Collison v Brighton Road Enterprises Pty Ltd
[2016] FCCA 186
•5 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COLLISON v BRIGHTON ROAD ENTERPRISES PTY LTD & ANOR | [2016] FCCA 186 |
| Catchwords: INDUSTRIAL LAW – whether the Respondents contravened ss.340 and 352 of the Fair Work Act 2009 (Cth) (“the Act”) – whether the First Respondent dismissed the Applicant’s employment for a reason, or for reasons that included, the reason that the Applicant exercised her workplace right to take personal leave, the reason that she proposed to take personal leave, the reason that she was entitled to the benefit of the Accident Compensation Act 1985 (Vic) and/or the reason that she made an inquiry with her solicitor – whether the First Respondent dismissed the Applicant, because she was absent temporarily due to injury or illness – the First Respondent found to have contravened s.340 of the Act – the Second Respondent taken, pursuant to s.550 of the Act, to have contravened s.340 of the Act. |
| Legislation: Accident Compensation Act 1985 (Vic) Evidence Act 1995 (Cth), ss.97, 38 Fair Work Act 2009 (Cth), s.365, Pt. 3-1, ss.368, 340, 352, 341, Div.7, Pt.2.2, ss.342, 550, 360, 361, 351, 346 Fair Work Regulations 2009 (Cth), r.3.01 |
| CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76 Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307 BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCAFC 132 State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014 |
| Applicant: | JEMMA COLLISON |
| First Respondent: | BRIGHTON ROAD ENTERPRISES PTY LTD |
| Second Respondent: | RABIH YANNI |
| File Number: | MLG 1922 of 2014 |
| Judgment of: | Judge Jones |
| Hearing date: | 21 & 22 September 2015 |
| Date of Last Submission: | 13 November 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 5 February 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fetter |
| Solicitors for the Applicant: | DST Legal |
| Counsel for the Respondents: | Mr O'Neill |
| Solicitors for the Respondents: | Holding Redlich |
THE COURT DECLARES THAT:
In deciding to terminate the Applicant’s employment, the First Respondent contravened s.340 of the Fair Work Act 2009 (Cth) (the Act) by injuring the Applicant in her employment, for the reason that, or for reasons which included as a substantial and operative reason that, the Applicant was entitled to personal leave under the Act.
In deciding to terminate the Applicant’s employment, the First Respondent contravened s.340 of the Act, by altering her position to her prejudice, for the reason that, or for reasons which included as a substantial and operative reason that, the Applicant was entitled to the benefit of the Accident Compensation Act 1985 (Vic).
Pursuant to s.550 of the Act, the Second Respondent is taken to have contravened the Act as set out in Declarations (1) and (2).
THE COURT ORDERS THAT:
The matter be set for a half-day hearing with respect to relief for the found contraventions and the question of penalties on 10 May 2016 at 2:15pm.
In the event the parties are unable to agree in relation to the question of relief and/or do not have agreement as to submissions on penalties, they are to file submissions 10 days prior to hearing.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1922 of 2014
| JEMMA COLLISON |
Applicant
And
| BRIGHTON ROAD ENTERPRISES PTY LTD |
First Respondent
And
| RABIH YANNI |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On or about 18 November 2013, Jemma Collison (“the Applicant”) commenced employment with Brighton Road Enterprises Pty Ltd (“the First Respondent”) as Events Manager at the Grosvenor Hotel, St Kilda East. Her employment was terminated on 23 August 2014.
The First Respondent trades as the Grosvenor Hotel as Trustee of the J Bernard Cabral Family Trust, the Pierre Cabral Family Trust and the Sebastian Catalfamo Trading Trust.
From 21 July 2014, Mr Rabih Yanni (“the Second Respondent”) commenced managing the Grosvenor Hotel. On 29 December 2014, he was appointed a director of the First Respondent. At the same time BST Cube Pty Ltd, a company, of which the Second Respondent is the sole director and shareholder, acquired 50% of the shareholding of the First Respondent. The other director and 50% shareholder of the First Respondent is Mr Sebastian Catalfamo.
The Applicant filed a complaint under s.365 of the Fair Work Act 2009 (Cth) (“the Act”), alleging she was dismissed by the First Respondent in contravention of Pt. 3-1 - General Protections - of the Act (“general protection provisions”). On 8 September 2014, Commissioner Ryan, Fair Work Commission, issued a certificate pursuant to s.368 of the Act, certifying that he was satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
The Applicant claims that the Respondents contravened ss.340 and 352 of the Act. With respect to the alleged contravention of s.340 of the Act, the Applicant claims that she:
a)had a workplace right, within the meaning of s.341(1) of the Act, because she had a right to take personal (sick) leave pursuant to Div.7, Pt.2.2 of the Act, a right to claim payments pursuant to the Accident Compensation Act 1985 (Vic) and the right to make an inquiry in relation to her employment; and
b)the First Respondent engaged in adverse action within the meaning of s.342(1), Item 1 of the Act by dismissing her, because:
i)she exercised a workplace right and proposed to exercise that workplace right to take personal (sick) leave;
ii)she was entitled to the benefit of the Accident Compensation Act 1985 (Vic); and
iii)she made an inquiry to her solicitor in relation to her employment.
With respect to the alleged contravention of s.352 of the Act, the Applicant claims she was dismissed, because she was temporarily absent from work due to illness.
The Applicant claims that pursuant to s.550 of the Act, the Second Respondent is taken to have contravened s.340 and s.352 of the Act.
The Respondents accept that the Applicant had exercised and proposed to exercise a workplace right to take sick leave. They concede she had a right to make a claim under the Accident Compensation Act 1985 (Vic). They do not concede that the Applicant’s representation by her solicitor constituted an inquiry in relation to her employment within the meaning of s.341(1) of the Act.
There is no dispute that the Second Respondent dismissed the Applicant on 23 August 2014, and that, as such, the Respondents engaged in adverse action.
The Respondents submit that the Applicant was dismissed only for the reason that the Applicant failed to assist the First Respondent to facilitate her return to work, in that she disobeyed a lawful instruction made by the Second Respondent to provide him with, or at least to authorise him to gain access to, her medical information. The Respondents submit that the reason for taking the adverse action was not that the Applicant exercised a workplace right (or indeed that she was entitled to a workplace right), but because of her conduct resulting from the exercise or proposed exercise of that right, relating to personal (sick) leave.
The Law
Relevantly, given the issues raised by this Application, the Act prohibits an employer from taking adverse action against an employee, because the employee has a workplace right, has exercised or proposes to exercise a workplace right. The Act also prohibits an employer from taking adverse action against its employee, because the employee has been temporarily absent due to illness/injury of a prescribed kind. Those protections are conferred by ss.340(1) and 352 of the Act.
Section 340(1) of the Act relevantly provides:
A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Section 341(1) of the Act relevantly defines a workplace right as:
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.
Section 342 of the Act sets out the meaning of adverse action and relevantly provides:
(1) The following table sets out circumstances in which a person takes 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
…
Section 352 of the Act provides that:
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
The kinds of “illness” or “injury”, which fall within s.352 of the Act are prescribed by r.3.01 of the Fair Work Regulations 2009 (“the Regulations”). Regulation 3.01 relevantly provides:
Temporary absence–illness or injury
(1) For section 352 of the Act, this regulation prescribes kinds of illness or injury.
Note: Under section 352 of the Act, an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
(2) A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:
(a) 24 hours after the commencement of the absence; or
(b) such longer period as is reasonable in the circumstances.
Section 360 of the Act provides:
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 of the Act provides:
(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.
The effect of s.361 of the Act is to reverse the legal onus in relation to the reason or reasons for which the adverse action was taken. That is to say, at the end of the trial of fact, the question will be whether the Respondents have established, on the civil standard, that the action taken was not taken for a reason, or for reasons which included a reason, proscribed by the legislation. That question is to be answered by reference to all of the evidence which bears upon it: CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 per Jessup J at [27].
Section 361 of the Act comes into operation only after it has been established, not only that adverse action was taken, but also that a relevant workplace right exists “as an objective fact”.
Section 550 of the Act provides:
Involvement in contravention treated in same way as actual contravention
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d)has conspired with others to effect the contravention.
Background
The Applicant was offered employment with the First Respondent at the Grosvenor Hotel, as a full-time Administration and Function Manager (Events Manager) by Mr Nicholas Gordon, (then) Manager of the Grosvenor Hotel. This offer was contained in correspondence dated 2 December 2013. The correspondence stated that the Applicant’s commencement date would be 18 November 2013 (Exhibit A1). Her hourly rate of pay was $27.79.
At the time, the owner of the Grosvenor Hotel was Mr Sebastian Catalfamo.
The Applicant took paid sick leave from 18 August 2014 until 22 August 2014. She provided the Second Respondent with a medical certificate in relation to this leave (Exhibit A2).
On 22 August 2014, the Applicant emailed the Second Respondent, informing him that she would not be attending work on the following Monday, that she was still sick and that she could not say when she would return to work, but would provide medical certificates in relation to further absences (Exhibit A5).
Following an email from the Second Respondent to the Applicant and an email from the Applicant’s solicitor to the Second Respondent on 22 August 2014, the Second Respondent emailed the Applicant on Saturday, 23 August 2014:
a)notifying her of the immediate termination of her employment;
b)advising her that the First Respondent would make a payment in lieu of notice, payment for accrued annual leave and an ex-gratia termination payment; and
c)offering her the opportunity to return to work, subject to “satisfactory medical information demonstrating you have capacity to resume work on or before September 25 2014” on a full-time basis.
Evidence
The Applicant gave oral evidence-in-chief and was cross-examined. Ms Sarah Pettit gave oral evidence for the Applicant and was cross-examined.
The Applicant subpoenaed Mr Gordon to attend and give evidence on two matters. First, the role and conduct of the Second Respondent with respect to an unfair dismissal matter brought by a Mr Sam Kerbadge (a former employee of the Grosvenor Hotel). This evidence was led by the Applicant as tendency evidence: s.97 of the Evidence Act 1995. The second matter was related to a conversation between the Second Respondent and Mr Gordon in or around June 2014 regarding the Applicant. This conversation, the Applicant had said, had been conveyed to her by Mr Gordon.
I found Mr Gordon to be a completely unreliable witness. His responses to examination-in-chief by the Applicant’s Counsel were so vague and non-responsive. He was unable to recall any details of various conversations to which he was party in relation to this matter. He persistently responded to the examination-in-chief, stating “I don’t recall”. After some fruitless attempts to elicit cogent evidence from Mr Gordon, Counsel for the Applicant applied, pursuant to s.38 of the Evidence Act 1995, for leave to cross-examine Mr Gordon on the basis he was an unfavourable witness. Leave was granted.
Although Mr Gordon’s memory improved when he was cross-examined by Counsel for the Respondents, I found Mr Gordon to be an unreliable witness and have not given any weight to any of his evidence.
The Applicant tendered the following exhibits:
a)A1 – a copy of correspondence dated 2 December 2013, comprising an offer of employment by Nicholas Gordon and acceptance by the Applicant;
b)A2 – a copy of the medical certificate issued by Dr Arash Vajedsamiei on 16 August 2014;
c)A3 – a copy of an email exchange between the Applicant and the Second Respondent on 16 August 2014;
d)A4 – a copy of the consultation notes recorded by Dr Hakimzadeh on 19 August 2014;
e)A5 – a copy of an email exchange between the Applicant and the Second Respondent on 22 August 2014;
f)A6 – a copy of an email exchange between the Applicant, her solicitor and the Second Respondent on 22 August 2014;
g)A7 – a copy of an email exchange between the Applicant, her solicitor and the Second Respondent in the period from 22 August 2014 to 23 August 2014;
h)A8 - a copy of an email from the Applicant to her Solicitor dated 1 September 2014;
i)A9 – a copy of the Certificate from Commissioner Ryan of the Fair Work Commission dated 8 September 2014;
j)A10 – a copy of an ASIC – Current and Historical Organisation Extract for the First Respondent created 20 February 2015;
k)A11 – a copy of the Deed of Settlement between Peter Zervos and Modena Nominees Pty Ltd made on 20 December 2006;
l)A12 – a copy of an ASIC – Current Organisation Extract for the First Respondent created 19 August 2014; and
m)A13 – a copy of the Human Rights Commission – Complaint Form, completed on behalf of the Applicant by her lawyer.
The Second Respondent gave oral evidence and was cross-examined. The Respondents tendered the following exhibits:
a)R1 – a copy of a Payslip for the Applicant dated 27 August 2014;
b)R2 – copies of statements from the Applicant’s Commonwealth Bank Streamlined Account;
c)R3 – a copy of the Applicant’s Form F8 – General protections application, Fair Work Commission; and
d)R4 – a copy of an email from Ms Pettit to the Second Respondent dated 28 September 2014.
The Applicant stated that she was hired by the First Respondent as the Event Manager at the Grosvenor Hotel, and her role involved dealing with enquiries relating to private events and helping to grow the upstairs venue (called Number 10), which hitherto had not really been used.
The Applicant said that initially she worked from 10:00am to 6:00pm five days a week and that these hours were reduced by Mr Gordon from 10:00am to 4:00pm, in lieu of a promised pay rise.
The Applicant stated that she had received no training from the First Respondent. She said that when she took three days absence in her first year of employment, a Ms Erin Delaney took care of the bookings for private events.
She said that on 11 August 2014, the week prior to the week she took sick leave, she made a booking for 150 people at the Grosvenor Hotel on the evening before the AFL Grand Final. She said she was pleased with this booking, as she had checked the figures on the previous Grand Final Eve nights, which showed the venue was not particularly busy. She said that on 15 August 2014, the following occurred:
a)the Second Respondent told her, whilst she was in her office, that she should not have taken the booking;
b)she responded, “Look, I’m not sure how to explain to the people, because they have seen it on the website. … I’m not really sure how to give that information to them and still retain the booking. … Would you mind sitting in with me and showing me how to deliver that information?”;
c)The Second Respondent responded, “I can’t do my effing (sic) job and yours as well”;
d)she then said, “I’m not expecting you to do my job as well. I would just like to know how you think the best way is to deliver this information so that I know is (sic) the future as well”;
e)the Second Respondent left the office and called her to continue the discussion in the downstairs cocktail bar, which was public and in the presence of other staff;
f)he then said to her, “You know, obviously, you don’t understand what it is that I want for the business. You don’t have a lot of confidence in what I’m doing. And maybe you need to rethink, you know, where you’re at (sic) the moment”;
g)after she said that she just wanted more training, the Second Respondent said that if she felt she needed more training at that point or if she needed to be guided through these things, then she should probably rethink her career path;
h)she then said, “Do you want me to resign? … I’m not sure what you wanted…” The Second Respondent responded, “No, I didn’t say that. I just think you need to give thought to where you’re at.”
The Applicant said that this conversation with the Second Respondent caused her anxiety and stress and she attended a General Practitioner the next day to get some advice on how to manage her anxiety. The doctor provided her with a medical certificate (Exhibit A2). The medical certificate issued by Dr Arash Vajedsamiei stated that:
“This is to certify that Ms Jemma-Sue Collison
attended this centre on 16/08/2014 because of (sic) medical condition.
I conclude by reason of her stress and anxiety that she is unable to attend work from 18/08/2014 to 22/08/2014 inclusive.”
The Applicant emailed the Second Respondent on Saturday, 16 August 2014 at 6:50 pm (Exhibit A3). In that email she stated:
“I will be unable to attend work this week due to severe stress and anxiety related to work. I have attached my medical certificate for the week (18.08.14 – 22.08.14). I have further documentation regarding this that I will send to you when I have copies.”
The Second Respondent responded to the Applicant by email at 7:00pm (Exhibit A3). His email was headed, “WITHOUT PREJUDICE” and stated:
“Sorry to hear of this development, as recent as it is; particularly given there were no signs of this when you left work, 4pm Friday August 15 2014.”
The Applicant said that Ms Pettit filled in for her whilst she was on sick leave.
The Applicant said that the Second Respondent’s response to her email added to her distress, as she felt that she would be “in trouble” and “treated even worse”. She attended her usual doctor, Dr Hakimzadeh, on 19 August 2014. She stated that Dr Hakimzadeh recommended that she take a further week off work, because her symptoms had persisted. The Applicant tendered a copy of the consultation notes recorded by Dr Hakimzadeh on 19 August 2014 (Exhibit A4). The Applicant stated that she also saw her psychologist, Ms Jane Weaver, the next day.
On Friday, 22 August 2014 at 4:00pm, the Applicant emailed the Second Respondent, stating (Exhibit A5):
“Hi Rabih, I am still sick. I will not be back at work on Monday and I cannot say when I will be able to return to work. I will provide medical certificates to you in due course to cover all my absences.”
The Applicant gave evidence that she had an appointment the following Monday with Dr Hakimzadeh and an appointment with Ms Weaver on the following Tuesday.
On Friday, 22 August 2014 at 4:09pm, the Second Respondent emailed the Applicant, stating (Exhibit A5):
“I am very concerned to learn you are unfit for work for a second consecutive week. I would like to have a dialogue with you about your return to work.
I’m conscious your entitlement to paid sick leave has been exhausted.
Any workers compensation claim is likely to be rejected (although I am not discouraging you from making a claim).
Regardless of the above, I am obliged to provide reasonable assistance to return you to work safely. In order to do this, I need more details from a medical practitioner as to your current capacity for work and your prognosis over the short term. The best way forward is for you to let me speak to your doctor. You might be able to suggest other ways to get me this information. Please let me know as a matter of urgency.
You have an obligation to cooperate with my efforts to return you to safe work. Any unreasonable failure to assist me to meet my obligations will be a disciplinary matter and may jeopardise your ongoing employment.”
The Applicant’s evidence in relation to that email was that:
a)she believed she had, perhaps, one or two days of accrued paid sick leave left;
b)she had not raised with the Second Respondent that she may or may not be making a workers compensation claim;
c)she did not want to give him authority to access her medical records or to speak with her doctor, because her initial anxiety, which was aggravated by the conversation with the Second Respondent on 15 August 2014, arose from sexual harassment in the workplace by Joe Catalfamo. She had discussed this with her General Practitioner and did not want the Second Respondent reading this material, as she had not yet decided how to proceed in respect of her sexual harassment claims. She tendered clinical notes made by Dr Hakimzadeh on 19 August 2014 (Exhibit A4);
d)she understood the reference to her obligations to cooperate with him, as being a statement that if she did not let the Second Respondent speak to her doctor, she would potentially lose her job.
The Applicant stated that she wanted to understand whether the Second Respondent had a right to talk to her doctor. So she contacted her lawyer, Ms Dominica Tannock, that afternoon. She said Ms Tannock would respond on her behalf.
On Friday, 22 August 2014 at 5:06pm, Ms Tannock of Beaumont Lawyers, emailed the Second Respondent, informing him that they acted for the Applicant and that the Applicant had forwarded to them his email dated 22 August 2014 for their response. The email then stated (Exhibit A6):
“Our client is sick and will not be returning to work until further notice.”
On Saturday, 23 August 2014, the Second Respondent emailed the Applicant and copied the email to Ms Tannock. The email stated (Exhibit A7):
“On Friday I requested your cooperation in obtaining medical information as to your current capacity for work and your prognosis over the short term. This was to enable me to facilitate your return to work. I reminded you of your obligation to cooperate with my efforts to return you to safe work. I indicated any unreasonable failure to assist me to meet our obligations would be a disciplinary matter and would jeopardise your ongoing employment.
Later in the evening your solicitor informed me (presumably with your instructions) you were ‘sick and will not be returning to work until further notice.’
The response is highly unsatisfactory and provides grounds for dismissal. Accordingly, this e-mail provides you notice of the termination of your employment with immediate effect. The reason for your dismissal is your unreasonable failure to assist me to facilitate your return to work.
Brighton Road Enterprises will make an appropriate payment in lieu of notice and for unused annual leave. Although the Company is not obliged to do so, it will make a payment of 1.58 hours pay less applicable tax as an ex gratia termination payment. This figure corresponds to the small amount of unused sick leave which you would have if you had served your notice period.
As a further gesture, the Company gives the following undertaking on an unconditional an open basis. If you are able to provide me with satisfactory medical information demonstrating you have capacity to resume work on or before September 25 2014 in your position as full-time events manager at the Grosvenor Hotel, the Company will re-employ you in that position on the same terms and conditions of employment as you enjoyed immediately before your dismissal.
In the meantime please return to me all property in your possession belonging to (sic) Grosvenor Hotel.”
The Applicant gave the following reasons why she did not accept the Second Respondent’s offer of re-employment:
a)she believed, having been present during a conversation between the Second Respondent and an employee, whose employment was terminated by Mr Gordon, that the offer was not genuine and was designed to make the Second Respondent appear reasonable; and
b)Mr Joe Catalfamo was still heavily involved in the business, she knew that the Second Respondent was very unhappy with her and, consequently, it would not be a great environment to return to. Her psychologist, Ms Weaver had told her it would be an extremely hostile environment.
She stated that losing her employment had a profound and devastating effect on her. She said prior to her employment with the First Respondent she had two jobs, one lasted for 10 years and the other for three years, and that her position with the First Respondent was a combination of both. She stated that the Catalfamo’s were a well-known family and she anticipated enjoying an ongoing career. She said the loss of employment was particularly difficult as she is responsible, by way of child protection order, for her 17-year-old brother.
The Applicant stated she suffers the following effects:
a)chronic anxiety and depression;
b)sleeplessness and lethargy; and
c)she is prescribed and takes Xanax for anxiety, Pristiq for depression and Fluvoxamine for anxiety and depression.
She believes her personal relationship of some 2½ years broke up, because she was not easy to live with, due to the effect on her of losing her job.
She said that since her dismissal she has been doing casual work in events management at a function centre. She first obtained employment at the end of October 2014 for one or two nights per fortnight. Her evidence is that from the date of her dismissal to the date of this hearing (21 September 2015) she has earned in the vicinity of $12,000 gross.
In cross-examination, the Applicant:
a)said she was still taking the medication, but the dosage was reduced;
b)said her depression and anxiety, as a consequence of the sexual harassment, was exacerbated by being bullied in the workplace by the Second Respondent;
c)agreed that she was told by her General Practitioner to take another week off, when she attended his clinic on 19 August 2014, but did not inform the Second Respondent until 22 August 2014 that she would not be at work on Monday, 25 August 2014. She said she had hoped that by Friday, 22 August 2014 she would feel better and could have returned to work;
d)said she believes she was only required to provide the Second Respondent with medical certificates as to her incapacity for work and not access to her medical records;
e)said her role was different under the Second Respondent’s management to when Mr Gordon was Manager. She said that without adequate training it was quite difficult to meet the Second Respondent’s expectations. She disagreed that she was not coping with the level of demand. She said she simply wanted more training;
f)denied that she started obtaining legal advice to insure herself against a dismissal for poor performance;
g)said she was paid in cash for her causal work in events management after her dismissal and received payslips for the wages paid. She agreed that she has not provided or produced those payslips. She denied that she had not provided her bank statements to the Respondents and stated she was not asked for her tax return;
h)agreed that for the financial year ending 30 June 2015, she earned $12,836.34 gross from the First Respondent (Exhibit R1);
i)said she receives a Kinship payment and Family Tax Benefit from the Commonwealth and Victorian Governments for the care of her brother. In total these payments amount to approximately $949 a fortnight;
j)denied that she had not disclosed all the financial information she was asked to provide and that her income following her termination was significantly more than $12,000.00;
k)denied she had only recently informed her lawyer about the involvement of the Second Respondent in Mr Kerbadge’s dismissal by the First Respondent. She agreed that her evidence that the Second Respondent had referred to her in a conversation with Mr Gordon as “that little monster” was only raised in the hearing;
l)denied that she had exaggerated her medical symptoms;
m)agreed that given the persistence of her anxiety and depression, she would not have lasted more than one year in the employment of the First Respondent. In re-examination, the Applicant said that if the First Respondent had protected her from sexual harassment and the Second Respondent had acceptably moderated his behaviour towards her, she would have stayed in employment with the First Respondent; and
n)agreed that the answer she gave in the Form F8 – General protections application in the Fair Work Commission at 3.2, that her employment with the First Respondent was her “sole source of income” (Exhibit R3), was not correct, as she received Government benefits. She stated that this form was drafted by her solicitor.
Ms Pettit gave evidence that:
a)she commenced working as Duty Manager at the Grosvenor Hotel with the First Respondent in or around May 2014. She worked as a salaried employee for around 60 to 70 hours per week and reported directly to Mr Gordon;
b)she resigned from her employment in September 2014;
c)she became aware that the Applicant was “off sick for a little bit” when she arrived at work one day and the Second Respondent said to her “before you start gossiping, I’m letting you know Jemma no longer works here.” She said he showed her an email from the Applicant in which the Applicant said she was suffering from stress and anxiety and that she “wouldn’t be back till a certain date.” She said she was then asked to take over the Applicant’s role, being the organisation of the events;
d)she confirmed that the email the Second Respondent showed her was the email sent by the Applicant dated 16 August 2014 (Exhibit A3). She said she could not remember exactly what day it was that she was shown the email; and
e)when she was later recalled, at the request of the Respondents’ Counsel, and gave evidence by telephone link, it was put to her that this conversation occurred after Saturday, 23 August 2014. She responded that she believed so. Later in re-examination she said that she remembered the conversation, but not the day on which the conversation occurred.
The Second Respondent is a Director of the First Respondent and commenced managing the Grosvenor Hotel on 21 July 2014. His evidence is that he manages the day-to-day affairs of the Grosvenor Hotel, with little or no input from Mr Sebastian Catalfamo. He said he was the sole decision-maker with respect to each and every decision relevant to these proceedings. The Second Respondent gave the following evidence-in-chief:
a)he has worked in hospitality for 22 years, including managing and/or owning the Point Hotel and the Mentone Hotel, both of which had some relationship with the First Respondent;
b)the Applicant’s role involved dealing with reservations, event enquiries, total book-outs of private and semi-private areas of the Grosvenor hotel. He said the Applicant’s role was instrumental to the business and that she was doing “great things”;
c)with respect to his conversation with Ms Pettit regarding the Applicant’s absence in the August 2014 period, he stated that he believed the conversation may have occurred subsequent to the Applicant’s second email (on 22 August 2014). His evidence was that he said to Ms Pettit that he thought the Applicant’s absence was going to go on a bit longer than he had thought and he had to make alternate arrangements;
d)with respect to the aftermath of the dismissal of Mr Kerbadge by Mr Gordon, he said he got involved because there was a family connection with Mr Kerbadge and so, to save embarrassment, he offered Mr Kerbadge employment at the Point Hotel, which he was managing at the time. He denied that he said he would re-employ Mr Kerbadge and make life hell for him;
e)denied he had a conversation with Mr Gordon about the Applicant in or around August 2014;
f)with respect to the conversation he had with the Applicant on 15 August 2014, regarding her booking for Grand Final eve, he said that he disagreed with the decision of the Applicant and told her so. He said that he was not very calm at the time, but the conversation was calm. He confirmed the Applicant asked for further guidance and stated that they had reached a resolution prior to the Applicant leaving work that day;
g)he had written in his email, sent to the Applicant on 16 August 2014, “given there were no signs of this” (referring to the Applicant’s claim she was suffering from stress and anxiety), because he would have expected her to have given him an indication of what was going on and not just sending him an email. He said he was trying to run a very busy hotel. He said that he used the term “WITHOUT PREJUDICE” at the commencement of his email, because he was being cautious;
h)his reaction to the email sent by the Applicant on 22 August 2014 was, “I thought I was being set up”. He said that he thought, “this is creating a disruption. I’m being set up. There’s something else going on. I need further information”;
i)he had written in his email sent to the Applicant on 22 August 2014, “I’m conscious your entitlement to paid sick leave has been exhausted”, because he wanted to let her know her position;
j)he had written in his email sent to the Applicant on 22 August 2014, “Any workers compensation claim is likely to be rejected…”, because there was distrust on his part and because he had a feeling he was being set up for something;
k)his reason for dismissing the Applicant was that, he had wanted to get a response from her to find out when and how she was coming back to work. The response made on her behalf, by her solicitor, was too open ended. He operated in an environment “where you don’t get a second chance at a first impression. It’s line work” and he needed to know what was going on. He said there was no other reason for dismissing her;
l)his reason for dismissing her did not include a reason that:
i)she had exercised her right to take paid sick leave in the week leading up to the dismissal;
ii)she was attempting to take unpaid sick leave in the following week;
iii)she was engaging a solicitor to communicate with him about her employment situation; or
iv)he was forestalling any potential WorkCover claim; and
m)his intention in offering the Applicant re-employment in his email dated 23 August 2014 was to work out a way forward. He said that the offer of re-employment still remains. He clarified that he was (in the proceedings) extending an offer of reemployment to her.
In cross-examination the Second Respondent:
a)conceded that, during the conversation he had with the Applicant on 15 August 2014, with respect to bookings for Grand Final Eve, she was upset and in tears. He agreed that the Applicant had asked him for some training. He denied that he said that if she felt like she needed some training, that she would need to consider moving on;
b)said that although the Applicant was crying during the conversation with him on 15 August 2014, he did not take her reference to “stress and anxiety” in her email as connected to that conversation. He maintained that he was an observant person and he did not observe any stress and anxiety on the part of the Applicant;
c)responding to a proposition question from Counsel, that the reason he used the term “WITHOUT PREJUDICE” at the commencement of his email dated 16 August 2014, was because he had formed the view that the Applicant was being strategic, he said, “I was being cautious, yes”. He later stated that upon reflection he was being “overzealous”;
d)denied that he showed the Applicant’s email dated 16 August 2014 to Ms Pettit or said “Before you start gossiping, Jemma no longer works here”. He said he told Ms Pettit that she needed to look after enquiries for the week, but did not refer to the Applicant by name or any emails;
e)agreed that the Applicant’s email dated 22 August 2014, in which she stated she would be providing medical certificates to cover all her absences, was a responsible email. He said he doubted the bona fides of the Applicant, at that stage, because she waited until 4:00pm on Friday to send the email;
f)said he had formed the view, following this email, that the Applicant was going to exit the business, as there was an element of distrust on both parties behalf. He denied that he had already formed the view she would exit the business at his instigation;
g)conceded that his email responding to the Applicant, sent by him on 22 August 2014 was “perhaps heavy-handed”;
h)said that he decided on the content of that email, after he had done some searching on the Internet on how to manage the problem. He denied he obtained legal advice on how to manage the problem;
i)disagreed with the proposition that the majority of employees would not allow an employer to speak to their medical practitioner regarding any medical condition;
j)agreed that ordinarily if an employee wants sick leave, paid or unpaid, it is sufficient that they give an employer a medical certificate, in which a doctor verifies that they are unfit for work, and agreed that the requests he made of the Applicant, in his email dated 22 August 2014, that she satisfy him she had a capacity to work, went beyond the usual course;
k)denied that he was annoyed by the email from the Applicant’s solicitor to himself;
l)accepted that the Applicant was not requesting him to provide a return to work, which necessitated any workplace readjustment. He said the Applicant’s responses were too open-ended and he wanted to understand the circumstances of her illness and when she would return to work;
m)agreed that by failing to contact the Applicant himself, instead of forwarding the email advising her that she was dismissed, he foreclosed any opportunity to talk to the Applicant regarding her return to work; and
n)said that he kept the Applicant’s position open and only employed a replacement in early November 2014. He said the person in question formerly worked at the Point Hotel. He said that, although he had employed a replacement for the Applicant, there was sufficient work to have two people employed in that role.
Submissions
Applicant’ s submissions
The Applicant’s written submissions as to the liability of the Respondents for contravening ss.340 and 352 of the Act are as follows:[1]
[1] Applicant’s Outline of Submissions filed 7 September 2015. It is to be noted that in her written submissions, the Applicant refers to the First Respondent as "BRE".
11. In substance, Ms Collison claims that BRE dismissed her for one or more of the following four reasons:
(a) Reason 1: because she took paid sick leave in the week 18 to 22 August 2014;
(b) Reason 2: because she took, or tried to take, unpaid sick leave in the week commencing 25 August 2015 (and/or because it feared she would keep taking such leave);
(c) Reason 3: because she had complained about her employment to her solicitor; and/or
(d) Reason 4: to forestall any Workcover claims, or to protect itself should Ms Collison make such a claim.
12. Mr Yanni’s reasons are deemed to be those of BRE: s 793(2). BRE bears the onus of disproving the alleged reasons: s 361. If any of the alleged reasons formed any operative part of BRE’s actual reasons for decision, it will be liable: s 360.
13. The search is for the “real” or “true” reasons for the dismissal. This will involve consideration of the decision-maker’s evidence, as well as other evidence which either confirms or else casts doubt on that evidence. A trial judge is not bound to believe the evidence of the decision-maker: see CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243.
Reason 1: sick leave 18-22 August
14. Section 352 prohibits dismissals done because the employee is temporarily absent from work because of an illness or injury prescribed by the regulations.
15. To take the benefit of this protection, the Fair Work Regulations 2009 (Cth) relevantly requires the employee to provide their employer with a medical certificate within the prescribed time (reg 3.01(2)) or else to provide their employer with evidence that would satisfy a reasonable person that they are “not fit for work” because of a personal illness (reg 3.01(4), referring to s 97(a) of the Act).
16. Ms Collison provided a medical certificate to BRE on 16 August 2014, two days before she commenced her leave. Accordingly she comes within reg 3.01(2).
17. It follows that if BRE dismissed Ms Collison because she took this leave, it contravened s 352 of the Act.
18. The dismissal would also contravene s 340(1)(a)(ii) of the Act, since taking the leave was the exercise of a workplace right [see s 341(1)(a)] conferred by the National Employment Standards [Pt 2-2 div 7 of the Act].
Reason 2: sick leave starting 25 August
19. The email which Ms Collison sent at 4pm on Friday 22 August would satisfy a reasonable person that she was unfit for work starting from Monday morning, for the purposes of reg 3.01(4). At the very least it would so satisfy a reasonable person on an interim basis, given that the law allowed her until Tuesday morning to provide BRE with any medical certificates, for the purposes of reg 3.01(2).
20. Accordingly, the protection of s 352 was triggered and it follows that if BRE dismissed Ms Collison because she invoked her right to take unpaid leave, it contravened s 352 of the Act.
21. Alternatively, if BRE’s motivation for dismissing Ms Collison was a fear that she would continue taking unpaid sick leave, that would be a contravention of s 340(1)(a) or (b); Ms Collison had a “workplace right” [s 341(1)(a)] to take up to 3 months’ unpaid leave, under s 352 and the regulations, provided she could substantiate her illness on a continuing basis.
Reason 3: complaint to solicitor
22. Ms Collison had a workplace right to make a complaint or inquiry in relation to her employment: s 340(1)(c)(ii). She made such a complaint or inquiry to her solicitor, who then advocated on her behalf in dealing with BRE.
23. If BRE dismissed Ms Collison because of this circumstance, it has contravened s 340(1)(a)(ii) of the Act.
Reason 4: Workcover claim
24. Mr Yanni’s reference to “Workcover” raises the suspicion that he was motivated by a desire to forestall any claims or complaints by Ms Collison to that agency, or else to defeat any such claim that might be made. If that was his motivation, BRE contravened s 340(1)(a)(i) or (ii), or else s 340(1)(b).
25. Under Victorian Law, Ms Collison had a right to make a claim for statutory worker’s compensation benefits: Accident Compensation Act 1985 (Vic) s 82 and pt 4 generally. These claims are dealt with by Workcover: the “Victorian WorkCover Authority” continued in existence by s 491 of that Act. She also had a right to bring an action for damages against BRE for negligence, subject to meeting certain statutory pre-conditions: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) pt 7.
26. These are laws regulating the relationship between employers and employees with respect to occupational health and safety, or else with respect to liability for workplace injuries, and so are “workplace laws” (within the meaning of s 12(d) of the Act) giving rise to “workplace rights” (within the meaning of s 340 and 341(1)(a) of the Act).
The Applicant, in her closing submissions, deals with the Respondents’ argument (at paragraph 3.13 of their Outline of Submissions filed on 4 September 2015) that, “…the mere seeking of legal advice in relation to employment is not sufficient to amount to the exercise of a workplace right.” The Applicant submitted that the Respondents’ argument was contrary to the authority. The Applicant submitted:[2]
[2] Applicant 's closing submissions at [74] to [82].
74. At paragraphs 3.13, of their Outline of Submissions filed before the trial, the Respondents suggest that seeking legal advice in relation to employment is not a complaint or injury “in relation to” their employment, within the meaning of s 341(1)(c)(ii) of the Act.
75. This submission is contrary to authority.
76. In Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307; [2013] FCA 908, an employee sought legal advice about her entitlement to a commission which was payable under her contract. Jessup J found (at[143]) that an employee who seeks legal advice makes an “inquiry”, and that s 341(1)(c)(ii) was broad enough to cover making inquiries about a person’s “rights under his or her contract of employment or other agreement with his or her employer”. His Honour did not need to consider the case where an employee’s rights arose under an award or legislation.
77. Murrihy was distinguished on its facts in Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271. In Shea, an employee complained of sexual harassment. The harassment was not said to breach any of the employee’s employment entitlements. Dodds-Streeton J ruled that a complaint under s 341(1)(c)(ii) had to be “underpinned” (in the sense of relating to) some employment entitlement under contract, award or legislation (at [625].(sic)) and that a baseless accusation of harassment did not suffice (at [631]).
78. A very recent Federal Court case also comes close to the present facts. In Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014, there was an issue about whether employees were entitled to a “representative”, versus a mere “support person”, when consulting with management about redundancies. The resolution to that question depended on the construction of the enterprise agreement. A union official, Mr Scott, told the company “I will be seeking legal advice on the company’s position”: see [92]. He was then dismissed. The question was whether Scott had sought to exercise a “workplace right”. Reeves J ruled that he had.
79. The present case is directly on point, in terms of its facts, with Murrihy and Clermont Coal. It is also consistent with Shea. Collison sought legal advice and representation from Tannock in relation to her entitlement to sick leave and/or her obligation to comply with Yanni’s request to speak to her doctor.
80. Those rights and obligations flow, at least in part, from her contract. The answer to the question would depend on an examination of the express terms of her contract – particularly the “Leave Entitlements”, the “Safety & Welfare” and the “Termination” clauses – and any implied terms.
81. Those rights and obligations also flow from statute. The answer to Collison’s questions depend on the operation of the National Employment Standards rules about leave (Act pt 2-2 div 7), the unfair dismissal regime (Act pt 3-2) and the general protections regime (pt 3-1).
82. It should be noted that in Evans v Trilab Pty Ltd [2014] FCCA 2464, Lucev J considered the authorities and concluded, at least for the purpose of determining whether there was an arguable case to proceed to trial, that a complaint or inquiry “need not arise from a statutory, regulatory or contractual provision” (at [61]). The correctness of that view need not be considered in the present case, since Collison’s inquiry to Tannock did relate to her rights and obligations under her contract and under the Act.
In the Applicant’s Closing Submissions, she submitted the following findings of fact were open to the Court:
a)the Second Respondent, because of his long experience as a Manager in the hospitality industry, has a sound understanding of workplace laws governing employees’ entitlements to sick leave, WorkCover and relief from unfair dismissal;
b)in late 2013, the Second Respondent attended a meeting at the Point Hotel together with the Applicant and Mr Gordon, regarding the unfair dismissal claim of Mr Kerbadge, at which the Second Respondent said to those present that he would offer Mr Kerbadge employment at the Point Hotel, which would help in the defence of the claim, but that if Mr Kerbadge accepted the offer, he would “make his life hell”;
c)with respect to the Applicant’s first week of sick leave:
i)the Second Respondent’s email to the Applicant on Saturday, 16 August 2014 expressing his concern for the Applicant “was sarcastic”;
ii)the Second Respondent admitted at trial that he was being “set up” by the Applicant and was being cautious. Consequently, an inference can be drawn from this evidence and the Second Respondent’s subsequent email that he feared that a WorkCover claim was imminent;
iii)during this week the business was able to operate successfully in the Applicant’s absence; and
iv)the Second Respondent showed Ms Pettit, on one morning that week, the Applicant’s email dated 16 August 2014 (Exhibit A3), and told her that the Applicant no longer worked at the Grosvenor Hotel;
d)with respect to the Second Respondent’s email sent to the Applicant on Friday, 22 August 2014 (Exhibit A5):
i)it can be inferred that the Second Respondent undertook his Internet search in the days prior to sending the email;
ii)it can be inferred that the Second Respondent must have been searching for advice on how to “set up” the dismissal of an employee taking sick leave, in a way designed to protect the employer from litigation. His denial in cross-examination that he engaged in this conduct should be rejected as not credible, given his ‘self-serving’ statement, “I am not discouraging you from making a (WorkCover) claim”;
iii)the Second Respondent’s evidence that he was concerned for the Applicant’s well-being should be rejected, given he failed to attempt to communicate with her, other than in writing. It can be heard that he wanted everything in writing, in case there was litigation;
iv)a reasonable reading of the email sent by the Applicant’s solicitor on 22 August 2014 (Exhibit A6) was that she was simply confirming the status quo on behalf her client. The Second Respondent admitted that had he not dismissed the Applicant on the Saturday, further communication with the solicitor was likely in the following week;
v)the Second Respondent’s denial that the email from the Applicant’s solicitor did annoy him is not credible, given his evidence that he decided to dismiss the Applicant on the Friday afternoon, immediately after receiving the Applicant’s solicitor’s email; and
vi)it can be inferred that the Second Respondent:
1. did not want any further dealings with the Applicant’s solicitor, so he forestalled this by dismissing the Applicant; and
2. viewed the solicitor’s email as part of the “set up”, which would culminate in a WorkCover claim by the Applicant against the First Respondent; and
e)With respect to the dismissal on 23 August 2014 (Exhibit A7):
i)the Second Respondent conceded there was no real urgency for the dismissal, given the business was able to cope without an Events Manager until 5 November 2014, when Ms Wills was hired.
The Applicant submitted that based on these findings of fact, the Court should find that the Applicant was dismissed in whole or in part because:
a)she had taken paid sick leave commencing Monday, 18 August 2014;
b)she sought to be absent from work, due to illness, commencing Monday, 25 August 2014;
c)she had made a complaint or inquiry to her solicitor about her rights to take such leave; and
d)she had the right to make a WorkCover claim, which right the Second Respondent feared she would exercise.
Consequently, the Applicant submits the Court should find that the First Respondent contravened ss.340 and 352 of the Act, as set out in the Applicant’s Outline of Submissions. The Court should further find the Second Respondent to be an accessory to those contraventions pursuant to s.550 of the Act.
The Applicant submits that be Second Respondent was not a credible witness, when giving evidence in relation to particular matters, including: “his denials of knowing (the Applicant) was the victim of sexual harassment; his account of his dealings with the Kerbadge matter; his discussions with Gordon at “Adrian’s” party; the timing of his request for Sarah Pettit to perform (the Applicant ’s) role; and his denials (in evidence-in-chief) of the alleged reasons for dismissing (the Applicant).”
These submissions do not seem to me to amount to an overall attack on the credibility of the Second Respondent. Rather the submissions are directed to, on the one hand, what findings I should make on the balance of probabilities, in relation to the Kerbadge matter, the Second Respondent’s conversation with Mr Gordon and his conversation with Ms Pettit. On the other hand, it is a general submission as to whether I should accept, having regard to the totality of the evidence and the circumstances before me, the reasons given by the Second Respondent for dismissing the Applicant, were the true reasons.
As I have indicated earlier, I have not taken into account any of Mr Gordon’s evidence, because of his unreliability as a witness. The matters alleged by the Applicant in relation to Mr Gordon’s conversation with the Second Respondent (at a social gathering) are hearsay. The Second Respondent denies the conversation occurred with Mr Gordon. In these circumstances, I am not satisfied that the hearsay conversation occurred.
I do not propose to make any findings in relation to the Kerbadge matter. This is because the purpose of this evidence was as tendency evidence in relation to genuineness of the Second Respondent’s offer of re-employment to the Applicant in his email dated 23 August 2014. I have formed the view that it is unnecessary to deal with the Applicant’s reliance on this evidence. This is because the evidence of the Second Respondent and Applicant was to the effect that both parties had lost trust and confidence in each other. Given this, I am not satisfied that the Second Respondent’s offer of re-employment to the Applicant in his email dated 23 August 2014, and his apparent continuing offer of re-employment proffered by him during his evidence, were genuine.
I do not find the Second Respondent’s evidence, that he was not aware of the content of the Applicant’s sexual harassment complaint against Mr Joe Catalfamo, credible. The Second Respondent strikes me as a person who would make it his business to be across every matter affecting his business, in particular those that may result in costs or adversely affect the reputation of the business. However, I do not draw general credibility findings against the Second Respondent on this basis.
As to the evidence regarding the conversation between Ms Pettit and the Second Respondent, I make findings below.
The overall question of the discharge by the Respondents of their evidentiary onus, pursuant to s.361 of the Act, is dealt with below.
In her Submissions in Reply, the Applicant submits that the Respondents’ argument that the Second Respondent required the information from the Applicant about her return to work, because of the needs of the business, is contradicted by the totality of the evidence:
a)there was no urgent need to cover the Applicant’s absence(s) from work. Arrangements were made by the Second Respondent for Ms Pettit to perform the Applicant’s work up until her resignation, effective 27 September 2014. The Applicant’s role was filled by Ms Wills on 5 November 2014;
b)the Applicant had not made a request that she returned to work on a modified or “safe” basis;
c)the act of the Second Respondent in marking his email dated 16 August 2014 (Exhibit A3) “WITHOUT PREJUDICE”, is at odds with the Second Respondent’s professed concern about the Applicant’s safe return to work;
d)the Second Respondent only referred to the Applicant’s capacity to return to work after he had searched the Internet, and in the context of an email, which warned the Applicant about her potential dismissal; and
e)the Second Respondent’s request to speak to the Applicant’s General Practitioner exceeded that which was necessary to accommodate any health and safety concerns. Medical certification as to the Applicant’s capacity by her treating General Practitioner, would have been sufficient to inform the Second Respondent about these matters. The Second Respondent admitted this was the first time he had asked to speak to an employee’s General Practitioner.
The Applicant submits that the haste with which the Second Respondent acted to terminate the Applicant contradicts the direct evidence of the Second Respondent as to his reason or reasons for terminating the Applicant:
“10. …Mr Yanni’s haste is not compatible with a genuine concern for the Applicant’s health and safety. At 4pm on Friday 22 August, the Applicant asked for further sick leave and promised to provide medical certificates in due course. Nine minutes later he sends his email warning of dismissal. He does not call the Applicant, even though he has her number. At 5:06pm, Ms Tannock emails to confirm the Applicant will be taking further sick leave. She does not say that the request to speak to the doctor has been refused. She does not say that no further communications will be entered into about the matter. A reasonable employer would understand that, given that late hour, the matter was being deferred until the following week. Mr Yanni does not email or call Ms Tannock to find out more information. He does not wait until the following week to speak to the Applicant, to Ms Tannock, or to review the medical certificates that had been promised. He decides (so he says) right then to dismiss the Applicant. He does that even though there is no objective reason why he needs to know, on the Friday, the nature of the Applicant’s illness. A reasonable employer, acting without unlawful motives, would have deferred consideration of the Applicant’s fitness to work, and any modifications she might require, until closer to the time at which the Applicant was due to return to work.”
The Applicant submits that:
a)it was the Second Respondent’s evidence that he thought he was being “set up” by the Applicant;
b)the Second Respondent’s email dated 22 August 2014 discloses a fear on the part of the Second Respondent that the Applicant may make a workers compensation claim;
c)this fear was escalated when it became known to the Second Respondent that the Applicant was represented by a solicitor; and
d)immediately thereafter, the Second Respondent sent the Applicant an email terminating her employment.
The Applicant submits that the Second Respondent knew the Applicant had a workplace right to take absence due to illness, that the Applicant had a right to make a WorkCover claim, which he feared she would do, and so dismissed the Applicant:
“12. … with all of these matters at the front of his mind, directly responding to the Applicant’s possession and exercise of workplace rights, and directly retaliating against her for those rights.
13. As such, the Applicant’s possession and exercise of those workplace rights were substantial and operative reasons for his decision: Barclay at [56] – [59] (French CJ and Crennan J), [104], [127] (Gummow and Hayne JJ). They were not incidental, coincidental or peripheral to the exercise of some legitimate commercial decision (compared to the facts in Endeavour Coal, BHP Coal and Barclay). If the Applicant had not possessed or exercised those rights, she would not have been dismissed. As such, the irresistible conclusion is that she was dismissed “because” she possessed and exercised her workplace rights. …”
Respondents’ submissions
In their Outline of Submissions[3], the Respondents identify the primary factual issues raised by the Applicant’s pleadings as:
a)whether the Applicant took a temporary absence due to illness from 18 August 2014;
b)whether the Applicant made a complaint or inquiry to her solicitor on or about 22 August 2014;
c)who made the decision to dismiss the Applicant; and
d)what were the substantial and operative reasons for that decision?
[3] Respondents’ Outline of Submissions filed 4 September 2015.
As to the substantial and operative reasons for the decision to dismiss the Applicant, the Respondents submit that the sole decision-maker was the Second Respondent and that the Applicant “was dismissed because of her failure to assist the First Respondent to facilitate her return to work”[4]. The Respondents submit that the Second Respondent did not act for any of the reasons alleged by the Applicant to be reasons for her dismissal; namely that:
a)she exercised a workplace right by taking sick leave;
b)she exercised a workplace right by obtaining legal advice; and
c)preventing future exercises of workplace rights in the form of seeking workers compensation, taking sick leave or making complaints.
[4] Ibid at [1.6].
The Respondents submit that, as the Second Respondent did not act for any of these reasons, the First Respondent did not act for any of those reasons. Attention is directed to the judgment of Heydon J in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (“Barclay”) at [140] and [146] thus:
“140. …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.
146. To search for the “reason” for a voluntary action is to search for the reasoning actually employed by the person who acted. …”
The Respondents argue that the issue for the Court will therefore be whether the Second Respondent’s evidence to that effect is accepted.
As to the question of a workplace right, the Respondents submit that:
a)“the mere seeking of legal advice in relation to employment is not sufficient to amount to the exercise of a workplace right” [5]; and
b)they “accept that taking genuine sick leave can amount to the exercise of a workplace right.” [6]
[5] Ibid at [3.13].
[6] Ibid at [3.14].
In their closing submissions, the Respondents submit “that the Applicant was dismissed because of her failure to assist the First Respondent to facilitate her return to work, and that none of the Alleged (sic) Reasons (sic) were substantial and operative in the decision to dismiss her.”[7]
[7] Closing Submissions of the Respondents at [1.2].
The Respondents rely on the decision in Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76 (“Endeavour Coal”) for the proposition that if adverse action is taken for a permissible reason, based on the conduct of an employee, it does not become a breach of s.340 of the Act, because the conduct was also the exercise of a workplace right. The Respondents point out that the majority of the Full Court found that the employer’s reason for taking adverse action against the employee was his pattern of absenteeism, and that although the manifestation of that absenteeism was his lawful exercise of his right to take sick leave, that was “irrelevant at the legal level” (per Perram J at [77]).
Applying Endeavour Coal to the circumstances of this matter, the Respondents submit that the Second Respondent “will not have breached section 340 if his reason for dismissing (the Applicant) was that he “does not tolerate what he perceives to be shirking”, even if that perception was based on her taking sick leave. Nor will he have breached section 340 if his reason for dismissing her was that he thought he was being “set up”, as is put by the Applicant. Nor, of course, will he have breached section 340 if his reason was (the Applicant’s) failure to comply with his request to provide information in relation to her return to work.”[8]
[8] Ibid at [2.2].
As to the evidentiary foundation for the Respondents submission that they have discharged their burden under s.361 of the Act, the Respondents rely on the evidence-in-chief given by the Second Respondent (at T 106: 13-20):
What was your reason for dismissing her?--- I actually wanted to get a response from Jemma to find out how she’s coming back to work. And - you know - saying to someone: I won’t be back next week or until further notice, just, again, it just didn’t resonate well. It was like - it’s always open-ended. You will be informed in due course. I mean, we’re in an environment where you don’t get a second chance at a first impression. It’s line work. I need to know what’s going on.
Was there any other reason for dismissing her apart from that?– No.
The Respondents submit that there is no objective reason not to accept this evidence from the Second Respondent that he “needed the information he asked for to run his business: to make arrangements for the Applicant’s work to be covered and to make arrangements for her safe return to work.” [9]
[9] Ibid at [3.7].
The Respondents rely on the evidence of the Second Respondent regarding the work environment and needs of the business (at T 103: 36-45):
Again, we’re a small team. Someone absent from there - if this was the chef, and I had to make arrangements and I was getting this sort of response, I mean, what do I say to my guests? I have an obligation to them and to the other team members and I’m making decisions on behalf of my guests and the team members, not to make life easier for me. I need to know. I have a diabetic team member and we have arrangements in place for him mid-shift in order to attend to his medication and his meals, regardless of what’s going on in the building. I have another team member who’s senior, suffering from depression and anxiety, we’ve communicated and we have – we have procedures in place for that as well.
The Respondents submit that the Second Respondent’s requests that the Applicant provide information, were lawful instructions that she disobeyed without explanation. The Respondents submit that “It might be argued that his reaction was excessive or unfair. But its genuineness is consistent with the overall evidence about how he ran the business. His evidence should be accepted.” [10]
[10] Ibid at [3.9].
The Respondents, under the heading “PERIPHERAL ISSUES” submit that if the evidence which was brought by the Applicant, in relation to alleged tendencies of the Second Respondent is accepted by the court, it does no more than indicate a tendency of the Second Respondent “to have robust expectations of his staff and to act according to his understanding of the best interests of his business.” [11] Any tendency, it is argued, is in fact consistent with the Second Respondent’s reasons given for dismissing the Applicant.
[11] Ibid at [4.2].
The Respondents are critical of the Applicant, as being a witness “who sought from the beginning of her (evidence) to paint a picture of (the Second Respondent) as a sinister force.”[12]
[12] Ibid at [5.3].
The Respondents agree with the Applicant that the evidence of Mr Gordon is unsatisfactory. I have earlier stated that I have not taken into account any of his evidence in my decision.
The Respondents submit that Ms Pettit’s evidence was of no assistance to the Applicant, as she was unable to recall what date the conversation between her and the Second Respondent occurred, with respect to the Applicant’s absence.
Consideration
s.340 - Workplace Right
I am satisfied, it not being disputed, that the Applicant had a workplace right to:
a)take personal leave, because of illness, under Div.7, Pt.2.2 of the Act; and
b)make a claim pursuant to the Accident Compensation Act 1985 (Vic).
I accept the Applicant’s evidence that she sought legal advice from her solicitor, Ms Tannock, and instructed her to act on her behalf. This much is evident from the email sent by Ms Tannock to the Second Respondent on 22 August 2014 (Exhibit A6). I am satisfied that the Applicant’s actions in so doing fell within the meaning of s.341(1)(c )(ii) of the Act. That is, the Applicant was able and did make an inquiry in relation to her employment (Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307 at [143]).
Section 352 – Temporary Absence
The Respondents have not addressed, in their submissions, this alleged contravention of the Act.
I am satisfied that the Applicant was temporarily absent from work, because of illness within the meaning of s.352 of the Act, during the week of 18 August 2014 to 22 August 2014. There is no dispute that she provided the Respondents with a medical certificate within 24 hours after the commencement of her leave: r.3.01(2).
I am not, however, satisfied that the Applicant’s proposed period of absence, commencing 25 August 2014 falls within the scope of s.352 of the Act. This is because a natural reading of s.352 of the Act is that it is directed to circumstances where an employee is absent or has taken an absence, because of illness or injury. The provision is in clear terms and refers specifically to circumstances where the “employee is temporarily absent”.
The surrounding provisions, which prohibit various conduct by an employer within Pt.2.2 of the Act utilise phrases, such as “proposes or proposes not to” (s.340 of the Act) and “proposed to” (s.346 of the Act). In these circumstances, it is to be expected that if the legislature intended that temporary absences that were proposed to be taken, were to be covered by s.342 of the Act, resort would have been made to phrases utilised in other sections within that Part.
Adverse action
There is no dispute that the decision to dismiss the Applicant made on 23 August 2014 was adverse action within the meaning of s.342(1), Item 1 of the Act.
Section 361- “substantial and operative reason” for the Applicant’s dismissal
In Barclay, French CJ and Crennan J explained at [21] that:
Sections 360 and 361, in Div 7 of Pt 3-1, 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 346. Section 360 provides that, for the purposes of Pt 3-1, “a person takes action for a particular reason if the reasons for the action include that reason.” Section 361(1), … casts a burden of proof on an employer to show that it did not take action for a prohibited reason, … .
Gummow and Hayne JJ stated as follows at [127]:
In determining an application under s 346 [it is necessary to] assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence [is] to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it [is] the reasons of the decision-maker at the time the adverse action was taken which [is] the focus of the inquiry.
In BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCAFC 132, Flick J (with whom Dowsett J agreed) stated at [95]:
Contrary to the approach of Isaacs J in Pearce, a factor that may “enter ... into the reason[ing]” process of an employer does not constitute a “reason” for the purposes of s 360 if that factor does not amount to “a substantial and operative reason” for the taking of adverse action. The fact-finding task imposed by s 346 is to filter out those factors that may have passed through the mind of an employer and to determine what was the “substantial and operative” reason or reasons for taking adverse action. If any one of those “substantial and operative” reasons was a proscribed reason, s 360 operates to confirm that the taking of action for that reason is prohibited.
The principles in Barclay were summarised as follows by the Full Court of the Federal Court in State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32]:
…
·The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
·That question is to be answered having regard to all the facts established in the proceeding.
·The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
·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.”
·Even if the decision-maker gives evidence that he or she acted solely for nonproscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
·If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.
In Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014 (“Clermont Coal”) at [120], Reeves J stated:
“These authorities therefore place the focus on the reasoning process that led to the ultimate decision. Where the decision was made by one person and her or his reasoning for the decision was based on one incident involving the employee, the task is relatively straightforward. The judgments in Barclay and BHP Coal require a focus on the reasoning process employed by that person to determine whether the employer has discharged its onus under s 361(1) of the FWA to show that the reasoning process did not include, as a substantial and operative reason, the alleged prohibited reason or reasons. However, the employer is only required to show that none of those reasons was a “substantial and operative reason”. It does not need to negate every reason, however immaterial it was to the reasoning process underpinning the decision to dismiss the employee concerned: see Barclay at [104] and [127] per Gummow and Hayne JJ, and [140] per Heydon J.”
These proceedings concern circumstances where there was a sole decision-maker, the Second Respondent. Whilst the Second Respondent had not yet assumed legal ownership of the Grosvenor Hotel, on the evidence, I am satisfied that from 21 July 2014, he took over the management of the business, including the staff. I am satisfied that he alone made all decisions relevant to these proceedings, without recourse to the (then) owner of the business Mr Sebastian Catalfamo.
The Second Respondent was called to give evidence-in-chief and was cross-examined. The focus of the inquiry is the reasoning of the decision-maker, the Second Respondent. I now turn to consider the evidence led, the reliability and weight of such evidence, balanced against evidence adduced by the Applicant and the overall facts and circumstances of the case.
In approaching the fact-finding task, I am obliged to determine whether the Second Respondent has discharged the onus imposed on him to satisfy the Court that the reason for, or reasons for, his decision to dismiss the Applicant, did not include as a substantial and operative reason that:
a)the Applicant exercised or proposed to exercise a workplace right, this being her entitlement to take sick/personal leave and/or the making of an inquiry regarding her employment by seeking legal advice from her solicitor and/or to pursue her claim under the Accident Compensation Act 1985 (Vic); and
b)the Applicant’s temporary absence from work, because of illness.
The Second Respondent says that his reason for dismissing the Applicant was her failure to assist him to facilitate her return to work; specifically, her failure comply with his request (which he describes as a lawful instruction) to permit him to obtain information from her General Practitioner.
Prior to taking over the management of the Grosvenor Hotel in July 2014, the Second Respondent had some dealings with the Applicant, because of his involvement in the aftermath of the dismissal of an employee of the Grosvenor Hotel, Mr Kerbadge by Mr Gordon (previous manager). According to the Second Respondent, the Applicant’s role in the business was instrumental to its operation and that she was doing, “great things”. The Applicant had previously taken leave to care for her brother, who is her dependent. This was described in the evidence as sick leave, but is likely more appropriately described as carer’s leave in the circumstances. No issue arose out of this.
In other words, there was no history of animosity between the Second Respondent and the Applicant. The Second Respondent valued the Applicant’s work and in the short period concerned there was no issue regarding the Applicant’s absenteeism, work attendance or work performance.
The events leading to the Applicant’s dismissal had their genesis in a disagreement, by the Second Respondent with the Applicant’s decision to make a booking on the eve of the forthcoming Grand Final. The content and tenor of the conversation is disputed.
The Applicant says that the Second Respondent was abrupt, responding negatively to her requests to assist in the deal with the clients. She says that part of the discussion took place in a public area, in front of other staff, and that, during the course of the discussion, the Second Respondent said, in effect, that if she was unable to understand his approach to the business, she should re-consider her position at the Grosvenor Hotel. She says she was upset and crying during the conversation.
The Second Respondent’s evidence-in-chief was, in my opinion, designed to downplay the impact of the discussion on the Applicant. He described the conversation as “calm” and asserted that a satisfactory resolution was reached at the end of the discussion. As a throwaway line, the Second Respondent said he was as calm as he was when giving evidence in the proceedings, which he quipped was not “very calm”. He later conceded, however, that the Applicant was crying and upset during the discussion. Given the inconsistencies in his evidence, I prefer the Applicant’s version of the discussion.
On 16 August 2014 at 6:50pm, the Applicant informed the Second Respondent by email that she would be absent from work for a week, because of “severe stress and anxiety”.
The Second Respondent’s response to the Applicant in an email sent at 7:00pm that evening attests to his scepticism regarding the nature of the Applicant’s claimed illness. His explanation that he used the phrase in the heading of the email, “WITHOUT PREJUDICE”, because he was being “cautious” begs the question – what was he being cautious about? It belies, in my opinion, his scepticism regarding the nature of the Applicant’s illness.
An issue in dispute is when the Second Respondent engaged in a conversation with Ms Pettit (who assumed the Applicant’s functions up until 27 September 2014) regarding the Applicant’s absence from work.
Ms Pettit gave evidence on two occasions. On the first occasion she was present in Court to give her evidence. Her evidence was that when she arrived at work one day (she could not remember which day) the Second Respondent said to her “before you start gossiping, I’m letting you know Jemma no longer works here”. She said he showed her an email from the Applicant, in which the Applicant said she was suffering from stress and anxiety and that she “wouldn’t be back till a certain date”. She said she was then asked to take over the Applicant’s role. On this occasion, Ms Pettit was shown the email sent by the Applicant on 16 August 2014 (Exhibit A3). She confirmed that this was the email the Second Respondent had shown her. She said, when asked whether this occurred on the Sunday or Monday after the email was sent, that she could not remember the date of the conversation.
The Second Respondent denied that he told Ms Pettit that the Applicant no longer worked at the premises or that he showed her any email sent by the Applicant.
Counsel for the Respondents was granted leave to recall Ms Pettit. Counsel informed the Court that he had failed to ask a question, which was important to the Respondents’ case. He was granted leave to recall Ms Pettit for cross-examination. She was permitted to appear by telephone link.
The evidence given by Ms Pettit on this occasion did not advance the case of the Applicant or the Respondents in respect of when the conversation occurred. I am satisfied that Mr Pettit simply did not recall the date of the conversation. I am, however, satisfied that Ms Pettit gave direct and believable evidence about the nature of the conversation with the Second Respondent. She was able to specify the particulars of the email sent by the Applicant on 16 August 2014, before being shown the exhibit (Exhibit A3) containing that email.
I therefore find that a conversation took place between the Second Respondent and Ms Pettit, in which the Second Respondent informed her that the Applicant no longer worked at the Grosvenor Hotel and that he showed her the Applicant’s email dated 16 August 2014.
It is more likely that Ms Pettit was shown that email on the following Sunday or Monday. However, I am not able to be satisfied to the requisite standard, on the balance of probabilities, that she was shown this email before or after the Applicant was dismissed.
The Applicant next emailed the Second Respondent at 4:00pm on Friday, 22 August 2014, stating:
a)she would “not be back at work on Monday”;
b)she could not say when she would be able to return to work; and
c)she would provide medical certificates “in due course to cover all my absences”.
In cross-examination, the Second Respondent said that although the Applicant’s undertaking to provide medical certificates was responsible, he doubted her bona fides, because she did not advise him of her proposed further sick leave until 4:00pm on the Friday. This may well be the case. However, the Second Respondent’s email sent nine minutes later to the Applicant is, in my opinion, by any account extraordinary.
By that email, sent immediately in response to the Applicant’s advice she would be taking further leave, the Second Respondent had:
a)informed the Applicant that “Any workers compensation claim is likely to be rejected (although I am not discouraging you from making a claim)”;
b)referred to his obligation to provide reasonable assistance for the Applicant to return to work safely;
c)requested the Applicant to allow him to speak to her treating medical practitioner, regarding her capacity for work and prognosis in the short term;
d)indicated to the Applicant she might suggest other ways of providing information;
e)told the Applicant to treat this request is a matter of urgency; and
f)warned the Applicant that an unreasonable failure to respond may jeopardise her employment.
The Second Respondent said in his evidence-in-chief that when he received the Applicant’s email advising she proposed to take further sick leave, he believed he was being “set up.” He did not explain what, in particular, he was being “set up” for.
In re-examination, the Second Respondent said that his reference to a potential WorkCover claim was made, because he now distrusted the Applicant and repeated his earlier evidence, that he had a feeling he was being “set up” for something. He also stated that he believed the Applicant was unlikely to remain in employment with the Grosvenor Hotel.
The only findings which can be made based on this evidence, are that upon receiving the Applicant’s email dated 22 August 2014, the Second Respondent formed the view that:
a)he was being “set up” for something;
b)he no longer trusted the Applicant; and
c)the Applicant would leave her employment with the Grosvenor Hotel.
I find that, having formed these views or beliefs, the Second Respondent chose to expressly refer in his email sent on 22 August 2014, to a potential WorkCover claim by the Applicant.
The Second Respondent said that the nature of the business environment at the Grosvenor Hotel demanded that he appreciate when and on what terms the Applicant would return to work.
I accept that the Grosvenor Hotel is a small work environment and that the business depends on continuity of staff and, in particular, the Applicant’s role as Events Manager generating revenue. I accept that the Second Respondent genuinely wanted some certainty about when a valued employee might return to work. However, these business assessments do not, in my view, explain the Second Respondent’s decision to include in the email an express reference to a possible WorkCover claim, a demand that he be permitted to speak to her treating medical practitioner and the warning that failure to do so may jeopardise her employment.
Delivering an instruction to an employee, who is absent or has been absent on sick leave due to illness or injury, to allow an employer to speak to her treating medical practitioner, regarding that illness or injury, is by any standards not the industrial norm, and is, in my opinion, unreasonable. The Second Respondent said that upon reflection he was being “overzealous” and perhaps “heavy-handed”. In my opinion, his email goes further than this, in a context where he believed he was being “set up”, had lost trust in the Applicant and believes she would soon leave the business.
Shortly after 5:00pm, the Applicant’s solicitor emailed the Second Respondent, informing him that she was responding on behalf of the Applicant to his earlier email and advising him that the Applicant would not be returning to work until further notice.
The next day, the Second Respondent emailed the Applicant and:
a)referred to his earlier email requesting her cooperation “in obtaining medical information”;
b)referred to the email from her solicitor;
c)advised the Applicant that the response was “highly unsatisfactory and provides grounds for dismissal”;
d)advised the Applicant her employment was dismissed with immediate effect, because of her “unreasonable failure to assist me to facilitate your return to work”;
e)advised she would be paid notice in lieu, accrued annual leave and an ex-gratia payment; and
f)advised her that the company undertook, subject to her providing satisfactory medical information, demonstrating her capacity to resume work on or before 25 September 2014 on a full-time basis, to re-employ her in her position on the same terms and conditions of employment as she enjoyed immediately prior to her dismissal.
As I have indicated earlier, I have formed the view that the offer of re-employment was not a genuine offer. On the Second Respondent’s evidence, he had formed a view prior to dismissing the Applicant, that he did not trust her and that he was being “set up” by her. In a small workplace, such as the Grosvenor Hotel, this loss of trust and confidence would be an insurmountable barrier to successful re-employment. I have no doubt that the Second Respondent was aware of this. I am not prepared to speculate why the Second Respondent made the offer of re-employment.
I do not accept the Second Respondent’s evidence that he dismissed the Applicant, because of her conduct in failing to comply with the request by him to allow him to speak to her medical practitioner, for the purpose of deciding when she would return to work and on what basis.
The circumstances in this case are to be contrasted with those in Endeavour Coal:
a)there was not a pattern of absenteeism on the part of the Applicant;
b)the Applicant was a valued employee;
c)the Applicant had not yet refused to comply with the Second Respondent’s request for medical information; and
d)the Applicant was not given any opportunity to comply with the request, as she was dismissed less than 24 hours after the request was made.
Having regard to the Second Respondent’s own evidence, the documentary evidence contained in his emails on 16 August 2014 and 22 August 2014 and my findings regarding the Second Respondent’s beliefs or reasoning, I find that a substantial and operative reason for the Applicant’s dismissal included:
a)her advice to him on 22 August 2014, that she proposed to take further sick leave; and
b)the Second Respondent’s belief that the Applicant may lodge a WorkCover claim under the relevant Victorian statutory legislation.
I make this finding having regard to the following:
a)I am satisfied that the Second Respondent was, from the beginning, sceptical about the nature of the Applicant’s illness/injury;
b)the Second Respondent formed the view, upon receiving the Applicant’s email dated 22 August 2014, that he was being “set up” by the Applicant, that he did not trust the Applicant and believed she would soon leave the business;
c)the Second Respondent’s email dated Friday, 22 August 2014, in which he:
i)expressly raised a potential WorkCover claim being made by the Applicant;
ii)expressly referred to concepts peculiarly the purview of workers compensation claims; that is, safe return to work, in circumstances this had not been raised by the Applicant; and
iii)made an unreasonable request that the Applicant permit him to discuss her medical condition and capacity to work with her treating medical practitioner; and
d)the unexplained haste with which the Second Respondent acted to dismiss the Applicant on 23 August 2014, following the email he received from the Applicant’s solicitor.
No reasonable explanation was given by the Second Respondent why he had decided, literally overnight, that the Applicant had failed to comply with his requests for information. No doubt the email from the solicitor was terse, however, as the Second Respondent conceded in cross-examination, his action in terminating the Applicant, forestalled any opportunity available to the Applicant to respond to his request for further medical information. In my opinion, the email from the solicitor only confirmed in the Second Respondent’s mind his concern that the Applicant was unreasonably taking sick leave and may make a workers compensation claim.
I am satisfied that these concerns were not thoughts that merely passed through the Second Respondent’s mind. In my opinion, the sequence of events that occurred over a very short period of time, against a background where the Second Respondent was suspicious of the Applicant’s motives, mistrusted her and believed he was being “set up”, leads to the irresistible conclusion that these were substantial and operative reasons.
Conclusion
For the reasons given in my judgment, I find that the First Respondent engaged in adverse action, by dismissing the Applicant for reasons which included, as substantial and operative reasons, the Applicant’s workplace right to take sick leave under the Act and her entitlement to make a claim under the Accident Compensation Act 1985 (Vic).
Consequentially, I find that the First Respondent contravened s.340 of the Act.
There being no dispute that the Second Respondent, being the sole decision-maker, was involved in the contravention, within the meaning of s.550 of the Act, I find that the Second Respondent contravened s.340 of the Act.
I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 5 February 2016
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