Department of Immigration v Brahatheesan
[2014] FCCA 440
•12 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEPARTMENT OF IMMIGRATION & ORS v BRAHATHEESAN | [2014] FCCA 440 |
| Catchwords: INDUSTRIAL LAW – Practice and procedure – application – summary dismissal of application as against respondents other than first respondent – where substantive application sought to make each respondent primarily liable in alleged breaches of ss.340 and 341 of the Fair Work Act 2009 (Cth) – where pleadings would require amendment to accessorial liability – whether each of the respondents, other than first respondent, accessorily liable – whether applicant has reasonable prospect of successfully prosecuting respondents other than first respondent for accessorial liability – whether to summarily dismiss proceedings against respondents other than first respondent. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 342, 550 Federal Court Rules 2011 (Cth) |
| Day v Victorian Railway Commissioners (1949) 78 CLR 62 General Steel Industries Inc. v Commissioner of Railways NSW (1964) 112 CLR 125 Spencer v Commonwealth of Australia (2010) 241 CLR 118 Australian Securities and Investments Commission v Cassimatis [2013] FCA 64 Yorke and Anor v Lucas (1985) 158 CLR 661 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 |
IN THE SUBSTANTIVE APPLICATION
| Applicant: | ANNE BRAHATHEESAN |
| First Respondent: Second Respondent: Third Respondent: Fourth Respondent: Fifth Respondent: Sixth Respondent: Seventh Respondent: Eighth Respondent: Ninth Respondent: | DEPARTMENT OF IMMIGRATION & BORDER PROTECTION ASHA PATWARDHAN ELIZABETH PETTIT DEBRA RADJENOVIC STEPHEN WOOD ELISE ASPIN SARA WU SCOTT DENNIS GEOFF MCKINNON |
| File Number: | SYG 2390 of 2013 |
| Judgment of: | Judge Raphael |
| Hearing date: | 24 February 2014 |
| Date of Last Submission: | 24 February 2014 |
| Delivered at: | Sydney |
| Delivered on: | 12 March 2014 |
REPRESENTATION
| For the Applicant: | In Person |
| Counsel for the Respondent: | Mr Y Shariff |
| Solicitors for the Respondent: | Maddocks |
ORDERS
Proceedings against the Third, Fifth, Sixth, Seventh, Eighth and Ninth Respondents be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2390 of 2013
IN THE APPLICATION IN A CASE
| DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
First Applicant
| ASHA PATWARDHAN |
Second Applicant
| ELIZABETH PETTIT |
Third Applicant
| DEBRA RADJENOVIC |
Fourth Applicant
| STEPHEN WOOD |
Fifth Applicant
| ELISE ASPIN |
Sixth Applicant
| SARA WU |
Seventh Applicant
| SCOTT DENNIS |
Eighth Applicant
| GEOFF MCKINNON |
Ninth Applicant
And
| ANNE BRAHATHEESAN |
Respondent
REASONS FOR JUDGMENT
The Fair Work Act 2009 (Cth)[1] makes provision in s.340 prohibiting the taking of adverse action by one person against another:
“(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.”
[1] The “Act”
In s.342 of the Act, adverse action is defined in a table which makes it clear that the perpetrator of the adverse action can only be an employer, an employee or persons contracting for services. Because adverse action is taken in many instances by an employer through the agency of other employees, s.550 of the Act provides:
“Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.”
Any proceeding for a penalty for breach of s.340 should therefore be made against the employer as principal and, as against persons involved, under this accessorial liability provision.
When Ms Anne Brahatheesan commenced proceedings in this court on 4 October 2013 seeking relief for what she claimed to be the imposition of adverse action upon her, her application and documents in support could only be read as an attempt to make all nine parties primarily responsible under ss.340 and 341. This pleading is deficient, and to the extent that any of the second to ninth respondents shall remain in the proceeding, her application and pleadings must be amended so as to claim against them only accessorial liability under s.550. This determination will not come as a surprise to Ms Brahatheesan, as during the hearing of the respondent’s application for summary judgment under s.17A(2) of the Federal Circuit Court of Australia Act1999 (Cth)[2] and Rule 13.10 of the Federal Circuit Court Rules2001 (Cth) her emphasis in oral argument was upon the accessorial liability.
[2] FCC Act.
Ms Brahatheesan is an employee of the Department of Immigration and Border Protection working in the Office of the Migration Agents Registration Authority (OMARA), holding an APS 6 position as a senior professional standards officer. She commenced her employment with OMARA in May 2011. Given the nature of the application, the law in respect of which will be examined later in these reasons, the court will proceed on the basis of the correctness of the factual matters contained in sections 8 and 10 of the applicant’s Form 4 claim, filed on 4 October 2013. This is not to say that the court accepts any of the contentions of law made in those extracts. The court would also note that at hearing the respondents will put on their own evidence as to the employment relationship which, judging by the response to an application made by Ms Brahatheesan to the Fair Work Commission annexed to a document entitled “Reply” and filed on 14 November 2013, differs considerably from that alleged by the applicant:
“10.2Following are my workplace rights within s 340 and s 341 of the Fair Work Act. Adverse actions were taken because of any one or all of the prohibited reasons:
a. Lodged formal work health and safety (WHS) Incident Report in August 2012 in relation to workplace injuries resulting from unsafe and improper work practices/conduct by Ms Radjenovic (director) and Mr Neil Arora (supervisor).
b. Reported and raised grievances and disputes with Ms Radjenovic, Mr Arora, Ms Patwardhahn, Mr Wood (CEO of OMARA), Ms Aspin (HR) and Ms Wu (HR) in relation to unsafe and improper work practices and conduct since October 2012.
c. Applied for my entitlement to carer leave in January 2013 and February 2013 under the workplace instrument and National Employment Standard s 96 of the Fair Work Act to Ms Patwardham and Ms Radjenovic.
d. Lodged a complaint with the Fair Work Ombudsman for denial of my entitlement to carer leave by Ms Radjenovic under the National Employment on 13 March 2013.
e. Lodged an application with the Fair Work Commissioner in relation to the denial of my entitlement to carer leave and threat to leave without pay by Ms Radjenovic under the workplace instrument on 25 March 2013.
f. Raised grievances about intimidating and disrespectful behaviour by Ms Radjenovic (director) 26 September 2012, Ms Patwardhan (supervisor) on 7 March 2013 and Ms Pettit (supervisor) 6 June 2013.
g. Lodged workers compensation claims in relation to injuries sustained at work end of March 2013.
h. Reported bullying by Ms Pettit to Ms Pettit and to my rehabilitation case manager, Elise Aspin and WHS contractor (Pronto Health) on 8 July 2013 and 17 July 2013.
i. Utilised sick leave for workplace injuries.
j. Accessed rehabilitation program under return to work plan from March 2013 to May 2013.
k. Advised of dispute application to be made to the Fair Work Commissioner in July 2013 and August 2013.
11. Contravention of s 342 of the Fair Work Act
11.1Adverse action involved a threat to terminate my employment and/or an alteration of my position as an employee to my prejudice.
a. Liable for a formal investigation on a contrived complaint made on 11 March 2013 for breach of the APS Code of Conduct. Complaint made by my supervisor at the time Ms Asha Patwardhan that I “spoke to her in an intimidating and aggressive manner” at a team meeting held on 6 march 2013. Notified of the formal investigation on 19 August 2013.
b. Commenced formal investigation of a malicious, vexatious, frivolous and contrived complaint.
c. Liable to a sanction in relation to the formal investigation including termination of employment, demotion, reduction in salary, reassignment of duties and a fine.
d. Denied procedural fairness by providing incomplete and misleading information in relation to the formal investigation. Failed to provide full complaint and adverse information received concerning me to respond to adverse information.
e. Threatened to inform future employers of the breaches of the APS Code of Conduct and allegations.
f. Biased in favour of the complainant Ms Patwardhan.
g. Interfered with my workplace rights by making a formal unlawful direction to not take adverse action against Ms Patwardhan the complainant in relation to the formal investigation.
11.2Adverse action involved injuries as an employee in my employment and/or threat of injuries in my employment.
a. Failed to provide me a safe workplace by engaging in conduct that is improper and wrong in breach of the workplace instrument and workplace law.
b. Failed to take bullying notified to my rehabilitation case manager and WHS Contractor (Pronto Health) serious.
c. Bullied, vilified and victimised me since September 2012 for exercising my workplace rights under the workplace instrument and workplace law.
11.3Adverse action involved alteration of my position as an employee to my prejudice.
a. Acted in breach of the workplace instrument which adversely altered my position as an APS 6 officer.
b. In October 2012 found that my behaviour was inconsistent with the APS Code of Conduct for exercising my workplace rights under the workplace instrument and workplace law.
c. Used the APS Code of Conduct by way of threat whenever I exercised my workplace rights under the workplace instrument or workplace law.
d. Bullied, vilified and victimised me since September 2012 for raising concerns and grievances about unsafe and improper work practices and conduct which impacted on my health and wellbeing and deprived me of a rewarding workplace.
11.4Adverse action involved alteration of my position as an employee to my prejudice.
a. Denied my entitlement to carer leave for the care of my husband under the workplace instrument, a National Employment Standard by contravening s 96 of the Fair Work Act.
b. Threatened with leave without pay in relation to my entitlement to carer leave under the workplace instrument, a National Employment Standard by contravening s 96 of the Fair Work Act.
c. Affected my health and wellbeing adversely as a result of the denial and threats and carer leave entitlement.
11.5Adverse action involved alteration of my position as an employee to my prejudice.
a. Failed to enter into a proper performance management framework in breach of the workplace instrument and associated policies.
b. Refused to have supervisor’s expectations recognised and documented in my PDA.
c. Forced me to enter into a PDA that I did not agree with.
d. Upon entering into a PDA by force on 9 May 2013 without my supervisor’s expectations documented, on 28 June 2013 my supervisor made unjustified, unwarranted, unfair and misleading appraisal on my performance.
11.6Adverse action involved alteration of my position as an employee to my prejudice.
a. Directed me to attend a Fitness for Duty assessment for the purpose of the SRA act in relation to compensable injuries which is in breach of the SRA Act.
b. Provided a false and misleading report to the department’s medical practitioner for the purpose of the SRA Act in relation to fitness for duty assessment which is in breach of the SRA Act.
c. Denied me procedural fairness by failing to provide me with the report provided to the department’s medical practitioner to respond to adverse and false information prior to sending the report.
d. Provided a false and misleading file note to Comcare the insurer in relation to the assessment of my claims.”
In section 12 of the same document, the applicant sets out the actions taken by each of the eight individual respondents. It is these actions which they argue cannot constitute accessorial liability for a breach of ss.340, 341 or 342. Thus, summary judgment should be given dismissing the claims made against them.
Applications for summary judgment in Australia are more usually made by defendants or respondents seeking to strike out a claim as opposed to the situation in England and Wales where the procedure is used most frequently to obtain speedy judgment for debts which are indefensible under what used to be known as the Order 14 procedure. In Australia, two decisions of the High Court – Day v Victorian Railway Commissioners (1949) 78 CLR 62 and General Steel Industries Inc. v Commissioner of Railways NSW (1964) 112 CLR 125 – placed a heavy burden upon an applicant. These authorities required that a court find the proceeding would necessarily fail before the summary judgment was granted. However, in 2005 the Federal Court of Australia Act 1976 (Cth) was amended to provide a new s.31A:
“Summary judgment
(1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Court has apart from this section.
(5) This section does not apply to criminal proceedings.”
These provisions are translated into the Rules, Rule 26.1 of the Federal Court Rules 2011 (Cth). This Court, following the Federal Court, inserted s.17A of the FCC Act and provided in Rule 13.10 rules similar to those found in the Federal Court.
In 2010 the High Court explained the effect of s.31A in Spencer v Commonwealth of Australia (2010) 241 CLR 118[3] per Hayne, Crennan, Kiefel and Bell JJ at [53]-[56]. Recently, Reeves J in the Federal Court considered not only Spencer but other authorities, in Australian Securities and Investments Commission v Cassimatis [2013] FCA 641, and under the heading “WHAT SECTION 31A REQUIRES IN THIS APPLICATION” stated at [46]-[50]:
“It is apparent from these authorities that s 31A has lowered the bar, or softened the test, for summary judgment, or summary dismissal, as compared to that set by earlier summary judgment or summary dismissal regimes. At the same time, it sets a different inquiry from that required under those regimes. The critical question under s 31A in a summary dismissal application such as the present one is whether ASIC, the applicant, has “reasonable” prospects of successfully prosecuting these proceedings. As the moving party in this summary dismissal application, the Cassimatises bear the onus of persuading the Court of this criterion. These authorities reveal that the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.
Accepting there can be no “hard and fast” rule about this, as a general principle, these authorities show that the moving party on an application for summary dismissal of the present kind is likely to succeed on its persuasive onus if it is able to demonstrate to the Court that the applicant’s success in the proceedings relies upon a question of fact that can be truly described as fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials. Conversely, as a general principle, it is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined between the parties. This is more likely to be the case where the available materials include pleadings that raise factual disputes that can be truly described as significant, substantial, plausible or weighty. A real question of fact is also more likely to exist where the question/s of fact concerned is/are complex, eg involving numerous different events or transactions over a long period of time.
Similarly, as a general principle, the moving party on an application for summary dismissal is likely to succeed on its persuasive onus if it is able to demonstrate to the Court that the applicant’s success in the proceedings relies upon a question of law that is straightforward and confined, or is trite in the sense that it is well settled on authority, such that the question can be resolved summarily without the necessity for a full trial. On the other hand, the moving party would be unlikely to succeed if the Court is satisfied that the applicant’s success in the proceedings relies upon a question of law that is serious or important, or is difficult and therefore likely to require lengthy argument for its resolution, or involves conflicting authority, or is apparently arguable, yet novel.
Then there are proceedings involving questions of fact and law, or mixed questions of fact and law. Because this combination or mixing of factual and legal questions usually gives rise to the sort of complexity that traditionally requires a trial, where the Court is satisfied that this combination or mixing exists in the proceedings, it should, as a general principle, be particularly cautious about ordering summary determination. In other words, the moving party on an application for summary dismissal would, as a general principle, need to show a substantial absence of merit on either of the question of fact or law concerned, or where the two questions are mixed, on the mixed question, before having any chance of success in persuading the Court that questions of these kinds should be resolved summarily.
Finally, these authorities show that there are at least two other factors that need to be borne in mind on a summary judgment application such as this. The first is that, in all the situations outlined above, the Court has a discretion as to whether to determine the proceedings summarily, or to refer them to trial. Of course, as with any such discretion, it has to be exercised judicially: see Latoudis v Casey (1990) 170 CLR 534 at 569 per McHugh J, quoting Donald Campbell and Co Ltd v Pollak [1927] AC 732 at 811–12 per Viscount Cave LC. Secondly, while s 31A sets a lower bar, or a softened test, for the summary determination of proceedings, any such summary determination still has to be approached with caution. This is so because a trial is the usual and accepted means by which disputed questions of fact are determined in this country.”
These are the principles which shall guide the court in its consideration of the instant application.
[3] Spencer.
The respondent to the main application approached the matter by looking at the involvement of each of the individual named respondents, and the court will follow that approach. Bearing in mind the views expressed by the High Court by Mason ACJ, Wilson, Deane and Dawson JJ in Yorke and Anor v Lucas (1985) 158 CLR 661 at [670] that:
“There can be no question that a person cannot be knowingly concerned in a contravention unless he has knowledge of the essential facts constituting the contravention.”
Though it need not be proved that the person knew that the matters in question constituted a contravention.
Ninth Respondent – Geoff McKinnon
Mr MacKinnon is the director of the Workplace Relations and Conduct section. It is alleged that he authorised a formal investigation against the applicant and denied her procedural fairness by providing her with incomplete and misleading information. He made the formal decision to authorise an investigation against the applicant following a complaint that was made against her by the second respondent about the applicant’s conduct at a meeting on 6 March 2013. Mr MacKinnon did not himself investigate the alleged breach or make the conduct breach decision. He merely put in train the necessary investigations and procedures. There is no evidence of what incomplete or misleading information he is alleged to have provided and no evidence that Mr MacKinnon had knowledge of the essential ingredients of the alleged contraventions. It appears to the court that Mr MacKinnon was doing nothing more than his formal duty following the initiation of a complaint by the second respondent and that he should not be involved in these proceedings. The court believes that the test required under s.17A(2) of the FCC Act is satisfied and that the claim against him should be dismissed.
Eighth Respondent – Scott Dennis
Mr Dennis is the assistant director (investigations) of the workplace relations and conduct section of the Department. He carried out the initial investigation of the complaint made by the second respondent. There is produced in the exhibit to the affidavit of Darren David Gardiner, affirmed 28 January 2014, a series of emails between him and the applicant, the investigation notice which he signed and the applicant’s responses. It is alleged that he denied the applicant procedural fairness by providing her with incomplete and misleading information in relation to the complaint, made an unlawful formal direction to her that she not take adverse action against the second respondent in relation to her formal complaint, threatened the applicant with further breaches of the APS Code of Conduct and was biased in favour of the second respondent. It would appear that these claims arise out of an email that Mr Dennis wrote to the applicant on 23 August 2013 in response to one from her. This email reads:
“Anne, in response to your questions below you are not, to my knowledge, subject of other investigations by WRCS. As I previously explained, I provided an excerpt from a document to you because the excerpt contains a complaint against you which I am investigating. I have provided this to you so you may make a response to the complaint. With respect to the complaint being made and assessed in March, the investigation has been prioritised in the context of other investigative priorities. The complaint was made by Ms Asha Patwardhan.
I am formally directing you to not take adverse action against Ms Asha Patwardhan and to not contact Ms Asha Patwardhan in relation to this matter. Please respond without delay that you understand my direction. Failure to comply with my direction may constitute a breach of the Code of Conduct.
Regards
Scott Dennis”
In a later email the same day, the applicant wrote to Mr Dennis:
“Scott you are interfering with my legal and workplace rights and I do not want you to threaten me further breaches of the APS Code of Conduct.
Under the circumstances, I have concerns about a fair process as you appear to be biased.
Regards
Anne Brahatheesan”
There is no further evidence that the court has been directed to and it was satisfied of the required tests in relation to Mr Dennis. Allegations of bias must be clearly made and strictly proved, they cannot be made out by an allegation alone: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507. The email chain shows that Mr Dennis acted in a conspicuously proper manner responding to all the requests made by the applicant promptly and fully. There does not appear to be any legal basis upon which to conclude that Mr Dennis had knowledge of the essential ingredients of the alleged contraventions. The court is satisfied that the proceedings against him should be dismissed.
Seventh Respondent – Sara Wu
Ms Wu is a human resources service manager. It is alleged that she supported the improper and unsafe work practices and conduct of Ms Radjenovic, the fourth respondent who was the applicant’s supervisor. It is said that she facilitated the refusal of the applicant’s carer’s leave entitlements and facilitated the decision to place the applicant on leave without pay. One of the applicant’s complaints is that her managers allocated work to her through other officers without direct communication discussion with her. The email chain which illustrates this commences on 6 November 2012 when she wrote to Ms Aspin with a copy to Ms Wu, the relevant part of which was:
“Hi Elise
I am going through a difficult period at work lately. My concerns relate to Debra’s and Neil’s work practices and their conduct as my manager and supervisor. We (Debra, Neil and myself) held discussions on 2 November 2012 with Sara Wu (HR) about various issues. Sara advised me to refer some of my concerns to you as they fall within your area of responsibility, and given your involvement in my WHS assessment conducted recently.
In summary, I received an email from another officer allocating work to me that involved carrying heavy boxes and repetitive computer tasks. I was not aware of these duties as my manager and supervisor did not discuss or consult with me in relation to these duties and what was required. Given the task involved carrying heavy boxes I requested a wheeler from the officer who allocated the duties, but a wheeler was not provided. I used my chair to move the boxes from the cupboard to my desk several times. I experienced discomfort in my neck, shoulder and back after carrying heavy boxes.”
Ms Aspin replied in an email in which she stated:
“I note from your email that you have concerns relating to your managers allocating work through other officers without any communication/consultation/discussion. I understand that you have recently met with your managers and Sara regarding this, if you have further concerns I recommend you speak directly with Sara.
I acknowledge from your email you feel the terminology ‘functional/physical capacity’ is not acceptable, reasonable or appropriate. In my experience as a rehabilitation case manager, this is standard terminology that is used when referring to an employee’s fitness to perform their duties. In my opinion, it was not unreasonable for Neil to use this terminology.
I understand Neil advised that he did not consult with you regarding moving the boxes as he was of the view that you had been cleared for pre-injury duties. From my records, the only medical advice which has been provided regarding your condition is that you had neck, shoulder and girdle discomfort. As you had provided no medical advice regarding a lifting restriction, it was not unreasonable for Neil to consider that you had the physical capacity to perform that task. Had Neil been advised by you prior to the event that you had a condition which could be aggravated by weight-bearing activities, I consider it would have been appropriate to consult with you first regarding your physical capacity to undertake the task.
As you advise in your email, Debra and Neil have a responsibility to provide a safe workplace, however it is a joint responsibility. In the future, I encourage you to communicate with Neil regarding your physical capacity to undertake duties so it can be taken into consideration when he allocates work.
If you have any questions, please let me know.
Kind regards
Elise Aspin”
The applicant was not satisfied with this response and wrote again to Ms Aspin:
“Hi Elise
You have not addressed one of my key concerns being, whether it was/is reasonable and appropriate work practice and conduct from a work health and safety perspective for Debra as my director and Neil as my supervisor to have allocated duties to me through other officers without any communication, consultation or discussion with me about the duties that I am to perform. As a rehabilitation case manager for work health and safety could you please provide me with your advice on the practices and conduct. If Debra’s and Neil’s work practices and conduct do not fall within work health safety please advise accordingly.”
Ms Aspin herself responded on 9 November 2012 pp123 and 124:
“Hi Anne
Thank you for your email.
I note your advice you have concerns from a health and safety perspective. If you have a medical condition that Neil should be taking into account when allocating your work, please provide supporting medical documentation detailing any specific restrictions relating to your work practices. Please also provide a copy of any medical documentation to me in my capacity as a Rehabilitation Case Manager so I can ensure any recommendations are implemented in line with medical advice.
In the absence of the above-mentioned medical information I do not consider it unreasonable for Neil to allocate work through another office from a health and safety perspective. If you have concerns regarding the way in which the work was allocated to you, please continue to address these with Sara.
In providing this advice, I have not referred to any specific policies. If you would like further information regarding health and safety, IMMinet has a range of different topics which can be accessed via the following link. services/health safety wellbeing.
Please don’t hesitate to give me a call should you require clarification regarding any of the above. Alternatively you can contact the A/g Assistant Director of HR, Fleur Bowler.
Kind regards
Elise Aspin”
The court is unable to see how this communication establishes that Ms Wu supported anything, let alone “improper and unsafe work practices”, nor does it accept that support of such practices, even if they are unlawful, constitutes accessorial liability for them when they had already taken place. Ms Wu was not brought in to the conversation asserting the alleged improper directions until after those directions had been given.
The next complaint against Ms Wu is that she facilitated the refusal of carer’s leave entitlements by giving advice to Ms Radjenovic It appears that the applicant applied for carer’s leave to which she claimed she was absolutely entitled. Ms Radjenovic initially declined to grant the carer’s leave, and in her decision email of 7 March 2013 to the applicant, she stated:
“Anne
I refer to previous discussions regarding your applications for carer’s leave and your concern that there is an inconsistency in the requirements for personal carer’s leave in that the EA refers only to the requirement to provide care to a member of the family (7.60) and does not have the additional requirement as provided in the leave policy to attend to the “generally short-term and unexpected care needs” of family members.
I advise that I have now received the advice, that I advised you that I would seek from HR on the application and use of personal leave, and specifically personal carer’s leave.
HR have advised under departmental policy (refer clause 103 of the Leave Policy – part 2), leave for caring and support purposes will generally only be for reasonable, short-term emergency and/or unplanned circumstances that require an employee to be absent from the workplace until alternative arrangements can be made.” In determining what is “reasonable” and is a “short-term emergency”, the timeframes where supporting documentation may be requested when taking Personal Leave (ie. After three consecutive or five non-consecutive days) can be referred to. As such, after 3-5 days of Personal Leave for caring purposes, a manager can reasonably request an employee take another form of leave to cover the absence, where operational requirements permit. This is on the basis that 3-5 days is a reasonable timeframe to put in place alternative longer-term caring arrangements.”
It is accepted that the HR advisor was Ms Wu. It is also accepted that the decision made by Ms Radjenovic only to grant five days carer’s leave was later reviewed and Ms Brahatheesan was granted full carer’s leave for the period she had requested. The court has serious doubts whether the action of Ms Radjenovic could possibly constitute adverse action but even if it could, the applicant would have no real prospect of successfully convincing the court that some advice given by Ms Wu that was later proved to have been wrong was, in the absence of any suggestion of malicious intention or motive, itself adverse action.
The third complaint against Ms Wu is that she facilitated a decision to place the applicant on leave without pay in relation to her carer’s entitlement when she gave advice to Ms Radjenovic. This appears to be the advice previously discussed. Again, the worst thing that could be said against Ms Wu was that she gave incorrect advice. If it was given in good faith, and there is no evidence that it was not, the court is unable to see how this could constitute adverse action. The claims against Ms Wu should be dismissed.
Sixth Respondent – Elise Aspin
Ms Aspin was the rehabilitation case manager to whom the applicant sent the emails already extracted. In regard to those emails the complaint is that Ms Aspin supported unsafe work practices of Ms Radjenovic and Mr Aurora. The practices being to permit directions to be given to Ms Brahatheesan by persons other than themselves. The most serious claim in relation to these directions relates to the moving of some boxes which the applicant claims she should not have been asked to move because of her previous workplace injuries, and that the respondent suggests she was capable of moving them because she had been cleared for normal duties. Whilst this reveals a factual dispute between the parties, it does not reveal Ms Aspin had knowledge of the essential facts constituting the alleged contravention. It was not Ms Aspin who gave the directions that may or may not have constituted a breach of the Act, she merely dealt with the consequences thereof.
The second complaint against Ms Aspin is that she directed the applicant to attend a fitness for duty assessment. This is evidenced by a letter from Ms Aspin, dated 19 March 2013, to Ms Brahatheesan. This is an action contemplated by s.36 of the Safety Rehabilitation and Compensation Act 1988 (Cth) and, in particular, s.36(1) of that Act which is in the following form:
“Where an employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee's capability of undertaking a rehabilitation program.”
Absent some prejudicial motive, not alleged, the court is unable to find that complying with the statutory requirement can constitute adverse action.
Ms Aspin is also accused of providing a false and misleading report in relation to the applicant’s fitness for duty assessment and worker’s compensation claim to the Department. This is a very serious claim to make. The applicant has provided no evidence to support it.
Finally, the applicant alleges that Ms Aspin failed to take bullying raised on 17 July 2013 in relation to Ms Pettit seriously. This again is a matter upon which no evidence has been brought, other than the assertion by the applicant. If there is a complaint to be made concerning this incident, it is a claim to be made against the employer for the actions of Ms Pettit. Having been told about them and not apparently taking them seriously cannot make this respondent accessorily liable for those actions.
Fifth Respondent - Steven Wood
Mr Wood was at all material times the Deputy Chief Executive Officer of O’Mara. He became the chief executive officer in September 2012. The applicant alleges that he failed in his duty of care to her by encouraging and supporting disrespectful, intimidating and victimising behaviour by an SES officer and by not ensuring safe work practices or providing a rewarding work place. She alleges that a meeting in November 2012 he made adverse comments about her by raising behavioural issues about her and raised concerns about her PVA and that on 23 November he advised her to remove her expectations of her supervisor from her PVA which she claims was in breach of the workplace agreement. She claims he supported the complaint made by Ms Patwardhan against her and supported an unwarranted adverse and unjustified and misleading appraisal on her performance by Ms Pettit as her manager. The applicant produces in support of her arguments an email chain commencing on 19 November 2012. In that email she raised one of the major concerns that she held about the manner in which OMARA was undertaking its duties. A report had been done to the organisation known as the Khoury Report. It made certain recommendations. Some of these recommendations impacted upon the work that Ms Brahatheesan was doing or would be doing. Ms Brahatheesan believed that the organisation did not comply with the recommendations of the Khoury Report. This is what is referred to in the first email to Mr Wood:
“Hi Stephen
Thank you for your time in listening to my concerns about work matters.
Also as discussed, the document that was sent to me last week is called Early Resolution Framework which can be found in G:\Conduct Mgt\Early Resolution.
In my view the document does not align with the principles, approaches and process recommended in the Khoury Report. I note that there is a significant deviation from the Khoury Report in terms of how we approach this type of work, the extent and the level of activities, evidence gathering and examination and formality.
I am happy to continue our discussion. Please let me know a suitable time.
Kind regards
Anne Brahatheesan”
Mr Wood responded with an email on 21 November:
“Hi Anne, I will send you meeting invite and you can propose a different time if you are not available.
I have read the Early Resolution Framework and the underlying principles seem sound. The exact words used can easily be word smithed in my view to give sufficient clarity and do not need my intervention. I expect this Office to work as a team and reach consensus on the approach to be taken to our work. Ultimately though I will be setting the direction and I will be expecting the office to follow the direction set.
Having said that, I will provide some feedback on the Early Resolution Framework for review by Asha and Neil. I commend the issuing of what I see as interim guidelines as this does aim to provide clarity on what is expected and serves as a vehicle for discussion and review. Each revision would improve the document over time. As noted in our conversation, my expectation is that 75% of the “easy resolution caseload” can be finalised within 3 months. Whilst the KPI is currently set at six months, the Advisory Board feel that this can be reduced. In fact, your indication to me at our meeting that four months was reasonable and is in keeping with my view that ¾ can be done in 3 months (with the other 25% taking the additional month). I was encouraged that you share my view that we can improve on the six months.
I referred to my PDA during the meeting. I have spoken to the acting Secretary and my PDA has been cleared now. The actual physical signing will happen next time I am in Canberra.
You also mentioned to me in the meeting that you experienced neck and shoulder pain and had had an ergonomic assessment done. I have not seen and do not need to see this information. It is important though that the relevant people (HR and your manager) are aware of any issues that might affect your health and safety at work. Correct me if I am wrong, but I got the impression at our meeting that I did not need to do any follow up in this area.
You are welcome to send me a calendar invite at any time.
Regards
Stephen”
The respondent submits that a proper reading of this email indicates that Mr Wood, whilst taking his position as the head of the organisation very seriously, genuinely believed that the processes that had been put in place should be given an opportunity to work. He also commented upon Ms Brahatheesan’s physical problems and recommended her to the appropriate persons. There is nothing in these documents which could lead a court to conclude that Mr Wood had knowledge of the essential ingredients of the alleged contraventions. The argument put by Ms Brahatheesan that Mr Wood supported her supervisors with whom she was in dispute does not establish there was a real prospect that that dispute involved an actionable breach of the Act. There is absolutely no evidence that with regard to the most serious complaint Ms Brahatheesan makes against Ms Patwardhan for instituting the disciplinary action against her Mr Wood had any involvement whatsoever. The court is of the view that with regard to Mr Wood the applicant has not satisfied the necessary test and the application against him should be dismissed.
Fourth and Second Respondents – Debra Radjenovic and Asha Patwardhan
Ms Radjenovic was a direct supervisor of the applicant who claims that she was victimised by her by refusing to consult with her directly and by allocating work to Ms Brahatheesan through a junior officer. She alleges that Ms Radjenovic was disrespectful, rude and aggressive and made adverse comments to her in a meeting on 26 September accusing her of having behavioural issues which she threatened to report to Mr Wood. It was Ms Radjenovic who initially denied the applicant’s entitlement to carer’s leave in the manner already discussed. She says that Ms Radjenovic victimised her by engaging in a contrived, malicious, vexatious and frivolous complaint made by Ms Patwardhan against her. If the court was to look at this matter on the basis of a mini trial on the available evidence there is little doubt that as things stand at present it would find that there is not sufficient evidence to conclude that Ms Radjenovic breached the applicant’s workplace rights. But that is not the test. The test is as described earlier in these reasons in the authorities which make it quite clear that where there is a significant dispute on the facts or a mixed dispute of facts and law summary judgment should not be given. Having read all the affidavits of the applicant and her submissions, prolix as they are, the court is of the view that there do exist factual issues and issues of law that should be resolved between these parties. The court understands and sympathises with the respondent’s argument that with regard to the carer’s leave complaints Ms Radjenovic was only acting on the advice she had received from Ms Wu and HR. But it appears from her oral submissions that Ms Brahatheesan imputes a more sinister motive to the actions of Mrs Radjenovic not only in regard to this complaint but to the others.
The court understands that a workplace is a microcosm of the society within which it is situate. The court understands that in this society all people do not get along all of the time and that sometimes a person’s behaviour, whilst innocent in itself, can produce in others a reaction that might be considered by some to be disproportional to the event which triggered it. The court understands that in workplaces antipathies can grow between colleagues and between those in positions of responsibility and the employees whom they have charge of. The court would go further. It understands that there can exist in workplaces the desire amongst employees for the maintenance of a status quo and harmony which, where that status quo and harmony are disrupted by an individual can result in a general antipathy towards that person which sometimes leads to others trespassing upon the instigator’s workplace rights. It is clear from the papers in this case that the applicant is a person who has strong views and is not afraid to voice them. She is not afraid to utilise all the myriad of systems that have been put in place within the public service to ensure that all public servants are treated fairly and equitably. Ms Brahatheesan told the court why she was not alleging a conspiracy amongst all of the named respondents to harm her within her employment. She did believe that was being victimised initially because of the strict interpretation of the Khoury Report that she favoured and later because of the other incidents including the reaction to her claim for carer’s leave and the reaction to her claims arising out of her alleged work injuries. At the end of the hearing it was clear that this was the vice that Ms Brahatheesan saw in the conduct of her fellow employees. She believed it was particularly evidenced by the complaint laid against her by Ms Patwardhan that resulted in a reprimand and notification placed upon her employment record. A determination of the motives behind Ms Patwardhan’s actions and to perhaps a lesser extent those of Ms Radjenovic can only be given at trial after all the evidence has been brought in and heard. The court does not believe the claims against those two individuals for accessorial liability for the alleged breaches of the FWA by the Department are properly the subject of dismissal under s.17A(2) of the FCC Act.
Third Respondent – Elizabeth Pettit
This leaves Ms Pettit who was the assistant director and acting director and a supervisor of Ms Brahatheesan against whom Ms Brahatheesan alleges she failed to enter into proper performance management framework, refused to her expectations of her supervisors recorded in her PVA, made unwarranted, unfair and unjustifying and misleading appraisal on her PVA and bullied her. Ms Brahatheesan believed that her PVA should have set out not only what was expected of her within her role but also what she expected of her supervisors. She made this point quite forcibly. It was one of the matters she raised with Mr Wood. It is argued by the respondent that this is not normal expectation in a PVA which is a top down process. However, the court is satisfied that to the extent that Ms Pettit might have refused to accept Ms Brahastheesan’s interpretation of what should go into the PVA she was, as the superior officer, entitled to do that and most certainly it could not be said by doing so, she had knowledge of the essential ingredient of a contravention. With regard to the other charges against her there is just no evidence whatsoever of them produced by Ms Brahatheesan in all the pages of documentation, affidavits and submissions presently with the court. Nothing that she told the court at the hearing constituted more than the bear allegation itself. For these reasons the court believes that Ms Pettit should also be dismissed from the proceeding.
An argument was raised by the respondent that Ms Brahatheesan’s allegations could be classed as vexatious or frivolous. It was put to the court that Ms Brahatheesan had consistently demanded damages in the sum of $500,000.00. The court had explained to her at an early stage that in these type of proceedings such damages were most unlikely to be awarded where, as Ms Brahatheesan still is, she remained employed and there was no medical evidence of severe symptomology that would result in substantial economic loss. Notwithstanding this advice, Ms Brahatheesan maintains that the sum of $500,000.00 is the appropriate award should she succeed. This is not a matter the court needs to concern itself with at the present time save to say that whilst it believes that Ms Brahatheesan is not correct it is not persuaded that her recalcitrance on this point makes her claims vexatious or frivolous.
The orders that the court would make is that insofar as the proceedings are constituted against the Third, Fifth, Sixth, Seventh, Eighth and Ninth Respondents they should be dismissed.
The parties are aware that the court as presently constituted will not be hearing the substantive action. The files will be allocated to another Judge of this court who will arrange for a further directions hearing in early course.
I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of Judge Raphael
Associate:
Date: 12 March 2014