Crawford v Steadmark Pty Ltd (No.2)
[2015] FCCA 2697
•8 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRAWFORD v STEADMARK PTY LTD (No.2) | [2015] FCCA 2697 |
| Catchwords: INDUSTRIAL LAW – Adverse action – whether employment terminated for a prohibited reason – whether refusal to employ for a prohibited reason – presumption under s.361 Fair Work Act 2009 (Cth) – whether failure to provide notice under s.117 – whether failure to provide Fair Work Information Statement – whether failure to provide bonus. |
| Legislation: Fair Work Act 2009 (Cth), ss.117, 125, 341, 342, 346, 360, 361, 540, 546 |
| Crawford v Steadmark Pty Ltd [2014] FCCA 2916 Cooper v Darwin Rugby League Inc (1994) 57 IR 238 Fisher v Edith Cowan University (1996) 70 IR 206 General Motors Holden Pty Ltd v Bowling (1976) 136 CLR 676 Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 |
| Applicant: | MONIQUE CRAWFORD |
| Respondent: | STEADMARK PTY LTD (ACN 007 320 461) |
| File Number: | MLG 1534 of 2014 |
| Judgment of: | Judge O'Sullivan |
| Hearing dates: | 11, 12, & 13 May 2015 and 16 & 17 June 2015 |
| Date of Last Submission: | 19 August 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 8 October 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms O’Brien QC and Mr Minnuci |
| Solicitors for the Applicant: | JobWatch Inc |
| Counsel for the Respondent: | Mr Follett |
| Solicitors for the Respondent: | Alan Sheppet & Associates |
THE COURT DECLARES:
The respondent subjected the applicant to adverse action by refusing to employ her in contravention of s.340(1) of the Fair Work Act 2009 (Cth).
THE COURT ORDERS:
The proceedings be adjourned for hearing on penalty and (in light of order 1 hereof) the making of orders by way of compensation a date to be advised.
The applicant is to file and serve a minute of orders and submissions on compensation and penalty 21 days prior.
The respondent is to file and serve a minute of orders and submissions on compensation and penalty 14 days prior.
AND THE COURT NOTES:
(A)The parties are directed to confer on and calculate the amount of compensation in light of these reasons for decision. In the event of disagreement the submissions referred to above are to identify those matters agreed and where matters remain in dispute.
(B)The submissions referred to in orders 3-4 should also be sent in MS Word format to the email associate.judgeo’[email protected].
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1534 of 2014
| MONIQUE CRAWFORD |
Applicant
And
| STEADMARK PTY LTD (ACN 007 320 461) |
Respondent
REASONS FOR JUDGMENT
(As Corrected)
These proceedings concern an application filed by Monique Crawford (“the applicant”) on 29 July 2014. The respondent to that application Steadmark Pty Ltd (“the respondent”) operates a number of lingerie stores throughout Australia under the brands Simone Perele and Betty McDowell.
The applicant was employed by the respondent between November 2013 and May 2014. In these proceedings the applicant alleged, inter alia, that the respondent had contravened the Fair Work Act 2009 (Cth) (“the FW Act”). The applicant sought declaratory and other relief against the respondent. For its part, the respondent denied the allegations made by the applicant and in its response filed 5 September 2014 sought that the application be dismissed.
For the reasons set out below, the respondent has failed to discharge the onus to prove that it did not take adverse action against the applicant for a prohibited reason.
The application came before the Court for a first Court date on 15 September 2014. The respondent indicated it intended to make a summary dismissal application. There were orders and directions for the filing of that application which was listed for 4 December 2014.
When the proceedings returned to Court both parties were represented. For the reasons set out in Crawford v Steadmark Pty Ltd [2014] FCCA 916 the respondent’s application in a case filed on 8 October 2014 was dismissed. There were orders and directions made and the substantive proceedings were listed for trial on 11 May 2015.
The parties both subsequently filed points of claim to which it will be necessary to return. On 29 January 2015 the respondent filed another application in a case seeking that various parts of the applicant’s points of claim be struck out. This was listed for hearing on 13 March 2015. For the reasons given ex-tempore that day, that application in a case was also dismissed. The substantive proceedings were adjourned to the date already fixed for trial.
The applicant subsequently filed amended points of claim on 16 March 2015. The respondent filed amended points of defence on 17 March 2015. After an unsuccessful mediation both parties filed affidavit material and submissions for the purposes of the trial.
At trial the applicant was represented by Ms O’Brien QC and Mr Minucci. The respondent was represented by Mr Follett. The trial proceeded over 11 to 13 May 2015 and was adjourned. The evidence concluded on 16 and 17 June 2015.
Both of the parties had an opportunity to file written submissions after the close of the evidence. The applicant’s submissions were filed on 16 July 2015, the respondent’s submissions were filed on 5 August 2015 and the applicant’s submissions in reply on 19 August 2015.
At the close of these submissions the Court reserved its decision.
Applicant’s claim
The applicant claims the respondent:
a)contravened s.340 of the FW Act by:
i) dismissing the applicant; and/or
ii) refusing to employ the applicant
because she exercised the workplace right to make a complaint.
b)breached her contract in relation to alleged failure to pay:
i)notice of termination of employment; and
ii)$1,000 incentive bonus for the month of May 2014.
The applicant seeks:
“a. Compensation for the loss caused by the Respondent’s contravention of sections 340 and 117 of the Fair Work Act 2009 (FW Act);
b. The imposition of a pecuniary penalty against the Respondent in accordance with Section 546 of the FW Act;
c. That payment of penalties be made to JobWatch pursuant to section 546(3)(b) of the FW Act;
d. Damages for the breach of contract in relation to notice; and
e. Interest pursuant to statute”[1].
[1] See paragraphs 4(a)-(e) of the applicant’s outline of submissions filed on 30 April 2015.
It is important to note that despite the applicant’s case appearing at times to be veritably teeming with salacious innuendo, no claim was made, other than those referred to above.
Respondent’s position
The respondent denies the allegations made by the applicant. The respondent’s position was:
a) On 25 May 2014, the applicant’s employment with the respondent came to an end by way of the effluxion of time, according to the terms of a fixed term contract of employment.
b) Whilst the respondent acknowledges the applicant had a workplace right to make a complaint, the respondent denies that it terminated the applicant’s employment. The respondent admits that it refused to employ the applicant on or after 26 May 2014. The respondent acknowledges this amounted to adverse action. However, the respondent says that the only reason why it refused to employ the applicant was because she was unsuitable for the position. The respondent expressly denies that it took adverse action against the applicant, and that none of its reasons included because she had made a complaint in relation to her employment. The respondent rejects the claim for a bonus as without foundation.
c) The respondent denies that the applicant is entitled to any relief in the proceedings.
Material relied upon
Applicant
At trial the Court was told the applicant relied on:
a) points of Claim filed on 19 January 2015;
b) amended Points of Claim filed on 16 March 2015;
c) amended Points of Claim filed on 8 May 2015;
d) affidavit of M Crawford filed on 11 November 2014;
e) affidavit of M Crawford filed on 24 March 2015;
f) affidavit of T Crawford filed on 8 May 2015;
g) submissions filed on 4 December 2015;
h) outline of Submissions filed on 30 April 2015;
i) amended Outline of Submissions filed on 8 May 2015; and
j) final Submissions filed on 16 July 2015.
At trial the Court was told the respondent relied on:
a) points of Defence filed on 30 January 2015;
b) amended Points of Defence filed on 17 March 2015;
c) affidavit of V Galina filed on 8 October 2014;
d) affidavit of V Galina filed on 29 January 2015;
e) affidavit of L Cusack filed on 10 April 2015;
f) affidavit of M Lee filed on 10 April 2015;
g) affidavit of A Steinorth filed 10 April 2015;
h) affidavit of T Rosenfield filed on 10 April 2015;
i) affidavit of T Ricov filed on 10 April 2015;
j) affidavit of R Harbison filed on 10 April 2015;
k) affidavit of R Carlyon filed on 10 April 2015;
l) affidavit of M Afflitto filed on 10 April 2015;
m) affidavit of M Rosenfield filed on 14 April 2015;
n) affidavit of V Galina filed on 14 April 2015;
o) affidavit of F Eitty-Leal filed on 14 April 2015;
p) affidavit of L Cusack filed on 1 June 2015;
q) submissions filed on 4 December 2014;
r) submissions filed on 13 March 2015;
s) outline of Submissions filed on 5 May 2015; and
t) final Submissions filed on 5 August 2015. [2]
[2] Ultimately the respondent did not call Ms Afflitto or Ms Eitty-Leal
Before turning to the legislation and the evidence it is timely to set out the uncontentious background.
Background
In late 2013 the respondent advertised for Store Managers for its retail operations and interviewed the applicant. After that interview, the applicant was offered employment with the respondent.
The applicant commenced employment with the respondent on 26 November 2013.
The applicant was required to (and did) sign an employment agreement which provided, inter alia:
“Executive Employment Agreement
Date 2009
Parties
STEADMARK PTY LTD (A.C.N. 007 320 461) of 263 Brunswick Road, Brunswick. Vic. 3056 (Employer)
Monique Crawford of 1/22 Gladstone Pde, Gelnroy Vic 3046 (Employee)
The Employer and the Employee may also be referred to as the party or parties, as the context requires.
Introduction:
A. The Employer operates the Business.
B. The Employee warrants and has warranted to the Employer that the Employee has the skills and experience necessary to fill the position set out in Item 1 of Schedule 1.
C The Employer wishes to have the benefit of the skills and experience of the Employee on the terms and conditions contacted in this Agreement.
The Parties Agree:
1. Interpretation
…
2. Definitions
…
Commencement Date means the date set out at Item 2 of Schedule 1;
…
3. Position, Continuity of Service and Duration
The Employer will employ the Employee in the positon described in Item 1 of Schedule 1 on the terms and conditions set out in this Agreement from the Commencement Date…
4. Term of Agreement
Subject to clause 17, this is a fixed term Agreement. The term is for a period of six (6) month from commencement date, with an option for the Employer to extend or renew this Agreement hereafter. If the parties agree to extend the Agreement beyond the initial term then 7 days before the expiry of the Agreement the parties shall negotiate in good faith to extend or renew this Agreement.
…
Schedule 1
Item 1 The Position
(Clause 3)
Store Manager
Item 2 Commencement Date
(Clause 2)
26th November 2013
Item 3 Salary
(Clauses 2 and 6)
$22.58/hr Mon-Fri; $38.13/hr Sun year plus superannuation and bonus incentives. To be paid weekly by means of electronic funds transfer into an account of the Employee’s choice.
Superannuation
(Clause 6)
9.25% (or as designated by Government Legislation)
Employer’s Superannuation Fund:
LUCRF
Labour Union Co-Operative Retirement Fund
1st Floor, 552-568 Victoria Street
North Melbourne VIC 3051
Ph: 1300 130 780
a superannuation fund nominated by yourself
Item 4 Hours of Work
(Clause 9)
38 hours per week, plus reasonable additional unpaid hours as may be necessary to perform the duties of the position, to be worked between the hours of 9am and 6pm Monday to Sunday, with a 30 minute unpaid lunch break per day.
Item 5 Place of Work
(Clause 9)
Principal place of work will be Simone Perele stores throughout Melbourne
Item 6 Annual Leave Entitlements
(Clause 11)
Twenty (20) working days per year
Item 7 Personal Leave Entitlements
(Clause 11)
Ten (10) days each year
Item 8 Notice Period
(Clause 7)
Four (4) weeks’ written notice (plus an additional week if you are over 45 years of age).(emphasis added)”
After training and time spent at other stores, the applicant took up the role of Store Manager at the respondent’s Spencer Street store.
During the course of her employment the applicant reported to Ms Vanessa Galina, the respondent’s National Retail Manager. The applicant also spoke regularly to the respondent’s Managing Director, Mr Michael Rosenfield, as part of the reporting requirements of her Store Manager role.
The applicant was actively involved in promotional activities for the respondent both at the Spencer Street Store and elsewhere.
The applicant received a bonus for the months of January 2014, February 2014 and March 2014.
The respondent held a Store Manager’s function on 28 April 2014 which the applicant attended. As a part of this there was a dinner arranged at the Flower Drum, which was attended by the applicant and Mr Rosenfield, amongst others. The applicant makes allegations about an incident that occurred at that dinner, which for present purposes, it is not necessary to resolve.
The following day (29 April 2014) the applicant attended a training session for the respondent’s staff. Ms Galina was also present.
Later that day the applicant sent an email to Ms Galina which, omitting formalities, was in the following terms:
“After today’s meeting even though you had given us free time I returned to the store.
On calling Michael for the evening to provide him with the daily figures a conversation followed of which the details and conduct was not warranted or appropriate.
As a result I will not be attending tonight’s event.”
Ms Galina responded to the applicant’s email stating, inter alia:
“I am very sorry to hear that.
I am not entirely sure what has transpired -we shall discuss tomorrow…”.
Ms Galina subsequently spoke with Mr Michael Rosenfield about the phone call to the applicant. However, Ms Galina did not follow up the applicant’s complaint with her directly, or advise her of the results of the inquiries she had made.
The applicant’s contract was to expire on 25 May 2014. Ms Galina made arrangements to speak with the applicant on the day prior to the expiry of the contract. On the day scheduled for that meeting the applicant called in sick.
On 26 May 2014 the respondent sent the applicant the following notice:
“It is with regret we must write to you, despite previous attempts to speak with you in person.
Your contract of employment with Lingerie Company of Australia will not be renewed due to unsuitability for the role.
We wish you success in your future endeavours.
…”
Legislative provisions
Section 340(1) of the FW Act provides:
“(1) A person must not take adverse action against another person:
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.”
For the purposes of s.340(1) of the FW Act, the term ‘workplace right’ is defined in s.341(1) of the FW Act:
“(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c)is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.”
A ‘workplace law’ is defined in s.12 of the FW Act and includes the FW Act and any other statutory law which regulates the employment relationship.
The circumstances in which “adverse action” is taken by an employer against an employee is set out in s.342(1) at Item 1 as follows:
“(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
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee's prejudice; or
(d) discriminates between the employee and other employees of the employer.
2 a prospective employer against a prospective employee the prospective employer:
(a) refuses to employ the prospective employee; or
(b) discriminates against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee.
3 a person (the principal ) who has entered into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor the principal:
(a) terminates the contract; or
(b) injures the independent contractor in relation to the terms and conditions of the contract; or
(c) alters the position of the independent contractor to the independent contractor's prejudice; or
(d) refuses to make use of, or agree to make use of, services offered by the independent contractor; or
(e) refuses to supply, or agree to supply, goods or services to the independent contractor.
4 a person (the principal ) proposing to enter into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor the principal:
(a) refuses to engage the independent contractor; or
(b) discriminates against the independent contractor in the terms or conditions on which the principal offers to engage the independent contractor; or
(c) refuses to make use of, or agree to make use of, services offered by the independent contractor; or
(d) refuses to supply, or agree to supply, goods or services to the independent contractor.
5 an employee against his or her employer the employee:
(a) ceases work in the service of the employer; or
(b) takes industrial action against the employer.
6 an independent contractor against a person who has entered into a contract for services with the independent contractor the independent contractor:
(a) ceases work under the contract; or
(b) takes industrial action against the person.
7 an industrial association, or an officer or member of an industrial association, against a person the industrial association, or the officer or member of the industrial association:
(a) organises or takes industrial action against the person; or
(b) takes action that has the effect, directly or indirectly, of prejudicing the person in the person's employment or prospective employment; or
(c) if the person is an independent contractor--takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; or
(d) if the person is a member of the association--imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to money legally owed to the association by the member).”
Section 361 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, in proceedings arising from the application 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.”
By virtue of s.360 of the FW Act a person takes action for a particular reason, if the reasons for the action include that reason.
It is also necessary to note that s.140 of the Evidence Act 1995 (Cth) deals with the question of the standard of proof in these proceedings and provides:
“(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into court in deciding whether it is so satisfied, it is to take into account;
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.”
Approach to adverse action allegations
The leading authority on the approach to the adverse action provisions of the FW Act is Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 290 ALR 647 (‘Barclay’).[3] The High Court (French CJ, Gummow, Hayne, Heydon and Crennan JJ) upheld an appeal against a majority decision of a Full Court of the Federal Court that adverse action had been taken “because” the respondent had engaged, or proposed to engage in, industrial activities, an attribute proscribed by s.346 in conjunction with s.347 of the FW Act.
[3] at paragraphs [56]; [102]; [127].
In that case, the High Court confirmed that the question of whether a particular action or decision was taken because of a proscribed reason, or for reasons which included a proscribed reason, is a question of fact to be determined on the whole of the evidence.
What their Honours describe as the “correct approach” is set out at paragraphs [41]-[45] of their reasons:
“41.The question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act. These provisions must be construed together in accordance with the principles of statutory construction established by this Court, which must begin with a consideration of the text of the relevant provisions and may require consideration of the context including the general purpose and policy of the provisions.
42.Determining why a defendant employer took adverse action against an employee involves consideration of the decision-maker’s “particular reason” for taking adverse action (s.361(1)), and consideration of the employee's position as an officer or member of an industrial association and engagement in industrial activity (“union position and activity”) at the time the adverse action was taken (ss 342, 346(a), 346(b), 347 and 361(1)).
43.Clearly a defendant employer interested in rebutting the statutory presumption in s 361 can be expected to rely in its defence on direct testimony of the decision-maker's reason for taking the adverse action. The majority in the Full Court correctly rejected an argument put by the respondents that the introduction of the statutory expression “because” into a legislative predecessor to s 346, in place of the previous statutory expression “by reason of,” rendered irrelevant the state of mind of the decision-maker.
44.There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”
45.This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.”
French CJ and Crennan J also considered the effect of s.360 of the FW Act at [57] to [59]. Their Honours adopted the reasons of Mason J in General Motors Holden Pty Ltd v Bowling (1976) 136 CLR 676.
At paragraphs [100] to [104], Gummow and Hayne JJ discuss the meaning of “because” in s.346 which is in similar terms to s.340 of the FW Act:
“100.The application of s 346 turns on the term “because”. This term is not defined. The term is not unique to s 346. It appears in s 340 (regarding workplace rights), s 351 (regarding discrimination), s 352 (regarding temporary absence in relation to illness or injury) and s 354 (regarding coverage by particular instruments, including provisions of the National Employment Standards).
101. The use in s 346(b) of the term “because” in the expression “because the other person engages ... in industrial activity", invites attention to the reasons why the decision-maker so acted. Section 360 stipulates that, for the purposes of provisions including s 346, whilst there may be multiple reasons for a particular action “a person takes action for a particular reason if the reasons for the action include that reason.” These provisions presented an issue of fact for decision by the primary judge.
102.Reference was made in argument to Purvis v New South Wales. That litigation concerned the application of the Disability Discrimination Act 1992 (Cth) to the suspension and expulsion of a disabled student from a State school. Section 5(1) used the expression “because of the disability.” Gummow, Hayne and Heydon JJ emphasised that s 10 of the statute stated that if an act is done for two or more reasons, one of which is the disability of a person, even if it not be the dominant or a substantial reason for doing the act, the act is taken to be done for that reason. This provision may be compared with s 360 of the Act just described.
103.With respect to what became s 346 of the Act, paragraph 1458 of the Explanatory Memorandum to the Fair Work Bill 2008 stated:
"Clause 360 provides that for the purposes of Part 3-1,
a person takes action for a particular reason if the reasons for the action include that reason. The formulation of this clause embodies the language in existing section 792 which appears in Part 16 of the WR Act (Freedom of Association) and includes the related jurisprudence. This phrase has been interpreted to mean that the reason must be an operative or immediate reason for the action (see Maritime Union of Australia v CSL Australia Pty Limited). The 'sole or dominant' reason test which applied to some protections in the WR Act does not apply in Part 3-1." (emphasis added)The phrase “operative or immediate reason” used in CSL is relevantly indistinguishable from the phrase “a substantial and operative factor” used by Mason J in Bowling.
104. In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised “a substantial and operative” reason, or reasons including the reason, for the employer's action and that this action constitutes an “adverse action” within the meaning of s 342.”
Their Honours warn at paragraph [121] of the dangers of an enquiry contrasting “objective” and “subjective” tests in applying s.346 of the FW Act. They conclude at paragraph [126]-[128]:
“126.The relevant frame of reference in this case is a statutory provision in which neither the words “objection” nor “subjective” appear. There is an inherent risk of misguidance when seeking to imply tests or requirements in the application of a statutory provision absent some persuasive basis to do so. Nothing was put in argument, nor are there any decisions of this Court, to provide such a basis. Indeed, no direct challenge was made to what had been said by Mason J in Bowling.
127.In determining an application under s 346 the Federal Court was 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 was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
128.Whilst it is true to say, as do the respondents, that there is a distinction between discharging the onus of proof and establishing that the reason for taking adverse action was not a proscribed reason, there is nothing to suggest that the conclusions drawn by the primary judge, and the findings and reasons upon which these were based, did not take this into consideration. As Lander J concluded, if the reasons for the conclusions and the facts for which they were formulated are not challenged, then the contravention of s 346 cannot be made out. This proposition should be accepted. To hold otherwise would be to endorse the view that the imposition of an onus of proof on the employer under s 361(1) creates an rebuttable presumption at law in favour of the employee.”
Heydon J said at [146]:
“To search for the “reason” for a voluntary action is to search for the reasoning actually employed by the person who acted. Nothing in the Act expressly suggests that the courts are to search for “unconscious” elements in the impugned reasoning of persons in Dr Harvey's position. No requirement for such search can be implied. This is so if only because it would create an impossible burden on employers accused of contravening s 346 of the Act to search the minds of the employees whose conduct is said to have caused the contravention. How could an employer ever prove that there was no unconscious reason of a prohibited kind? An employer's inquiries of the relevant employees would provoke, at best, nothing but hilarity. The employees might retort that while they could say what reasons they were conscious of, they could say nothing about those they were not conscious of.”
Given the nature of the applicant’s claim(s) it is important to note that Collier J in Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399 (“Jones”) explained the nature of the onus cast upon an applicant in an application, such as this as follows:
“10.That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason, was explained by Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [161]-[162] and Moore J in Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; [2008] 177 IR 306 at 321-322 [49]- [50]. To paraphrase observations of Moore J in Rojas [2008] FCA 1585; [2008] 177 IR 306 at 322, it is not sufficient for Ms Jones to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that Ms Jones is able to prove these allegations, the burden is then cast on to QTAC to prove that adverse action was not taken against Ms Jones because of her workplace right for the purposes of s 340 and s 361 of the Act.”
Finally in State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 the Full Court of the Federal Court said:
“32. As the trial judge recognised the leading authority on the operation of ss 360 and 361 of the Fair Work Act in the context of Part 3-1 of that Act (which includes s 351) is Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500. The principles which informed this decision were recently reaffirmed by a majority of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41. Relevantly, these authorities establish that:
·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 non prescribed 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.”
Those ‘principles’ have since been considered in a number of Full Court decisions.[4]
[4] See Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25, Short v Ambulance Victoria [2015] FCAFC 55 and Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76.
In submissions filed prior to the trial the applicant addressed what was said to be the “Statutory Scheme: Workplace Right”.[5]
[5] See paragraphs 24-36 of applicant’s amended outline of submissions
The respondent, acknowledged in submissions that the applicant had a workplace right to make a complaint and exercised that right. In light of that admission the respondent made submissions on the approach to determining the “[R]easons for the alleged adverse action: the law”[6].
[6]See paragraph 27-35 of respondent’s outline of submissions
Applicant’s Evidence
The applicant gave evidence and was cross examined. The applicant adopted her affidavit sworn 10 November 2014 where she had deposed, inter alia:
“…9…I never received any warnings or negative feedback in relation to my performance or conduct until the day I was dismissed, when – for the first time – it was put to me in the Respondent’s letter dated 26 May 2014 that I was unsuitable for the role. Attached and marked “MC03” is a copy of that letter.
10.On or about February 2014, I had a discussion with Ms Galina regarding a manager position at the Respondent’s Spencer Street store. I mentioned to Ms Galina that I could one day start a store for the company in Tasmania, to which Ms Galina replied words to the effect of “Wow, we’d love that!”
11.Examples of my achievements whilst I was employed by the Respondent include the following:
a. In January 2014, I exceeded the budget for the Spencer Street Store.
b. In February 2014, I exceeded the budget for the Spencer Street Store.
c. In March 2014, I exceeded the budget for the Spencer Street Store.
d. In May 2014, I exceeded the budget for the Spencer Street Store.
e. Ms Galina emailed Mr Rosenfeld on 2 April 2014, describing me as a ‘super manager’ to him.
f. On 24 April 2014, Ms Galina emailed me a trading report which stated that the gross profits year to date for the Spencer Street store were 13% higher than the company-wide average.
g During my time as a Store Manager, I only had two meetings with Ms Galina: one in February 2014 and another in April 2014. At both of these meetings, I showed Ms Galina photographs of the window displays I had created for my store. She said that she “absolutely” loved the window displays and she made no complains at all.
h. In approximately mid-April 2014, Ms Galina asked me to send her a photo of the window display at the Spencer Street store so that she could make an example of my display for other workers.
i I had consistently good relationships with other staff members.
12.On Monday, 28 April 2014, I attended a meeting with all the managers from the direct outlets. Other people in attendance at this meeting included: Mr Rosenfield, his son Timothy, Ms Galina, Mr Phillipe Grogner, Global Chief Executive Officer of Simon Perele, and his son, Mr Mathieu Grogner. During this meeting, I gave a presentation which highlighted that my store was trading at 13% above the company average. Mr Phillip Grogner personally congratulated me on my results. Mr Roselfeld informed Mr Grogner that since I had come into the store the sales had increased. He said words to the effect of: “I am very happy with Monique’s performance and the extra things she is doing to raise sales.”
13.That evening, I had been asked by Mr Rosenfield to attend a work dinner with Mr Phillipe Grogner and a number of the Respondent’s managers. The dinner was in a private function room at the Flower Drum in Melbourne.
14.Towards the end of the dinner, Mr Rosenfeld came to sit next to me. He asked me how long it had been since he had last seen me. I said the last time had been at the Christmas dinner. He replied words to the effect of: “Far too long. We’ll have to change that.” He went on to ask me where I saw myself in the future and I told him I would like to run a bigger store or we could make the Spencer Street store even bigger. Mr Rosenfield said words to the effect of: “I like everything I’m hearing…What I’m thinking is that you and I should meet to discuss this in more detail. How does that sound to you?” He brushed his leg against mine as he said this.
15.We were sitting side by side at this stage. I moved my leg away, thinking that perhaps we were just too cramped in at the dining table. I began talking to someone else. A few minutes later, Mr Rosenfield was still sitting next to me and he was still looking at me. He said he wanted us to “get back to our little chat.”
16.Mr Rosenfield said words to the effect of: “I think it’s best if you and I meet to talk about this.” I suggested that we could talk at Head Office. He said: “No, we don’t need any of that.” He said I should give him a call to organise a meeting time when we would not be disturbed. I felt him rubbing his leg against mine again. At this point, Mr Rosenfeld’s behaviour made me feel extremely uncomfortable…
17.I spoke very softly but firmly to Mr Rosenfield, stating that I would be very happy to meet with him at Head Office in the presence of Ms Galina. He said: “Just call me and we can discuss it.”
18.At this point, my tone changed and I became very firm. I said to Mr Rosenfeld words along the lines of: “Michael, I will never meet with you, except with Vanessa and at the office to discuss my future.” I then turned my back on him.
19.The next day, on Tuesday, 29 April 2014, I attended a meeting in the morning with Ms Galina and other managers. At this meeting, Ms Galina asked me in front of all the other store managers to explain in detail the ideas and methods I implemented to achieve outstanding results in my store. I discussed them in detail.
20.That afternoon, I called Mr Rosenfeld to give him the sales figures as usual. I told him that it had been a quiet day at the Spencer Street store. I was trying to be professional but I was feeling apprehensive because of his behaviour towards me the night before. He was silent for a while then said words along the lines of: “Thanks very much for that, now that you have ruined my night you little slut.” He hung up on me. I was shocked. When I got off the phone I started crying. Mr Rosenfield’s behaviour over the phone indicated to me that there had been a fundamental shift in the employment relationship.
21.After this event, I decided not to attend a work function that night at Crown Casino. The event was a burlesque show. I decided that I needed to complain to Ms Galina about Mr Rosenfeld’s unwarranted and inappropriate behaviour towards me. I emailed Ms Galina about 40 minutes after my phone call with Mr Rosenfield, explaining that I would not be attending the work function that evening because of Mr Rosenfield’s behaviour. Attached and marked “MC04” is a copy of my email to Ms Galina.
22.Approximately two hours later, Ms Galina emailed me her response. She said we would discuss the matter “tomorrow.” Attached and marked “MC05” is a copy of Ms Galina’s email to me.
23.Over the next three weeks, I followed up this matter by leaving several voicemail messages for Ms Galina. She never responded to any of these messages.
24.On Wednesday, 21 May 2014, Ms Galina emailed me on my personal (not work) email address to schedule a meeting for Saturday, 24 May 2014 at 5:00PM. I did not see that email until she emailed me a second time on Friday, 23 May 2014. On Saturday, 24 May 2014, I emailed and telephoned the Respondent to notify Ms Galina that I was sick and unable to attend work.
25.On Monday, 26 May 2014, I received a letter by courier from the Respondent. This letter informed me that my employment contract would not be renewed because of my ‘unsuitability’ for the position…”
The applicant also adopted her affidavit sworn 23 March 2015 and was extensively cross examined. At times the applicant was prone to exaggerate her role with the respondent but overall her evidence was given in an earnest and considered way.
Respondent’s Evidence
The respondent relied on the evidence of nine witnesses.
Mr Timothy Rosenfield
This witness adopted his affidavit sworn 9 April 2015 and was cross examined. As a director of the respondent (and son of Michael Rosenfield, the respondent’s managing director) his evidence purported to corroborate that given by other witnesses for the respondent about events leading up to the dinner at the Flower Drum, and Ms Galina’s evidence about a telephone call to Mr Michael Rosenfield, after the applicant had made her complaint.
Ms Anne Marie Steinorth
This witness, who is a Store Manager for the respondent in Brisbane, gave evidence and was cross examined. Ms Steinorth adopted her affidavit sworn 9 April 2015, and gave evidence of what she said she observed and heard during the events arranged for staff of the respondent leading up to, and at the Flower Drum.
Ms Talea Ricov
Ms Talea Ricov who is a Store Manager at the respondent’s Hawthorn store also gave evidence and was cross examined. She adopted her affidavit sworn 9 April 2015, and also sought to give evidence of what she heard and saw during the events arranged for staff of the respondent leading up to, and at the Flower Drum.
Ms Rosalind Harbison
Ms Harbison is a sales assistant at the respondent’s Spencer Street outlet. She gave evidence and was cross examined. She adopted her affidavit sworn 24 March 2015. Ms Harbison gave evidence of what she said she heard, observed and said during interaction with the applicant in late May 2014 whilst at the Spencer Street store.
Ms Rachael Carlyon
Ms Carlyon, who is now the respondent’s Store Manager for the Spencer Street store, gave evidence and was cross examined. She adopted her affidavit sworn 9 April 2015. Ms Carlyon gave evidence of her interactions with the applicant in early 2014.
Ms Amanda May Lee
Ms Lee is employed as a casual sales assistant for the respondent at its Brunswick store. Ms Lee gave evidence and was cross examined. Ms Lee adopted her affidavit sworn 10 April 2015. Ms Lee gave evidence about her interactions with the applicant (who was the Store Manager she worked with) in the first part of 2014.
Mr Michael Rosenfield
Mr Rosenfield is the Managing Director of the respondent. He gave evidence and was cross examined. He adopted his affidavit sworn 14 April 2015. This witness gave evidence of, amongst other things, his involvement as “Managing Director” in the employment of the applicant, and issues during her employment. Importantly, in relation to the events at the Flower Drum in his affidavit sworn on 14 April 2015 he deposed:
“30On 28 April 2014, all of the Store Managers from Victoria and some interstate Managers participated in a meet and greet meeting with the CEO and President of Simone Perele from France, Philippe Grodner and his son Mathieu Grodner, who are the owners of Simone Perele. Tim, Ms Galina and I were also in attendance at this meeting.
…
33I gave a glowing report or comment in relation to every store and every Store Manager in this meeting, to impress the owners and reassure them as to the quality of our management.
34That evening there was a large dinner at the Flower Drum. There was about 60 attendees, including Store Managers and sales staff, office staff and management. The Company always conducts a dinner of this type when management from France are visiting, and it is replicated in Sydney for the New South Wales staff.
…
37Throughout the course of the evening, I rotated through all six tables. When I came to the table at which Ms Crawford was sitting, she was in the seat next to the vacant seat, so I sat there. I recall speaking to Ms Crawford briefly.
38I think I asked Ms Crawford why I was not getting sales calls from her store (because I was not getting those calls). I cannot recall her response. Ms Crawford then asked me about her sales performance and whether I was happy with the sales from her store, to which I replied with words to the effect, “no, not really”. Whilst sales for the Spencer Street store were up on last year, they were not up as much as the increase in foot traffic through the centre as a whole, and the whole dynamic in the centre had changed (and new stores were opening) after receivers Korda Mentha left and it was under new management. I would have expected much better sales out of that store in light of the environment.
39Ms Crawford did not seem too happy with my response, which was (to be fair) probably a little abrupt. I think she moved on to another conversation with someone else after this and I do not recall talking to her further throughout the night. We only spoke for a couple of minutes.
…
42Given that I was sitting next to Ms Crawford, I cannot categorically deny that my leg might have made contact with Ms Crawford’s leg accidentally. I can and do categorically deny that I deliberately rubbed my leg against Ms Crawford’s leg, or that I did it multiple times (whether accidentally or deliberately).”
Mr Michael Rosenfield then went on to give evidence in his affidavit about what he said happened the following day:
“45Ms Crawford was ringing to tell me the sales figures for the day. I figured that she had taken on board what I had said to her the previous evening about ringing in the figures and that she was trying to show me that she was “on the ball”. The conversation went for about 1-2 minutes, and was “run of the mill”. Ms Crawford sounded agitated and defensive. She said that the store had had a poor day, that sales were bad and told me the figure (it was in the 800s). I said something along the lines of “that’s poor” or “that’s disappointing”, or something to that effect.
47Ms Crawford then started defending the figures. She said that she had not been at the store that day (which I already knew), and that she had been to other stores in the centre and they too had had a poor day. I think I might have said that it was not her fault or that it was not because of her, or something to that effect. That was basically the end of the call.
48I refer to paragraphs 66-68 of the Second Crawford Affidavit. Paragraphs 66-67 are reasonably consistent with what I have set out above. As to paragraph 68 (referring to paragraph 20 of the First Crawford Affidavit), I was not “silent for a while”, and I absolutely did not say to Ms Crawford words to the effect “Thanks very much for that, now that you have ruined my night you little slut”.
49I receive multiple sales report calls every day, and countless of them report quiet or slow days (including many that are significantly lower than $800). That is just part of the ups and downs of retail sales. Receiving news of this type has never and would never ruin my night.
50As to the alleged abuse, I cannot recall every using that word in my entire life. It is a filthy word that I would never use, and I would absolutely never, and have never, called anyone that word before. I am deeply offended that such vile language is being attributed to me – it attacks my family name and reputation in a most pernicious way.
51I received an email from Ms Galina later that evening, which among other things, contained some negative feedback about Ms Crawford. I most likely did not read that email until the following day, given that I was out at dinner. I did not receive a call from Ms Galina that evening, and did not otherwise speak to her that evening.”
Mr Michael Rosenfield also gave evidence in his affidavit about a conversation with Ms Galina the day after that. Mr Rosenfield denied he had been involved in the decision not to renew the applicant’s contract (or (re)employ her), or any other conversations with Ms Galina about the applicant’s ongoing employment (save for being advised of the decision by Ms Galina not to re-employ the applicant).
The respondent also read the above mentioned affidavits of Ms Cusack who was not required for cross examination.
Ms Vanessa Galina
Ms Galina is the respondent’s National Retail Manager and she gave evidence and was cross examined. Ms Galina swore a number of affidavits during the course of these proceedings on 7 October 2014, 29 January 2015 and 13 April 2015.
Ms Galina deposed that her duties included “managing the day-to-day operations of the sixteen retail stores” operated by the respondent, “dealing with human resources and staffing issues”, and that the applicant reported to her.
Ms Galina’s evidence was, inter alia:
“5Ms Crawford was employed under a six month fixed-term contract of employment, which commenced on 26 November 2012. It expired at the end of 25 May 2013. I made the decision to allow that contract to expire, and to not otherwise extend or renew that contract, or to offer Ms Crawford any other contract of employment.
6I made this decision based on a series of reports I had received from a variety of sources, regarding the behaviour and attitude of Ms Crawford to her role, certain interactions she had had with others, and from some of my own observations about Ms Crawford and the way she worked. Based on these reports (which I believed to be true) and on my observations, I was of the view that Ms Crawford was unsuitable for the role of Store Manager, having regard to her personality/interpersonal skills, performance, work ethic and level of interest in the business and the role.
7The various reports and observations, and the view I formed, were not based on the Spencer Street store’s achievement of sales targets. The sales figures were acceptable in line with the centre refurbishment, marketing and subsequent traffic increase.
8At the time of making the decision regarding Ms Crawford’s employment, and at the time that message was communicated to Ms Crawford (on 26 May 2014), I was not aware of any alleged incident of any type, involving Ms Crawford and Mr Michael Rosenfield, at the Flower Drum on 28 April 2014.
9At the time of making the decision regarding Ms Crawford’s employment, and at the time that message was communicated to Ms Crawford (on 26 May 2014), I was aware of Ms Crawford’s email to me at 6.42pm on 29 April 2014. This email related to a telephone call Ms Crawford had with Mr Rosenfield earlier that evening.
10However, at the time of making the decision regarding Ms Crawford’s employment, and at the time that message was communicated to Ms Crawford (on 26 May 2014), I was not aware that Ms Crawford had alleged, or was alleging, that Mr Rosenfield had said to her what is alleged in paragraph 19(b) of Ms Crawford’s Points of Claim dated 16 January 2014. Nor did I have any other awareness of what Ms Crawford regarded as “not warranted or appropriate” regarding that conversation.
11Shortly after I received Ms Crawford’s email, I had a brief discussion with Mr Rosenfield regarding his telephone call with Ms Crawford. He said to me that it was a normal call about sales at the Spencer Street store for that day, that sales were very low and that Mr Rosenfield had told Ms Crawford that those sales figures were poor. We did not discuss anything to do with the Flower Drum the previous evening, or anything to do with what Ms Crawford alleges Mr Rosenfield said to her on that call.
12Other than this conversation, I had no other conversations with Mr Rosenfield regarding the events of 28 or 29 April 2014, before making the decision regarding Ms Crawford’s employment, or before that message was communicated to Ms Crawford (on 26 May 2014).
13I was not required to seek, and did not seek, the approval of any other person before making my decision regarding Ms Crawford’s employment. I communicated my decision to various persons, including Mr Rosenfield, after I had made it. Other than receiving the reports that I did about Ms Crawford which had a bearing on my decision, I did not otherwise discuss any aspect of my decision with anyone, including Mr Rosenfield, before making it. Mr Rosenfield was not one of the sources of information provided to me, which I relied on in making my decision regarding Ms Crawford’s employment.
14No part of my reasons for my decision regarding Ms Crawford’s employment, included that Ms Crawford:
(a)was able to make a complaint in relation to her employment (including a complaint of sexual harassment), or because she possessed any other workplace right;
(b)did make a complaint in relation to her employment (including a complaint of sexual harassment – as stated at paragraph 15 of the First Affidavit, I did not regard or treat Ms Crawford’s 29 April 2014 email as a complaint of sexual harassment), or because she exercised any other workplace right; or
(c)proposed to make a complaint in relation to her employment (including a complaint of sexual harassment), or because she proposed to exercise any other workplace right.
15No part of my reasons for my decision regarding Ms Crawford’s employment, included to prevent Ms Crawford making a complaint in relation to her employment (including a complaint of sexual harassment), or to prevent the exercise any other workplace right.”[7]
[7]See affidavit of V Galina sworn on 29 January 2015.
In her most recent affidavit Ms Galina deposed that, inter alia, her perception of the applicant was she was “all talk and no action” and she then went on to depose to her version of the events of 28 and 29 April 2014 (before and after the Flower Drum dinner, and the applicant’s complaint). In the balance of that affidavit Ms Galina rehearsed (in some considerable and ultimately unnecessary detail) the background to and the history of the applicant’s employment before again setting out her evidence as to why she said she had not renewed the applicant’s contract.
Issues arising from the evidence
The determination of this case has depended significantly on the weight given to the evidence of the various witnesses. Subject to what follows I did not form the view that the witnesses in this case were lying, or that they deliberately set out to mislead the Court to the extent that the whole of their evidence was unreliable.
However, most importantly, in relation to critical events in 2014 I found Ms Galina’s evidence wanting and generally less convincing than the applicant’s. I particularly consider Ms Galina’s evidence concerning the events after the applicant made her complaint lacked credibility involving, as it did, inconsistent versions of events. The following exchange in cross examination suffices to illustrate this issue:
“…MS O’BRIEN: I want to take you to an email sent by you to Michael Rosenfield and Tim Rosenfield at 3.15 on 29 April 2014. Are you familiar with that email?
MS GALINA: Can you remind me. Is that part of my affidavit material?
MS O’BRIEN:…It’s an email sent by you at 3.51 that afternoon – that is after the training – 3.51 on Tuesday, 29 April. Do you remember that?
MS GALINA: Yes...
MS O’BRIEN: …So there’s nothing adverse therein about my client - It doesn’t mention her at all. There is nothing adverse in that email about my client, is there?
MS GALINA: No.
MS O’BRIEN: At 6.42 my client emails you her complaint, didn’t she?
MS GALINA: Yes.
MS O’BRIEN: And at 7.53 you respond, don’t you?
MS GALINA: To her, yes.
MS O’BRIEN: And that says she’s complaining about conversation which is not warranted and or appropriate?
MS GALINA: Yes.
MS O’BRIEN: And it happened that night ?
MS GALINA: Yes.
MS O’BRIEN: with Mr-with Mr Rosenfield?
MS GALINA: Yes.
MS O’BRIEN: And you write back at 7.53 and your response is at…so this is approximately one hour later and in fact it’s one hour 10 minutes later; is it not?---Yes.
MS O’BRIEN: After receiving - - - ?
MS GALINA: Yes.
Continuing:
MS O’BRIEN: I am very sorry to hear that.
And you say:
“I am not entirely sure what has transpired.”
MS O’BRIEN: Do you agree that’s right – that’s what it says?
MS GALINA: I am not entirely sure…yes.
MS O’BRIEN: So you were pretty sure but just not perfectly sure; is that it?
MS GALINA: It’s a turn of phrase.
MS O’BRIEN: Is it? Because in your affidavit at paragraph 66 dated 13 April 2015 you say you had no idea in the slightest - - - ?
MS GALINA: Yes.
MS O’BRIEN: what she was referring to?
MS GALINA: Those two things mean the same thing to me.
MS O’BRIEN: …No. And in that email that you had sent back an hour after you got hers, you claim you had spent the afternoon being horrified, appalled and amazed at her dreadful conduct. That’s what you claim, don’t you?
MS GALINA: No. I’m not – I was embarrassed.
MS O’BRIEN: Embarrassed. You were embarrassed?
MS GALINA: Yes. Not horrified or appalled. Just embarrassed.
MS O’BRIEN: You see, she has got a complaint about the boss, You don’t go back to her and say, “Look, I’ve got a complaint about you” do you?
MS GALINA: No.
MS O’BRIEN :No. In fact, in regard to that email, other than your “I’m very sorry and not entirely sure what has gone on”, you never have another communication with her about that matter at all, do you?
MS GALINA: No.
MS O’BRIEN: Ever?
MS GALINA: I left that to the formal - - -
MS O’BRIEN : You did not - - -?
MS GALINA: Performance management meeting.
MS O’BRIEN: ever have a communication with her about that complaint at all after 7.53 on 29 April - - -?
MS GALINA: No.
MS O’BRIEN: did you?
MS GALINA: No.
MS O’BRIEN: And that is utterly contrary to the content of your email of 7.53, isn’t it?
MS GALINA: No.
MS O’BRIEN: Yes it is. “We shall discuss tomorrow”?
MS GALINA: At the time of writing that email, that was my intention.
MS O’BRIEN: I’m sure it was. And, furthermore, you don’t even say “we shall discuss tomorrow”, you say “additionally, we can discuss tomorrow”. So you’ve got some idea of what has transpired, as you clearly say you have. You say you will discuss it and you can discuss it, by you never ever do again, do you?
MS GALINA: No.
MS O’BRIEN: No. Because you were told by Mr Rosenfield once he became aware of that complaint that he wanted you to be rid of her?
MS GALINA: No. That’s incorrect.
MS O’BRIEN: In your affidavit of January 2015 at paragraph 11, you say:
“Shortly after the receipt of the Crawford email, I had a discussion with Mr Rosenfield.”
…You see, I suggest to you in that conversation that you refer to there, he’s furious that she has complained, and he makes it unequivocally plain to you that you have to do something about it?
MS GALINA: No. That’s incorrect.
MS O’BRIEN: And then – so you forward to him half an hour later the update email at 8.20, do you not?
MS GALINA: I did forward it to him, but I did not have a conversation with him.
MS O’BRIEN : And in that email, wherein you are updating him, you make no mention of the complaint, do you?
MS GALINA: No.
MS O’BRIEN : The only important thing that has happened in the last 24 hours, and you make absolutely no mention of it?
MS GALINA: Wasn’t the only important thing that had happened in the last 24 hours.
MS O’BRIEN : So someone comes in and make a complaint about the boss about which you have some pretty good idea on your own admission, and you don’t think that’s important?
MS GALINA: I don’t have any pretty good idea, because I’m – I have no idea what it’s about at all.
MS O’BRIEN: So – well, I will leave that to his Honour to determine whether you’re being truthful about that. You make no mention of it, do you?
MS GALINA: No.
MS O’BRIEN: And what you do is you, in fact, repeat what you’ve already asked Mr Rosenfields – the Mr Rosenfields at 3.51, don’t you?
MS GALINA: I’m sorry. I’m not clear what the question is. I repeat?
MS O’BRIEN: At 8.20 - - - ?
MS GALINA: Yes.
MS O’BRIEN: you repeat not three and a half hours later - - - ?
MS GALINA: Yes.
MS O’BRIEN: I beg your pardon. Four and a half hours later what you’ve already asked them at 3.51?
MS GALINA: I haven’t- - -
MS O’BRIEN: “All went well with the tour.” You’ve already asked them that. “Hope the tour went well”?
MS GALINA: It’s a salutation. Yes.
MS O’BRIEN: It’s not a salutation?
MS GALINA: It’s a opening greeting line.
MS O’BRIEN: That’s not a greeting, is it?
MS GALINA: No
MS O’BRIEN: No?
MS GALINA: That’s a statement.
MS O’BRIEN: So you’re telling him four hours – four and a half hours later again what you’ve already told him once. And in your 3.51 memo, you say:
“I will share with you when we catch up.”
MS O’BRIEN: Don’t you?
MS GALINA: I probably viewed my – this further email as my catch up.
MS O’BRIEN: Madam, I refer you to the catch up bit you’re going to have with your bosses at Thursday, Birkenhead Point?
MS GALINA: Okay.
MS O’BRIEN:…Elaborating. You see, I suggest to you this was sent at Mr Rosenfield’s bidding?
MS GALINA: No, that’s not true.
MS O’BRIEN: Because he knew. He wasn’t going to have a bar of this, and you knew you would have to do something to reassure him about what you were going to do about it. That’s what this was all about, wasn’t it?
MS GALINA: No, that’s not true. That’s ludicrous.
MS O’BRIEN: You say to him in that email I will include this material in a review, don’t you?
MS GALINA: Yes.
MS O’BRIEN: So you tell him what you’re going to do to get rid of her, don’t you?
MS GALINA: That was my plan, to have a performance management review with her.
MS O’BRIEN: That was your plan. And then you say – you’re reassuring him by saying she will be going, and you do that by saying I think the Rolex will come from another employer?
MS GALINA: Indicating my intention of her no longer being with our business.
MS O’BRIEN:…Your boss who has no role in the comings and goings and employment and unemployment of staff?
MS GALINA: I like to keep him informed.
MS O’BRIEN: I didn’t ask you that?
MS GALINA: Okay.
MS O’BRIEN: Your boss – and you assert – he has no role in the decision about who comes and who stays, don’t you?
MS GALINA: No, he is in informed.
MS O’BRIEN: No, I didn’t ask you that. I said you say he has no role in deciding who comes and who stays. That’s your evidence, that ‑ ‑ ‑?
MS GALINA: Yes, he…
MS O’BRIEN He claims that is his evidence, and yet you’re filling him in on ‑ ‑ ‑?
MS GALINA: My decision.
MS O’BRIEN: No, you’re not filling him in on your decision at all. You’re filling him in about the conduct of the Spencer Street store manager?
MS GALINA: And I would – what I’m going to choose to do about it.
MS O’BRIEN: Well, you’re not going to choose to do anything, because you say you fully anticipate she will leave of her own volition?
MS GALINA: Yes.
MS O’BRIEN: And the method by which you do that is to freeze her out, isn’t it?
MS GALINA: No, to plan a performance management review at the end of her contract period.
MS O’BRIEN : And – well, we’ve been over that, and I suggest that you thought you could freeze her out so you wouldn’t have to worry about unfair dismissal. If I say nothing and do nothing about this complaint, she will get the hint, and she didn’t get the hint, did she?
MS GALINA: I wasn’t trying to give her a hint.
MS O’BRIEN: …You didn’t go and say, “What is your complaint about the boss?” Did you?
MS GALINA: She can make a complaint.
MS O’BRIEN: You didn’t go and say to her, “What is your complaint about the boss?” Did you?
MS GALINA: No.
MS O’BRIEN: You didn’t go and say to her, “What do you want to do about your email?” Did you?
MS GALINA: ‑‑‑I didn’t contact her, no.
MS O’BRIEN: No. You didn’t go and say to her, “Look, withdraw this email. This has all got out of hand and things will be fine.” Did you?
MS GALINA: No.
MS O’BRIEN: No. You thought if you did nothing that she would go away, and that is what you’re telling Mr Rosenfield. Don’t you worry about this. I’ve got enough on her to get rid of her with impunity, and I reckon she will go anyway. That’s what that email is about?
MS GALINA: Based on her behaviour and performance.
MS O’BRIEN: … Is the exact opposite, I say to you, to the state of mind that you claim you had one hour into the session on 29 April 2014. Your true state of mind was – I beg your pardon. Your true state of mind was the exact opposite, because you say at 8.20, I’m exceedingly disappointed about it, that she’s done this. Why would you say that about something that you resolved, what, five, six hours before, that she was a complete dud?
MS GALINA: It’s still disappointing to realise someone is a dud.
MS O’BRIEN: Well, you had already realised that. You had realised that, you say, in the better part of the five months up to the 29th, one hour into the 29 April session. You had, you claim, all manner of complaints about her, and then you had this supposed appalling, embarrassing conduct on that day?
MS GALINA: Yes. It’s disappointing to realise that you have been wrong about somebody that you employed with a hope.
MS O’BRIEN: Well, the realisation, can I say to you, madam, was not a realisation on 29 April. What you’re referring specifically to, I suggest to you – exceedingly disappointed – is the true state of your mind, because that was the only matter which you thought you could rely on to be rid of her; that is, what had happened at the meeting – and you didn’t have any genuine and honest belief about anything prior to that meeting – and I suggest to you you know full well that it wasn’t so appalling and embarrassing as you assert, but once you got that email, you knew there was no future.
…Because you believed when you asked her if she was okay that she may have had a very good reason for the obvious state that she was in on that day, and you were giving her the benefit of the doubt. It is only when you get that email, you let Rosenfield know what has transpired. He makes it plain he’s not going to tolerate it. You have to turn this so-called appalling behaviour into something that it’s not?
MS GALINA: No, that’s not true.
MS O’BRIEN: It’s only when you realise you need an excuse to be rid of her that you decide that you could exploit this opportunity, and that’s what you do in your email?
MS GALINA: No. I didn’t need to find an excuse, no.
MS O’BRIEN: Yes. Well, I suggest to you most certainly did. And can I say, both your conduct and what you wrote at the time support what I’m saying to you, and it is the exact opposite to what you now want to say; that’s the position, isn’t it?
MS GALINA: Sorry, I don’t understand the question. Can you repeat that?
MS O’BRIEN: Well, what you said at the time in written documentation is the true position as to your state of mind, not what you now assert in affidavits 18 months down the track; that’s the true position, isn’t it?
MS GALINA: Well, I don’t really understand. You’re asking me to take your interpretation of my words, and I am clarifying that with my ‑ ‑ ‑
MS O’BRIEN: See, I suggest to you your state of mind in this matter was fixed between 7.50 and 8.20 by Michael Rosenfield?
MS GALINA: No, that’s incorrect. I don’t…”
For the reasons to which I will return Ms Galina’s evidence in cross examination raised real doubts about her denials that her refusal to (re)employ the applicant was not actuated by a prohibited reason.
Did the respondent take adverse action against the applicant by dismissing the applicant?
The applicant had argued that the respondent had taken adverse action against her by, inter alia, terminating her employment for the prohibited reason that she had made a complaint.
The respondent denied that allegation. It was the respondent’s position that as the applicant was employed under a maximum term contract it had expired by the effluxion of time, and the applicant had not been terminated by the respondent.
In submissions filed prior to trial the applicant’s position was the applicant’s employment was terminated at the respondent’s initiative on 26 May 2014.
The respondent’s submissions filed prior to trial were:
“19This claim, whether in contract21 or pursuant to statute,22 hinges on the proposition that despite the expiry of the six month contract on 25 May 2014,23 the Applicant remained employed by the Respondent on and from 26 May 2014, until she received the letter confirming the expiry of her six month contract at some stage during 26 May 2014.24
20There is no foundation for this proposition, either in fact or law. It appears to be premised on the proposition that the Applicant was paid for work up to and including 26 May 2014.25 There is no evidence to this effect, and it is wrong. The Applicant’s last day of work was 24 May 2014. She was not required to perform, and did not perform, any work on 25 May 2014 or 26 May 2014.
21Once it is accepted that the existing contract of employment expired on its own terms due to the effluxion of time on 25 May 2014, an entirely new contract of employment would need to be formed on and from 26 May 2014. There is no evidence of any offer by one party to the other for this to occur, nor any evidence of any acceptance of such an offer (nor that any such desire or intention to achieve this, was communicated from one party to the other). The absolute bare minimum for a valid and binding contract, are entirely absent.27
22The contract of employment expired by agreement due to the effluxion of time on 25 May 2014.28 Due to the Applicant’s failure to attend the meeting on 24 May 2014, the earliest opportunity that the Respondent had to communicate this fact, and the fact that no new contract was to be offered, was the following business day (26 May 2014). This is what it did.
23 These claims cannot succeed.
Alleged contravention of section 340(1) of the FW Act
24Relevantly, section 340(1) of the FW Act prohibits (on pain of civil penalty) an employer (the Respondent) taking “adverse action” (defined in section 342 of the FW Act) against an employee (the Applicant), because of various reasons associated with “workplace rights” (defined in section 341 of the FW Act).
Adverse action
25On the facts of this case, there is no dismissal within the meaning of that term in item 1(a) of section 342(1) of the FW Act...29”
The question of whether an employee was engaged under a contract of employment for a specified period of time has been addressed in a number of cases.[8]
[8] Cooper v Darwin Rugby League Inc (1994) 57 IR 238.
In Victoria v Commonwealth (1996) 187 CLR 416 it was held that when a contract of employment for a specified term exists, an employer does not terminate the employee’s employment when his or her term of employment expires. Instead, the employment comes to an end by agreement and by effluxion of time, and there is no termination at the employer’s initiative.[9]
[9] See also Fisher v Edith Cowan University (1996) 70 IR 206.
In Attwood v Wangka Maya Pilbara Aboriginal Language Centre [2010] FMCA 342 at [85] to [94] Lucev FM (as His Honour then was) considered the authorities on whether a contract was for a specified period.
The applicant did not deny signing the contract and doing so without duress or coercion. By the terms of the contract the parties jointly signed, they created a particular set of legal rights and responsibilities. One of those was that the legal relationship would cease on 25 May 2014. There is no evidence that there was a commonly shared objective view held by the applicant and the respondent that the contract meant something else than what it stated.
The applicant’s case appeared to be predicated on the proposition that there was a contractual, or other obligation, to renew (or rollover) the contract. No such obligation was established.
The contract between the applicant and the respondent was unaltered by any variation and its expiry continued to be, at all relevant times, 25 May 2014.
The applicant was not required to perform any duties after the date specified in the contract as the end date of 25 May 2014. The applicant was on notice the contract would conclude on the end date of 25 May 2014. It was against that background that I am satisfied this explained the searches, (which I find it is more likely than not), that the applicant performed concerning the FW Act using the computer at the Spencer Street store.[10]
[10]See exhibit R5.
I am satisfied on the evidence the applicant was aware of the import of the proposed meeting, and it was no coincidence she was absent on the working day prior to expiry. I find it was more likely than not, the applicant suspected what it was Ms Galina wanted to raise with her at the meeting she missed because of that absence.
I reject the attempts made on behalf of the applicant to suggest that the applicant’s employment continued post the expiry of the contract. As was held in Borg v Victoria University [2015] FCA 252 [53] to [55], a person will not be taken to have been dismissed if the person had been employed under a contract of employment for a specified period of time, and that period had expired.
Given the nature of the applicant’s contract, I accept the respondent’s submissions and find the applicant has not made out this allegation.
Did the respondent contravene s.117 of the FW Act
This claim was made in submissions filed prior to the trial. Given the discrete nature of the issue and the matters already set out above it is convenient to dispose of this issue now.
Section 117 of the FW Act provides:
“FAIR WORK ACT 2009 - SECT 117
Requirement for notice of termination or payment in lieu
Notice specifying day of termination
(1) An employer must not terminate an employee's employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).
Note 1: Section 123 describes situations in which this section does not apply.
…
Amount of notice or payment in lieu of notice
(2) The employer must not terminate the employee's employment unless:
(a) the time between giving the notice and the day of the termination is at least the period (the minimum period of notice ) worked out under subsection (3); or
…”
Section 123 of the FW Act provides:
“FAIR WORK ACT 2009 - SECT 123
Limits on scope of this Division
Employees not covered by this Division
(1) This Division does not apply to any of the following employees:
(a) an employee employed for a specified period of time, for a specified task, or for the duration of a specified season,
(b)…”
In submissions filed prior to trial the applicant had alleged, inter alia, the respondent had failed to comply with s.117 of the FW Act[11] the basis (or arguments) for this claim made by the applicant were only developed in final submissions as follows:
“…Notice of Termination
110Crawford's contract of employment provides a week is defined as:
a. Schedule 1, Item 4
Hours of work 38 hours per week....to be worked between the hours of 9am and 6pm Monday to Sunday, with a 30 minute unpaid lunch break per day.
b. Ms Crawford’s weekly work was from Tuesday to Saturday. But the week for the purposes of the contract was from Tuesday 9am to 6pm on Monday.
[11] See paragraph 41-45.
c. Cl 4 Term of Agreement provides that:
Subject to clause 17, this is a fixed term Agreement. The term is for a period of six months from commencement date, with an option for the Employer to extend or renew this Agreement thereafter. If the parties agree to extend the Agreement beyond the initial term then 7 days before the expiry of the Agreement the parties shall negotiate in good faith to extend or renew this Agreement.
d. Schedule 1, Item 2 of the contract provided the contract was commenced on the 26 November 2013. The contract provision as to renewal was required to be made by Sunday 25 May 2014.
e. This did not occur. The Respondent allowed the Applicant‘s relationship of employment to continue into the last day of her working week as defined by the contract namely Monday 26 May 2014.
111.The term of the contract of employment as to the fixed term may have lapsed by reason of the failure to notify the exercise of the option but the terms upon which she was otherwise employed did not.
112.The Respondent failed to terminate the relationship until Monday 26 May 2014 and as such the Applicant was entitled to the provision of the over holding written terms:
a. Cl 17.2 Termination Generally
This Agreement may otherwise be terminated by either the Employer or the Employee by giving, in writing, the other party the period of notice as set out at Item 8 of Schedule 1.
b. Schedule 1 Item 8 Notice Period provided:
Four weeks' written notice plus an additional week if you are over 45 years of age.
113.As such Ms Crawford is entitled to 4 weeks pay.
In the alternative: Statutory Entitlement
114.Ms Crawford was entitled to receive 1 weeks’ notice of termination pursuant to s117 of the FW Act. Ms Crawford was notified by way of letter received 26 May 2014, that her employment had ceased. She was not given any notice prior to that day.
115.Ms Crawford’s employment contract is not a genuine fixed term contract nor is it a contract for a specified period in the true sense. As a result, s123 of the FW Act is of no application and the notice periods in s117 still apply. See Andersen v Umbakumba Community Council (1994) 56 IR 102; Cooper v Darwin Rugby League Inc (1994) 57 IR 238.
116.The Applicant submits that the Respondent has contravened the terms of s117 of the FW Act by failing to provide the Applicant with notice of her termination 7 days prior to 26 May 2014 or payment of the equivalent amount.
117If the court should find that Schedule 1 Item 8 Notice Period of the contract of employment is not applicable, the contract is in contravention of the FW Act by reason of the failure to provide for one weeks’ notice by a notion of “the contract lapse[ing]”where the Respondent does not give notice of intention to renew the contract…”[12]
[12] See Applicant’s final submissions filed on 16 July 2015.
For the reasons set out above, given the terms of the contract and the evidence before the Court, the allegation the respondent contravened s.117 of the FW Act, or that the respondent was required to provide the applicant notice, must be rejected.
Did the respondent refuse to employ the applicant?
Given the matters referred to earlier and the respondent’s concessions, the respondent’s defence to this part of the application relied on its ability to discharge the onus under s.361 of the FW Act.
In light of the respondent’s position, it is necessary to consider whether it has discharged the onus to demonstrate that its decision not to (re)employ the applicant was not for the substantial or operative reason that she had made a complaint. In Shea v TRUenergy Pty Ltd (No.6) [2014] FCA 271 Dodds-Streeton J discussed the approach to the presumption in s.361 of the FW Act at [761] to [778].
The fact that the respondent may consider, or know of various circumstances or activities of the applicant, does not necessarily mean they constitute an operative reason for the refusal to (re)employ.[13]
[13]See Board of Bendigo Regional Institute of Technology and Further Education v Barclay & Anor [2012] HCA 32 at [56 to [62] per Frenck CJ and Crennan J.
The fact that the refusal occurs at a point in time after a particular activity of the applicant does not mean that it constitutes an operative reason for the refusal.[14]
[14]See Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41 at [18] to [19] Mr French CJ and Kiefel J.
The evidence of the decision made may establish the substantial and operative reason for the refusal.[15]
[15] See Board of Bendigo Regional Institute of Technology and Further Education v Barclay & Anor [2012] HCA 32 at [43]-[45], [53]-[56], [127], [140]-[141] and State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [48]-[49].
The question is whether the applicant’s complaint was a substantial and operative reason for the decision not to (re)employ her (see Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; Klein v Metropolitan Fire & Emergency Services Board (2012) 208 FCR 178 at 205 [100]; RailPro Services Pty Ltd v Flavel [2015] FCA 504 at [86]). The timing of events does raise suspicions, and it is not surprising that the applicant thought them linked.
It was the respondent’s case that Ms Galina (and only Ms Galina) made the decision not to (re)employ the applicant. Accordingly, and if that is accepted, it is Ms Galina’s state of mind that needs to be assessed. Ms Galina’s denial that she was motivated by any prohibited reason is not determinative. In assessing what “actuated” Ms Galina’s decision, it is both permissible and necessary to examine the circumstances surrounding the decision, and in particular, those matters likely to have been germane to the decision making process in which Ms Galina engaged.[16]
[16] See Ermel v Duluxgroup (Australia) Pty Ltd (No.2) [2015] FCA 17
In final submissions the applicant identified the following issues with the respondent’s evidence about what happened after the applicant’s complaint had been made:
“The Post Complaint Conduct of the Respondent
18The post complaint conduct of Galina from 7.53pm on the 29 April 2014 must be examined in the context of the content of the emails and the most likely version of the sequence of events on the night of the 29 April 2014. The conduct includes:
a. That she omitted in her reply of 7.53pm to Crawford’s complaint, to raise with Crawford her alleged conduct at training that day, despite this being apparently in the forefront of her mind at 8.20pm.[17]
[17] In fact she never raised this with Ms Crawford at all after the 29 April 2014.
b. That her treatment of Ms Crawford and her complaint at 7.53pm, “I am sorry to hear that…..we shall discuss tomorrow” and “We can discuss this tomorrow” was wholly at odds with her purported view an hour later that Crawford was not and had not been for some time worthy of continued employment and she believed would not continue in the employment.
c. There is a complete failure at any time after the 7.53 email to act on her written advice of 7.53pm that she would and could discuss the matter with Crawford the next day.
d. There was a failure to raise the matter ever again with Ms Crawford though she claims to have “investigated”[18] the matter.
[18] Third Galina affidavit para.76.
e. The evidence of an alleged investigation of the matter where she claims to wholly accept the word of her employers[19] though at the time she had no idea whatsoever as to what was actually said.[20]
[19] Third affidavit Galina para.137and Exhibit A10. ”third party witness baseless”
[20] Third affidavit Galina para.137. Later evidence indicates that Mr Tim Rosenfield 4 months from the events in question was unclear as to the night the alleged call was supposed to have occurred despite significant and distinguishing events on the night in question.
f. That she gave no evidence about what knowledge she did have by reference to her own words in the email of the 7.53pm that “I am not entirely sure” what had gone on. But she claims in evidence she had no idea until the receipt of the complaint as to what had actually transpired.[21]
[21] Third affidavit Galina para.137
g. That she gave no evidence of any relevance to the continuation or otherwise of the Crawford employment after the 29 April 2014 and the alleged decision on the 21 May 2014;
h. There is a complete vacuum between 7.53pm on Tuesday 29 April 2014 and 21 May 2014[22] wherein Galina admits she had no contact[23] with Ms Crawford.
[22] Third Affidavit of Galina dated 13 April 2015 at para.141. 21 May 2014 is the claimed day of the decision not to renew.
[23] Transcript 16.6.2015 page 349 line 5--25
i. The after event self-corroboration in the 13 April 2015 affidavit at paras 59 and 64 about Ms Galina forming a view “about an hour into Ms Etty-Leal’s session” that she would not offer Ms Crawford a new contract of employment, a view she later indicated in her 8.20pm email, should be rejected. There are a number of reasons for this.
i) The content and sequence of the contemporaneous communications up to 8.20pm are not in accord with the “the most appalling and embarrassing displays she has ever seen.” This is by reason of the fact this comment only arises after the complaint and the likely telephone call with M. Rosenfield. Secondly it is inconsistent with the earlier sympathetic response to the complaint.
ii)This opinion Ms Galina now claims to have formed at the time as to Ms Crawford’s behaviour is also inconsistent with Ms Galina’s admitted contemporaneous conduct at the time. She made enquiry as to ”whether she [Ms Crawford] was OK?” Conduct of the extent described would not have elicited this sympathetic response. And this would be particularly so if it was truly confirmatory of her claimed previous observations and reports.
iii)This is further supported by Galina’s own description of herself as “exceedingly disappointed” in the 8.20pm email. These words demonstrate a positive expectation not met. These are not the words of a person whose observations have been confirmed.
iv)Ms Etty-Leal, the only independent witness in this matter has not been called by the Respondent and no explanation was forthcoming. 15 other managers were present at the training day but only Ms Carlyon was called. Her evidence for reasons below should be treated with caution.
19. The conduct of Ms Galina after the 29 April 2014 was a conscious attempt to distance herself from the complaint. Taking each element of the evidence, the content of the emails, the likely sequence of events on the night in question and the post complaint conduct, it is reasonable to infer that the decision to take adverse action was made because of Ms Crawford’s complaint.”[24]
[24] See Applicant’s final submissions filed on 16 July 2015.
Whilst the applicant contended that Ms Galina was simply doing what she was told by Mr Rosenfield I am not persuaded that’s the case. In any event Ms Galina’s denials that her decision was motivated by any prohibited reasons are not sufficient to discharge the onus upon the respondent under s.361 of the FW Act, particularly for reasons to which I will turn where Ms Galina’s evidence failed to provide a convincing explanation for why the applicant’s complaint was never followed up with her.
I have no doubt the applicant, who Ms Galina’s emails described as “our HR expert”, was seen by Ms Galina as a problem. Whilst the applicant was not “a dud” as Ms Galina described her she may have been inclined to see herself as an “HR” expert, have been opinionated, been viewed by Ms Galina amongst others as being “all talk and no action”, and been difficult to manage. It is against that background that on consideration of all the evidence the applicant’s complaint emerged as a problem it appeared that Ms Galina either wasn’t ready, or preferred not, to confront.
In my opinion having watched all the witnesses give evidence, and considered all of the evidence, I find Ms Galina did not believe she could control the applicant. After being confronted with the complaint by the applicant I can’t be satisfied this was not a factor in Ms Galina’s refusal to (re)employ the applicant.
In submissions in reply filed on 19 August 2015 the applicant’s submissions were, inter alia, that “[m]uch of Ms Galina’s evidence is internally inconsistent with contemporaneous documents and her actions at the time, such that her recollections must be in doubt…”[25]
[25] See paragraph 15 of the applicant’s submissions in reply filed on 19 August 2015.
I accept there were so many versions from Ms Galina as to critical matters on the night of 29 April 2014 that (particularly where this wasn’t adequately explained) I hold real doubts about that evidence.[26] By way of example, I find it inherently unlikely that Ms Galina would not have mentioned the complaint made by the applicant when communicating with Mr Rosenfield, and I don’t accept her denials that she did not do so.
[26] See extracts at footnote 16 to applicant’s final submissions.
In the applicant’s final submissions the following point was made:
“…46 When the Court looks to the elaborated alternative reasons alleged for the non-renewal, a real want of substance and cogency in those reasons simply reinforces the ultimate conclusion. The lengths the Respondent has gone to in this regard is undermined by the quality of the evidence and the contemporaneous documentary evidence…”[27]
[27] See Applicant’s final submissions filed on 16 July 2015.
I find Ms Galina’s denials in oral evidence, given in the context of this proceeding, were an attempt to reconstruct her reasoning process with the benefit of hindsight, affected by the fact that she and the respondent were under scrutiny for acting for a prohibited reason. I am not satisfied the respondent has discharged the onus which falls on it.
The question whether the respondent has proven that the applicant’s complaint was not a substantive and operative factor in the taking of adverse actions against the applicant must be answered in the negative. In my opinion, the respondent has not discharged its burden.
In light of my findings concerning the credibility of the principal actors accounts of events in May 2014, I find that the applicant was not (re)employed for the substantial or operative reasons that she had made a complaint. Section 342 of the FW Act provides that refusal to renew a contract is adverse action.
Bonus issue
The applicant had alleged that it was the respondent’s policy, practice and/or procedure that when one of its stores met or exceeded the sales target for a particular month, the relevant Store Manager was entitled to an incentive bonus. The applicant also alleged it was a term of her contact the payment of the bonus would “not be arbitrarily, capriciously and unreasonably withheld”. In failing to make the bonus payment to her for May 2014, the applicant alleged the respondent had breached that term. The respondent denied this.
The applicant’s allegations on this issue had gone through several iterations, the latest of which was transparently an attempt to claim in this matter that the approach to such a claim as was set out in Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357 (“Silverbrook”) applied in this case.
In Silverbrook, the employee’s contract of employment contained the following clause:
“4. ANNUAL PERFORMANCE BONUS
4.1Lindley will be eligible to receive the Annual Performance Bonus subject to clause 4.2 and 4.3.
4.2Silverbrook will assess Lindley’s performance against set objectives at the end of each quarter commencing from the date of her employment. Provided her performance satisfies the said objectives and subject to clause 4.3, one quarter of the Annual Performance Bonus will be paid to Lindley within 21 days of the end of each quarter.
4.3The decision as to whether Lindley should receive the Performance Bonus is entirely within the discretion of Silverbrook. Lindley must be in the employ of Silverbrook at the time bonuses are determined to be eligible to receive the Annual Performance Bonus.”
Allsop P (as his Honour then was and with whom Beazley JA agreed) acknowledged that there was no contractual obligation upon Silverbrook to pay the employee a bonus, however, it was held that there was a contractual obligation to set up, and undertaking to follow a process of assessment of performance which gave rise to a contractual opportunity, or chance of obtaining a bonus, depending upon the outcome of that assessment, and the subject of any discretion under clause 4.3. His Honour observed at [5]-[6]:
“This process begins with a proper understanding of the contractual content of the obligations and entitlements arising out of cl 4 and in particular cll 4.2 and 4.3. That the decision as to whether the respondent should receive the bonus was “entirely within the discretion of” the appellant should not be construed so as to permit the appellant to withhold the bonus capriciously or arbitrarily or unreasonably; it should not be construed so as to give the appellant a free choice as to whether to perform or not a contractual obligation. The relevant discretion should be understood against proper scope and content of the contract. This was a bargained for bonus to be assessed against set objectives. Such a clause should receive a reasonable construction and not permit the appellant to choose arbitrarily or capriciously or unreasonably that it need not pay money the set objectives having been satisfied [authorities and citations omitted]. The discretion is to be exercised honestly and conformably with the purposes of the contract. There may be many circumstances in which it would be legitimate and conformable with the purposes of the contract, not to pay the bonus. There may be financial stringency or misbehaviour by the respondent or some other consideration. It is unnecessary to explore the possibilities in detail. What, however, would not be permitted is an unreasoned, unreasonable, arbitrary refusal to pay anything, come what may. This would be a denial of the very clause that had been agreed. If these parties wished to make payment under the clause entirely gratuitous and voluntary such that payment could be withheld capriciously, notwithstanding the compliance with solemnly set objectives they needed to say so clearly.”
Those circumstances don’t apply to this case. In submissions filed prior to the trial, the applicant accepted that the payment of the sales bonus was at the discretion of the respondent. However, the applicant alleged the respondent had failed to pay the sale bonus for May 2014 to the applicant in circumstances which were arbitrary, unreasonable and/or capriciously in breach of the terms of the written contract.
The basis (or argument/s) upon which this claim was advanced by the applicant were put in final submission as follows:
“Breach of Contract Claim: the Sales Bonus
118Pursuant to the contract the Respondent agreed to pay its employees bonuses.
119The decision as to whether or not the Applicant should receive the bonus was entirely within the discretion of the employer subject to the obligation not to exercise that discretion capriciously or arbitrarily. See Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357 at [5] as per Allsop P, with whom Beazley JA agreed.
120There is no dispute that Ms Crawford surpassed the sales bonus target for May 2014, and the sales bonus was ultimately paid to other employees of the company following Ms Crawford’s termination. The Applicant submits that the failure to pay was capricious if not arbitrary in the circumstances and the Applicant was entitled to the payment of $1,000 in accordance with the terms of her contract of employment.”[28]
[28] See Applicant’s final submissions filed on 16 July 2015.
In final submissions the respondent noted:
“Withholding of the bonus
8The Applicant’s claims are set out in her Amended Points of Claim dated 10 March 2015 (Claim). No claim is advanced in that document, or in the Applicant’s Application dated 29 July 2014 (Application), that the Respondent breached the contract of employment by arbitrarily, capriciously or unreasonably withholding a bonus for the month of May 2014.
9.On 8 May 2015, the Respondent was provided with a copy of the Claim dated 8 May 2015, which was in an amended form and included such a claim.[29] The Respondent does not know whether the Court is in possession of such a document.
10.The Applicant has no right to amend her Claim without leave,[30] leave was never sought in relation to this newer form of the Claim and leave was never given. Indeed, given the late notice and the nature of the amendments,[31] the Respondent would have opposed any application for leave. As it happened, no application was made and the Respondent assumed that the proposed amendments were abandoned.
11. Those claims cannot be advanced now.”[32]
[29] New paragraphs 13(d), 13(e), 28 and 29 (with all subsequent paragraphs being renumbered).
[30] See for example, Ejueyitsi v Deakin University [2013] FCCA 1034 and Collins v Trimatic ContractServices Pty Ltd [2014] FCCA 1607.
[31] First, the proposed amendments and how such an allegation was put, were entirely unclear, given the cross-referencing. Second, the Respondent could have responded with significant, new answering material, which would have necessitated an adjournment (including non-exhaustively, other occasions when a full month was not worked, detailed evidence about the actual sales figures (and what they constituted), how many days the Applicant was absent that month (cross-referenced against sales on those days) and other evidence about the Applicant’s performance in that particular month). Third, there was no explanation for why the proposed amendments were sought to be made on the eve of the trial (and not sooner).
[32] See respondent’s final submissions filed on 5 August 2015.
Those submissions [33] relied on the submissions filed prior to trial on this issue which were:
“Failure to pay an incentive bonus for May 2014
To the extent that this allegation is pressed, it has no substance. It is an alleged breach of contract, and relies on a term pleaded at paragraph 13(a)(ii) of the Claim. It is said to be partly in writing and partly implied. The written clause is said to be clause 6 and item 3 of Schedule 1 to the contract. Item 3 refers to “bonus incentives”. There is no possible way in which the term contended for by the Applicant, can be re-created or divined from those words. How is it to operate? When is it payable? How much is payable? What happens when employment ends before the end of the month? The subsequent conduct of the parties cannot assist in proving any of these things.
The suggested implication is said to derive from a vague and unidentified “policy, practice and/or procedure”. Any such policy or practice is non-contractual,[34] and the evidence is directly against the existence of any such policy or practice in any event.[35] Even if it were not, this claim has the same problems as the alleged written aspect of the term: how does it work, when is it payable, how much is payable and what happens when employment ends before the end of the month?”
[33] See paragraph 22.
[34] Paragraph 33 of the Third Galina Affidavit; Ryan v TCFUA [1996] 2 VR 235 at 260; Reilly v Praxa Ltd [2004] ACTSC 41 at [28]; Whittaker v Unisys Australia Pty Ltd (2010) 26 VR 668 at [133]-[157].
[35] Paragraphs 33-39 of the Third Galina Affidavit.
The applicant’s reply submissions also addressed the bonus claim. However, instead of focusing on the gravamen of the respondent’s arguments in final submissions (which I accept) the applicant appeared to prefer to put arguments about why Ms Galina’s evidence supported her claim.
Ms Galina’s evidence regarding the bonus payment issue was set out at paragraphs [33] to [39] of her affidavit filed 14 April 2015 and on this issue there is no reason on the evidence to reject it.
In this case, unlike the contract in Silverbrook, there was no written provision evidencing the bonus scheme. Moreover, I am not satisfied on the evidence the applicant has made out her claims grounding the allegation of a breach of her contract on the basis of her claim that the bonus had been capriciously or unreasonably withheld, or in breach of any proven policy or procedure.
The contract makes clear the incentive bonus payment is at the ultimate discretion of the respondent. There was no breach of, or any implied obligation of good faith to the applicant made out on the evidence before the Court. Given the plain language of the contract, and that it was clear that the payment of a bonus was at the ultimate discretion of the respondent, there is no reason to construe it in any other way.
The evidence is the respondent acted in accordance with the expressed terms of the applicant’s contract, the terms of which, by her signature at the time she accepted the offer of employment, the applicant must have been taken to accept.
I accept the respondent’s submissions on this issue, and am not satisfied the applicant has made out her claim/s in relation to the alleged entitlement to the bonus payment on either version of the claim/s.
Fair work information statement
At the commencement of these proceedings there had been mention made in the Form 2 prepared, when the applicant was unrepresented, of the alleged failure by the respondent to provide the applicant with a Fair Work Information Statement. Since then this issue wasn’t pursued with any vigour, and at all times since then, appeared to be very much an afterthought, notwithstanding that it was a civil remedy provision.
The applicant claimed the respondent had not provided her with a copy of the Fair Work Information Statement at the commencement of her employment in accordance with s.125 of the FW Act, which provides:
“125 Giving new employees the Fair Work Information Statement
(1)An employer must give each employee the Fair Work Information Statement before, or as soon as practicable after, the employee starts employment.
(2)Subsection (1) does not require the employer to give the employee the Statement more than once in any 12 months.
Note: This is relevant if the employer employs, the employee more than once in the 12 months.
The applicant’s submissions addressed this issue at paragraph 121:
“121.The Respondent breached s.125 of the FW Act by failing to provide Ms Crawford with a Fair Work Information Statement when she commenced her employment. This alleged breach was claimed by Ms Crawford in her Form 2 accompanying her Application to this court.” [36]
[36] See applicant’s final submissions filed on 16 July 2015.
The respondent’s submissions at paragraphs 12 to 17 addressed this issue:
“12.The Applicant’s allegations and causes of action are as set out in the Claim. The Application is supposed to identify the relief sought in relation to those claims, but does not extend them.
13.Even if it did, the suggestion that the Applicant has at any stage, formally pressed this allegation before the Court, is disingenuous and wrong. Paragraph 121 of the Applicant’s Submissions blithely asserts that the alleged breach was claimed in the Application. There is no substance to this contention.[37]
14.The Grounds of the Application and the final orders sought, are said to be set out in the claim filed with the Application. Part G of that claim document sets out the contraventions alleged. Nowhere there is section 44(1) of the FW Act, or section 125 of the FW Act, mentioned. Part H of that claim document sets out the remedies sought. This does not advance matters. The only mention of the Fair Work Information Statement is in some long, rambling attachment, the provenance and purpose of which is unknown.
15.Further and in any event, the Applicant’s position on this issue was clearly stated by her Counsel on the fourth day of hearing: “it’s not my issue, your Honour”.[38]
16.As to the suggestion that the Court itself has some power to inquire into the matter, add a claim to that effect to the case advanced against the Respondent in an adversarial proceeding, and then rule on it, there is no such power and the Court would be in error to do so.[39]
17.Further and in any event, such an allegation cannot be substantiated to the requisite standard of proof on the evidence.”[40] [41]
[37]As to which, see TT 257.5-257.20.
[38]TT 257.5-257.20.
[39] See generally, Banque Commerciale S.A. (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-8; Dare v Pulham (1982) 148 CLR 658 at 664; Whitehorn v The Queen (1983) 152 CLR 657 at 675 and 682.
[40]For the reasons set out in the attached Annexure B.
[41] See respondent’s final submissions filed on 5 August 2015.
At Annexure B to those submissions the respondent squarely addressed (and correctly, in my view, identified) the evidence on this issue:
“1.A contravention of section 44(1) of the FW Act, by reason of contravening section 125 of the FW Act, exposes the Respondent to a pecuniary penalty.[42] Whilst the standard of proof remains the civil standard, the Court is obliged to have regard to the fact that a contravention may lead to a penalty, in assessing the strength of the evidence required to prove the contravention.[43]
2.Having regard to those principles, the Court could not be satisfied, to the requisite standard, that a contravention of section 125 of the FW Act occurred.
3.Ms Cusack gave uncontested evidence which, in the circumstances of many corporations, was as good or definite as could be expected.[44] Having regard to the engagement of 10-15 new employees per annum, several years having passed and Ms Cusack’s evidence about the FWIS and her usual practice, the Court could rarely be satisfied that a contravention was sufficiently proven, irrespective of what the employee might say.
4.Ms Cusack knew of the FWIS, had copies of it printed out with other employment documents and her standard practice was to provide it to employees with other employment documents. Quite properly, Ms Cusack could not possibly say that she either did, or did not, provide a copy to the Applicant (or any other employee).[45]
5.Against this evidence, is a one line assertion in the Second Crawford Affidavit: “The Agreement did not contain a Fair Work Information Statement”.[46] There are three problems with this evidence. First, for the reasons advanced in paragraphs above, the Applicant’s evidence in many respects lacks credibility and cannot be trusted.
6.Second and more relevantly, her evidence as to this matter, given the time at which these events occurred and other evidence she gives, is unreliable. The Applicant’s memory of events in November 2013 is obviously lacking, especially with respect to matters associated with documents and document management. The Applicant plainly signed her Contract,[47] yet she swore in an affidavit that she could not recall doing so.[48] It is difficult so see how the Court could rely on the assertion regarding the FWIS, in light of this evidence.
7.Third and most relevantly, there is in fact no evidence before the Court that the Applicant did not receive the FWIS, “before, or as soon as reasonably practicable after”, the Applicant started employment. The Applicant was given the Contract (or Agreement) on 26 November 2013, the commencement date. There is no dispute that the “Agreement” did not contain the FWIS. It would be nevertheless probably fair to read this as evidence that the Applicant was not given the FWIS with the Agreement.
8.However, that evidence does not say that the Applicant did not receive the FWIS before 26 November 2013, at some other time on 26 November 2013, or at some other time as soon as practicable thereafter. There is in fact, no evidence of a contravention of section 125 of the FW Act before the Court in any event. There is nothing other than “inexact proofs, indefinite testimony, or indirect inferences”.[49]
9.For all of these reasons, this allegation, however it is made, cannot be substantiated.”[50]
[42]Section 539 of the FW Act.
[43] Section 140(2) of the Evidence Act 1995 (Cth); Briginshaw v Briginshaw (1938) 60 CLR 336; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; Seven Network (Operations) Ltd v CEPU (2001) 109 FCR 378 at 389, and the cases there cited. See also the cases at footnote 43 of the Respondent’s Outline.
[44]Paragraphs 9-14 of the Second Cusack Affidavit.
[45]Paragraphs 13-14 of the Second Cusack Affidavit.
[46]Paragraph 21 of the Second Crawford Affidavit.
[47]On 29 November 2013: Annexure “LC-2” to the First Cusack Affidavit.
[48]Paragraph 34 of the Second Crawford Affidavit.
[49]See footnote 43 of the Respondent’s Outline.
[50] See Annexure B of the respondent’s final submissions filed on 5 August 2015.
The respondent’s evidence I accept adequately explained this issue, and I am not satisfied the applicant has demonstrated a breach by the respondent.
Relief
Given the conclusions reached above it is necessary to consider the question of relief.
The applicant sought compensation for the loss suffered because of the contravention of the FW Act, and that a penalty be imposed on the respondent for that contravention. Despite the amended points of claim suggesting further particulars of loss or damage would be forthcoming, there were none and little, if any, attention paid to this during the trial.
In Dafallah v Fair Work Commission [2014] FCA 328 Mortimer J set out the applicable principles and approach to an amount of compensation pursuant to s.545 of the FW Act as follows:
“148.The language of s 545 is broad, allowing the Court to provide remedies which meet the circumstances of any given contravention, taking into account the range of parties who may have brought proceedings in relation to the contravention, and the actions which might in any given circumstance be required to remedy the contravention, or to ensure it does not occur again. Awarding compensation for loss is but one example and may not be appropriate, depending on what other action has been taken in respect of any losses. Each case will turn on its facts in that sense.
149.Fixing compensation under s 545 is a statutory task, and the Court must not substitute that task with approaches derived from the general law: Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388; [2004] HCA 3 at [44]; Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69 at [94] per French and Jacobson JJ.
150.In my opinion, the following features of s 545(1) and its place in the scheme of the FW Act are relevant.
151.The purpose of identifying obligations in the FW Act as civil remedy provisions, and thus enabling penalties to be imposed for conduct contravening those obligations, is to establish norms of conduct across the activities covered by those provisions — minimum wages, equal remuneration, industrial action, right of entry, the general protections regime, and the requirements of enterprise agreements. Subjecting conduct contravening these provisions to the imposition of civil penalties is intended to serve the aims of deterrence (both specific and general) as part of a legislative aim to reduce or eliminate such conduct.
152.In some circumstances, compensation for loss because of the contravention may relate to loss suffered by more than one employee, or by an employee organisation or an industrial association.
…
155.A contravention of orders made by the FWC relating to unfair dismissal is, by s 405, a civil remedy provision. Otherwise, the provisions relating to unfair dismissal are not, in contrast for example to the general protection provisions, civil remedy provisions.
156.Where the subject matter of the contravention is a breach of an agreement closely connected to the termination of a person’s employment for poor performance, as is the case here, the Court must, in exercising power under s 545(1), be careful not to undermine the operation of the unfair dismissal provisions, and the limits Parliament has placed on them. That is especially so in circumstances where unfair dismissal proceedings have been unsuccessfully pursued, as is the case here. An order for compensation which has such an effect may not, in my opinion, be an “appropriate” order for the purposes of s.545(1).
157.Further, the width of the power conferred by s 545(1) also allows for compensation which may not fully compensate a person for the loss suffered: see Gama (2008) 167 FCR 537; [2008] FCAFC 69 at [94] per French and Jacobson JJ, where their Honours were considering similar statutory compensation provisions under s 46PO(4) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). In my opinion, that approach is available under s 545(1) because, as their Honours pointed out in Gama at [94], an award of compensation is discretionary. In s 545(1), the governing consideration is what the Court considers “appropriate”, and this in my opinion leaves room for a Court to find in a given case that less than full compensation might be appropriate.
158.While by no means operating as a mandatory approach to a discretion such as that conferred by s 545(1), with respect I adopt the remarks of Lee J in Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia — Western Australian Branch (1995) 63 IR 1, considering factors relevant to an award of compensation under s 170EE of the then Industrial Relations Act 1988 (Cth). His Honour said (at 9), that the Court will
“have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened ... The Court will consider the detriment occasioned to the employee by the employer’s contravention of the Act, and the extent to which it is reasonable to compensate the employee for such consequences.”
159.One of the principal tasks, if compensation is to be awarded, is to ensure that there is the appropriate causal connection between the contravention and the loss claimed: Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526; [2011] FCA 333 at [423] per Barker J.
160.The Full Court in Burazin [1996] IRCA 371; 142 ALR 144 at 155 approved this approach. Some of the matters referred to by Lee J are similar to those set out as considerations in s yeah 392(2). Although the power under s 545(1) is separate and independent, in my opinion, since the same statutory concept of compensation is involved, it is appropriate to consider factors similar to those set out in s 392(2).
161.In considering causation, in the circumstances of a clearly fraught employment relationship as was the case between Ms Dafallah and Melbourne Health, it is appropriate in my opinion to consider that the employer would have in any event been entitled to exercise any power it had to bring the employment contract lawfully to an end in a way most beneficial to itself. The likelihood of an employer taking such a step will be fact dependent but, in contractual terms, it has been held to be relevant to the assessment of damages: see Bostik (Australia) Pty Ltd v Gorgevski [1992] FCA 209; (1992) 36 FCR 20 at 32. In my opinion, it is a factor which can also be taken into account for the purposes of determining what compensation is appropriate under s 545(1), where compensation is limited to the loss caused by the contravention.”
The remedy sought by the applicant is discretionary in nature, and is dependent, in any given case, upon what the Court considers appropriate in the circumstances.
Section 545(2)(b) of the FW Act provides that the Court may make an order for awarding compensation for loss that a person has suffered because of a contravention. There must be an appropriate causal connection between the contravention and the loss claimed (see Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333 and also Kennewell v MG & CG Atkins trading as Cardinia Waste & Recyclers [2015] FCA 716).
The claim for compensation advanced by the applicant, who gave evidence she has been studying since the respondent refused to offer her employment, assumes that if she had been offered employment that period of employment would have continued indefinitely. That assumption is not warranted.
The question is what orders, in relation to compensation to the applicant, should be made on the evidence before the Court, as the applicant has had the opportunity at trial to put on evidence in relation to loss or damage.[51]
[51] See Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27
There is insufficient evidence to find, absent the adverse action, the applicant would have been (re)employed (and remained in that employment) for a substantial period. Given the evidence, of in particular the respondent’s witnesses, I think it is unlikely any period of (re)employment for this applicant would have been for any longer than six months. In the circumstances, it is not possible to say that absent the adverse action the period of (re)employment would have been any longer than six months.
It is appropriate that the applicant be compensated for loss of income during that period. The parties are in the best position to calculate the loss, and will be directed to do so (see Maritime Union of Australia v Fair Work Ombudsman [2015] FCA FC 120).
The parties will also be given an opportunity to make submissions on this and the application of the penalty provisions and the matter will be fixed for a hearing on penalty and the parties directed to file submissions on that and any orders for ancillary relief arising from these reasons for decision on a date to be fixed.
I certify that the preceding one hundred and thirty-six paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Date: 8 October 2015
Corrections
The legislation in the heading above para.85 was changed from “Family Law Act 1975” to “FW Act”.
In para.91, the surname of “Dodds Shetton” was corrected to “Dodds-Streeton”.
In cases cited and para.108 citation “Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 359” changed to “Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357”
Andersen v Umbakumba Community Council (1994) 126 ALR 121.
D’Lima v Board of Management, Princess Margaret Hospital for Children (1995-6) 64 IR 19.
Fisher v Edith Cowan University (unreported judgment of Madgwick J), 12 November 1996, No WI 1061 of 1996.
5
40
0