Choy v Queensland University of Technology
[2020] FCCA 3481
•22 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHOY v QUEENSLAND UNIVERSITY OF TECHNOLOGY | [2020] FCCA 3481 |
| Catchwords: INDUSTRIAL LAW – Application based upon general protection claims, claims for breach of contract, and claims for contravention of provisions of Enterprise Agreement – Where instances of adverse action found, the Respondent was found to have rebutted the adverse statutory presumption of contravention – no other breaches found – adverse credibility findings made against applicant - application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.50, 65, 65(1A), 65(5), 340(1)(a), 340(1)(a)(i), 340(1)(a)(ii), 340(1)(a)(iii), 341, 341(1)(a), 341(1)(c)(ii), 342, 342(1)1.(a), 342(1)1.(b), 342(1)1.(c), 360, 361. Federal Circuit Court of Australia Act 1999 (Cth), s.3(2). Work Health and Safety Act 2011 (Qld). |
| Cases cited: Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271. Maxutova v Nunn Media Pty Ltd [2017] FCCA 2336. |
| Applicant: | LAI FUNG CHOY |
| Respondent: | QUEENSLAND UNIVERSITY OF TECHNOLOGY |
| File Number: | BRG 1100 of 2017 |
| Judgment of: | Judge Egan |
| Hearing date: | 15, 16, 17 May and 20, 21, 22 November 2019, 2, 3, 4 November 2020. |
| Date of Last Submission: | 4 November 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 22 December 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr McKechnie |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
The applicant’s application filed on 9 November 2017 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Brisbane |
BRG 1100 of 2017
| lai fung choy |
Applicant
And
| queensland university of technology |
Respondent
REASONS FOR JUDGMENT
Progress of Matter to Trial
This matter was case managed by another Judge from the time of the filing of the Form 2 Claim on 9 November 2017. That Judge listed the matter for a three (3) day hearing commencing on 15 May 2019. After the initial three (3) day hearing, a further three (3) day hearing took place in November 2019 after hearing dates had become available. When the matter was next listed for hearing in April 2020, it had to be adjourned because of listing arrangements having been thrown into turmoil due to the effects of the COVID-19 pandemic. The trial was next listed for a three (3) day hearing in November 2020 when dates had next become available.
The delay in hearing, though regrettable, was also in part exacerbated by the need of the applicant to frequently have the hearing stood down whilst she composed herself. All of those things are a salutary reminder that a number of factors may result in a trial lasting longer than first expected.
Introduction
The applicant commenced employment with the respondent as a senior consultant in the respondent’s Assurance and Risk Management Services (“ARMS”) division pursuant to a written offer of employment dated 27 April 2016. [1] That written offer provided as follows:
[1] Annexure A200 to Choy Affidavit filed on 4 June 2018 at p. 436.
“Dear Ms Choy
Employment with the Queensland University of Technology
I am pleased to offer you employment in the position of Senior Consultant, Risk Management Services, Assurance and Risk Management Services, Chancellery at the Queensland University of Technology (University).
The terms of this employment contract are set out below.
1. POSITION
1.1 This contract commences on 1 June 2016 and is on an ongoing, full-time basis.
1.2 Your position is currently located at the University's Gardens Point Campus. You may be required to work at another location either temporarily or permanently in the future, although at the time of issuing this contract there are no changes planned.
1.3 Your supervisor on appointment is the Director, Assurance and Risk Management Services (Seema Patel).
2. REMUNERATION
2.1 Your salary will be in accordance with the QUT Enterprise Agreement (Professional Staff) 2014 - 2017. Your classification under this Agreement is Higher Education Worker Level HEW10 which has an annual salary range of $112,057 to $125,334. Your commencing salary will be $120,908 per annum, or $4,634.43 per fortnight.
2.2 In addition you will be paid Superannuation and recreation leave loading.
3. RESPONSIBILITIES AND POSITION
3.1 Your responsibilities are detailed in your position description as amended from time to time.
3.2 You recognise that your responsibilities and the required competencies may change as your position evolves and as the University’s needs or operational requirements change. Where it is necessary to revise the requirements of your position the University will consult with you and your remuneration will not be reduced for the balance of this appointment.
3.3 During the term of your employment the University may, in order to meet its operational requirements and after consultation with you, appoint you to a different position at the University, and your remuneration will not be reduced for the balance of this appointment.
3.4 If there are any changes to your position, responsibilities, or work location this contract will continue to apply to your employment with the University in any role until amended or replaced.
4. CONDITIONS OF APPOINTMENT
Probationary period
4.1 You are employed subject to the satisfactory completion of a 12 month probationary period. The probationary period does not limit the operation of the minimum employment period under the Fair Work Act 2009 (Cth).
4.2 During the probationary period either you or the University may terminate this contract by providing 1 weeks’ notice.
4.3 The University may at any time during the probation period confirm the employment of a probationary staff member.
Performance Planning and Review
4.4 During your appointment, you are required to participate in Performance Planning and Review - Professional Staff (PPR-PS). You therefore need to meet with your supervisor within one month of commencement to establish performance goals for the next 12 month period.
Prior Service
4.5 Previous service from related employment (such as another University or the public service) may be recognised in limited circumstances for the purposes of calculating long service entitlements at the University. For detailed information, please contact the Human Resources Department.
Other Conditions
4.6 This contract and your appointment is also conditional on:
a) A criminal history check being obtained now and every 3 years which is satisfactory to QUT; and
b) You completing Schedule A online to the satisfaction of QUT.
4.7 You must immediately advise the Director, Human Resources if you are charged with or convicted of any indictable offence which is relevant to your role or which may adversely impact on the reputation of the University.
5. POLICIES AND PROCEDURES AND ENTERPRISE AGREEMENT
5.1 The University has developed a Manual of Policies and Procedures (MOPP) and makes other policies, procedures, rules and guidelines (Policies and Procedures) from time to time. Current copies of the University's key policies and procedures can be viewed at You must comply with all University Policies and Procedures as amended from time to time (including but not limited to the MOPP). However, University Policies and Procedures do not form part of the terms and conditions of this contract and are not intended to be contractual in nature. References to Policies and Procedures in this contract are included for convenience only. Any failure by the University to follow a particular term of a policy, procedure, rule or guideline will not amount to a breach of any express or implied term of this contract.
5.3 Various employment entitlements and arrangements are outlined in the QUT Enterprise Agreement (Professional Staff) 2014 – 2017. However, provisions in this Enterprise Agreement (or any replacement) do not form part of your contract of employment.
6. SUPERANNUATION
6.1 Because you are employed under an enterprise agreement which provides for a superannuation fund, you do not presently have the option to choose an alternative superannuation fund. QUT's specified superannuation fund is UniSuper and as a condition of your UniSuper membership QUT contributes the equivalent of 17% of your gross salary to the fund. You can choose to pay a standard member contribution of between 0% and 7% from your net pay, however the default standard member contribution will be 7%, until you elect otherwise. You may also choose to have your standard member contribution deducted from your before tax pay (i.e. via salary sacrifice).
7. CONFIDENTIALITY
7.1 In this clause:
Confidential Information means all information which is confidential to the University, including trade secrets, information concerning the market within which the University operates, technical information concerning the University's products or the materials used by the University in its business, information about the University's financial performance, information concerning the University's market, business projections, business plans and business forecasts concerning the University's performance or likely future activity and any other information which is confidential to the business affairs of the University or its stakeholders and which is not in the public domain.
7.2 During your employment and following termination of your employment, you will keep confidential all Confidential Information.
7.3 Without limiting this clause, you will:
a) use Confidential Information solely for the purpose of performing your duties with the University;
b) disclose Confidential Information only to persons who:
i. are aware and agree that the Confidential Information must be kept confidential; or
ii. have signed any confidential agreement required by the University from time to time;
iii. and either:
a) have a need to know (and only to the extent that each has a need to know); or
b) have been approved by the University from time to time.
7.4 You must immediately notify the University of any suspected or actual unauthorised use, copying or disclosure of Confidential Information.
7.5 You must provide assistance reasonably requested by the University in relation to any proceedings the University may take against any person for unauthorised use, copying or disclosure of Confidential Information.
7.6 Upon termination of your employment with the University you must return to the University all documents containing Confidential Information and you must not retain any documents containing Confidential Information.
8 INTELLECTUAL PROPERTY
8.1 You agree to assign to the University upon creation, all intellectual property rights in Intellectual Property created by you, either individually or jointly with one or more parties, in the course of your employment, whether or not within your working hours and whether or not using the University's facilities, funding or resources. Intellectual Property refers to the rights which protect intellectual and creative effort recognised by law and includes patents, inventions, trademarks, designs, copyright, circuit layout rights, plant breeders' rights, confidential information and trade secrets.
8.2 To avoid doubt, inventions are also included in the assignment of Intellectual Property whether or not your express duties include a duty to invent.
8.3 You must disclose all Intellectual Property Rights to the University.
8.4 You must do all things reasonably requested by the University to enable the University to exploit and assure further the rights assigned, and consents given, under this clause.
9 ENTIRE CONTRACT
9.1 The terms and conditions contained in this contract represent the entire agreement between you and the University with respect to your employment. This contract can only be varied through written agreement between you and the Director, Human Resources.
10 ACCEPTANCE
10.1 Acknowledgement of this letter of offer and online completion of Schedule A by 11 May 2016 indicates your acceptance of this offer of employment.
10.2 If you have any questions concerning this contract, please contact Amanda Allison, Senior Human Resources Advisor on [phone number omitted] or [address omitted].
Yours sincerely
Nicole Bunning
Director, Human Resources”
In the applicant’s Form 2 Application (“Form 2”) filed on 9 November 2017, the applicant made claims as follows:
a)Contravention of the general protection provisions of the Fair Work Act2009 (Cth) (“the FWA”).
b)Breaches of clauses 49, 52.2.2 and 54.3 of the Queensland University of Technology Enterprise Agreement (Professional Staff) 2014 – 2017 (“Enterprise Agreement”) and contraventions of s. 50 of the FWA.
c)Breaches of her employment contract with the respondent.
Clauses 49, 52.2.2 and 54.3 of the Enterprise Agreement provided as follows: [2]
[2] See Annexure A230 to Choy Affidavit filed on 4 June 2018 at p. 564, 567 and 572.
“49. WORKPLACE BULLYING AND GRIEVANCE PROCEDURES
49.1 QUT is committed to ensuring a harmonious, fair and just working and learning environment, and to the elimination of any workplace bullying at the University.
49.2 The Grievance Resolution Procedures for Workplace Related Grievances and Bullying ensure that staff have access to processes that allow for grievances, disputes and complaints to be resolved. The University is committed to ensuring the Policy and guidelines are implemented.
49.3 The Grievance Resolution Procedures for Workplace Related Grievances and Bullying will not be amended without prior consultation with the Unions.
…
52.2.2During the period of probation, the staff member and their supervisor will meet to review performance and development. An initial meeting will be conducted within one (1) month of appointment, an interim review will be conducted mid-way through the period of probation and a final review will be conducted at least one month before the completion of the period of probation.
…
54.3 Allegations
54.3.1 If the Vice-Chancellor has information that a staff member may have engaged in Misconduct or Serious Misconduct, the Vice-Chancellor will:
(a) notify the staff member in writing and in sufficient detail to enable the staff member to understand the precise nature of the allegations and to properly consider and respond to them; and
(b) require the staff member to submit a written response to the allegations within ten (10) working days of the date of receipt of the written allegations.”
Exhibit 3 was tendered without objection. It was not in dispute that the applicant’s claims were accurately recorded in Exhibit 3, which Exhibit was helpfully prepared by the respondent’s lawyers. Such Exhibit is Annexure A to this judgment. Table 1 lists the claimed exercise by the applicant of workplace rights under the FWA, together with the respondent’s responses to such claims. Table 2 lists the alleged instances of adverse action alleged to have been taken by the respondent against the applicant by reason of her alleged exercise of workplace rights as set out in Table 1 of Exhibit 3, as well as the respondent’s responses thereto.
The respondent conceded that items 2, 12, 13, 14, and 15 of Table 1 constituted examples of the exercise of workplace rights by the applicant. The respondent disputed all of the applicant’s other claims.
The respondent further conceded that items 12, 13, 14 and 15 of Table 2 constituted examples of adverse action being taken by the respondent against the applicant. The respondent otherwise disputed the applicant’s claims.
The applicant’s employment was formally terminated upon the recommendation of the applicant’s superior named Ms Patel, whose position was Director of ARMS. The termination recommendation provided by Ms Patel on 8 June 2017 to the Human Resources Director, one Ms Bunning, set out Ms Patel’s account of the applicant’s deteriorating performance over time from February 2017 onwards, and was as follows: [3]
[3] See Annexure A63 to Choy Affidavit filed on 4 June 2018 at p. 168 – 171 inclusive.
“To: Human Resources Director
Through: Vice-Chancellor
From: Director, Assurance and Risk Management Services
Date: 8 June 2017
Subject: Ms Lai Fung (Susann) Choy – recommendation for termination in probation
1. Purpose
In accordance with clause 52.2 of the Enterprise Agreement (Professional Staff) 2014-2017 (Enterprise Agreement) I recommend that the probationary appointment of Ms Susann Choy (Ms Choy) be terminated on the grounds that she has not demonstrated satisfactory performance.
A copy of this memo has been provided to Ms Choy prior to it being sent to you for consideration. Ms Choy elected not to sign a copy of this memorandum as evidence of it being sighted.
2. Background
Ms Choy is appointed as a Senior Consultant Risk Management at Higher Education Worker Level HEW 10 on an ongoing, full time basis within Assurance and Risk Management Services. Ms Choy commenced in the role on the 13 June 2016 and had been selected through a recruitment process.
Ms Choy’s appointment was subject to a 12 month probationary period in accordance with clause 52.1.1 of the Enterprise Agreement which is scheduled to conclude on 12 June 2017.
3. PPR history
Performance Planning and Review (PPR) for Professional Staff was completed in respect of Ms Choy for the period commencing 13 June 2016 to 31 December 2016 and the performance assessment for that period was rated as satisfactory with reference to the technical skills of the role.
PPR for the period 1 January 2017 to 31 December 2017 was then signed off on 6 February 2017.
4. Unsatisfactory Performance
Subsequent to the sign-off of the above PPR, performance concerns have arisen in respect of Ms Choy and since being raised I have not identified any improvement. Accordingly, I do not believe Ms Choy is suitable for continuing appointment.
On 31 March 2017, a performance discussion was scheduled and Ms Choy was provided with an agenda summarising the following performance issues:
1. Working effectively as part of a team.
2. Managing workloads
The performance discussion meeting was attended by Ms Choy, her support person Mr Gordon Charmers me as supervisor and Mr Brian Lovi, Associate Director HR Client Services.
The following matters were discussed:
·Ms Choy’s six month review of performance was satisfactory, but since then some performance concerns have been identified.
·My concerns with Ms Choy’s performance (as summarised above).
·My expectations to help address these concerns and any support that Ms Choy may need.
·I outlined that I was committed to working with Ms Choy to address these concerns, but at this stage unless the performance concerns are addressed I would not recommend that the probationary appointment be confirmed. (Ms Choy disputes that this was said.)
·The meeting is confidential and should not be discussed with other staff.
Detail around performance concerns
·Ms Choy’s technical skills to undertake the job are satisfactory. The issues that have arisen since the start of the year centre around behaviour, in particular, teamwork and work load management.
Team work
·ARMS is a small team and all staff need to work together to ensure the work is undertaken efficiently and effectively.
·When work is allocated to two staff members it is expected that the team members will discuss the work and contribute equally. An example was given when Ms Choy and a colleague were asked to work together. On review of the work by me, it was clear that the other colleague did most of the work.
·I outlined that Ms Choy’s predominate communication is by email and that in a small team it is more effective to have face to face discussions. I was concerned that continual email communication was not helpful, can lead to confusion (which takes time to address) and may be perceived as not trusting of colleagues. Ms Choy said that she didn’t want to disturb colleagues (including me) in a busy office and that’s why she sent emails. I outlined the expectation that Ms Choy engage in verbal communication with staff and said that everyone in the team was comfortable having conversations.
·I outlined that Ms Choy was not an active participant in team meetings and appeared not to be fully engaged. I was also concerned that Ms Choy was not demonstrating an awareness of the risk issues in the HES and sharing them with colleagues.
Workload
·I outlined that Ms Choy had difficulty in undertaking multiple tasks at any one time and also appeared unable to prioritise her workload. I outlined my expectation that a HEW 10 staff member needed to undertake multiple tasks/projects at any one time and needed to prioritise their workload to meet the deadlines.
·Ms Choy said that she was unaware of the above concerns and needed time to reflect and process these matters before responding.
Expectations
·To help resolve the unsatisfactory performance the following expectations were agreed to:
1. When work was allocated to Ms Choy and a colleague, the expectation is that Ms Choy would contribute equally and not simply review. If there were any concerns with achieving this, Ms Choy should escalate the matter to me.
2. Ms Choy will communicate verbally with colleagues including myself rather than sending emails. If Ms Choy has any concerns or issues she will immediately escalate these to the relevant colleague or myself for discussion.
3. At the team meetings Ms Choy will discuss risk issues in HES with the team.
4. When there are multiple and conflicting deadlines Ms Choy will prioritise the work herself. If Ms Choy is unable to do this, she will consider the resource requirements, schedules, risk and personally present this information together with a recommendation to me for discussion.
Other Matters discussed during this meeting
·Ms Choy confirmed that there are no health issues or other matters which are impacting upon her performance.
·In relation to ergonomic assessment of the workstation Ms Choy confirmed HSE have addressed all matters.
·I was concerned that Ms Choy often refers to how she operated with previous employers and she needs to adjust to the culture and expectations at QUT.
·I confirmed that the performance issues raised above relate to Ms Choy’s performance and are not a wider team issue.
·Ms Choy was reminded of the free and confidential counselling and support provided by the University’s provider Assure Programs.
·It was agreed that we would meet again after two working weeks to discuss Ms Choy’s progress against the above expectations. It would be a matter for Ms Choy and me respectively, if we wished the support person or HR to be present.
5. Response by Ms Choy
Subsequent to the 31 March 2017 meeting, Ms Choy took authorised leave from 4 April 2017 to 21 April 2017. A meeting was scheduled on 8 May 2017 to discuss the progress and provide Ms Choy an opportunity to respond and complete final probation review.
However, this meeting was unable to be progressed because Ms Choy commenced a grievance process on 4 May 2017, which included allegations of bullying against me. The grievance process has delayed the final probation review meeting as the Phase 1 conciliation did not occur until Thursday, 1 June 2017.
As you are aware, the Final Probation Review should be undertaken at least one (1) month before the end of the probationary period in accordance with clause 52.2.3 of the Enterprise Agreement. This means that the meeting should have occurred by 12 May 2017.
Prior to my performance meeting with Ms Choy on 31 March 2017 to identify and discuss issues of her unsatisfactory performance, Ms Choy did not appear to have any concerns with my management of her or the team. Ms Choy certainly did not raise these issues with me. These issues were only raised four (4) weeks after my initial meeting with Ms Choy.
Ms Choy communicated her view at the conciliation meeting that she is unaware of the nature of the unsatisfactory performance issues that I have with her and cannot therefore respond to my concerns. Ms Choy was also invited to make written submissions regarding my performance concerns but has indicated that she is unable to do so in the time available because of a re-occurrence of an injury. Enclosed is an email chain between Mr Lovi and Ms Choy.
6. Final Probation Review on 8 June 2017 (tentative)
A final Probation Review meeting was tentatively scheduled for Thursday, 8 June 2017 at 3.00pm with Ms Choy. Ms Choy indicated that she was not going to attend this meeting. Ms Choy subsequently submitted a sick certification from 7 June to 9 June 2017 inclusive.
As Ms Choy is absent from the workplace, she was not able to sign a copy of this memorandum as evidence of having sighted it as outlined in the Enterprise Agreement. I have attached a copy of the email where I have forwarded a copy of this email to Ms Choy.
Since I raised my performance concerns with Ms Choy on 31 March 2017 I have not seen any significant improvement in Ms Choy’s performance. In many respects it has deteriorated to the point that she does not effectively engage with me in any meaningful way.
I have made all reasonable attempts to comply with the provisions of the Enterprise Agreement regarding Ms Choy’s probation period but believe Ms Choy’s actions have prevented this from occurring.
7. Support
Throughout this process Ms Choy has been advised of the Employee Assistance Program – Assure Programs, which provides free and confidential support and counselling to QUT staff. Further Ms Choy has always been advised that she may bring a support person to performance and probationary meetings.
8. Conclusion
Ms Choy has not adequately addressed the performance concerns and her performance remains unsatisfactory. For this reason I recommend termination of the probationary appointment.
If this recommendation is accepted, due to the sensitive and confidential nature of the work undertaken by ARMS, I recommend that Ms Choy's access to all QUT systems and ARMS premises be removed immediately upon termination of employment.”
On 9 June 2017, Ms Bunning sent a Show Cause Letter to the applicant asking for her response as to why she ought not to have her employment terminated. Such Show Cause Letter was as follows: [4]
“9 June 2017
Ms Susann Choy
Senior Consultant. Risk Management
Assurance and Risk Management Services
By email: [email address omitted]
[email address omitted]
[4] See annexure A95 to Choy affidavit filed on 4 June 2018 at p. 264.
Dear Ms Choy
I refer to the attached memorandum from Ms Seema Patel, Director, Assurance and Risk Management Services recommending the termination of your probationary appointment (copy attached). I note that a copy of this memorandum was forwarded to you by Ms Patel yesterday.
In accordance with the Enterprise Agreement (Professional Staff) 2014-2017 (Enterprise Agreement) you may submit a case to me as to why the recommendation to terminate your probationary appointment should not be approved. Any submission must be received by me within five (5) working days from the date you receive this letter. Attached is a copy of the relevant provisions of the Enterprise Agreement.
I will consider the merits of the material submitted to me and will consult with you and Ms Patel before making my decision. A written decision will be made by me and forwarded to you within ten (10) working days from the date your submission is due to me.
Your probationary appointment was due to expire on 12 June 2017. It is not necessary for a probationary decision to be made within the probationary period, but it is obviously desirable that this occur. In my letter to you on 23 May 2017 I offered you an opportunity to extend the probationary period by four (4) weeks to enable further time for you to address the performance concerns and for additional discussions to take place between you and Ms Patel. You declined this offer.
I note that you had a period of approved leave from 4 April to 21 April 2017 being a total of 12 working days (excluding public holidays). This is an extended period of leave given the timing of the leave and the circumstances of the performance discussions. Accordingly, in accordance with clause 52. 1.5 of the Enterprise Agreement I have determined that your probation period was suspended for this time. Your twelve month probationary period will therefore end on 28 June 2017. This ensures you have an adequate opportunity to respond to the recommendation and for a decision to be made within the probationary period.
I appreciate that this may be a difficult time for you and I remind you of the free and confidential counselling and support service provided by Assure Programs (1800 808 374).
Yours sincerely
Nicole Bunning
Director, Human Resources”
The applicant’s responses to Ms Patel’s recommendation for termination letter of 8 June 2017 were of two parts, both dated 20 June 2017. Such responses were as follows: [5]
[5] See annexure A108 to Choy affidavit filed on 4 June 2018 at p. 301.
“20 June 2017
Ms Nicole Bunning
Director, Human Resources
Dear Ms Bunning
1. I refer to your letter dated 9 June 2017 and attach herewith my submission as to why Ms Patel’s recommendation to terminate my probationary appointment should not be approved.
2. You advised that you have suspended my probation by deeming that the period of leave I took between 4 April 2017 to 21 April 2017 as extended leave “given the timing of the leave and the circumstances of the performance discussions”. I advise as follows:
a. I was on unplanned sick leave from 4 April 2017 to 7 April 2017.
b. From 10 April 2017 to 21 April 2017 I was on recreational leave which was preapproved by Ms Patel in January 2017 and formally approved in StaffConnect in February 2017. This period of leave is not associated with the circumstances of the performance discussions in any way as Ms Patel first notified me of the performance issues only on 21 March 2017.
c. As an employee of QUT, I would be obliged if you could specify in writing my rights and the procedures to follow to request for the removal of my recreation leave period as suspended probation under clause 52.1.5 of the Enterprise Agreement (Professional Staff) 2014 – 2017 (Enterprise Agreement).
3. There is no provision in my contract of employment (contract) to extend my probation. The probation period stated in my contract is 12 months. The contract states that the Enterprise Agreement does not form part of my contract. I have sought legal advice on this matter and would be obliged if you can advise on the following:
a. Whether you are aware, at the time you issued your letter dated 9 June 2017, that my contract stipulates 12 months as the probation period, subject to certain condition.
b. Whether you are aware, at the time you issued your letter dated 9 June 2017, that the Enterprise Agreement does not form part of my contract.
c. Please specify the statutory, regulatory, workplace law or workplace instrument you are relying on to extend my probation period, excluding the Enterprise agreement.
In view of the possibility that you may accept Ms Patel’s recommendation to terminate my probation I would be obliged that you provide the responses to my queries by close of business tomorrow and before the consultation meeting, so that I can seek legal advice on this matter in connection with my workplace rights.
Yours sincerely
Susann Choy
Senior Consultant, Risk Management
Assurance and Risk Management Services”
“20 June 2017
To: Nicole Bunning, Director, Human Resources
From: Susann Choy, Senior Consultant, Risk Management
Submission for: Rejection of the recommendation to terminate my probationary appointment
1. This submission is in response to your letter dated 9 June 2017 as to why Ms Patel's recommendation to terminate my probationary appointment should not be approved.
2. I submit that the recommendation from Ms Patel to terminate my probationary appointment cannot and should not be approved until and unless my grievance in regards to Ms Patel’s conduct and behaviour has been thoroughly, independently and fairly investigated, and finalised.
3. I have advised you, in a separate correspondence dated 20 June 2017, that the First Level of the grievance proceedings in relation to my complaint against Ms Patel has not been resolved.
4. Ms Patel is not just my supervisor but she is a senior staff member of QUT who occupies a position of trust as the Director of Assurance and Risk Management Services.
5. My allegations of Ms Patel's inappropriate and unreasonable conduct include:
a. bullying
b. intimidation
c. victimisation
d. dishonesty
e. disrespectful
f. use of offensive language including the f*** word
g. abuse of power
h. failing to create a fair and just working environment
i. failing to provide a safe working environment that complies with workplace health and safety obligations
6. For example, this is a record from one of my detailed file notes of a meeting with Ms Patel on 3 November 2016: “I felt that Ms Patel was getting agitated as I was asking a number a lot of questions. When I asked if there is a process for categorisation of compliance risks, Ms Patel became really agitated and said, “you can’t put every f*****g in a risk management framework”….if I have a lot of dopeys”.” Her swearing and inappropriate use of language contradicts her response at the conciliation meeting that she always behaves and speaks respectfully and professionally.
7. My allegations of Ms Patel's inappropriate and unreasonable conduct are so significant that, if found to be valid and true, represent significant breaches of policy B/8.1 QUT Staff Code of Conduct.
8. My allegations of Ms Patel's inappropriate and unreasonable conduct are so significant that, if found to be valid and true, could represent serious misconduct resulting in termination without notice, according to policy B/8.5 Disciplinary action for misconduct and serious misconduct - senior staff and may have to be dealt with in accordance with clause 54.3.1 of the Enterprise Agreement (Professional Staff) 2014 – 2017.
9. My allegations of Ms Patel's inappropriate and unreasonable conduct are so significant that, if found to be valid and true, represent the ultimate betrayal of trust between a supervisor and her staff where not only did Ms Patel failed to create a fair and just working environment, she purposely created an environment that condones harassment and victimisation.
10. If my allegations of Ms Patel’s inappropriate and unreasonable conduct are found to be true, her allegations of my performance issues, which I submit remains unsubstantiated to date as no credible, valid or relevant evidence have been provided, would not be legitimate.
11. Both my support person and I are willing to testify under oath of the proceedings that took place at the performance meeting on 31 March 2017. We are both already on record, a number of times with Ms Dieckmann Scott and Mr Lovi, as having rejected the minutes of the performance meeting provided by Ms Patel as inaccurate and presented a distorted view of the proceedings of the meeting.
12. In my complaint letter dated 4 May 2017 to the Vice Chancellor (complaint) I indicated that I was subjected to Ms Patel’s inappropriate and unreasonable behaviours from my commencement of employment with QUT and that I have extensive evidence of facts to support my allegations.
13. At the conciliation meeting on 1 June 2017 I verbally confirmed I have only provided some examples of Ms Patel’s inappropriate and unreasonable behaviours, as Ms Dieckmann Scott requested for examples only, and stated that I have many other examples that would clearly show the pattern of Ms Patel’s inappropriate and unreasonable behaviours. It is vital that each and every incident exhibiting Ms Patel’s inappropriate and unreasonable behaviours are considered as part of the grievance proceedings, as stipulated in policy A/6.1 grievance resolution policy clause 6.1.2(i), fourth bullet point, “all relevant submissions and evidence must be considered”.
14. The grievance proceedings have not been finalised. Level 1 proceedings have not concluded. My grievance in regards to the complaint about Ms Patel has not been resolved.
15. The minutes of the conciliation meeting held on 1 June 2017 that was issued by Ms Dieckmann Scott is incomplete and does not accurately represent the proceedings of the meeting.
16. The grievance proceedings were not conducted fairly and failed to satisfy the requirements of the A/6.1 Grievance resolution policy, in particular sections 6.1.2 (g), (h) and (i), for a number of reasons including:
a. All relevant submissions and evidence have not been considered.
b. The principles of natural justice and procedural fairness were not observed in the grievance proceedings.
c. I was not treated impartially in the grievance proceedings.
d. I was not provided with support at all stages of the process.
e. Ms Dieckmann Scott confirmed that, in accordance with QUT’s policy, detailed minutes of the meeting will not be taken. However Ms Dieckmann Scott could not provide a copy of the policy after the meeting.
f. Mr Lovi behaved in a manner towards me that was aggressive, intimidating, threatening and harassing during the conciliation meeting.
g. Mr Lovi’s parting words to me were “no need to adopt that attitude” in response to a legitimate question I asked.
h. In a letter to me subsequent to the conciliation meeting Mr Lovi misrepresented many of the facts that were discussed during the conciliation meeting in his response.
17. I allege that the proceedings at the conciliation meeting on 1 June 2017 failed to satisfy the requirements of the A/6.1 Grievance resolution policy, in particular sections 6.1.2 (g), (h) where:
a. Ms Patel provided stock standard responses to each of my allegations that she “respectfully disagreed” with each of the “issues of concern”. However, when I questioned Ms Patel on the specific facts of the “issues of concern” that she disagreed with, she admitted that she could not remember the incidents or did not understand what I have wrote, in spite of the fact she confirmed she has read all the documentation I provided for the meeting. Ms Patel did not make any attempt to question or clarify the facts that she could not remember before providing the opening response that she disagreed with my allegations.
i. I submit that it is preposterous for Ms Patel to disagree with incidents she cannot remember or does not understand.
ii. Ms Dieckmann Scott stated that Ms Patel’s response would still be the same even if she had read the documents.
iii. Ms Dieckmann Scott stated that I provided the documents very late. I advised Ms Dieckmann Scott she requested the documents very late.
iv. Ms Dieckmann Scott did not act as an impartial conciliator.
v. On many occasions Ms Dieckmann Scott was responding on behalf of Ms Patel rather than reading Ms Patel’s responses from the notes Ms Dieckmann Scott had with her.
vi. Ms Patel effectively had two support persons at the conciliation meeting.
18. In regards to Ms Patel’s memorandum dated 8 June 2017 (memorandum) recommending the termination of my probation, I submit as follows:
a. Ms Patel’s statement in paragraph 3 that “… with reference to the technical skills of the role” is incorrect and inaccurate. At my performance meeting in January 2017 Ms Patel advised me and clearly documented in my Performance Planning and Review (PPR) document that my performance is “overall good performance”, with no limitation of scope to just the technical component of my role.
b. I dispute the accuracy of paragraph 4 and advise that the performance meeting was not conducted with procedural fairness, as detailed in my complaint. To date Ms Dieckmann Scott has assessed that some components of my complaint were deemed to be procedurally fair but no assessment has been made on the other elements of my allegations of absence of procedural fairness.
c. In paragraph 5 of the memorandum Ms Patel stated that I did not appear to have any concerns with her management style and only raised the issue four weeks after her initial meeting with me.
i. As you are aware I was on unplanned sick leave from 4 April to 7 April 2017 followed by preapproved recreation leave from 10 April to 21 April 2017.
ii. Ms Patel issued the minutes of the performance meeting on 3 April 2017 at 3:51 PM.
iii. On my return to work on 24 April 2017 I attended to my work matters as a priority and commenced writing my complaint immediately.
iv. As I have indicated to you I need to control the volume of typing/keyboarding work to prevent recurrence of my work related injury. Therefore, my complaint to the Vice Chancellor on 4 May 2017 was the soonest possible time for me to lodge the complaint without sustaining permanent injury to my neck and shoulders. In my complaint I specifically requested for a meeting to disclose additional extensive amount of facts that I can provide to substantiate my allegations of Ms Patel’s inappropriate conduct, as a pain prevention strategy.
v. In my complaint, I stated that the team members exhibit behaviours representing a general fear of reprisal. Just like them, I am also fearful of reprisal action from Ms Patel and Mrs Jacqui Kidd, who appear to control the Assurance and Risk Management Services team.
vi. I attach a copy of my complaint about Mrs Kidd’s recent behaviour, which I allege is disrespectful, rude and inappropriate, and, I allege, the demonstration of a team culture that is so fearful of reprisal action that staff are forced to behave in a manner that contradicts professional and personal ethics, in order not to risk termination from their job while under probation.
vii. That is exactly how I felt, from my commencement of employment at QUT, when I felt I had no choice but to behave in a manner that represents unquestionable loyalty to Ms Patel, even if my professional ethics were compromised. This is the very reason why I did not raise any issues about Ms Patel’s inappropriate and unreasonable conduct, until it became unbearable in March 2017.
viii. I rang Workplace Health and Safety Queensland on 15 March 2017 to complain about Ms Patel’s bullying behaviour. Ms Patel issued her performance notice to me on 21 March 2017.
19. In addition to the finalisation of the grievance proceedings, as a prerequisite prior to consideration of Ms Patel's recommendation to terminate my appointment, the following actions have yet to occur:
a. Ms Patel provides valid, credible and relevant evidence to substantiate her decision that my performance is unsatisfactory for the seven issues she highlighted at the performance meeting on 31 March 2017m as per my repeated requests at the conciliation meeting on 1 June 2017.
b. Ms Patel provides valid, credible and relevant evidence to substantiate her decision that I have not demonstrated satisfactory performance, that she has not seen any significant improvement in my performance and that my performance has deteriorated, as noted in her memorandum dated 8 June 2017 recommending the termination of my appointment.
c. I am provided with sufficient documentary evidence and reasonable time to respond to the performance issues raised by Ms Patel. On 16 May 2017 I advised Ms Patel I am ready to respond to the performance issues she raised on 31 March 2017 and Ms Patel advised she will get back to me but to date she has never done so.
d. Arrangements for a follow up meeting for Ms Patel to provide feedback on performance issues to be discussed, confirmed and held.
e. Arrangements for a final probation meeting to be discussed, confirmed and held.
f. Detailed and accurate minutes of the final probation meeting to be recorded and confirmed as accurate and correct.
20. I submit that the actions noted in paragraph above remains unresolved or incomplete and therefore the recommendation from Ms Patel to terminate my probationary appointment cannot be approved.
21. I submit that the acceptance of the recommendation from Ms Patel to terminate my probationary appointment without having completed the actions outlined above represent a major denial of my right to be treated in a fair, just and respectful manner.
22. Please advise the outcome of your decision.”
The applicant also sent to Ms Bunning a letter dated 20 June 2020 which made two further grievance complaints about the conduct of Mr Lovi and another colleague called Ms Dieckmann-Scott concerning their involvement in the “conciliation proceedings” concerning the applicant’s initial grievance complaint against Ms Patel. The Court deals with such issue later in this judgment.
The letter of termination which was sent to the applicant was under the hand of Ms Bunning and was dated 26 June 2017. It provided as follows: [6]
[6] See Annexure NB-29 to Bunning Affidavit filed on 5 July 2018 at p. 187 – 191 inclusive
(‘Bunning Affidavit’).
“Dear Ms Choy,
Decision in relation to your employment
I refer to recent correspondence, including my letter to you of 9 June 2017.
As you are aware from that correspondence, your direct supervisor Ms Seema Patel (Director, Assurance and Risk Management Services) has recommended the termination of your probationary appointment on the grounds that you have not demonstrated satisfactory performance. Ms Patel's recommendation is set out in a memorandum to me dated 8 June 2017 which was provided to you by Ms Patel on 8 June 2017.
In accordance with clause 52.2.4 of the Enterprise Agreement (Professional Staff) 2014-2017 (Enterprise Agreement), on 9 June 2017 I provided you with an opportunity to provide a response, within five working days, as to why the recommendation to terminate your probationary appointment should not be approved. On 15 June 2017 you requested an extension of time until 20 June 2017 to provide your response, which I approved later that day. On 20 June 2017, I received your written response.
I had a meeting scheduled with you on Monday 26 June 2017, which had been rescheduled from the week before at your request. The purpose of that meeting was to consult with you further prior to making my decision to accept or reject Ms Patel's recommendation. On 26 June 2017 you notified me that you were unable to attend our meeting due to ill health.
In my correspondence dated 22 June 2017 I advised that if you were not able to attend the meeting scheduled for 26 June 2017 I would be required to proceed with making my decision based on the material available to me. I have now done so in accordance with the clause 52.2.4 of the Enterprise Agreement.
Materials considered
In making my decision, I have had regard to all of the information available to me, including but not limited to:
·Notes from meeting on 31 March 2017 dated 3 April 2017;
·Letter from you to the Vice-Chancellor dated 4 May 2017 lodging a complaint against Ms Patel (including attachments);
·Letter from Shard Lorenzo, University Registrar to you dated 9 May 2017 regarding your complaint;
·Letter from you to Ms Lorenzo dated 10 May 2017 regarding your complaint;
·Letter from myself to you dated 23 May 2017 regarding your performance concerns and your probation period;
·Correspondence I exchanged with you between 23 May 2017 and 29 May 2017;
·Email from you to Ms Catrina Dieckmann Scott dated 31 May 2017 (including attached information/examples of concerns and supporting documents);
·Correspondence between you and Mr Lovi between 2 June 2017 and 7 June 2017 regarding the performance concerns;
·Memorandum from Ms Patel to myself dated 8 June 2017 recommending the termination of your probationary appointment
·Letter from myself to you dated 9 June 2017 about your probation period and requesting your response to the recommendation to terminate your employment;
·Letter from you to myself dated 20 June 2017 regarding the unresolved grievance;
·Letter from you to myself dated 20 June 2017 raising a complaint regarding Mr Brian Lovi and Ms Catrina Dieckmann Scott;
·Letter from you to myself dated 20 June 2017 regarding your written response to the recommendation to terminate your employment; and
·Letter from you to the Vice-Chancellor dated 20 June 2017 lodging a grievance against Mrs Jacqui Kidd.
Having considered all relevant material, I believe I have before me sufficient information to make a decision whether to accept or reject the recommendation of Ms Patel regarding your probationary appointment.
Relevant background and consideration
I have summarised the relevant background and my consideration (as relevant) below.
On 21 March 2017, Ms Patel raised concerns about your performance in relation to your behaviour, in particular:
·work effectively as part of a team; and
·manage your workload.
These performance concerns were discussed in detail with you during a meeting on 31 March 2017. This meeting was attended by you, Ms Patel, Mr Brian Lovi (Associate Director, HR, Client Services) and Gordon (your support person and former supervisor). During the meeting, Ms Patel discussed the performance concerns with you and provided you with examples. You indicated that you were unaware of the performance concerns and that you required time to reflect on them before providing a response. During this meeting, expectations were agreed to help resolve the performance concerns.
The performance concerns raised in the meeting on 31 March 2017 were serious. During the meeting Ms Patel outlined that she was committed to working with you to address the concerns and that if they were not addressed she would not recommend that your probationary appointment be confirmed. This is reflected in Ms Patel's notes of the meeting, which were sent to you on 3 April 2017.
Ms Patel and Mr Lovi have confirmed that the minutes of the meeting on 31 March 2017 reflect their recollection of the meeting. I have noted your advice that you do not accept the minutes of the meeting are accurate and that you consider the minutes present a 'distorted view of the proceedings of the meeting'. In particular you have advised that you do not recall Ms Patel advising during the meeting that if the performance concerns were not addressed she would not recommend your probationary appointment be confirmed.
Although you do not recall this matter being discussed in the meeting, I note that from 3 April 2017 you had notice of the seriousness of the performance concerns and that they could result in termination of your probationary appointment.
Subsequent to the meeting, you had four days of unplanned sick leave from 4 April 2017 to 7 April 2017 and following that you took pre-approved recreation leave from 10 April 2017 to 21 April 2017. A follow up meeting was scheduled for 8 May 2017 to provide you with sufficient time to respond to the performance concerns and to discuss your progress against the agreed expectations.
On 4 May 2017 you lodged a complaint with the Vice-Chancellor alleging inappropriate behaviour towards you by Ms Patel. Ms Patel was subsequently advised that you had lodged a grievance about her to the Vice-Chancellor and, as such, the meeting of 8 May 2017 did not proceed and progression of discussions regarding your unsatisfactory performance were put on hold to attempt to resolve your grievance.
Your grievance was dealt with in accordance with the University's policy, ‘B/10.1 Grievance resolution procedures for workplace related grievances and bullying' (Grievance Procedure). On 1 June 2017 a conciliation conference was held between you and Ms Patel in relation to your grievance. The grievance was not resolved at the conciliation conference.
On several occasions, you were informed that Ms Patel was available to meet with you prior to the final review meeting to further discuss the concerns about your performance. You were also offered the opportunity to provide any written submission to Ms Patel regarding the performance concerns prior to the final probation review meeting.
You did not take up the opportunity to discuss the concerns with Ms Patel or provide any written submissions prior to the final probation review meeting, which was scheduled for 8 June 2017. You declined to attend the final probation review meeting and subsequently provided a medical certificate for the period 7 to 9 June 2017. On 8 June 2017 Ms Patel issued the memorandum referred to above, which recommends that I terminate your probationary appointment. A copy of the memorandum was provided to you by Ms Patel on 8 June 2017.
Your probationary appointment was initially due to expire on 12 June 2017. On 23 May 2017 1 provided you with the opportunity to extend the probationary period by four weeks to enable further time for you to address the performance concerns and for additional discussion to take place between you and Ms Patel. You declined this offer.
On 9 June 2017 I wrote to you to inform you that I had decided to extend your probationary period until 28 June 2017 pursuant to clause 52.1.5 of the Enterprise Agreement, on the basis that you took an extended period of leave from 4 April until 21 April 2017. As detailed in my correspondence, although it is not necessary for a probationary decision to be made within the probationary period, it is desirable for this to occur.
In accordance with the Enterprise Agreement you were provided with five working days to provide me with a response to the memorandum. You requested an extension to provide your response to 20 June 2017, which was granted.
On 20 June 2017 you provided a written response regarding Ms Patel's recommendation (of 8 June 2017) that your probationary appointment be terminated.
Just prior to this, also on 20 June 2017, you wrote to me to:
·Advise that you considered that your grievance in relation to Ms Patel was not resolved; and
·Raise a new grievance in relation to Mr Lovi and Ms Dieckmann Scott.
On 20 June 2017 you also wrote to the Vice Chancellor to raise a new grievance in relation to your colleague Mrs Jacqui Kidd. I wrote to you on 22 June 2017 advising you of the processes that would be followed in relation to the three grievances.
Decision
Having considered the above information, my decision is to accept the recommendation from Ms Patel to terminate your probationary appointment because you have not demonstrated satisfactory performance.
The sole reason for my decision is that I am satisfied you have not demonstrated satisfactory performance during your probationary period. My decision has been made within 10 working days of receipt of your submission dated 20 June 2017.
In reaching my decision I have considered your responses in full, including the following matters:
1. I have determined that your performance has not improved since the concerns were raised with you and expectations were set on 31 March 2017.
2. You consider that you have not been provided with sufficient detail of the performance concerns. based on my review of the relevant documents and background, as outlined above, I am of the view that you have been provided with sufficient detail of the performance concerns.
3. I also consider that you have been provided with a sufficient opportunity to respond to and address the performance concerns that have been raised with you. You were notified on several occasions that Ms Patel was available to meet with you to discuss the performance concerns with you. You did not take up this opportunity.
4. You were also offered the opportunity to provide any written submission to Ms Patel regarding the performance concerns prior to the final probation review meeting. You provided a response on 20 June 2017, which, as outlined above, I have fully considered.
5. In the grievances you raised on 20 June 2017 you made reference to the exacerbation of a shoulder injury and advised that this has affected your ability to expand on allegations about Ms Patel as part of the grievance process in relation to her. This injury was also the basis for requesting the extension to provide your response to the memorandum (which was granted). I have noted that the injury has not prevented you from providing a response to the performance issues.
6. You refer to Ms Patel's 'allegations' of performance issues and submit that they remain 'unsubstantiated to date as no credible, valid or relevant evidence [has] been provided'. As your supervisor, Ms Patel is entitled to appraise your work performance and her appraisal is not an 'allegation'. My role in considering Ms Patel's recommendation is to assess whether the performance concerns raised by Ms Patel are reasonable and consistent with her recommendation to terminate your probationary appointment.
7. I have considered your complaint letter dated 4 May 2017 and subsequent information provided to Ms Dieckmann Scott as part of the grievance process. You raise a number of issues in relation to Ms Patel's management of you. It is not necessary for me to make any decision about whether those allegations are substantiated or not. Rather, I must determine whether or not to approve the recommendation based on the merits of the material provided by Ms Patel and you.
8. I note that you consider that the performance concerns that have been raised by Ms Patel are not valid and that you consider that if your allegations against Ms Patel are found to be true, then the performance concerns raised by her cannot be legitimate.
9. I have considered the issues which are the subject of your grievance against Ms Patel. Although I am not required to determine whether these matters are substantiated, I have considered them in detail in the context of whether the performance concerns raised by Ms Patel are legitimate and reasonable. I have concluded that Ms Patel's concerns are legitimate and reasonable. I disagree with your assessment that no credible, valid or relevant evidence has been provided by Ms Patel in relation to the performance concerns.
10. I note your statement that you believe it is vital that each and every incident exhibiting Ms Patel's alleged inappropriate and unreasonable behaviours are considered as part of the grievance process. It is correct, as you have pointed out, that the Grievance Procedure requires that all relevant submissions and evidence must be considered. However, the fact that there is an unresolved grievance process does not prevent me from making a decision whether to approve or reject Ms Patel's recommendation provided I am satisfied that sufficient information is before me to enable me to make that decision. It is not relevant or necessary for me to make a determination regarding your complaints about the manner in which the grievance has been conducted.
11. Further, I have noted that Ms Patel was not aware that you had any issues with her management of you prior to her advising you of the performance issues on 21 March 2017. I have noted this as relevant because it goes to my consideration of whether the performance issues Ms Patel has raised are reasonable. It is clear to me that the issues have not been raised by Ms Patel because of or in response to any complaint you have raised about her. I acknowledge your advice that you contacted Workplace Health and Safety Queensland on 15 March 2017. There is no evidence that Ms Patel (or any other University officer) was aware of this prior to Ms Patel advising you of the performance issues on 21 March 2017.
For all of these reasons, I have decided that it is appropriate to accept Ms Patel's recommendation to terminate your probationary appointment.
In accordance with clause 52.2.5 of the Enterprise Agreement, this letter serves as notice of termination of your employment effective today. You will be paid in lieu of one week's notice. You will also receive payment for any accrued but untaken leave entitlements.
Due to the sensitive and confidential nature of the work undertaken by ARMS, I have determined that your access to QUT's systems and premises will be removed effectively immediately. Please contact my office on [phone number omitted] to arrange for the return of any University property.
I appreciate that this matter has been stressful for you. Accordingly I have arranged for you to have ongoing access to University's confidential counselling service via Assure Programs for a period of six months following termination of your employment.
On behalf of the University I wish you well in your future endeavours.
Yours sincerely
Nicole Bunning
Director, Human Resources”
Agreed Findings of Fact or Conclusions of Law
On 8 May 2019, the parties filed a document entitled “AGREED FINDINGS OF FACT OR CONCLUSIONS OF LAW”. That document relevantly provided as follows:
“AGREED FINDINGS OF FACT OR CONCLUSIONS OF LAW
1. With respect to each of the alleged contraventions of the general protection provisions, the Applicant must establish each of three elements:
a. element 1: the Applicant exercised, proposed to exercise, or was prevented from exercising a workplace right within the scope of section 341 of the FWA
b. element 2: the conduct the Applicant alleges was taken (or not taken) by the Respondent in fact occurred and constitutes adverse action within the definition in section 342 of the FWA
c. element 3: the alleged proscribed reason for the Respondent’s conduct falls within the categories of prohibited reasons in section 340 of the FWA
2. If the elements referred to in the immediately preceding paragraph are established, a reverse onus applies in the Respondent is required to establish the alleged action was not taken for the prohibited reason, giving rise to the following issues:
a. an issue of fact as to why the adverse action was taken
b. an issue of law as to whether or not the action was taken is substantially or operatively because of a prohibited reason (or reasons including a prohibited reason)
3. an issue of law as to whether or not the action was taken is substantially or operatively because of a prohibited reason (or reasons including a prohibited reason)
a. Work Injury on 27 February 2017
b. Paid Personal Leave taken from 4 to 7 April 2017
c. Paid Annual Leave Taken from 10 to 21 April 2017
d. Grievance lodged on 4 May 2017
e. Eight Employment Complaint And/or Inquiry on 20 June 2017
4. The following ten instances of conduct allegedly taken or not taken by the Respondent (described by the Applicant as adverse actions) were conduct that occurred: Performance Notice, Performance Meeting, Performance Issues, Dismissal Threat, Failure to Hold FPRM, Proposed Dismissal, Show Cause Letter, Dismissal, Minimum Notice Not Met and Probation Extension.
5. The following four instances of conduct allegedly taken or not taken by the Respondent were adverse actions: Proposed Dismissal, Show Cause Letter, Dismissal and Minimum Notice Not Met.
6. All the Applicant’s allegations of the Respondent’s alleged conduct and alleged proscribed reason (or at least one of the alleged proscribed reasons) for that conduct falls within the categories of prohibited grounds in section 340 of the FWA.
7. Although the phrase ‘in relation to’ has been interpreted broadly, there must be a nexus to the person’s employment, and the complaint or inquiry must be about the person’s employment, or about matters that may prejudice them in the employment.
8. For a complaint to fall within the scope of section 341(1)(c)(ii) of the FWA, it must be in relation to their employment.
9. For a complaint to fall within the scope of section 341(1)(c)(ii) of the FWA, it must convey a grievance, finding of fault or accusation.
10. The Applicant had relevant duties and a workplace right under the Work Health and Safety Act 2001.
11. The Enterprise Agreement is a ‘workplace instrument’ under provisions of section 341 of the FWA.
12.The Applicant did not make a formal request to work flexible hours arrangement or exercise a workplace right under section 65 of the FWA.
13. The Applicant must establish alleged adverse action of a kind prohibited by section 342 of the FWA.
14. Adverse action under section 342(1)1(c) of the FWA extends to ‘any adverse affection of, or deterioration in, the advantages enjoyed by the employee’. To establish this kind of adverse action, the Applicant must prove that she was in a worse position in her employment after the action than before it, and that there was an alteration to her position that is ‘real and substantial’ rather than just ‘merely possible or hypothetical’.
15. The word discriminate is not defined in the FWA and therefore is given its ordinary meaning. To establish adverse action under 342(1)1(d) of the FWA the element of intent is central, and the discrimination ‘involves an employer deliberately treating an employee, or group of employees, less favourably than others of its employees’.
16. The Respondent is required to establish the alleged adverse action was not taken for the alleged prohibited reason, and the central question is ‘why was the adverse action taken, and was it taken for a prohibited reason or reasons including a prohibited reason?’
17. The Respondent is not required to entirely disassociate the adverse action from the prohibited reason, and the relevant threshold is whether or not a prohibited reason was a substantial and operative reason for taking of the action.
18. In determining whether or not an action was taken (or not taken) for a prohibited reason, or for reasons that included a prohibited reason, the Court is to have regard to direct evidence of the decision-maker as to the state of mind, intent or purpose as at the relevant time.
19. The termination of the Applicant’s appointment is adverse action under section 342(1)1(a) of the FWA.
20. Adverse action under section 342(1)1(a) of the FWA applies where an employee is dismissed by the employer.
21. Adverse action under section 342(1)1(c) of the FWA is broader than section 341(1)1(b) and extends to ‘any adverse affection of, or deterioration in, the advantages enjoyed by the employee’, and the Applicant must prove as a matter of fact that prejudice was suffered.”
Workplace Rights Claims
The applicant’s workplace rights claims fell into a number of categories as follows:
i)Alleged exercise of the right to make a complaint or inquiry under s. 341(1)(c)(ii) of the FWA;
ii)Alleged exercise of a right to work in a safe environment;
iii)Alleged workplace right to work flexible hours and take long lunch breaks; and
iv)Those workplace rights as set out in paragraphs 2, 12, 13, 14 and 15 of Table 1 in Exhibit 3 which were conceded by the respondent as having been exercised.
Category 1 - Alleged exercise of the right to make a complaint or inquiry under s. 341(1)(c)(ii) of the FWA
a)Section 341 of the FWA relevantly provided as follows:
“Section 341 – Meaning of a workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee – in relation to his or her employment.
Meaning of process or proceedings under a workplace law or workplace instrument
(2) Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a) a conference conducted or hearing held by the FWC;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f) appointing, or terminating the appointment of, a bargaining representative;
(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer’s leave;
(i) making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);
(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k) any other process or proceedings under a workplace law or workplace instrument.
Prospective employees taken to have workplace rights
(3) A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.
Note: Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.
Exceptions relating to prospective employees
(4) Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earning.
(5) Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2-8 or 6-3A (which deal with transfer of business).”
b)A complaint or inquiry is not made under s. 341(1)(c)(ii) of the FWA if the communication conveyed by an employee in relation to their employment is in the nature of a mere observation or assertion without more. [7] The relevant communication must convey a grievance, an accusation of fault, or a declaration of fault. [8] It has been held that conversations or banter which form an everyday or ordinary incident of employment do not necessarily constitute a grievance, a finding of fault, or an accusation of wrongdoing. [9] A complaint or inquiry is something over and above mere comment or observation about a particular fact or circumstance. Mere commentary as to work practice, without the making of a complaint suggestive of such practice adversely affecting an employee, to their detriment, will not suffice.
[7] Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 at [30] (‘Shea’).
[8] Shea at [29].
[9] Maxutova v Nunn Media Pty Ltd [2017] FCCA 2336 at [102].
c)As to paragraphs 1, 3, 4, 8, 9, 10 and 11 of Table 1 of Exhibit 3, the applicant relied upon the content of emails sent by her to Ms Patel and one Ms Brooks as evidence of complaints or inquiries made under s. 341(1)(c)(ii) of the FWA. [10] The content of those emails, however, did not constitute the making of either complaints or inquiries. They did not constitute the lodging of a grievance, an asserted finding of fault, or an accusation of wrongdoing. To the extent that the emails raised issues concerning ARMS’ risk reporting procedures, they constituted the usual type of reporting or observation which an employee might make in the ordinary course of their employment in an endeavour to improve upon existing practices or procedures. The Court makes the same findings in respect of the claim recorded at paragraph 5 of Table 1 of Exhibit 3, such claim being that at a team meeting on 1 March 2017, the applicant made an inquiry about her employment.
[10] See, for example, paragraphs [131] – [143] of, and Annexure A 5 to, Choy Affidavit filed on 4
June 2018 at p. 013. (The annexure did not include the recommendations made by the applicant which were said to have been attached to such email.)
d)The Court adopts the respondent’s categorisation of the content of such emails and alleged inquiry as follows: [11]
[11] Respondent’s written submissions filed on 15 September 2020 at [57](a) – (d).
“(a)merely observations, comments and questions about the Applicant's work;
(b) a normal incident of the Applicant's employment and were not founded on a source of an entitlement (instrumental or otherwise), but rather were statements made in the ordinary course of the Applicant's duties;
(c) did not have any implications for the Applicant's rights and obligations and could not prejudice the Applicant in her employment; and
(d) when interpreted according to their ordinary meaning, do not, in fact, convey the meaning or purpose which the Applicant alleges in her Application or Outline.”
e)For the purposes of the Category 1 claims, the Court, having read and considered the submissions of both the applicant and the respondent, and pursuant to the provisions of s. 3(2)(a) and (b) of the Federal Circuit Court of Australia Act 1999 (Cth), adopts as factually and legally correct, and incorporates into this judgment, the contents of paragraphs 59 – 80 inclusive of the respondent’s submissions, filed on 15 September 2020, as to each of paragraphs 1, 3, 4, 5, 8, 9, 10 and 11 of Table 1 in Exhibit 3 as follows:
“WR-1
59. WR 1 relates to an alleged complaint by the Applicant to Ms Patel via emails and a conversation on 8 February 2017 about the Applicant's inability to perform risk management work due to the inefficient and time consuming follow-up audit process.[12]
[12] Applicant’s Outline [9]; Applicant’s First Affidavit, [131], [136] – [139].
60. The emails and the contemporaneous file note of conversation clearly do not include anything that resembles a complaint within the meaning of s 341(1)(c)(ii) of the FW Act.
61. The Applicant clarified during oral evidence that WR-1 only related to the conversation.[13] The file note relevantly states 'I said I have no issue with the work to be done but it's a matter of priorities.'[14] The conversation is better described as the Applicant asking which of her work items take priority,[15] and Ms Patel listening to her concerns regarding work priorities.[16] This is so clearly the case that His Honour pointed out such a fact on multiple occasions in pre-emption of the Respondent's cross examination of the Applicant.[17]
[13] Transcript 16 May 2019, P-61 [46] – P-62 [9].
[14] Applicant's First Affidavit, [139] – [143], Exhibit A3.
[15] The Respondent also notes that such an email is written contemporaneous evidence of the
Applicant’s inability to take initiative and prioritise work for herself – which was one of the performance concerns raised by Ms Patel.
[16] Transcript 16 May 2019 P-64 [42] – P-66.
[17] Transcript 16 May 2019, P-56 – P-59.
WR-3
62. The Applicant alleges that she implicitly attributes the cause of her Work Injury (WR-2) to Ms Patel in an email dated 27 February 2017. The part of the email which allegedly constitutes the complaint is as follows:
There was no noticeable impact from the use of that keyboard at that time but continued exposure definitely contributed to current situation.[18]
[18] Transcript 16 May 2019, P-73 [37] – P-74 [8].
63. The Respondent submits that this is not and cannot constitute a complaint. The Applicant requested additional ergonomic equipment, being a mouse and keyboard, which were provided to the Applicant and improved her pain at the time.[19]
[19] Transcript 16 May 2019, P-79.
WR-4, WR-5, WR-10 and WR-11 (regarding the risk rating report)
64. The Applicant alleges that WR-4, WR-5, WR-10 and WR-11, which all relate to interactions with Ms Patel regarding the risk report 'errors' were exercises of workplace rights.
65. Ms Patel provides evidence which clearly explains the risk rating process, the process in place to deal with the errors in the risk ratings by the FIDs. The evidence indicates that the errors were a known part of the ARMS risk rating process and that there was a documented and reported continuous improvement process in place to deal with the errors.[20]
[20] Patel Affidavit filed on 4 July 2018 (‘Patel Affidavit’), [23] – [29], [49] – [53].
66. The Applicant's email to Ms Patel on 27 February 2017 (WR-4) states:
Dear Seema and Jacqui
As you are aware, a number of errors in risk rating were noted from my review of the 2016 RAW. Similar errors were also noted last year from the memos issued.
For example, below is last year's RAW for DAS. The ratings for items highlighted in yellow should be Low. However we reported to ARMC as Medium.
Please confirm I will be reporting risk ratings on the same basis – using the ratings in the RAWs received and ignore the errors in risk rating?[21]
67. The Applicant conceded under cross examination that this email was merely a query including a request for instructions.[22]
68. The Applicant raised her query as set out in her email of 27 February 2017 (being WR-4) during a team meeting on 1 March 2017 (WR-5).[23] Ms Patel answered the Applicant's query and confirmed that the report should be 'based on what management gives us, because that's their risk assessment'.[24]
69. The Applicant also alleges that her email dated 17 March 2017 (WR-10) was a complaint, particularly the following:
As requested, I have reported the risk status using ratings in the worksheets submitted by the faculties, institute and divisions. Just so you are aware, I did a quick check and noted there are possibly errors in the ratings, which represents17 per cent of the reported risk.[25]
[21] Applicant’s First Affidavit, Exhibit A1 (Page 3 – 5).
[22] Transcript 17 May 2019, P-112 [1] – [14].
[23] The exchange is contained in Transcript ‘A304 – Team Meeting’ of 1 March 2017 contained in
Exhibit 1 (Respondent’s Documents for Witness Examination), Tab 11, Page 35, [16] to Page 37, [9].
[24] Transcript ‘A304 – Team Meeting’ of 1 March 2017 contained in Exhibit 1 (Respondent’s
Documents for Witness Examination), Tab 11, Page 36, Ln 37 – 39; Transcript 17 May 2019, P-117 [19] – [20].
[25] Transcript 17 May 2019, P-137 [38] – [44].
70. The second email on 17 March 2017 (WR-11) contained suggestions about continuous improvement.[26]
[26] Applicant’s First Affidavit, Exhibit A1.
71. Whilst the final email (WR-11) did contain a reference to Ms Patel's behaviour towards the Applicant, this does not, in itself, elevate that email to an exercise of a workplace right.
72. Critically, as conceded by the Applicant, the various emails do not identify who made the errors or suggest what should be done about the errors.[27] They do not either expressly or implicitly, include any allegation of fault or accusation towards Ms Patel. Ms Patel denies that she considered these emails to be a direct criticism of her.[28]
73. The emails are merely back and forth ordinary workplace correspondence about an ordinary risk rating process that is completed by the ARMS team every year. The errors and suggestions included in the emails was consistent with the continuous improvement process and the information reported back to the FIDs and in the ARMS Annual Report.[29]
74. For the Applicant to insist that these emails are “complaints” and exercises of her workplace rights is a reinvention of history and simply not sustainable on the face of the documents. Further, it is confirmation that the “issue” with the risk ratings is one that has significance only in the perception of the Applicant and that perception does not accord with the facts.
75. Ultimately, the emails do not meet the threshold for a complaint under s 341(1)(c)(ii) of the FW Act.
WR-8
76. WR-8 relates to an email exchange between the Applicant and Ms Patel on 15 March 2017[30] relating to work priorities and the difficulties the Applicant was experiencing in completing a review of an investigation file.
77. The Applicant raised issues with ARMS process and how this was taking longer than expected (ie that it is 'a highly manual process'). Ms Patel responded concurring that the task was taking longer than she thought it would and offered another staff member to assist the Applicant if required and the Applicant informed Ms Patel that she did not need assistance.[31] Ms Patel responded, 'Thank you'.
78. This is merely ordinary workplace interaction, including a query regarding work priorities, with no grievance, finding of fault or accusation. It simply cannot be a complaint.
WR-9
79. The Applicant alleges that the following email, which was sent in response to another ARMS team member (Christopher Brooks) was a complaint about her employment:
[27] Transcript 17 May 2019, P-138 [24] – [28].
[28] Patel Affidavit, [53].
[29] Patel Affidavit, [27] – [29], [50] – [53], [61] – [66]; Transcript 17 May 2019, P-157 – P-160.
[30] Applicant’s First Affidavit, Pages 110 to 111 (Exhibit A28.1).
[31] Patel Affidavit, [57] – [58].
Hi Chris
Happy to provide some input. I think the comments would only be value adding if made in the context of QUT's environment and as I have not had any exposure to nor involvement in QUT's payroll processes to understand the roles and environment could you fill me in so that I can apply the knowledge before providing any comments.[32]
80. The email is clearly not a complaint. It does not convey the meaning that the Applicant contends. It was a request for information from the Applicant which sent to another team member expressing nothing even suggestive of a grievance, finding of fault or accusation.”
[32] Applicant’s First Affidavit, Page 172 (Exhibit A64).
Category 2 – Alleged exercise of a right to work in a safe environment
a)For the purposes of the Category 2 claims, and for the same reasons of expedition as set out in paragraph 16(e) hereof, the Court adopts as factually and legally correct, and incorporates into this judgment, the contents of paragraphs 81 – 85 inclusive of the respondent’s submissions, filed on 15 September 2020, as to each of paragraphs 10 and 11 of Table 1 in Exhibit 3 as follows:
“WR-10 and WR-11
81. The Applicant alleges the two emails she sent to Ms Patel dated 17 March 2017, were an exercise of her ‘right to work in a safe workplace’ pursuant to s 341(1)(a) of the FW Act (in addition to an exercise of her workplace right to make a complaint or inquiry in relation to her employment).[33]
[33] Form 2 at [31]; Applicant’s Outline at [101] – [103], [113].
82. The Respondent accepts that:
(a) as a worker the Applicant had relevant duties under the Work Health and Safety Act 2011 (Qld) (WHS Act); and
(b) as a person who held a duty under work health and safety legislation, the Applicant had a role and responsibility under a workplace law and therefore a workplace right.[34]
83. However, the Applicant's emails to Ms Patel dated 17 March 2017 were not an exercise of this workplace right.
84. The first email the Applicant sent Ms Patel attached a copy of a risk report and noted that the risk status had been reported as requested and that there were possibly errors in 17% of the reported risks.[35] This email was sent in the ordinary course of the Applicant's employment and did not raise any genuine risk or possible risk to the Applicant's health and safety.
85. The second email provided Ms Patel with further details regarding the risk report and raised concerns regarding the way Ms Patel had spoken to her.[36] The Applicant says she sent this email following a conversation with Ms Patel about the alleged reporting errors. However, Ms Patel's conversation with the Applicant was professional and courteous[37] and did not give rise to any genuine risk or possible risk to the Applicant's health and safety.”
b)Further, though the applicant did state in the 17 March 2017 email, sent by her to Ms Patel, that Ms Patel, earlier that morning, “did not seem very happy and (was) upset with my verbal response …”, the email did not, either on its face or contextually, constitute a complaint or inquiry in relation to the applicant’s employment. The applicant’s purpose in sending the email was related to how better risk reporting and recording might best be achieved.
[34] Australian Building and Construction Commissioner v Auimatagi [2017] FCCA 1722, (2017)
FLR 147 at [39] – [40]; upheld in, Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191, (2018) 363 ALR 246 at [61] – [75]; at Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Another v Visy Packaging Pty Ltd and Others (No 3) [2013] FCA 525, (2013) 216 FCR 70 at [10], [132].
[35] Patel Affidavit, Exhibit SP-14 (p 82).
[36] Patel Affidavit, Exhibit SP-15 (p 84).
[37] Patel Affidavit at [63].
Category 3 – Alleged workplace right to work flexible hours and take long lunch breaks
a)The applicant’s claim under this category was set out at paragraphs 43 – 50 of her Form 2 as follows:
“43. I first experienced Ms Patel’s retaliation action on 1 March 2017.
44. On 1 March 2017, sometime after the team meeting, I emailed Ms Patel to ask if I could vary my work hours 40 minutes to start and finish earlier in order to attend a free QUT lecture on 3 March 2017. I did not have any urgent work to complete on 3 March 2017 and there were other staff around between 3:20 PM to 4 PM to cover the office. I did not receive any response from Ms Patel.
45. On 2 March 2017 I went to see Ms Patel to follow up on my query. Ms Patel advised me that the variation in time is not something she would support. She did not provide any further explanation. She did not ask me if I had any urgent work to do to attend to that particular day. She did not raise any issue about staff coverage. As a result I did not attend the free QUT lecture.
46. I was surprised at Ms Patel's response. Prior to this I was advised that all staff can work variable hours, and we did. When I first started work at QUT my colleagues told me that the work hours were flexible as long as the total hours worked met monthly requirements. I had been working on a variable time pattern since starting work at QUT.
47. Ms Patel had previously approved my requests for variation in hours.
48. Under QUT's Enterprise Agreement (Professional Staff) 2014 – 2017 (Enterprise Agreement) I was required to work 145 hours over a 4 week cycle. There is no stipulation of daily work hours for my role.
49. On 8 March 2017 I wrote to Ms Patel to ask about the rules and conditions for variation in work hours, after she advised me of a restriction in meal break hours (explained in paragraph 54 below). Ms Patel said she would get back to me but I did not receive any response to my query subsequently.
50. I allege that Ms Patel denied my access to the benefit of working variable hours because of one or more of the workplace rights I had exercised between 8 February 2017 and 1 March 2017, as noted above, as a retribution against me for exercising my workplace rights.”
b)The Court accepts the evidence of Ms Patel in relation to this claim as set out at paragraphs 81 – 90 inclusive of her affidavit filed on 4 July 2018, the contents of which were as follows:
“81. I attempt to allow my team to have as much flexibility in their working hours as possible, which can be difficult because ARMS is a small team. Throughout her employment I allowed Ms Choy as much flexibility as possible in her working hours. This included, but was not limited to:
a. allowing Ms Choy to start work late;
b. allowing Ms Choy to leave work early;
c. allowing Ms Choy to work from home; and
d. allowing Ms Choy flexibility to attend medical and other appointments during business hours.
82. Attached and marked SP-23 are copies of emails from occasions when Ms Choy was allowed flexible working hours while working in the ARMS team.
83. On 1 March 2017 Ms Choy emailed me asking for a one-off variation of her working hours so that she could attend a QUT lecture on 3 March 2017. A copy of this email is attached and marked SP-24.
84. This was a one off request to attend a lecture during work hours, which as Ms Choy’s supervisor I am required to approve or deny at my discretion. In this instance, I denied this request.
85. At paragraphs 50 and 51 of her Application, Ms Choy alleges that in retaliation for her exercise of workplace rights I refused to allow her variable working hours in relation to her attending the QUT lecture on 3 March 2017.
86. This is alleged to have occurred as a result of exercises of workplace rights by Ms Choy in the form of:
a. complaints made by Ms Choy in relation to having to complete the ‘follow up audit’ on 8 February 2017;
b. steps taken by Ms Choy in relation to the management of her workplace injury on 27 February 2017;
c. ‘complaints’ made by Ms Choy in relation to errors in a risk status report on 27 February 2017;
d. enquiries made by Ms Choy in relation to the due date of an investigation report on 15 March 2017;
e. enquiries made by Ms Choy in relation to an advice on segregation of duties on 16 March 2017; and
f. a complaint made by Ms Choy in relation to my alleged behaviour towards her in relation to errors in the risk status report on 17 March 2017.
87. I deny these allegations. Firstly, the ‘complaints’ or ‘enquiries’ allegedly made in 15, 16 and 17 March 2017 occurred after my response to Ms Choy in relation to attending the lecture.
88. Secondly, as outlined above, I allowed Ms Choy to work variable hours on a number of occasions during the time she was employed in ARMS. Although we are a small team I try to facilitate variable working hours for my employees as often as possible.
89. Ms Choy's request of 1 March 2017 was to enable her to attend a QUT lecture that was of interest to her and which was unrelated to her role at ARMS. In this instance I assessed whether there would be enough team members available during office hours and decided it was necessary to decline Ms Choy's request because I needed to ensure ARMS was properly staffed during office hours.
90. I deny that my refusal to grant Ms Choy's request was because of Ms Choy exercising or proposing to exercise a workplace right. This was not a reason for my decision to decline Ms Choy's request.”
c)As to the applicant’s claim that Ms Patel’s refusal to allow her to attend a lecture on 3 March 2017 was retribution for the applicant’s having sought to exercise workplace rights, Ms Patel first refuted such claims by pointing out that the refusal of the applicant’s request for changed working hours occurred well before the applicant had made any complaint, the complaint having been made on either 15, 16, or 17 March 2017. Secondly, the Court accepts Ms Patel’s evidence that on the particular occasion on which a change in working hours was requested, the request was refused because of the need to have the ARMS office appropriately manned during that period of time. In refusing the applicant’s request, the Court accepted that Ms Patel was acting reasonably in the best interests of the ARMS division of which she was the leader.
d)The respondent accepted that the Enterprise Agreement was a “Workplace Instrument” for the purposes of s. 341(1)(a) of the FWA. The respondent submitted, however, that the applicant’s request for a flexible working arrangement on 3 March 2017 – admitted by the applicant as being a “one-off” request – was not an entitlement under the Enterprise Agreement. Clause 33.1.1 of the Enterprise Agreement relevantly provided as follows:
“33. FLEXIBLE HOURS ARRANGEMENTS
33.1 Definition
33.1.1 These provisions allow for the option of varying existing span of hours working arrangements in response to the operational needs of the organisational unit and/or in response to the needs of staff within it.”
e)Ms Patel was acting well within her authority in refusing the applicant’s request based upon “… the operational needs of the organisational unit…”. There was no evidence adduced by the applicant which suggested that there was no valid basis for Ms Patel making such decision.
f)Section 65 of the FWA was a provision which enabled an employee to request a change in working arrangements. The section relevantly provided as follows:
“Section 65 – Requests for flexible working arrangements
Employee may request change in working arrangements
(1) If:
(a) any of the circumstances referred to in subsection (1A) apply to an employee; and
(underlining added)
(b) the employee would like to change his or her working arrangements because of those circumstances;
then the employee may request the employer for a change in working arrangements relating to those circumstances.
Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.
(1A) The following are the circumstances:
(a) the employee is the parent, or has the responsibility for the care, of a child who is of school age or younger;
(b) the employee is a carer (within the meaning of the Carer Recognition Act 2010);
(c) the employee has a disability;
(d) the employee is 55 or older;
(e) the employee is experiencing violence from a member of the employee’s family;
(f) the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.
(1B) To avoid doubt, and without limiting subsection (1), an employee who:
(a) is a parent, or has responsibility for the care, of a child; and
(b) is returning to work after taking leave in relation to the birth or adoption of the child;
may request to work part-time to assist the employee to care for the child.
(2) The employee is not entitled to make the request unless:
(a) for an employee other than a casual employee—the employee has completed at least 12 months of continuous service with the employer immediately before making the request; or
(b) for a casual employee—the employee:
(i) is a long term casual employee of the employer immediately before making the request; and
(ii) has a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
Formal requirements
(3) The request must:
(a) be in writing; and
(b) set out details of the change sought and of the reasons for the change.
Agreeing to the request
(4) The employer must give the employee a written response to the request within 21 days, stating whether the employer grants or refuses the request.
(5) The employer may refuse the request only on reasonable business grounds
(5A) Without limiting what are reasonable business grounds for the purposes of subsection (5), reasonable business grounds include the following:
(a) that the new working arrangements requested by the employee would be too costly for the employer;
(b) that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
(c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
(d) that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;
(e) that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.
(6) If the employer refuses the request, the written response under subsection (4) must include details of the reasons for the refusal.”
g)The applicant’s request for an earlier finish and start time on 3 March 2017 was, as noted earlier, a one-off request to attend a free QUT lecture. [38] The request was, therefore, not because of any of the circumstances as set out in s. 65(1A) of the FWA. There was, accordingly, no entitlement to seek the one-off variation under the FWA. In any event, s. 65(5) provided to the respondent, through Ms Patel, the statutory basis for refusal of the request “on reasonable business grounds”. Ms Patel’s concerns about the ARMS division being fully manned, and her refusal of the request, were reasonable and based on reasonable business grounds.
[38] Annexure SP-24 to Patel Affidavit.
h)As to the applicant’s claims that she had a workplace right to change her working arrangements under either clause 25.1 or clause 36 of the Enterprise Agreement, no such right was demonstrated. Neither such clause entitled the applicant to make the request under the Enterprise Agreement. The Court further accepted the submissions as advanced on behalf of the respondent in that regard.[39] Clause 25.1 and 36 of the Enterprise Agreement relevantly provided as follows:
[39] Respondent’s written submissions filed on 15 September 2020 at paragraphs 90 – 93 inclusive.
“25.1 Professional staff
Full-time staff are appointed to work 145 hours over a four (4) week cycle.
…
36. MEAL BREAKS
No staff member will be required to work more than five (5) consecutive hours without an unpaid meal break of at least thirty (30) minutes. Staff required to work overtime are entitled to be paid the prescribed meal allowance (refer to sub clause 34.7).”
Adverse Action Claims
The circumstances in which a person has taken adverse action against another person were relevantly set out under the provisions of s. 342 of the FWA. The only parts of that provision relevant for present purposes, and the only sections relied upon by the applicant, were ss. 342(1)1.(a) and (b), which relevantly provided as follows:
“Section 342 – Meaning of adverse action
(1) The following table sets out circumstances in which a person take adverse action against another person.
Meaning of adverse action
Item
Column 1
Adverse action is taken by …
Column 2
if …
1
an employer against an employee
the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or”
The respondent conceded that the claims of adverse action having been taken against the applicant, as set out in paragraphs 12, 13, 14 and 15 of Table 2 to Exhibit 3, were established.
For the applicant’s adverse action claims to be proven, the applicant must have asserted, and established, that:
·she exercised a workplace right or rights as pleaded in the Form 2; and
·the conduct complained of in fact occurred; and
·the conduct constituted adverse action pursuant to the provisions of s. 342(1) of the FWA; and
·The adverse action was taken for a prohibited reason.
If it is established by the applicant that the impugned conduct was carried out, it is for the respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason. In that regard, ss. 360 and 361 of the FWA provided as follows:
“Section 360 – Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Section 361 – Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.”
As to the proper approach to be adopted by a court when considering whether adverse action has been established or not, the Court respectfully adopts the principles as set out in the decision of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [5] per French CJ and Crennan J; at [104] and [129] per Gummow and Hayne JJ; and at [140] and [141] per Heydon J where it was respectively said:
“[5] The task of a court in a proceeding alleging a contravention of s 346 is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason. This appeal was concerned with identifying the correct approach to that task.”- at [5] per French CJ and Crennan J
“[104] In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised “a substantial and operative” reason, or reasons including the reason, for the employer’s action and that this action constitutes an “adverse action” within the meaning of s 342.”- at [104] per Gummow and Hayne JJ
“… The test is whether adverse action has been taken because of a proscribed reason.” at [129] per Gummow and Hayne JJ;
“… Examining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action.”- at [140] per Heydon J;
“… The assessment of a witness’s mental processes is an assessment of that witness’s state of mind. It is pre-eminently a matter in which a trial judge has a considerable advantage over an appellant court…” - at [141] per Heydon J.
A causal link must be established between the adverse action the subject of complaint, and the matters referred to in s. 340(1)(a)(i) – (iii) inclusive of the FWA, due to the use of the word “because” in s. 340(1)(a) of the FWA. That issue was dealt with by Foster J in Russel v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 at [60] and [63] where His Honour said:
“[60] The provisions particularly relied upon by the applicant (ss 44, 97, 340, 341, 351 and 352 of the FWA) all use the expression “because” or “because of” as describing the necessary causal link between the adverse action and the relevant prohibited reason for that action.
...
[63] It is not necessary for an applicant to establish that the only reason or the dominant reason that adverse action was taken was a prohibited reason. It is sufficient if the prohibited reason is one of several reasons for the taking of the action although it may be that the prohibited reason must have operated as a substantial and operative factor in the taking of the adverse action.”
The claims made by the applicant as set out in paragraphs 4 – 11 inclusive of Table 2 are without merit. The Court finds that the respondent has rebutted the presumption under s. 361 of the FWA that the alleged adverse actions as set out in paragraphs 4 – 11 inclusive of Table 2 were taken for a prohibited reason.
Show Cause and Dismissal Allegations
The respondent conceded that the recommendation that the applicant’s employment be terminated, and that the applicant be issued with a show cause letter, as respectively set out in paragraphs 12 and 13 of Table 2 in Exhibit 3, constituted adverse action on the part of the respondent. [72] In each case, however, the respondent disputed that such action was taken for a prohibited reason.
[72] See annexure NB-15 to Bunning affidavit filed on 5 July 2018 at pp. 113 – 118 being an email
from Bunning to Choy dated 9 June 2017 attaching Patel letter of recommended dismissal dated 8 June 2017.
The Court accepts the evidence of Ms Patel and Mr Lovi on each of these issues to the extent that their evidence is contradicted by, or is at odds with, that of the applicant. Each of Ms Patel and Mr Lovi presented as honest and truthful witnesses. The applicant was vague and unresponsive to questions asked of her during the course of cross-examination. One such example was as follows: [73]
[73] Transcript Day 2 p. 79.6 – .30.
“MR McKECHNIE: Do you accept on the basis of this email - - -?---Which email?
Sorry?
117?---Yes.
Behind tab 8. That your doctor had indicated that your symptoms had fully resolved at the time?---I don’t know if the word “fully” – you have to show me the – if you can show me what the doctor wrote, because the doctor wrote what I told him and that might not be the actual words. The words might be – I don’t know what it is. I don’t have – it seems okay now. Okay. It seems okay now, rather than “is fully resolved” because I understand the nature of this injury. If I let it rest long enough, then it might go away, but if I keep putting pressure on the hand, then it will take a lot – much longer time before it heal.
Okay. And I don’t want to get bogged down in semantics, but can I summarise. You requested some additional equipment, a mouse and a keyboard, from your employer, didn’t you?---Yes.
They were provided by your employer, weren’t they?---Yes.
And they at least improved your situation with your pain, didn’t they?---At the time.
At that time. Because at that time, at least, your doctor had said that it was resolved?---I don’t know what the doctor said, but, yes, that’s what the email say. I’m not saying – sorry.”
Ms Patel gave clear and concise evidence that from late February / early March 2017 she had become concerned that there had been a deterioration in the applicant’s work performance. Her affidavit evidence reflected that concern as follows: [74]
[74] See paragraphs [46] – [47] and [54] – [56] of Patel affidavit.
“46. On 8 February 2017, shortly after this email exchange, I had a conversation with Ms Choy about how to prioritise her workload. Ms Choy stated that she considered her role was to help the business embed risk management and she was having trouble doing this because she was involved with a follow up audit, which she did not consider to be within her job description. I explained to Ms Choy that she was involved in the follow up audit because of the health and safety risks involved in it. I counselled her to focus on the follow up audit, followed by the BCP review and the feedback on the 5x5 memo.
47. On 9 February 2017 I had a further discussion with Ms Choy to check how she was, as I knew she was not feeling well and was having difficulty with workload. I informed Ms Choy that I was considering hiring someone on a temporary basis to take over the follow up audit. At this stage it was clear to me that Ms Choy did not want to complete the task and, although I did not consider her approach to be reasonable, I was focused on getting the job done.
…
Contact with Human Resources regarding addressing performance issues
54. I recall that sometime towards the end of February, or perhaps early March 2017, I spoke with Brian Lovi, Associate Director of HR Client Services at QUT about Ms Choy. I asked Mr Lovi to assist me in raising the performance concerns I had with Ms Choy as I wanted to make sure that I followed due process and that I did the right thing by Ms Choy in terms of addressing the issues. At some point during our discussions I advised Mr Lovi that we had completed the PPR-PS process and Mr Lovi suggested I send him the relevant documents and that we meet to discuss.
55. Between around 6 and 16 March 2017 I recall speaking with Mr Lovi in relation to my concerns regarding Ms Choy's performance. At 3.57pm on 16 March 2017 we arranged a meeting for 17 March 2017 to discuss the probationary process and the best way for me to go about formally raising my concerns with Ms Choy. Attached and marked SP-11 is a copy of the meeting request I sent to Mr Lovi on 16 March 2017.
56. I then met with Mr Lovi at 1.00pm on 17 March 2017.”
The Court finds that the respondent’s conduct in causing the applicant to be issued with a show cause notice, and the recommendation by Ms Patel that the applicant’s employment be terminated, was not motivated by any prohibited reason. The Court finds that Ms Patel was a hard-working and diligent senior manager who had the best interests of the respondent at heart. The Court further accepts the evidence of Ms Patel that the applicant’s work performance was below par and that she was not a team player. The applicant had difficulty prioritising what work to do from time to time. So much was demonstrated by the applicant sending an email to Ms Patel asking Ms Patel a basic question as to how she might best prioritise her work. Ms Patel’s evidence on point was as follows: [75]
“45. On 8 February 2017 Ms Choy sent me an email in which she asked how I would like her to prioritise meeting with a representative from the Business School regarding risk management. Ms Choy asked me how I would like her to respond to the request 'in terms of work priority' and said that it would take some time. I was surprised by the email as I expected Ms Choy to be in a position to prioritise her own work given her seniority. I responded to the email and asked what other work she was doing. Ms Choy responded with a list of six items she was currently working on. I responded that the follow up audit would be the priority for me. Attached and marked SP-9 is a copy of our email exchange on 8 February 2017.”
[75] See Patel affidavit at [45].
The email exchange between the applicant and Ms Patel about how the applicant might best prioritise her work supported Ms Patel’s evidence. [76]
[76] See annexure SP-9 to Patel affidavit.
The evidence of Ms Patel was not relevantly challenged during Ms Patel’s cross-examination. Exhibit 9 was an email sent by the applicant to Judge’s Chambers, and to the lawyers for the respondent, which indicated that the applicant did not intend, on day 8 of the trial, to continue with her cross-examination of Ms Patel. Exhibit 10 was an email sent by the lawyers for the respondent to the applicant, and to Judge’s Chambers, indicating that the respondent would not object if “upon reflection” the applicant wished to change her mind about not wishing to further cross-examine Ms Patel. The applicant elected not to change her position.
That the applicant was not a team player was evidenced by the fact that from as early as November 2016 – well before the applicant had alleged that there was any conflict in the workplace, or that she was concerned about what might happen in her January 2017 performance meeting – the applicant secretly started recording work meetings. She continued to make such recordings until as late as April 2017. [77]
[77] See paragraph [99] of Choy affidavit filed on 4 June 2018 and paragraph [3] of Choy Affidavit
filed on 20 July 2018.
One exchange during the course of the applicant’s cross-examination evidenced a lack of candour and evasiveness on the part of the applicant which adversely impacted upon her overall credibility. The applicant said that she “really had no choice” to start making such recordings because she was concerned about her upcoming performance review. That review was to take place in January 2017. When it was pointed out to her by Counsel for the respondent that she had started to make recordings in November 2016, the applicant, visibly appearing to have been taken aback, then said that such November 2016 recording started “immediately after the corporate risk incident”, which incident she said had occurred on 15 or 16 September 2016. The Court does not accept that the applicant was being truthful when she said that. Had she in fact felt “threatened”, one would have expected that the applicant would have commenced her recordings shortly after 15 or 16 September 2016, rather than at a time 1.5 months later on 3 November 2016, that being the date of her first recording. [78] The cross-examination of the applicant on that issue was as follows: [79]
[78] Exhibit 11 – p. 1.
[79] Transcript Day 3 – pp. 167.25 – 169.5.
“Well, secretly recording people’s conversations shows a complete lack of trust in your team members, doesn’t it?---Not at all – I am not recording the conversations of all team members for the sake of recording the conversations with them. The recordings in the team meetings was primarily for the purpose of getting evidence of Ms Patel’s instructions to me and – on methods that I think of – are of importance, of – on methods where I think she might – without evidence of – documentary evidence, she might not agree that has occurred or not occurred. That was the only reason. I have research – I have done my research before I started recording. I did not record the moment I felt threatened at work, even though I know under – even though I believe under the Queensland legislation, the Invasion of Privacy Act or something, I could do that. But when it got to the stage where I felt – because I was under probation, and everything that I had worked for in my life might just disappear before my eyes because my – because of the behaviour of my immediate supervisor. I felt totally exposed and threatened. And I had no choice but to do this. I started by taking file notes initially. I told your - - -
HIS HONOUR: Taking what? File notes?---File notes.
File notes?---Like, diary notes. I made a lot of diary notes. But when it got to the stage that – I got so scared, because then I thought about it and the file notes is just my notes. So in terms of quality of evidence, it’s still not as good as direct evidence. So that’s when I realised I really had no choice and – yes. I just had no choice. And especially after the discussion – the disclosure by my colleagues in January 2017, a few days before my performance review, where they told – where – I can’t remember who, where I was told that - - -
MR McKECHNIE: Well, Ms Choy, I’m going to stop you there 5 - - -?---Okay.
- - - because you were recording in - - -
HIS HONOUR: No. No. I’m allowing her to continue just for a short while, Mr McKechnie.
THE WITNESS: Okay. The discussion with my colleagues, when I told them I was concerned because some – Oodgeroo unit has asked – has asked for a copy of – a sample of the new RAW template that I’ve designed, which – which ..... they wanted to use it. But I haven’t obtained Ms Patel’s permission. And that’s when they ..... and I said because it’s my performance review next week, so I’m really concerned; I don’t want to do anything that would compromise my review. And they – then they – when – I can’t remember who. But they start talking about their experience in the performance review and said you better be careful, because, you know, first thing is if you found any errors and you want to make any improvements, you make sure that the errors are not attributed to Ms Patel but the improvements are attributed to Ms Patel. And I was also told that the – one of the – their performance review, they were – they were knocked back of something they had done. I think the words I was told was that no matter what you – good work you have done throughout the whole year, if you did something that Ms Patel – make her upset around a performance review time, you will get a bad performance review. So when I heard that, I was really scared. Okay? I was really scared. I was really scared because at the performance review meeting that was upcoming on – in January, a few days later, I had to write something in my performance review plan where – I wrote there, you know, I did this as directed by Ms Patel; I did that as directed by Ms Patel; and I didn’t do this – and I – I – I sort of implied attribute – by implication attributed the fact that I did or didn’t do certain thing because of Ms Patel’s direction. And I was afraid that because of that, she would be upset. So - - -
MR McKECHNIE: So that was in January?---That was in January.
Yes?---Yes.
But you started recording secretly in November?---In November. That was immediately after – that was immediate after the corporate risk incident. Okay? Because in – in September – I remember the date very clearly. 15 or 16 September she came into my room in the morning out of the blue and just say words to the effect – I don’t like it when people are slow. You’re a senior manager, you know? Where’s the agenda? And I have no idea what she’s talking about, because we discussed a meeting – we had a team meeting the day before, and we discussed about meeting somebody the following week. But she never asked me for an agenda. But because of – she was angry. So what I did was I just said so what do you want? And I just wrote down. And I responded to her in the email. And I was very, very careful in my email to make sure I do not do anything like what I did on 17 March or 27 February, when I implicitly attributed some action which I think is inappropriate to her.”
The evidence disclosed that when confronted by one Ms Dieckmann-Scott as to whether she was taping a meeting she held with the applicant, the applicant was prepared to directly and unabashedly tell Ms Dieckmann-Scott a lie. The evidence was as follows: [80]
[80] Transcript Day 3 – p. 169.30 – .47.
“Okay. Now, at that conciliation meeting – that was a very serious meeting - - -
HIS HONOUR: I’m sorry, Mr McKechnie. You asked the witness to go to – behind - - -
MR McKECHNIE: I may not need to, your Honour - - -
HIS HONOUR: Right.
MR McKECHNIE: - - - depending on what –
Now, at that – that was a very serious meeting, wasn’t it, the conciliation meeting? I withdraw that. At that meeting, Ms Dieckmann-Scott specifically asked you to confirm whether you were taping, didn’t she?---That’s correct.
And you said “No”?---Yes, that’s correct.
You lied to Ms Dieckmann-Scott at that meeting?---Yes, I did.”
The applicant’s behaviour in that regard was indicative of someone who was secretive and self-absorbed, rather than someone who was motivated to perform as best as they could for their employer in a collaborative work environment. Ms Patel was clearly disappointed with the applicant’s deception, her evidence on point being as follows: [81]
“17. When Ms Choy began with ARMS she asked me if she was allowed to record meetings as she had done this at her previous workplace. I clearly informed her that recording of meetings and conversations was not an accepted practice within QUT. We occasionally need to record interactions to carry out ARMS functions, such as investigation interviews, however if this is necessary it is always done transparently, in a professional manner and never without the knowledge of the other parties.
18. Due to the sensitive nature of the work ARMS carries out there has to be a degree of trust amongst the team and an appreciation of the confidential nature of the material being dealt with by the team. It appears from Ms Choy's affidavit that she was secretly recording meetings and conversations almost from the outset of her employment. I consider this to be a serious breach of the trust that was shared between colleagues in the ARMS team. I believe this behaviour goes to further highlight Ms Choy's failure to work effectively and collegially within a team environment, which was a key performance issue I raised with her in March 2017.”
[81] Paragraphs [17] and [18] of Patel affidavit.
The Court finds that the respondent has rebutted the presumption under s. 361 of the FWA that the adverse action as set out in paragraphs 12 and 13 of Table 2 was taken for a prohibited reason.
As to the claimed adverse action as set out in paragraph 14 of Table 2, the Court finds that the applicant’s employment was terminated because of the applicant’s poor performance, as earlier found by the Court, and not for any prohibited reason. The Court finds that the respondent has rebutted the statutory presumption under s. 361 of the FWA that the adverse action as set out in paragraph 14 of Table 2 was taken for a prohibited reason.
As to the claimed adverse action as set out in paragraph 15 of Table 2, the respondent conceded that there was a one week underpayment to the applicant of her due entitlements upon the applicant’s termination of employment, but it was submitted that such underpayment was an oversight. The Court accepts the evidence of Mr Lovi on point as set out in his affidavit as follows: [82]
“16. I refer to paragraph 140 of Ms Choy's Application. Ms Choy's employment was terminated in accordance with clause 52.2.5 and processed by the University accordingly. I had oversight of the process for informing the University's payroll division that a termination payment was to be made. The payroll division was incorrectly informed that Ms Choy should be paid one week notice. I believe the error occurred because only clause 52.2.5 of the Enterprise Agreement was referenced. On 7 August 2017, when the error came to my attention, I instructed the payroll to make an additional one week payment to Ms Choy. The reason for the delay in making the additional weeks' notice payment was due to an oversight in the HR Department. There was no other reason.”
[82] See paragraph [16] of Lovi Affidavit.
The error was quickly remedied by the respondent. The Court finds that the respondent has rebutted the presumption under s. 361 of the FWA that the adverse action as set out in paragraph 15 of Table 2 was taken for a prohibited reason.
Alleged Breaches of Contract
The conduct alleged to constitute contractual breaches as set out in paragraphs 16, 17 and 18 of Table 2 related to claims that:
a)The applicant was assigned to perform an internal audit task;
b)The applicant and her fellow worker named Chamukuttan were to investigate a cash loss of $624.00; and
c)Ms Patel had asked the applicant’s fellow worker named Brooks to seek the applicant’s input to provide internal audit advice on payroll segregation duties.
First, there was no evidentiary basis to support the claim that the admitted allocation of work as last referred to was done in retaliation for, or motivated by, any prior action taken by the applicant during the course of her employment. The Court finds that there was no such motivation on the part of Ms Patel when allocating such work. The work was part of the work of the Division which was required to be done, and an appropriate direction to perform such work was accordingly given.
Further, the Court finds that the work so allocated was within the scope of the applicant’s employment under the written terms of her contract of employment. Ms Patel gave persuasive evidence at [14] – [15] of her affidavit as to how audit work was expected to be undertaken by team members working in the ARMS division. Ms Patel said as follows:
“14. ARMS is a small team with an integrated function of audit and risk management. Accordingly, it is expected that all team members work collaboratively to achieve ARMS responsibilities. Ms Choy contends in her affidavit that her position description did not contemplate her performing any audit work.
15. Although risk management is the key function of the role, the position description clearly contemplates a contribution toward the integrated function of ARMS. A copy of the position description for the role of Senior Consultant, Risk Management Services is attached and marked SP-3.”
Annexure SP-3 to Ms Patel’s affidavit was a copy of the applicant’s position description for the role of Senior Consultant, Risk Management Services within ARMS. The role was one to be fulfilled within the overriding aims and principles of ARMS as summarised in the document as follows:
“ARMS contributes to QUT's vision and major priorities through its strategic role in assisting QUT in opportunity and risk management, control and process improvement and audit assurance, in accordance with good practice.”
The Court finds that the applicant’s complaints were unjustified and did not constitute any breach of contract of employment. The contract itself contemplated that the applicant’s role may be amended “from time to time”. Clause 3 provided as follows:
3. RESPONSIBILITIES AND POSITION
3.1 Your responsibilities are detailed in your position description as amended from time to time.
3.2 You recognise that your responsibilities and the required competencies may change as your position evolves and as the University’s needs or operational requirements change. …
Further, the tasks required to be performed by the applicant were, at the least, tasks of a nature contemplated by the applicant’s contract of employment. They were tasks of a character within the scope of the applicant’s roles in her employment, and the respondent was entitled to require the applicant to perform such tasks. In Commissioner for Government Transport v Royall (1966) 116 CLR 314 at 322, Kitto J set out the position at common law as follows:
“The general rule is that a contract by which a person is employed in a specific character is to be construed as obliging him to render, not indeed all service that may be thought reasonable, but such service only as properly appertains to that character.”
Paragraph 19 of Table 2 recorded the applicant’s claim that the respondent wrongfully suspended the applicant’s probationary period by twelve (12) days because of the applicant having allegedly exercised workplace rights, and specifically, the alleged workplace right to take paid recreational leave. [83] The applicant claims that such conduct constituted adverse action in contravention of s. 342(1)1.(c) of the FWA, in that it was claimed to have altered the applicant’s position to her prejudice by preventing the applicant “… from being a confirmed employee which offered greater security of employment” and otherwise deprived the applicant of “… access to the onerous provisions in clause 53 that supervisors had to adhere to in managing staff’s unsatisfactory performance”. [84] There was no merit to such claim.
[83] Paragraph [138] of Application Form 2.
[84] Paragraph [139] of Application Form 2.
First, rather than being a detriment to the applicant, the extension of the probation period was beneficial because it gave to the applicant an extra twelve (12) days to enable her to participate in the probation review process. Had the extension not been afforded to the applicant, the applicant could have complained that the probation review process was being rushed, with the result that she had been unable, within the time allowed, to make all relevant submissions on her behalf.
Secondly, the extension was in no way prejudicial to the applicant. The extension of the probation period had no exclusionary effect in terms of her right to have the question of confirmation of her employment considered, and either determined in her favour or determined against her.
The Court accepts the convincing evidence of Ms Bunning on this issue. Ms Bunning succinctly explained the reason why she extended the probation period in her affidavit evidence as follows: [85]
[85] Paragraphs [61] – [64] of Bunning affidavit.
“Suspension of probation period
61. At paragraph 138 of her application, Ms Choy alleges that QUT altered her position to her prejudice by suspending her probation period for 12 days because she took paid and recreational leave.
62. As outlined in paragraphs 29 to 31 above, on 9 June 2017 I made a decision to extend Ms Choy's probation period pursuant to clause 52.1.5 of the Enterprise Agreement.
63. Under clause 52.1.5 of the Enterprise Agreement a probation period is to be suspended in the event of any period of extended leave.
64. In the circumstances, I considered it to be reasonable and appropriate for Ms Choy's probation period to be suspended for the period of her leave. This allowed her additional time to address the performance concerns. I made the decision because I wanted to provide Ms Choy with a further opportunity to address the performance concerns.”
The Court finds that the respondent has rebutted the presumption under s. 361 of the FWA that the alleged adverse action as set out in paragraph 19 of Table 2 was taken for a prohibited reason.
Paragraphs 20 and 21 of Table 2 recorded the applicant’s claim that the respondent had wrongfully dealt with her grievances as level 1 grievances rather than dealing with them under the serious misconduct provisions of the Enterprise Agreement. The applicant claimed that the respondent had contravened the provisions of s. 342(1)1.(c) of the FWA in that her position had been altered to her detriment because she was deprived of protection under the Work Health and Safety Act 2011 (Qld), causing a rapid deterioration in the applicant’s health. There was no merit to such claims.
The Court accepts the evidence of Ms Bunning on point. [86] The respondent investigated each of the applicant’s grievances in a thorough and appropriate manner, and in accordance with the respondent’s relevant procedures under the respondent’s grievance policy. [87] The applicant was given particular consideration so as to ensure that she had plenty of time to have her submissions considered and addressed. The grievances were dealt with as level 1 grievances in accordance with accepted procedures. Such level involves initial informal discussions and conciliation with a view to resolving the matter prior to any escalation of the grievance. The fact that the applicant felt victimised and bullied was a subjective reaction for which the respondent was not responsible.
[86] See Bunning affidavit at [8] – [11], [43], [48] – [50] and [61] – [64].
[87] See Annexure NB-4 to Bunning Affidavit.
The manner in which the applicant’s grievances were addressed was reasonable and in accordance with accepted procedure. There was no manipulation of the process or any vindictive response on the part of the respondent.
The Court finds that the respondent has rebutted the presumption under s. 361 of the FWA that the alleged adverse action as set out in paragraph 20 and 21 of Table 2 was taken for a prohibited reason.
Alleged Breaches of Enterprise Agreement and, consequently, of Section 50 of FWA in Respect of the Termination of the Applicant’s Employment
In paragraphs 137 – 140 inclusive of the applicant’s Form 2, the applicant claimed that the respondent had altered the applicant’s position to her prejudice by:
a)Failing to hold a final probation meeting allegedly in breach of clause 52.2.2 of the Enterprise Agreement;
b)Suspending / extending the applicant’s probation period by twelve (12) days; and
c)Failing to ensure that the applicant was:
i)able to work in a harmonious, fair and just work environment;
ii)free from bullying in the workplace; and
iii)able to have the respondent’s grievance policy, procedures and guidelines implemented in accordance with clause 49 of the Enterprise Agreement.
The applicant claimed that the respondent had breached the provisions of s. 50 of the FWA which provided that a person must not contravene a term of an enterprise agreement.
Clause 49 of the Enterprise Agreement is an aspirational statement as to the respondent’s goals. As such, the applicant’s claims were not capable of being categorised as specific breaches of such clause. Alternatively, the Court finds that none of the claims so raised by the applicant were made out for the reasons already found. The Court finds that the applicant’s claim that the initial underpayment of her termination entitlement was deliberate, and therefore vindictive, was unsubstantiated, without any evidentiary foundation, and baseless.
As to the applicant’s claim that the respondent breached clause 52.2.2 of the Enterprise Agreement because no final probation meeting was held, the Court finds that there was no merit to such claim. The final probation meeting was not held because of the applicant’s failure to attend such meeting, notwithstanding that she had been given more than ample opportunity to do so. The Court accepts the evidence of Mr Lovi and Ms Bunning in relation to such issue. [88]
[88] See Lovi affidavit at [48] – [55] and Bunning affidavit at [24] – [26] and [57] – [60].
As to the applicant’s complaint that the respondent failed to investigate her complaint against Ms Patel in accordance with clause 54.3 of the Enterprise Agreement, the Court finds that such claim was without merit. The respondent managed the grievance complaint process in accordance with accepted practice and procedures, namely by endeavouring to resolve the matter at an early stage through conciliation. The respondent was not obliged, at the outset, to follow a procedure involving alleged misconduct of a serious nature simply because the applicant, in her capacity as a complainant, considered the complaint to warrant that elevated approach. The Court finds that the applicant’s complaint was an issue unrelated to questions which had to be determined by Ms Bunning related to the question as to whether the applicant’s employment ought to be terminated or not. The Court accepts the evidence of Ms Bunning in that respect. [89]
[89] See Bunning affidavit at [8] – [11], [43] and [48] – [50].
Conclusion
The Court accepts the respondent’s submissions to the effect that the applicant’s employment was terminated because of performance issues, and as such, was not for a prohibited reason. The applicant was a probationary employee. The Court found Ms Patel to be a particularly persuasive and honest witness. The Court has accepted her evidence, to the extent that it was at odds with the evidence of the applicant, on all relevant issues.
Ms Patel showed substantial restraint, and gave consistently reasonable evidence, when cross-examined by the applicant about matters which, in effect, were allegations of an unlawful conspiracy between her, Mr Lovi and Ms Bunning to terminate the applicant’s employment because she had exercised workplace rights. The Court believed Ms Patel when she said that she recommended that the applicant’s employment not be continued beyond the probation period because the applicant’s performance was below par. Her evidence on point was as follows: [90]
[90] See Patel affidavit at [42] – [48] inclusive.
“42. Although I had assessed Ms Choy as having satisfactory performance and given her only minimal constructive feedback about improvements, I felt that following my return from leave and the performance meeting Ms Choy became withdrawn and acted differently in the workplace. I would describe her as 'standoffish' towards me and then later on, towards the rest of the team as well.
43. Over the next few weeks I monitored Ms Choy's performance, which confirmed my concerns that she was not performing well in her role, in particular she did not seem to be working to the standard expected of a person of her seniority and did not seem engaged in her work or the team.
Ms Choy’s work in February 2017
44. On 6 February 2017 Ms Choy sent me an email to enquire about whether she should meet with representatives within Information Technology Services in relation to understanding the risks for their services. I responded and confirmed that she should. Attached and marked SP-8 is a copy of our email exchange on 6 February 2017.
45. On 8 February 2017 Ms Choy sent me an email in which she asked how I would like her to prioritise meeting with a representative from the Business School regarding risk management. Ms Choy asked me how I would like her to respond to the request 'in terms of work priority' and said that it would take some time. I was surprised by the email as I expected Ms Choy to be in a position to prioritise her own work given her seniority. I responded to the email and asked what other work she was doing. Ms Choy responded with a list of six items she was currently working on. I responded that the follow up audit would be the priority for me. Attached and marked SP-9 is a copy of our email exchange on 8 February 2017.
46. On 8 February 2017, shortly after this email exchange, I had a conversation with Ms Choy about how to prioritise her workload. Ms Choy stated that she considered her role was to help the business embed risk management and she was having trouble doing this because she was involved with a follow up audit, which she did not consider to be within her job description. I explained to Ms Choy that she was involved in the follow up audit because of the health and safety risks involved in it. I counselled her to focus on the follow up audit, followed by the BCP review and the feedback on the 5x5 memo.
47. On 9 February 2017 I had a further discussion with Ms Choy to check how she was, as I knew she was not feeling well and was having difficulty with workload. I informed Ms Choy that I was considering hiring someone on a temporary basis to take over the follow up audit. At this stage it was clear to me that Ms Choy did not want to complete the task and, although I did not consider her approach to be reasonable, I was focused on getting the job done.
48. One of Ms Choy's colleagues ultimately took over and completed the follow-up audit work. We also engaged a staff member on secondment from BDO.”
The Court finds that the only occasions on which the applicant exercised workplace rights were the conceded claims as set out in paragraphs 2, 12, 13, 14 and 15 of Table 1 to Exhibit 3. The Court finds that the other claims as set out in Table 1 did not constitute the exercise of any workplace right.
The Court finds that the only examples of adverse action taken by the respondent in respect of the applicant were the conceded claims as set out in paragraphs 12, 13, 14 and 15 of Table 2 to Exhibit 3. The Court finds that the other claims as set out in Table 2 did not constitute the taking of any adverse action by the respondent.
To that extent that adverse action was taken by the respondent, the Court is satisfied that such action was not taken for any prohibited reason.
The Court finds that the respondent did not contravene any of the provisions of the Enterprise Agreement insofar as the applicant was concerned.
The Court further finds that the respondent did not breach any of the provisions of the contract entered into between the applicant and the respondent.
The Court dismisses all of the applicant’s claims made against the respondent, and so orders.
Claims for Compensation
There was no evidence before the Court that there was a medical reason causally related to the applicant’s termination of employment which had prevented her from working since the date of termination.
The Court finds that any failure on the part of the applicant to obtain employment since the date of termination was unrelated to such termination of employment with the respondent.
The applicant made no submission as to how the Court might have quantified any compensation in the event of findings being made in her favour. The respondent’s contention that the applicant was being paid an amount equivalent to about $120,000.00 gross per annum was uncontested. It was further uncontested that after tax nett earnings on such sum were in the amount of about $85,000.00.
Based upon the principles as set out in Construction, Forestry, Mining, and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 1032 at [40] – [43] by Reeves J, and approaching the quantification of loss on a global basis, the Court finds that had it found in favour of the applicant, compensation ought only be assessed for loss over a 6 month period, due to dislocation of employment, after the date of termination, namely the amount of $42,500.00 inclusive of interest.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 22 December 2020
ANNEXURE A:
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