follows. In 4 February 2014, a meeting occurred between Mr Tannock and Ms Celand, at which Mr Whiting and Ms Rosevear were also present.
During this meeting, Ms Celand raised her concerns regarding access to her personnel file and complaints made about her conduct at the off-site staff training session. It is clear, at this stage, that it was Ms Celand’s perception that she was being unfairly subject to bullying and harassment at the Casino.
Ultimately, Mr Tannock did not find Ms Celand’s allegations of workplace bullying or victimisation to have been substantiated. This followed an investigation conducted by an independent investigator, Ms Horning. She (Ms Horning) recommended that Skycity and Ms Celand attend a process of mediation in order to attempt to mend their working relationship.[29]
[29] Ibid at paragraph 97
In his letter of 24 June 2014, Mr Tannock invited Ms Celand to take part in the mediation recommended by Ms Horning. To this correspondence Ms Celand replied as follows:
“I have considered your proposal of mediation.
I have been seeking professional treatment throughout this ordeal and sought advice regarding your proposal.
I am advised that, due to my stress levels, mediation is not appropriate at this time.
I wish to negotiate my resignation from my position in an agreeable manner.
For my resignation I am seeking my accrued annual leave, annual leave loading and long service entitlements to be paid in full.
I am also seeking to receive payment of thirty two weeks of average weekly earnings for my resignation.
I am also seeking the sum of fifty thousand dollars in compensation for the loss of my career and the subsequent stress and negative mental impact caused by the adverse action taken against me by Adelaide Casino management since my involvement in Winra v Skycity Adelaide Casino.
I look forward to your response within ten working days after such time I intend to lodge a claim of workplace bullying with the Fair Work Commission, Safe Work SA, the Equal Opportunity Commission and the Australian Human Rights Commission.”
It is the submission of Mr Heywood-Smith that this letter should not be adduced into evidence, as it represents a communication relating to an attempt to negotiate a settlement of a dispute between Ms Celand and Skycity and therefore is covered by the exclusion contained in section 131.
In this context, he refers to the definition, contained in section 131(5), which indicates that a reference to the term dispute in the section, means a dispute of a kind in respect of which relief may be given in an Australian proceeding.
In response, Ms Eastman contends that the correspondence falls within the exception provided by section 131(2)(g) in the sense that it is necessary for the court to have reference to the letter in question otherwise it is likely to be misled about a central aspect of the evidence necessary to determine a central issue in the case, namely whether Ms Celand chose to leave her employment with Skycity or was constructively dismissed.
Mr Tannock responded to this letter on 15 July 2014.[30] In his responding letter, he indicated that, ostensibly at least, that he was sorry Ms Celand was feeling stressed. In this context, he encouraged her to access Skycity’s employee assistance program.
[30] Ibid at paragraph 109
He also indicated that Ms Celand was entitled to lodge a worker’s compensation claim, if she felt that she had been injured during the course of her employment. The relevant paragraph of the letter reads as follows:
“You have advised that you wish to negotiate a resignation from Skycity. As a general rule, Skycity does not negotiate resignations, nor does it wish to lose your services. However, in the interests of your health, Skycity is willing to provide eight weeks pay in lieu of notice plus payment of your accrued leave in accordance with the Fair Work Act.”
In this context, Mr Tannock denied that Skycity’s actions had adversely affected Ms Celand’s career. As such, he indicated that Skycity declined to pay any compensation to Ms Celand relating to her alleged stress and negative mental impact.
On 11 July 2014, Ms Celand called in sick. She provided a medical certificate in respect of her absence. On 25 July 2014, Ms Celand sent a message from her IPhone indicating that she did not accept the offer of eight weeks pay in lieu of notice. On 28 July, she provided a further medical certificate indicating that she would be unfit to attend work between that date and 10 August 2014.
Mr Tannock received a letter from Ms Hamden, dated 8 August 2014, which indicated that Ms Celand believed that she had been the subject of adverse action and had been constructively dismissed. It is Mr Tannock’s evidence, which I accept, that he did not believe Ms Celand had resigned her position at Skycity and nor did he consider that he had taken any steps, either actively or tacitly, to terminate her employment.
Upon receipt of Ms Hamden’s letter, Mr Tannock immediately wrote personally to Ms Celand in the following terms:
“Our understanding of the letter is that you intend to resign from your employment at Skycity. We write to urge you to reconsider you [sic] position and to take into account all of the steps taken by Skycity to try and resolve your concerns. This has included offering to participate in mediation, inviting you to access to Skycity’s employee assistance program, engaging an independent investigator to investigate your concerns and meeting and/or offering to meet with you on various occasions.
We encourage you to meet with either myself or another senior representative of Skycity to discuss your concerns prior to making any decision to confirm your resignation. We would be happy to arrange this meeting during your next scheduled shift, which is on Monday 11 August.
We confirm that we will not consider that you have resigned from your employment until we receive confirmation from you.”[31]
[31] Ibid at paragraph 115
Ms Eastman characterises Ms Celand’s letter of 11 July 2014 as being the opening salvo, which subsequently led to a dispute, between the parties, of the kind envisaged by section 131(5).
For a communication to be privileged, it must arise in the context of a genuine attempt to compromise an existing dispute between the parties concerned, not one which is foreshadowed.
In Barrett Property Group Pty Ltd v Dennis Family Homes Pty Ltd (No2)[32] Bromberg J said as follows, in respect of what was meant by the expression in connection with an attempt to negotiate a settlement of the dispute:
“The fundamental question is whether each of the impugned communications were connected with an attempt to negotiate a settlement of the dispute.
Whether or not there was an attempt to negotiate a settlement involves an analysis of the communications made, taking into account the content of each communication and the context in which each was made. The starting point, however, is what s 131(1) means by the phrase “negotiate a settlement”. For that purpose, reference should be made to the purpose and policy objectives of s 131.”
[32] Barrett Property Group Pty Ltd v Dennis Family Homes Pty Ltd (No2) [2011] FCA 276 at [30]-[31]
Accordingly, the connection arising in section 131(1)(a) must be a direct one and the question of whether there has been an attempt to negotiate a settlement is one of nexus.[33] In Galafassi the New South Wales Court of Appeal approved the following passage of Young J in GPI Leisure Corporation Limited (in liq) v Yuill[34]
“What then is an ‘attempt’ to negotiate a settlement? Again, I think really it is a question of nexus. There may be many communications between parties, which one can read between the lines as saying that certain things may happen, and if those certain things happen, the dispute might be settled. I do not consider that generally such a communication would fall within the privilege in s 131(1)(a).
The present letter seems to me merely to be a communication which indicates that if the litigation can be dealt with in some practical way, the writer is open to suggestions. Alternatively it indicates that if a claim arises in the future, a mechanism can be put in place to deal with it. The letter does not suggest a method of compromising the underlying dispute. I do not consider that it is sufficiently close to ‘an attempt to negotiate a settlement’ of the dispute to come within privilege.”
[33] See Galafassi v Kelly [2014] NSWCA 190 at 34 [117]
[34] GPI Leisure Corporation Limited (in liq) v Yuill (1997) 42 NSWLR 225 at 226-227
In Kong v Kang & Ors[35] Derham AJ also considered that for the privilege to apply the communication in question must arise in the context of an existing dispute. His Honour said as follows:
“What must be established is that the communication or document is connected with a genuine attempt to negotiate settlement of an existing dispute. The words of the section require, as a precondition to its operation, that the communication in question is made between persons in dispute.”
[35] Kong v Kang & Ors [2014] VSC 28 at 20 [62]
In my view, there is not sufficient nexus between Ms Celand’s letter and the dispute, which subsequently arose between the parties. In my view, there was no existing dispute between the parties, when Ms Celand wrote the letter, although clearly she was dissatisfied with how she had been treated, up to that stage.
In my view, the letter is a proposal regarding how this state of dissatisfaction could be resolved, from her perspective, in her resignation, on terms. In this sense, it is not an attempt to negotiate a settlement of an existing dispute. Although such a dispute may have existed, in the sense envisaged by section 131(5)(a), after the dispatch of the letter concerned.
During the course of the hearing, I indicated to the parties that I would admit the letter in question and provide detailed reasons later. I have concluded that there is no justification for changing the earlier ruling and propose to confirm the admission of the letter in question for the reasons detailed.
In addition, I am satisfied that it would be misleading if the letter was not admitted. However, it will be necessary to provide a larger factual context to justify this decision, which will be done in due course.
Issues to be determined and findings of fact
In my view, the applicant’s amended statement of claim must be the starting point for the court’s analysis of the factual matters to be determined in the case. Mr Heywood-Smith warns against a slavish adherence to the pleadings and raises the possible pitfalls, which may arise, if they are minutely analysed for defects.[36] Nor should any technicality in pleadings become an instrument to defeat justice.[37]
[36] See Arthur Young & Anor v Tieco International & Ors (1995) 182 LSJS 367 per Lander J
[37] See Morawski v State Rail (1988) 14 NSWLR 374 at 376 per Kirby P
However, in my view, in a case such as the present, pleadings are an essential tool, for both the court and the parties themselves, to identify what are the issues to be resolved in the case brought. This is particularly so, in cases of the current kind, which arises within a clear statutory matrix prescribing whether an employer’s conduct is or is not illegal.
a)The applicant’s role as a support person in the sexual assault interviews
As previously indicated, various female staff members of the Casino complained that they had been sexually harassed and assaulted at Christmas functions arranged by the staff social club in 2009 and 2010. The person alleged to have committed these assaults was Mr Kelman David, at the time, a table games shift manager.
Mr David commenced his employment at Skycity Adelaide on 10 November 2008. He was engaged by Mr Devine, at the time, the head of table games. Mr Devine had been in this position since June 2008. Mr Devine had been engaged by and reported to David Christian, who was the Chief Executive Officer of Skycity Adelaide.
Mr David and Mr Devine had previously worked together at Skycity’s operations in Auckland. Ms Celand has suggested that the two had a close personal friendship, which included Mr Christian. Mr Christian and Mr David did not give evidence in these proceedings. Mr Devine acknowledges being friendly with Mr David but said the two weren’t best friends. Mr Devine also accepted that he brought Mr David over, from Auckland, but indicated that he (Mr David) had to apply for his Adelaide position in the normal manner.
As head of table games, Mr Devine was responsible for supervising all table games staff, at the Adelaide casino, including dealers and supervisors. He oversaw 430 employees, which included four table games shift managers; supervisors; dealers; analysts; a marketing manager; and various individuals, who made up the table games scheduling department. As the Casino is open 24 hours a day, seven days a week, apart from Christmas Day and Good Friday, it is a complex logistical exercise to ensure that each staff roster, relating to table games, is filled.
Mr Tannock commenced employment, as the head of human resources, at Skycity Adelaide, in October 2009. Mr Tannock is responsible for human resources at Skycity Adelaide, which employs approximately 1,250 people. His team has a staff of six, which includes a human resources coordinator; a health and safety specialist (Ms Brooks); an injury management advisor; a learning and development specialist; two human resources advisors; and an administrative assistant. He reports to the general manager.
As previously indicated, Ms Celand commenced employment, at Skycity, on 7 July 2001. Initially she was a rotating part-time dealer, meaning that she was an operator of each of the gambling games, which actually took place at a table, as opposed to mechanical gaming machines. On 13 September 2002, she was promoted to a full-time dealer. Later on 29 June 2005, she was promoted to the position of full-time dual role/supervisor. A supervisor oversees the activity of dealers on a small group of tables, which are proximate to each other.
The relevant workplace union, at Skycity, is the Liquor, Hospitality and Miscellaneous Union, now United Voice. Ms Celand joined the union on 21 September 2005 and was elected delegate, for the table games department on 9 January 2008.
For reasons, which have not been revealed, she ceased her role as a delegate, with the union and rescinded her membership with it on 28 February 2009. Mr Devine cannot recall any involvement of Ms Celand in contract negotiations between him, in his managerial role and Ms Celand, as a union delegate.
In December of 2009, Ms Celand deposes that she was approached by a co-worker, Ms Jenna Potts, who informed her that she had been sexually assaulted by Mr David at the staff Christmas show of 2009. This was after Ms Celand had ceased her role as a union delegate. It is Ms Celand’s evidence that she encouraged Ms Potts to make a formal complaint with human resources.
In her affidavit material, Ms Celand does not depose to any further involvement in the matter involving Ms Potts. Nor does she allude to any action, involving her, which was taken by any staff member at the Casino. The matter is not referred to in her affidavit sworn in Ms Winra’s proceedings against the respondent.
There is no evidence to indicate that Ms Celand sat in on any interview between Ms Potts and management concerning Ms Potts’ complaint or otherwise assisted her with it. In opening, Mr Heywood-Smith indicated that Ms Potts had commenced proceedings similar to those of Ms Winra, against Skycity, in January of 2014 and the respondent “could have anticipated that the applicant would or might be involved in those proceedings.” I am unsure how this assertion relates to the applicant’s claim arising under section 340 of the FWA regarding Mr David’s conduct second hand.
It is Ms Celand’s evidence that she encouraged the female staff members affected to complain to their relevant managers or to the human resources department. She herself had no direct involvement in facilitating any such complaints.
Mr Tannock became aware of the complaints through Ms Rosevear, who besides being a pit manager, was also the president of the social club in December 2010. As a consequence of receiving this information, Mr Tannock elected to conduct an investigation. It is also Mr Tannock’s evidence that from the time of the commencement of the investigation, Mr David did not re-enter the premises of Skycity, as he was stood down from his employment.
It is Mr Tannock’s evidence that he considered that it would be necessary for the female employees, who had been affected by Mr David’s conduct, to have a female support person present, whilst being interviewed. This was particularly so given that he and Mr Devine, obviously both men, would be conducting the interviews. Ms Rosevear approached Ms Celand to perform this role.
Ultimately, Ms Celand believes that she was support person for around six complainants. Ms Celand deposes that she informed Ms Rosevear that she was no longer a union delegate but would be happy to accommodate staff, in this capacity, if they so requested.
The tenor of Ms Celand’s evidence is that she felt there was something generally untoward about the interview process. She was concerned that the interviews were scheduled to occur at night and she was there only as a token gesture, given that she had no specific experience or training in sexual harassment investigations.
In cross-examination, Ms Celand also indicated her view that the interview process should have been stopped, so far as Ms Winra was concerned, when she (Ms Winra) became distressed and began to sob. It was Ms Celand’s view that Ms Winra’s complaint should have been immediately referred to police.
It is not my function to determine whether these interviews were or indeed whether they could have been conducted better or more sensitively. What is clear, however, is that Ms Celand attended the interviews voluntarily and not in any capacity relating to her membership of an industrial organisation.
In this context, Ms Celand acknowledges that she was not invited to the interviews concerned to act as an advocate for anyone, or to ask any questions herself. Rather it is the case that Mr Tannock and Mr Devine had a list of questions, which they asked each complainant in turn. It is Mr Tannock’s evidence that he was grateful for the involvement of Ms Celand in the interview process. This assertion has not been rebutted.
Mr Tannock’s statement seems to me to be logical. None of Ms Celand’s activities were the subject of his inquiry. The focus was on what Mr David had allegedly done. In this context, Mr Tannock was concerned to ensure that the inquiry at least had the appearance of being impartial. For this reason, Ms Rosevear was tasked to solicit a support person for each of the complainants concerned.
It is clear to me that none of the complainants individually sought out Ms Celand to be her support person. Rather, each acquiesced to her participation, in the interviews concerned, when it was apparent that she was there, at the instigation of Mr Tannock and Mr Devine. I accept, in all these circumstances, there is a lack of clarity about what Ms Celand’s overall function was.
In cross-examination, she indicated that she had been a support person, whilst a union delegate, in disciplinary proceedings. However, she had not been involved in any complaints of sexual harassment and, did not believe that she had relevant training or expertise in this area. As such, the process left her with a sense of disquiet, particularly given the sensitive nature of the matters being investigated.
I accept that Ms Celand disapproved of how management conducted the interviews and perhaps herself felt exploited and tainted by them. There is no evidence to indicate that she voiced her concerns, about the process, with either Mr Tannock or Mr Devine, directly during the course of the interviews.
However, in my assessment, Ms Celand is not the sort of person to sit mute, if she thought something untoward was occurring. It is however clear that management took the allegations seriously, as Mr David was suspended from the workplace. As such, I have no reason to think that the process itself was not properly motivated, no matter the strength of Ms Celand’s objections to its form.
In the case as pleaded by Ms Celand, it is her allegation that Skycity has, in effect, unilaterally terminated its contract of employment, with her, by its breach of an essential term of that contract. As previously indicated, this repudiatory conduct is said to be the telephone call from Mr Webster of 29 January 2014, which she alleges deprived her of the contractual right to overtime.
In Koompahtoo Local Aboriginal Land Council & Anor v Sanpine Pty Ltd & Anor[107] the High Court discussed the circumstances in which a fundamental breach of contract or a repudiation of contract, in this case relating to a joint venture to develop land, can result in the unilateral termination of that contract. The ratio of Koompahtoo has since been applied to employment cases.
[107] Koompahtoo Local Aboriginal Land Council & Anor v Sanpine Pty Ltd & Anor (2007) 233 CLR 115
The majority of the High Court (Gleeson CJ, Gummow, Heydon and Crennan JJ) said as follows:
“In its letter of termination, Koompahtoo claimed that the conduct of Sanpine amounted to repudiatory breach of contract. The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it. (In this case, we are not concerned with the issues that arise where the alleged repudiation takes the form of asserting an erroneous interpretation of the contract. Nor are we concerned with questions of inability as distinct from unwillingness.) Secondly, it may refer to any breach of contract which justifies termination by the other party. It will be necessary to return to the matter of classifying such breaches. Campbell J said this was the sense in which he would use the word "repudiation" in his reasons. There may be cases where a failure to perform, even if not a breach of an essential term (as to which more will be said), manifests unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirements. This overlapping between renunciation and failure of performance may appear conceptually untidy, but unwillingness or inability to perform a contract often is manifested most clearly by the conduct of a party when the time for performance arrives. In contractual renunciation, actions may speak louder than words.”(citations removed)
As such, it is clear that the question of whether the conduct of a party to a contract is sufficient to establish a renunciation or repudiation of that contract is to be objectively determined and, as such, must be determined by reference to the applicable facts.
In Azzi & Ors v Volvo Car Australia Pty Ltd[108] Brereton J said as follows:
“Repudiatory intent is not lightly to be inferred. It is not in doubt that an accumulation of conduct by a party to a contract may amount to a repudiation, although no individual act can be identified on its own as doing so; and that the repudiation may be established not only by conduct that evinces an intention to perform it only in the manner in which it suits that party to perform.” (citations removed)
[108] Azzi & Ors v Volvo Car Australia Pty Ltd [2007] NSWSC 319 at [74]
I accept that it was Ms Celand’s perception that over a number of years Skycity engaged in conduct which she believed indicated that it no-longer wished her to remain as an employee. But in my view, this was her perception, rather than specific and cumulative examples of repudiation. Ms Celand continued to work at Skycity until such time as she determined that she would not continue there.
In my view, Ms Celand has not provided any evidence that she had any fundamental contractual right, which Skycity has either explicitly or implicitly repudiated, certainly not in respect of the issue of overtime. In regard to overtime, Ms Celand’s employment conditions were stipulated by the enterprise agreement, which did not give her any specific right to overtime.
As I have found, all employees were subject to the same direction as her in this regard, particularly in respect of working more than ten consecutive days. She was not singled out in this regard. In any event, Ms Celand did not take what Mr Webster told her to be a repudiation of contract, as she continued to work for a number of months thereafter at Skycity.
I appreciate both Mr Heywood-Smith’s submission and what the High Court said in Koompahtoo that, in a contractual setting, actions may speak louder than words and from those actions or an accumulation of them may arise an implication that a party to a contract no longer wishes to perform a fundamental aspect of it.
However, I do not believe that this is the case in this matter. It was Ms Celand, through her solicitor, who first characterised the dispute between the parties as being one of constructive dismissal, which Mr Tannock immediately refuted. Just because Ms Hamden characterised it as such does not obviously render it so.
This issue arose after Ms Celand had indicated a desire to resign from Skycity on negotiated terms. Significantly, the issue of constructive dismissal also arose following the issue of Ms Horning’s report, with which Ms Celand disagreed. This report did not recommend any disciplinary action be taken against Ms Celand and none was taken. To the contrary, Mr Tannock offered to mediate the concerns raised by Ms Celand.
In objective terms, I find that there were no impediments to Ms Celand being able to continue with her employment, at Skycity, following the release of Ms Horning’s report. She still, in my view, had avenues open to her to pursue what she perceived to be her grievances, particularly through the mediation offered to her.
As such, I do not consider that she was either constructively dismissed or that Skycity repudiated an essential term of her contract of employment, which rendered it impossible for her to carry out her contractual obligations of employment.
Rather, over a period of time, Ms Celand became increasingly dissatisfied with her situation and determined to leave her employment, on the best possible terms she could secure. In these circumstances, I do not consider that she has suffered any adverse action, within the sense envisaged by the FWA, as a consequence of the infringement of any workplace right pertaining to her.
Conclusions
In my view, this is a sad and perplexing case. No doubt, from both parties’ perspectives, it could have been approached more constructively, at an earlier stage. I have no doubt that Ms Celand feels extremely harshly done by and is resentful at her perception that an accumulation of events, beyond her control, have forced her from her long held employment at Skycity, in which she had previously both acquitted herself well and enjoyed.
As I am at pains to point out, my function is not to inquire into whether Ms Celand is entitled to feel hard done by these various circumstances or whether Skycity is or is not a model employer, who has behaved in a procedurally fair way towards her.
Rather, my statutorily based function is to determine whether Ms Celand has suffered any adverse action because of the existence of a workplace right, which she holds or has exercised. For the reasons set out above, I am of the view that she has not suffered such adverse action, which is sufficiently connected to a workplace right relating to her. Accordingly, her application must be dismissed.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding three hundred and eighty-seven (387) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 29 February 2016
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