Chapman v Bucketts Way Neighbourhood Group Inc
[2016] FCCA 2780
•28 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHAPMAN v BUCKETTS WAY NEIGHBOURHOOD GROUP INC | [2016] FCCA 2780 |
| Catchwords: PRACTICE AND PROCEDURE – Whether applicant has reasonable prospects of success on her claims based on s.340 and s.352 of the Fair Work Act 2009 (Cth) (FW Act) – no reasonably arguable case based on alleged contraventions of s.352 of the FW Act, but reasonable prospects of success on claims based on contraventions of s.340 of the FW Act. |
| Legislation: Fair Work Act 2009, ss.340, 340(1), 340(1)(a), 341, 341(1)(c), 342(1), 352, 361 Federal Circuit Court of Australia Act 1999 (Cth), s.17A(2)(b) |
| Cases cited: Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284; (2010) 193 IR 251 Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 |
| Applicant: | KELLEY MARREE CHAPMAN |
| Respondent: | BUCKETTS WAY NEIGHBOURHOOD GROUP INC |
| File Number: | SYG 1480 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 28 August 2015 |
| Date of Last Submission: | 28 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 28 October 2016 |
REPRESENTATION
| Applicant in person. |
| Counsel for the Respondent: | Ms P Lowson |
| Solicitors for the Respondent: | Holman Webb Lawyers |
ORDERS
The application is dismissed to the extent it claims the respondent contravened s.352 of the Fair Work Act 2009 (Cth).
The application, to the extent it claims the respondent contravened s.340 of the Fair Work Act 2009 (Cth), be listed for further directions on a date to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1480 of 2015
| KELLEY MARREE CHAPMAN |
Applicant
And
| BUCKETTS WAY NEIGHBOURHOOD GROUP INC |
Respondent
REASONS FOR JUDGMENT
Introduction
On 29 May 2015 Ms Chapman, who is not legally represented, commenced this proceeding in which she claims that her former employer, the respondent (BWNG), contravened the Fair Work Act 2009 (Cth) (FW Act).
As a result of directions I made, Ms Chapman filed affidavits and other evidence in support of her claims. On 21 July 2015, rather than directing BWNG to file affidavits in response to Ms Chapman’s affidavits, I directed that the matter be set down for hearing to determine whether, on the material she has filed, Ms Chapman has reasonable prospects of successfully prosecuting the proceeding, or any part of the proceeding. I intended the language of that question to reflect the language of s.17A(2)(b) of the Federal Circuit Court of Australia Act 1999 (Cth).
The hearing took place on 28 August 2015. On that day I informed Ms Chapman that the question I needed to address was “whether, on the material that you rely on and on any submissions you make today, I’m of the view that your case has or has not reasonable prospects of success, all or any part of it”.[1] Ms Chapman identified the material on which she relied, most of which was admitted into evidence, and I heard submissions on whether the material disclosed Ms Chapman has reasonable prospects of successfully prosecuting the proceeding or any part of the proceeding. Ms Chapman also gave evidence in chief on events that had occurred after she commenced the proceeding.
[1] T3.20-25
In these reasons for judgment, therefore, I consider whether I am satisfied Ms Chapman does not have reasonable prospects of successfully prosecuting all or any part of the proceeding she has brought. I will proceed as follows. I will first set out in narrative form the facts as disclosed by the evidence Ms Chapman has adduced, on the assumption that those facts will be proved at trial. I will not rely on evidence which would unquestionably be inadmissible if objection to it were taken at a final hearing. I will then identify the claims Ms Chapman makes and, consider whether Ms Chapman has no reasonable prospect of succeeding on each of those claims.
Alleged facts
Ms Chapman commenced her employment with BWNG in September 2010 as a Community Development Worker and Gloucester Neighbourhood Centre Service Coordinator.[2] Ms Chapman’s position was funded by the Department of Family and Community Services (FaCS) to deliver “contracted agreement outcomes” for the community of Gloucester.[3] Those outcomes are specified in a document issued by FaCS titled “Community Builders Renewable Service Specification Template” (Specification). The Specification describes as its target group communities in the local government area of Gloucester and parts of Great Lakes, especially the disadvantaged members of those communities.[4]
[2] Affidavit of K Chapman, 10.06.2015, [14]
[3] Affidavit of K Chapman, 10.06.2015, [15]
[4] Affidavit of K Chapman, 10.06.2015, [15], annexure “A”
The Specification describes in some detail “Service Activities”, of which there are two types. One is named “Community Capacity Building”, and the other is named “Community Hub”. The Specification requires the person completing the document to choose only those models for which approval has been given. From the attachment to the Specification, it appears, and, for the purposes of this application, I will assume, that funding was approved for the provision of both “Community Capacity Building” and “Community Hub” activities.
The Specification describes the aims of the two types of service activities, and the activities that are to be undertaken to achieve those aims. The aim of “Community Capacity Building” projects is to “build stronger communities by developing stronger links between community members and assisting members of disadvantaged communities to participate in community life and activities”. The specific activities are to undertake initiatives that build aspects of community strength, such as participation and connectedness, to undertake activities that optimise the use of the community’s existing social and physical infrastructure, to undertake activities that enhance community resourcefulness, such as providing information to individuals about community resources and services, and to undertake initiatives that increase community connections, trust, and respectfulness.
The aims of the “Community Hub” is to “work with individuals, service providers and community groups to provide a locally based, single point of access to information, resources and services that are accessible to all members of the community”. The specific activities include the provision of information, referral, and other resources to the local community in relation to social connectedness, general community and local services, crisis services, and access to community facilities; and to assist individuals to build connections with appropriate services, community support and informal social networks.
In Part H of the “Form 4” she filed in this proceeding, Ms Chapman describes her role as Gloucester Community Development Worker and Gloucester Neighbourhood Centre Service Coordinator as follows:
I am employed (2010-current) as Gloucester Neighbourhood Centre Service Coordinator and Gloucester Community Development Worker under Family and Community Services (FaCS) Community Builders funding. Community Capacity Building and Hub are the defining outcomes under the FaCS contract. Providing information and referral for the general community, client assessment, support networks within the community for disadvantaged groups and individuals, contributing to Community Development within Gloucester through delivery and performance management of key community events and initiatives, the development of services, partnerships and relationships to deliver social justice outcomes, community educational outcomes relevant to Gloucester and enhance community well-being generally. Below are some of the coordination and super visionary roles I undertake.
Ongoing supervision, reporting and coordination of the following:
o Capacity Building
o Community Development
o Gloucester Neighbourhood Centre Facebook Page
…..
o Information and Referral
…..
o Legal Aid Advice Clinic
o Centrelink Agency
o Emergency Relief Program
…..
Ms Chapman participated in a number of committees as chairperson, and attended community events.[5] Ms Chapman was contracted to perform 28 hours of work per week with flexibility as to when she would work those hours.[6]
[5] Affidavit of K Chapman, 10.06.2015, [18]
[6] Affidavit of K Chapman, 10.06.2015, [19]
During 2014 Ms Chapman was receiving clinical supervision and support. The need for such supervision and support arose as a result of Ms Chapman claiming to have been bullied by the former chief executive officer of BWNG.[7] The former chief executive officer resigned in May 2014 and, in September 2014, Ms Anna Burley became the chief executive officer of BWNG.
[7] Affidavit of K Chapman, 10.06.2015, [22], [32]
On 26 November 2014 Ms Chapman attended a staff meeting chaired by Ms Burley. Ms Burley introduced each staff member and, with the exception of Ms Chapman, summarised each staff member’s achievements, and invited him or her to expand on his or her achievements and activities.[8] At the end of the staff meeting, Ms Chapman asked Ms Emma Green, the receptionist at the Queen Street premises of BWNG, the dates on which she would be away during closure over Christmas. Ms Burley said ““We will discuss this later” with a ferocity that prompted” Ms Chapman “to leave the meeting immediately”.[9] Soon after the staff meeting, Ms Chapman went to the Queen Street premises of BWNG, and asked Ms Green how it “came about that you did the Material Safety Data Sheets for our building”.[10]
[8] Affidavit of K Chapman, 10.06.2015, [25]
[9] Affidavit of K Chapman, 10.06.2015, [26]
[10] Affidavit of K Chapman, 10.06.2015, [27]
According to a letter dated 4 December 2014 Ms Chapman sent to Ms Burley (Adverse Event Report),[11] after the staff meeting of 26 November 2014 Ms Burley visited Ms Chapman at her office. Ms Burley said that Ms Green had called Ms Burley in a distressed state, in which she said Ms Chapman had attacked Ms Green. Ms Burley asked Ms Chapman what happened to have made Ms Green make that call. Ms Chapman gave an account of what was said between her and Ms Green. Ms Chapman said she was in shock and disbelief, and she could not see how Ms Green could have made such a statement to Ms Burley. Ms Chapman said “within the Queen Street building there was some dynamics in interactions between staff that” she had been observing. Ms Burley made no verbal response, but she made “quiet [sic] a facial expression”, and nodded her head. Ms Burley said that Ms Chapman was to come up with a “solution regarding Emma and how was this going to work”.[12]
[11] Affidavit of K Chapman, 10.06.2015, [27], annexure “C”
[12] Affidavit of K Chapman, 10.06.2015, annexure “C”
Other subjects were discussed at the meeting between Ms Chapman and Ms Burley. One concerned a “Domestic Violence walk” in Gloucester. Another was whether Ms Chapman would be working until 24 December 2014. A fourth subject was emergency relief and the operation of “the DSS extension”. And the fifth subject concerned the “Local Domestic and Family Violence Committee Grant”.[13]
[13] Affidavit of K Chapman, 10.06.2015, annexure “C”
After the meeting, Ms Chapman accompanied Ms Burley to the reception area where Ms Green was still working. Ms Burley had a conversation with Ms Green. Ms Chapman went back to her office and, a short time later, she went to use the bathroom and observed Ms Burley and Ms Green outside in discussion. Ms Green continued to work at reception until 2 pm when she notified Ms Chapman that she was heading up to King Street. In the Adverse Event Report, Ms Chapman says she “found this particular timing and engagement with Emma to be confronting and intimidating”. Within half an hour after Ms Green notified Ms Chapman that she was heading to the King Street building, Ms Chapman “was overcome with deep distress and felt faint and needed to leave work”.[14]
[14] Affidavit of K Chapman, 10.06.2015, annexure “C”
On 27 November 2014, when Ms Chapman returned to work, Ms Laurantus, not Ms Green, was at the reception desk at the Queen Street Building. Ms Laurantus informed Ms Chapman that she was to be the receptionist, and that she had been instructed to obtain a key for the building because she will be working there until the end of the year.[15]
[15] Affidavit of K Chapman, 10.06.2015, [31]
On 1 December 2014 Ms Chapman reported for work, and was due to undertake a work performance review of Ms Green. Considering the events of 26 November 2014, however, Ms Chapman contacted Jobs Australia who recommended that Ms Chapman refer Ms Green’s performance review to Ms Burley.[16] On the same day, Ms Chapman sent an email to Ms Burley informing her that Ms Chapman had been advised by Jobs Australia to hand over to Ms Burley the review of Ms Green.[17] The email set out the matters to be reviewed in relation to Ms Green that had been set out in a letter dated 29 October 2014 to Ms Green, and Ms Chapman’s feedback on those matters.
[16] Affidavit of K Chapman, 10.06.2015, [34]
[17] Affidavit of K Chapman, 10.06.2015, [34], annexure “E”
On 1 December 2014, Ms Chapman lodged an in-house BWNG Adverse Event Report and left a copy of that report with Pay Office staff to be provided to Ms Burley. On the following day, Ms Chapman contacted Ms Burley and “staff BWNG Queen St Building” informing them she was not well and would not be in for the day. Ms Chapman consulted Dr Hussain who gave her a sick leave certificate for 2, 3, and 4 December 2014. When Ms Chapman consulted Dr Hussain on 5 December 2014 and discussed her returning to work the following week, Ms Chapman “became emotional” and she “began to cry and shake”. Dr Hussein issued a “WorkCover NSW – certificate of capacity”.[18] The document diagnosed Ms Chapman as suffering from “post trumatic [sic] (ptsd)”. The certificate specified the “patient stated date of injury” to be “Wednesday, 1 August 2012”, and that the injury occurred in the normal course of duty. On 8 December 2014 Ms Chapman lodged a claim for WorkCover.[19]
[18] Affidavit of K Chapman, 10.06.2015, [38], annexure “F”
[19] Affidavit of K Chapman, 10.06.2015, [40], annexure “G”
The diagnosis contained in this WorkCover certificate may need to be read with what Ms Lesley Watkin, Ms Chapman’s “clinical supervisor”, recorded in a report dated 18 March 2015 of what Ms Chapman told Ms Watkin about her condition. After noting that Ms Chapman had consulted Ms Watkin on 7 February, 31 August, 28 November, 3 December and 19 December 2014, and on 29 January 2015, Ms Watkin said:[20]
Over that time the consultations were focused on Ms Chapman’s concerns, having been to do with managing disciplinary situations with subordinates through to managing what she perceived to be lack of support from her new CEO, over her management of disciplinary action with a subordinate. Ms Chapman submitted an Adverse Events Report to the CEO regarding . . . how she felt a lack of support from the CEO.
Ms Chapman’s stress level increased to the point that the only option she felt she could take was to go on stress leave. Due to her financial situation, she applied for workers compensation, as her stress, she felt, was due to the bullying, intimidation and victimisation that she was feeling in the workplace, Ms Chapman applied for Workers Compensation late December.
[20] Affidavit of K Chapman, 10.06.2015, [32], annexure “D”
Also on 8 December 2014, Ms Chapman emailed to Ms Burley the Adverse Events Report.[21] The report begins by identifying three events which Ms Chapman claims “have had a negative effect on me personally”. These were the staff meeting of 26 November 2014, Ms Chapman’s trying to confirm at that meeting Ms Green’s leave dates, and the “impromptu meeting that took place in my office on 26/11/2014”. Most of the document sets out Ms Chapman’s account of those events. The report concluded with the following:
My experience of this event has caused me to be deeply distressed as I feel that I myself have been penalized and that the action to remove Emma from my service implies to all that I have in fact been at fault and “attacked” Emma “amongst other words” and moves to discredit my professional image within the organization. I believe that holding a meeting in my office without prior notice and with Emma outside was highly inappropriate.
I believe the issues around Emma is contributed to by a lack of clarity around lines of accountability and supervision. She works from the building I manage, has supervision with Karlie; who operates from another building, and she is taking work directions from numerous sources including yourself.
In order to work effectively in my role I need to feel confident that I can make reasonable requests of the receptionist in the building and that they are carried out. I also need for transparent and appropriate communication. Lastly I need the valuable work that I undertake within the community to be acknowledged and appreciated by my supervisor.
I [sic] conclusion I request:
· Clarification be made with all parties around Emma’s role and supervision arrangements
· That my position description be revised so as to ensure it aligns with the program guidelines that I am funded for. I am of the opinion that some of the tasks requested of me fall outside of this scope.
· That my annual leave application be approved as I see no reasonable grounds for refusal. Considering . . . my current circumstances I will assume this has been granted unless I hear otherwise.
· that [sic] the diploma students be allowed to undertake ERP work, as there are no other staffing arrangements in place.
[21] Exhibit A
Following Ms Chapman’s lodgement of her claim for WorkCover, two events occurred. First, on 18 December 2014 Ms Chapman met with Ms Power for two hours. Ms Power was the Return to Work Co-ordinator employed by Interact Injury Management (IIM). IIM was contracted by BWNG’s workers compensation insurer (GIO) to manage and facilitate the return to work employees who claimed WorkCover. [22] Ms Power was assigned to manage and facilitate Ms Chapman’s return to work. Second, on 19 December 2014, Mr Kenney interviewed Ms Chapman for the purposes of her claim for workers compensation, and she signed a statement (Statement).[23] The Statement gives a detailed history of Ms Chapman’s relationship with BWNG’s former chief executive officer. Ms Chapman claimed the former chief executive officer had continually undermined Ms Chapman’s role and management, “with consistent intimidations and job threats”.[24] The Statement then dealt with Ms Chapman’s interactions with Ms Burley, who, as I have already noted, had become chief executive officer in September 2014.[25] The Statement then stated matters to the effect I have already set out.
[22] Affidavit of K Chapman, 10.06.2015, [43], and [12]
[23] Affidavit of K Chapman, 10.06.2015, [44], annexure “H”
[24] Affidavit of K Chapman, 10.06.2015, [44], annexure “H” at [31]
[25] Affidavit of K Chapman, 10.06.2015, [44], annexure “H” at [43]
On 6 January 2015 Ms Chapman, together with Ms Power, conferred with Dr Hussain, who determined to extend the Capacity for Work Certificate to 8 February 2015.[26]
[26] Affidavit of K Chapman, 10.06.2015, [47]
On 5 February 2015 Ms Power prepared a “Return to Work Plan”.[27] The plan covered the period 5 February 2015 to 5 March 2015, and recommended Ms Chapman work 6.5 hours per day for two days a week. The plan identified the duties Ms Chapman would be performing. These were stated to include the “delivery and coordination of” services that included tax assistance, financial counselling, legal aid advice clinic, emergency relief, Gloucester homework centre, Minimbah garden, family support worker, Centrelink, and disability employment services. The plan also stated Ms Chapman was responsible for, among other things, all media releases and event management. On 8 February 2015 Dr Hussain issued a certificate stating that Ms Chapman was fit for pre-injury duties.[28] The certificate stated that Ms Chapman “is in emotinal crisis, she fell trated un faire and cant do her job as same level as in the past because the last icidence with her CEO brought many issue and problem with the old CEO” (errors in original).[29]
[27] Affidavit of K Chapman, 10.06.2015, [54]
[28] Affidavit of K Chapman, 10.06.2015, [52]
[29] Affidavit of K Chapman, 10.06.2015, [52], annexure “L”
Ms Chapman returned to work on 9 February 2015.[30] This occurred before Ms Burley responded to the “Return to Work Plan”. Ms Burley provided her comments in an email she sent to Ms Power on 11 February 2015.[31] Ms Burley said the duties stated in the “Return to Work Plan” did not reflect the conversation previously held about Ms Chapman’s duties. Ms Burley stated:
[30] Affidavit of K Chapman, 10.06.2015, [55]
[31] Affidavit of K Chapman, 10.06.2015, [59], annexure “N”
To clarify the duties outlined
1/The tax assistance, financial counselling, legal aid advice clinic, family support worker and disability employment services are external operations of BWNG Inc. The Community Development worker does not manage these services or their staff. BWNG Inc. facilitates their operations in Gloucester by providing space at the BWNG Queens St Office.
2/Ms Chapman is not responsible for all media releases and event management. This role as specified in current BWNG Inc. policy and procedure is the responsibility of the Chief Executive Officer. Any marketing, advertising or media should be authorised by myself and any matter otherwise will be a breach of this same policy.
3/Effective as of 9/2/15, Kelley Chapman is suspended from management of BWNG staff of Centrelink, Emergency Relief, Gloucester Homework centre programs and Neighbourhood centre.
In the meantime, Ms Chapman, on 9 February 2015, emailed Ms Burley her intention to attend the next day the Hunter Regional Neighbourhood Centre Forum and, on 10 February 2015, Ms Chapman did attend that forum. Ms Chapman had previously attended that forum during the course of her employment, and had always been reimbursed for her travel expenses. On this occasion, however, Ms Chapman has not been reimbursed. [32]
[32] Affidavit of K Chapman, 10.06.2015, [55]-[58]
On 19 February 2015 Ms Chapman was examined by a psychiatrist, Dr Vickery.[33] Dr Vickery was the “Independent Medical Examiner” GIO had engaged to assess Ms Chapman’s claims for workers compensation. In a report he produced, Dr Vickery expressed the opinion that Ms Chapman had described sufficient symptoms “to meet the DSM-IV criteria for an Acute Adjustment Disorder with Anxiety which has substantially resolved”, that Ms Chapman’s “presentation was consistent with the substantial resolution of Ms Chapman’s symptoms”, that Ms Chapman’s “described symptoms were excessive to the alleged cause”, and that there “is no objective evidence of a work related injury”.[34] Dr Vickery’s report also recorded information that had been provided by Ms Burley. That information referred to staff grievances having been lodged against Ms Chapman, two on 17 November 2014, one on 23 November 2014, and two on 24 November 2014.
[33] Affidavit of K Chapman, 10.06.2015, [61]
[34] Affidavit of K Chapman, 10.06.2015, [61], annexure “O”
On 2 March 2015 Ms Chapman attended a meeting with Ms Power, Ms Burley, and Ms Kerri Green, who was a member of BWNG’s board of management. Ms Burley communicated to Ms Chapman and Ms Power that BWNG was seeking legal action against Ms Chapman, that Ms Chapman’s position description was being changed, that Ms Chapman’s was under performance management, and that BWNG had lodged a bullying and harassment claim against Ms Chapman with GIO.[35] According to the email to which I refer in the next paragraph, there was disagreement about the duties Ms Chapman actually performed. What was particularly in dispute was whether Ms Chapman was the coordinator and manager of the provision of a number of services, including legal aid and financial counselling.
[35] Affidavit of K Chapman, 10.06.2015, [62]
On 6 March 2015 Ms Chapman sent an email to BWNG’s board of management in which she referred to the meeting of 2 March 2015. Ms Chapman said the purpose of the meeting was to facilitate a dialogue about her return to work, and to discuss the suspension of “all my duties imposed on me on the 11th February, 2015”.[36] Ms Chapman identified six matters that had been discussed which did not relate to her return to work. Ms Chapman claimed it was inappropriate for those matters to be discussed, and alleged that this indicated BWNG “is not genuine in a facilitation of return to work”. Ms Chapman claimed the language Ms Burley used in the meeting “was hostile and intimidating and that there was not a genuine effort made to collaborate on a Return To Work plan effective for all parties”, and that she had “been targeted”. With her email Ms Chapman sent a document titled “Facts 6/3/2015”.[37]
[36] Affidavit of K Chapman, 10.06.2015, [63], annexure “P”
[37] Affidavit of K Chapman, 10.06.2015, [63], annexure “Q”
On 6 March 2015 Ms Chapman’s claim for WorkCover was declined, and on 11, 12, and 16 March 2015, Ms Chapman “went to work as per my usual work routine”.[38]
[38] Affidavit of K Chapman, 10.06.2015, [63]-[65]
On 14 March 2015, Mr Hartup, the Chairperson of BWNG’s board of management, sent an email to Ms Chapman.[39] The email noted that, given Ms Chapman’s attendance at work on “Wednesday and Thursday this week”, and her request to attend the LCSA meeting in Sydney on Monday 16 March 2015, BWNG assumed Ms Chapman was now fully fit, and that her return to work plan was no longer relevant. Mr Hartup asked Ms Chapman to inform BWNG immediately if that assumption was incorrect. The email next confirmed BWNG’s approval of Ms Chapman’s attendance at the LCSA meeting in Sydney on 16 March 2015, but noted BWNG would have appreciated the opportunity to discuss Ms Chapman’s attendance before Ms Chapman had left work the previous day. The email then stated as follows:
James Neilson from the BOM would also like to meet with you on Tuesday 17 March 2015 at 11.30am regarding your letter of Friday 6 March 2015 and a number of allegations that have been made against you. You may bring a support person to this meeting if you wish. For abundant clarity I confirm that you will not be required to respond or comment upon any of the allegations that have been made against you, or which you have made, at this meeting. Rather the meeting is to outline the process that BWNG will go through in dealing with all the allegations and provide you with a written outline of the allegations that have been made against you. You will then be given opportunity to respond.
[39] Affidavit of K Chapman, 10.06.2015, [70], annexure “U”
On 17 March 2015 Mr Neilson, who was then a member of BWNG’s board of management, went to Ms Chapman’s office and delivered to her a letter dated 17 March 2015 signed by Mr Hartup as Chair of the BWNG board.[40] The letter begins by stating that BWNG had “become aware of certain issues of alleged inappropriate conduct by” Ms Chapman which, if substantiated, “may constitute misconduct, workplace bullying and/or conduct falling short of the standard reasonably required of an employee in your position”. The letter identified six incidents. The letter also included as grounds of misconduct Ms Chapman’s attending the Hunter Neighbourhood Forum and Executive Committee Meeting after she had been told not to attend, and on 5 and 12 March 2015, Ms Chapman making inquiries of the FaCS without first enquiring of BWNG or its board. The letter also identified what BWNG understood Ms Chapman had alleged against Ms Burley at the meeting of 6 March 2015. The allegations were that Ms Burley was biased, that she had targeted Ms Chapman, that she resisted Ms Chapman’s attempts to return to work, and that “[p]rocedural processes have been unfair and unjust”. The letter requested that Ms Chapman provide examples of each of these matters.
[40] Affidavit of K Chapman, 10.06.2015, [72]-[75], annexure “R”
Mr Neilson’s letter also stated that BWNG is “commissioning a formal investigation of the issues raised”, and that it had appointed Mr Neilson to conduct the investigation. The letter stated Mr Neilson would meet Ms Chapman on 24 March 2015 to obtain Ms Chapman’s response to the allegations made in the letter or Ms Chapman could choose to provide her response in writing. The letter informed Ms Chapman that she was not required to attend work until further notice, but would be paid in the meantime.
Ms Chapman responded to the allegations in an email she sent to Mr Neilson on 23 March 2015.[41] Ms Chapman, however, did not in terms deal with the allegations made against her. Instead, she identified 21 documents she said Mr Neilson should access and read, and four individuals whom Ms Chapman said Mr Neilson should interview, and the questions Mr Neilson should ask of those persons. By an email sent on 26 March 2015, Mr Neilson cancelled the meeting that had been scheduled for that day and rescheduled the meeting for 31 March 2015.[42] By email sent on 27 March 2015 Mr Neilson requested that Ms Chapman specify to which of the allegations each of the documents she had identified in her email of 23 March 2015 relate.[43] Ms Chapman did so by email sent on 30 March 2015.[44]
[41] Affidavit of K Chapman, 10.06.2015, [77], annexure “W”
[42] Affidavit of K Chapman, 10.06.2015, [78]
[43] Affidavit of K Chapman, 10.06.2015, [80]
[44] Affidavit of K Chapman, 10.06.2015, [81], annexure “Y”
On 31 March 2015 Ms Chapman met with Mr Neilson and gave her “verbal responses” to the allegations made in BWNG’s letter of 17 March 2015.[45] She did this by reading from a document Ms Chapman prepared before the meeting.[46] In that document, Ms Chapman made a number of points, which included the following:
a)The information relating to the alleged incidents referred to in the letter of 17 March 2015 appears to have been “collected retrospectively and thus in response to my leave 2 December 2014 and the lodgement of my Adverse Event Report dated 4 Dec 2014 (though incorrectly dated 4 Nov 2014)”.
b)None of the allegations identified in the 17 March 2015 letter “indicate sufficient grounds for suspension”, and the letter did not “detail the possible outcomes of the investigation”.
c)Allegations 1, 2, and 5, and the Adverse Event Report submitted by Ms Green on 27 November 2014, “appear to be a vindictive and possibly a solicited response by Emma Green regarding the Performance Management Process that was undertaken by BWNG”. Ms Chapman then set out in detail that process.
d)Ms Chapman responded to the other two allegations raised by another employee, and the two additional allegations.
e)Finally, Ms Chapman set out in great detail the grounds on which she alleged Ms Burley was biased, had resisted Ms Chapman’s return to work, and victimised Ms Chapman. Ms Chapman identified, again in some detail, the grounds on which she claimed BWNG failed to afford her procedural fairness, and failed to act fairly and justly towards her. She set out what appear to be extracts from BWNG’s policies and procedures that regulate the making and resolution of grievances with which Ms Chapman claimed BWNG failed to comply.
[45] Affidavit of K Chapman, 10.06.2015, [82]
[46] Affidavit of K Chapman, 10.06.2015, [83], annexure “S”
Also during the meeting of 31 March 2015, Ms Chapman handed to Mr Neilson a document titled “Adverse Event regarding closure of Department Social Service funded project ‘Gloucester Homework Centre’ submitted in BWNG meeting 31st March 2015 by Kelley Chapman”.[47] That related to Ms Burley’s rejecting an offer of funding variation made by the Department of Social Services without Ms Chapman’s being consulted.
[47] Affidavit of K Chapman, 10.06.2015, [84], annexure “Z”
At the meeting, Mr Neilson asked Ms Chapman ten to twelve questions. Ms Chapman answered each question by stating she had already replied to all the allegations and complaints made in BWNG’s letter of 17 March 2015. Mr Neilson was displeased with these responses. Ms Chapman also asked Mr Neilson whether her “requests of documentations as set out in the document ‘Kelley Chapman 23 March 15 Amended 30 march 2015’ been investigated?” to which Mr Neilson said “no”.[48]
[48] Affidavit of K Chapman, 10.06.2015, [85] (underlining in original)
By letter dated 28 May 2015, Mr Hartup, as Chairman of BWNG’s board, reported to Ms Chapman the outcome of Mr Neilson’s investigations. It recorded that seven of the eight allegations were substantiated, but that the allegation of bullying made by Ms Green was unsubstantiated. The letter also recorded that Ms Chapman’s complaints of 8 December 2014 and 6 March 2015 “did not disclose sufficient information to enable investigation and/or which if substantiated would be cause for concern”. The letter noted that Mr Neilson had reported that Ms Chapman failed to answer any of his questions during her interview with him on 31 March 2015 “which is very disappointing”. Mr Hartup said BWNG wished to discuss these findings with Ms Chapman when she returns to work on 1 June 2015, noting that, for “the avoidance of doubt, you are directed to return to work on Monday 1 June 2015”.[49]
[49] Affidavit of K Chapman, 10.06.2015, [103]-[104], annexure “A3”
On the evening of 29 May 2015 Ms Chapman filed an application in this Court, and obtained an order for short service of the application. She obtained this order because she said she feared that on her return to work on 1 June 2015 her employment would be terminated. In the event, Ms Chapman’s employment was not terminated.
On 3 June 2015 Ms Chapman attended a meeting with Ms Burley and Ms Ellis, BWNG’s new Human Resources officer. Ms Burley directed Ms Chapman to undertake menial duties, including archiving emails and programs, preparing a work development order, unsubscribing from emails, and preparing a variation on a grant. Ms Burley instructed Ms Chapman not to contact any funding bodies.[50] On 4 June 2015 Ms Chapman sent Ms Burley an email requesting further clarification of her duties, but Ms Chapman received no response.[51] Further, the contents of Ms Chapman’s “Microsoft Outlook” folders had been deleted, and some of the documents contained in Ms Chapman’s “My Documents” folder had been deleted, “including all five years of all my quarterly reports, annual team meeting and staff meeting reports and workplan”.[52]
[50] Affidavit of K Chapman, 29.06.2015, [22]
[51] Affidavit of K Chapman, 29.06.2015, [23]
[52] Affidavit of K Chapman, 29.06.2015, [24]
Ms Chapman’s claims and contentions
In the “Form 4” she filed with the Court, Ms Chapman alleges BWNG contravened two provisions of the FW Act. First, Ms Chapman alleges BWNG contravened s.340 of the FW Act. That section prohibits one person from taking adverse action against another person if the other person has, among other things, exercised a “workplace right” within the meaning of s.341 of the FW Act. Ms Chapman claims she “received adverse treatment from the respondent”. She identifies seven forms of adverse treatment.
a)The first is the “suspension of position”. That appears to be a reference to the suspension directed by Ms Burley’s email of 9 February 2015. Ms Chapman alleges this arose “after making initiating complaint on the 1st, 8th and 10th December 2014 around bullying and intimidation regarding an incident with my CEO on the 26th November 2014”.
b)The second is Ms Chapman’s “being suspended for a second time on the 17th March 2015” which Ms Chapman says occurred because of allegations that had been lodged against her “since my being unfit for work”. Ms Chapman claims the incidents alleged against her “back date almost six months”, and that the allegations “were collected retrospectively and . . . solicited”.
c)The third is the alteration of her employment position and job description.
d)The fourth is her being placed under performance management.
e)The fifth is discrimination between Ms Chapman and other employees. Ms Chapman relies on her allegations that Ms Burley was biased, BWNG failed to deal with Ms Chapman’s response, other employees involved in the investigation have had their roles expanded, while Ms Chapman’s role has been reduced, and Ms Chapman was suspended when other employees involved in the investigation had not been suspended.
f)The sixth is denial of due process, mediation, and independent facilitation.
g)The seventh is victimisation and bias.
The second provision Ms Chapman alleges BWNG breached is s.352 of the FW Act, which prohibits an employer from dismissing an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. In support of this allegation, Ms Chapman relies on her having been suspended after being absent from work due to psychological injury, and other matters on which she relies for the contraventions of s.340 of the FW Act.
In her oral submissions, Ms Chapman submitted as follows:[53]
[53] At the hearing, Ms Chapman referred to a written document she had prepared. Although there was discussion at the hearing about Ms Chapman handing up the document, it is not clear from the transcript whether Ms Chapman did hand up the document. After the hearing, in response to enquiries my associate made of the parties about the document, Ms Chapman forwarded to my associate the document. BWNG’s solicitor informed my associate that, at the hearing, Ms Chapman did provide to BWNG’s counsel a copy of the document. I have looked at the document. It reflects the submissions Ms Chapman made at the hearing. I do not propose to otherwise refer to the document in these reasons for judgment. I have, however, in chambers marked the document “MFI-1”.
a)Her lodging the Adverse Event Report in December 2014 constituted the exercise by her of a workplace right within the meaning of s.341 of the FW Act as a result of which BWNG took adverse action against Ms Chapman. Ms Chapman alleges that the adverse action consisted in BWNG failing to follow its own policies and procedures in relation to Ms Chapman’s complaints, in BWNG being biased against Ms Chapman, in BWNG victimising Ms Chapman, BWNG failing to appoint an independent employee to deal with her complaint, Ms Chapman’s being suspended on 9 February 2015, BWNG resisting Ms Chapman’s returning to work.
b)BWNG took adverse action against Ms Chapman by suspending her in February 2015 because Ms Chapman “accessed sick leave”.[54]
[54] T43.35
c)Ms Chapman was bullied and intimidated at the meeting of 2 March 2015 because of “a resistance to my pre-injury duties”.[55]
[55] T49.15
d)BWNG took adverse action against Ms Chapman by suspending her from work pending the investigation of the matters set out in BWNG’s letter of 17 March 2015. Ms Chapman submits BWNG did that because she “made a workplace right to make a complaint”, being the complaint she made in early December 2014, and because Ms Chapman “went off on WorkCover”,[56] as well as the complaints she made at the meeting of 2 March 2015 and in her email document from which Ms Chapman read at the meeting of 31 March 2015.[57]
[56] T52.45-53.15
[57] T54.40
e)BWNG took adverse action against Ms Chapman by:
i)failing to hold the meeting of 31 March 2015 at “neutral premises”;[58]
[58] T56.5
ii)failing to undertake a fair investigation of the complaints made against her because the letters that BWNG sent to her had been prepared by a lawyer;[59]
[59] T57.5
iii)closing the Gloucester Homework Centre;[60]
[60] T58.15
iv)by initially informing Ms Chapman she could not access a clinical supervisor, but then reversing that decision;[61]
[61] T62.45
v)by rejecting the “Return to Work Plan”;[62]
f)BWNG took adverse action against Ms Chapman by victimising, targeting, humiliating, intimidating, and denigrating Ms Chapman. Ms Chapman relies on the following allegations:
i)Sending a male employee to Ms Chapman’s house to collect Ms Chapman’s work phone and laptop computer.[63]
ii)Mr Neilson had concluded his investigation without having accessed the documents Ms Chapman identified to him as being relevant.[64]
iii)Even though BWNG found all but one of the allegations substantiated, BWNG did not manage the issue as it ought to have done under its policies and procedures.[65]
g)On her return to work on 3 June 2015, Ms Chapman was instructed to undertake menial tasks, she was instructed not to contact funding bodies, and there was no genuine handover to her of the duties she had performed before she was suspended.[66] Ms Chapman complains that BWNG was not prepared to reinstate her in her previous role.[67] Ms Chapman claims BWNG did this because of her previous complaints, her having applied for WorkCover, and her having commenced this proceeding.[68]
h)Ms Chapman was discriminated against because although there were a number of employees who were the subjects of Mr Neilson’s investigation, BWNG suspended Ms Chapman, but not the other employees.[69]
[62] T63.45
[63] T65.40
[64] T67.25
[65] T70.25
[66] T71.5
[67] T72.40
[68] T72.45-T73.5
[69] T75.25
It is appropriate that I say at the outset that Ms Chapman’s claims based on contraventions of s.352 of the FW Act are bound to fail; and they are bound to fail because s.352 applies only were an employee is dismissed. Ms Chapman does not allege she was dismissed.
That, then, leaves Ms Chapman’s claims based on s.340 of the FW Act. Before I consider BWNG’s submissions, it would be useful to set out the elements of a contravention of s.340 of the FW Act and some of the relevant principles concerning the construction and operation of that provision.[70]
[70] I repeat here most of what I said in Cai v Tiy Loy & Co Ltd [2015] FCCA 715 at [101]-[107]
Section 340 of the FW Act – elements of contravention
Subsection 340(1) of the FW Act provides:
A person must not take adverse action against another person:
(a) because the other person:
(i)has a workplace right; or
(ii)has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person.
Three matters must be established before a person will be held to have contravened s.340 of the FW Act. First, the person has taken “adverse action against another person”. That expression is defined in a table contained in s.342(1) of the FW Act which identifies in one column the persons by whom and against whom adverse action must be taken, and, in another column, the conduct that, if taken by and against such persons, constitutes adverse action. For the purposes of these proceedings, the relevant person who must take the adverse action is “an employer”, and the person against whom the employer takes the adverse action must be “an employee”; and the employer takes “adverse action” if the employer:
(a)dismisses the employee; or
(b)injures the employee in his or her employment; or
(c)alters the position of the employee to the employee’s prejudice; or
(d)discriminates between the employee and other employees of the employer.
The expression “dismisses the employee” means the repudiation by the employer of the employment contract, whether or not the employee accepts the repudiation.[71] The expression “injures the employee in his or her employment” refers to a deprivation of one of the more immediate practical incidents of an employee’s employment, such as loss of pay or reduction in rank.[72] And the expression “alters the position of the employee to the employee’s prejudice” means conduct that results in the “adverse affection of, or a deterioration in, the advantages enjoyed by” an employee before the action was taken.[73]
[71] Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 at [29]
[72] Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 at [30] referring to Childs v Metropolitan Transport Trust (1981) 29 AILR 24 (Smithers J)
[73] Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 at [32] referring to Community and Public Sector Union v Telstra Corporation Ltd [2001] FCA 267; (2001) 107 FCR 93 at 100 ([17]) (Black CJ, Ryan and Merkel JJ).
The second matter that must be established is that the employee against whom the employer has taken adverse action has, among other things, a “workplace right”, or has exercised or not exercised such right, or proposes to or proposes not to, exercise such right. Under s.341(1) of the FW Act a person has a “workplace right” if, among other things, the person “is entitled to the benefit of” a “workplace law”. The expression “workplace law” is defined in s.12 of the FW Act to mean, among other things, “any . . . law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters)”. A person also has a “workplace right” if, among other things, the person, being an employee, “is able to make a complaint . . . in relation to his or her employment”. The ordinary meaning of the word “complaint” is a statement expressing a grievance or a finding of fault; and an expression of grievance or accusation need not be factually correct, substantiated or ultimately made out in order to constitute a complaint within the meaning of s 341(1)(c)(ii) of the Act.[74]
[74] Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 at [600]
The third matter that must be established is that the employer took the adverse action for a particular reason, or for reasons that included a particular reason.[75] That requirement arises from the presence of the word “because”:[76] s.340(1) of the FW Act prohibits a person from taking adverse action “because” a person has a “workplace right”, or because the person has exercised, or has not exercised, or proposes to exercise, or proposes not to exercise, such a right. Further, where the particular reason is one of a number of reasons for which the adverse action is taken, the particular reason must be “a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons”,[77] or must be an “operative or immediate reason for the action”.[78]
[75] FW Act, s.360
[76] Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 at [20] relying on Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284; (2010) 193 IR 251 at 258 ([26]) (Tracey J)
[77] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044 at 1066 ([127]) (Gummow and Hayne JJ)
[78] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044 at 1068 ([140]) (Heydon J)
An important aspect of determining whether in any given case a person has taken adverse action “because” of one or more of the matters specified in s.340(1) of the FW Act is s.361(1) of that Act. That subsection provides:
If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
Thus, for example, if it is established that an employer had taken adverse action against an employee, and it is alleged the employer took that action because the employee has or has not exercised, an entitlement to a benefit under a workplace law, or the employee has made a complaint in relation to his or her employment, the employer will be presumed to have taken adverse action for that reason. The presumption, however, will be rebutted if the employer “proves otherwise”.
BWNG’s submissions
Counsel for BWNG submitted Ms Chapman’s claims should be assessed in the timeline of events. Counsel submitted that the starting point is mid to late November 2014, when “numerous complaints were lodged about the applicant”,[79] those complaints being the complaints identified by Dr Vickery in his report to which I have already referred. In evidence is an adverse event report prepared by Ms Green on 26 November 2014.[80] That was made before Ms Chapman made her complaint in early December 2014 and, therefore, there is no substance to Ms Chapman’s submission that the complaints made against her were manufactured. Counsel then took me through the events I have already set out in chronological order. In the course of doing so, counsel made a number of submissions.
[79] T79.15
[80] Affidavit of K Chapman, 29.06.2015, [26], annexure “B2”
First, counsel submits the Court would have difficulty finding that the Adverse Event Report submitted by Ms Chapman constituted a “complaint” within the meaning of s.341(1)(c) of the FW Act.[81] The basis of that submission is that there is “a disconnect between, ultimately, the matters that . . . the applicant seeks to have resolved in that document, and the matters about which she had canvassed at large . . . about the CEO”.[82] Counsel also relied on the submission that Ms Chapman had an opportunity to respond to questions Mr Neilson asked her in the meeting of 31 March 2015, but she did not do so.[83]
[81] T84.5-10
[82] T84.35-40
[83] T86.20
Second, counsel submits Ms Burley’s email to Ms Chapman of 9 February 2015 was “not an email of suspension”.[84] The email simply identified the duties Ms Chapman was not to perform while on the “return to work program”, not a suspension at large.[85] It was also submitted it was a response to Ms Chapman’s working beyond the hours recommended by that plan.[86]
[84] T87.5-10
[85] T87.20
[86] T87.20
Third, it is submitted that it is not surprising that it was not until the meeting of 2 March 2015 that Ms Chapman was not informed of the complaints that had been made about her in November 2014. Ms Chapman had been away because of her claimed psychological injuries and, for that reason, BWNG did not have the opportunity to inform Ms Chapman of the complaints.[87]
[87] T92.45
Fourth, it is submitted that BWNG was appropriately participating in Ms Chapman’s return to work process. Counsel relied on the reference in numbered paragraph 5 of Ms Chapman’s email of 6 March 2015 that Ms Chapman’s “position description and duties are currently being changed”.[88] Counsel also submitted Ms Burley identified tasks she wanted Ms Chapman to perform upon her return to work.
[88] Affidavit of K Chapman, 10.06.2015, [63], annexure “P”
Fifth, it is suggested that the suspension of Ms Chapman effected by BWNG’s letter of 17 March 2015 was a means by which BWNG managed the nature of the allegations that were being investigated, namely, bullying. It was suggested the suspension might have been effected out of consideration of the welfare of the employees who had made the complaints.[89]
[89] T94.5
Sixth, it is submitted that, assuming one can characterise anything Ms Chapman has done as her exercising a workplace right, there is no connection between the exercise of that right and any adverse action.[90] Counsel submits that what Ms Chapman has impermissibly sought to do is to “deconstruct a process, a disciplinary process, and to make complaints about those parts of the process which she didn’t like, and to rely on matters that occurred during the process of that investigation, and to say, “These things happened because I made a complaint””.[91] Counsel also submits I should not view each act Ms Chapman claims constitutes as adverse action, but I should view them as a continuum of steps in an investigation.[92]
[90] T103.40
[91] T100.40
[92] T108.35-40
No reasonable prospects of success under s.340?
I now consider whether Ms Chapman has no reasonable prospects of succeeding on her claims to the extent they are based on contraventions of s.340 of the FW Act. I begin with the allegations contained in the “Form 4” document Ms Chapman has filed.
In my opinion, the claims articulated in that document potentially state each element of a cause of action based on a contravention of s.340 of the Act. First, it identifies what potentially are four adverse actions by BWNG. These are the suspension effected by Ms Burley’s email of 9 February 2015, Ms Chapman’s suspension effected by BWNG’s letter dated 17 March 2015, the alteration in Ms Chapman’s employment position and job description, and Ms Chapman’s being placed under performance management. Second, the “Form 4” alleges Ms Chapman suffered “adverse treatment from the respondent after making initiating complaint on the 1st, 8th and 10th December 2014”. On a fair reading of “Form 4”, these words allege that BWNG undertook these adverse actions because Ms Chapman had made a complaint, that complaint being the lodgement of the Adverse Event Report. Assuming, then, that the Adverse Event Report constitutes the making of a “complaint . . . in relation to [Ms Chapman’s] employment” within the meaning of s.341(1)(c)(ii) of the FW Act, and assuming that the alleged adverse actions constitute “adverse action” within the meaning of s.342 of the FW Act, then, given that, on a fair reading of “Form 4”, Ms Chapman alleges BWNG undertook these actions because Ms Chapman had lodged the Adverse Event Report, by operation of s.361 of the FW Act BWNG will be presumed to have taken the adverse actions against Ms Chapman for that reason. That presumption, however, will be rebutted if BWNG “proves otherwise”.
I next consider whether Ms Chapman has reasonable prospects of establishing that the Adverse Event Report constituted the making of a “complaint . . . in relation to [Ms Chapman’s] employment” within the meaning of s.341(1)(c)(ii) of the FW Act. As I have already noted, counsel for BWNG submits the Adverse Event Report does not constitute a “complaint”. Whatever the merits of that submission, it does not persuade me that Ms Chapman has no reasonable prospects of establishing the Adverse Event Report is a “complaint” in relation to her employment. As I have already noted, the ordinary meaning of the word “complaint” is a statement expressing a grievance or a finding of fault, regardless of whether the grievance or finding of fault is factually correct or substantiated.[93] Ms Chapman has reasonable prospects of establishing the Adverse Event Report expresses a grievance. In that document Ms Chapman stated, among other things, she was distressed, that she felt she was being penalised, that her professional image has been discredited, and that there was a lack of clarity around lines of accountability and supervision.
[93] Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 at [600]
What of the seven alleged adverse actions I have identified? As I have already noted, counsel for BWNG submitted that Ms Burley’s email of 9 February 2015 did not amount to a suspension of employment, but only a suspension of particular duties. Counsel also submitted the suspension was in response to Ms Chapman’s working beyond the hours recommended in the “Return to Work Plan”. Again, whatever the merits of the submission, I am not satisfied Ms Chapman has no reasonable prospects of proving the suspension effected by the email of 9 February 2015 was adverse action. It is reasonably arguable that the email was directed to the duties specified in the “Return to Work Plan”, not to the work Ms Chapman undertook when she returned to work; and it is also reasonably arguable that what the email sought to do was to suspend indefinitely the duties Ms Chapman had been undertaking before she took sick leave.
As for the suspension effected by BWNG’s letter of 17 March 2015, it is not beyond argument that the only reason, or all but an insignificant part of the reasons, for which Ms Chapman was suspended was BWNG’s desire to protect the welfare of the employees who complained of bullying while the investigation was being conducted, or to investigate complaints that had been made concerning Ms Chapman. It may be that BWNG may adduce evidence, and prove on the basis of that evidence that these were the reasons behind BWNG’s suspending Ms Chapman. Even if, however, these were the reasons for suspending Ms Chapman’s employment, Ms Chapman would nevertheless have reasonable prospects of establishing that the suspension altered Ms Chapman’s position as employee to her detriment, and that it injured Ms Chapman in her employment.
In my opinion, Ms Chapman also has reasonable prospects of establishing that she was informed at the meeting of 2 March 2015 that she was under performance management, and that this altered Ms Chapman’s position as employee to her detriment, and that it injured Ms Chapman in her employment.
I have not yet dealt with the fifth, sixth, and seventh adverse actions.
a)The fifth alleged adverse action is that BWNG discriminated between Ms Chapman and other employees. In my opinion, Ms Chapman has no reasonable prospects of establishing that allegation. That is so because Ms Chapman has no reasonable prospects of establishing that the other employees were in the same position as Ms Chapman, yet BWNG treated Ms Chapman differently from those employees.
b)The sixth alleged adverse action is denial of due process, mediation, and independent facilitation. In my opinion, there is no reasonable prospect that Ms Chapman will succeed in establishing that any failure by BWNG to grant her due process, mediation, and independent facilitation constituted adverse action. There is nothing in the material before me that suggests Ms Chapman had a right under her contract of employment to be afforded due process, mediation, and independent facilitation. For example, there is nothing to suggest that BWNG’s policies formed part of Ms Chapman’s employment contract.
c)The seventh alleged adverse action is victimisation and bias. In my opinion, these expressions are words of conclusion that are not capable of identifying with sufficient precision facts that fall within the definition of adverse action. Whether or not any of the alleged facts on which Ms Chapman relies amount to victimisation or bias is not relevant to whether such alleged facts amount to adverse action. For that reason, there is no reasonable prospect that the Court will consider it necessary to determine whether the alleged facts on which Ms Chapman relies amount to victimisation or bias, and hence there are no reasonable prospects Ms Chapman will succeed in the Court finding she has been the victim of victimisation or bias.
I have so far dealt with the matters contained in the Form 4. Many of the submissions Ms Chapman made at the hearing, however, raised matters which are not included in the Form 4. In my opinion, Ms Chapman has reasonable prospects of obtaining leave to amend her Form 4, and to succeed in establishing the following additional matters:
a)Ms Chapman’s email of 6 March 2015 constituted an additional “complaint” in relation to her employment within the meaning of s.341(1)(c) of the FW Act.
b)BWNG took adverse action against Ms Chapman when she returned to work on 3 June 2015 by not restoring Ms Chapman to the duties she performed before she lodged her application for workers compensation.
c)BWNG took the adverse action alleged in (b) and in the Form 4 for reasons that included Ms Chapman having taken sick leave and having applied for workers compensation.
d)BWNG took the adverse action that consisted in BWNG’s sending the letter dated 17 March 2015 and in not restoring Ms Chapman to the duties she performed before she lodged her application for workers compensation for reasons that included Ms Chapman making the complaint referred to in (a).
I am satisfied, however, that Ms Chapman does not have reasonable prospects of establishing that the following matters constituted “adverse action” by BWNG:
a)failing to hold the meeting of 31 March 2015 at “neutral premises”;[94]
b)failing to undertake a fair investigation of the complaints made against her because the letters that BWNG sent to her had been prepared by a lawyer;[95]
c)closing the Gloucester Homework Centre;[96]
d)initially informing Ms Chapman she could not access a clinical supervisor, but then reversing that decision;[97]
e)rejecting the “Return to Work Plan”;[98]
f)sending a male employee to Ms Chapman’s house to collect Ms Chapman’s work phone and laptop computer;[99]
g)Mr Neilson’s concluding his investigation without having accessed the documents Ms Chapman identified to him as being relevant;[100] and
h)BWNG not managing the findings it made in its investigation as it ought to have done under its policies and procedures.[101]
[94] T56.5
[95] T57.5
[96] T58.15
[97] T62.45
[98] T63.45
[99] T65.40
[100] T67.25
[101] T70.25
There is nothing in the material before me that suggests Ms Chapman had a right under her contract of employment to insist on BWNG doing that which she alleges BWNG failed to do or to prevent BWNG from doing that which Ms Chapman alleges BWNG did; or that BWNG’s doing any one of the matters Ms Chapman alleges BWNG ought to have or ought not to have done was an incident of her contract of employment. For example, there is nothing to suggest that BWNG’s policies formed part of Ms Chapman’s employment contract. Thus, Ms Chapman has no reasonable prospect of establishing that any one of the matters Ms Chapman alleges BWNG failed to do or did do injured Ms Chapman in her employment, or altered the position of Ms Chapman to her detriment. Further, there is nothing in the material before me that indicates that the matters Ms Chapman alleges BWNG failed to do or did do were matters BWNG failed to do or did do only in relation to Ms Chapman, as opposed to other employees. Thus, Ms Chapman does not have reasonable prospects of establishing that these matters constituted discrimination between Ms Chapman and other employees of BWNG. That is not to say, however, that these matters may not be relevant as evidence.
Finally, I consider BWNG’s reasons for taking the actions about which Ms Chapman complains. Given the nature and purpose of the hearing, BWNG did not adduce any evidence of the reason or reasons for taking the actions it did in relation to Ms Chapman. Counsel, however, did make some submissions in relation to BWNG’s purpose. First, as I have noted, counsel submitted it was not surprising BWNG did not inform Ms Chapman of the allegations made against her until 2 March 2015 because Ms Chapman had been on sick leave. I am not satisfied, however, that, in the absence of evidence from the relevant decision-maker, Ms Chapman has no reasonable prospects of making submissions to the Court that will prevent the Court from finding that that was the reason why BWNG did not inform Ms Chapman of these allegations earlier than in March 2015. Even if BWNG were to establish that that was the reason for the delay, that does not necessarily mean Ms Chapman will have no prospects of persuading the Court it should not find that BWNG did not undertake the adverse action because Ms Chapman made complaints in relation to her employment or because Ms Chapman made a claim for workers compensation.
Second, as I have also noted, counsel submitted that Ms Chapman cannot demonstrate any connection between the adverse action she claims she suffered, and BWNG’s taking that action for the reasons Ms Chapman claims it took them. Whether or not Ms Chapman will establish such connection can only be determined after BWNG gives evidence of the reason or reasons for which it claims it engaged in the actions Ms Chapman alleges constitute adverse action. I am not satisfied that Ms Chapman has no prospect of the Court not finding that BWNG undertook one or more of the adverse actions for a reason, or for reasons, that excludes as a substantial and operative factor Ms Chapman’s having made a complaint in relation to her employment or Ms Chapman’s having made a claim for WorkCover.
Summary and disposition
In my opinion, Ms Chapman has reasonable prospects of establishing that:
a)the Adverse Event Report she presented to BWNG in December 2014 constituted the making of a “complaint” in relation to her employment within the meaning of s.341(1)(c) of the FW Act;
b)the email Ms Chapman sent on 6 March 2015 also constituted the making of a “complaint” in relation to her employment within the meaning of s.341(1)(c) of the FW Act;
c)Ms Chapman’s applying for worker’s compensation was the exercise of a workplace right within the meaning of s.340(1)(a) of the FW Act;
d)BWNG took the following actions (Alleged Actions):
i)by email sent on 9 February 2015 to Ms Power, suspended Ms Chapman from undertaking certain work duties Ms Chapman had previously performed;
ii)by letter dated 17 March 2015 suspended Ms Chapman from her duties, pending an investigation into complaints made about her;
iii)on and shortly after 3 June 2015 BWNG altered Ms Chapman’s duties; and
e)the Alleged Actions constituted “adverse action” within the meaning of s.342(1) of the FW Act.
Further, given that Ms Chapman alleges BWNG undertook the Alleged Actions because she made the complaints and because she exercised her right to claim WorkCover then, because of s.361 of the FW Act, Ms Chapman has reasonable prospects of establishing that BWNG should be taken to have engaged in the Alleged Actions because Ms Chapman made a complaint or complaints in relation to her employment or because Ms Chapman claimed worker’s compensation, unless BWNG proves otherwise. Finally, given BWNG has not adduced any evidence about the purpose or purposes for which it engaged in the Alleged Actions, I am not satisfied Ms Chapman has no reasonable prospects of succeeding on her claims that BWNG undertook the Alleged Actions for the reason or for reasons that included as substantial and operative factors Ms Chapman having made a complaint or complaints in relation to her employment, or because Ms Chapman exercised her right to claim WorkCover.
In short, I am not satisfied Ms Chapman does not have reasonable prospects of succeeding on her claims based on s.340 of the FW Act. This conclusion, however, should not be interpreted as saying that Ms Chapman has reasonable prospects of success. That is so because whether or not Ms Chapman will have such reasonable prospects of success will depend on the evidence BWNG gives about the reason or reasons for which it undertook the Alleged Actions. That, in turn, is a consequence of s.361 of the Act which, in the circumstances in which it operates, casts the onus of proving the reason or reasons for which adverse action has been undertaken on the person – in this case, BWNG – whom it is alleged contravened s.340 of the Act.
In these circumstances, the only orders I propose to make is to dismiss Ms Chapman’s application to the extent it claims BWNG contravened s.352 of the FW Act, and to order that the matter be set down for directions on a date to be fixed.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 28 October 2016
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