DIPA v Michael Hill Jeweller (Australia) Pty Ltd
[2018] FCCA 233
•7 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIPA v MICHAEL HILL JEWELLER (AUSTRALIA) PTY LTD | [2018] FCCA 233 |
| Catchwords: INDUSTRIAL LAW – Alleged contravention of ss.340, 351 and 352 of the Fair Work Act 2009 (Cth) (“the Act”) – whether applicant exercised workplace right to make complaint or inquiry in relation to his employment – held applicant made complaints within the meaning of s.341(1)(c)(ii) of the Act – whether relocation of applicant’s employment amounted to adverse action within the meaning of s.342 of the Act – held relocation did not amount to adverse action – held termination of applicant’s employment amounted to adverse action – held the termination of the applicant’s employment was not for the reason or for reasons that included a prohibited reason – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 342, 346, 347, 351, 352, 360, 361, pts.3-1, 6-4B |
| Cases cited: Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union (2010) 187 FCR 293 Barnes v Hatch Associates Pty Ltd [2015] FCCA 3375 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 Ermel v Duluxgroup (Australia) Pty Ltd (No.2) [2015] FCA 17 Fair Work Ombudsman v Australian Workers’ Union [2017] FCA 528 General Motors-Holden’s Pty Ltd v Bowling (1976) 12 ALR 605 Hodkinson v Commonwealth [2011] FMCA 171 Jones v Dunkel (1959) 101 CLR 298 Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399 Shea v TRUenergy Services Pty Ltd (No.6) [2014] FCA 271 State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 Tattsbet Ltd v Morrow [2015] FCAFC 62 Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534 |
| Applicant: | FELIX DIPA |
| Respondent: | MICHAEL HILL JEWELLER (AUSTRALIA) PTY LTD |
| File Number: | MLG 757 of 2016 |
| Judgment of: | Judge Jones |
| Hearing dates: | 24-26 July 2017 |
| Date of Last Submission: | 13 September 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 7 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jewell of McDonald Murholme |
| Solicitors for the Applicant: | McDonald Murholme |
| Counsel for the Respondent: | Mr Mackie |
| Solicitors for the Respondent: | HR Law |
ORDERS
The Application filed on 14 April 2016 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 757 of 2016
| FELIX DIPA |
Applicant
And
| MICHAEL HILL JEWELLER (AUSTRALIA) PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns an application for relief by the Applicant in respect of alleged contraventions of the following provisions which are located in pt.3-1 of the Fair Work Act 2009 (Cth) (“the Act”):
a)section 340 of the Act; and/or in the alternative;
b)section 351(1) of the Act; and/or in the alternative;
c)section 352 of the Act.[1]
[1] The Applicant’s Amended Statement of Claim.
The provisions located in pt.3-1 of the Act may be conveniently described, for the purpose of this decision, as the General Protections Provisions.
The Respondent is a jewellery retailer. The Respondent says it has a large number of stores spread across Australia and internationally, and has over 2,000 staff in Australia.
The Applicant commenced full-time employment with the Respondent in the position of Manager in Training (“MIT”) on 7 July 2015. By correspondence dated 8 June 2015 signed by Mr Marshall Corkery, Regional Manager, the Applicant was offered the position of MIT. The Applicant accepted this offer on 8 July 2015.[2] The Applicant was located in the Respondent’s retail store at Westfield Southland, Victoria (“the Southland Store”). At the time of the Applicant was located at the Southland Store, Ms Christine Clarke was the Store Manager. Ms Clarke and was responsible for supervising the Applicant during his period of training whilst he was located at the Southland Store.
[2] The Applicant’s Affidavit filed on 17 October 2016, Annexure FD-1.
A mediation between Ms Clarke and the Applicant, and overseen by Mr Corkery, took place on 5 November 2015.
In late November 2015, the Applicant was informed by Mr Corkery that he would be relocated to the Respondent’s Glen Waverley store.
The Applicant was absent from work from 1 December 2015 to 7 December 2015. The Applicant provided the Respondent with medical certificates in respect of this absence from work.
The Applicant commenced working at the Respondent’s Glen Waverley store on 8 December 2015. The Glen Waverly Store Manager was Mr Mark Shorten.
It is relevant to note in this brief narrative of the Applicant’s employment, that on 15 December 2015, Ms Jacinta Forsyth (Human Resources Advisor) wrote to the Applicant with respect to the outcome of: [3]
…the investigation conducted as a result of the complaint made by [the Applicant] on 3 December 2015... [regarding] alleged behaviours of Sales Professional, Krystal Mesch which involved aggressive and racially offensive behaviour.
[3] Ibid Annexure FD-3.
The correspondence relevantly stated: [4]
Based on the evidence received we were able to substantiate the allegations made by you regarding the behaviour of Krystal Mesch on 30 November 2015. Specifically, it was substantiated that Krystal Mesch acted in a manner that was deemed to be racially offensive and aggressive towards you and also involved using profanity that is unacceptable.
[4] Ibid.
Ms Forsyth also stated that “appropriate formal action” had been taken, but as the action was treated as strictly confidential, it would not be disclosed to the Applicant. It is apparent from the oral evidence that Ms Mesch was given a first and final warning.
By correspondence dated 31 December 2015 and signed by Mr Corkery, the Applicant’s employment was terminated with one weeks’ pay in lieu of notice. The letter of termination relevantly stated:[5]
This letter is to confirm that your employment at Michael Hill has been terminated within your probationary period effective immediately. Unfortunately we have assessed you as unsuitable in your role as a Manager in Training, due to the demonstration of poor leadership ability.
In addition, you have still not completed your management training, despite repeated conversations with you regarding the importance of its completion in supporting of success at Michael Hill.
[5] Ibid Annexure FD-4.
Statutory Framework
Section 340(1) of the Act provides:
(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.
For the purposes of s.340(1) of the Act, the term “workplace right” is relevantly defined in s.341(1) of the Act:
(1) A person has a workplace right if the person:
…
(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.
The circumstances in which “adverse action” is taken by an employer against an employee is set out at item 1 of s.342(1) of the Act as follows:
(1) The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...Column 2
if ...1 an employer against an employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee's prejudice; or
(d) discriminates between the employee and other employees of the employer.
Section 351(1) of the Act provides:
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Section 352 of the Act provides:
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
In his Closing Submissions, the Applicant submitted as follows:[6]
[6] The Applicant’s Closing Submissions filed on 23 August 2017 at [1]-[4].
1. The Applicant submits that he suffered adverse action in breach of section 340(1)(a)(ii) and 351(1) of the Fair Work Act 2009 (Cth) (the Act).[7]
2. Further and alternatively, the Applicant alleges that the dismissal was in breach of section 352 of the Act.[8]
3. The Applicant submits that:
(a) the relocation effected by Mr Corkery on 30 November 2015 (Relocation) constituted adverse action pursuant to the Act;
(b) the dismissal on 5 January 2016 (Dismissal) constituted adverse action pursuant to the Act;
(c) he possessed and exercised his workplace rights in making the First Complaint through to the Tenth Complaint (Workplace Complaints) and taking personal leave between 1 December 2015 and 7 December 2015 (Personal Leave);
(d) he possesses the attribute of race being Indonesian; and
(e) both the Relocation and the Dismissal were for the reason, or for reasons including the exercise of the Workplace Complaints and/or the Personal Leave and/or the Applicant’s race.
[7] Applicant’s Outline of Argument at [29].
[8] Ibid at [30].
4. Further and in addition, the Applicant submits that:
(a) the Personal Leave constituted a temporary absence from work because of illness of a kind prescribed by the regulations of the Act; and
(b) the dismissal was for the reason, or for reasons including the Personal Leave.
(Emphasis and footnotes in original)
Collier J in Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399 (“Jones”) explained the nature of the onus cast upon an applicant in an application (Jones at [10]):
10. That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason, was explained by Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [161]-[162] and Moore J in Rojas v Esselte Australia Pty Ltd (No 2) [2008] 177 IR 306 at 321-322 [49]-[50]. To paraphrase observations of Moore J in Rojas [2008] 177 IR 306 at 322, it is not sufficient for Ms Jones to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that Ms Jones is able to prove these allegations, the burden is then cast on to QTAC to prove that adverse action was not taken against Ms Jones because of her workplace right for the purposes of s 340 and s 361 of the Act.
Once an applicant has discharged his or her onus to establish that he or she has a protected attribute (in this case, an alleged workplace right pursuant to s.341 of the Act, the Applicant’s race and/or national extraction pursuant to s.351 of the Act, or the Applicant’s temporary absence pursuant to s.352 of the Act), and that he or she has been subject to adverse action within the meaning of s.342 of the Act, s.361 of the Act operates to reverse the evidentiary onus of proof so that the Respondent bears the onus of establishing that it did not take the adverse action for a prohibited reason: Tattsbet Ltd v Morrow [2015] FCAFC 62 at [119] cited with approval in Fair Work Ombudsman v Australian Workers’ Union [2017] FCA 528 at [72] per Bromberg J. Also see the decision of Collier J in Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534 at [29].
Section 361 of the Act provides:
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
Section 360 of the Act provides:
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Credibility of the Witnesses
In the Applicant’s written Closing Submissions, the Applicant attacked the credibility of Mr Corkery, describing Mr Corkery as a person who “was not an honest witness” and submitting that that “the Court should disregard Mr Corkery’s evidence.”[9] The Applicant asserts that Mr Corkery’s evidence was contradictory at times, and that Mr Corkery admitted that he did not have a good recollection of certain events. It is true that Mr Corkery gave evidence that he did not have a good recollection of certain events.
[9] The Applicant’s Closing Submissions filed on 23 August 2017 at [18].
However, the Applicant then goes on in strident terms to describe the manner in which Mr Corkery gave his evidence as “evasive”[10], that he provided “elusive answers” in relation to cross-examination about training module deadlines and was “very careful and confrontational with his”[11] answers. The Applicant accused Mr Corkery of “formulating evidence to suit his contention”,[12] and submitted that on this basis his evidence, Mr Corkery’s evidence should be disregarded by the Court.
[10] Ibid at [10]; see [16].
[11] Ibid at [14]; see [15].
[12] Ibid at [17].
I see nothing wrong with a witness being careful in giving his or her evidence. As a person who decided that the Applicant’s employment should be terminated, Mr Corkery would no doubt understand that his evidence regarding the reasons for the Applicant’s dismissal would be significant in the Court’s ultimate decision. However, I did not find Mr Corkery to be evasive, or indeed confrontational, in giving his evidence. I do not understand what is meant by the allegation that Mr Corkery was “formulating evidence to suit his contention”. However, if it is intended to be an allegation that Mr Corkery gave evidence that was contrived and/or designed to mislead the Court, I reject this submission. I certainly reject the Applicant’s assertion that Mr Corkery was a dishonest witness.
In my opinion, having observed Mr Corkery closely and indeed questioned him myself on certain aspects of his affidavit and oral evidence, I formed the view that he gave his evidence in a straightforward manner (subject to his difficulties in recall), and as best as he could. I will deal with this evidence below, but I see nothing that would suggest dishonesty or an absence of credibility in this witness.
In any event, the Applicant equally conceded that he had difficulty with recall regarding certain events. The Applicant gave evidence that he was on antidepressant medication, and part of his counselling was to forget what happened to him in the past. The Applicant said that was why he could not readily rely on his recall. However, the Applicant argues that: [13]
The Applicant was willing to admit that his recall was not perfect. In this regard, the Applicant was assisted by contemporaneous notes of the events in question. Accordingly, any concerns with the Applicant’s recall are not a reason to discount his evidence.
[13] Ibid at [6].
Exhibit A1 is a notebook in which the Applicant recorded particular dates, and issues he had experienced in his workplace at the Southland Store. The Applicant refers to this notebook in his submissions as being “contemporaneous notes.” I am not confident that Exhibit A1 relied upon by the Applicant can be said to be a record of contemporaneous notes, nor that it can be said to overcome the deficiencies in the Applicant’s recall. I am not confident that this notebook fills-in the gaps where the Applicant has experienced difficulty in his recall. This is because, in relation to a significant incident for the Applicant where he alleges that he complained to Ms Clarke (his then supervisor) on 20 October 2015 that Ms Mesch engaged in racially motived behaviour toward him, he failed to record his complaint to Ms Clarke in his notebook against the date 20 October 2015. The Applicant’s written records in the notebook (Exhibit A1) are about the consequences of the Applicant “dobbing” on Ms Mesch for arriving late at the store (see [69] to [76]) below). If the notebook were truly contemporaneous notes of the incidents that occurred at work and about which the Applicant complained, I would expect him to have recorded that he complained to Ms Clarke about Ms Mesch’s racially offensive conduct towards him, as well as the issue of Ms Mesch arriving late to work.
Likewise, the Applicant alleges that on 30 October 2015, he complained to Mr Corkery about both Ms Mesch’s racially offensive conduct, as well as Ms Clarke’s behaviour towards him. However, in his notebook (Exhibit A1) against the date marked as “30/10”, the Applicant refers to a meeting with Mr Corkery in which he “told him everything about Chris”, and makes no mention of Ms Mesch’s conduct. Again, in relation to the significant issue of Ms Mesch’s racially offensive conduct towards him, I would have expected the Applicant to have recorded in his notebook that he complained to Mr Corkery about this conduct. The Applicant’s explanation for the absence of any reference to Ms Mesch’s racially offensive conduct was that the notes were there to remind him of what happened that day and that he did not need to be reminded about this conduct as he knew this was the first thing he said to Mr Corkery. I find this explanation to be unconvincing.
The Applicant further asserts:[14]
7. The Applicant was willing to make concessions including admitting to a warning and accepting some of Ms Clarke’s concerns. Accordingly, he showed himself to be an honest witness even to his own detriment.
(Footnotes omitted)
[14] Ibid at [7].
The same can be said for the evidence given by Mr Corkery. He was willing to concede the Applicant’s actual sales performance improved while he was at the Glen Waverly store.
I am not prepared to make any adverse credibility findings about the Applicant or Mr Corkery. Accordingly, I will not prefer the evidence of one over the other based a credibility finding.
The Applicant was also critical about the credibility of Ms Clarke. The Applicant described Ms Clarke as “evasive and very careful when answering questions in relation to the Applicant’s complaints surrounding racial discrimination.”[15] I do not agree that Ms Clarke was evasive in answering questions about the Applicant’s allegation that he complained to her about Ms Mesch on 20 October 2015. I found Ms Clarke to be a straight-forward and credible witness.
The Rule in Jones v Dunkel
[15] Ibid at [19].
The Applicant also claimed that I should draw inferences from the fact that the Respondent failed to call Ms Mesch and Mr Shorten as witnesses; specifically, that I should draw the inference that their evidence would have assisted the Applicant’s case. The Applicant submitted that no explanation was given by the Respondent for the fact that they were not called as witnesses and, consequently, relying on the rule contained in Jones v Dunkel (1959) 101 CLR 298 (“Jones v Dunkel”), the Court should draw the inference that Ms Mesch’s evidence would have assisted the Applicant’s case. The Applicant therefore submits that the Applicant’s evidence in relation to discussions with these individuals must be accepted.[16]
[16] Ibid at [21]-[24].
I do not see how Ms Mesch’s evidence could possibly be relevant to the Applicant’s claims that ss.340 and 351 of the Act were contravened by the Respondent. The alleged contravention of s.340 of the Act is in relation to alleged complaints by the Applicant to Mr Corkery and Ms Clarke about Ms Mesch’s behaviour. The alleged contravention of s.351 of the Act concerns the taking of adverse action by the Respondent (not Ms Mesch) because of the Applicant’s race and/or his national extraction.
At the time of the hearing, Mr Shorten was no longer an employee of the Respondent. The Applicant relies on evidence of conversations he had with Mr Shorten for the proposition that he was performing at or above standard at the Glen Waverley store. Mr Corkery gave evidence that he talked to Mr Shorten about the Applicant’s performance, and had formed a view that it had not improved. It seems to me that, if the rule in Jones v Dunkel applies, then it applied equally to both the Applicant and Respondent.
In Jones v Dunkel, Windeyer J said that “[u]nless a party’s failure to give evidence be explained, it may lead rationally to an inference that his evidence would not help his case.”[17] However, the rule in Jones v Dunkel “only applies where a party is required to explain or contradict something”: Qantas Airways Ltd v Transport Workers’ Union of Australia [2011] FCA 470 at [29] (per Moore J), citing Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union (2010) 187 FCR 293 at [40]-[42] (per Barker J).
[17] Jones v Dunkel (1959) 101 CLR 298 at 321.
The general principle of the rule in Jones v Dunkel (supra) is summarised in Cross on Evidence[18] in the following terms:
[The rule in Jones v Dunkel] can be summarised thus.
First, unexplained failure by a party to give evidence, to call witnesses, to tender documents or other evidence or to produce particular material to an expert witness may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party’s case. The rule can operate against parties not bearing the burden of proof and parties which do bear it as well. The appropriate circumstances exist where it was within the power of the party to tender the evidence which was not tendered: the details of this condition, so far as elucidated by the cases, are considered below.
The significance to be attributed to the fact that a witness did not give evidence will in the end depend upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so.
(Footnotes omitted)
[18] The Hon J D Heydon AC QC, LexisNexis Butterworths, Cross on Evidence (at service 201 - January 2018) [1215].
The author continues:[19]
Secondly, the rule in Jones v Dunkel permits an inference that the untendered evidence would not have helped the party who failed to tender it. It entitles the trier of fact to take that into account in deciding whether to accept any particular evidence which relates to a matter on which the absent witness could have spoken…
But the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule does not create any admission…
…And if the case of a party who fails to call a witness is otherwise proved, the inference that the absent witness would not assist the party’s case does not detract from the proof.
[19] Ibid.
It may be that the rule in Jones v Dunkel permits an inference that the evidence Mr Shorten might have given had he been called as a witness would not have assisted either the Applicant’s, nor the Respondent’s case, but it does not extend (as the Applicant contends) to permitting a conclusion that the Applicant’s evidence in relation to his discussions with Mr Shorten must be accepted.
The Adverse Action
The Applicant alleges that the relocation of the Applicant from the Respondent’s Southland Store to the Glen Waverly store on 30 November 2015, and his dismissal on 5 January 2016, constitute adverse action pursuant to s.342(1) of the Act. The Respondent denies that the relocation constituted adverse action pursuant to s.342(1) of the Act. The Respondent properly concedes that the termination of the Applicant’s employment does constitute adverse action pursuant to s.342(1) of the Act.
I should note that in the Applicant’s Amended Statement of Claim, he alleges that the re-processed sales by Ms Clarke were motivated by the reason of, or for the reasons including, the first two complaints and/or the Applicant’s taking of personal leave.[20] However, this pleading is in contrast with and does not logically follow [26] of the Applicant’s Amended Statement of Claim, which strikes out the earlier pleading that the re-processed sales constitute an adverse action.[21] Having regard to the Applicant’s Closing Submissions, I have formed the opinion that he does not press this claim.
[20] The Applicant’s Amended Statement of Claim at [34].
[21] Ibid [26].
The Applicant argues that the decision to relocate him from the Southland Store to the Glen Waverly store altered his position to his prejudice because of the increased travel time, and associated increased travel costs travelling to the Glen Waverly store.[22] The Applicant gave evidence that part of the reason that he accepted the position with the Respondent was the fact he lived around five minutes in travel time from the Southland Store.
[22] The Applicant’s Closing Submissions filed on 23 August 2017 at [32].
The Applicant’s evidence is that, notwithstanding clause 1.3 of his contract of employment which provided that “Your employment is with the Company and not a specific store. The Company reserves the right to transfer you to another store permanently or temporarily”[23], the Applicant reached an agreement with Mr Corkery, prior to signing the employment contract on 8 July 2015, that he would not be transferred to another of the Respondent’s stores. Mr Corkery denies that he agreed to this. Mr Corkery’s evidence is that all employees are expected to transfer between the Respondent’s stores. He said this was particularly the case for MITs, as the company believed that experiencing different work locations was part of the training or learning process for a future Manager.
[23] The Applicant’s Affidavit filed on 17 October 2016, Annexure FD-1.
I prefer Mr Corkery’s evidence that there was no oral agreement between himself and the Applicant that he would not be transferred to another store. No plausible evidence was given by the Applicant as to why the Respondent, a large retail company, would make an exception for the Applicant.
On the Applicant’s own oral evidence, I find his transfer from the Southland Store to the Glen Waverly store did not constitute an alteration in his position to his prejudice. The Applicant’s unqualified evidence was that, notwithstanding his initial concerns about the extra travel time to the Glen Waverly store, he was happier at the Glen Waverly store than at the Southland Store.
There is no question that the Applicant did not suffer any diminution in his salary or other conditions of employment. In cross-examination, he stated: [24]
[24] Transcript of proceedings on 24 July 2017,p.76, l.19-30.
The Applicant: But at the end I was happy working there. I had no complaint about the distance at all… I never complained about that. Once I agreed to go there, I never one time complained about the distance.
…
Her Honour: So what you’re saying… is despite your reservations about moving to The Glen, once you had, you found it a far preferable place to Southland?
The Applicant: Yes… I found the people are much nicer there. Actually, I was very happy there.
In my opinion, in determining whether an action or conduct amounts to an alteration in an employee’s position to his or her prejudice, the Court is obliged to take into account the whole of the circumstances arising from the alteration of the employee’s position. I do not accept that an alteration which disadvantages an employee in some way will on its own, have the consequence of amounting to an alteration to that employee’s prejudice as contemplated by item 1 of s.342(1) of the Act.
The Applicant relies on[25] an extract from a decision of Justice Gordon in Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402 (“Klein”), in which her Honour stated (at [84]):
[25] The Applicant’s Outline of Argument filed on 10 July 2017 at [39].
84. It was common ground that:
1. the phrase “injures the employee in his or her employment” in Item 1(b) of s 342(1) of the FW Act extends to injury of any compensable kind, a legal injury, or an adverse effect on an existing legal right: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at [4]; Australian and International Pilots Association v Qantas Airways Ltd (2006) 160 IR 1 at [13]-[14] and Unsworth v Tristar Steering and Suspension Australia Limited (2008) 175 IR 320 at [25];
2. the phrase “alters the position of the employee to the employee’s prejudice”, in Item 1(c) of s 342(1) of the FW Act, is a broad additional category of adverse action which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question; and
3. a prejudicial alteration to the position of an employee for the purposes of Item 1(c) of s 342(1) of the FW Act, may occur even though the employee suffers no loss or infringement of a legal right; it will occur if the alteration in the employee’s position is real and substantial rather than merely possible or hypothetical: Patrick Stevedores at [4]; Australian and International Pilots Association v Qantas Airways Ltd at [15] and Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244 at [30]-[32].
Her Honour also went on state that, as a matter of statutory construction (Klein at [86]):
86. …s 342(1) of the FW Act does require that:
1. the position is to be examined in the light of the circumstances of an individual employee (or group of similarly treated employees): Community and Public Sector Union v Telstra Corporation Limited at [17]-[21];
2. an employee’s position is to be taken at the time the conduct occurred and is to be assessed by reference to the employee’s then existing entitlements under the relevant industrial instrument: Burnie Port Corporation Pty Ltd v Maritime Union of Australia (2000) 104 FCR 440 at [23] and Australian Liquor, Hospitality & Miscellaneous Workers Union v Liquorland (Aust) Pty Ltd (2002) 114 IR 165 at [25]; and
3. the employee, individually speaking, must be in a worse situation after the relevant conduct than before it and the deterioration must have been caused by the employer’s conduct: BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 102 FCR 97 at [35]-[37] and [45]-[48]; Australian Workers Union v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482 at [52]-[54]; Community and Public Sector Union v Telstra Corporation Limited at [17]-[21] and Finance Sector Union of Australia v Commonwealth Bank of Australia Ltd (2005) 147 FCR 158 at [23]-[30];
4. if the deterioration occurs by operation of the law or an industrial instrument the employer will not have altered the position of the employees individually speaking; the change in the position of the employees individually speaking occurs by operation of the relevant legislation rather than the conduct of the employer in making the enterprise agreement: Australian Liquor, Hospitality & Miscellaneous Workers Union v Liquorland (Aust) Pty Ltd (2002) 114 IR 165 at [24]-[26], [30] and [37].
Respectfully, I concur with the observations of his Honour FM Cameron (as his Honour then was) in Hodkinson v Commonwealth [2011] FMCA 171. Cameron FM stated that for prejudicial alteration to occur (at [163]):
163. … it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer’s acts than before them…
His Honour Judge Vasta described the approach to be adopted to the term “employee’s prejudice” by this Court as one that must be looked at “holistically”: Barnes v Hatch Associates Pty Ltd [2015] FCCA 3375 at [139]-[140]. If “holistically” is intended to be a reference to having regard to the whole of the circumstances arising from the alteration of the employee’s position, I respectfully agree with his Honour.
In any event, the Applicant’s clear oral evidence is that he had no complaint about the increased distance and travelling time, was happy at the Glen Waverly store, and preferred that workplace to the Southland Store.
I note that a great deal of cross-examination was directed to a dispute between the parties about when Mr Corkery informed the Applicant about his decision to relocate the Applicant to the Glen Waverly store. As I have found the relocation of the Applicant from the Southland Store to the Glen Waverly Store did not amount to adverse action within the meaning of the s.342(1) of the Act, I have not dealt with that dispute.
Accordingly, I find that the adverse action engaged in by the Respondent was the termination of the Applicant’s employment on 5 January 2016.
The Workplace Right – the Complaints
In respect of the alleged contravention of s.340 of the Act, the Applicant claims that during the period of his employment with the Respondent, he had a workplace right within the meaning of s.341(1)(c)(ii) of the Act to make a complaint or inquiry in relation to his employment, and that he exercised this workplace right by way of complaints that he made on 10 occasions.
The Respondent admits that the complaints described as the Fifth Complaint (made on 30 November 2015), the Seventh Complaint (made on 3 December 2015) and the Tenth Complaint (made on 18 December 2015) were an exercise of the workplace right to make a complaint or inquiry in relation to his employment.[26]
[26] The Respondent’s Defence filed on 16 May 2016 at [30](b).
In Shea v TRUenergy Services Pty Ltd (No.6) [2014] FCA 271 (“Shea”), Dodds-Streeton J stated (at [29]):
29. I concluded, for reasons set out below, that in the context of s 341(1)(c)(ii) of the Act:
(a) a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;
(b) the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;
(c) the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose;
(d) the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii);
(e) a complaint may be made not only to an external authority or party with the power to enforce or require compliance or redress, but may be made to persons including an employer, or to an investigator appointed by the employer;
(f) a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise; and
(g) a complaint is limited to a grievance, finding of fault or accusation that satisfies the criteria in s 341(1)(c)(ii) and does not extend to other grievances merely because they are communicated contemporaneously or in association with the complaint. Nor does a complaint comprehend contemporaneous or associated conduct which is beyond what is reasonable for the communication of the grievance or accusation.
I now turn to the complaints the Applicant alleges that he made in relation to his employment.
The First Complaint
In his Affidavit filed on 17 October 2016, the Applicant alleges that in September 2015, he made a complaint to Mr Corkery about the issues he had been experiencing with Ms Clarke and Ms Mesch. The issues identified by the Applicant in his Affidavit about Ms Clarke involved her alleged rudeness and condescending manner towards him, the fact she reprimanded him for his failure to set an alarm, the fact she asked him to work unreasonable overtime, and the fact she told him he should step down to a sales professional role because he was too nice to staff.[27] The issues raised by the Applicant about Ms Mesch were that she often undermined his authority, and engaged in bullying behaviour towards him.
[27] The Applicant’s Affidavit filed on 17 October 2016 at [9]-[13].
The Applicant deposes that Mr Corkery responded, “[t]his is not my job. As Manager in Training it is your job to resolve these issues.”[28]
[28] Ibid at [15].
In his Supplementary Affidavit, Mr Corkery deposes that he does not recall the Applicant speaking to him in September 2015 regarding issues he was having with Ms Clarke or Ms Mesch.[29] Mr Corkery says he does recall that in early October 2015, the Applicant told him that he was having issues because she was taking the side of other staff rather than his side.[30] Mr Corkery deposes that he encouraged the Applicant to speak to Ms Clarke so they could work on a solution together and that if he had a problem with her reaction he should come to talk to me about it.[31] In cross-examination, Mr Corkery said he asked the Applicant if he was comfortable with approaching Ms Clarke directly with this issues and the Applicant had indicated to him that he was.
[29] The Supplementary Affidavit of Marshall Corkery filed on 20 July 2017 at [18].
[30] Ibid at [9].
[31] Ibid at [17]-[19].
In his Supplementary Affidavit, Mr Corkery denies that he would have used the words, “[t]his is not my job. As Manager in Training it is your job to resolve these issues.”[32]
[32] Ibid at [8].
In his evidence-in-chief, the Applicant was asked to give an account of the discussion. The Applicant’s evidence was that Mr Corkery said to him that as part of his job as a MIT, he had to be able to resolve every single issue that is happening in the store, and that he should have a conversation with Ms Clarke and solve the problems with her. The Applicant conceded that the conversation referred to by Mr Corkery as occurring in early October 2015 could have been the same discussion the Applicant had referred to in his Affidavit as having occurred in September 2015.
In cross-examination, Mr Corkery said that he later spoke to the Applicant and discovered that the Applicant had not yet spoken to Ms Clarke.[33] Counsel for the Applicant put the proposition to Mr Corkery that the reference by the Applicant to “other staff” could include a reference to Ms Mesch. Mr Corkery responded that the Applicant made it very clear to him that the issue that he was raising was with respect to Ms Clarke’s behaviour towards him.
[33] Transcript of proceedings on 24 July 2017, p.171-172.
I am satisfied, having regard to the evidence, that:
a)in early October 2015, the Applicant said to Mr Corkery that he was having issues with Ms Clarke;
b)Mr Corkery said to the Applicant that, as a MIT, he should discuss the issue first with Ms Clarke to see if he could resolve the issues; and
c)the Applicant agreed to do this.
I am not satisfied that the Applicant complained to Mr Corkery about issues he had with Ms Mesch on this occasion. The Applicant’s evidence-in-chief about his discussions with Mr Corkery regarding his issues with staff at the Southland Store was vague. The Applicant did not refer specifically to Ms Mesch, and only confirmed that Mr Corkery had told him he should talk to Ms Clarke to attempt to solve the problems with her.
I find that in September 2015, the Applicant did not make a complaint or an inquiry in relation to his employment to Mr Corkery within the meaning of s.341(1)(c)(ii) of the Act.
The Second Complaint
In his Affidavit, the Applicant deposes that he made a complaint to Ms Clarke on 20 October 2015 about “…Ms Mesch’s racially offensive and bullying behaviour that she had exhibited towards me the previous day and said that she had made me feel degraded.”[34] The Applicant deposes that Ms Clarke said she would speak to Ms Mesch, although he did not believe that any action was taken.
[34] The Applicant’s Affidavit filed on 17 October 2016 at [19].
Ms Clarke denies that the Applicant raised with her the fact that Ms Mesch had engaged in racially offensive conduct on 20 October 2015.[35]
[35] The Affidavit of Christine Clarke filed on 20 December 2016 at [22].
In support of his allegation of the Second Complaint, the Applicant relies on notes he wrote in his notebook (Exhibit A1). The notebook records against the date marked as “19/10” that “Crystal making gesture, strong Asian accent and she said that’s how I spoke, Sharon was there.” However, against the date marked “20/10”, his notes state “told Chris about it, Chris said to Krystal she won’t make a big deal of her leaving 3 mins early. Prior to that Krystal was so nasty and not letting me talk to Sharon and kept telling me I [dobbed] her in for leaving 3 mins early and can’t let go.”
I am not satisfied that the Applicant complained about Ms Mesch’s racially offensive conduct to Ms Clarke on 20 October 2015. Against the date “20/10”, in the Applicant’s handwritten notes, the Applicant does say he told Ms Clarke about “it” but, in context, the “it” appears to be in relation to his dealings with Ms Mesch about leaving the store early one day. In his evidence-in-chief, when asked what he meant by the reference to “it” in the notebook, the Applicant’s spontaneous evidence was to focus on the issue he had with Ms Mesch in dealing with her leaving the store early one day. The Applicant did not refer to Ms Mesch engaging in racially offensive behaviour until taken by Counsel for the Applicant to the part of Ms Clarke’s affidavit where she denied that the Applicant complained to her on 20 October 2015 about Ms Mesch engaging in racially offensive conduct. I am not satisfied that the Applicant’s evidence-in-chief, in which he ultimately said that he had told Ms Clarke about Ms Mesch’s racial conduct, was spontaneous, but rather was directed by the questions by his Counsel.
Accordingly, I find that the Applicant did not complain to Ms Clarke about Ms Mesch’s racially offensive and bullying behaviour on 20 October 2015.
The Applicant may have raised issues with Ms Clarke on 20 October 2015 about other aspects of Ms Mesch’s behaviour, including arriving late to work. However, I am not satisfied that this is a compliant in relation to his employment within the meaning of s.341(1)(c)(ii) of the Act. In Shea, Dodds-Stretton J said (at [29](f)):
(f) a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise;
In my opinion, the issues that the Applicant raised about Ms Mesch’s tardiness and her nastiness to him could not be said to be founded on a source of entitlement.
I find that the Applicant did not, on 20 October 2015, make a complaint or an inquiry in relation to his employment to Ms Clarke within the meaning of s.341(1)(c)(ii) of the Act.
The Third Complaint
In his Affidavit, the Applicant deposes that during a meeting with Mr Corkery on 30 October 2015, he made a complaint to Mr Corkery about Ms Clarke’s attempts to force him to step down to a Sales Professional role, and about Ms Mesch’s behaviour. The Applicant deposes that he explained “instances of Ms Mesch’s bullying and racially offensive behaviour as well as Ms Clarke’s numerous attempts to force me to step down as Manager in Training.”[36]
[36] The Applicant’s Affidavit filed on 17 October 2016 at [21].
The Applicant said that Mr Corkery agreed to arrange a mediation with Ms Clarke on 5 November 2015, and also suggested that he speak to Ms Jacinta Forsyth from Human Resources. The Applicant says that Mr Corkery said that he took bullying and racism very seriously.
Mr Corkery denies the Applicant complained about Ms Mesch’s racial conduct on this occasion. Mr Corkery says the Applicant complained only about Ms Clarke’s conduct towards him.
In the Applicant’s notebook against the date marked “30/10” (Exhibit A1), he wrote “[m]eeting with Marshal @ at Chirnside Park [shopping centre store] and told him everything about Chris and set up meeting for Thursday.”
When asked to expand on what he meant by “told him everything”, the Applicant said that he told Mr Corkery about his difficulties with Ms Clarke siding with Ms Mesch, but said that he mainly talked to Mr Corkery about the “racial thing”. This evidence is not consistent with the notes in his notebook where he refers to “everything about Chris.”
The Applicant’s explanation for his failure to record in his notebook that he complained to Mr Corkery about Ms Mesch’s racially offensive conduct towards him, is unconvincing (see [29] above).
I am not satisfied that the Applicant complained to Mr Corkery on 30 October 2015 about Ms Mesch’s racially offensive conduct. I find the Applicant complained to Mr Corkery about Ms Clarke’s manner in dealing with him, and that this was the subject of the mediation held on 5 November 2015.
It should be noted that there was a dispute about whether the Applicant met Mr Corkery on that day at the Respondent’s Chirnside Park store. Mr Corkery denies this meeting occurred, and relies on a screenshot of his calendar diary which records that he was at a store located in Parkmore (Exhibit R3). It is unnecessary for the purposes of this decision to resolve this issue.
I am satisfied that the complaint to Mr Corkery by the Applicant was that he was being bullied by Ms Clarke. I am satisfied that a complaint by an employee that another member of staff has bullied him/her is founded on a source of entitlement: see pt.6-4B of the Act.
Accordingly, I find that on 30 October 2015 the Applicant made a complaint within the meaning of s.341(1)(c)(ii) of the Act.
The Fourth Complaint
In his Affidavit filed 17 October 2016, the Applicant deposes that on 5 November 2015, he attended a mediation with Mr Corkery and Ms Clarke at which he “raised all the issues [he] had experienced with Ms Clarke and Ms Mesch, including the racially offensive comments that Ms Mesch had made to [him], and the lack of support [he] received from Ms Clarke.”[37] The Applicant says that Ms Clarke denied having any knowledge of the racial remarks. The Applicant says that Mr Corkery asked him what he wanted to change, and that his response was that he wanted “Ms Clarke to speak to [him] and treat [him] with respect, rather than addressing [him] in a condescending manner, and not allow racially offensive comments to be made in the workplace.”[38] The Applicant deposes that Ms Clarke agreed to make these changes, but that she denied ever having spoken to him in a condescending manner.
[37] Ibid at [23].
[38] Ibid.
Mr Corkery and Ms Clarke both denied that at the mediation, the Applicant raised the issue of Mesch’s racially offensive conduct.
In his notebook against the date marked as “05/11/15” (Exhibit A1), the Applicant wrote:
Meeting was Chris and Marshall @ 10am, brought up about the racial issues and Chris’ poor behaviour towards me. Marshal wrote things down and he said it’ll get better.
Mr Corkery and Ms Clarke’s evidence was that the subject of the mediation was Ms Clarke’s alleged manner towards the Applicant. In cross-examination, Mr Corkery described the Applicant’s issues about Ms Clarke’s manner as an issue about Ms Clarke’s way of communicating with the Applicant. Mr Corkery said that at the end of the mediation, it was agreed that Ms Clarke would “soften” the way she communicated with the Applicant, but that the Applicant equally understood that Ms Clarke’s coaching of the Applicant would continue utilising the coaching log.
For the mediation, Ms Clarke prepared handwritten notes regarding issues that she had experienced in relation to the performance of the Applicant.[39] These handwritten notes were typed to assist the Court for the purpose of the proceedings, and are marked as Exhibit R1. Ms Clarke deposes that these notes were provided to Human Resources after the meeting.[40] The notes made by Ms Clarke were not given to the Applicant, either at the mediation or afterwards. In cross-examination, Ms Clarke said that during the mediation, reference was only made to a few issues that were recorded in her notes. Ms Clarke also said that many of the issues recorded in her notes were also recorded in the Respondent’s “Employee Performance Log/Verbal Warning” pro forma records.[41] These records in evidence disclose that various performance issues were raised by Ms Clarke with the Applicant, and were recorded in writing.
[39] The Affidavit of Christine Clarke filed on 20 December 2016, Annexure CC-1.
[40] Ibid at [27].
[41] The Supplementary Affidavit of Marshall Corkery filed on 20 July 2017, Annexure MC-2.
At the end of the handwritten notes (Exhibit R1), the following is recorded by Ms Clarke: “I have not bullied him – I have spent hours trying to coach/develop and train him to the detriment of other staff who have had nowhere near as much time.”
Although Ms Clarke denied that the way in which she dealt with the Applicant amounted to bullying, or that she favoured other staff in the Southland Store over the Applicant, she deposes that she attempted to change the way she dealt with the Applicant. The Applicant’s evidence is that the relationship between them did improve after the mediation. There is agreement as between the parties involved in the mediation that the outcome discussed was that Ms Clarke would attempt to speak to the Applicant in a tone and manner that was “softer.” The Applicant’s oral evidence is that Ms Clarke was not as “abusive” as before and really “watched her tone.”
No minutes of the mediation were produced by the Respondent. In circumstances where I am satisfied that the discussion at the mediation which canvassed the Applicant’s concerns about the manner in which he was treated by Ms Clarke do amount to a complaint, in my opinion it is unnecessary to decide whether the issue of Ms Mesch’s racially offensive conduct was raised by the Applicant at the mediation.
If I am required to do so, however, I would find that given the consistent evidence of Mr Corkery and Ms Clarke that this issue was not raised, the issue of Ms Mesch’s racially offensive conduct was not raised by the Applicant at the mediation held on 5 November 2015.
Having regard to Ms Clarke’s handwritten notes (Exhibit R1), I am satisfied that the Applicant complained about Ms Clarke bullying her. The Applicant may have not have used those precise words, but clearly Ms Clarke interpreted what he was saying as an allegation of bullying.
Accordingly, I am satisfied that on 5 November 2015, the Applicant made a complaint within the meaning of s.341(1)(c)(ii) of the Act.
The Fifth Complaint
It is somewhat surprising that, given the Respondent had admitted that on 30 November 2015 the Applicant made a complaint within the meaning of s.341(1)(c)(ii) of the Act, so much time in cross-examination was devoted to the circumstances in which this complaint occurred.
In his Affidavit, the Applicant describes events that occurred on
30 November 2015. The Applicant alleges that in the course of dealing with Ms Mesch about her lateness to work, she became aggressive and yelled at him that he was a racist, she swore at him, and “made Asian eyes gestures and mocked [his] ethnicity.”[42] The Applicant deposes that he gave Ms Mesch a formal verbal warning about her lateness for work.
[42] The Applicant’s Affidavit filed on 17 October 2016 at [31]-[32].
Mr Corkery deposes that on 30 November 2015 the Applicant told him that Ms Mesch had been racist towards him, and that immediately after this, he spoke with Ms Clarke and Human Resources.[43]
[43] The Affidavit of Marshall Corkery filed on 20 December 2016 at [35].
I am satisfied that on 30 November 2015 the Applicant did complain to Mr Corkery that Ms Mesch had engaged in racially offensive behaviour toward him. There can be no doubt that this complaint falls within the meaning of s.341(1)(c)(ii) of the Act.
The Sixth Complaint
In his Affidavit, the Applicant deposes that on 1 December 2015, he telephoned Mr Kevin Stock (the Respondent’s Chief Executive Officer), and “explained all the events that had occurred with Ms Clarke and Ms Mesch.”[44] The Applicant deposes that Mr Stock “sounded very concerned for me and advised that Ms Forsyth would be in touch and that an investigation would be undertaken.”
[44] The Applicant’s Affidavit filed on 17 October 2016 at [36].
In his written submissions, the Applicant argues that his assertion in relation to the alleged Sixth Complaint is corroborated by notes of the events recorded at the time.[45] In the Applicant’s notebook (Exhibit A1) against the date recorded as “Tuesday, 01 Dec”, the Applicant wrote:
I didn’t go to work, texted Chris in the morning, I went to Dr got certificate, left a [message] to Kevin Stock, and called for 2nd time, he answered à told him everything, he said he’d contact Jacinta and ask her to call me. I called Marshal and told him about the sick certificate.
[45] The Applicant’s Closing Submissions filed on 23 August 2017 at [59].
In the absence of any evidence to the contrary, I am satisfied that the Applicant did telephone Mr Stock, and, to use the Applicant’s own words, “told him everything.” It is not at all clear what the Applicant meant by “everything.” I assume it is in relation to his grievances about the behaviour of Ms Clarke and/or Ms Mesch, which included his complaint that Ms Clarke bullied him, and that Ms Mesch engaged in racially offensive behaviour towards him.
I am satisfied, therefore, that this is a complaint within the meaning of s.341(1)(c)(ii) of the Act.
The Seventh Complaint
The parties agree that the Applicant’s action on 3 December 2015, in which he made a formal complaint to Ms Forsyth, was a complaint within the meaning of s.341(1)(c)(ii) of the Act.
The Applicant maintains that he made a formal complaint about Ms Clarke and Ms Mesch. The Applicant that he sent Ms Forsyth an email detailing the incidences that had occurred since he commenced employment at the Southland Store.[46] The email referred to is not in evidence. The email dated 15 December 2015 sent by Ms Forsyth to the Applicant is in evidence (see [9] above). On the face of this email, it is evident that the formal complaint made by the Applicant was in relation to Ms Mesch’s conduct, and not the conduct of Ms Clarke.
[46] The Applicant’s Affidavit filed on 17 October 2016 at [37].
I am satisfied that on 3 December 2015, the Applicant made a complaint within the meaning of s.341(1)(c)(ii) of the Act, in relation to the racial behaviour engaged in by Ms Mesch.
The Eighth Complaint
In his Affidavit, the Applicant deposes that he made a complaint on 10 December 2015 to Mr Shorten about his allegation that Ms Clarke had reversed a number of large sales that he had made while at the Southland Store, and re-processed them under her name.
In the absence of Mr Shorten being called as a witness by either of the parties, there is no corroborative evidence that the Applicant did complain about Ms Clarke re-processing the Applicant’s sales
In the Applicant’s notebook (Exhibit A1) against the date marked as “Thursd, 10/12”, the Applicant wrote: “Mark called Christine and told her about the stolen sale, she responded why didn’t I call her and she’ll think about reversing the sale she stole.”
I am not satisfied that this record in the Applicant’s notebook supports the Applicant’s contention that he complained to Mr Shorten about the re-processing of sales.
The Applicant’s evidence given in his Affidavit is inconsistent with the record contained in the notebook. In his Affidavit, he deposes that he complained to Mr Shorten about Ms Clarke reversing a “number of large sales.”[47] In his notebook (Exhibit A1), the Applicant refers to “the sale.”
[47] Ibid at [40].
I am not satisfied that the Applicant complained to Mr Shorten on 10 December 2015 regarding Ms Clarke reversing sales that the Applicant had made.
Accordingly, I am not satisfied that on 10 December 2015, the Applicant made a complaint within the meaning of s.341(1)(c)(ii) of the Act.
The Ninth Complaint
In his Affidavit, the Applicant deposes that he made a complaint on 11 December 2015 to Ms Forsyth, and “informed her of the issue with the re-processed sales.”[48] The Applicant deposes that Ms Forsyth said she would not be taking action, that she was aware of the issues, and that Mr Corkery would handle it.
[48] Ibid at [41].
In the Applicant’s Closing Submissions, he argues that this assertion is corroborated by notes of the events recorded at the time.[49] In his notebook (Exhibit A1), against the date marked as “Friday, 11/12”, the Applicant wrote:
Spoke to Jacinta, she told me she knew about the stolen sale. She said she’ll talk to Marshall about the sale, and said she’ll speak to Krystal on Tuesday. Told her about the case and asked her about my lead book [sic] she said she’ll ask Marshal coz she doesn’t know what to do.
[49] The Applicant’s Closing Submissions filed on 23 August 2017 at [62].
This record does support the Applicant’s assertion that he informed or spoke to Ms Forsyth about what he alleges was a stolen sale. It certainly does not support the Applicant’s evidence that Ms Forsyth said she would not be taking action, because in fact she told the Applicant that she would speak to Mr Corkery about it.
Mr Corkery gave evidence in cross-examination that he was aware about this issue. Mr Corkery said the Applicant raised this issue after he had relocated to the Glen Waverly store. Mr Corkery and Ms Clarke’s evidence is that the Applicant made the sale whilst at the Southland Store, and that the customer had made a complaint about the Applicant after he had relocated to the Glen Waverly store. Both Mr Corkery and Ms Clarke gave evidence that Ms Clarke dealt with the customer’s complaint, and therefore the sale was recorded as having been made by Ms Clarke.
I am satisfied that the Applicant informed or spoke to Ms Forsyth about the issue of the “re-processed sale” by Ms Clarke. However, I am not satisfied, on the evidence, that the Applicant was expressing a grievance about this action by Ms Clarke to Ms Forsyth. It seems to me that the Applicant was merely informing Ms Forsyth about this matter.
Accordingly, I am not satisfied that on 11 December 2015 the Applicant made a complaint within the meaning of s.341(1)(c)(ii) of the Act.
The Tenth Complaint
The parties agree that on 18 December 2015, the Applicant made a complaint to Mr Corkery in relation to a sale that had been reversed. In his Affidavit, the Applicant describes this complaint as follows:[50]
43.…I sent a text message to Mr Cockery [sic] to follow-up on a particular sale. Mr Cockery [sic] advised that this sale had been reversed because the customer had complained and that the sale would remain in Ms Clarke’s name. I replied complaining that he could not reply [sic] solely on Ms Clarke’s word and that if [sic] client had made a complaint, I was entitled to feedback. Mr Cockery [sic] merely replied that he would discuss the matter with Ms Clarke.
[50] The Applicant’s Affidavit filed on 17 October 2016 at [43].
A great deal of time was spent in oral evidence in relation to the issue of the reversed sale. I accept Ms Clarke’s explanation for the reason the sale made by the Applicant was re-processed in her name. I am satisfied that Ms Clarke was required to deal with a complaint made by a customer in relation to the Applicant’s behaviour in making the original sale, and that consequently, the sale was justifiably placed in her name.
Mr Corkery’s evidence (see [119] above) was consistent with Ms Clarke’s evidence.
I am satisfied that on 18 December 2015, the Applicant made a complaint to Mr Corkery within the meaning of s.341(1)(c)(ii) of the Act.
Section 351 of the Act
In his Amended Statement of Claim, the Applicant states that he was born in Indonesia and is of Indonesian descent. No evidence was given by the Applicant in relation to this pleading. The Respondent neither admitted to nor denied this pleading.[51]
[51] The Respondent’s Defence filed on 16 May 2016 at [3].
No submissions were made by the Applicant in relation to the operation of s.351 of the Act in the circumstances of this case. There seems to have been an assumption by the Applicant that if the Court was not satisfied that the Respondent had discharged its evidentiary onus in respect of the reasons for the termination of the Applicant’s employment, it would follow that the Respondent had contravened s.351 of the Act as it had taken adverse action because of the Applicant’s race and/or national extraction.
Section 352 of the Act
There is no dispute that the Applicant took personal leave between 1 December 2015 and 7 December 2015.
No submissions were made by the Applicant in relation to the operation of s.352 of the Act in the circumstances of this case. There seems to have been an assumption by the Applicant that if the Court was not satisfied that the Respondent had discharged its evidentiary onus in respect of the reasons for the termination of the Applicant’s employment, it would follow that the Respondent had contravened s.352 of the Act as it had taken adverse action because the Applicant took temporary leave because of illness.
In respect of s.352 of the Act, Bromberg J in Ermel v Duluxgroup (Australia) Pty Ltd (No.2) [2015] FCA 17 (“Ermel”) stated (at [84]-[85]):
84. Employees may be validly dismissed for a whole range of reasons to do with a temporary absence from work. Section 352 is not concerned with protecting employees from dismissal merely because the employee was temporarily absent from work. Consistently with the ILO standard from which the provision was initially sourced, s 352 of the FW Act seeks to negate the validity of a dismissal effectuated because the employee was temporarily absent from work because of illness or injury.
85. In other words, the reason for dismissal that s 352 proscribes is not merely the employee’s temporary absence but the temporary absence from work because of illness or injury. That conclusion is consistent with the legislative history of the provision, its text and the approach taken in a number of cases which have considered it or its predecessor provisions: Khiani at [34]; Stevenson v Murdoch Communities Services Inc (2010) 202 IR 266 at [102], [104], [106] and [110] (Gordon J).
Sections 360 and 361 of the Act
It is appropriate to set out the approach elucidated by the High Court of Australia in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (“Barclay”) with respect ss.360 and 361 of the Act.[52] In Barclay, the decision concerned whether adverse action had been taken “because” the Respondent had engaged in, or proposed to engage in, industrial activities; an attribute proscribed by s.346 of the Act, in conjunction with s.347 of the Act.
[52] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 at [56], [102] and [127].
French CJ and Crennan J described “the correct approach” as follows (Barclay at [41]-[45]):
The question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act. These provisions must be construed together in accordance with the principles of statutory construction established by this Court, which must begin with a consideration of the text of the relevant provisions and may require consideration of the context including the general purpose and policy of the provisions.
…
Determining why a defendant employer took adverse action against an employee involves consideration of the decision-maker’s “particular reason” for taking adverse action (s.361(1)), and consideration of the employee’s position as an officer or member of an industrial association and engagement in industrial activity (“union position and activity”) at the time the adverse action was taken (ss 342, 346(a), 346(b), 347 and 361(1)).
Clearly a defendant employer interested in rebutting the statutory presumption in s 361 can be expected to rely in its defence on direct testimony of the decision‑maker’s reason for taking the adverse action. The majority in the Full Court correctly rejected an argument put by the respondents that the introduction of the statutory expression “because” into a legislative predecessor to s 346, in place of the previous statutory expression “by reason of,” rendered irrelevant the state of mind of the decision-maker.
There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity
(Footnotes omitted)
In Barclay, French CJ and Crennan J adopted the reasons of Mason J in General Motors-Holden’s Pty Ltd v Bowling (1976) 12 ALR 605, including the concept of a “substantial or operative reason” (see Barclay at [62]). Their Honours found (at [65]):
65. …The appellant discharged the burden cast upon it to show that the reason for the adverse action was not a prohibited reason, and that Mr Barclay’s union position and activities were not operative factors in him being required to show cause…
(See also the judgment of Gummow and Hayne JJ: Barclay at [104])
In Barclay, Gummow and Hayne JJ relevantly said (at [127]-[128]):
127. In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision‑maker at the time the adverse action was taken which was the focus of the inquiry.
128. Whilst it is true to say, as do the respondents, that there is a distinction between discharging the onus of proof and establishing that the reason for taking adverse action was not a proscribed reason, there is nothing to suggest that the conclusions drawn by the primary judge, and the findings and reasons upon which these were based, did not take this into consideration. As Lander J concluded, if the reasons for the conclusions and the facts for which they were formulated are not challenged, then the contravention of s 346 cannot be made out. This proposition should be accepted. To hold otherwise would be to endorse the view that the imposition of an onus of proof on the employer under s 361(1) creates an irrebuttable presumption at law in favour of the employee.
(Footnotes omitted)
Finally, in State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184, the Full Court of the Federal Court of Australia said (at [32]):
32 As the trial judge recognised the leading authority on the operation of ss 360 and 361 of the Fair Work Act in the context of Part 3-1 of that Act (which includes s 351) is Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500. The principles which informed this decision were recently reaffirmed by a majority of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41. Relevantly, these authorities establish that:
· The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
· That question is to be answered having regard to all the facts established in the proceeding.
· The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
· It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
· Even if the decision-maker gives evidence that he or she acted solely for non‑proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
· If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.
Barclay at 517 (French CJ and Crennan J); 542 (Gummow and Hayne JJ); 545-6 (Heydon J) and CFMEU at [19]-[22] (French CJ and Kiefel J); [85]-[89] (Gageler J).
Who was the decision-maker?
The Applicant submits that Mr Corkery was the decision-maker. The Respondent argues that the decision-maker was Ms Lisa Mesiti, who was the Group Human Resources Operations Manager at the time of the termination of the Applicant’s employment.
In her affidavit, Ms Mesiti deposes that she was contacted by Mr Corkery in or around 24 December 2015.[53] Ms Mesiti deposes that Mr Corkery spoke to her over the phone about terminating the Applicant’s employment during his training period, as his view was that the Applicant was not suitable for the position. Ms Mesiti says she advised Mr Corkery that the Respondent would not terminate the Applicant’s employment on Christmas Eve. Ms Mesiti told Mr Corkery to send her all of the information relating to the Applicant upon which he was basing his decision that the Applicant should be dismissed. Ms Mesiti deposes that, on around 29 December 2015, she had a conversation with Mr Corkery who advised her that he still wished to terminate the Applicant’s employment during his probationary period, as he was not suited to his position with the Respondent.
[53] The Affidavit of Lisa Mesiti filed on 20 December 2016 at [3]-[4].
Ms Mesiti said that Mr Corkery advised her as follows:[54]
[54] Ibid at [5].
a. The Applicant commenced employment on 7 July 2015 as a Manager in Training;
b. The Applicant’s six month probationary period would finish on 6 January 2016;
c. The Applicant had been subject to some discriminatory behaviour which had been investigated and resolved;
d. The Applicant had worked at the Respondent’s Southland store from his commencement until 29 November 2015;
e. On 30 November 2015 the Applicant worked from the Respondent’s Glen Waverly store;
f. While at the Southland store and Glen Waverly store the Applicant had shown a lack of leadership maturity and ability. Mr Corkery explained that the Applicant was selfish in nature, would put the team off-side, was very confrontational and made poor decisions such as performance managing an employee for arriving five minutes late for work on one occasion.
g. The Applicant’s performance had improved since commencing at the Glen Waverly store however it was still below the required level for a Manager in Training at the end of their probationary period; and
h. The Applicant was behind in his training, which showed a concerning lack of commitment to his role and to his success at Michael Hill.
Ms Mesiti deposes that following her conversation with Mr Corkery, she checked that the employment details that Mr Corkery had provided were correct, checked the Applicant’s employment history on his employee file, and spoke to her lawyers to confirm that the Respondent could proceed to terminate the Applicant’s employment.[55] Ms Mesiti said that, after considering this information and obtaining appropriate advice, she advised Mr Corkery via phone that he could proceed with the termination of the Applicant’s employment and provided him with a copy of the termination letter by email. Mr Corkery confirmed in his evidence-in-reply that Ms Mesiti prepared the termination letter, and that he signed it.
[55] Ibid at [7]-[8].
Ms Mesiti’s oral evidence was as follows:
a)prior to 24 December 2015 she was not aware of any issues involving the Applicant;
b)having been informed of the investigation conducted by Ms Forsyth into the allegations of racial conduct by Ms Mesch to the Applicant, she looked into the matter;
c)there were three issues in particular which she understood formed the basis for Mr Corkery’s opinion that the Applicant was not suitable for his role and that his employment should be terminated. These issues were his failure to complete training, the inconsistency in his sales performance, and his leadership ability and approach;
d)she did not merely accept Mr Corkery’s view that there were issues with the Applicant’s sales performance and training. Ms Mesiti said that the Respondent’s Human Resources Managers were required to approve a decision. She stated that she independently examined the Respondent’s training system (“the Clarity training system”), which records the training completion, and she also examined the Respondent’s dashboard system (“the Friedman dashboard program”), which records all of the sales performances of the Respondent’s staff;
e)in a lengthy cross-examination about the records of the Applicant’s sales performance, Ms Mesiti said that when she examined the Applicant’s sales performance on the Friedman dashboard program, she ascertained that over the 25 week period the Applicant worked with the Respondent, there were 13 gold stars and 12 red dots. She explained that the Respondent’s approach was to assess the weekly performance, and in her view, the Applicant’s sales performance was inconsistent. Ms Mesiti said that the system for sales performance took into account any absences. She confirmed that she had looked at the results produced by the system and did not have regard to matters such as whether the Applicant’s performance on a particular week might have been affected by racial discrimination. Ms Mesiti was cross-examined about the Applicant’s performance in each month. Ms Mesiti repeated her response regarding the focus on weekly performance, and relevantly stated as follows:[56]
[56] Transcript of proceedings 25 July 2017, p.145, l.24-27, 33-38.
Ms Mesiti: …when we look at the Friedman results what we really want to see is that there’s a trend towards gold stars consistently because it shows that the employee understands the selling steps and then can demonstrate them and apply them consistently.
…
Michael Hill is a tough environment. I will be honest. In terms of a sales culture, it has a strong sales culture. There’s humility and compassion that comes with that. But it is a retail sales business, and for our sales professionals there is an expectation that they sell. For our managers in training there’s an expectation that they sell and they know the selling system well enough that they can actually teach others how to sell.
f)the role of Human Resources in approving a dismissal was to ensure that the decision reached by a Manager that a person’s employment should be terminated was both fair and legal.
Ms Mesiti gave her evidence in a straightforward manner. She is no longer employed by the Respondent, and I am satisfied that the evidence she gave is evidence that the Court can rely on.
I am satisfied that Ms Mesiti was, in fact, the ultimate decision-maker. It is clear that although Mr Corkery decided in or around 24 December 2015 that the Applicant’s employment should be terminated, without the approval of Ms Mesiti, the Applicant’s employment would not have been terminated.
I am satisfied that Ms Mesiti was aware of the investigation and the results of the investigation into the Applicant’s formal complaint that he had been subject to racially based conduct by Ms Mesch, as she read that in the material she accessed. However, I am not satisfied that she was aware of the other complaints that the Applicant relies on as being an exercise of his workplace right. There is no evidence to suggest (and I reject any suggestion) that the reason, or one of the reasons, for Ms Mesiti’s approval of Mr Corkery’s proposal that the Applicant be dismissed was the fact the Applicant made a formal complaint that he had been subject to racially conduct by another employee.
There was no argument by the Applicant that Ms Mesiti decided to terminate the Applicant’s employment because of his race and/or national extraction, or because he took temporary absence from work because of illness. Consequently, I find that Ms Mesiti’s decision to terminate the Applicant’s employment was not influenced by the Applicant’s race and/or national extraction, or because he took temporary leave from work for illness.
However, although Ms Mesiti was the ultimate decision-maker and I have accepted her evidence that she verified Mr Corkery’s views about the Applicant’s failure to complete training and his inconsistent sales performance against the Respondent’s sales performance and training systems, there can be no doubt that Ms Mesiti accepted Mr Corkery’s views about the Applicant’s capacity to demonstrate leadership ability.
In Leahey v CSG Business Solutions (Aus) Pty Ltd [2017] FCA 1098, Lee J relevantly said (at [103]-[106]):
103. Before moving on, it is appropriate to pause to consider the principled approach to be taken to assessing decision-making when various individuals are involved. In Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251, the Full Court considered a situation where two supervisors assessed an employee for redundancy by reference to identified criteria. A third person, a general manager, then made the ultimate decision to terminate the employment of the employee. It was explained that if either of the supervisors’ assessments was influenced by a prohibited reason, that would have impugned the decision of the general manger, even though the prohibited reason had not been disclosed to him. In doing so, at 260 [37] the Court explained that one supervisor made “an indispensable contribution to the rankings” and both supervisors “co-operated in a joint assessment, with each giving an account of what influenced them individually”. If one supervisor “was influenced in giving a low mark by a prohibited reason, it can be assumed that if the ranking were done without having regard to that prohibited reason” then this would, inevitably, have, affected the ranking process, whatever the views of the other supervisor. Furthermore, whatever debate there might be about the extent of the general manager’s power or involvement in the decision, the manager’s evidence was that he took the supervisors’ assessment and worked from there. It followed that if the supervisors’ assessment was affected (or infected) by either supervisor holding an undisclosed prohibited reason, then the general manger “would have, in effect, inadvertently adopted it so that its force continued regardless of the lack of any express prohibited reason in the mind of” the general manager (at 260 [37]).
104. In dealing with the Full Court’s decision in Kodak, in Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; (2015) 253 IR 166, Reeves J observed (at 198 [121]) that:
… where the reasoning process is dispersed through an assessment process involving a number of persons…the judgment in Kodak requires me to examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision. This inquiry…focuses on the conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. If one or more of the reasons employed by one or more of them was a prohibited reason, that will impugn the ultimate decision. This is what I consider the Full Court meant by “inadvertently” adopting an “undisclosed prohibited reason” in Kodak…
(references omitted)
105. It follows from the above that, notwithstanding my finding about the ultimate decision being made by Mr Thomas, it is necessary that I give separate attention to the question of whether CSG has proved that Mr Ramsay, in assessing the performance of Mr Leahey (and providing any input to Mr Thomas in making the decision), was not actuated by a prohibited reason.
106. Such an approach does detract from the principles explained by the High Court in Barclay. The approach to determining the reasons of Mr Thomas does not involve an objective test, nor does it take account of any unconscious reasons. However, it is common ground that, at the very least, the decision of Mr Thomas was the culmination of a process involving the input of Mr Ramsay. As Reeves J explained in Clermont Coal at 198 [120]-[121], the authorities place the relevant focus on the reasoning process that led to the ultimate decision. This means where the decision was made by one person, based on one incident, “the task is relatively straightforward”. On the other hand, where the reasoning process is dispersed through an assessment process involving a number of persons, “the task is much more complicated”. In such a case, examination is to take place of the reasoning process of each person whose involvement “had a material effect on the ultimate decision”. This relevant inquiry focuses on the “conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons”.
In cross-examination, Mr Corkery said that the training period for a MIT was a period of 12 months. Mr Corkery said that four months of the training focused on the Respondent’s professional selling system, and then there was a further eight months of training which comprised the Respondent’s management program.
Mr Corkery agreed that the Applicant had completed his training on time, until mid-November 2015. Mr Corkery further agreed that the completion of modules after that date, such as “Phase 1 -Mission 3: Managing Standards of Performance – In-Store Activity”, would require the assistance of the MIT’s store manager.
Mr Corkery accepted that the Applicant’s absence from work on sick leave for the first week of December 2015 would be a reasonable excuse for the Applicant to not meet training that week. Mr Corkery did not accept that the fact that the Applicant had issues with Ms Clarke excused his failure to complete training in the second half of November 2015. Mr Corkery said that, in his opinion, the Applicant had the support of Ms Clarke, as was evident in the coaching logs.
Counsel for the Applicant put to Mr Corkery that the Applicant had been the subject of racial discrimination by Ms Mesch, and had difficulties dealing with Ms Clarke. It is not clear why the racially offensive conduct of Ms Mesch towards the Applicant would have affected his capacity to complete the management program modules in the second half of November 2015. The evidence is that the Applicant would require the assistance of the relevant store manager in completing those modules.
The agreed evidence before the Court is that, following the mediation on 5 November 2015, the relationship between the Applicant and Ms Clarke had improved, and that his issues with Ms Clarke’s manner had largely been resolved. I am satisfied that from mid-November 2015, the Applicant was being coached by Ms Clarke. This is evident from the evidence contained in the Applicant’s “Employee Performance Log/Verbal Warning” completed by Ms Clarke in November 2015. In his evidence, the Applicant did not claim that Ms Clarke had refused to assist in the completion of these management program modules, nor was this put to Ms Clarke during cross-examination. The Applicant further did not give evidence that Ms Mesch’s racially offensive behaviour toward him impeded on his ability to meet the training timetable. Consequently, I am not satisfied that there was a reasonable excuse for the Applicant’s failure to complete the training modules specified for the second half of November 2015.
The Applicant’s explanation for his failure to complete the online training in December 2015 was that he had a discussion with Mr Shorten at the Glen Waverley store, as follows: [75]
The Applicant: …I said, “In this module I need a manager to sit with me, because I can’t do it by myself. Can you help me?” And then [Mr Shorten] said to me, “Look, you know, this is December, this is really busy time for us, you know, we should really concentrate on the Christmas sale,” blah, blah, blah, “but let’s make a time.” So [Mr Shorten] made a time with me to do it on 10 January…
[75] Transcript of proceedings 24 July 2017, p.33, l.20-24.
I find the Applicant’s explanation for his failure to complete the online Clarity training during the period that he was at the Glen Waverly store to be unconvincing. This explanation was given by the Applicant during his evidence-in-chief. In my opinion, the delivery of this evidence was extremely casual, given its significance to the Applicant’s case. In addition to this, I find it implausible that Mr Shorten, the Store Manager (who is presumably familiar with the MIT KPIs and his responsibilities to assist a MIT in the management training modules on the Clarity training system), would not find time over a period of one whole month (from 8 December 2015 to 10 January 2016) to assist the Applicant in completing his modules.
Consequently, I do not accept the Applicant’s evidence that Mr Shorten would not provide him with assistance in completing the relevant modules in the Clarity training system in December 2015.
The Applicant’s submission in relation to the issue of training is as follows:[76]
[76] The Applicant’s Closing Submissions filed on 23 August 2017 at [86]-[92].
86. Mr Corkery gave evidence that as at mid-November 2015, the Applicant was up to date with his training.
87. Mr Corkery stated that, despite the Applicant having been the subject of racial discrimination and having set “loose” guidelines as to the completion of training, it was inexcusable that the Applicant had not completed the training by the end of November 2015.
88. However, this is contradictory to evidence provided by Mr Corkery that the Applicant had 12 months to complete all training. Further, Mr Corkery acknowledged that a manager took part of the responsibility for ensuring the training was completed.
89. Further, under cross-examination Mr Corkery could not provide evidence as to the dates by which certain training was to be completed:
You have already said you don’t know what early December is. Early December is when he is supposed to finish mission 4 and you don’t know when early December ends?---I don’t.
90. The Applicant gave unchallenged evidence that he was directed by Mr Shorten that they would both sit down and carry out the Applicant’s training on 10 January 2016. Mr Corkery stated in the witness box that the Applicant would have had to comply with such a direction.
91. Under cross-examination Mr Corkery stated that if Mr Shorten had told the Applicant they would discuss the training in January 2016 the training could not form part of the reasons for dismissal.
92. Accordingly, on the evidence before the Court the failure to complete training is not an honest or credible reason for the Dismissal and cannot be relied upon by the Respondent to rebut the Presumption.
(Footnotes omitted)
There is no dispute that the Applicant was up-to-date in his training as at mid-2015.
Mr Corkery did not give evidence that the Applicant had 12 months to complete his training. Mr Corkery’s evidence was that the training program went for a period of 12 months, and that trainees were required to meet the timetable set for various modules.
I have found that the Applicant did not give evidence that the conduct of Ms Mesch affected his ability to meet the training timetables. I have rejected the Applicant’s contention that the “issues” he had with Ms Clarke impacted on his ability to obtain assistance in completing modules from mid-November to the end of November 2015. I also have not accepted the Applicant’s explanation for not completing the modules of the training program in December 2015.
Accordingly, I am satisfied that the assessments of Ms Mesiti and Mr Corkery that the Applicant had not completed the required training modules to be genuine, and soundly based.
The Applicant’s leadership ability
In his Supplementary Affidavit, Mr Corkery set out his observations of the Applicant’s lack of leadership as follows:[77]
[77] The Supplementary Affidavit of Marshall Corkery filed on 20 July 2017 at [14].
a. Being bossy – From my observations of the Applicant, he took the attitude and often said to his staff words to the effect “I’m the boss, when I ask you to do something you just need to do it”. A MIT would be expected to educate staff, lead and empower them, which was not demonstrated by the Applicant.
b. Lack of communication – An example I witnessed was when the Applicant was required by Ms Clarke to put a window display up. Instead of undertaking this, the Applicant simply barked at another staff member to get it done. The staff member, whose name I do not recall, started to set up the display, then said that the display should consist of double-pieces. The Applicant replied with words to the effect of “I’m the boss and you will do what I say”. Further, the Applicant would not bring up issues with a person directly concerned but would instead go and talk about those issues with other people.
c. Lack of empathy – An example of this, which I witnesses, was when Ms Mesch arrived at the store late twice, one time she was five minutes late and another time she was about 10 or 15 minutes late. The Applicant had a complete lack of empathy and his exact words to Ms Mesch were “I just want to write you up”. There was no time taken by the Applicant to sit Ms Mesch down and find out why she was late and her reasons behind it.
d. Need to take credit – The behaviour I witnessed directly was the Applicant’s need to take credit for sales and for closing a sale instead of assisting staff and praising staff on their part in that process. For example, I recall that on one occasion he assisted a staff member’s (successful) sale, then did not congratulate or praise the staff member at all. When I asked him how the sale went, he replied “I’m glad I went in, I was able to close it.”
e. Self focused – The Applicant was self-focused as opposed to team focused, as you would expect of a team leader. A lead should be praising staff instead of being concerned with how those staff affect him.
f. Micromanaging – The Applicant would dictate to staff members to get things done in a specific way even if the staff members had been in the store a lot longer than him. The behaviours demonstrated that the Applicant was not prepared to listen to staff. For example, I recall hearing him dictate to a staff member the precise words that a staff member should say to customers, when he should have helped the staff member come up with their own wording to use.
g. Rarely praised others – The Applicant rarely praised others and in multiple visits to the store I had never observed the Applicant praise another staff member.
h. Lack of personal accountability – If I addressed a performance issue or result with the Applicant specifically, he would blame someone else or something else. I recall that during one of our regular weekly catch-ups, I asked the Applicant how his last week had gone (he had not performed well that week). He replied with words to the effect that it was a bad week because one of the other staff members (whose name I cannot recall) “got all the good customers.”
i. Poor listening skills – I recall that on one visit to the store, approximately three months in, the Applicant asked me how to [sic] a basic lay-by. I showed him, but was shocked because this is covered in the first week of training (which he had completed by that stage). I asked Christine Clarke why the Applicant did not know how to do this, and she replied that she had explained to the Applicant how to do this many times, but he kept asking her about it. She said that this was not an isolated problem, the Applicant was often asking the same questions over and over again.
j. Not dealing straight with his team members – On numerous occasions I either observed or had complaints of the Applicant talking behind other staff members’ backs as opposed to approaching them directly to deal with an issue of concern he had which creates distrust in the team which was a leadership issue.
k. A sense of knowing it all – The Applicant demonstrated on a number of occasions that he only had basic selling skills but that he would try to tell others what they were doing was wrong or tried to coach others, where he did not know the basics himself. The Applicant would not listen to others when they had input into any process and the Applicant’s attitude was that he knew better than others.
Mr Corkery agreed that he attended the Southland Store around once a month. He said that in addition to these actual observations, he was in a position to review the Applicant’s performance specified under the eight KPIs for managers on a weekly basis. Mr Corkery said that he also relied on Ms Clarke’s day-to-day observations of the Applicant. In his evidence-in-chief, the Applicant agreed that Mr Corkery had discussed with him the leadership issues during the meeting at which he was given the letter terminating his employment.
Mr Corkery has described the leadership skills as “soft skills.” In my opinion, the evidence is that leadership ability includes the demonstration of selling behaviours which are capable of being subject to statistical analysis (see [174] above). Obviously, deficiencies in the leadership skills identified by Mr Corkery in his Supplementary Affidavit are not capable of measurement. These are leadership skills which are set by the Respondent. It is not open to the Court to decide whether or not the expectations reflect appropriate leadership skills. The question before the Court is whether the Applicant met the Respondent’s expectations of leadership skills required to be demonstrated by MITs.
Having regard to the evidence, I am satisfied that the Applicant did not meet the Respondent’s requirements for leadership ability. This is apparent from the behaviours open to statistical measurement. In addition, I found Mr Corkery’s explanation to me of his observations of the Applicant’s lack of leadership, and his explanation about what was expected by the Respondent, to be plausible.
With respect to the Respondent’s evidence about his leadership ability, the Applicant submitted as follows:[78]
[78] The Applicant’s Closing Submissions filed on 23 August 2017 at [101]-[102], [113]-[114].
101. The Applicant submits that the leadership issues relied upon by Mr Corkery are clearly a fabrication or at the very least a dishonest exaggeration. The leadership issues “being bossy” and “lack of communication” are clearly unconvincing, and wholly at odds with Mr Corkery’s assertion that the Respondent operates a high-pressure sales environment. The same is said of the Applicant demonstrating a “lack of empathy” and the vast majority of other leadership concerns.
102. The Applicant submits that the purported leadership issues have been created after the fact to justify dismissal. Mr Corkery’s evidence has been shown to be dishonest and the leadership issues cannot be accepted as an honest or credible reason for the Dismissal and cannot be relied upon by the Respondent to rebut the Presumption
…
113. Further, Mr Corkery conceded that leadership issues such as a “need to take credit”, “poor listening skills” and “not dealing straight with his team members” were all heavily predicated on the input of Ms Clarke.
114. It is apparent that Mr Corkery’s decision was largely dependent upon the feedback provided by Ms Clarke, the employee who had been the subject of bullying complaints by the Applicant. In addition, both he and Ms Clarke were aware that the Applicant had been the subject of racially offensive behaviour and that those allegations had been substantiated.
(Footnotes omitted)
I reject the Applicant’s contention that the leadership issues identified by Mr Corkery were “fabricated”.
I am satisfied that certain leadership skills (such as demonstration of selling behaviours) were measurable, and were also reflected in the Applicant’s “Employee Performance Log/Verbal Warning” document.
I agree that Mr Corkery was, to a large extent, reliant on feedback from Ms Clarke about the Applicant’s demonstration of his leadership capacities. However, I do not accept that Ms Clarke’s feedback was influenced by the Applicant’s “bullying” complaint against her. The evidence is that after the mediation on 5 November 2015, Ms Clarke was proactive in altering her manner toward the Applicant. Ms Clarke’s performance management of the Applicant continued for one month thereafter. Furthermore, the evidence is that Ms Clarke was only aware of Ms Mesch’s racially offensive behaviour on 30 November 2015; very shortly before the Applicant went on sick leave and commenced working at the Glen Waverly Store. There is no evidence before the Court that Ms Clarke’s performance management of the Applicant was influenced by the racially offensive conduct of Ms Mesch toward the Applicant.
In his evidence-in-chief, the Applicant was asked to respond to Mr Corkery’s statement at [13] of his Supplementary Affidavit that:[79]
13. As to Paragraph 38 of my Initial Affidavit, I spoke to Marc Shorten the then Manager of the Glen Waverley store about the performance of the Applicant during the period he had been at the store. Mr Shorten informed me of the issues of concern he had in respect of the Applicant and his discharge of his duties as a MIT. These issues were consistent with what Ms Clarke, the Applicant’s Manager at the Southland store had advised me. In regards to the Applicant’s sales performance, this was still inconsistent…
[79] The Supplementary Affidavit of Mr Corkery filed on 20 July 2017 at [13].
The Applicant said that Mr Shorten did not pass on these concerns to him. Mr Shorten may not have conveyed to the Applicant, during the very short time period that the Applicant worked at the Glen Waverly store, his concerns regarding the Applicant’s performance. This does not mean, however, that Mr Shorten did not convey his concerns about the Applicant’s performance, including his leadership capacity, to Mr Corkery.
The Applicant denied that any performance issue could have been based on the performance of his duties at the Glen Waverly store. The Applicant gave evidence that, upon being aware that the Applicant’s employment had been terminated, Mr Shorten had told the Applicant that he really liked him, that he was a really good worker, and that he would give him a reference if he wanted one. However, the Applicant then gave evidence that when he asked Mr Shorten for a reference, Mr Shorten told him that he was told by Human Resources that he was not to give the Applicant a reference. The Applicant said that Mr Shorten, however, told him that he would be happy to be a referee for him.
On the evidence, I am satisfied that the decision of Ms Mesiti that the Applicant lacked leadership ability required on a MIT, which was influenced by the views and the decision of Mr Corkery, and which was reliant on the feedback of Ms Clarke and Mr Shorten, was genuinely and soundly based.
Having regard to the evidence, I find that the termination of the Applicant’s employment on 5 January 2016 was not for a reason or reasons which included the reason the Applicant exercised his workplace rights to make a complaint or inquiry in relation to his employment.
There being no submissions on these issues, and in light of my findings regarding the reasons given by the Respondent for terminating the Applicant’s employment, I find that the Applicant’s employment was not terminated because he was temporarily absent from work because of illness from 1 December 2015 to 7 December 2015. I further find that the Applicant was not dismissed because of his race and/or national extraction.
Conclusion
I find that the Applicant exercised a workplace right within the meaning of s.341(1)(c)(ii) of the Act on the following occasions:
a)30 October 2015 (the Third Complaint);
b)5 November 2015 (the Fourth Complaint);
c)30 November 2015 (the Fifth Complaint);
d)1 December 2015 (the Sixth Complaint);
e)3 December 2015 (the Seventh Complaint); and
f)18 December 2015 (the Tenth Complaint).
I find that the Applicant was subject to racially offensive conduct by an employee of the Southland Store.
I find that the Applicant was absent from work because of illness from 1 December 2015 to 7 December 2015.
I find that the Applicant was subject to adverse action when his is employment with the Respondent was terminated on 5 January 2016.
I find, for the reasons set out in this judgment, that the termination of the Applicant’s employment on 5 January 2016 was not for a reason or reasons which include:
a)he exercised a workplace right; or
b)his race and/or national extraction; or
c)he took temporary leave due to illness.
Accordingly, I find that the Respondent did not contravene ss.340, 342 and/or 351 of the Act.
An Order will be made dismissing the Application made by the Applicant on 14 April 2016.
I certify that the preceding two hundred and fourteen (214) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 1 February 2018
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