Crosby v Quebec Nominees Pty Ltd
[2019] FCCA 2797
•3 October 2019 (delivered by video link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CROSBY v QUEBEC NOMINEES PTY LTD & ORS | [2019] FCCA 2797 |
| Catchwords: INDUSTRIAL LAW – Employment – dismissal – alleged contravention of general protection provisions of Fair Work Act 2009 (Cth). |
| Legislation: Evidence Act 1995 (Cth), ss.56, 135, 140 Fair Work Act 2009 (Cth), ss.12, 62, 63, 114, 115, 116, 125, 340, 341, 342, 345, 361, 386, 535, 570 Fair Work Regulations 2009 (Cth), Pt 3.6, Div.3, Sub-Div.1 |
| Cases cited: Australian Rail, Tram & Bus Industry Union v Australian Western Railroad Pty Ltd [2017] FCCA 1954 Martin v Yeoman Aggregates Ltd [1983] ICR 314 Megna v No 1 Riverside Quay (SEQ) Pty Ltd [2006] AIRC 519 State of New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371; (2002) 115 IR 283; [2002] Aust Torts Reports 81-676; (2002) 52 AILR 5-410 Stevenson v Murdoch Community Services Inc [2010] FCA 648; (2010) 202 IR 266 |
| Applicant: | JAYNE CROSBY |
| First Respondent: | QUEBEC NOMINEES PTY LTD |
| Second Respondent: | ROBERT LINDSAY SHIRLEY |
| File Number: | PEG 82 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 7, 8 and 9 October 2013 and 4, 5, 6 and 7 March 2014 |
| Date of Last Submission: | 7 March 2014 |
| Delivered at: | Sydney (via video-link to Perth) |
| Delivered on: | 3 October 2019 (delivered by video link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr D Howlett |
| Solicitors for the Applicant: | Taylor Smart |
| Counsel for the Respondents: | Ms G Archer SC and Mr G Douglas |
| Solicitors for the Respondents: | Douglas Cheveralls Lawyers |
ORDERS
That the application, as amended at hearing, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 82 of 2013
| JAYNE CROSBY |
Applicant
And
| QUEBEC NOMINEES PTY LTD |
First Respondent
| ROBERT LINDSAY SHIRLEY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The claim in this case alleges a dismissal from employment of the applicant, Jayne Crosby (“Ms Crosby”) by the first respondent, Quebec Nominees Pty Ltd (“Quebec Nominees”), and further alleges that the second respondent, Robert Lindsay Shirley (“Mr Shirley”) was knowingly concerned in the alleged dismissal in contravention of a general protection under the Fair Work Act 2009 (Cth) (“FW Act”).
At hearing the Court granted Ms Crosby leave to amend her claim with respect to the contraventions alleged in the terms of a minute of proposed further amended annexure to the Form 2 claim (“Amended Claim”).
Briefly, the Amended Claim alleges that Ms Crosby was employed by Quebec Nominees, and that Quebec Nominees repudiated Ms Crosby’s contract of employment by allowing her to be bullied, which resulted in an acceptance of the repudiation by way of Ms Crosby’s resignation, which is claimed to be a dismissal from employment by Quebec Nominees. A further repudiation is claimed by reason of the alleged failure to allow Ms Crosby to withdraw her resignation, which Ms Crosby alleges was tendered “in the heat of the moment”. Yet a further repudiation of Ms Crosby’s contract of employment is alleged by reason of Quebec Nominees opting to pay out part of the period of notice given under Ms Crosby’s resignation, that is to make a payment in lieu of notice, rather than allowing Ms Crosby to serve out her notice. Alternatively, it is also claimed that Ms Crosby was constructively dismissed.
Ms Crosby also alleges that Quebec Nominees contravened s.345 of the FW Act by knowingly or recklessly making a false or misleading representation about her workplace rights by representing that the General Retail Industry Award 2010 (“Retail Award”), a “Modern Award” made by Fair Work Australia (now the Fair Work Commission) applied to Ms Crosby’s employment, when it appears it did not. Further contraventions are alleged in relation to:
a)a breach of s.62 of the FW Act in relation to an allegation that Ms Crosby was required or requested to work more than 38 hours per week; and
b)an allegation that s.125 of the FW Act was breached by failing to provide Ms Crosby with a Fair Work Information Statement.
The Response of Quebec Nominees and Mr Shirley is to admit various factual matters (which are dealt with in substantially more detail below), deny other factual matters, but to ultimately deny that:
a)there was a repudiation of Ms Crosby’s contract of employment by Quebec Nominees;
b)any acceptance of any alleged repudiation by Ms Crosby constituted a dismissal, and, in any event, that there was no dismissal of Ms Crosby, and therefore her claims cannot be made out in respect of any alleged dismissal contravening a general protection;
c)there was any false or misleading representation in relation to a workplace right, and that, in any event, Ms Crosby did not rely upon any representation if it was made; and
d)Ms Crosby was required or requested to work more than 38 hours per week, and if she was so required or requested it was reasonable to do so: FW Act, s.62(3); and
e)that Ms Crosby was provided with a Fair Work Information Statement.
There were seven hearing days (of which six were occupied with evidence and the final day was closing submissions) with 780 pages of Transcript and 82 Exhibits. There were seven witnesses: three called by Ms Crosby, namely herself, her husband Bruce Crosby (“Mr Crosby”), and Amy Miriam Brewis (“Ms Brewis”); and four called by Quebec Nominees and Mr Shirley, namely Mr Shirley himself, Mr Andrew David McLean Hillyar (“Mr Hillyar”), Ms Natalie Bryce (“Ms Bryce”), and Cassandra Kerry Vea Gilbert (“Ms Gilbert”).
Given that there are allegations of bullying by Ms Crosby involved, the factual matters are quite detailed, as the allegations of bullying spread over a not inconsiderable period of time. The matter is further complicated by the fact that there are separate repudiations claimed by Ms Crosby, and alternative forms of dismissal, namely her acceptance of repudiations by Quebec Nominees and an alleged constructive dismissal.
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, in November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has read, and re-read significant portions of each of the following:
a)the Claim Form, Amended Claim Form and Response;
b)each of the affidavits;
c)the entirety of the Transcript;
d)all of the exhibits; and
e)the various outlines of contentions of fact and law and written submissions which were filed or presented to the Court for the purposes of the final hearing.
These Reasons for Judgment are being delivered, by video-link, by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”).
Principal dramatis personae
It is convenient to set out the principal persons involved in these proceedings, both corporate and individual.
Quebec Nominees is a constitutional corporation for the purposes of s.12 of the FW Act. The Thingz Group is conducted under its aegis, and, relevant to these proceedings, the Thingz Living stores are retail stores selling home furniture and decorator items in a number of stores in Western Australia, spread from Broome to Esperance and including the metropolitan area, plus a store in Darwin in the Northern Territory: Transcript at 281.
Mr Shirley is the sole director, and managing director, of Quebec Nominees: Transcript at 267 and 387. Mr Shirley commenced with a predecessor of Quebec Nominees in 1975: Transcript at 280. Ms Crosby commenced working with Quebec Nominees in 2004, and in 2010 was promoted to a position as operations manager, responsible for stores in Bunbury and Busselton in the south-west of Western Australia, and also some stores in the southern part of the Perth metropolitan area. Ms Crosby’s last day of actual work with Quebec Nominees was 26 October 2012.
Mr Hillyar is the general manager for Thingz Gifts, in which capacity he oversees the operations of a number of Thingz Gifts and Thingz Living stores: Transcript at 386. Mr Hillyar reported to the deputy managing director, Mr Phil Dodd, and to Mr Shirley in his capacity as managing director: Transcript at 387. Mr Hillyar was Ms Crosby’s direct supervisor, and she reported to him: Transcript at 387. Mr Hillyar was a member of the Thingz Group “board” (which was not a board of directors as such): Transcript at 387.
Ms Bryce was employed by the Thingz Group from 26 July 2011 when she was appointed as the manager of the Busselton Living store. Subsequently, on 11 May 2012 Ms Bryce was appointed as the manager of a new store, the Bunbury Living store. Ms Bryce is the younger sister of Ms Crosby, and the person principally alleged by Ms Crosby to have been engaged in bullying Ms Crosby.
Ms Gilbert is the human resources administration manager for Quebec Nominees and took up that role in about 2011, prior to which she had occupied a position in the payroll department of Quebec Nominees since October 2007, and for about five months prior to that she had been a trading manager in the Warwick store: Transcript at 615. Ms Gilbert liaised with Ms Crosby in relation to day-to-day issues concerning payroll, employment relations and occupational, health and safety: Transcript at 615.
Ms Brewis was at a relevant time in 2012 the store manager of the Thingz Port Hedland store: Transcript at 222-223.
Mr Crosby is Ms Crosby’s husband, and assisted with the set-up of the new Bunbury Living store in 2012: Transcript at 239-240.
Rulings on the evidence
Amendment Form 2
The Court granted leave to amend the Form 2 Claim Form from paragraphs 44 onwards on the basis that the amendments were not significant in scope, and that any prejudice to the Respondents could be dealt with procedurally during the course of the hearing, or in the case of the amendment to [49] of the Form 2, if not made out at the end of the day, by way of a cost application, notwithstanding s.570 of the FW Act (albeit that it would still have to be subject of argument and consideration if any costs application were opposed).
Evidence – Facebook
At Transcript p.563-566 Ms Crosby endeavoured to cross examine Ms Bryce by reference to copies of material from Ms Bryce’s Facebook page (apparently), notice of which was only given to the Respondents on the morning of day 5 of the hearing: Transcript p.564, but which related to a person and events which were wholly unrelated to the facts and circumstances of this case, but which were being introduced in an endeavour to prejudice and embarrass Ms Bryce. The information on which Ms Crosby sought to cross examine Ms Bryce had only been provided to counsel for Ms Crosby the previous evening, and was undated. The Court took the view that the material was irrelevant as it did not relate to matters in issue, and prejudicial because it sought to embarrass Ms Bryce in relation to unrelated matters, was undated and was provided late: Evidence Act 1995 (Cth) (“Evidence Act”), ss.56(2) and 135(a)(c).
Evidence – VRO
At Transcript p.591-593 Ms Crosby sought to introduce evidence of a violence restraining order allegedly taken out against Ms Bryce the detail of which, as to time, and as to by whom it was taken out in relation to precisely what sort of conduct, was uncertain. The Court was of the view that it was vague, and also that it was unduly prejudicial and unfair to Ms Bryce, and to the Respondents, by reason of the lateness of it being raised (during day 5 of the hearing) and the uncertainty as to its content and subject matter: Evidence Act, ss.56(2) and 135(a).
Summary of issues in contention
The issues in contention in these proceedings are as follows:
a)did Quebec Nominees repudiate Ms Crosby’s contract of employment by permitting or not preventing the alleged bullying conduct by Ms Bryce and Ms Gee, which repudiation Ms Crosby says she accepted by her resignation;
b)did Quebec Nominees constructively dismiss Ms Crosby by not allowing her to withdraw her resignation, in circumstances where:
i)Ms Crosby says she resigned “in the heat of the moment”;
ii)Ms Crosby says she was entitled to withdraw her resignation without the consent of Quebec Nominees or Mr Shirley; and
iii)Ms Crosby withdrew her resignation at or about the time of its purported acceptance by Mr Hillyar, on 20 October 2012;
c)did Quebec Nominees dismiss Ms Crosby on 26 October 2012 because she had a workplace right, namely the benefit of the Occupational Safety and Health Act 1984 (WA) (“OSH Act”);
d)alternatively, did Quebec Nominees refuse to allow Ms Crosby to withdraw her resignation because she had a workplace right, namely the benefit of the OSH Act;
e)alternatively, did Quebec Nominees dismiss Ms Crosby on 26 October 2012 because she had a mental disability;
f)did Quebec Nominees require Ms Crosby to work in excess of 38 hours a week, in breach of s.62 of the FW Act;
g)did Quebec Nominees fail to give notice of termination, in breach of s.117 of the FW Act; and
h)did Quebec Nominees breach s.345 of the FW Act by falsely representing that the Retail Award applied, or, if the Retail Award applied, did it breach the Retail Award.
Contract of employment
On 27 April 2012 Ms Crosby was employed as the operations manager responsible for the operations of Thingz stores in Bunbury, Port Hedland and some other areas.
At the time of Ms Crosby’s termination her remuneration package comprised:
a)a salary of $62,000 per annum;
b)superannuation;
c)the use of a motor vehicle, mobile telephone and laptop computer, for both personal and business use; and
d)an entitlement to bonus payments if stores managed by Ms Crosby made over-budget.
See Exhibits 1 and 74.
In September 2012 Ms Crosby alleges that her contract of employment was unilaterally altered and that she was assigned additional duties and responsibilities as a training manager for Quebec Nominees. The Court notes Exhibits 74 and 75 which are Ms Crosby’s final payslips, and which still describe her as an operations manager.
The letter of offer of employment to Ms Crosby was dated 15 April 2010 and confirmed an offer of employment with Thingz Gifts in the position of operations manager with a commencement date of 27 April 2010. The letter of offer of employment indicated that it set out the terms and conditions of employment being offered, and indicated that:
Most of your terms and conditions of employment will be provided for by the Fair Work Act 2009 (Cth) as amended from time to time and an applicable Modern Award as amended from time to time.
This letter set out some additional terms and conditions which also form part of your contract.
The document attached to the letter of offer of employment commences with a table of contents which indicates that it is page 2 (being a page after the letter of offer presumably) of 30. It indicates that there are 12 clauses of the contract and four schedules relating to hours of work and punctuality, position description, personal leave (sick leave) and motor vehicle policy. Although the schedules are separately set out the hours of work and punctuality schedule is designated as schedule 1, and the other three schedules are all designated as schedule 2. The schedules were not however tendered as part of the Exhibit, which simply includes clauses 1 through to 12 of the contract of employment. Relevant clauses of the contract of employment are referred to as appropriate below.
The Court notes that the contract of employment was entered into with Thingz Gifts, but that Thingz Gifts has the same ABN as Quebec Nominees, and no issue was taken as to the true identity of the employer in these proceedings.
Clause 1.3 of the contract of employment provides that Ms Crosby’s usual place of employment would be Bentley. The Court notes that at the time the contract was entered into Ms Crosby lived in Australind.
Clause 2.1 hours of work provided that:
You may be rostered to work ordinary hours on any day from Monday to Sunday and you may be required to work on any of the Stores’ late night trading nights. As a minimum, you will be required to work an average of 76 hours per fortnight but you acknowledge that due to the level of responsibility involved in the position, it will often be necessary for you to work outside of those hours in order to fulfil your responsibilities.
Please refer to Schedule 1 – Hours of work and Punctuality
As the Court has observed above schedule 1 does not form part of the contract of employment exhibited in the proceedings.
Clause 2.2 of the contract of employment deals with regularly working Sundays and provides as follows:
In accordance with clause 27.13 of the Modern Award, if you are regularly rostered to work Sundays we will ensure that at least once every four week cycle you will have three consecutive days off that include a Saturday and Sunday.
If you would prefer us to vary this arrangement, please complete and return to us Form 1 – Regularly Working Sundays. You will need to give us at least four weeks’ notice if your circumstances change and you want us to comply with clause 27.13 of the Modern Award.
Clause 3.1 of the contract of employment provides for an annual gross base salary of a particular amount reviewable at the completion of the probation period, but which provides that:
This rate of remuneration is intended to cover any entitlement you might otherwise have to ordinary time payments, penalty rate payments, overtime payments, loadings and allowances under the Modern Award. Accordingly, for all hours worked you will be paid this hourly rate, whether or not these hours worked under the Modern Award would have attracted any additional penalties, loadings or overtime rates.
Clause 5 of the contract of employment provides for leave in accordance with the FW Act and the Retail Award as amended from time to time in relation to annual leave, personal leave (sick leave and carer’s leave, compassionate leave bereavement leave), parental leave and community service leave, and that long service leave “is covered by the applicable State legislation.”
Clause 6 of the contract of employment provides that, subject to ss.114, 115 and 116 of the FW Act, Ms Crosby may be required to work on public holidays, and further states that payment for work performed on a public holiday has been taken into account when the salary was calculated.
Clause 7 of the contract of employment provides that Quebec Nominees’ policies and procedures are to be complied with as a term of the contract of employment, and that Quebec Nominees has absolute discretion to change those policies and procedures, and that a breach of any policies, whether written or verbal, may result in disciplinary action up to and including dismissal.
Clauses 11.1 and 11.2 of the contract of employment deal with notice and termination, and need to be set out in full:
11.1 Notice Period
The following notice periods apply if either you or the Company wish to terminate your employment, except in cases of serious misconduct where your employment may be terminated without notice.
Number of years service
Period of notice required
Not more than 1 year
1 week
More than 1 year but no more than 3 years
2 weeks
More than 3 years, but no more than 5 years
3 weeks
More than 5 years
4 weeks
If you are over the age of 45, and have completed at least 2 years continuous service with Thingz Gifts you will receive an additional weeks’ notice if we terminate your employment. You do not have to give an extra weeks notice if you resign.
11.2 Termination of Employment
The company may terminate this agreement at any time without prior notice if you:
(a)commit any serious or persistent breach of any of the provisions of this agreement
(b)are guilty of any serious misconduct
(c)do anything which would justify summary dismissal by common law
(d)are absent from work for a continuous period exceeding three days without the consent of the Company, such unauthorised absence will constitute you abandoning your employment.
Serious misconduct which may result in instant dismissal (summary dismissal) includes but is not limited to any of the following:
•Stealing
•Fraud
•Harassment
•Racial discrimination
•Breaches of Occupational Health and Safety Laws
•Refusal of Duty
•Use of violence – Physical or verbal
•Any other act that may be reasonably deemed to be an act of serious Misconduct.
Unsatisfactory performance which could result in dismissal fter sufficient warnings have been given includes:
(a)frequent unsatisfactory job performance;
(b)breach of Company Policies or Procedures
The Court notes that incentives and bonus are dealt with under clause 11 of the contract of employment which otherwise deals with notice and termination, and provides that:
Incentives bonus are paid at the discretion of the General Manager
In clause 12.1 of the contract of employment the “Modern Award” is defined to mean the Retail Award as amended from time to time.
Clause 12.2 of the contract of employment provides that the contract of employment and documents referred to in it contain the entire agreement between the parties relating to employment.
On 20 April 2010 Ms Crosby signed a copy of the contract of employment acknowledging that she had read it, understood it, and accepted the terms and conditions as offered.
Ms Crosby alleges that the contract of employment contained a prohibition on the payment of overtime, penalty rates, loadings and allowances, by reason of clause 3.1 of the contract of employment, and that if the Retail Award applied to Ms Crosby it applied in such a way as to exclude clauses providing for overtime penalty, loading and allowance payments.
The letter of offer of employment says that the “Fair Work Information Statement” is enclosed.
Fair Work Information Statement
Ms Crosby claimed that she did not receive a Fair Work Information Statement: Applicant’s Contentions of Fact and Law at [55].
Ms Crosby’s evidence, initially at least, was that she was not given the Fair Work Information Statement: Transcript at 97. She did give evidence that she had seen Fair Work Information Statements going into “Starter Packs”: Transcript at 97. When asked again whether she received one of those, she said “No” but then qualified that by saying “Not that I’m aware of, no”: Transcript at 97.
When Ms Crosby was cross-examined on her evidence-in-chief, her evidence was that:
a)she could not recall whether she had received a Fair Work Information Statement: Transcript at 115;
b)she did not have any part of the contract of employment (Exhibit 1) after page 23: Transcript at 115;
c)the contract of employment (Exhibit 1) did say at the bottom of the letter of offer of employment that a Fair Work Information Statement was enclosed: Transcript at 115;
d)she did not recall whether or not she was given a Fair Work Information Statement when she commenced as a store manager: Transcript at 115;
e)she did not read her contract of employment: Transcript at 116; and
f)she did not, as a consequence of not reading the contract of employment, actually know what was included in it: Transcript at 116.
Ms Gilbert gave unequivocal evidence that she gave a copy of the Fair Work Information Statement to Ms Crosby, and explained in detail the circumstances in which that occurred: Transcript at 690-691. Having regard to the terms of that evidence, and the detailed explanation given as to when the Fair Work Information Statement was said to be given to Ms Crosby, the Court considers that the Fair Work Information Statement was given to Ms Crosby in the manner described by Ms Gilbert.
The claim that Ms Crosby was not given a Fair Work Information Statement is therefore not made out.
Bullying
Ms Crosby alleges that during the course of her employment as operations manager she was bullied by another employee, Ms Bryce, who is also her sister, and that this ultimately led to her resignation from Quebec Nominees.
Ms Crosby alleges that from 11 May 2012 until 19 October 2012 she was subjected to:
a)threats, including threats of personal violence;
b)verbal abuse;
c)personal insults;
d)public humiliation, including in front of co-workers;
e)harassment; and
f)intimidation,
and that these constituted the bullying of which she complains.
Ms Crosby alleges that the bullying took place at work, but also when she was not at work, including when she was at her home. The bullying is alleged to have been undertaken by Ms Bryce, who was a store manager at the Bunbury store, for which Ms Crosby was responsible as operations manager. Ms Crosby alleges that the bullying took place in person, in writing, and by text message and telephone.
Ms Crosby claims that:
a)she had no involvement, and did not know about, nor recommend, Ms Bryce for employment when Ms Bryce was first employed as a casual at the Thingz store in Busselton in mid-2011; and
b)although she knew of Ms Bryce’s application for a management position and attended her interview for that position, she played no part in Quebec Nominees’ decision to employ Ms Bryce in the position of store manager of the Bunbury store in May 2012, after which time she alleges the bullying commenced.
Ms Crosby alleges that her complaints to Quebec Nominees concerning the alleged bullying were frequent and repeated. Ms Crosby says that they were made on various days at meetings, in telephone conversations and by email correspondence between 11 May 2012 and 19 October 2012 to Mr Hillyar, Mr Dodd (the Deputy Managing Director of Quebec Nominees) and to Ms Gilbert, and included (but were not limited to) the following:
a)an email from Ms Crosby to Mr Hillyar on 18 May 2012 (Exhibit 19);
b)discussions between Ms Crosby and Mr Hillyar on or about 25 May 2012;
c)an email from Ms Crosby to Mr Hillyar on 27 July 2012 at 2:43pm (Exhibit 4);
d)discussions between Ms Crosby and Mr Dodd on 2 August 2012;
e)an email from Ms Crosby to Mr Hillyar on 13 August 2012 at 8:57pm (Exhibit 5);
f)an email from Ms Crosby to Mr Hillyar on 23 September 2012 at 11:17am;
g)a discussion between Ms Crosby and Mr Hillyar on 4 October 2012;
h)an email from Ms Crosby to Mr Hillyar on 6 October 2012 at 3:45pm; and
i)discussions between Ms Crosby, Mr Hillyar and Ms Gilbert on 8 October 2012.
Further, Ms Crosby says that Mr Hillyar saw the bullying, and was told about it by Ms Crosby, when Mr Hillyar visited the Bunbury store on 11 May 2012. Ms Crosby also says that she told Ms Gilbert about the bullying in the discussions on 8 October 2012.
Ms Crosby says that in the emails and discussions referred to above she told Quebec Nominees of the seriousness of the affect that the bullying was having on her including, that she:
a)felt humiliated;
b)felt worthless;
c)felt sick;
d)felt tired;
e)often cried and felt intensely sad;
f)felt suicidal;
g)was considering resigning because of the bullying; and
h)was considering getting a restraining order against Mr Bryce because of the bullying.
Ms Crosby alleges that in a meeting between her and Mr Hillyar on 13 July 2012 Mr Hillyar told Ms Crosby that Quebec Nominees would take action to stop the bullying by Ms Bryce, but despite her complaints and the affect upon her of the conduct of Ms Bryce, Quebec Nominees failed to stop the bullying and failed to protect Ms Crosby from the bullying. Specifically, Ms Crosby says that Quebec Nominees failed to:
a)adequately discipline Ms Bryce so as to stop the bullying; and
b)terminate the employment of Ms Bryce, even though she was seriously breaching her employment obligations by carrying out the bullying. Ms Crosby says that she was told by Mr Hillyar in a discussion in or about July 2012 that Quebec Nominees was concerned that Ms Bryce would take action against Quebec Nominees for unfair dismissal if she was dismissed, and that Ms Bryce had joined a union and persuaded other employees at Bunbury to join a union, and that Quebec Nominees were aware that she had done so. Ms Bryce also alleges that Quebec Nominees operated on an express policy of denial or non-admission or prohibition on the disclosure of information in relation to health and safety or accidents.
The bullying claims by Ms Crosby are restricted to two employees, namely:
a)Ms Bryce; and
b)Ms Gee, in relation to events at the Port Hedland store in October 2012.
By way of introduction to the bullying claims concerning Ms Bryce it is necessary to set out some of the circumstances in which she came to be employed as the manager of the Busselton Living store in July 2011. The Busselton Living store was one for which Ms Crosby was responsible as operations manager, and Ms Crosby agreed that in the middle of 2011, Quebec Nominees were desperate to find people to work there, and that she may have (but cannot recall) said to her sister Ms Bryce that she should do some work there for a few weeks: Transcript at 116. Mr Bryce went to work at the store, and in Ms Crosby’s words “had been running the store for 2 to 3 weeks prior” to her appointment as its manager on 26 July 2011: Transcript at 117. Ms Crosby resisted the propositions put to her in cross-examination that she had said that Ms Bryce would be a great candidate, or ideal for the role, or that she highly recommended her: Transcript at 117, but did say that she “ticked all the boxes” and that she “didn’t have a real problem with her”: Transcript at 117. Ms Crosby agreed that Ms Bryce had good customer service skills, was a good worker and had a good work ethic: Transcript at 117.
Mr Hillyar gave evidence that Ms Crosby “recommended highly” Ms Bryce for the position of manager of the then new Busselton Living store in which she had been working as a casual employee, and that Ms Crosby actually came to him and said that Ms Bryce “would be an excellent candidate for this new store … [had] great customer skills … was very good at selling, upselling … was very knowledge on product … has worked in the retail industry … would be an excellent candidate for us”: Transcript at 391.
Mr Hillyar gave evidence that he and Ms Crosby interviewed Ms Bryce for the position of manager of the Busselton Living store, and during the course of the interview he outlined to Ms Bryce that Quebec Nominees had a so-called nepotism policy, and given that she was Ms Crosby’s sister the final decision on her employment would be that of Mr Shirley: Transcript at 392. Mr Hillyar says that both Ms Bryce and Ms Crosby agreed with what had been said and said that they had “worked together previously and did not see an issue with this”: Transcript at 392.
Both Ms Crosby and Ms Bryce understood that if the working relationship between them did not work out, then one of them would have to leave: Transcript at 118, 392 and 551. Indeed, Ms Bryce understood that if it did not work out that it was her that would be terminated: Transcript at 551.
Mr Hillyar went on to give evidence that there were no problems in setting up the new Busselton Living store: Transcript at 392, and that Ms Bryce “did very, very well” and that Ms Crosby was commending Ms Bryce on the job that she was doing: Transcript at 393.
In 2012 Quebec Nominees was opening a new store in Bunbury: the Bunbury Living store.
With the opening of the Bunbury Living store in 2012 Mr Hillyar says that Ms Crosby said that Ms Bryce “was well and truly up to it. She had the track record of the Busselton Living store, … the excellent sales results, the control of wages, … steady team, great customer service, and … highly recommended her for that position”: Transcript at 393. As with the interview for the Busselton Living store position, the interview for the manager of the Bunbury Living store was conducted by Ms Crosby and Mr Hillyar: Transcript at 393.
It is not in dispute that Ms Bryce was the successful applicant for the manager of the Bunbury Living store.
Although Ms Crosby denies recommending Ms Bryce for the positions at either of the Busselton Living store in 2011 or the Bunbury Living store in 2012 in the Court’s view the evidence establishes that it is more likely than not that she did so. On the evidence there was seemingly no issue or controversy between them prior to Ms Bryce being appointed manager of the Bunbury Living store: Transcript at [33]-[34].
The May 2012 conflict
Ms Bryce was appointed to the position of manager of the Bunbury Living store by Mr Hillyar. Ms Crosby did not object to that decision, and described it as “just automatic”: Transcript at 36. Ms Crosby asserts however that she had been telling Mr Hillyar for some time, since January 2012, of issues concerning the Busselton Living store which Ms Bryce was managing. Those issues, as set out by Ms Crosby in her evidence, were:
a)not following company policies;
b)not following banking schedules;
c)leaving work early;
d)bullying the younger members of staff at the Busselton Living store; and
e)not doing her fair share of hours.
Transcript at 37.
As the operations manager responsible for the Bunbury Living store Ms Crosby was required to visit that store from time to time. Her evidence, however, made it clear that she perceived her role as more than that of operations manager responsible for supervising the store manager, Ms Bryce. She described her role in relation to the Bunbury Living store as being:
It was going to be my little baby and I was – I was going to be very proud of that store.
Transcript at 37.
Ms Crosby alleges that the bullying commenced on 11 May 2012.
The conduct of Ms Bryce (and others) is said to have been set out in a document prepared by Ms Crosby and handed to Mr Hillyar at a meeting on 24 October 2012: Exhibit 17. That document is referred to as necessary below.
11 May 2012
It is alleged that on 11 May 2012, which was the day before the store was due to open on 12 May 2012 (which was also the Saturday before Mothers’ Day), that Ms Bryce physically assaulted Ms Crosby by throwing keys and furniture at her.
Ms Crosby’s evidence concerning the events of 11 May 2012 indicates that there was a disagreement between Ms Crosby and Ms Bryce as to how the store was to be set up, and that at one stage Ms Bryce had “an outburst”, threw keys and then threw furniture which broke some stock in the store, and that when she had thrown the keys she had turned and told Ms Crosby that she could “stick it up my arse and with that she walked out”: Transcript at 43. Ms Crosby’s evidence indicates that Ms Bryce came back two, maybe three, hours later, and helped with the final cleaning up of the bits and pieces and the last of the taking of materials off the windows and that she and Ms Bryce stayed there until about 9.00pm: Transcript at 43.
It is plain that both Ms Crosby and Ms Bryce were working in a high pressure environment leading up to the opening of the Bunbury Living store on 12 May 2012, being the Saturday before Mothers’ Day. It is also plain that Ms Bryce perhaps had a different idea as to how the store ought to be set up compared to Ms Crosby: Transcript at 42-43. All the evidence reveals is that in this pressure cooker environment she, as Ms Crosby says, had “an outburst”. She threw keys, she threw furniture, and as she walked out, uttered a phrase which would indicate that she herself had had enough. In any event, it is evident that as Ms Crosby put it, Ms Bryce wanted to do it her way, and no doubt Ms Crosby wanted to set up her “baby” her way. There is little doubt that there was a clash between them: but the Court would not characterise this as a physical assault, or bullying, but rather, at worst, as Ms Crosby characterised it, an “outburst” by Ms Bryce, no doubt as a result of the pressure of having to set up the Bunbury Living store in readiness for the Mothers’ Day weekend.
12 May 2012
Ms Crosby alleges that on 12 May 2012 Ms Bryce again was verbally abusive to her at a time at which Mr Hillyar was present in the Bunbury Living store, and that Mr Hillyar told Ms Crosby that he would deal with the situation of Ms Bryce’s conduct but that she should leave it for a week: Transcript at 43-44.
On 12 May 2012 Ms Crosby alleges that Ms Bryce verbally abused her at the Bunbury Living store in the presence of Mr Hillyar. Ms Crosby’s evidence is that Ms Bryce could be heard “swearing and cursing out the back” when Mr Hillyar entered the store, and that she went out to speak to Ms Bryce and ask her whether she wanted to show Mr Hillyar the store Ms Bryce turned around and told her that Mr Hillyar was “nothing but an effing wuss”: Transcript at 44.
Ms Crosby asserts that Ms Bryce refused to show Mr Hillyar around the store: Transcript at 44. As a consequence, she says that Mr Hillyar left and said that he would see her at the store next week.
By contrast to Ms Crosby, Mr Hillyar described the changes to the Bunbury Living store on the evening prior to its opening as a “flip”, and said that there was no toing and froing or reworking of the plans, but rather a flip of the gift zone which Ms Crosby had suggested: Transcript at 432.
On opening day (12 May 2012) Mr Hillyar says that when he visited the store he heard no shouting at the back of the store, and that Ms Bryce came out to him and showed him around the store in “a very professional manner”: Transcript at 432. Mr Hillyar says that he was surprised by this because Ms Crosby had told him that Ms Bryce was not going to show him around the store: Transcript at 432.
Ms Bryce’s account of the events of that day are that Ms Crosby told her that she had to take Mr Hillyar and show him around the store, and that she said she would not do so, and that Mr Hillyar was big enough to look around the store himself, which he eventually did. Ms Bryce says that Mr Hillyar arrived at the store, came in, said hello, had a look around the store, came back and said that it looked great, and to keep doing what they were doing, as the store looked “fantastic” and they were taking “mega money that day”. Ms Bryce described Mr Hillyar’s visit as “in and out really”: Transcript at 554.
The weight of the evidence indicates that Ms Bryce did not shout or scream abuse, or shout or scream generally, at or about the time that Mr Hillyar visited the Bunbury Living store on opening day. Each of the accounts of Ms Crosby, Ms Bryce and Mr Hillyar vary as to what Mr Hillyar actually did, but at least Ms Bryce and Mr Hillyar’s accounts are consistent in that he looked around the store, and in so doing he was not impeded or abused by Ms Bryce. In the circumstances, the account of Ms Bryce and Mr Hillyar, which indicates that there was no screaming, shouting or abuse by Ms Bryce on opening day when Mr Hillyar arrived at the store, is to be preferred to Ms Crosby’s account that there was such shouting, screaming and abuse, and likewise, that Mr Hillyar was able to walk around the store as he himself indicated he did, and as Ms Bryce indicated he did, as opposed to simply leaving the store as Ms Crosby indicated he did.
The Court has concluded that nothing occurred on 12 May 2012, the day of the Bunbury Living store opening, which can be said to be bullying by Ms Bryce of Ms Crosby.
Ms Crosby then asserts that she was bullied in the period from 12 to 19 May 2012 as set out in two emails to Mr Hillyar dated 18 May 2012 and 19 May 2012: see Exhibit 19.
In an email on 18 May 2012 Ms Crosby said to Mr Hillyar as follows:
… Please do not be fooled by Natalie as she will be on her best behaviour for you and Rob. Yesterday was another difficult day as discussed. I would like a resignation or a full resolution when you leave today. Business is business and we both know. What is to happen. Speak to. You after the meeting. Also have asked Natalie to start to reduce the number of staff She has told staff I said she had to sack three people that was not the case. When I did the roster with her before she went to that store she was fine with what I thought she needed. This week she has had seven/eight people every day and six were seniors we can’t afford these wages now we are trading.
(Transcribed from the original without amendments).
Ms Crosby says that when she returned to the Bunbury Living store a week later (having decided not to visit the store to allow things to settle) she began by asking to look at the rosters, and that Ms Bryce lost her temper and accused her of trying to sack employees, which Ms Crosby says was not the case and that she asked Ms Bryce to tone down what she was saying as the shop could hear her. Ms Crosby says that she felt “totally humiliated and sick” and that she phoned Mr Hillyar and was told to leave and that he would deal with it and that all Ms Crosby had to do was pass on the wage figures to Ms Bryce. Having been told that by Mr Hillyar Ms Crosby says that she then re-entered the store the next day to do the wage budgets and was abused being “called an F… C…”. Ms Crosby says that she left the store again and phoned Mr Hillyar to inform him of Ms Bryce’s behaviour, and that she went back every day that week to try and reason with Ms Bryce and let her know that the behaviour had to stop. Ms Crosby’s account of these events is taken from Exhibit 17 which is a document that she prepared some five months later for the purposes of a meeting with Mr Hillyar.
Ms Crosby observes that both Mr Shirley and Mr Hillyar visited the store during this time and that they were “delighted with the results Natalie has put on her best behaviour”: Exhibit 17.
On 19 May 2012 Ms Crosby’s email to Mr Hillyar (Exhibit 42) indicated both that she would not be answering the phone for “anyone this weekend” as she needed “a rest” but that she would also like to make an appointment with Mr Hillyar on the Wednesday morning (23 May 2012) to go through a few things and “I would like not to be disturbed and for you to take the time to listen.”
Conference on 22 May 2012
On 22 May 2012 both Ms Crosby and Ms Bryce, together with Mr Shirley and Mr Hillyar, and other employees of Quebec Nominees attended a work conference. There was a report on the opening of the Bunbury Living store given by Ms Bryce.
Ms Crosby’s account of what occurred when Ms Bryce described the Bunbury Living store opening was as follows:
… We were all sat at the tables, and each one of us had to stand up and – each one of us had to stand up and say about what – what we had achieved in our stores … and Natalie stood up and said that the store had opened in a mess, the Bunbury store had opened in a mess, but in the second hand, she said I had also done a great job. It was a backhanded – it was a backhanded comment that she had passed, and – and she said that the store now was up and running and looking beautiful. I couldn’t function after that. I was absolutely – I was gutted. It was done in front of everybody. The buyers – they turned around and they all glared at me to say, “oh my God,” and I just didn’t know – I couldn’t function at our meeting for the rest of the day. I was just – I couldn’t think of anything else – what she had done to me and that’s a store that’s beautiful and it opened and I was proud.
Transcript at 48.
Ms Bryce gave evidence concerning what she said at the conference concerning the opening of the Bunbury Living store. Ms Bryce said that she said:
The store was a lot of hard work; that we were all tired; that we had worked very hard. I sort of made a little bit of a jest that we thought we were right on target and Jayne went to a meeting in Perth and then came back and completely changed the store over and said that – it was a very brave decision of Jayne but it was a good decision.
Transcript at 561.
Asked whether she said anything else Ms Bryce simply reiterated that “… just basically that it was hard work. It was really hard work.”: Transcript at 561.
When Ms Bryce was cross-examined she said that she could not recall whether she had said at the 22 May 2012 conference that the store opened in a mess: Transcript at 590. Ms Bryce did however say that the store did open in a mess, and that the storeroom “was absolutely atrocious”: Transcript at 590. Asked what she did recall having said at the conference she said that she recalled saying that Ms Crosby “… had come to Perth and made that brave decision to change the store around and that we were tired and we’d made good money the day before – before Mothers’ Day”: Transcript at 590.
Ms Bryce was asked whether she was exhausted by that point, and she agreed that she was, and when asked why she was exhausted she said that she had worked 65 hours that week in circumstances where she did not let Ms Crosby lift anything, and that she had worked for so long that week because she was working alongside her sister who was ten years older than her and that if her sister “can show up to work well, then, I will be right there beside her”: Transcript at 590.
When Ms Crosby was cross-examined she said that Ms Bryce said that the store opened in a “diabolical” mess, but that after a few changes and the flip around of the store at the last minute the store was successfully opened: Transcript at 132. When it was suggested to Ms Crosby that the overall tone of what Ms Bryce said was that Ms Crosby was the person to be thanked for the success of the store, Ms Crosby said that Ms Bryce’s comments were “double edged …. It was one to say it was a mess to start with and then it turned – it was beautiful at the end and she did thank me for my work”: Transcript at 132. When it was suggested to Ms Crosby that nothing that was said by Ms Bryce could have been humiliating, Ms Crosby said that “it was over the mess of the store”: Transcript at 132.
Evidence was also given by Ms Brewis concerning the 22 May 2012 conference. Ms Brewis said that Ms Bryce:
… stood up and said that the store was a catastrophic mess on opening; that it had teething problems; planning and procurement was absolutely bad. Moving forward, that she’s been knocking out all the problems and issues and that moving forward that she would continue to move – get rid of all the problems within the store.
Transcript at 224.
Ms Brewer says that Ms Bryce was looking directly at Ms Crosby when this was being said: Transcript at 224.
Mr Hillyar’s evidence was that at the beginning of such conferences he would ask people to speak about a particular topic, and on this occasion he asked that people speak about what had made them proud and proud of their team in the last six months, and to give an example. In response to that, Mr Hillyar says that Ms Bryce stood up and said:
The thing that that’s made me proud in the last six months is we’ve opened the Bunbury Living store and it’s been a great success and the sales have been terrific and we’ve had very good customer feedback. Apart from a slight hiccup at the end with the flip that we did, everything has been marvellous.
Transcript at 399.
Mr Hillyar went on to say that Ms Bryce thanked Ms Crosby by saying: “I would like [to acknowledge] Jayne for her assistance in opening the store”: Transcript at 399. Mr Hillyar said that he did not observe any adverse response by Ms Crosby to Ms Bryce’s speech: Transcript at 399.
In his evidence-in-chief Mr Shirley said that he was at the front of the room for the 22 May 2012 conference when Ms Bryce made her speech, and that she said the following:
Well, she said that they had just opened this Bunbury store, it was a big job. In fact, it is the biggest store the company has. There had been a heap of stock to handle. There had been a lot of rearrangements during the thing because we actually pulled a layout change. They got through it, they were open and trading, and she ended by thanking not only everybody, but actually, I believe, she used the words “and I thank my ops manager for her support.”
Transcript at 270.
Mr Shirley gave evidence on the 22 May 2012 conference, and under cross-examination said that he was at the conference, and that he was sitting at the front of the conference: Transcript at 296-297.
Mr Shirley was specifically challenged as to whether he heard Ms Bryce say the words “catastrophic mess” in relation to the opening, and he said that:
No. I didn’t hear the words “diabolical mess” “catastrophic mess”. She was up in front of 40 people, and she gave a polite account – to my knowledge and to my memory, she gave a polite account of what had been a big job – a long job – a tiring job – and a heavy job, and ended by thanking – by saying it was open, you know, blah blah blah, and thanking everybody, and specifically ending the comment with, I believe, with, ‘I would like to thank my ops manager for my support’. That’s my recall.
Transcript at 297-298.
Mr Shirley went on to say that he did not believe that the words “mess” “diabolical mess” or “catastrophic mess” were used: Transcript at 270.
Ms Brewis’ account of the 22 May 2012 conference and what was said by Ms Bryce is plainly exaggerated: not even Ms Crosby used the adjective “catastrophic” or the phrase “absolutely bad” to describe the store opening. At worst, it would appear that Ms Bryce might have used the phrase “mess” to describe the store at the time of the opening, but on her evidence, possibly more in relation to back of store operations rather than front of store operations.
Even if it be the case that Ms Bryce described the store as being in a “mess” at the time of the opening, it is no more than her observation, as the store manager, as to how the store looked. The comment was heavily qualified by her thanks to Ms Crosby for setting up the store, and that Ms Crosby assisted with the turnaround (or flip) of the store, and that it was “beautiful” once that was done, and that they had traded successfully thereafter. In the Court’s view, if the comments re the store being in a “mess” were made, Ms Crosby has simply overreacted to them. They were not made with the intention to bully, but simply to indicate how the store had transitioned from one point to another in the process of it being opened.
Whilst the evidence of all concerned is open to various interpretations, it seems that the overall tone was congratulatory or praising and not harassing or humiliating. Ms Crosby has chosen to focus upon one or two words, and to miss the bigger message which was being conveyed in relation to the hard work and processes which were necessary for a store to open and trade successfully.
23 May 2012 meeting
As arranged by email on 19 May 2012 (see Exhibits 19 and 42) Ms Crosby met with Mr Hillyar on 23 May 2012. There is no dispute that Ms Crosby complained about Ms Bryce. Mr Hillyar’s evidence is that Ms Crosby said that Ms Bryce “wasn’t listening to her, she wasn’t following direction”: Transcript at 397. Mr Hillyar’s response to Ms Crosby’s complaints, which were essentially performance related, was to tell her that he would monitor the situation closely for her, and that if it occurred again, to tell him straight away: Transcript at 397.
Meeting on 6 June 2012
Ms Crosby met with Ms Gilbert on 6 June 2012: Transcript at 616 and Exhibit 63.
Ms Gilbert’s evidence concerning the meeting on 6 June 2012 was to the effect that Ms Crosby complained about the fact that Ms Bryce “wasn’t following directions … wasn’t … being a team player with the opening of the store” and that she had “been quite upset in regards to directions being given for the opening of the store and … there were conversations about other team members in the store and the relationship that they had with Natalie”: Transcript at 616.
Ms Crosby was offered counselling by Ms Gilbert at the 6 June 2012 meeting but Ms Crosby was “very certain she didn’t want it”, and as a consequence Ms Gilbert did not push the issue: Transcript at 623.
An examination of Exhibit 63 shows that, by and large, the notes recorded by Ms Gilbert related to operational issues in respect of which Ms Crosby and Ms Bryce disagreed.
12 June 2012 meeting
On 12 June 2012 there was a meeting between Ms Gilbert, Mr Hillyar and Ms Bryce to discuss the issues that had arisen between Ms Bryce and Ms Crosby.
Mr Hillyar gave evidence about this meeting (although he seemed to think that it was after the subsequent meeting on 15 June 2012) and when asked what was discussed with Ms Bryce he said that:
She just wanted to clarify her role as far as what she could and couldn’t do as a manager, because she was getting pressured by Jayne, and felt that she had to, you know, answer everything, you know, that Jayne posed to her. And she wanted to know what she could and couldn’t do as a manager.
Transcript at 400.
When Mr Hillyar was asked whether Ms Bryce was critical of Ms Crosby at that meeting he said that she was: Transcript at 400.
Ms Gilbert gave evidence that a note that she made in relation to the meeting, and which contained the following comment:
No positive feedback to the store
was relating to a comment by Ms Bryce that she was upset that Ms Crosby never came into the store and gave any positive feedback, but she only ever came in and pointed at negative things: Transcript at 617.
It is plain from an examination of Exhibit 64 that the issues which were discussed at the meeting on 6 June 2012 were again operational issues, and not issues in relation to Ms Bryce bullying Ms Crosby.
15 June 2012 meeting
The purpose of the 15 June 2012 meeting was for the ongoing conflict between Ms Crosby and Ms Bryce to be discussed. Ms Crosby and Ms Bryce were both present at the meeting, together with Ms Gilbert and Mr Hillyar: Exhibit 65, Transcript at 138.
There is no dispute on the evidence that:
a)one of the options that was offered to Ms Crosby and Ms Bryce was for there to be a change in the operations and store management structures so that the Bunbury Living store would be taken from Ms Crosby and she would be given another store in its stead: Exhibit 65; Transcript at 138;
b)both Ms Crosby and Ms Bryce rejected the management structure change which had been proposed: Transcript at 138;
c)the conduct of both Ms Crosby and Ms Bryce was discussed, and they were told that if the problem could not otherwise be resolved, one of them would have to leave Quebec Nominees: Exhibit 65; Transcript at 139; and
d)both Ms Crosby and Ms Bryce committed to making things work between them: Exhibit 65; Transcript at 139.
There is a dispute as to whether training which was offered at that meeting was offered to staff members (which is the recollection of Ms Gilbert: which accords with Exhibit 65), or whether it was training for Ms Crosby and Ms Bryce (which is Ms Crosby’s recollection: Transcript at 139).
A follow up meeting to monitor progress was arranged, seemingly on a fortnightly basis: Transcript at 401.
It is more likely that the training which was arranged at the 15 June 2012 meeting was for the staff of the Bunbury store. That is revealed by an email sent by Ms Crosby to Mr Hillyar at 7:40pm on 15 June 2012 (which was cc’d to Ms Gilbert), and which was in the following terms:
Hi Andrew and Cassandra, I would like to thank both of you for the assistance in dealing with the issues at Bunbury Living. I believe we have achieved great results in all areas today. I think Natalie has fully understood the seriousness of her actions. I am moving staff around in both Bunbury and Bunbury Living to make sure Natalie has the right people in her store. I have spoken to her and told her what needs to be done and reasons why. I have put Lyna back to Bunbury as I feel that while she is that store they will never have a happy mix and Natalie and Ieesa can both do what they were employed to do. I will still be monitoring the situation very carefully to ensure if any further problem arise they are dealt with immediately. Thanks again.
Exhibit 43 (transcribed without amendment from the original).
Following the 15 June 2012 meeting Ms Crosby took a week’s leave: Transcript at 139.
Ms Crosby also alleges that Ms Bryce was given a first and final warning at the 15 June 2012 meeting, but the evidence does not bear this out: see Exhibits 64-65, but rather demonstrates that what was to be put in place was a training plan to get Ms Bryce’s staff up to the relevant standard.
In Mr Hillyar’s view the outcome of the meeting of 15 June 2012 “was moving in the right direction”, although in evidence he qualified this by saying “then again I started to receive complaints from Jayne about Natalie”: Transcript at 401.
Effect of Ms Bryce joining the union
Ms Crosby raised an issue as to whether there was a refusal to transfer Ms Bryce arising from the fact that she had joined a union. In relation to that issue Ms Gilbert sent an email from which Ms Crosby alleges it can be inferred that the refusal to transfer Ms Bryce was because she had joined the union. In that regard, the Court is simply not persuaded that there was an issue in this regard, or that there is sufficient evidence that the refusal to transfer Ms Bryce arose from the fact that she had joined a union.
Even if, as Ms Crosby alleges, Ms Gilbert was concerned about the possibility of Ms Bryce taking out an unfair dismissal case if she was terminated, it appears to the Court that the considerations that Ms Gilbert took into account were proper risk management considerations for the business, and were not influenced by considerations relevant to Ms Crosby, or her relationship with Ms Bryce.
Following up meeting – 13 July 2012
On 13 July 2012 there was a follow up meeting involving Ms Crosby, Ms Bryce and Mr Hillyar. Whilst there is a dispute as to what was discussed in that meeting, it is common ground that the conflict between Ms Crosby and Ms Bryce had not been resolved. Certainly on Ms Crosby’s account what she characterised as bullying by Ms Bryce continued: Transcript at 41-42.
On 15 July 2012 Ms Crosby sent an email to Mr Hillyar: Exhibit 21. The text of that email is as follows:
Good morning, I would like for you to think seriously about the proposal I want to put forward and hopefully be able to move forward. I would like you and Rob to consider moving Natalie to the Bunbury store [small] as it is very clear that she will not stop this stupid nonsense of hers. I will quite happily give up the Bunbury store but not the living store. As you know the living stores are my passion and I believe I do a good job in this area. If this is an opposition than can it be done whilst I’m way as she has already told me that I will pay for this. Hopefully we can come to a solution to put forward to Rob – It’s not good for me, you me and the business. Hopefully you will have some idea for us to discuss tomorrow. Have a good day.
The 15 July 2012 email notes that the dispute between Ms Crosby and Ms Bryce is “not good for…the business”. In light of what was to happen, Ms Crosby’s recognition of that fact is important, because, ultimately that is the basis upon which Mr Shirley says Quebec Nominees were concerned about what was occurring between Ms Crosby and Ms Bryce.
On either 15 or 16 July 2012 Ms Crosby told Mr Hillyar that she would resign. It is not without significance that Ms Crosby endeavoured to obfuscate on this issue when cross-examined. At Transcript at 170, lines 21-44 Ms Crosby was cross-examined on an email that she sent to Mr Hillyar on 16 July 2012, as follows:
20. Now, Ms Crosby, we've seen your resignation email on 19 October 2012. That wasn't the first time you had resigned, was it?---In writing, yes.
25. You had - ?---I had always said I was thinking about it but I had never actually resigned.
You had told Andrew that you would resign on previous occasions, hadn't you?---I was thinking about it.
30. Do you agree with me that you told Andrew you would resign?---I'm not overly sure.
Do you agree with me it's possible you told him that?---It's possible.
Go over the page?---Over the page?
35. Yes, to page 171. Do you see that on 16 July you say:
Sorry, Andrew, for saying I would resign this morning.
40 . ---Yes.
Did you say to Andrew that morning, "I would resign" - that you would resign? Please don't go back to the previous page. I'm just asking you a question?---1 possibly could yes. Well, I have because I it in here.
45. Yes, you have. And is that because Andrew had not responded positively to your suggestion about moving Natalie?---No
There was no doubt that Ms Crosby has said that she would resign, the text of the 16 July 2012 email, which is set out hereunder, says so:
Sorry Andrew for saying I would resign no . this morning but I am really trying to look at every possibility to get this to work. I would really like to leave Lisa at small bunbury as a last resort. As I said the combination of the two is not good. Lisa need full training so it would be no different training some else. Plus. She needed time of for an operation so the timing is perfect because we still have to train for Bunbury Living anyway Please look at this option first. Thanks.
Once again the, the email 16 July 2012 is important, because Ms Crosby recognises the difficulties between her and Ms Bryce are affecting the work in the stores, she says that she is looking at “every possibility to get this to work”.
The threat to resign was probably made in a meeting on 16 July 2012 involving Ms Crosby, Mr Shirley and Mr Hillyar, in which Mr Shirley indicated an intention to ask Ms Bryce to resign or terminate her employment because of a condition of her employment, agreed with Ms Bryce when she commenced, that if the relationship between Ms Crosby and Ms Bryce were such that they were unable to work professionally together, one of them should resign or be terminated (probably unlawful, but unnecessary to consider further). Ms Crosby asked Mr Shirley not to do that and agreed to accept whatever Quebec Nominees determined to do about the matter: Transcript at 270-271. Mr Shirley agreed under cross-examination that the dispute between Ms Crosby and Ms Bryce was unresolvable because it had become a family dispute: Transcript 314. That does not mean that Quebec Nominees acted on the basis it was a family dispute, because the evidence clearly indicates that its concern was how the conduct at work of Ms Bryce and Ms Crosby was affecting the business.
At this point Ms Crosby cannot be said to have resigned, or to have resigned or withdrawn her resignation, but rather to have threatened to resign then withdrawn the threat to resign, and to have affirmed her ongoing contract of employment by reason of the withdrawal of the threat to resign.
Ms Crosby was aware that Ms Bryce had joined a union, and that Ms Bryce had apparently spoken to other staff at the Bunbury Living store and had told them that she was in the union and that the union would protect her from dismissal, Ms Crosby accordingly advised Mr Hillyar to “be careful”: Exhibit 23. Mr Hillyar forwarded Ms Crosby’s email to Ms Gilbert, as a consequence of which Ms Gilbert sent an email on 18 July 2012 giving advice concerning the issue.
One of the options available to Quebec Nominees was to dismiss Ms Bryce from her employment, and it would appear that this option was given some consideration at this time. On 18 July 2012 Ms Gilbert sent an email Mr Hillyar indicating that:
a)Ms Bryce had joined a union;
b)that Ms Gilbert had concerns about any disciplinary process in relation to Ms Bryce;
c)that Ms Bryce had reminded Ms Gilbert that it was a “condition” of her employment that if there became a problem with the relationship between Ms Crosby and Ms Bryce that Ms Bryce would be the person who had to leave employment with Quebec Nominees;
d)that there were potential legal risks in taking this position if things escalated, and it might expose Quebec Nominees to a claim of unfair or constructive dismissal by Ms Bryce: Exhibit 32.
Altered store arrangements
Quebec Nominees solution to the problems caused by the interaction between Ms Crosby and Ms Bryce was to put into place altered store responsibility arrangements. This was done on 23 July 2012. Quebec Nominees removed the Bunbury Living store from Ms Crosby’s responsibility and replaced it with the Cannington Living store. This also had the effect of removing Ms Bryce from Ms Crosby’s area of responsibility because they would no longer work directly together (in a supervisor-supervisee sense): Transcript at 271 and 558.
The other action taken by Quebec Nominees at this time was to issue Ms Bryce with a written warning: Exhibit 44. The warning letter, signed by Mr Hillyar, was in the following terms:
As you are aware we have been working together to overcome the conflict between Jayne and yourself.
Our main objective is for an outcome that is fair and reasonable for all parties. We’ve tried to work through the issues with you and Jayne and feel like this is no longer working for either yourself, Jayne or the company.
At our last mediation undertakings were given by yourself that there would be cooperation and respect moving forward. We now are at a point unfortunately that it seems that you and Jayne cannot work together cooperatively for the benefit of the business.
As a last resort we will now allocate a new Operations Manager to the Bunbury Living Store. Effective Monday 23 July 2012 Sandra Adams will lead the store as the Operations Manager.
This is a decision that has not been made lightly but this we feel this is the most positive outcome for all parties
As we have previously discussed there are areas regarding you compliance with company procedures and your demeanour towards your Operations Manager that require some immediate improvement.
Sandy will work closely to guide you using the company’s policies and procedures. Should there not be an improvement in this area we will have no option but to follow the company performance management processes which may result in termination of your employment. I am also reminding you as the Store Manager that what we have discussed remains confidential and that as an employee entrusted with management responsibilities this is a critical importance. Failure to comply with this may result in disciplinary action.
Notwithstanding the revision of the Operations Manager of the store, or other terms and conditions of your employment remain the same.
It is noteworthy that the concern of Quebec Nominees and Mr Hillyar as set out in the third paragraph was the incapacity of Ms Crosby and Ms Bryce to “work together cooperatively for the benefit of the business”.
Ms Crosby’s own evidence as to why the arrangements were put in place with respect to store management “or altered at this stage” is significant. Ms Crosby was asked in examination in chief about the store change arrangements as follows at Transcript at 44:
… Can you explain what happened in terms of what that store got taken off you?… because I couldn’t do anything with Natalie, I couldn’t do anything with her. She wouldn’t comply to anything, absolutely nothing. It didn’t matter what I tried to do, if what –,everything I did, if she asked for something, she asked for more wages or more money if I had said – and I would always – always ring Andrew because I couldn’t improve things.. And I had no control.
It is not without significance that when Ms Crosby emailed Ms Bryce on 29 July 2012 (Exhibit 18) she told Ms Bryce that:
As you are well aware of I choose to give up the Bunbury Store as I has too embarrassed to say you were my Manager let alone my sister.
It is clear from the evidence that the store change arrangements were driven by the inability of Ms Crosby and Ms Bryce to work together. That conclusion is evident from the evidence of the Quebec Nominees management witnesses, Mr Shirley, Mr Hillyar and Ms Gilbert, but also from Ms Crosby herself indicating that she voluntarily gave up the management of the Bunbury store, and was embarrassed to say that Ms Bryce was her manager. That plainly indicates that the issue was about the working relationship, not the family relationship between Ms Crosby and Ms Bryce.
The family context – exhibit 18
Exhibit 18 is an email sent by Ms Crosby to Ms Bryce at 3.25am on Sunday, 29 July 2012, and is in the following terms (transcribed verbatim):
Hi Natalie,
I hope you take the opportunity the read this as I don't think anybody in the family have really told you what they think of your behaviour and attitude over the years.
As a little girl you were not the easiest daughter for mum to raise you continually throw temper tantrums and destroyed whatever was in you path to get your own way unfortunately for whatever reasons mum gave into you even if dad disagreed. This caused a lot of discontent amongst the rest of us but we had to except this even if we did not agree.
As the years rolled on you got married and this type of behaviour still continued we witnessed it so did your own family. You and Karl came and worked in our business which again through bad behaviour the business opportunity fell through. It took my own family years to try and forgive you as YES they witnessed this and so did many other people that were present in the store and office that day. Again I taught my family to forgive and move on and to this day they have not and have always be very protective.
When you were giving a chance to work with Thingz I was really scared as past history in your employment history was not good and if Andrew had done reference check you would not have got the chance that you did, As you were aware that if the situation came about that we could no longer work together than you had to leave the company .As you know that the problems started well before you took on the Bun bury Store with you not wanting to take direction and stick to company policies One of them being your fair share of the Saturday work also not wanting to place furniture and stock were asked and your attitude to this was its your store .There was a lot that happened that I know of and it did concern me because again I was told these were behavioural problems.
Your private life was aired all to hear and your financial situation and money worries were also told to all which something you should not be proud of.
As you are well aware of I chose to give up the Bunbury Store as I was too embarrassed to even say you were my Manager let alone my sister. The gossip is all around Bunbury and Busselton and you are now known but not for a good reason which is really sad. We were brought up in a well- respected family and thank god dad has been kept away from all this hurt and disgraceful behaviour. Mum chose to get involved as for reasons stated above but the rest of the family are totally horrified and are ashamed as much as I am .We are good honest family and I feel this has been betrayed.
If you think my creditably has been destroyed it has not, they have nothing but praise to how I conducted myself in this situation I have had Flowers and calls from stores to make sure I was o.k and to help if needed.
Natalie you need to take a long look at yourself as Dad is on borrowed time and mum will not be around for ever you will be on your own with nobody to help you as you know you have lost me and I will not go back there again it's a big world to have no family Natalie you need to grow up and take responsibility for your own actions
Natalie I know you will show mum but spare her the hurt and humiliation that has ripped the family apart. From your lost sister
Exhibit 18 is important in the context of these proceedings because it demonstrates, as much as anything else in the proceedings, Ms Crosby’s view of her relationship with her sister, Ms Bryce, and how that view might have affected their working relationship, and the performance of the work of each of them, whilst employed by Quebec Nominees.
The email is also important in context, coming as it does six days after the store management arrangements were altered to remove Ms Bryce from the responsibility of Ms Crosby as a manager. There is little doubt that the 29 July 2012 email was provocative, and intended to be so. The email made Ms Bryce angry: Transcript at 558-559, so much so that at about 3.30am she went “stood out the front of her [Ms Crosby’s] house and called her every name under the sun and asked her to come outside”: Transcript at 559. Ms Bryce described how she was “…hurt, upset, devastated that my sister would say the things she said and is that how she really feels”: Transcript at 574.
It would also appear that sometime after the store management arrangements were changed Ms Crosby asserted that Ms Bryce had engaged in an improper sexual relationship with a 17 year old employee of Quebec Nominees who was the brother of Ms Bryce’s daughter’s boyfriend (seemingly the daughter had found her boyfriend after he committed suicide some months earlier): Transcript at 561-562, and who used to then go out with Ms Bryce’s son and daughter, and who would come and stay at Ms Bryce’s house and watch movies with Ms Bryce’s family: Transcript at 562. Ms Crosby alleged to Mr Hillyar that Ms Bryce and the 17 year old boy “are sleeping together in the same bed and it was disgusting”: Transcript at 416. Ms Bryce denied the allegation as being false: Transcript at 562, and Ms Crosby admitted in cross-examination that her allegation was based on a “suspicion”, that she “wasn’t sure” that they were having a sexual relationship, and that she gave Mr Hillyar (and also Mr Shirley when she told them) no context or background as to how the 17 year old was a friend of Ms Bryce’s daughter or that his brother had been Ms Bryce’s daughter’s boyfriend and that she had found him after he had committed suicide: Transcript at 176. Ms Crosby also did not deny telling Mr Shirley that Ms Bryce was sleeping with a 17 year old, that it was disgusting, that Ms Bryce was not to be trusted, that she had favoured younger man or “toy boys” as she called them, and that it made Ms Crosby sick to her stomach: Transcript at 177, all in circumstances where there was no proof any untoward relationship between Ms Bryce and the 17 year old, and not insignificant evidence of a friendly relationship between Ms Bryce’s daughter (the17 year old brother’s former girlfriend) and Ms Bryce’s son. This evidence is part of the evidence which shows why it has been necessary for the Court to treat Ms Crosby’s evidence with some caution.
Once the store management operations had been put in place the evidence discloses that the family issues then raised were issues which were raised by Ms Crosby, at least in relation to the content of Exhibit 18 and the allegation of Ms Bryce sleeping with a 17 year old, and which were done in a most provocative way. This dispute, post the change in the store management arrangements, only became a workplace issue because Ms Crosby made it so by referring to work issues in Exhibit 18 and by making the allegation concerning the 17 year old to Mr Hillyar and Mr Shirley.
In relation to Exhibit 18 it is clear, at least from Ms Crosby’s view point, that there is a deep seated and ongoing family dispute; it commences with reference to Ms Bryce as a little girl, her behaviour in the family business after she married, through to her employment Quebec Nominees, and takes up a significant portion of the 18 July 2012 email. Further the email cannot be characterised as a complaint by Ms Crosby about being bullied by Ms Bryce (or anyone else at Quebec Nominees) but rather a diatribe about a long standing, it seems, family dispute, and so far as it relates to Ms Bryce’s employment with Quebec Nominees, a complaint by Ms Crosby about Ms Bryce’s performance, culminating in her being too embarrassed to even say that Ms Bryce was the manager of one of her stores.
It is an integer of Ms Crosby’s case that Ms Bryce’s conduct and behaviour caused her to feel anxious and stressed up until 26 October 2012. There are a number of elements to this allegation. First, Ms Crosby says that Ms Bryce was engaged in humiliating her by saying to various stores that Ms Crosby was not welcome at Bunbury Living, and that Ms Crosby had asked Mr Hillyar to ask Ms Bryce not to do so, but Mr Hillyar’s evidence was that when he spoke to Ms Bryce, as requested by Ms Crosby, Ms Bryce denied the allegation: Transcript at 411. Ms Bryce was not cross-examined on this issue. Effectively the Court is left with hearsay allegations by Ms Crosby about Ms Bryce’s conduct, Mr Hillyar’s evidence of Ms Bryce’s denial which is also hearsay, and a failure to cross-examine Ms Bryce in relation to the allegations made. In the circumstances, there is insufficient evidence to draw any conclusion about what occurred in this regard.
The above remarks in Stevenson were made in the context of a claim under the DD Act, but when considering if a breach of the equivalent former provision of the WR Act had occurred, the Federal Court in Stevenson at [103] per Gordon J observed that:
…for the reasons identified above (see [87] to [94]), there was no or insufficient evidence to establish that Ms Stevenson had a physical or mental disability.
At the most basic level pleadings which assert a “disability” need to identify the nature of the disability with some precision: Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537; (2008) 247 ALR 273; (2008) 101 ALD 459 (“Gama”) at [91] per French and Jacobson JJ.
Regard must also be had to s.140(2) of the Evidence Act as to the proof required in relation to a critical matter – here, disability – having regard to the consequences arising in the proceedings for Quebec Nominees, namely, the possibility of findings of contraventions of the FW Act and the imposition of civil penalties in relation thereto. In that regard the Court notes the observations in:
a)Gama at [139] per Branson J where it was observed that:
The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises, adopting the language of the High Court in Neat Holdings … that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved — and, I would add, the circumstances in which it is sought to be proved.
b)Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors (1992) 67 AJR 170; (1992) 110 ALR 449 at 449-450 per Mascon CJ, Brennan, Deane and Gaudron JJ, where a majority of the High Court observed that:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
The evidence simply does not establish or prove, either at all, or to the degree of strength necessary, that Ms Crosby has, or had at the relevant time, any alleged disability. No specialist or doctors report were tendered in evidence indicating Ms Crosby had a disability, and her treating medical practitioners were not called to give evidence nor were her medical records put into evidence, and Ms Crosby has thereby failed to provide the required proof of disability from a person relevantly qualified to assess her and state whether or not she had a disability.
Based upon the material before the Court, the Court is not satisfied that Ms Crosby has proven that she has, or had at the time of relevant events prior to the cessation of her employment with Quebec Nominees, a mental or physical disability, because there is no evidence, or no sufficient evidence, and in any event no evidence of a nature of gravity, to make, or warrant making, a finding to that affect: Bahonko at [103] per Jessup J, Stevenson at [103] per Gordon J; Evidence Act s.140(2). Generalised assertions of “stress” are not symptoms or manifestations of a disability, but ordinary human responses to the circumstance arising from work issues and, more particularly in this case, family issues at the time: RailPro Services at [26] per Perry J.
Having failed to establish the existence of an objective fact, that is, a disability, Ms Crosby’s claim under s.351 of the FW Act must fail, as must her claim under s.340 of the FW Act, and the reverse onus in s.361 of the FW Act is not enlivened. Nonetheless, less the Court be wrong and the applicant can be said to have been affected by disability, or in capacity sufficient to have been deemed a disability, the Court finds that the “reasons for” Ms Crosby ceasing employment, if it was a dismissal by Quebec Nominees (which the Court has found it has not), also mean that there would be no contravention of s.340 or s.351 of the FW Act in any event because the reason for any alleged dismissal was not because of the asserted disability, but rather because of the affect upon the business of Quebec Nominees, and this would have been the substantial and operative reason for Ms Crosby’s dismissal (had there been a dismissal).
There was an attempt to adduce a report from Ms Crosby’s treating medical practitioner into evidence, but that attempt was abandoned when the Court ruled that the evidence was not admissible without the relevant medical practitioner being called: Transcript at 13-14.
Ms Crosby did not particularise in an adequate way what the alleged physical or mental disability was. Counsel for Ms Crosby said that the physical disability was exhaustion and the mental disability was the stress, anxiety and depression, for which she received medical treatment and that she told Mr Hillyar and Mr Shirley about this before she went to Port Hedland, while she was in Port Hedland and in person in the meeting with Mr Hillyar and Mr Shirley.
Insofar as there might be evidence of stress, anxiety and depression it is very limited, and Ms Crosby’s evidence was that:
a)by email on 8 October 2012 she asserted to Mr Hillyar her distress of being accused of bullying, and said she finished an hour early as she felt sick and needed to rest;
b)an email on 20 October 2012 in which she asserts, after her resignation, that she had been stressed over the last few months, and was thinking of going to a doctor and going on anti-depressants;
c)that in the meeting on 26 October 2012 she told Mr Shirley and Mr Hillyar about her stress; and
d)in her evidence Ms Crosby referred to the fact that she been prescribed anti-depressants and “medication”: Transcript at 87-88.
Mr Shirley gave direct evidence, from which he did not resile, that evidence being given clearly in cross-examination at Transcript page 279 at lines 27-39 as follows:
Okay. Now, an allegation has been made that you decided not to allow her to withdraw her resignation because she had a mental or physical disability. What's your response to that?---My response to that is that that isn't true.
Another allegation is that you decided not to allow her to withdraw her resignation because she had rights under the Occupational Health and Safety Act. What is your response to that?---My response is that I don't think that's true. I believed that she had resigned.
Okay. So what is the relevance of believing that she resigned have to do with that? Can you just explain your reasoning process a little more?---Well, if somebody says I have resigned, if that's then - whether or not it's accepted but if somebody resigns, isn't that it?
Mr Shirley was also challenged as to whether or not he used the expression “mentally unfit” in reference to Ms Crosby’s capacity for ongoing employment, to which he responded that he did not, and that that was “not my word”: Transcript at 279, lines 12-14.
Ms Shirley also explained the use of the word “fit” as being one of a particular instance and kind, namely, querying whether her ongoing employment at Quebec Nominees was appropriate; namely was “that the place for her at that time, for her benefit or for ours? I really don’t think so. I think there was a world of pain”: Transcript at 279, lines 7-10.
In short, the uncontradicted evidence of Mr Shirley is that even if Ms Crosby was dismissed, it was not for a prohibited reason. For the same reasons it cannot be said that Quebec Nominees refused to withdraw its acceptance of Ms Crosby’s resignation on the basis of any prohibited reason. In any event, for reasons set out above, the resignation had already become effective, and an employee is not entitled to withdraw a resignation in any event: Birrell. Further, a refusal to allow an employee to withdraw a resignation, if that be something that the law recognises, is not a dismissal, and therefore not within the perview of s.340 and s.351(1) of the FW Act. It is therefore not a matter that can be subject of an alleged contravention of those provisions of the FW Act.
Mr Shirley, as the decision maker, has satisfied the Court of that fact on the balance of probabilities. It therefore follows that there was no contravention of s.340 and s.351(1) of the FW Act in any event.
Alleged breach of working hours requirements
Section 62 of the FW Act provides as follows:
Maximum weekly hours of work
(1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full-time employee--38 hours; or
(b) for an employee who is not a full-time employee--the lesser of:
(i) 38 hours; and
(ii) the employee's ordinary hours of work in a week.
Employee may refuse to work unreasonable additional hours
(2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.
Determining whether additional hours are reasonable
(3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:
(a) any risk to employee health and safety from working the additional hours;
(b) the employee's personal circumstances, including family responsibilities;
(c) the needs of the workplace or enterprise in which the employee is employed;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e) any notice given by the employer of any request or requirement to work the additional hours;
(f) any notice given by the employee of his or her intention to refuse to work the additional hours;
(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h) the nature of the employee's role, and the employee's level of responsibility;
(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
(j) any other relevant matter.
Authorised leave or absence treated as hours worked
(4) For the purposes of subsection (1), the hours an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised:
(a) by the employee's employer; or
(b) by or under a term or condition of the employee's employment; or
(c) by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law.
Ms Crosby claims that Quebec Nominees required her to work additional hours in addition to 38 hours per work, and that those additional hours were unreasonable because:
a)she was not given the Fair Work information statement;
b)she was not aware of s.62(1)-(3) of the FW Act;
c)Quebec Nominees mislead her about the application of the modern award;
d)Ms Crosby had not choice, except for not accepting the job, to refuse to work hours in excess of 38 hours per week;
e)Quebec Nominees did not ask Ms Crosby if she wanted to work additional hours, or if they were reasonable;
f)Quebec Nominees did not tell Ms Crosby that she could refuse to work additional hours as long as it was reasonable for her to do so for the reasons expressed in s.62(3) of the FW Act;
g)the evidence demonstrates the nature of Ms Crosby’s job required her to work in excess of 38 hours per week;
h)Quebec Nominees did not know, or care, what hours Ms Crosby worked;
i)Quebec Nominees did not tell what hours she would be required to work each week in excess of 38 hours per week;
j)Quebec Nominees did not know, or alternatively did not care, how long Ms Crosby worked early in the mornings, late in the evenings or on weekends;
k)Quebec Nominees did not know whether or not whether Ms Crosby had breaks, for example when she was in Port Headland in October 2012;
l)Quebec Nominees contacted Ms Crosby by email, phone and text on the weekends and after 6.30pm in the evening amongst other times;
m)Quebec Nominees managers would contact Ms Crosby at all hours from 6.00am to 8.00pm on weekdays and from 8.00am to 9.00am to 5.00pm on Saturday’s and Sunday’s;
n)Ms Crosby was not paid any extra for working more than 38 hours per week;
o)Quebec Nominees did not have any regard to Ms Crosby’s health; and
p)Quebec Nominees knew that Ms Crosby needed a rest.
It is not possible to give a uniform prescription as to what constitutes reasonable hours. As s.62 of the FW Act itself appears to contemplate reasonable hours for an employee may vary from week to week, and reasonable hours in one case will not therefore necessarily be reasonable hours in another case, either for the same or different employees. It is not just a case-by-case assessment which is required: Trundle v M & K Angelopoulos Pty Ltd [2009] FMCA 37 (“Trundle”) at [41] per Simpson FM, but a week-by-week analysis for each employee is required in order to determine whether the hours worked are reasonable.
Ms Bryce gives evidence of working with Mr Crosby in the Bunbury store in the lead up to the opening, and of her being “physically exhausted” and refusing to move some furniture and saying to Mr Crosby and Ms Crosby that Mr Shirley could not “have his cake and eat it to” if he wanted the store open the next day, but also wanted it to be organised in a particular way. Ms Bryce admitted to a “frustrated discussion” with Ms Crosby, and said that they were “two completely different personalities”, but that she did everything that Ms Crosby asked her to do: Transcript at 553. Mr Bryce did not shy away from her use of bad language and conceded that at one point she probably told Ms Crosby to “F off”: Transcript at 554.
Ms Bryce’s evidence puts into context the circumstances in which the events described by Ms Crosby occurred, namely that:
a)she and Ms Crosby “worked a lot of hours, a lot of hours” in the lead up to the store opening and “were tired”;
b)the opening “was probably not the best organised … that was just due to no-one’s fault in particular”;
c)“one night we finished at 10, some nights we would finish at eight. Some nights we would finish at 6”;
d)she worked directly “next to” Ms Crosby “for that whole time”, save that there may have been times when Ms Crosby went in an hour earlier and there was also half a day on a Sunday, but that otherwise “we were pretty much head-to-head with the hours”: Transcript at 552.
Ms Crosby alleges that Quebec Nominees kept no records of the average hours worked by her, or any hours worked by her at all. Ms Crosby alleges that she was required to work and did work in excess of 38 hours per week contrary to s.62 of the FW Act, and that she often worked long hours at night and on weekends throughout the course of her employment with Quebec Nominees. Ms Crosby also alleges that she worked outside of usual working hours including by the making or receiving of telephone calls and text messages, and by the reading, considering and sending of electronic communications. Ms Crosby says that Quebec Nominees did not prevent her from working in excess of 38 hours per week and did not tell her that that she was not required to work in excess of 38 hours per week.
Ms Crosby says that she told Quebec Nominees about the effect of the long hours on her in emails to Mr Hillyar of 19 May 2012 and 13 August 2012.
The 19 May 2012 email is part of Exhibit 42, sent from Ms Crosby to Mr Hillyar at 9:16am on Saturday, 19 May 2012, and in which Ms Crosby writes as follows:
I would like to make an appointment on Wednesday morning to go through a few things I am in Perth with the girls they would like to visit warehouse so perfect time for me to come in.
I would like not to be disturbed and for you to take the time to listen. I will not be answers phone for anyone this weekend I need a rest.
Mr Hillyar responded five minutes later and said “Ok”.
On Monday, 13 August 2012 at 8:57pm Ms Crosby wrote to Mr Hillyar complaining about Ms Bryce. In the course of that email she said as follows:
Do what you have to do. There is one thing I have realised that the hard and long hours I’ve put into the company have not paid off. So I will go back to working 38 hours and only doing what the others do and that includes store opening and closes and trips away.
I have always taken a lot of pride in my work and I think I have gone beyond what is expected but I will not do this anymore. It’s sad that it has come to this I’m going to remember this is not my business it’s just a job.
Exhibit 5.
The Court observes that in neither of the email of 19 May 2012 nor the email of 13 August 2012 did Ms Crosby:
a)actually complain about having worked long hours, as opposed to their having been to no good effect;
b)did not specify the long hours that she had been working; and
c)included the comments about hours worked as part of emails substantively related to other matters.
The Court does however observe that the 19 May 2012 email was sent on a Saturday morning, and the 13 August 2012 email was sent late on a Monday night.
The contract of employment clearly envisages that there will be times at which it would have been necessary for Ms Crosby to work more than an average of 76 hours per fortnight to fulfil her responsibilities, and it is put expressly in the following terms: “It will often be necessary for you to work outside of those hours in order to fulfil your responsibilities”. The Court also notes that the average of 76 hours per fortnight is described in the contract of employment as “a minimum” thus reinforcing the fact that Ms Crosby would be required to work more than 76 hours per fortnight “often”, or at least on a regular basis.
There is evidence that Ms Crosby:
a)worked and took telephone calls early in the morning, often in a car whilst travelling to meetings at Bentley, and late at night, and otherwise dealt with electronic communications outside of retail opening hours;
b)worked long hours in connection with the organisation of the opening of specific shops; and
c)may have worked more than 76 hours per fortnight on a regular basis, including working on Saturdays and Sundays.
Ms Crosby was aware however that there was a minimum average number of hours, as is evidenced by her email on 13 August 2012 where she says that she “will go back to working 38 hours and only doing what others do”.
The Court therefore concludes that there were periods during which it is arguable that Ms Crosby worked more than an average of 76 hours per fortnight (as provided by her contract) or more than 38 hours in a week (s.62(1)(a) of the FW Act).
The difficulty with this case, however, lies in assessing what hours were worked by Ms Crosby as a matter of fact. The Court is not assisted by any records from the employer, because, probably in contravention of s.535 of the FW Act and Sub-Div.1 of Div.3 of Pt 3.6 of the Fair Work Regulations 2009 (Cth) (“FW Regulations”) they failed to keep such records. No action is brought against them in that regard by Ms Crosby. Ms Crosby herself, however, did not keep records of hours worked on particular days or particular weeks, or at all it seems.
That paucity of hard evidence means that it is simply not possible for the Court to conclude that “in a week”, that is on any particular week, Ms Crosby worked more than 38 hours: FW Act, s.62(1)(a); Trundle at [41] per Simpson FM.
It is also relevant to observe that Ms Crosby knew that she could take time off in lieu, but if she did take time off in lieu that time off in lieu being an authorised absence, would still be counted as hours worked: FW Act, s.62(4)(a).
It is also the case that senior employees, including Mr Shirley and Mr Hillyar, gave evidence that they had told Ms Crosby, from time to time, that she did not need to work excessive hours.
The Court notes that there is no evidence of Ms Crosby working to a roster as may have been contemplated under clause 2.2 of the contract of employment. If she did work to a roster, no rosters were produced in the course of the hearing.
For the above reasons, it is simply not possible for the Court to conclude that in any particular week Ms Crosby worked more than 38 hours. Ms Crosby’s evidence was not collated, presented or particularised in such a way as to demonstrate that in weeks in which she was answering early morning telephone calls, or late night emails, or driving to Bentley for meetings, or organising store openings, that she exceeded 38 hours’ work in any particular week. The Court can only infer from the failure to collate, present or particularise the evidence in relation to particular weeks that it was not possible to do so, and it follows that the Court cannot therefore conclude that Ms Crosby worked more than 38 hours in a particular week.
If Ms Crosby did work additional hours the question would arise as to whether or not those hours were “reasonable”: FW Act, s.62(1).
The Court notes that there is no specific evidence that Ms Crosby ever refused to work additional hours that she may have been required to work on the basis that they were “unreasonable”. There is evidence that she refused to answer her telephone on a particular weekend: Exhibit 42, and that she intended to go back to working 38 hours per week: Exhibit 5, but there is no evidence of actual refusal to work additional hours at any time.
In any event, in relation to such additional hours as may have been worked the Court is of the view that those hours, so far as it can determine given the paucity of evidence, were likely to have been reasonable for the purposes of s.62(3) of the FW Act.
In relation to any risk to employee health and safety there is a paucity of evidence. There is some evidence that Ms Crosby became stressed from time to time (but that was not necessarily related to additional hours), and there is the 19 May 2012 email (Exhibit 42) in which she indicates that she is going to have a rest for the weekend. That, however, says nothing about employee health and safety. In the 13 August 2012 email (Exhibit 5) where Ms Crosby does complain about “hard and long hours” there is no indication of a health and safety issue. Rather, the complaint appears to be that she is being humiliated by her sister. Overall, there is simply no evidence sufficient to justify a conclusion that there was any risk to Ms Crosby’s health and safety by reason of any additional hours that she may have worked.
With respect to s.62(3)(b) of the FW Act concerning the employee’s personal circumstances, including family responsibilities, apart from the issue related to her sister, Ms Bryce, there is no suggestion from Ms Crosby that there were any personal circumstances, or family responsibilities, which made additional hours unreasonable. The problem with Ms Bryce, on Ms Crosby’s account, was not restricted to additional hours of work, but was an ongoing problem.
In relation to the needs of the workplace or enterprise in which the employee is employed for the purposes of s.62(3)(c) of the FW Act it is plain that the contract of employment envisages a need on the part of the employer to have a managerial level employee such as Ms Crosby work additional hours beyond a minimum of an average of 76 hours per fortnight to fulfil her responsibilities: clause 2.1, contract of employment, and that the annual gross base salary contemplates Ms Crosby working additional hours and that the annual gross base salary was fixed at an amount to “cover any entitlement” additional penalty and overtime payments under the Retail Award. Whether it does so or not begs a different question, but that question, as to whether Ms Crosby might have been underpaid was not put in issue in these proceedings (and if it had been the lack of evidence on hours worked would have made it impossible to calculate any underpayment). The evidence also made it plain that given Ms Crosby’s responsibilities as an operations manager there would be times, given the hours worked in the retail industry, which include some nights and weekends, that there would be a requirement for Ms Crosby to undertake duties at those times: Transcript at 390. In the Court’s view there is nothing to indicate that any additional hours that Ms Crosby did work were unreasonable given the needs of the workplace or enterprise in which she was employed.
In relation to whether or not Ms Crosby was entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours for the purposes of s.62(3)(d) of the FW Act, the Court has already observed that clause 3.1 of her contract of employment provided for a rate of remuneration intended to cover both overtime and penalties which might otherwise be payable under the terms of the Retail Award.
Section 62(3)(e) of the FW Act requires a consideration of any notice given by the employer of any request or requirement to work additional hours. Clause 2.1 of the contract of employment makes it plain that there will be a necessity to work outside of an average of 76 hours per fortnight to fulfil the responsibilities of the position of operations manager. Thus, Ms Crosby was on notice from the commencement of her employment that additional hours may be required. Furthermore, in the course of employment as operations manager the operations manager completed a document called Monday Messages which set out a schedule in advance of the plan of work for the operations manager for the forthcoming week. It was not Quebec Nominees which determined that schedule, but Ms Crosby herself: Transcript at 389. In relation to the out-of-hours calls, for managers, other employees, and at least on one occasion Quebec Nominees security providers (when a store alarm when off) Ms Crosby had it within her control to not answer those calls and allow them to be dealt with at a more reasonable time. Ms Crosby was specifically asked what happened if she had ignored those calls and she said “nothing”: Transcript at 25. In relation to the security call, which was only on one occasion at 11.00pm, she said that she did not know whether she was expected to go out to the store when security rang to tell her that an alarm had been activated, and that she was “never told not to do it”; and “was never told to do it”: Transcript at 26.
In relation to the notice given by the employer under s.62(3)(e) of the FW Act it is also relevant to note that at the time that Ms Crosby was interviewed for the position of operations manager the issue of travelling from Bunbury to some stores in the metropolitan area, in addition to the Bunbury and Busselton stores, for which she was responsible was discussed, specifically in the context of it meaning another hour in the car at the end and beginning of the days on which she so travelled: Transcript at 267. There is also specific evidence that the employer knew that she was working extra hours from time to time, but that she was told by Mr Shirley that:
a)she did not have to do it (work the additional hours); and
b)it was “not expected”.
Transcript at 269.
There is evidence that Ms Crosby indicated at her interview that she did not have a difficulty with the travel between different areas and having to come to Perth once a week: Transcript at 388-389.
In relation to s.62(3)(f) of the FW Act relating to any notice given by the employee of their intention to refuse to work the additional hours, there is no evidence of a specific request by Quebec Nominees for Ms Crosby to work additional hours which she refused. Plain it is that the 13 August 2012 email (Exhibit 5) evinces an intention not to work long hours in the future, and to return to working 38 hours per week, but that was not in response to a particular request. Furthermore, it is evident that subsequently at the time of the opening of the Port Hedland store in October 2012 Ms Crosby again appears to have taken it upon herself to work additional hours.
In relation to s.62(3)(g) of the FW Act concerning the usual patterns of work in the industry, or the part of an industry, in which the employee works, there was evidence that the contract of employment envisaged working additional hours, and that additional hours would be required, for example when stores were being opened and closed: Transcript at 389-390. Furthermore, the nature of the part of the retail industry in which Quebec Nominees operates means that there is late night trading on some week nights and the stores also operate on the weekends. As operations manager Ms Crosby would be available to work at those times if there was an operational issue which required it: Transcript at 390. There was, however, no expert evidence as to the usual or customary hours in the retail industry, or that segment of the retail industry in which Quebec Nominees operates.
As to s.62(3)(h) of the FW Act which deals with the nature of the employee’s role, and the employee’s level of responsibility, these matters have been discussed above.
For the purpose of s.62(3)(i) of the FW Act it does not appear that an averaging arrangement under s.63 of the FW Act is relevant. The Court notes that an award or agreement free employee may agree to an averaging arrangement under which hours of work over a specified period of not more than 26 weeks may be averaged. There is no evidence of any such arrangement being entered into here on the basis that Ms Crosby was an award or agreement free employee.
In relation to s.62(2) of the FW Act as to the employee’s capacity to refuse to work additional hours, it is evident that Ms Crosby knew that she could do so: Exhibit 5 – email of 13 August 2012. Furthermore, the evidence indicates that both Mr Hillyar and Mr Shirley told Ms Crosby that she did not have to work the hours that she did, and as such, although clause 2.1 of the contract of employment envisages that an employee may be having to work more than an average of 76 hours per fortnight, whatever hours Ms Crosby did work were not necessarily as a result of any requirement by Quebec Nominees: Transcript at 269.
In conclusion, the Court has come to the view that:
a)there is no, or no sufficient, evidence to conclude that it any particular week Ms Crosby worked for more than 38 hours, and even if she did work for more than 38 hours in a particular week, the evidence in this case does not allow the Court to establish with any certainty in what particular week or weeks that it occurred, and the evidence was such that the Court cannot conclude that it occurred in every week during her employment; and
b)to the extent that the Court is able to do so, given the paucity of evidence as to hours actually worked, the Court considers that any additional hours were “reasonable” for the purposes of s.62(1) of the FW Act when regard is had to all of the factors set out in s.62(3) of the FW Act which the Court has considered above.
In reaching the above conclusions the Court has had regard to s.140(2) of the Evidence Act as to the proof required for a critical matter – here, proof or hours worked for the purposes of finding of a contravention of a FW Act and the imposition of civil penalties in relation thereto. In that regard the Court repeats the observations at [212] above from Gama at [139] per Branson J and from Neat Holdings, ALR 449-450 per Mascon CJ, Brennan, Deane and Gaudron JJ.
False and misleading representation about the Retail Award
Section 345 of the FW Act provides as follows:
Misrepresentations
(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
Ms Crosby appears to assert that she was recklessly mislead by her employment contract indicating that the Retail Award applied, and submits that constitutes a breach of s.345 of the FW Act.
Ms Crosby’s employment contract (Exhibit 1) provides in a covering letter that:
This letter sets out the terms and conditions of employment that are being offered to you. Most of your terms and conditions of employment are provided for by the Fair Work Act 2009 (Cth) as amended from time to time and Applicable Modern Award as amended from time to time.
This letter sets out some additional terms and conditions which also from part of your contract.
Annexed to the letter is a document headed ‘table of contexts’ which sets out various headings consonant with what might ordinarily appear in an employment contract. At cl.12.1 the “Definitions” subclause it is provided that ‘“Modern Award” means the [General Retail Industry Award 2010], as amended from time to time’. Save for the reference in the covering letter and in cl.12.1 as set out above the only other reference to the “Modern Award” in the employment contract appear to be:
a)in cl.2.2 - Regularly Working Sundays which provides as follows that cl.27.13 of the Modern Award applies to regular work on Sunday; and
b)in cl.3.1 – Remuneration which provides that the annual salary is an all-in rate intended to provide remuneration for all hours worked.
The Court notes there was no claim in these proceedings for any alleged breach of contract: Transcript at 689, or alleged breach of the Retail Award insofar as it might have applied.
Ms Crosby’s evidence is that she had not read her employment contract, and that she did not know what was included in it: Transcript at 21 and 116, that she did not discuss the Retail Award with Mr Hillyar, and did not know what an award was: Transcript at 22. On that basis no claim for a false or misleading representation under s.345(1) of the FW Act can arise because it is precluded by s.345(2) of the FW Act in that Ms Crosby could not be expected to rely on a representation she knew nothing of.
In relation to the employment contract there was evidence from Ms Gilbert that advice had been taken from the National Retail Association at the time of the implementation of the Retail Award, and the advice provided was that the conditions of employment could be based on the Retail Award as long as Ms Crosby’s salary exceeded the highest applicable rate: Transcript at 682. Whether or not that advice is correct or not is beside the point. What it demonstrates, however, is that Quebec Nominees took advice from a major national employer advisory body before drafting the employment contract and that Quebec Nominees understood that they could include reference to the Retail Award in the employment contract in the manner that they did: Transcript at 682-683. If there was a false representation it was therefore not made knowingly or recklessly, and therefore was not a contravention of s.345(1) of the FW Act on that basis.
No contravention of s.345(1) of the FW Act is therefore made out.
Mutual trust and confidence
The claim with respect to a breach of mutual trust and confidence cannot be sustained in light of the High Court’s decision of the Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169; (2014) 88 ALJR 814; (2014) 244 IR 425; (2014) 312 ALR 356; (2014) 66 AILR 192-240.
Conclusion, order and costs
The Court has concluded that Ms Crosby’s claims have not been made out, and the application, as amended at hearing, must be dismissed. There will be an order accordingly.
On the face of it this is a no costs matter: FW Act, s.570(1). If, however, any party considers that they might be entitled to costs: see FW Act, s.570(2), an application for costs might be made under r.21.02(1) of the Federal Circuit Court Rules 2001 (Cth). The Court observes, however, that awards of costs in FW Act proceedings are the subject of not inconsiderable constraints, with costs being the exception rather than the norm: Construction, Forestry, Mining & Energy Union & Ors v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245 at [28]-[30] per Tamberlin, Gyles and Gilmour JJ; and see also the observations in Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306; (2017) 274 IR 420 at [70]-[74] and [89] per Logan J and [161]-[164] per Bromberg J.
I certify that the preceding two hundred and seventy-three (273) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 3 October 2019
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