Christopher Lisha v St Vincent de Paul Society NSW

[2016] FWC 2080

[2016] FWC 2080

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal (consent arbitration)

Christopher Lisha
v
St Vincent de Paul Society NSW
(C2015/6814)

COMMISSIONER JOHNS SYDNEY, 1 APRIL 2016

Application to deal with a general protections dismissal dispute by consent arbitration.

Introduction

[1] On 20 August 2015, Christopher Lisha made a general protections application to the Fair Work Commission (Commission) pursuant to the provisions of s.365 of the Fair Work Act 2009 (FW Act), having been dismissed from his employment by the St Vincent de Paul Society NSW (SVDP (NSW) / respondent) on 10 August 2015. Mr Lisha’s general protections application sought the Commission deal with alleged contraventions of the FW Act involving a dismissal, by his former employer SVDP (NSW). 1

[2] The matter proceeded to a conference before a conciliator, with Deputy President Kovacic later certifying pursuant to s.368 of the FW Act that he was satisfied that all reasonable attempts to resolve the dispute had been, or were likely to be, unsuccessful.

[3] On 30 September 2015, Mr Lisha filed with the Commission a notification of agreement for a consent arbitration of the general protections dispute, pursuant to the provisions of s.369 of the FW Act.

[4] A hearing of the matter was conducted by the Commission, as presently constituted, on 16 November 2015. In the course of the hearing the:

a) applicant represented himself. He had previously filed a witness statement (Exhibit “A1”). He gave oral evidence at the hearing and was cross-examined. The applicant also submitted a number of character references. Counsel for SVDP (NSW) took no objection to the Commission receiving the character references. While the content of the character references was not relevant to the issues to be decided by the Commission, from all accounts, it is clear that Mr Lisha was highly regarded.
b) SVDP (NSW) was represented by Mr Gerard Boyce of counsel with permission pursuant to section 596(2)(a) of the FW Act. Mr Boyce called:

i. Dianne Lucas, SVDP (NSW)’s Deputy Chief Executive Officer; and
ii. Vyda Mowen, SVDP (NSW)’s Head of Workplace Relations.

Both Ms Lucas and Ms Mowen had previously filed witness statements (Exhibit “R1” and “R2” respectively). Both Ms Lucas and Ms Mowen gave oral evidence at the hearing and were cross-examined by Mr Lisha.

Background

[5] The following matters were either agreed between the parties or not otherwise substantially contested having regard to the documentary evidence submitted by both parties:

a) The SVDP (NSW) is a lay Catholic organisation that aspires to live the gospel message by serving Christ in the poor with love, respect, justice, hope and joy, and by working to shape a more just and compassionate society. 2

b) On 22 July 2013 Mr Lisha commenced employment with SVDP (NSW) as a Bequest Officer. He initially reported to Heather Roberts. Ms Roberts rated Mr Lisha’s performance highly.

c) In December 2013 Cherie McKenna commenced employment with SVDP (NSW).

d) In March 2014 Ms Roberts commenced reporting to Ms McKenna. Ms McKenna was the Major Gifts Manager.

e) In late September 2014 Ms Roberts, resigned. Consequently, Mr Lisha commenced reporting directly to Ms McKenna. The departure of Ms Roberts resulted in an increase in Mr Lisha’s workload. For some time the applicant willingly took on the additional tasks without complaint.

f) Without apportioning blame it is clear that Mr Lisha and Ms McKenna did not have a positive working relationship. Mr Lisha thought Ms McKenna treated him poorly, harassed him and was a micromanager. For her part Ms McKenna thought Mr Lisha was argumentative. They each made a number of claims and counterclaims against each other.

g) On 28 November 2014 a team meeting occurred between Mr Lisha, Ms McKenna and another co-worker, Paul Cook. The purpose of the meeting was to progress the Bequest Plan. It is apparent that the meeting did not go well. Mr Cook described it as “totally out-of-control”. Ms McKenna reported that Mr Lisha entered the meeting in a “highly charged” manner. Ms McKenna further reported that at one point Mr Lisha lent across the table and that she felt intimidated.

The applicant has consistently denied Ms McKenna’s characterisation of the meeting on 28 November 2014. In his report on the meeting Mr Cook did not allege the Mr Lisha engaged in inappropriate behaviour.
For present purposes, the Commission is not required to make any findings of fact about what occurred at that meeting. Although the allegations made against him by Ms McKenna have been a constant source of genuine concern and agitation to Mr Lisha, what happened at that meeting is irrelevant to the questions before me.
h) On 8 December 2014 SVDP (NSW) wrote to Mr Lisha about the allegations made by Ms McKenna and invited him to attend a meeting to discuss the same.
i) On 10 December 2014, through his lawyers, Mr Lisha responded to the letter dated 8 December 2014. The applicant denied the allegations made by Ms McKenna. He also attended a meeting that day with Julie McDonald, General Manager & Communications and Daniel Lucas, Workplace Relations Advisor.
j) On 11 December 2014 SVDP (NSW) (through Ms McDonald) advised Mr Lisha that it was issuing him with a formal written warning in respect of his conduct at the meeting on 28 November 2014.
However, it is to be noted that 7 months later an independent investigator engaged by SVDP (NSW) found that Ms McDonald’s decision to impose disciplinary action denied Mr Lisha procedural fairness.
k) On 27 January 2015 SVDP (NSW) wrote to Mr Lisha and advised him that Ms McKenna had made further complaints about his conduct at meetings which occurred on 17 December 2014 and 15 January 2015. Again, it is not relevant for present purposes for the Commission to make any findings about what occurred at the meetings on 17 December 2014 and 15 January 2015.

However, it is to be noted that the independent investigator engaged by SVDP (NSW) found that it was Ms McKenna’s behaviour at the meeting on 17 December 2014 was unacceptable (but not unacceptable at the meeting on 15 January 2015).

l) On 28 January 2015 Mr Lisha responded to the further complaints made by Ms McKenna. In a letter to Ms McDonald the applicant claimed that in all his dealings with Ms McKenna, he was polite, professional, reasonable and completely appropriate. The applicant then made a number of allegations against Ms McKenna and concluded by alleging that she had engaged in harassing and bullying behaviours. It would appear that Ms McDonald took no action to investigate the allegations of bullying made by Mr Lisha.
m) On 30 January 2015 Mr Lisha met with Ms McDonald and Verity Lloyd, Senior Workplace Relations Adviser about the December/January complaints made by Ms McKenna. The applicant attended the meeting with a support person.
n) On 4 February 2015 SVDP (NSW) issued Mr Lisha with a “final warning” regarding his conduct in the workplace.
For present purposes, the Commission is not required to make any findings about the fairness of the “final warning”. However, having considered all the material, including the report of the independent investigator completed 5 months after the “final warning” was given, in light of Ms McKenna’s behaviours (which it seems Ms McDonald failed to investigate), I have serious doubts that the “final warning” was justified or a proportionate response to Mr Lisha’s behaviour at the time.
o) The issuing of the final warning had a devastating impact on Mr Lisha. Between 13 February 2015 and 15 April 2015 Mr Lisha was unfit for work.
p) On 19 February 2015 Mr Lisha filed in the Commission an “application for an order to stop bullying” against SVDP (NSW) and Ms McKenna. The application was opposed by SVDP (NSW) and Ms McKenna.
q) In April 2015 a consensus developed that Mr Lisha could not return to work reporting to Ms McKenna. The applicant’s treating Clinical Psychologist reported that Mr Lisha “feels threatened and unsafe working with and reporting to Ms McKenna and Ms McDonald.” The treating Clinical Psychologist noted that 3 other professionals involved in Mr Lisha’s matter had also recommended that Mr Lisha discontinue reporting to Ms McKenna and Ms McDonald. 3
From this point it is apparent that Mr Lisha was unable to perform the inherent requirements of his job as a Bequest Officer because an inherent requirement of that role was reporting to Ms McKenna.

For its part of SVDP (NSW) (in the words of Ms Lucas),

“… did not accept that Mr Lisha was being bullied but did accept that it could not return Mr Lisha to his role due to his personal concerns and the specific support he received from his doctor and psychologist to say he could not be returned to that position and that this might affect his health and well-being if he was returned to this position.” 4

r) On 16 April 2015 SVDP (NSW) offered Mr Lisha a temporary/trial role at its State Support Office (SSO role). The temporary role was intended to be for a period of 6 weeks.
s) On 21 April 2015 Mr Lisha’s anti-bullying application was listed for conciliation in the Commission. After the initial conciliation SVDP (NSW) appointed Warren Fahey to investigate the allegations of bullying.
Having regard to the fact that Mr Lisha,

i. first made his allegation of bullying to Ms McDonald on 28 January 2015; and
ii. filed is application in the Commission on 19 February 2015,

it is not clear why SVDP (NSW) was so slow to act to appoint an investigator.
t) On 28 May 2015 the SSO role was extended by a further 3 weeks to 11 June 2015.
u) On 5 June 2015 SVDP (NSW) put three options to Mr Lisha in the event that the SSO role was not extended beyond 11 June 2015 (i.e. 3 working days later). The options put to Mr Lisha included further attempts at redeployment (up until 11 June 2015), retrenchment or discussions “for a mutual separation arrangement”.

In relation to the retrenchment option SVDP (NSW) wrote “by effectively relinquishing your position there is no option for redundancy because that position [i.e. the position of Bequest Officer] still exists and will be filled in due course.”

During the hearing on 16 November 2015 the issue of whether Mr Lisha relinquished his position as a Bequest Officer took on some import. It was the evidence of Ms Lucas that Mr Lisha had relinquished his position. However, there is nothing in any of the documentary evidence to establish that Mr Lisha relinquished his position. He certainly never did so expressly. The only use of the word “relinquish” was made by SVDP (NSW). Based on the medical advice he had received Mr Lisha indicated that he could not work with this McKenna. This was accepted by SVDP (NSW). That is a very different proposition to asserting that Mr Lisha relinquished his position. So much so was accepted by Ms Lucas under cross-examination by Mr Lisha. 5

Any suggestion that Mr Lisha voluntarily relinquished his position as a Bequest Officer is nonsense.

v) On 8 June 2015 Mr Lisha wrote to SVDP (NSW) in response to the letter of 5 June 2015 to, amongst other things, complain about the deadline of 11 June 2015.
w) On 12 June 2015 SVDP (NSW) placed Mr Lisha in a second temporary/trial role at the Sydney Archdiocese Central Council in Auburn (SACC role). It was intended that the SACC role would operate from 17 June 2015 for a period of 8 weeks (i.e. through until 12 August 2015) and Mr Lisha would report to Graeme Roche, the Diocesan Executive Officer. The SACC role was funded by SVDP (NSW) and not by the Sydney Archdiocese Central Council.
x) On 1 July 2015 the Independent Investigator issued his report into Mr Lisha’s allegations of bullying against Ms McKenna. In his report Mr Fahey found that:

i. Ms McDonald’s decision to impose disciplinary action denied Mr Lisha procedural fairness;
ii. Ms McKenna’s behaviour:

A. during the meeting on 28 November 2014 was not unacceptable;
B. during the meeting on 17 December 2014 was unacceptable;
C. during the meeting on 15 January 2015 was not unacceptable;
D. in not providing accurate data during the meeting on 30 January 2015 was unacceptable;
E. during the meeting on 12 February 2015 was not acceptable;

iii. “questions may be asked of Ms McKenna in respect of her management style is there is a suspicion that her management of Mr Lisha may not be to standards expected of a manager”; but,
iv. ultimately, Mr Lisha’s allegations of workplace bullying could not, on balance, “be found to be proven”.

In light of the number of adverse findings made against Ms McKenna and the adverse comments made about her management style the ultimate conclusion reached by Mr Fahey might seem curious. However, just because someone is a bad manager (and clearly Ms McKenna was not a model manager) it does not follow that they are a bully.
However, it is not the role of the Commission in the present matter to determine whether Ms McKenna engaged in bullying behaviours.
y) On 3 July 2015 SVDP (NSW) wrote to Mr Lisha asking him to continue to focus on redeployment in indicating that it was looking forward to continuing to work with him and support him with a view to securing other employment within SVDP (NSW). 6

z) On 6 July 2015 SVDP (NSW) advised Mr Lisha that the allegations of workplace bullying had not been found proven.

aa) On 30 July 2015 Mr Lisha’s anti-bullying application was listed for hearing. The matter commenced but was ultimately adjourned. However, Mr Lisha submits that what occurred in the Commission on 30 July 2015 was a pivotal reason for the termination of his employment 11 days later (I deal with those events below).

bb) In the week commencing 3 August 2015 Mr Lisha had a conversation with Mr Roche about the SACC role that was due to finish on 12 August 2015. Mr Roche told Mr Lisha that the project he was working on would probably take another two weeks beyond 12 August 2015 and he (Mr Roche) was prepared to have Mr Lisha remain in the SACC role until it finished (i.e. until around the end of August 2015).

Mr Roche did not speak to Ms Lucas about the remaining work he had available.
It is also apparent on the evidence that Mr Roche did not advise Ms Mowen that he had work available for Mr Lisha through until the end of August 2015. However, he did tell Ms Mowen that the SACC role would not be ongoing and permanent.
cc) Also in the week commencing 3 August 2015 Ms Lucas and Ms Mowen discussed future roles that Mr Lisha might perform after the cessation of the SACC role. Ms Lucas’ evidence was that she made a decision that SVDP (NSW) would no longer fund the SACC role. Ms Lucas says she was advised by Ms Mowen that all her attempts to find a permanent position for Mr Lisha had failed (although at the hearing Ms Mowen conceded that, between 15 July 2015 and 10 August 2015, the only person she spoke to was Mr Roche).

It is to be observed that by 3 August 2015 Mr Lisha had ceased performing the role of Bequest Officer over 24 weeks earlier on 13 February 2015. In that time he had had:

i. nearly 9 weeks of sick leave;
ii. 8 weeks in the temporary SSO role; and
iii. 7 weeks in the temporary SACC role (with 1 week to go).

Ms Lucas’ evidence was that, after the passage of nearly 6 months since Mr Lisha had last had a permanent on-going role, it was at this time, she decided to terminate the employment of Mr Lisha (the following week). Ms Lucas instructed Ms Mowen to write the letter of termination.
dd) The applicant concedes that, although having had access to the list of vacancies within SVDP (NSW), he himself had not identified any permanent position into which he could have been deployed in the 6 months since he ceased performing the Bequest Officer role. 7

ee) On 10 August 2015 SVDP (NSW) terminated Mr Lisha’s employment with immediate effect. In her letter to Mr Lisha Ms Lucas wrote “we are at the point now where there are no further temporary work opportunities available and all other permanent redeployment opportunities have been exhausted.”

It is to be observed that the termination of employment on 10 August 2015 occurred 2 days prior to when Mr Lisha had been told the SACC role would finish. In this regard the act of termination on 10 August 2015 was, from Mr Lisha’s perspective, unexpected. The applicant had no notice that the SACC role would finish 2 days earlier than he had previously been led to believe. Ms Mowen conceded the same during the hearing. 8
ff) On termination Mr Lisha was paid:

i. his accrued entitlements;
ii. wages through until 12 August 2015;
iii. 3 weeks’ pay in lieu of notice; and
iv. an amount equal to 6 weeks redundancy pay (even though his substantive position of “Bequest Officer” had not been made redundant).

[6] By reason of the above Mr Lisha submits that SVDP (NSW) breached the general protection provisions of the FW Act and seeks an order:

a) for reinstatement [although not to the position of Bequest Officer] 9;

b) for payment of compensation for pain, suffering and humiliation;

c) for payment of the amount lost remuneration;

d) for reimbursement of legal costs (now totalling $5740); and

e) to maintain a period of [his] continuous service with SVDP (NSW).

Protection from Adverse Action

[7] Consideration of these matters by the Commission requires application of the employer onus set out in s.361 of the FW Act that actions taken are presumed to have been taken for the alleged reason unless proven otherwise.
[8] A Full Bench has considered the applicable provisions, together with the application of the employer onus, in the matter of Keep v Performance Automobiles Pty Ltd (Keep), 10 finding as follows;

“(ii) ‘Adverse Action’ and the FW Act
[7]Part 3-1 of the FW Act prohibits an employer from taking adverse action against an employee because, relevantly, that employee exercises a workplace right.
[8]Section 340 is one of the central provisions. It states, in part:

“(1) A person must not take adverse action against another person:
(a) because the other person:

... (ii) has ... exercised a workplace right; ...” [emphasis added]

[9]An employer contravenes s.340 if it can be said that the exercise by the employee of a workplace right was a ‘substantial and operative factor’ in the employer’s reasons for taking the FW Action which constitutes ‘adverse action’ within the meaning of s.342.
[10]Section 341 sets out the meaning of a workplace right, relevantly:

“(1) A person has a workplace right if the person:
... (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument.”

[11]The table in s.342 sets out the circumstances in which a person takes ‘adverse action’ against another person. Relevantly, adverse action is taken by an employer against an employee if the employer:

(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.

[12]Sections 360 and 361, in Div 7 of Pt 3-1 of the FW Act, make it easier than it otherwise would be for an employee to establish a contravention of the protective provisions in Pt 3-1, including s.340. Section 360 provides that, for the purposes of Pt 3-1, ‘a person takes action for a particular reason if the reasons for the FW Action include that reason’. Section 361(1), casts an onus of proof on an employer to show that it did not take action for a prohibited reason, it says:

“If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took ... action for a particular reason ...; and
(b) taking that action for that reason ... would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the FW Action was ... taken for that reason or with that intent, unless the person proves otherwise.”

[13]It is important to note that s.361 does not obviate the need for an applicant to prove the existence of the objective facts which are said to provide the basis of the respondent’s conduct. The onus does not shift from the applicant to the respondent until the applicant establishes the elements of each of the general protections upon which it seeks to rely. It is not enough for the applicant to merely make assertions regarding these elements, they must be determined objectively.

[14]The task of the FWC in a consent arbitration proceeding such as this is to determine three factual questions:

(i) Was the employee exercising a workplace right, within the meaning of s.341?
(ii) Did the employer take ‘adverse action’ against the employee, within the meaning of s.342?
(iii) Did the employer take the adverse action against the employee because of a prohibited reason, or reasons which included that reason?

[15]In the context of this case the applicant bears the onus of establishing that he had exercised a workplace right at the relevant time and that adverse action was taken against him. If so established, the respondent then bears the onus of establishing that the adverse action was not taken because Mr Keep had exercised a workplace right.” 11

Consideration

Introduction

[9] Mr Lisha argues adverse action on the part of SVDP (NSW) within the meaning of s.342(1), because he was dismissed. Referring to the F8 – General Protection Application filed by Mr Lisha, he attributes the adverse action to his exercise of workplace rights as follows:

• his challenge to what he considered to be the false allegations made against him by Ms McKenna;



• his complaint of workplace harassment and bullying against Ms McKenna;



• his taking of sick leave after being issued with a final warning by Ms McDonald; and



• his participation in the investigation undertaken by Mr Fahey;



• his application for an anti-bullying order to the Commission; and



• his participation in the Commission proceedings relating to his application for an anti-bullying order.

[10] In summary Mr Lisha submitted that “I believe the main reason to the termination of my employment occurred is because I stood up for myself with a false accusation was made against me.”
[11] Further, Mr Lisha says that what occurred during the conciliation conference before Commissioner Bull (as he then was) motivated the termination of his employment. In his witness statement he wrote,

15. The real reason why my employment was terminated without notice and without discussion on 10 August 2015 is to be found in the comments made by Commissioner Bull on 30 July 2015 at the hearing of my Application for an order to stop bullying. On the 30 July 2015, Commissioner Bull asked a key question. He wanted to know what was going to happen when my eight-week temporary position at Auburn came to an end on 12 August 2015.
16. Mr Mouwad stated that he did not have instructions on what would happen but said something along the lines of “his temporary position may be extended or his temporary position may be terminated”.
17. Commissioner Bull then said words to the effect of “well if Mr Lisha is no longer employed by St Vincent de Paul Society, I have no authority to hear his Application for an order to stop bullying”. It was at this point that a silence fell over the hearing room. In my view, this silence was indicative of the realisation that St Vincent de Paul Society NSW was able to effectively dispose of my original application by terminating my employment. And of course, that is exactly what they did.

[12] The reasoning of the Full Bench in Keep is referred to above. That decision sets out broadly the task to be undertaken by the Commission in this matter, and with suitable modification to the issues requiring determination, as follows; 12

• Was Mr Lisha exercising a workplace right, within the meaning of s.341, or entitled to a protection within the meaning of s.346?



• Did SVDP (NSW) take 'adverse action' against Mr Lisha, within the meaning of s.342?



• Did SVDP (NSW) take the adverse action against Mr Lisha because of a prohibited reason, or reasons which included that reason?

[13] Keep reinforces that Mr Lisha bears the onus of establishing that he had exercised a workplace right at the relevant time or a protection, and that adverse action was taken against him. If so established, SVDP (NSW) then bears the onus of establishing that the adverse action was not taken because Mr Lisha had exercised a workplace right or a protection.

Was Mr Lisha exercising a workplace right or a protection?

[14] So far as is relevant, the question about Mr Lisha’s exercise of a workplace right is that which may arise under s.341(1) of the FW Act.
[15] That is, consideration must be given to whether he was entitled to the benefit of a workplace law, workplace instrument or order made by an industrial body, was able to initiate or participate in a process or proceedings under a workplace law or workplace instrument or was able to make a complaint or enquiry either to an external person or body or in relation to his employment.
[16] Within the context of the matters argued before me, the focus of the enquiry is principally upon whether Mr Lisha was able to initiate or participate in a process or proceedings under a workplace law or was able to make a complaint in relation to his employment.
[17] Accordingly the focus of enquiry as to whether or not Mr Lisha was exercising a workplace right or a protection is in relation to s.341(1)(b) and or s.341(1)(c). It is beyond contest that Mr Lisha had a workplace right in that he was able to initiate, or participate in a process or proceedings under the FW Act in relation to anti-bullying.
[18] In so far as the claim rests on s.341(1)(c), as Commissioner Wilson observed in Sultana v Thomastown Child Care Centre Inc 13 (Sultana),

[29] … that is the capacity to make a complaint in relation to … employment, which has been recognised as a right of a very broad nature, 14 with the requisite relationship between the complaint or inquiry with the employee’s employment being either direct or indirect in the context of the nature and purpose of the legislation including the protection of workplace rights.15 The Courts have taken differing approaches to the test to be applied for the ability of a person to make a complaint or enquiry in the manner envisaged in s.341(1)(c); on the one hand the sub paragraphs within the subclause (c) have been seen as conjunctive,16 but on the other it has been held that a careful consideration of the legislation;
“… points to the ordinary meaning of the phrase “is able to” being the correct construction of that phrase in s 341(1)(c) of the FW Act, that being that an employee can make a complaint or inquiry direct to their employer”. 17
[30] The same decision, Devonshire v Magellan Powertronics Pty Ltd & Ors, notes an earlier decision referencing the explanatory memorandum to the Fair Work Bill 2008, which explicitly deals with the subject of to whom a complaint may be made by the employee;
“In Hodkinson v Commonwealth (2011) 207 IR 129 the applicant alleged adverse action by her employer, and that she had made a complaint under s 341(1)(c) of the FW Act. The applicant alleged that the section meant that (Hodkinson at [112] per Cameron FM):

… if a person is able to make a complaint or an inquiry in relation to their employment then that is a workplace right. She submitted that the … [FW Act] did not restrict the person or body to whom such a complaint or inquiry could be directed and, by reference to para 1370 of the explanatory memorandum to the Fair Work Bill 2008, submitted that it included situations where an employee makes an inquiry or complaint to his or her employer.

This Court supported the applicant’s interpretation of s 341(1)(c) of the FW Act: Hodkinson at [131] per Cameron FM, where the Court states as follows:

That paragraph does not limit the class of persons to whom a complaint or inquiry may be made and, in particular, is not drawn in such a way as to exclude a person who makes an a complaint or inquiry to his or her employer. This interpretation is borne out by para 1370 of the explanatory memorandum to the Fair Work Bill which stated:

Subparagraph 341(1)(c)(ii) specifically protects an employee who makes any inquiry or complaint in relation to his or her employment. Unlike existing paragraph 659(2)(e) of the WR Act, it is not a pre-requisite for the protection to apply that the employee has “recourse to a competent administrative authority”. It would include situations where an employee makes an inquiry or complaint to his or her employer.

The applicant in Hodkinson failed because this Court determined that she had not in fact made a complaint or inquiry: Hodkinson at [133] per Cameron FM, but the interpretation of s 341(1)(c) of the FW Act set out above provides for a broad meaning of “is able to”.” 18
[31] While the Court in Harrison v In Control took a contrary view about the provision, that its elements should be seen cumulatively being read restrictively and not broadly, such position appears at odds with the intent set out in the Explanatory Memorandum and referred to above. In Walsh v Greater Metropolitan Cemeteries Trust (No 2), 19 the Federal Court accepted that complaints made by an employee directly to her employer and not to an external body and which had the character of being complaints in relation to her employment met the tests of s.341(1)(c).20

[19] Accordingly, consistent with the approach taken by Commissioner Wilson in Sultana, I accept the reasoning as set out in Devonshire v Magellan Powertronics Pty Ltd & Ors and Hodkinson as that which should be applied here.
[20] The context of Mr Lisha’s case is that he raised a number of complaints with his employer (as detailed above).
[21] I therefore find that Mr Lisha exercised a workplace right by commencing his anti-bullying application in the Commission and when he complained to Ms McDonald on 28 January 2015 about the treatment he was experiencing from Ms McKenna. In finding this complaint to Ms McDonald as a valid exercise of a workplace right, it is not to say it was a complaint with justification; merely that it was a complaint in relation to Mr Lisha’s employment.
[22] It is also to be noted that the respondent did not dispute that the applicant had and/or exercised “workplace rights” during his employment with it.

Did SVDP (NSW) take ‘adverse action’ against Mr Lisha?

[23] The relevant consideration of ’adverse action‘ in this matter is that set out within item 1 of the table in s.342(1) to the effect that;

“Adverse action is taken by…
1 an employer against an employee if…

the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.”

[24] It is uncontested that the evidence supports that adverse action was taken against Mr Lisha in the form of a dismissal.
[25] Accordingly, I find that the decision to dismiss of Mr Lisha was ’adverse action‘ within the meaning of s.342(1).
[26] It is also to be noted that the respondent did not dispute that it took adverse action against the applicant in terminating his employment on 10 August 2015.

Did SVDP (NSW) take the adverse action because of a prohibited reason, or reasons which included that reason?

[27] At this juncture, it is necessary to consider whether the adverse action referred to, being SVDP (NSW)’s decision to dismiss Mr Lisha, can be presumed to have been taken for a prohibited reason. In this regard, and in connection with the evidentiary onus held by the respondent, s.361 provides the following;

“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 FW 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.”

[28] In relation to the question “why was the adverse action taken?”, the High Court has found;

“This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the FW Action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.” 21 (references omitted)

[29] In this matter, in summary, the presumed reasons for Mr Lisha’s dismissal are that he complained to SVDP (NSW) and to the Commission about his manager.
[30] Ms Lucas was the decision maker. Her evidence before the Commission was as follows:

42. This decision to terminate came after an extensive redeployment process and consumed significant resources which demonstrates the decision was not based on Mr Lisha taking sick leave; Mr Lisha filing a bullying claim, or any other workplace right that Mr Lisha may have exercised during his employment with the Society.
43. To be clear, at the time of Mr Lisha’s termination, I was responsible for making decisions about employment termination, employment allocation, and the employment requirements of the Society.
44. I made the decision to terminate the employment of Mr Lisha and I made that decision on the basis that, given Mr Lisha had relinquished the permanent role he was employed to perform at the Society, further or on-going employment for Mr Lisha was not available on a temporary or supernumerary basis.
45. In reaching a decision to dismiss Mr Lisha I was not in any way influenced by the historical fact that:

(a) Mr Lisha had made a workplace complaint (bullying or otherwise) in relation to his employment,
(b) Mr Lisha had made a bullying application to the Commission,
(c) Mr Lisha had participated in proceedings before the Commission,
(d) Mr Lisha had exercised or sought to exercise any “workplace right/s”
(e) Mr Lisha had made a claim for worker’s compensation
(f) Mr Lisha had taken a period of personal/carer’s (sick) leave during his employment,
(g) Mr Lisha had been previously subject to disciplinary action and/or made a complaint about same, or
(h) Mr Lisha suffered from mental disability.

46. Further to paragraph 45, I deny any decision to take disciplinary action against Mr Lisha or terminate his employment involved or encompassed any action or threat to Mr Lisha to coerce him to not:

(a) Make a workplace complaint (bullying or otherwise) in relation to his employment,
(b) Make a bullying application to the Commission,
(c) Participate in proceedings before the Commission,
(d) Exercise or seek to exercise any “workplace right/s”
(e) Make or continue any claim for workers’ compensation, or
(f) Take any period of personal/carer’s (sick) leave during his employment.

[31] The respondent submitted that,

The evidence of Ms Lucas is supported by the objective evidence 22, including Ms Mowen’s evidence.23 Ms Mowen reported to Ms Lucas.24 Ms Lucas gave evidence that she had no basis to question what Ms Mowen had told her in respect of Ms Mowen’s advice that there were no further options for redeployment to the applicant, either with the respondent or at one of its affiliate, on a permanent, on-going or indefinite basis beyond 12 August 2015.25 The issue of the bullying application was not discussed between Ms Lucas and Ms Mowen when Ms Lucas made her decision to terminate the applicant’s employment on 10 August 2015.26

[32] The respondent submitted that:

“a general protections application:

a) does not provide an opportunity for an applicant to raise whatever issues he/she wishes about the validity of the steps taken before his/her dismissal: Khiani v Australian Bureau of Statistics [2011] FCAFC 109 (at [31]-[32]); and
b) is not a broad enquiry as to whether an applicant has been subjected to a procedurally or substantively unfair outcome: Ermel v Duluxgroup (Aust) Pty Ltd (No 2) [2015] FCA (at [48])

8. If adverse action has been taken, attention is to be focused upon the reason/s why that action was taken, and whether the employer has taken the adverse action for a prohibited reason: Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740 (at [16]).

9. A contravention of s.340 of the FW Act is made out of a “substantial and operative” reason for a decision to terminate employment is a prohibited reason: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 (Barclay) (at 535 [104] per Gummow and Hayne JJ); Kennewell v MG & CG Atkins (t/as Carinda Waste & Recyclers) 2015 FCA 716 (at [51]). The same applies in relation to an alleged breach of s.352 of the FW Act: note Ermel v Duluxgroup (Aust) Pty Ltd (No 2) [2015] FCA 17 (at [85]) and see Sperandio v Lynch [2006] FCA 1648 (at [91], dealing with s.170CK(2)(a) of the (now repealed) Work Place Relations Act 1996 which was in the same essential terms as s.352 of the FW Act).

10. In having regard to the above case law principles, ss.360 and 361 of the FW Act should also be noted. In relation to s361, the High Court in Barclay stated (at 517, [44]-[45], references omitted):

“There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision- maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?””

“This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of the other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable, is capable of discharging the burden upon an employer even though an employee may be an officer of an industrial association and engage in industrial activity.” 27

[33] Mr Lisha submitted that the evidence in this matter clearly demonstrates that there has been a blatant abuse of power perpetrated and/or supported by 4 people employed by the respondent (Ms McKenna, Ms McDonald, Ms Mowen and Ms Lucas) and furthermore, that this abuse of power has been exercised against the applicant to his detriment.
[34] After consideration of all of the evidence and the submission which the parties have made, I am satisfied that because Mr Lisha could not perform the inherent requirements of his job and after nearly 6 months of a search for an alternative permanent on-going position the decision to dismiss Mr Lisha was open to SVDP (NSW). The evidence given by Ms Lucas on the subject was plausible and reliable. There is no reason to disregard it. Such satisfaction on my part stands in contradistinction to the proposition advanced by Mr Lisha that he was dismissed for reason of having exercised the workplace rights referred to above, which in practical form are the complaints he made to SVDP (NSW) about his manager.

[35] The plausibility of SVDP (NSW)’s evidence in relation to why Mr Lisha was dismissed was not weakened through cross-examination, or through Mr Lisha’s own evidence. Accordingly, the dismissal, although against Mr Lisha’s interests, was not adverse action because of a prohibited reason. There is no evidence before me that would allow a finding that the dismissal came about because Mr Lisha had exercised the workplace rights described earlier.
[36] Having accepted that the dismissal was open to SVDP (NSW), the timing of it on 10 August 2015 was not satisfactorily explained. Mr Lisha says that it was what occurred in the conciliation conference before Commissioner Bull that tipped-off SVDP (NSW) to the advantages of terminating his employment (i.e. that it would make it impossible for the Commission to issue orders in relation to the anti-bullying application). The conciliation conference happened on 30 July 2015. Ms Lucas’ evidence was that she decided to terminate the employment of Mr Lisha in the week commencing 3 August 2015. The close proximity between the two dates makes attractive an argument that one lead to the other. However, I am not satisfied that is what actually occurred. Ms Lucas’ evidence, which I accept, about the discussion that occurred between her and Ms Mowen on or about 3 August 2015 leads me to believe that her decision to dismiss Mr Lisha was because he had not been in his role as a Bequest Officer for nearly 6 months and attempts to find him on-going permanent employment had failed. Quite simply Ms Lucas had decided that enough was enough.
[37] However, having given Mr Lisha an expectation that his employment would continue at least until 12 August 2015 the decision to bring that forward by 2 days and to terminate his employment with immediate effect lacked decency. It is hard to reconcile that decision with the Christian mission of SVDP (NSW). However, the matter before me is not an application for an unfair dismissal remedy. Therefore, whether Mr Lisha was fairly dismissed is not the domain of this decision, and no findings are made in that regard.
[38] I therefore find that SVDP (NSW) has discharged the onus it holds under s.361 of the FW Act.
[39] The final question to which I turn is whether, irrespective of the employer’s discharge of its evidential onus, there is any other evidence that would lead to a finding that SVDP (NSW) dismissed Mr Lisha because of a prohibited reason, or reasons which included that reason. I find that there is not. I am not satisfied on the evidence before me that the respondent took adverse action against the applicant because he had a mental disability (s.351 of the FW Act) or he had a temporary absence from the workplace due to illness/injury (s.352 of the FW Act) during the period 13 February 2015 15 April 2015.
[40] For the reasons set out above I am unable to find that Mr Lisha was dismissed because of a prohibited reason, or reasons which included that reason. Such finding leads to the further finding that SVDP (NSW) has not contravened the provisions of Chapter 3, Part 3 – 1 of the FW Act.
[41] As a result, Mr Lisha’s application must be dismissed, and an Order to that effect is issued at the same time as this decision.

COMMISSIONER

Appearances:

Mr C Lisha for himself

Mr G Boyce for the Respondent

Hearing details:

2015.

Sydney:

16 November.

 1   C2015/5773

 2     Exhibit “A2”.

 4   Exhibit “R1”, para 28.

 5   Transcript PN151.

 6   Exhibit “R3”.

 7   Transcript PN696-700.

 8   Transcript PN482.

 9   Transcript PN692. The applicant re-characterised this as “re-employment” as a “permanent employee”: PN694-695.

 10   [2014] FWCFB 8941.

 11   Ibid [7]-[15].

 12   Ibid [14]-[15].

 13   [2016] FWC 422.

 14   ALAEA v International Aviations Service Assistance Pty Ltd [2011] 193 FCR 526 at [347]; (2011) 205 IR 392.

 15   Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [64].

 16   Harrison v In Control [2013] FMCA 149 at [73]; (2013) 230 IR 452, per Burnett FM.

 17   Devonshire v Magellan Powertronics Pty Ltd & Ors [2013] FMCA 207 at [64], (2013) 231 IR 198, per Lucev FM.

 18   Ibid [56]–[57].

 19 [2014] FCA 456.

 20 Ibid [64].

 21   Bendigo Institute v Barclay [No 1] [2012] HCA 32, (2012) 248 CLR 500, at [45], per French CJ and Crennan J.

 22   Exhibit R2, Annexures/Tabs 1 to 3.

 23   Exhibit R2, [22]; Transcript PN 469-472; PN625-631.

 24   Exhibit R2, [2].

 25   Transcript PN423-424.

 26   Transcript PN660.

 27   (Footnote 4 of original document) See also Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 (at 540, [121], 541-542, [126] – [128], 546, [146]; CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243 (at [85], [88] and [90]); CFMEU v Endeavour Coal Ltd (2015) 231 FCR 150 (at [32], [34], [73], [75]-[77]).

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