Cheng v Western Pursuits Trust Trading as Vauxhall Inn
[2016] FCCA 3275
•1 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHENG v WESTERN PURSUITS TRUST TRADING AS VAUXHALL INN | [2016] FCCA 3275 |
| Catchwords: INDUSTRIAL LAW – Adverse action – constructive dismissal – investigation of a customer complaint – applicant refusing to sign a record of the investigation of the complaint and abandoning her employment. |
| Legislation: Anti-Discrimination Act 1977 (NSW) Fair Work Act 2009 (Cth), ss.12, 342, 351, 361, 386, 545, 351, 361, 570, 793 Sex Discrimination Act 1984 (Cth), s.28A |
| Cases cited: Aldridge v Booth (1988) 80 ALR 1 Dahler v Australian Capital Territory (No 2) (2015) 296 FLR 363 Earg Huang v University of New South Wales [2014] FCA 1337 Grant v Victoria (No 2) FCCA 991 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 Haque v Jabella Group Pty Limited [2016] FCCA 147 Patrick Stevedores Operations v MUA (1998) 195 CLR 1 Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875 Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27; (2015) 327 ALR 460 Squires v Flight Stewards Association of Australia (1982) 2 IR 155 Tinkler v Elliott [2012] ALL ER (D) 94 Waters v Public Transport (1991) 173 CLR 349 Wroughton v Catholic Education Office Diocese of Parramatta (2015) 255 IR 284 |
| Applicant: | TAMMIE CHENG |
| Respondent: | WESTERN PURSUITS TRUST TRADING AS VAUXHALL INN |
| File Number: | SYG 470 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 1 December 2016 |
| Delivered at: | Sydney |
| Delivered on: | 1 December 2016 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondent: | Ms P Thew |
| Solicitors for the Respondent: | Australian Hotels Association (NSW) |
ORDERS
The application filed on 3 March 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 470 of 2014
| TAMMIE CHENG |
Applicant
And
| WESTERN PURSUITS TRUST TRADING AS VAUXHALL INN |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The proceeding before the Court was initiated on 3 March 2014 by application in the Fair Work Division of the Court supported by a Form 2 claim under the Fair Work Act 2009 (Cth) (Fair Work Act) alleging dismissal in contravention of a general protection. The matter was initially allocated to the docket of Judge Nicholls but was subsequently transferred to my docket.
At numerous interlocutory hearings, it was apparent to me, as I believe it was apparent to Judge Nicholls, that the applicant, Ms Cheng, was struggling to deal with the case that she had instituted. At every directions hearing she was emotional and the Court attempted to direct her in a way that might progress her case, if indeed she wanted to pursue it. On a number of occasions I can recall asking Ms Cheng whether she wanted to press on with the case because of the impact it appeared to be having on her, and she insisted that she did want to continue with it. Ms Cheng was offered assistance and I understand did take some assistance from time to time but struggled even to serve the originating process on the respondent, Western Pursuits. The delay in that service caused a procedural problem, which might have been fatal to the case, had I not extended time for service on 30 August 2016 pursuant to rule 6.17 of the Federal Circuit Court Rules 2001 (Cth).
There was also a side issue which distracted proceedings for some time because of an apprehension that the certificate issued by the Fair Work Commission (Commission) on 17 February 2014 may have been issued under the wrong section. That proved not to be the case when the matter was clarified by the Commission.
Ultimately I came to the view that the case could only be resolved effectively if it were listed for hearing and dealt with. I gave directions for presentation of written evidence by affidavit. Ms Cheng filed a single affidavit on 8 November 2016, which is partly in the form of a submission and partly assertions of fact. Save for the allegation of dismissal on the basis of a false accusation of theft, the affidavit does not provide any evidentiary basis for any part of the action. Western Pursuits, on the other hand, have filed affidavits from five witnesses and also prepared detailed written submissions. Attached to these reasons are the submissions which I accepted. None of the deponents were required for cross-examination.
On the state of the evidence, Ms Cheng’s case cannot succeed. What is clear is that there was a difficulty in the workplace because of a customer complaint of being short-changed. That was investigated by Western Pursuits’ staff, who concluded that an explanation was called for from Ms Cheng. On their account, which I accept, the several explanations offered by Ms Cheng were not consistent, and Ms Cheng was called to a meeting and asked to sign a first and final warning. Ms Cheng, it appears, was emotional in that meeting and considered that she was being accused of theft and was being asked to sign a document which would have confirmed that allegation. Neither the respondent’s affidavit evidence or the letter in evidence supports that view. Nevertheless, it was the subjective opinion of Ms Cheng, who refused to sign the letter and left the workplace. She did not return.
Western Pursuits’ evidence, which I accept, is that they did not wish to terminate Ms Cheng and indeed attempted to get her to stay but were unsuccessful. I find that Ms Cheng abandoned her employment. In those circumstances, the allegation of dismissal in contravention of a general protection is not made out. None of the other allegations raised by Ms Cheng have any substance whatsoever. The only conclusion open to me is that the application filed on 3 March 2014 should be dismissed, and I so order.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 16 December 2016
ATTACHMENT
The Applicant seeks relief pursuant to an alleged contravention of s.351 of the Fair Work Act 2009 (Cth) (the Fair Work Act). The Respondent says that the proceedings ought to be dismissed for the reasons below.
The Respondent relies upon the following affidavits:
a)The affidavit of Neville Edmonds dated 25 November 2016 (the Neville Edmonds Affidavit);
b)The affidavit of Daniel Hamilton dated 25 November 2016 (the Hamilton Affidavit);
c)The affidavit of Candice Farmilow dated 25 November 2016 (the Farmilow Affidavit);
d)The affidavits of Sean Morrissey dated 25 and 30 November 2016 (the First and Second Morrissey Affidavits); and
e)The affidavit of Karen Edmonds dated 1 December 2016 (the Karen Edmonds Affidavit).
Background
Ms Cheng was employed by the Respondent on a casual basis as a bar attendant for just under 6 months, between 7 June 2013 and 2 December 2013.[1] On about 30 November 2013, Mr Arthur Coorey-Antonios (Mr Coorey-Antonios) attended the Respondent’s hotel (the Hotel) and had a conversation with the General Manager at the time, Mr Neville Edmonds (Mr Edmonds).[2] During that conversation, Mr Coorey-Antonios said that on about 26 November 2013 he had won money through the TAB at the Hotel, had shouted a round of beers for other patrons at the Hotel at the time, had been served by Ms Cheng and handed her two $50 notes to pay for the round of beers, had taken a telephone call on his mobile phone and had to leave the Hotel and had now returned to collect his change from the round of beers.[3]
[1] First Morrissey Affidavit [3].
[2] Neville Edmonds Affidavit, Annexure B.
[3] Neville Edmonds Affidavit, Annexure B; Second Morrissey Affidavit, annexure A.
On the night of about 30 November 2013, Ms Karen Edmonds (Ms Edmonds), the licensee of the Respondent at the time, raised the matter with Ms Cheng. [4] During this conversation Ms Cheng initially said that the drinks had come to about “$40 odd”, that Mr Coorey-Antonios had handed her two $50 notes and that she had put the other $50 note in her tip jar. When Ms Edmonds asked her to return that $50 note, Ms Cheng said that Mr Coorey-Antonios had given her only one $50 note, that the drinks had come to more than $50 and that she had had to make up the shortfall from her own tip jar.[5]
[4] Neville Edmonds Affidavit, Annexure B.
[5] Karen Edmonds Affidavit, [13].
Mr Edmonds had been present during the transaction on 26 November 2013 and had seen Mr Coorey-Antonios hand Ms Cheng two $50 notes.[6] On about or shortly after 30 November 2013 each of Mr Edmonds and Ms Edmonds reviewed the CCTV footage for the night of 26 November 2013 and each saw Mr Coorey-Antonios hand Ms Cheng two $50 notes on the CCTV footage. [7]
[6] Neville Edmonds Affidavit, Annexure B.
[7] Neville Edmonds Affidavit, Annexure B; Second Morrissey Affidavit, annexure C.
On about 2 December 2013 Ms Edmonds decided to issue Ms Cheng with a first and final warning for misconduct.[8] On about 2 December 2013 Ms Edmonds met with Ms Cheng with Ms Kelly Jackson, Assistant Manager, who was a witness to the meeting. [9] Ms Jackson had no involvement in the decision to ask Ms Cheng to attend a meeting on 2 December 2013 or in the decision to issue Ms Cheng with a warning letter. [10] During this meeting Ms Edmonds asked Ms Cheng to sign the letter, which Ms Cheng refused to do and instead said that she would resign. [11] Ms Edmonds asked Ms Cheng approximately four to five times to return to her shift and continue working for the Respondent. [12] However, Ms Cheng refused and left.[13]
[8] Farmilow Affidavit, [7].
[9] Karen Edmonds Affidavit, [26].
[10] Karen Edmonds Affidavit, [34]-[38].
[11] Karen Edmonds Affidavit, [27].
[12] Karen Edmonds Affidavit, [27].
[13] Karen Edmonds Affidavit, [27].
On 30 January 2014 Ms Cheng filed her general protections application with the Fair Work Commission. On 14 February 2014, the Respondent filed an Employer Response Form F8A. On 17 February 2014 a certificate was issued under s.369 of the Fair Work Act pursuant to an unsuccessful conciliation. On 3 March 2014 the Applicant filed a general protections application and Form 2 Claim with the Court (the Claim and Application). This was not served on the Respondent until about 29 March 2016.[14]
[14] First Morrissey Affidavit, annexure A.
Each of Ms Edmonds and Mr Edmonds made notes of their observations of the incident at about the time when Ms Cheng filed her general protections claim in the Fair Work Commission in January 2014. [15]
[15] Neville Edmonds Affidavit, Annexure B.
The claim
Ms Cheng’s Claim and Application allege a contravention of section 351 of the Fair Work Act by reason of alleged “incidents of bullying and harassment, including sexual harassment by the manager at the time, Kelly” (Part G of the Claim). The reference to “Kelly” is a reference to Ms Kelly Jackson, the Respondent’s Assistant Manager at the time.
Ms Cheng’s Claim alleges that the adverse action to which she was said to have been subjected consisted of dismissal within the meaning of item (a) of section 342(1), being “wrongfully accused of stealing” and “humiliated” in the manner of the dismissal within the meaning of item (b) and being discriminated against by reason of the sexual harassment within the meaning of item (d). The Respondent says that Ms Cheng left her employment with the Respondent voluntarily despite repeated requests that she remain employed, denies that Ms Cheng was “wrongfully accused of stealing”, humiliated, harassed, bullied or subjected to any other form of adverse action because of her sex or at all.
The affidavit of Ms Cheng filed in these proceedings on 8 November 2016 (the Cheng Affidavit) contains almost no evidence relating to the period of Ms Cheng’s employment or the alleged adverse action said to be in contravention of section 351 of the Fair Work Act. At [4] of the Cheng Affidavit reference is made to the “constructed unfair dismissal” but only in relation to Ms Cheng’s request for the court’s indulgence to allow her additional time for service of the Application and Claim.
On the first page of the letter dated 20 October 2016 addressed to Judge Driver, annexed to the Cheng Affidavit, Ms Cheng states “The bullying, sexual harassment and back to back night shifts which were long and took a toll on my health all led to me ultimately being unfairly dismissed by my bullies, the managers at Vauxhall Inn.” This is insufficient to found a breach of section 351 of the Fair Work Act. There is no other evidence filed by Ms Cheng in support of the alleged breach of section 351 of the Fair Work Act, or in any relevant at all to any of Ms Cheng’s allegations.
In Tinkler v Elliott[16] Lord Justice Kay observed (with Munby and Lewis LJ agreeing): [17]
An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person. It seems to me that, on any view, the fact that a litigant in person “did not really understand” or “did not appreciate” the procedural courses open to him for months does not entitle him to extra indulgence. … The fact that, if properly advised, he would or might have made a different application then cannot avail him now. That would be to take sensitivity to the difficulties faced by a litigant in person too far. (emphasis added)
[16] [2012] ALL ER (D) 94 at [32].
[17] Cited with approval on this point in Earg Huang v University of New South Wales [2014] FCA 1337 at [25]; Ioannou v Commonwealth of Australia (Department of Human Services) [2012] FCA 1228 at [26] (McKerracher J); Ejueyitsi v Bond University [2012] FCA 1514 at [16] (Logan J); see also Haque v Jabella Group Pty Limited [2016] FCCA 147.
While there is no indication at present that Ms Cheng will seek to enlarge her claim, the Respondent says that any attempt that she makes to do so ought not be entertained by the court, given it would constitute granting an “excessive indulgence” to the prejudice of the Respondent.
Section 351 of the Fair Work Act
Section 351 of the Fair Work Act provides as follows:
An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
The following elements must be established to make out a contravention of section 351:[18]
a)that Ms Cheng was an employee with the particular protected attribute as alleged. Ms Cheng has not alleged any particular attribute as being the cause of being subjected to the alleged adverse action, but has said that she suffered “discrimination (sexual harassment) by the employer” (discussed below), and/or;
b)that the Respondent took adverse action against Ms Cheng as defined in section 342(1) of the Fair Work Act, which is alleged by Ms Cheng to be constituted by items 1(a), 1(b) and 1(d); and
c)that the adverse action was taken “because of” Ms Cheng’s particular attribute.
[18] Eg see Celand v Skycity Adelaide Pty Ltd [2016] FCCA 399 at [27].
Section 361 then creates a rebuttable presumption that the adverse action was taken for a particular reason or with a particular intent unless proved otherwise. It is for Ms Cheng to prove the “objective facts” to be determined in making out a breach of section 351, generally “objectively by reference to a legal standard”.[19] It is also for Ms Cheng to prove a prima facie connection between the alleged adverse action and the protected attributes.[20] The onus is then on the Respondent to rebut the presumption under section 361.
[19] See for instance Barclay v The Board of the Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 at [34] per Gray and Bromberg JJ (reversed on appeal by the High Court but not on this point).
[20] Eg see Celand v Skycity Adelaide Pty Ltd [2016] FCCA 399 at [27].
Thereafter, subsection 351(2) of the Fair Work Act provides that section 351(1) does not apply to action that is not unlawful under any anti-discrimination law in force in the place where the action is taken.[21] The term “anti-discrimination law” relevantly for these proceedings includes the Sex Discrimination Act 1984 (Cth) (the SDA) and the Anti-Discrimination Act 1977 (NSW) (the Anti-Discrimination Act). Therefore, Ms Cheng must also prove that the conduct of which she complains in addition constitutes a contravention of either the SDA and/or the Anti-Discrimination Act for that conduct to constitute a contravention of section 351 of the Fair Work Act.[22] The elements to be made out under the anti-discrimination laws are quite different to those under section 351 of the Fair Work Act.[23]
[21] RailPro Services Pty Ltd v Flavel [2015] FCA 504 at [121].
[22] Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27; (2015) 327 ALR 460 at [161].
[23] See for instance RailPro Services Pty Ltd v Flavel [2015] FCA 504 at [112]. Under the Disability Discrimination Act 1992 (Cth) (DDA) for instance, an applicant must identify a real or hypothetical comparator to establish direct discrimination, while such a comparison is not necessary to establish a breach of section 351 of the Fair Work Act; under the DDA the term “disability” is defined and is encompasses a real or perceived disability; under the DDA the reason for the proscribed conduct need not be a substantial reason while under section 351 of the Fair Work Act it must be: RailPro Services Pty Ltd v Flavel [2015] FCA 504 at [112].
Subsections 351(2)(a) and (3) of the Fair Work Act expressly pick up the detailed regimes of each of the territory, state and federal anti-discrimination statutes.[24] In other words, the requirements that there be “less favourable treatment” (as well as the need for an identified real or hypothetical comparator required for this assessment), the “complicated requirements for indirect discrimination”, and the exceptions for which each statute provides are, through subsection 351(2)(a) and (3) of the Fair Work Act, incorporated so as to limit the protections given by section 351(1) in a “way which is intended to mirror the limits under the anti-discrimination laws”.[25]
[24] Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27 at [161].
[25] Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27 at [161].
Significantly, as was observed by her Honour Justice Mortimer in Sayed at [161], this is “not because of the meaning of ‘discriminates’ in Item 1(d) of s 342(1), but rather at the subsequent step of the application of the prohibition in s 351.” In other words, the need for an applicant to show that the conduct complained of also constituted a breach of anti-discrimination laws applies to all items in section 342(1), not only item (d).
Ms Cheng’s allegation that she was in essence constructively dismissed because of Ms Jackson allegedly sexually harassing her would need to constitute either direct or indirect discrimination under either the Anti-Discrimination or the SDA. It is not clear on the evidence how Ms Cheng could establish a contravention of either the Anti-Discrimination Act or the SDA.
Meaning of adverse action
The term “adverse action” is relevantly defined in section 342(1), item 1(a), of the Fair Work Act to include dismissal.
Alleged constructive dismissal
Ms Cheng has adduced no evidence in support of her claim that she was dismissed. It is the Respondent’s evidence that Ms Cheng resigned of her own volition despite being asked approximately four or five times to return to work and complete her shift at the meeting of 2 December 2013. The Respondent denies that Ms Cheng’s employment was terminated by reason of the meeting of 2 December 2013 or at all but that Ms Cheng voluntarily resigned despite Ms Edmond’s attempts to convince her not to.[26]
[26] Karen Edmonds Affidavit, annexure C.
It has been held that the term “dismissal” takes the meaning given to it by sections 12 and 386 of the Fair Work Act. [27] The circumstances in which the term “dismissal” might extend to include any notion of “constructive dismissal” was considered by Judge Whelan in Sagona v R & C Piccoli Investments Pty Ltd & Ors.[28] In Sagona Judge Whelan observed at [188]-[190]:
According to the Dictionary a person is ‘dismissed’ in circumstances prescribed by s.386 of the Act where either their employment is terminated “on the employer’s initiative” or else they are “forced” to resign because of the employers conduct.
The Explanatory Memorandum To The Fair Work Bill 2009 (“the Explanatory Memorandum”) makes clear that the first limb is intended to pick up the case law on the concept of “termination at the initiative of the employer”. This requires some action on the part of the employer which is either intended to bring the employment to an end or has that probable result.
The Explanatory Memorandum also explains that the second limb is intended to reflect the common law concept of constructive dismissal . The common law concept of constructive dismissal treats, as a dismissal, cases where an employee resigns in response to the employer’s repudiation of the employment contract. A repudiation occurs where the employer breaches fundamental term of the contract, or shows that it no longer intends to be bound by the contract. (emphasis added)
[27] Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875 per Judge Whelan at [188]-[193].
[28] Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875 per Judge Whelan at [188]-[193].
The Explanatory Memorandum to the Fair Work Bill 2009 at [1528] to [1530] provides:
This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
·where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
·where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.
By contrast, in the instant case:
a)there was no effective instruction to resign issued to Ms Cheng in the face of a threatened or impending dismissal; and
b)there was no such extreme long running or any course of conduct that forced Ms Cheng to resign. In other words, Ms Cheng did not quit her job in response to conduct by the Respondent which gave her no reasonable choice but to resign. This generally requires conduct by the employer constituting a repudiation in that the employer breaches a fundamental term of the contract, or shows that it no longer intends to be bound by the contract. On the contrary, Ms Cheng was asked approximately four or five times to return to her shift and return to work and Ms Farmilow in addition attempted to contact Ms Cheng following her resignation.
On the evidence, there can be no finding that the Respondent repudiated the contract (by breaching a fundamental term or showing that it no longer intended to be bound) such that Ms Cheng had no reasonable choice but to accept that repudiation and resign. There can be no finding that Ms Cheng was given an effective instruction to resign.
Injured in employment – item 1(b)
Ms Cheng claims that she was subjected to adverse action within the meaning of section 342(1)(b) in that she was “wrongfully accused of stealing” and/or “humiliated in the way that she was terminated”. The meaning of injuring an employee in his or her employment is narrower than the notion of prejudical alteration of an employee’s position and is confined to any kind of injury of a compensable kind.[29] “Injury” refers to deprivation of one or more immediate practical incidents of employment, such as loss of pay or reduction in rank.[30]
[29] Patrick Stevedores Operations v MUA (1998) 195 CLR 1 [4].
[30] Squires v Flight Stewards Association of Australia (1982) 2 IR 155; Byrne v Australian Opthalmic Supplies Pty Limited (2008) 169 IR 236.
To the extent that Ms Cheng has particularised at all how it is that the alleged wrongful accusation of stealing or humiliation constitutes injury of a compensable kind, it is appears to be in the attachment to the letter from Ms Cheng to the Respondent dated 29 March 2016 (at annexure A to the First Morrissey Affidavit) in which Ms Cheng appears to claim $80,000 “for defamation of character and inability to continue in hospitality industry. The amount is calculated by two years of annual income. Two years is the amount of time the applicant can complete her Master of Teaching in order to find a job which can sustain her living circumstances.”
The evidence before the Court does not support any defamatory conduct of the Respondent and does not support a finding that Ms Cheng, through any conduct of the Respondent or otherwise, has been unable to obtain work in the hospitality industry. The evidence before the Court demonstrates that:
a)Ms Cheng was not “accused of stealing” or, if she was, the accusation was not “wrongful” on the evidence the Respondent had available to it at the time.
b)Ms Cheng was not “terminated” and, even if it is found that she was constructively dismissed, this was not done in a humiliating manner, particularly given Ms Edmonds’ evidence that she requested that Ms Cheng return to work and had investigated the issues before holding the meeting of 2 December 2013.
It is unclear how Ms Cheng can establish that she was subjected to adverse action within the meaning of section 342(1)(b).
Discriminates between employees – item 1(d)
Ms Cheng claims that the Respondent discriminated between her and other employees as contemplated under section 342(1)(d). To discriminate between employees for the purposes of section 342(1)(d) is to make a distinction in favour of or against a person or thing, including deliberately treating an employee less favourably than other employees.[31] The meaning of the term “discrimination” under anti-discrimination legislation is not used to interpret the meaning of “discriminates between” under section 342(1)(d) of the Fair Work Act.[32]
[31] Hodkinson v Commonwealth (2011) ) 248 FLR 409 [176].
[32] Hodkinson v Commonwealth (2011) 248 FLR 409 at [141].
The evidence does not establish that the Respondent “made a distinction in favour of or against a person or thing, including deliberately treating [Ms Cheng] less favourably than other employees.” On the contrary, the evidence of Ms Edmonds shows that she made a conscious decision to attempt to keep Ms Cheng employed with the Respondent and asked her on approximately four occasions to continue her employment with the Respondent.
Protected attribute
The Fair Work Act does not define the attributes protected by section 351 although the words are to be given their ordinary meaning.[33] As stated above, Ms Cheng’s Claim and Application fail to set out any particular protected attribute in respect of her allegation that the Respondent contravened section 351 of the Fair Work Act. A hurdle presenting itself to Ms Cheng is that, while it is well accepted that sexual harassment is a form of sex discrimination,[34] as Justice Flick recently pointed out (without needing to decide the issue) in Wroughton v Catholic Education Office Diocese of Parramatta:[35]
…it may be noted that s 351(1) of the Fair Work Act does not itself employ the term “discrimination”. Nor does s 351 contain any prohibition upon (in the present case) “sex discrimination”, including “sexual harassment”. The prohibition in s 351(1) is a prohibition upon an employer taking “adverse action against a person...”.
[33] RailPro Services Pty Ltd v Flavel [2015] FCA 504 at [123].
[34] Aldridge v Booth (1988) 80 ALR 1 at 16-17 per Spender J, and cases there cited; Hall v A &
[35] (2015) 255 IR 284 at [77].
Ms Cheng would need to satisfy the Court of this as a preliminary matter of law. As an evidentiary matter Ms Cheng would also need to demonstrate to the court how it is that she was subjected to adverse action (presumably in the form of a constructive dismissal) “because of” her sex in that Ms Jackson would not have (allegedly) sexually harassed Ms Cheng if she was a man.
In any event, the evidence does not support a finding that Ms Cheng was sexually harassed by Ms Jackson (or at all) and/or that anything done by Ms Jackson (if it is to be taken that the alleged conduct occurred while she was acting within authority of the Respondent as required under section 793 of the Fair Work Act) was done because of Ms Cheng’s sex. This is the case if the meaning of sexual harassment under section 28A(1)(b) of the SDA is used, being “unwelcome conduct of a sexual nature”, or if any other accepted meaning is relied upon, should Ms Cheng demonstrate a reason to deviate from the well established meaning under section 28A(1)(b) of the SDA. In the Respondent’s submission Ms Cheng will be unable to make out any protected attribute as a matter of law or evidence.
“Because of” and rebuttable presumption
The words “because of” in section 351 and other similar sections in Part 3-1 of the Fair Work Act, as well as the operation of section 361, were considered recently in Milardovic v Vemco Services Pty Limited[36] by Justice Mortimer. Her Honour examined the most recent High Court and other appellate authorities and relevantly distilled the following broad principles:
a)the inquiry requires a determination of fact as to the reasons which motivated the person who allegedly took the adverse action[37] or whether the conduct was “actuated” by a protected attribute;[38]
b)just because a decision maker is aware of various facts or matters, does not mean that these facts or matters are the reasons for the decision in the sense of being determinative;[39]
c)the proscribed reason need not be the sole or dominant reason, but must comprise a substantial and operative reason, or reasons including the reason;[40]
d)there must be more than a temporal connection between the protected attributed and the taking of the adverse action;[41]
e)the Respondent’s evidence under section 361 of the Fair Work Act must negate the alleged reason for the taking of the adverse action;[42]
f)the inquiry is as to any particular reason of the decision maker and so involves an assessment of the state of mind of the decision maker, rather than a wholly objective inquiry.[43]
[36] [2016] FCA 19 at [55]-[60]
[37] Milardovic at [55], [60] citing French CJ and Kiefel J in CFMEU v BHP Coal (2014) 253 CLR 243 at [19].
[38] Milardovic at [60] citing Waters v Public Transport (1991) 173 CLR 349 at 400-401.
[39] Milardovic at [59]-[60] citing CFMEU v Endeavour Coal (2015) 231 FCR 150 at [91] per Jessup J; special leave application dismissed.
[40] Milardovic at [55] citing Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) (2012) 243 CLR 500 at [104].
[41] Milardovic at [55] citing Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) (2012) 243 CLR 500 at [60]; CFMEU v BHP at [19].
[42] Milardovic at [56] citing CFMEU v BHP at [191].
[43] Milardovic at [57].
Relevantly to these proceedings, as was observed by Judge Driver in Dahler v Australian Capital Territory (No 2):[44]
the Court’s inquiry is relevantly confined to the causal relationship between the adverse action (dismissal) and the alleged attribute or activity of Mr Dahler. Mr Dahler ’s evidence and argument intended to show that the finding of misconduct was incorrect is not to the point. …
[44] (2015) 296 FLR 363 at [23]. See also Celand v Skycity Adelaide Pty Ltd [2016] FCCA 399 at [25]-[26], where Judge Brown observed that a general protections application is not an opportunity to raise issues about perceived procedural deficiencies.
The Respondent says that the evidence does not base a finding that Ms Cheng’s sex or the alleged but unproved sexual harassment (if one of these is the protected attribute) constituted a “substantial and operative” reason, or were included as such a reason, that motivated Ms Edmonds in any way to:
a)meet with Ms Cheng on about 2 December 2013, issue her with the written warning and ask her to sign it; and/or
b)engage in any conduct whatsoever that could be said to have given rise to Ms Cheng resigning in the face of being asked to return to work and not to resign.
The mere temporal connection between Ms Cheng having any particular attribute is insufficient to constitute the relevant nexus[45] and mere awareness of Ms Cheng’s sex (if that is the particular protected attribute) does not mean that the protected attribute was a reason for any decision of a decision maker.[46] It is however Ms Edmonds’ evidence that she was unaware of any alleged sexual harassment of Ms Cheng by Ms Jackson or at all. [47] The evidence of Ms Edmonds otherwise expressly denies that any attribute formed any reason for any alleged adverse action or any other conduct.[48] In the Respondent’s submission its evidence negates the reasons alleged by Ms Cheng for the alleged adverse action such as to rebut the presumption under section 361.
[45] Milardovic at [55] citing Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) (2012) 243 CLR 500 at [60]; CFMEU v BHP at [19].
[46] Milardovic at [59]-[60] citing CFMEU v Endeavour Coal (2015) 231 FCR 150 at [91] per Jessup J; special leave application dismissed.
[47] Karen Edmonds Affidavit, [41]-[42]; Farmilow Affidavit, [13]-[15].
[48] Karen Edmonds Affidavit, [43].
No causal nexus for relief claimed
For an applicant to be awarded relief under section 545(2)(b) of the Fair Work Act there must be a causal link between the loss and the contravention.[49] Ms Cheng’s evidence does not show that the relief claimed in the sum of $100,000[50] is a loss caused by any conduct of the Respondent in contravention of section 351 or otherwise. Moreover, to the extent that damages for non economic loss are sought, evidence of such is required and more than a mere assertion of non economic loss will not suffice.[51] In addition, in the absence of evidence demonstrating steps to mitigate loss, any claim the equivalent of two years’ loss of income[52] is without foundation.
[49] RailPro Services Pty Ltd v Flavel [2015] FCA 504 at [168].
[50] See annexure A to the First Morrissey Affidavit.
[51] Grant v Victoria (No 2) FCCA 991 at [69].
[52] See annexure A to the First Morrissey Affidavit.
Conclusion
Ms Cheng is unable to prove that any adverse action as defined by section 342 of the Fair Work Act was taken by the Respondent against her in contravention of section 351 or otherwise.
Costs
The Respondent seeks the costs of and incidental to the proceedings pursuant to section 570(2) of the Fair Work Act.
A Sheiban Pty Ltd (1989) 20 FCR 217 at 274-276 per French J; Elliott v Nanda (2001) 111
FCR 240 at [127] per Moore J.
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