FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chia v Talaria Asset Management Pty Ltd [2024] FedCFamC2G 1441
File number(s): PEG 175 of 2023 Judgment of: JUDGE TAGLIERI Date of judgment: 20 December 2024 Catchwords: INDUSTRIAL LAW – general protections claim – adverse action – alleged breach of employment contract – alleged breaches of Fair Work Act – whether employee exercised workplace rights – if exercise of workplace rights was a substantive and operative reason for dismissal – reverse onus satisfied by respondents – general protections claims not made out – breach of contract claim successful in part – whether obligation to give payslips satisfied if access available via payroll software – declarations made that there were some contraventions of the Fair Work Act by the first respondent Legislation: Acts Interpretation Act 1901 (Cth) s 28A
Electronic Transactions Act 1999 (Cth) ss 9(1)(d), 9(4)
Fair Work Act 2009 (Cth) ss 44, 117, 123(1)(b), 340, 341, 342, 361, 536, 539, 546
Fair Work Regulations 2009 (Cth) r 1.07
Cases cited: Alam v National Australia Bank Limited (2021) 288 FCR 629
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243
Farquhar v Commonwealth of Australia [2023] FedCFamC2G 1100
Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677
Division: Division 2 General Federal Law Number of paragraphs: 121 Date of last submission/s: 1 October 2024 Date of hearing: 5-7 & 26 August 2024 Place: Melbourne & Hobart (by MS Teams) Counsel for the Applicant: Mr Lake Solicitor for the Applicant: Harmers Workplace Lawyers Counsel for the Respondents: Mr Garozzo Solicitor for the Respondents: Seyfarth Shaw Australia ORDERS
PEG 175 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JOY CHIA
Applicant
AND: TALARIA ASSET MANAGEMENT PTY LTD
First Respondent
ELIZABETH NINNESS
Second Respondent
JAMIE MEAD
Third Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
20 DECEMBER 2024
THE COURT DECLARES THAT:
A.The First Respondent breached the employment agreement by implementing suspension of the Applicant's employment on 21 March 2023;
B.The First Respondent contravened s 536(1) of the Fair Work Act 2009 (Cth) by failing to provide a payslip to the Applicant within one working day of paying her in March 2023; and
C.The First Respondent contravened ss 44(1) and 117 of the Fair Work Act 2009 (Cth) by failing to pay the Applicant a minimum of one week pay in lieu of notice when her employment was terminated.
THE COURT ORDERS THAT:
1.BY CONSENT, the proceedings and all claims against the Third Respondent are dismissed.
2.The proceedings are otherwise adjourned to 15 January 2025 at…
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Details
- Case
- [2024] FedCFamC2G 1441
- Decision Date
CaseChat Overview and Summary
The case of Chia v Talaria Asset Management Pty Ltd, heard in the Federal Circuit and Family Court of Australia, involved the applicant, Ms Chia, bringing claims against Talaria Asset Management Pty Ltd (the first respondent) and two other respondents. The claims included general protections against adverse action, breaches of the Fair Work Act, and a breach of contract. The applicant alleged that her employment was unfairly terminated and that her rights under the Fair Work Act were breached. The first respondent argued that the termination was due to the applicant’s serious misconduct in making a false manual entry in the account management system.
The central legal issues before the court were whether the applicant exercised workplace rights, whether the exercise of these rights was a substantial reason for her dismissal, and if the first respondent breached the employment contract and the Fair Work Act. The court had to determine if the applicant's actions constituted a legitimate exercise of her rights and if these actions were a significant factor in her dismissal. Additionally, the court needed to assess if the first respondent complied with contractual obligations and statutory requirements, including providing payslips and notice in lieu of notice.
The court found that the applicant did not sufficiently identify the conduct alleged to be bullying or harassment, thus failing to exercise a workplace right involving a complaint. The court also found that the applicant’s manual entry in the account management system was false and created a serious risk for the first respondent. The court concluded that the reverse onus was satisfied by the first respondent, meaning the applicant's general protections claims were not made out. However, the court found that the first respondent breached the employment contract by failing to provide a payslip and by not paying a minimum of one week’s pay in lieu of notice when terminating the applicant’s employment. The court also found that the first respondent contravened sections of the Fair Work Act by not providing a payslip and failing to pay the requisite notice.
The court ordered that the first respondent breached the employment agreement by suspending the applicant's employment and contravened sections of the Fair Work Act by not providing a payslip and failing to pay the requisite notice. The court proposed to make declarations regarding these breaches. The court also noted that the question of pecuniary penalties and compensation needed further submissions from the parties. If the applicant pursued further claims, the court would need to address certain ambiguities in the Statement of Claim.
The central legal issues before the court were whether the applicant exercised workplace rights, whether the exercise of these rights was a substantial reason for her dismissal, and if the first respondent breached the employment contract and the Fair Work Act. The court had to determine if the applicant's actions constituted a legitimate exercise of her rights and if these actions were a significant factor in her dismissal. Additionally, the court needed to assess if the first respondent complied with contractual obligations and statutory requirements, including providing payslips and notice in lieu of notice.
The court found that the applicant did not sufficiently identify the conduct alleged to be bullying or harassment, thus failing to exercise a workplace right involving a complaint. The court also found that the applicant’s manual entry in the account management system was false and created a serious risk for the first respondent. The court concluded that the reverse onus was satisfied by the first respondent, meaning the applicant's general protections claims were not made out. However, the court found that the first respondent breached the employment contract by failing to provide a payslip and by not paying a minimum of one week’s pay in lieu of notice when terminating the applicant’s employment. The court also found that the first respondent contravened sections of the Fair Work Act by not providing a payslip and failing to pay the requisite notice.
The court ordered that the first respondent breached the employment agreement by suspending the applicant's employment and contravened sections of the Fair Work Act by not providing a payslip and failing to pay the requisite notice. The court proposed to make declarations regarding these breaches. The court also noted that the question of pecuniary penalties and compensation needed further submissions from the parties. If the applicant pursued further claims, the court would need to address certain ambiguities in the Statement of Claim.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
In order to exercise a workplace right involving a bullying or harassment complaint, it was necessary for the applicant to sufficiently identify the conduct alleged to amount to bullying or harassment, which I find she failed to do. The Second and Third Employment Complaints allege or label unidentified conduct to be “bullying” and in such circumstances, the process contemplated by part 9 of the first respondent’s bullying policy could not be enacted.[67] Effectively, the applicant foreshadowed allegations of bullying or harassment by her emails, which if particularised may have constituted the exercise of a right to make a complaint pursuant to part 9.1 of the bullying policy, but she did not in fact exercise such a workplace right on either 24 or 27 March 2023. [67] Exhibit R8 at [51]-[61], annexures JM-7, JM-8, JM-9, JM-10 and JM-11.Evidence and findings about the manual entry in PMA on 15 March 2023 The applicant firmly maintained during cross-examination that when she made the manual entry of $284,408.73 into PMA, the first respondent’s account management system, on 15 March 2023, it was according to general instructions given to her by Mr Estorque.[68] Further, that the manual entry accurately identified that the total sum entered was not fully accounted for and she had initiated an enquiry about the unexplained amount.[69] Accordingly, the applicant strongly maintained that her conduct was not misleading or false and did not amount to serious misconduct.[70][68] Transcript dated 6 August 2024, p 108 at lines 37-39, p 109 at lines 8-9, p 111 at lines 2-4.[69] Transcript dated 6 August 2024 at p 112.[70] Transcript dated 6 August 2024 at p 114. Throughout her affidavits, the applicant conveys that the standard of her work and performance of her duties was entirely acceptable and deflected the concerns raised by Ms Ninness and Mr Estorque. However, when cross-examined she made limited concession that on one occasion she could have had better attention to detail.[71] This evidence contradicts statements made during her meeting with Ms Ninness on 28 February 2023 that she received limited or no training in respect of certain tasks. This contradiction contributes to my preference of Ms Ninness’ evidence concerning the applicant’s standard of work and performance of duties up until 15 March 2023.[71] Transcript dated 5 August at pp 57 and 63. Under cross-examination, Ms Ninness maintained that the manual entry made by the applicant on 15 March 2023 was false and created serious risk for the first respondent because it conveyed that the amount was in the account when in fact it was not. Ms Ninness’ evidence was that:(a)She disagreed that Mr Estorque’s email of 20 March 2023 did not show any hint of urgency or risk to the business by the manual entry by the applicant;[72][72] Transcript dated 6 August 2024 p 178, lines 4-29.(b)Mr Estorque’s communication highlighted that the manual entry made by the applicant did not relate to an actual transaction;[73][73] Transcript dated 6 August 2024 p 178, lines 31-34.(c)She agreed that she suspended the applicant’s employment on 21 March 2023 but denied she was aggressive when inviting the applicant to meet with her or during the meeting;[74][74] Transcript dated 6 August 2024 p 178, lines 40-46.(d)She denied that she accused the applicant of falsifying transactions;[75][75] Transcript dated 6 August 2024 p 179, lines 1-2.(e)She denied stating that there needed to be an investigation about “altering records” or “falsifying transactions”;[76][76] Transcript dated 6 August 2024 p 179, lines 26 and 28.(f)In the context of a question the applicant asked, she agreed she had said that “from a regulatory point of view, a transaction that didn’t align to a true transaction could be deemed fraudulent” but denied it had been in an accusatory way;[77][77] Transcript dated 6 August 2024 p 179, lines 30-35.(g)She maintained that the allegations relating to the applicant’s suspension had been put to her in writing before directing her to attend a meeting, initially stating it was by email of 27 March 2023 before stating it was by email dated 24 March 2023;[78][78] Transcript dated 6 August 2024 pp 180-181.(h)She disagreed the respondents had not put the applicant on notice of anything that she was required to meaningfully respond to;[79] [79] Transcript dated 6 August 2024 p 182, lines 42-45.(i)She denied she wanted to terminate the applicant’s employment because the applicant had complained about her;[80][80] Transcript dated 6 August 2024 p 183, lines 22-23.(j)She disagreed that:(i)She wanted to terminate the applicant’s employment because she made work life more difficult when she was on periods of personal leave and annual leave in Perth;[81] and[81] Transcript dated 6 August 2024 at p 183, lines 25-27.(ii)The real reasons for suspending the applicant were due to her leave requests and the manual transaction was seized upon to suspend her;[82][82] Transcript dated 6 August 2024 at p 183, lines 29-31.(k)She agreed she had asked a series of six questions of Mr Estorque as part of instructions to him to investigate the manual entry and he replied to one by stating that the manual transaction did not affect the actual cash position and that creating transactions in PMA would “only affect our reporting valuations and no instructions come out of PMA”;[83][83] Transcript dated 6 August 2024 at p 186, lines 1-16.(l)She agreed Mr Estorque had cancelled the transaction but disagreed that there was no adverse consequence for the first respondent;[84][84] Transcript dated 6 August 2024 at p 186, lines 26-32.(m)The manual entry distorted both internal and external reporting relating to the management of the funds, legal and regulatory obligations and had potential to have impacts;[85][85] Transcript dated 6 August 2024 at p 186, lines 26-32.(n)From a regulatory perspective, the first respondent had obligations to have true and correct records;[86][86] Transcript dated 6 August 2024 at p 186, lines 44-45.(o)She maintained that if the manual entry had not been cancelled by Mr Estorque, the records would not be correct going forward;[87][87] Transcript dated 6 August 2024 at p 187, lines 4-9.(p)With some reluctance and avoidance of the question, she conceded that the first respondent was not in breach of its cash threshold for the relevant day despite the manual entry;[88][88] Transcript dated 6 August 2024 at p 187, lines 1-15.(q)She did not dispute that there had been no regulatory action or enquiry but said she had disclosed the manual entry to the auditors;[89][89] Transcript dated 6 August 2024 at p 187, lines 17-18.(r)She agreed there was no report to the Australian Securities and Investments Commission (“ASIC”) about the manual entry;[90](s)She could not say whether Mr Estorque was aware of the manual entry when he reviewed the checklist implemented to oversee the applicant’s work for reconciliations on 15 March 2023 but said he had noted that the reconciliation was incomplete;[91](t)She disagreed that the notes made by the applicant in the checklist “flagged” that the amount was unexplained and that this had been drawn to Mr Estorque’s attention.[92] In particular, she stated:What that means is there’s an un-reconciled amount on the accounts. It doesn’t mean that she has entered a transaction into the system to square out the books. Because if – if you’re squaring out the books, you’re forcing a reconciliation, which is then not a proper reconciliation.(u)She would not concede that based on what was now known, the unexplained inflow of $284,408.73 aligned with actual transactions that had occurred at around that time in the custodian’s account. She continued to maintain that reconciliations need to be done on a daily basis and records need to be true and correct, as does the reporting at the time;[93](v)She did not explain how the manual entry constituted a breach of the first respondent’s investment mandates or product disclosure statement but maintained it was an inaccurate recording and reconciliation and presented a serious risk to the first respondent;[94](w)She maintained that the manual entry was not flagged in the PMA system but agreed it was noted in the checklist prepared by the applicant;[95] and(x)She effectively conceded that the first respondent’s procedures document did not detail the end-to-end process or instruction for reconciliations relating to the manual entry and that there was no specific non-compliance or breach of the procedures document by the applicant when she made that manual entry.[96][90] Transcript dated 6 August 2024 at p 187, line 20.[91] Transcript dated 7 August 2024 at p 194, lines 1-25.[92] Transcript dated 7 August 2024 at p 194, lines 34-39.[93] Transcript dated 7 August 2024 at pp 196-197[94] Transcript dated 7 August 2024 at pp 198-200.[95] Transcript dated 7 August 2024 at p 201, lines 1-5[96] Transcript dated 7 August 2024 at pp 207-211.
Decision
Reasons for decision
Because of the conclusions about the failure to provide a payslip as required and notice in lieu, civil penalties are payable pursuant to ss 546 and 539 of the Act. CONCLUSION Noting the agreed scope of the defended hearing referred to at [9] of these reasons and what the Court is to determine at this juncture, for the reasons given above the only declarations the Court proposes to make are that:(1)The first respondent breached the employment agreement by implementing suspension of the applicant’s employment on 21 March 2023;(2)The first respondent contravened s 536(1) of the Act by failing to provide a payslip to the applicant within one working day of paying her in March 2023; and(3)The first respondent contravened ss 44(1) and 117 of the Act by failing to pay the applicant a minimum of one week pay in lieu of notice when her employment was terminated. In the Statement of Claim, the applicant contended that the second and third respondents were accessorily liable but it is not clear whether this related only to the unsuccessful adverse action claim. As that claim has failed, there will only be a need to determine an accessorial liability issue if the applicant maintains that claim in relation to the declarations made by the Court. The parties agreed that the Court should determine what pecuniary penalties should be imposed for the contraventions of the Act referred to at [117], but there has been inadequate ventilation of the question of pecuniary penalties. I consider this should be addressed by further submissions, which may be made by consent or otherwise and I will hear from the parties as to what procedural orders should be made to finalise the proceedings. In addition, unless the parties reach agreement about the compensation payable and interest thereon as a result of the declaratory orders referred to above, the Court will need to receive particularisation of the compensation sought by the applicant and submissions from both parties in respect of the same. Finally, due to the ambiguity concerning [48] of the Statement of Claim and the reasons above at [101], if the applicant pursues further claims this will need to be addressed.
Ratio Decidendi
Legal Principle Established
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