Dalglish v MDRN Pty Ltd
[2014] FCCA 1138
•10 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DALGLISH v MDRN PTY LTD | [2014] FCCA 1138 |
| Catchwords: INDUSTRIAL LAW – Contract of employment – express or implied terms whether the right to make a complaint under anti-discrimination legislation is a “workplace right” under the Fair Work Act 2009 – whether the respondent was engaging in adverse action under the Fair Work Act 2009 – whether the respondent harassed or sexually harassed the applicant – the quality of the respondent’s investigation into the allegations – whether the applicant resigned by email communication. |
| Legislation: Anti-Discrimination Act 1991 (Qld), s.119. |
| Australian Film Commission v Mabey (1985) 59 ALR 25 Commonwealth Bank of Australia v Barker (2013) 214 FCR 450 Field v Commissioner for Railways (NSW) (1957) 99 CLR 285 Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120 Regional Express Holdings Limited v McDonald [2013] FCCA 1049 |
| Applicant: | SIMIENNA ESTHER DALGLISH |
| Respondent: | MDRN PTY LTD TRADING AS MCCARTHY DURIE LAWYERS |
| File Number: | BRG 264 of 2012 |
| Judgment of: | Judge Cassidy |
| Hearing dates: | 16 & 17 October 2013 and 30 January 2014 |
| Date of Last Submission: | 30 April 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 10 June 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Milner Lawyers |
| Counsel for the Respondent: | Mr Merrell |
| Solicitors for the Respondent: | McCarthy Durie Lawyers |
ORDERS
That the applicant’s application filed 21 March 2012 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 264 of 2012
| SIMIENNA ESTHER DALGLISH |
Applicant
And
| MDRN PTY LTD TRADING AS MCCARTHY DURIE LAWYERS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by Ms Simienna Esther Dalglish for compensation. She is seeking compensation in the sum of $57,786.05, being loss of income, reinstatement of annual leave, general compensation, pay in lieu of notice and medical expenses. This is the sum set out in her claim. The respondent is seeking that her application be dismissed. The applicant was an employed solicitor, employed with the company MDRN Pty Ltd trading as McCarthy Durie Lawyers.
The applicant alleges she was harassed both sexually and otherwise in the workplace while employed by the respondent. She also argues the process of the respondent’s investigation into the allegations was flawed. The respondent’s case is that the applicant resigned on 13 December 2011. The applicant disputes this.
It is a credit to the parties that they have been able to agree to the matters that are in dispute and they are set out at paragraph 2 of the written submissions provided by the respondent:
“[2] The agreed matters in dispute are:
(a) whether the contract of employment between the Applicant and the Respondent contained the following implied terms:
(i) that the Respondent in its dealings with the Applicant as its employee would deal with the Applicant in good faith;
(ii) that the Respondent would not conduct itself in a way which is likely to destroy or seriously damage the relationship of trust and confidence between the Respondent as employer and the Applicant as employee.
(b) whether the written contract of employment by clause 6.2 incorporated the following as terms of the contract:
(i) the Respondent’s policies in respect of anti-discrimination, sexual harassment and occupational health and safety;
(ii) the laws of Australia in respect to anti-discrimination, sexual harassment and occupational health and safety.
(c) whether having the right to make a compliant under anti-discrimination legislation is a “workplace right” as that term is used in Chapter 3, Part 3 of the Fair Work Act 2009 (the Act);
(d) whether the Applicant had a workplace right as the term is defined in Chapter 3, Part 3 of the Act to make a complaint under the Respondent’s workplace policies and procedures;
(e) whether the Applicant was exercising or proposing to exercise a workplace right when she made written complaints on 11 December 2011 and 13 December 2011;
(f) whether the Respondent was engaging in adverse action in breach of Chapter 3, Part 3 of the Act against the Applicant:
(i) when the Respondent treated the Applicant as resigning when she sent an email to the Respondent on 13 December 2013 at 6.18pm the Respondent was engaging in adverse action in breach of Chapter 3, Part 3 of the Act;
(ii) when on and after 20 January 2012 the Respondent repeated its decision to treat the Applicant as having resigned on 14 December 2012;
(iii) by the way in which it carried out the investigation by Ms Harrison into the Applicant’s complaints;
(iv) when the Respondent made no payment to the Applicant for any employee entitlements upon treating her as having resigned on 14 December 2011;
(g) whether the Applicant was subjected to bullying and harassment by the Respondent’s employee Ms Rosann Strange (Ms Strange).
(h) whether Mr Jon McCarthy (Mr Jon McCarthy) and/or Mr Ian Neil (Mr Neil) engaged in sex discrimination of the Applicant.
(i) whether the conduct of Mr Jon McCarthy and Mr Neil constituted averse action in breach of section 351 of the Act;
(j) whether the following conduct of the Respondent was in breach of the express or implied terms of the contract of employment between the parties:
(i) Ms Strange bullying the Applicant;
(ii) the Respondent not doing anything about Ms Strange;
(iii) treating the Applicant as if she had resigned in December 2011 and January 2012;
(k) whether Ms Harrison conducted a proper investigation of the Applicant’s complaints;
(l) whether the Respondent owes the Applicant any monies related to her employment either under the contract of employment or under the National Employment Standards of the Act; and
(m) whether the Applicant should be awarded any damages or compensation for any breach of the Act or breach of contract of employment found by the Court (the agreed matters in dispute).”
I intend to consider the issues that are in dispute in terms of those agreed matters in this judgment.
The Relevant Findings of Fact
The respondent submits that I need to make findings with respect to whether the applicant was harassed by Ms Strange in relation to:
“(i) the folders issue;
(ii) the air-conditioning control issue;
(iii) the Mt Kenya issue;
(iv) the photocopier issue;
(v) the corrupted document issue;
(vi) the walk in clients issue; and
(vii) the phones issue;”
The applicant further submits an incident on 9 December 2011 involving the applicant and Ms Strange amounted to harassment of the applicant.
The respondent’s response to the bullying claim made by the applicant is another area where it is submitted I need to make findings. Further, I need to consider the process of the investigation that was conducted by Ms Harrison in relation to the applicant’s claims relating to harassment and sexual harassment and whether it was fair or not. Ms Harrison was engaged by the respondent to conduct what it describes as an independent investigation. I also need to determine whether the applicant voluntarily resigned. Another issue of contested fact is whether Mr Jon McCarthy and Mr Ian Neil harassed the applicant, either sexually or otherwise.
The Harassment Claims in Relation to Ms Strange
The applicant alleges that Ms Strange bullied and harassed her. Ms Strange was the head secretary and worked on the same floor as the applicant. Other people present on that floor were Mr Raniga, a lawyer employed by the respondent. Also present were Ms James, a secretary, and Mr Jon McCarthy, a lawyer, who was a director with the company.
The Definition of Workplace Harassment
The MDRN Pty Ltd Workplace Harassment Prevention Policy, 25 September 2009, is the document that contains a definition of workplace harassment and it is defined as:
“[1] A person is subjected to ‘workplace harassment’ if the person is subjected to repeated behaviour, other than behaviour amounting to sexual harassment, by a person, including the person’s employer or a co-worker or a group of co-workers of the person that:
(a) is unwelcome and unsolicited;
(b) the person considers to be offensive, intimidating, humiliating or threatening;
(c) a reasonable person would consider to be offensive, humiliating, intimidating or threatening.
[2] “Workplace harassment” does not include reasonable management action taken in a reasonable way by the person’s employer in connection with the person’s employment.”
[3] In this section – “sexual harassment” see the Anti-Discrimination Act 1991, Section 119.”
The incidents that the applicant alleges were harassment by Ms Strange were:
a)An incident involving folders;
b)An air-conditioning control issue;
c)An allegation in relation to the location of Mt Kenya;
d)The photocopy issue;
e)The corrupted document issue;
f)The walk-in clients issue;
g)The phones issue; and
h)The attendance of Ms Strange in the applicant’s office on 9 December 2011.
The applicant had her own office in the area where the lawyers worked around the perimeter of the floor. In the centre of the floor, the secretaries worked and their areas were partitioned. Ms Strange, the head secretary, worked in that central area.
The Folder Incident
In around May of 2010, about nineteen months prior to the applicant parting company with the respondent, the applicant alleges that Ms Strange, the head secretary, used a condescending tone when she told the applicant that the white folders were to be used for briefs for counsel. Ms Dalglish had set up her precedents in the white folders. There were some grey folders available for the use of solicitors for their precedents.
Ms Dalglish, after the conversation was over, handed a $10 note to Ms Strange by delivering it onto Ms Strange’s desk and said that she would pay for the folders. Ms Strange said that that was not necessary and Ms Strange conceded that she may have apologised to the applicant subsequent to that incident.
I do not consider that this amounts, on its own, to behaviour that was offensive, intimidating or threatening and it was not repeated behaviour. I see it as a misunderstanding that occurred where both parties could have perhaps conducted themselves with a little more decorum.
The Air-conditioning Control Issue
The air-conditioning control was in the applicant’s office. From time to time, Ms Strange asked the applicant if she could turn on or off the air-conditioning. Mainly, Ms Strange wanted the air-conditioning turned on because it was hot in the central part of the floor where Ms Strange and the other secretaries worked. The applicant conceded that Ms Strange would knock on her door and that the applicant would either agree to the air-conditioning being turned on or would not.
Ms Strange denied barging into the applicant’s office to turn the air-conditioning on. It was an issue that was dealt with by the general manager who put thermometers into the applicant’s part of the office and in where Ms Strange had her desk.
I do not consider that it was a matter where I would describe Ms Strange’s conduct as offensive, humiliating, intimidating or threatening. I do not doubt that it was inconvenient for everybody to have to use the air conditioning unit in the applicant’s office to regulate the temperature where the secretaries were working.
Ms Strange conceded that she may have rolled her eyes at the applicant but I do not consider this as other than an inconvenient set up of the office that required people to cooperate at times. It was inconvenient for both parties. The applicant was a lawyer and Ms Strange was the head secretary so there was a potential power imbalance there that may have favoured the applicant also.
The Mt Kenya Incident
In the applicant’s evidence, she said that Ms Strange had made fun of her and mocked her in front of other staff. The applicant’s evidence was that Ms Strange laughed at her when the applicant questioned the location of Mt Kenya. A discussion came up about Mt Kenya because one of the solicitors was going there and the applicant asked Ms Strange where Mt Kenya was.
I note that the applicant did not lead any evidence from anyone else who was present to corroborate her evidence that there was laughter and mocking that was offensive, humiliating, intimidating or threatening. I do not consider this conduct harassing. It only occurred once, the applicant was the “professional” in the exchange and it would be necessary to call the other staff that were present to succeed in this allegation.
The Photocopier Incident
The applicant, in her evidence, swears that she asked Ms Strange for assistance with the photocopier because it had jammed three times. Ms Strange said, it is alleged, in a mocking and chastising tone:
“Don’t you know that in humid weather the paper sticks together and you have to fan it more before you put it in the paper tray. And you have a law degree. Useless”.
Ms Strange did recall the incident. She says that she did not use a tone that was mocking or chastising. Ms Strange does concede that the photocopier did need the paper fanned but denied commenting on the applicant’s law degree or that she was useless.
There is no evidence that corroborates this allegation. Ms Strange conceded that the applicant’s request was polite. I am not satisfied that even if Ms Strange had said “And you have a law degree”, that that, of itself as a one-off incident, would be offensive, intimidating, humiliating or threatening in circumstances where Ms Strange was the secretary. However I do not make a finding that Ms Strange did say that because it is really contested evidence where one party asserts it and the other denies it. I have no independent evidence of it being said.
The Corrupted Document
The applicant says that an issue arose on around 24 November 2011. She was working on an urgent document for a client and her secretary was away. Apparently the applicant emailed the documents directly to Ms Alison James, one of the respondent’s secretaries. Ms Strange did not approve of this conduct. Ms Strange took the view as the head secretary, and indeed said it was office policy, for urgent work to come through her so that all of the work could be fairly and evenly distributed. This approach was so that no secretary should be burdened by a heavy workload.
The document that was emailed through to Ms James was corrupted. Ms James concedes that the applicant did give her a document to format, that it was needed urgently and that she was working on the document when Ms Strange said that there was another urgent document needed for Mr Jon McCarthy. Ms James swore that she advised Ms Strange that she would do it as soon as she had finished the applicant’s document. Ms Strange, it is alleged, went into the applicant’s office. When she came out, Ms James said to the applicant “I’m sorry about that. You know what Rosie’s like”.
Ms Strange’s evidence is that most of her discussions were with Ms James. It does seem that there was a discussion between Ms Strange and the applicant, but I am not able to make a finding that in that discussion Ms Strange was offensive, humiliating, intimidating or threatening. I do not doubt that Ms Strange may wish to impress upon the applicant, and indeed any other solicitor, the importance of not using precedents that might create corrupted documents that would cause their computer system to fail. I see that as a reasonably normal incident of work in a solicitor’s office. I also accept the head secretary would inform solicitors of how the office staff were to handle urgent work.
I do not accept this exchange between the applicant and Ms Strange was harassment.
The Walk-in Clients Issue
The applicant says that, on the same day as there was an issue in relation to the corrupted document, Ms Strange came into her office and “demanded” that she see two people who had walked into the office and wanted their wills done straightaway. She said that Ms Strange spoke to her in a rude and disrespectful tone of voice. Ms Strange’s evidence was that Mr Jon McCarthy had directed her to request that the applicant see the clients. Ms Strange conceded the applicant said that she was busy. Ms Strange asked whether the clients could come back in an hour or two on that afternoon.
Ms Strange, in her evidence, said she asked what time the applicant would like to make the appointment for the clients to see the lawyer. With respect to that incident, it seems important for a law firm to have a person, such as Ms Strange, who can coordinate people who walk in from the street and arrange appointments. This seems to be what she was doing in the present case. I did not understand the clients actually did attend straight away but rather came back on another day at the request of the applicant.
So I am not persuaded that there was any harassment that a reasonable person would consider offensive, humiliating, intimidating or threatening. There was no evidence adduced by the applicant of anyone who saw or heard anything in relation to the matter.
The Phone Issue
The applicant put her telephone on “Do Not Disturb” and she alleges that Ms Strange tried to put a call through to her. The applicant said that she told Ms Strange that she had to go into a meeting and that Ms Strange made a huffing noise, indicated her annoyance and then “clunked” the phone down in the applicant’s ear. Ms Strange conceded that the phone system does have a “Do Not Disturb” setting. Ms Strange does not recall using a huffing tone. She conceded that she does ask lawyers to take calls when they have “Do Not Disturb” on their phones. Ms Strange denied clunking the phone down.
I do not consider that a huffing noise and/or clunking the phone down, if that did occur and it is denied, amounts to offensive, intimidating, humiliating or threatening behaviour in circumstances where it is alleged to have occurred only once. It was not repeated. I am not even able to make a finding that it actually occurred.
Incident of 9 December 2011
The applicant, in her affidavit, swears that she was working in her office when Ms Strange “barged” into the office “demanding” to know if the applicant had a problem with Ms Strange. The applicant’s evidence is that there were no pleasantries or easing in to such a serious conversation. The applicant responded “Yes I do have a problem with you”. The applicant then said “I was going to do this differently. I’d prefer to wait.” Ms Strange quizzed the applicant about what she meant by doing it differently. The applicant then said, “Well I guess we’ll have to talk about it now” (because of an opinion she formed about Ms Strange not being prepared to leave the office). The applicant said “I’ll close the door”. The applicant alleged Ms Strange said “Just tell me. Don’t beat around the bush” and the applicant responded “I find you intimidating”.
There was a further discussion between the applicant and Ms Strange, with Ms Strange asking the applicant where this had come from. Ms Strange left the office and said that she was going to talk to Shane McCarthy about this. Annexure “SED 2” to the applicant’s affidavit filed 18 December 2012 states that the applicant then emailed Mr Shane McCarty words indicating:
“I have just had Rosann in my office and I’m shaking. She cam eto (sic) see me in a very confrontational manner “do you have a problem with me?” etc. I thought I could start to talk to her ans (sic) she just went at me like a bull-dog – I kid you not. I have some notes prepared as we discussed.
Please HELP!”
It seems that both the applicant and Ms Strange were upset by the exchange. The evidence that the applicant puts in her affidavit suggests a tense meeting between two people, but not one where I would describe Ms Strange’s presence or questions as harassing, within the definition referred to in the MDRN Pty Ltd Workplace Harassment Prevention Policy, 25 September 2009. I am therefore not satisfied that that event amounted to harassment of the applicant.
The Applicant’s Evidence in Cross-examination
The applicant conceded in cross-examination, and I found her to be an honest witness with respect to this, that she and Ms Strange would have conversations about the applicant’s personal relationships, the applicant’s marriage and how good it was for the applicant to participate in the office lotto that Ms Strange had a role in organising. The applicant also conceded in cross-examination that, over the time of her employment with the respondent, she had sought Ms Strange’s assistance about decorating her office and about the chairs that should be placed in the office. From time to time they had discussions about cooking. She also conceded in cross-examination that Ms Strange had given the applicant advice about her hairstyle and her wedding plans. I note that Ms Dalglish appropriately conceded all of these things.
Conclusion
Given the applicant’s concessions about the nature of the relationship with Ms Strange over the period of time they worked together at the Capalaba office, I am not satisfied that the incidents identified by Ms Dalglish amount to harassment in the workplace. I am fortified in coming to that decision because, as the head secretary, I note that Ms Strange signed the MDRN Pty Ltd Workplace Harassment Prevention Policy on 6 October 2009 which was prior to the period when the applicant was employed by the firm. I see that Ms Strange and all of the then directors of the company, as well as the general manager and another head secretary, signed the policy. Given that, I was not persuaded on the evidence that these incidents amounted to harassment and/or intimidation:
a)Firstly, because I could not identify, in the events as described in the evidence, scenarios that were harassment;
b)Secondly, the nature of the relationship that the applicant conceded existed between herself and Ms Strange over the term of the employment is inconsistent with a scenario where there was harassment; and
c)Thirdly, the head secretary, Ms Strange, was a signatory on the office harassment prevention policy and, I take it, knew of its contents.
I am not satisfied that I can make a finding that any one of the incidents amounted to harassment or they collectively amounted to harassment.
The Respondent’s Response to the Applicant’s Complaints
The respondent’s response to the applicant’s complaints that led to this claim effectively started on 29 November 2011 when the applicant approached Mr Jon McCarthy. He was one of the directors of the company and a solicitor. He had an office on the same floor as the applicant.
The applicant asked if she could see Mr Jon McCarthy in his office and he invited her in. The applicant said that she was under a considerable amount of stress as a result of Ms Strange’s reaction to some work issues. Then the applicant described the issue relating to the corrupted document and the concern that the applicant had about being interrupted when there was a “Do Not Disturb” sign on her phone. She raised Ms Strange requiring the applicant to see a client when the applicant was busy. The applicant also raised the air-conditioning control issue.
It seems uncontroversial that Mr Jon McCarthy suggested there were two options that the applicant had. She could bring in outside intervention or approach Ms Strange directly. Mr Jon McCarthy recommended that the applicant approach Ms Strange directly to try and resolve the issue.
During the same conversation, after the recommendation by Mr Jon McCarthy that there be a direct approach, Ms Dalglish indicated that Ms Strange was a “bully”. Mr Jon McCarthy then stated that it was a very serious complaint and needed to be dealt with in a formal manner by notifying the general manager, Mr Shane McCarthy. Mr Jon McCarthy then suggested that the applicant consider the position that she would take and whether she wanted to make a bullying complaint. Ms Dalglish was clearly upset at that stage and Mr Jon McCarthy suggested she go home.
The next meeting that Mr Jon McCarthy had with the applicant was on 5 December 2011. She had returned to work after a short time off with conjunctivitis. She was also away because of the issues she raised with Mr Jon McCarthy. The applicant raised a concern that Mr Jon McCarthy was not prepared to listen to her complaints. He indicated that Ms Strange was his secretary and he had to work with her so he did not wish to be involved in the conflict at a direct level. He further stated that it was not his role in the company to deal with staffing issues. The applicant then decided to make a more formal complaint and indicated that she would speak to the general manager, Mr Shane McCarthy.
The formal complaint arose no doubt after the incident already described that involved Ms Strange approaching Ms Dalglish in the applicant’s office.
On 11 December 2011, the applicant made a complaint to the directors of the respondent and to Mr Shane McCarthy, in an email sent at 2.27pm. The email was four pages in length, commencing with:
“To the Directors of McCarthy Durie Lawyers and Shane McCarthy
I wish to lodge a formal complaint about what I believe to be ongoing bullying I have experienced from Rosann Strange, commencing within about 3 months from when I started at McCarthy Durie Lawyers (MDL) until last Friday.”
She then sets out the example of the corrupted document, the example of the air-conditioning control, the Mt Kenya example, the new clients issue, the “Do Not Disturb” issue with the phone and the allegation in relation to the confrontation on Friday 9 December 2011.
The applicant records in the final part of the letter, after listing the complaints about Ms Strange, that:
“I wish to amicably resolve this situation with the firm. However, I do not wish to be relocated as it would be prejudicial to my reputation and my family and I like my office in Capalaba, nor do I wish to work from home full-time as I would miss the interaction with my work colleagues. Neither do I wish to go on Worker’s Compensation and be without income whilst they investigate my workplace and then eventually pay you 85% of your salary. Nor do I wish to be on sick leave or use my annual leave due to not being able to go to work over Rosann. Nor do I wish this to be swept under the carpet, with Rosann told to behave and then I would fear that she may quietly sabotage my work and my reputation.
This is all very distressing to me because of the uncertainty of my future and not knowing how you intend to handle this.”
The applicant then goes on to ask for full paid leave whilst the situation is resolved.
The next email was on Monday 12 December 2011 at 2.44pm, where the applicant was advised that the complaint would be handled and her files managed in the meantime and that a meeting was arranged with Claire Harrison, an independent investigator for 10.30am on Tuesday 13 December 2011. On Monday 12 December 2011, Mr Lye, who was representing the applicant at that time, said that he was unavailable for the interview with Claire Harrison. Mr Lye was emailed on 12 December 2011 requesting that he advise of his availability for meeting times to progress the investigation.
At 6.14pm on 12 December 2011, Mr Lye was emailed and advised that the firm was prepared to wait until the applicant was well enough to attend an interview to detail her complaint. The applicant herself responded via email on 13 December 2011 at 6.29am. She objected to the use of paid annual leave to cover her absence and raised allegations against Mr Jon McCarthy and Mr Ian Neil. These allegations alleged sexual harassment. This is the first time that these allegations had been raised by the applicant with anyone at the company. The applicant’s email stated:
“I would therefore like you and the firm to give some thought as to how we can part ways amicably and by way of a settlement so that we can all move on with our lives as quickly as possible. I will make myself available for a meeting this week to discuss all of this, but would definitely want Phil Lye with me for support.”
Mr Shane McCarthy then emailed Mr Lye advising that he had received the applicant’s email and would add the additional allegations of sexual harassment to the matters to be investigated. The applicant responded directly to an email requesting the applicant to indicate whether she wished to part ways or did she have a desire for the allegations to be investigated and dealt with appropriately. The response was dated 13 December 2011 at 6.19pm:
“Now that I have raised the issues about Rosann, Ian and Jon, do you really think I could go back to McCarthy Durie Lawyers? ... In my opinion, unfortunately the employment relationship has irretrievably broken down between myself and McCarthy Durie Lawyers. … I want to move on with my life and just put all this behind me. I feel that an amicable settlement will enable me to do that and will also allow sensitive matters to remain confidential for all concerned. …. Please understand, I can’t go back to McCarthy Durie Lawyers now. I would be very grateful for this to be resolved very quickly.”
On 14 December 2011 at 1.06pm, Mr Shane McCarthy emailed the applicant and Phil Lye stating:
“We are of course concerned for your health and wellbeing and wish to deal with your complaints as quickly and sensitively as possible. Nevertheless the firm also has responsibilities to those who are subject to your allegations and must afford them procedural fairness.
As a result of your being familiar with IR practice, I am sure that you will understand that when serious allegations are made such as those raised by you, we have to follow a specific process. We cannot make judgments or take precipitous action against anyone without having the complaint fully investigated.
The purpose of the process is to obtain the full extent of the issues. Each email from you raises more issues than first put forward relating to your issue with Rosann.
…
It is now clear that:-
1. you are not prepared to participate in this process.
2. that you do not intend to return to work.
3. you want a “settlement” but you have not indicated what that would consist of.
…
It now appears that we have no alternative but to accept your email as a resignation.
We are prepared to listen to a proposal regarding the terms of your resignation and invite you to make a proposal.”
There was no immediate reply from the applicant and on 23 December 2011 the applicant sent an email to the respondent stating:
“I explained how difficult I found the situation and I said that I would like to amicably resolve the matter with the firm. I didn’t resign. I said that I didn’t want to and couldn’t work with Rosann anymore. … as I couldn’t think of any alternative since it seems MDL will not take action against Rosann.
So I am not resigning.”
The applicant did not return to work and there has been no further contact with her. Her medical certificate ran out on 12 December 2011.
I consider the chain of emails I have just described demonstrates that the respondent at all times was careful in handling the applicant’s complaints through its agents.
The chronology as described by the emails sent between the applicant and the respondent satisfies me that the applicant was diligent in:
a)Firstly, positively responding to the applicant’s complaints; and
b)Secondly, setting up an independent investigation by engaging Ms Harrison.
Ms Harrison’s qualifications were not challenged and she was an appropriate person to engage for such an exercise. I am not bound by her findings but I note that she found that there was no harassment in the conduct of Ms Strange and no sexual harassment by either Mr Ian Neil or Mr Jon McCarthy. I am satisfied that the applicant was given an opportunity to participate in Ms Harrison’s investigation and indeed she sent an email on 13 December 2011 at 6.15pm that said:
“I have given you enough detail in my emails to hold your own investigations.”
I note in the applicant’s evidence in chief at paragraph 20, she swore that she did not want to be interviewed by Ms Harrison but that she did not ever say that she did not want to be involved in an investigation. The applicant conceded in cross-examination that she did not take any steps to contact Ms Harrison about the investigation Ms Harrison was conducting. The applicant knew the complaints Ms Harrison was investigating and she had been invited to participate in that investigation. I note that Ms Harrison conducted the investigation by interviewing the relevant witnesses.
It is submitted by the respondent, on the emails sent by the applicant to the respondent from 13 December 2011, that the applicant’s intention from that time was never to go back to work with the respondent. Rather it was to obtain a monetary settlement from the respondent for her voluntary resignation.
I am not satisfied there is any evidence before me that the respondent failed to conduct a proper investigation of the complaints made by the applicant on 11 December 2011 and 13 December 2011. I accept the submission that the applicant was interested in resolving the matter by settlement terms acceptable to her, rather than in the outcome of the investigation.
The Quality of Ms Harrison’s Investigation
It is submitted by the applicant that Ms Harrison’s investigation is tainted because she failed to obtain signed statements from Mr Jon McCarthy and Mr Ian Neil. The applicant submits the respondent was obliged to conduct the investigation, affording procedural fairness and natural justice to the parties. The submission argued that the investigator had an obligation, once the witnesses other than Ms Dalglish were interviewed, to inform the applicant of their evidence. The applicant was then to be given an opportunity to respond to any evidence that had been collected and that was different to her evidence. It was submitted that the applicant had not refused to participate in the process.
The investigation was sufficient given the email that the applicant sent on 13 December 2011, that said:
“I have given you enough detail in my emails to hold your own internal investigations.”
This email was in response to an invitation to the applicant to be interviewed by Ms Harrison.
The applicant expressed no desire to be involved in the investigation, either directly by being interviewed or through a right to reply to the evidence of the witnesses.
It was also submitted that the investigation was not impartial because Ms Harrison was not able to explain satisfactorily why it was that she kept no record of the interview with Mr Jon McCarthy. Ms Dalglish’s evidence was that, early in the proceedings when she made the original complaint to him about Ms Strange, he said “you are 100% right”. It is argued the quality of the investigation by Ms Harrison is tainted because she failed to obtain a record of interview from Mr Jon McCarthy and failed to obtain a signed record of interview from Mr Ian Neil. Ms Harrison conceded that she did not do those things. I am not able to find, as a consequence of her approach, that it invalidates her investigation because it was not impartial.
It is submitted by the applicant that Ms Harrison was not able to explain satisfactorily why it was that she kept no record of the interview that she did with Mr Jon McCarthy. I note Mr Jon McCarthy was Ms Strange’s direct supervisor and it is alleged that he made comments to Ms Dalglish in the first interview she had with him that suggested he supported her position 100% after she described Ms Strange’s behaviour to him. The transcript of Mr Jon McCarthy’s cross-examination on 17 October 2013 at page 83, in relation to this issue, states:
“[30] And when she described the incidences and her difficulties with Ms Strange, you said 100 per cent right, I’ve had the same issues with Rosanne? (sic) ---In relation to the tone of voice that she used, and that she can be abrupt, yes.”
It was also alleged in the submissions of the applicant that the evidence that Ms Harrison collected substantiated Ms Dalglish’s allegations and that this evidence was ignored by Ms Harrison. The submission relates to the Mt Kenya incident. Ms Dalglish and her secretary, Ms Robyn Donnelly, confirmed the incident. I note that Ms Donnelly said to Ms Harrison that she did witness the discussion between Ms Strange and the applicant in relation to Mt Kenya. Ms Donnelly recalled the words “and you are a lawyer” being said. Ms Donnelly thought it was a demeaning comment by Ms Strange.
I note that Ms Harrison included this in the witness statement. It does not necessitate a finding that the exchange amounted to harassment. I found, in considering the evidence, that it did not constitute harassment and that was something that Ms Harrison concluded as well. I note Ms Donnelly was not called in the applicant’s case.
“The Resignation”
The respondent argues that, when read together, the emails of the applicant sent at 6.29am and 6.19pm on 13 December 2011 brought her employment to an end, of her own volition. It is submitted that the respondent did not dismiss the applicant and therefore the respondent did not take an adverse action against her.
In Regional Express Holdings Limited v McDonald [2013] FCCA 1049, Judge Cameron considered notices that amounted to a termination and said at paragraph 61:
“[61] Notices such as a notice of termination under cl.8.5 of the Agreement do not require acceptance or rejection by the receiving party and belong to the general class of unilateral notices which may be served pursuant to a contractual right: see Fardell v Coates Hire at 88 [93]; Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 at 768; Robinson v Becata at [49]. Such notices are construed according to principles which are analogous to those applied in the consideration of contracts: Robinson v Becata at [53], Mannai at 767, 779-780. That is to say:
[A]n effective notice is one which conveys its message clearly … and distinctly to a reasonable reader in the position of the recipient of the notice. Being “in the position of the recipient” involves, in particular, having the knowledge of the circumstances surrounding the transaction in which the notice is given which the recipient has or ought to have. (Robinson v Becata at [49])
A statement to similar effect was made in Fardell v Coates Hire at 85 [92]. However, evidence of surrounding circumstances will not be admissible unless the language of the notice is ambiguous or susceptible of more than one meaning. It will not be admissible to contradict language which has a plain meaning: cf. Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352. As already noted, Mr McDonald’s 26 April 2009 email was less than completely clear.”
In the present case the applicant clearly resigned on 13 December 2011 and I am satisfied that this is the case because the applicant’s email to Mr Shane McCarthy dated 13 December 2011, sent at 6.29am, said:
“I would therefore like you and the firm to give some thought as to how we can part ways amicably and by way of a settlement so that we can all move on with our lives as quickly as possible.”
There was a further email sent on 13 December 2011 at 6.19pm where the applicant said:
“In my opinion, unfortunately the employment relationship has irretrievably broken down between myself and McCarthy Durie Lawyers. … Please understand I can’t go back to McCarthy Durie Lawyers now. I would be very grateful for this to be resolved very quickly.”
In an email dated 14 December 2011 that the respondent sent to the applicant, the respondent treated the email sent by the applicant as a resignation.
I am satisfied that the respondent was entitled to do that given an effective notice is one which conveys a message clearly and distinctly to a reasonable reader in the position of the recipient of the notice. Being in the position of the recipient involves, in particular, having knowledge of the circumstances surrounding the transaction in which the notice is given, which the recipient has or ought to have. I am satisfied in the present case that these two emails constitute a resignation in circumstances where the words are clear and unequivocal and in the circumstances where the applicant has raised serious concerns about conduct in her employment with the respondent.
The argument raised by the applicant, that the email of 13 December 2011 at 6.19pm was privileged and therefore not able to be considered, is simply not available as a matter of law. That email was attached to Mr Shane McCarthy’s affidavit. As an evidential point, it was not objected to, it was admitted into evidence. I note that evidence is not to be adduced of a communication that is made between persons in a dispute, in connection with an attempt to negotiate a settlement of the dispute, as set out in s.131(1)(a) and (b) of the Evidence Act 1995 (Cth):
“131 Exclusion of evidence of settlement negotiations
(1) Evidence is not to be adduced of:
(a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or
(b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.”
In the present case, the relevant section is s.131(1)(b) of the Evidence Act 1995 (Cth). The document was in evidence. If it is alleged that it was prepared in connection with an attempt to negotiate a settlement, I am satisfied that the privilege has been waived because the person in the dispute consented to the evidence being adduced in the proceedings.
In the present case there were a number of objections to evidence dealt with in this matter prior to the trial dates. The email in question was not raised and it has been in evidence throughout the trial. It is not available now to argue that it should be excluded.
I accept that the email of 12 December 2011, sent by Mr Shane McCarthy at 2.44pm, was to inform the applicant that Ms Harrison had been engaged to investigate the complaints. From that perspective, the respondent was not seeking to dismiss the applicant, but rather wanted to deal with and investigate her complaints.
Field v Commissioner for Railways (NSW) (1957) 99 CLR 285 has no relevance in this matter because it relates to exclusion from evidence of words exchanged by parties in the course of negotiations to settle litigation. There was no exclusion of the evidence in the present case and there was no attempt to exclude the evidence at the appropriate time, which would have been when the other objections were taken by the applicant to the respondent’s evidence.
Sexual Harassment
The relevant law in relation to sexual harassment is as set out in s.119 of the Anti-Discrimination Act 1991 (Qld):
“119 Meaning of sexual harassment
Sexual harassment happens if a person—
(a) subjects another person to an unsolicited act of physical intimacy; or
(b) makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person; or
(c) makes a remark with sexual connotations relating to the other person; or
(d) engages in any other unwelcome conduct of a sexual nature in relation to the other person;
and the person engaging in the conduct described in paragraphs (a), (b), (c) or (d) does so—
(e) with the intention of offending, humiliating or intimidating the other person; or
(f) in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.
Examples of subsection (1)(a)—
physical contact such as patting, pinching or touching in a sexual way
unnecessary familiarity such as deliberately brushing against a person
Example of subsection (1)(b)—
sexual propositions
Examples of subsection (1)(c)—
unwelcome and uncalled for remarks or insinuations about a person's sex or private life
suggestive comments about a person's appearance or body
Examples of subsection (1)(d)—
offensive telephone calls
indecent exposure”
The Allegations against Mr Jon McCarthy
The allegations that are made in respect of Mr Jon McCarthy are:
a)The Kingston Karts incident;
b)The Christmas party incident;
c)The “trade her in” incident; and
d)The “rise” incident.
The Kingston Karts Incident
The applicant alleges that Mr Jon McCarthy acted inappropriately. His wife, Ms Christine McCarthy, was present when Mr Jon McCarthy put his arm around the applicant’s shoulder. He congratulated her. They were at a go-cart venue at a work function. The applicant had just completed a turn on the go-carts. The evidence of Mr Jon McCarthy’s wife is that it was done in a paternal way. There is no evidence that the applicant complained about this conduct at the time or soon after. I do not consider that this amounts to sexual harassment because it seems on the evidence to be simply a passing touching at a work function rather than conduct intended to humiliate the applicant.
The Christmas Party Incident
It is alleged that while dancing with the applicant, Mr Jon McCarthy acted inappropriately by attempting to hold his body close to hers. His wife, Ms Christine McCarthy, was also present at that function. I do not consider this is evidence of sexual harassment. The event was a Christmas party. There would have been a number of people present. There is no evidence called by the applicant from any party goer. This is another example of conduct that was not intended to humiliate the applicant.
The “Trade Her In” Incident
The applicant alleges that Mr Jon McCarthy said to her, in the presence of his wife, that he would have to trade his wife in for a younger model. This, the wife and Mr Jon McCarthy said, was said in a jocular manner. While many people may not find the comment funny, it is not sexual harassment, when addressed to the applicant.
The “Rise” Incident
There is a further allegation that during a business meeting, Mr Jon McCarthy acted inappropriately when he was invited by a party at the meeting (because of the good work the applicant had done) to give her a pay rise. It is alleged he suggested that he would “like to give her a rise of a different kind”. This was denied by Mr Jon McCarthy. Mr Selwyn Guy and Mr Steven Barrett, who were present at the meeting, gave no evidence that corroborated the allegation. Furthermore, there is no evidence that the applicant contemporaneously complained about that conduct.
The Allegations against Mr Ian Neil
The applicant gave evidence that Mr Ian Neil called her “darling”, touched her on the shoulder and arm and indicated that he was all the better for seeing her. There is no corroborative evidence that Mr Ian Neil called the applicant “darling” and there is no evidence that she complained about this conduct during the period of her employment. Furthermore, there was evidence that Mr Ian Neil used the expression “all the better for seeing you” widely. I am satisfied that, of itself, it is not an expression that, of necessity, amounts to sexual harassment.
There is an allegation that the applicant was inappropriately touched by Mr Ian Neil on the arm and shoulder. There is really just no corroborative evidence of this.
Conclusion
I note that, with respect to the allegations against both Mr Jon McCarthy and Mr Ian Neil, they were first made at 6.29am on Tuesday 13 December 2011 in an email to Mr Shane McCarthy. That email goes on to say:
“I would therefore like you and the firm to give some thought as to how we can part ways amicably and by way of a settlement so that we can all move on with our lives as quickly as possible.”
Ms Rebekah Mannion gave evidence denying the applicant’s assertion that the applicant complained to her about Mr Ian Neil’s conduct towards the applicant. I note that the applicant indicated to a fellow solicitor, Ms Heather Beckingsale, at the Redland Chamber of Commerce on 22 November 2011 that she really enjoyed and loved working with Mr Jon McCarthy.
I am not able to find there was sexual harassment by either Mr Ian Neil or Mr Jon McCarthy. The events described do not constitute sexual harassment within the meaning of the Anti-Discrimination Act 1991 (Qld).
Incorporation of Implied Terms of the Contract of Employment
The applicant alleges the contract of employment contained implied terms that the respondent, in its dealings with the applicant as its employee, would deal with the applicant in good faith as set out in the statement of claim (paragraph 94 of the respondent’s submissions filed 28 February 2014):
“[94] The Applicant alleges the contract contained implied terms that:
(a) that the Respondent in its dealings with the Applicant as its employee would deal with the Applicant in good faith; and
(b) that the Respondent would not conduct itself in a way which is likely to destroy or seriously damage the relationship of trust and confidence between the Respondent as employer and the Applicant as employee.”
[Footnotes omitted]
The respondent’s submissions refer to Commonwealth Bank of Australia v Barker (2013) 214 FCR 450, where:
“[98] Based on the decision of Jacobsen and Lander JJ, it would appear that:
(a) the contract of employment contained a term implied by law that the Respondent would not conduct itself in a way which is likely to destroy or seriously damage the relationship of trust and confidence between the Respondent as employer and the Applicant as employee; and
(b) the precise nature of that duty will depend on the facts of this case.”
I note the High Court have granted the Commonwealth Bank of Australia special leave to appeal the decision.
The respondent conceded that the contract of employment does contain a term implied by law of good faith. The respondent submits that the obligation is probably the same as the employer’s board obligation not to conduct itself in a way which is likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee, and the nature of the duty will depend on the facts of the case.
In the present case, the applicant has not pleaded the precise nature of these terms which are to be implied relating to the facts of the case.
Based on the findings of fact that I have made, even if I was satisfied as to the precise nature of the obligations (which are not clear because they have not been pleaded), I am satisfied that the respondent did not conduct itself in a way that is likely to destroy or seriously damage the relationship of trust and confidence between the respondent as employer and the applicant as employee and did deal with the applicant in good faith.
As I indicated in the findings I have made, I am satisfied the respondent appropriately conducted an investigation into the complaints about Ms Strange and the allegations of sexual harassment by Mr Jon McCarthy and Mr Ian Neil. I am satisfied that the investigation was conducted impartially and that there was nothing more that the respondent could have done in the circumstances of this case to investigate the allegations in a timely way. Furthermore, I have not found the allegations against Ms Strange, Mr Jon McCarthy and Mr Ian Neil have been made out.
The Alleged Expressed Terms of the Contract
The applicant alleges that, pursuant to paragraph 6.2 of the written contract of employment, which says:
“6.2 Internal Policy & Procedures
(i) The employee must comply with:
(a) The firm’s policies, procedural manuals and office manuals; and
(b) Any anti-discrimination, sexual harassment and occupational health and safety policies or laws;
(ii) The employer will ensure these policies and procedures are available to the employee.”
The applicant alleges that, by virtue of clause 6.2 of the contract of employment, the respondent’s policies in respect of anti-discrimination, sexual harassment and occupational health and safety are incorporated as terms of the contract, as set out in the pleadings. The respondent’s case is that, because clause 6.2 does not refer to policies and laws specifically, the clause is not contractual in nature because clause 6.2 is uncertain.
The question of whether a written policy is incorporated by reference into a contract of employment involves an objective test. In Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120, Black CJ stated:
“[23] The principles to be applied in determining whether any, and if so what, parts of WWU were terms of the contract of employment are not in doubt. It is well established that if a reasonable person in the position of a promisee would conclude that a promisor intended to be contractually bound by a particular statement, then the promisor will be so bound. This objective theory of contract has been repeatedly affirmed as representing Australian law by the High Court. Thus, in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165, 179, the Court said:
"“It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction."””
At paragraph 108 of its written submissions, the respondent sets out examples from cases of whether a policy or a document is incorporated by reference into a contract of employment. The respondent says:
“[108] From the cases on whether a policy or other document is incorporated by reference into a contract of employment, some of the relevant principles to consider, in determining if a reasonable person in the position of an employee would conclude that an employer intended to be contractually bound by a particular policy are:
(a) all the facts and circumstances surrounding the making of the contract in question, including the content of the documents in question;
(b) the terms of the policy, including if it was beneficial in nature to the employee;
(c) the words used in the contract that referred to the policy, including if the words used indicated an intention that the employer would comply with the policy to the extent it conferred benefits on the employee;
(d) what was known by the employer and the employees of any policy at the time the contract was made?
(e) what documents were provided to the employee at the time the contract was made? And
(f) the fact that a policy may change from time to time does not of itself mean that the policy cannot be a term of a contract of employment.”
[Footnotes omitted]
The respondent then goes on to say:
“[109] If the language employed in a contract is so obscure and so incapable of any definite or precise meaning that the court is unable to attribute to the parties any particular contractual intention, the agreement will not be enforceable.[86]”
[86] Toyota Motor Corp Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106 at 130 per Brooking J and at 200-201 per J D Phillips J.
Further, the respondent submits that it cannot be that the laws of Australia in respect of anti-discrimination, sexual harassment and occupational health and safety were incorporated as terms of the contract. While the terms of a statute may expressly be incorporated, the statute so incorporated must be clearly identified (Australian Film Commission v Mabey (1985) 59 ALR 25 at 33 and 37 per Bowen CJ and Fox J).
In the present case, the laws of Australia in respect of anti-discrimination, sexual harassment and occupational health safety, I am satisfied were not incorporated into the terms of the contract. This is because clause 6.2(i)(b) of the contract was vague in that it says “Any anti-discrimination, sexual harassment and occupational health and safety policies or laws”. There was no evidence given by the applicant that copies of any laws, whether they be extracts from the common law, statue law, commonwealth statue or state law, or statutory instruments were provided to the applicant when she entered the contract.
I am not satisfied the MDRN Pty Ltd Workplace Harassment Prevention Policy, 25 September 2009, formed part of the contract of employment because it was not identified in the contract, nor was there evidence it was given to the applicant at the time she executed her contract of employment with the respondent.
Findings of Fact – Express & Implied Terms
If, contrary to my conclusion, the terms said to be express or implied form part of the contract, I am satisfied that because of the findings I have made, the respondent did not breach such terms because:
a)Ms Strange did not bully or harass the applicant;
b)The respondent immediately organised appropriate investigations in relation to the applicant’s complaints about bullying and being sexually harassed, in that:
i)The respondent provided the applicant with an opportunity to take some time off; and
ii)The respondent arranged for Ms Harrison to independently investigate the matter and invited the applicant to participate in that.
c)It is clear that the applicant resigned by her email on 13 December 2011 at 6.19pm.
The Fair Work Act 2009 (Cth)
Section 340 of the Fair Work Act 2009 (Cth) (“the Act”) provides:
“Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) A person must not take adverse action against another person (the second person ) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4‑1).”
Section 341 of the Act states:
“Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
Meaning of process or proceedings under a workplace law or workplace instrument
(2) Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a) a conference conducted or hearing held by the FWC;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f) appointing, or terminating the appointment of, a bargaining representative;
(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer’s leave;
(i) making a request under Division 4 of Part 2‑2 (which deals with requests for flexible working arrangements);
(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k) any other process or proceedings under a workplace law or workplace instrument.
Prospective employees taken to have workplace rights
(3) A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.
Note: Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.
Exceptions relating to prospective employees
(4) Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings.
(5) Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2‑8 or 6‑3A (which deal with transfer of business).”
Section 12 of the Act defines “workplace law” as:
“(a) this Act; or
(b) the Registered Organisations Act; or
(c) the Independent Contractors Act 2006; or
(d) any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).”
The respondent sets out in its submissions the relevant provisions of the Act at paragraphs 116 – 122. The applicant submits that the respondent did not treat Ms Dalglish, the applicant, as having resigned until after it had completed the investigation of her complaint in January of 2012. I do not accept that submission. The applicant clearly and unmistakably resigned on 13 December 2011 as proven by the applicant’s email to Mr Shane McCarthy dated 13 December 2011 sent at 6.29am that said:
“I would therefore like you and the firm to give some thought as to how we can part ways amicably and by way of a settlement so that we can all move on with our lives as quickly as possible.”
and by the applicant’s email to Mr Shane McCarthy dated 13 December 2011, sent at 6.19pm in which the applicant stated:
“In my opinion, unfortunately the employment relationship has irretrievably broken down between myself and McCarthy Durie Lawyers. … Please understand, I can’t go back to McCarthy Durie Lawyers now. I would be very grateful for this to be resolved very quickly.”
The respondent could not construe these emails in any way other than as a resignation. If there is a breach of the contract, it is the applicant’s breach for failing to give the requisite one months’ notice. Either party can terminate their agreement by one months’ notice in writing to the other and the employer may terminate for specific reasons.
I note that Mr Shane McCarthy replied to the applicant on 14 December 2011 at 1.06pm where he said:
“It is now clear that:-
1. you are not prepared to participate in this process.
2. that you do not intend to return to work.
3. you want a “settlement” but you have not indicated what that would consist of.
…
It now appears that we have no alternative but to accept your email as a resignation.”
He then goes on to say in the email:
“We are prepared to listen to a proposal regarding the terms of your resignation and invite you to make a proposal.”
That was on 14 December 2011. There seemed to be no reply from the applicant and there was a further email sent on Friday 23 December 2011 from Mr Shane McCarthy noting that no reply had been received and requesting a detailed proposal in regard to the terms of the resignation.
The respondent confirmed that it took the resignation as effective from 14 December 2011 because of the correspondence that stated that the applicant would not be returning to work at McCarthy Durie Lawyers. The respondent then goes on to set up some questions about what amounts of pay should be due and owing as well as the return of various company property and keys.
On 23 December 2011 at 3.26pm, the respondent in an email said “I didn’t resign.” She goes on to say:
“I asked the firm to find a way to make an amicable settlement with me which would involve me not working at the firm anymore as I couldn’t think of any alternative since it seems MDL will not take action against Rosann.”
Again that email seems to confirm a resignation, because she cannot see any alternative. I have made findings with respect to the email earlier in the judgment and I consider that the applicant resigned as at 14 December 2011.
Injuries to an Employee in his or her Employment
At paragraph 67 of the applicant’s submissions, she sets out the alleged breaches of the adverse actions of the Act:
“[67] In the Statement of Claim the Applicant alleges that the Respondent breached the adverse action provisions of the Fair Work Act 2009 (Cth) by
[a] dismissing the Applicant from her employment by treating her pursuit of the resolution of her complaint as a resignation;
[b] injuring the Applicant in her employment by informing the Applicant that it treated her email of 13 December 2011 as a resignation;
[c] injuring the Applicant in her employment by not complying with the Contract of Employment in regards to termination of employment of the Applicant;
[d] injuring the Applicant in her employment by failing to conduct a proper investigation of her complaint;
[e] it involved discriminating between the Applicant and other employees of the Respondent by preferring information collected from them without any basis for doing so.”
The applicant, at paragraph 71 of her submissions, sets out how the jurisdiction is enlivened:
“[71] Ms Dalglish has enlivened the jurisdiction of the Court to grant a remedy. At a time when she was exercising her rights under the Workplace Harassment Prevention Policy 25 September 2009” (sic) and had a right to make a complaint about workplace health and safety to a relevant government agency (Workplace Health and Safety Queensland):
[a] her without prejudice e-mail of 13 December 2011 was treated as a resignation;
[b] the Respondent failed to pay her had (sic) normal remuneration while the process under the Workplace Harassment Prevention Policy 25 September 2009” (sic) was taking place;
[c] the Respondent conducted an inadequate investigation in breach of the Workplace Harassment Prevention Policy 25 September 2009” (sic);
[d] the Respondent eventually terminated her employment on 22 January 2012 by insisting that her without prejudice email of 13 December 2011 was a resignation.”
Because of the findings I have made with respect to the bullying and harassment allegations relating to Ms Rosann Strange and the sexual discrimination allegations relating to Mr Jon McCarthy and Mr Ian Neil, I am not satisfied that any adverse action has been taken. Nor am I satisfied that there has been a breach of an express or implied term that amounts to an adverse action in relation to the bullying of the applicant, as alleged, by Ms Strange. The respondent not doing anything about Ms Strange and treating the applicant as if she resigned in December 2011 and January 2012 is not an adverse action because of the finding I have made. With respect to Ms Harrison’s conduct of the investigation, I am not satisfied that an adverse action has been taken in relation to that because I am satisfied it was an impartial appropriate investigation.
The Respondent did not take Adverse Action against the Applicant within the meaning of s.351 of the Act by Engaging in Sexual Discrimination of the Applicant
This claim was conceded by the applicant at paragraph 76 of her written submissions.
Section 90 of the Fair Work Act Claim
The applicant alleges that the respondent has failed to pay Ms Dalglish appropriate sums of money owing to her under her contract. The respondent argues that s.90 of the Act forms part of the National Employment Standards and that section provides:
“90 Payment for annual leave
(1) If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.
(2) If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.”
The applicant argues that there should be a payment of the applicant because the email of 13 December 2011 was not a resignation. For the reasons I have already set out, I accept that this email was a resignation by the applicant. So what was owing to her was owing to her as at that date. The applicant also argues that her absences from work prior to that date, and indeed after that date if I had found for them, should not be taken from her sick leave and/or annual leave. Given the findings that I have made in this case, where I have not been able to identify any harassment or discrimination of any sort, I do not accept the submission that the respondent should pay the applicant for those periods without relying on either sick leave or annual leave.
I am satisfied that it is appropriate in the circumstances to rely on sick leave and annual leave. I note that, pursuant to the contract at clause 5.1, the applicant is entitled to all statutory holidays and four weeks annual leave.
As at 14 December 2011 the respondent accepted that the applicant had resigned and under clause 6.7.1 of the contract, the respondent paid for the applicant’s practising certificate with the Law Society but was entitled to a pro-rata rebate for any expenses paid on behalf of the applicant by the respondent if the applicant did not remain employed for the full year. The amount the applicant owed the respondent in respect of the practising certificate was $1,274.00. The applicant was paid two weeks’ salary in advance on 14 December 2011. That was the period after which the applicant had terminated her employment with the respondent. That was effectively a two week advance payment. As at 14 December 2011, the applicant did have 65.9986 hours accrued in untaken annual leave and was in financial debt to the respondent for 12.2883 hours sick leave taken by the applicant for which she was paid but for which she had no entitlement to be paid.
The submissions take into account the two weeks advance payment, the practising certificate expense and the sick leave debt. As at 14 December 2011, the applicant was indebted to the respondent in the amount of $312.00. This was explained by Mr Shane McCarthy in his email to the applicant dated 23 December 2011.
As a consequence of the findings I have made, I am satisfied that there has been no contravention of s.90(2) of the Act by the respondent.
Damages or Compensation for any Breach of the Act or Breach of Contract of Employment
I have not found any breaches of the contract or of the Act that would enable the applicant to be awarded damages or compensation in respect of this matter. Even if I am wrong with respect to the assessment that the respondent did not contravene any Act or breach a term of the contract, the applicant has not demonstrated any loss because she:
a)Voluntarily resigned from her employment; and/or in the alternative
b)No evidence was led by the applicant of any personal injury suffered by her as a result of any contravention of the Act or as the result of any breach of a term of a contract.
Conclusion
For the reasons I set out herein, the respondent has not contravened the Act. The respondent has not breached the contract and the applicant’s case should be dismissed.
I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Date: 10 June 2014.
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