Dolata v Victorian YMCA Community Programming Pty Ltd
[2023] FedCFamC2G 722
•17 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dolata v Victorian YMCA Community Programming Pty Ltd [2023] FedCFamC2G 722
File number: MLG 3255 of 2020 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 17 August 2023 Catchwords: INDUSTRIAL LAW – allegation of breach of general protection provisions– adverse action – termination of employment – casual employee – exercise of workplace rights – whether Applicant was no longer offered shifts by reason of or for reasons including the exercise of his workplace rights – whether the Applicant was dismissed due to poor work performance – Respondent discharged onus pursuant to s 361 of the Fair Work Act 2009 (Cth) - application dismissed Legislation: Fair Work Act 2009 (Cth) ss 117, 123, 335, 340, 341(1), 342, 342(1), 343, 344, 346, 347, 348, 351, 352, 360, 361, 386, 387, 722 and 793 Cases cited: Board of Bendigo Regional Institute of Technical & Further Education v Barclay & Anor [2012] HCA 32
Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014
Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limit (No 2) [2017] FCA 1046
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184
WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 95 ALR 681
Division: Division 2 General Federal Law Number of paragraphs: 92 Date of hearing: 31 January and 1 February 2022 Place: Melbourne (by videoconference) The Applicant: Self-represented litigant Counsel for the Respondent: Mr Denton Solicitor for the Respondent: HWL Ebsworth Lawyers ORDERS
MLG 3255 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DANIEL DOLATA
Applicant
AND: VICTORIAN YMCA COMMUNITY PROGRAMMING PTY LTD
Respondent
order made by:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
17 August 2023
THE COURT ORDERS THAT:
1.The Application filed on 4 September 2019 is dismissed.
2.Any application for costs shall be made in accordance with r 22.02(1)(b) and Pt 22 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
HER HONOUR JUDGE C.E. KIRTON KC
INTRODUCTION
By an application filed in this Court on 4 September 2020 (Application), the Applicant, Mr Daniel Dolata (Applicant), alleged that Victorian YMCA Community Programming Pty Ltd (ACN 092 818 445) (Respondent), contravened s 340 of the Fair Work Act 2009 (Cth) (FW Act).
The substance of the Application is that adverse action was taken against the Applicant by dismissing him from casual employment for exercising a workplace right in the form of making complaints. The Applicant also claimed that the Respondent breached various other provisions in the FW Act. The Applicant sought compensation. The Respondent denied contravening the FW Act and that the Applicant was entitled to any relief, and sought that the Application be dismissed.
ISSUES FOR DETERMINATION
The issues that are to be determined in this matter are as follows:
(a)Whether the Respondent contravened s 340 of the FW Act by dismissing the Applicant for exercising a workplace right pursuant to s 341(1)(c)(ii) of the FW Act to make a complaint;
(b)Whether the Respondent contravened various other provision of the FW Act as claimed by the Applicant in relation to the disciplinary meeting held by the Respondent on 21 November 2018, the formal warning issued to the Applicant by the Respondent on 21 November 2018, and the Applicant’s WorkCover claim filed 5 December 2018 and bullying allegations against employees of the Respondent; and
(c)Whether the complaint letter sent by the Applicant to the Respondent on 29 November 2018 and/or the Applicant’s WorkCover claim were substantial or operative reasons for the termination of the Applicant’s employment with the Respondent.
SYNPOSIS
I have determined the following:
(a)Adverse action was taken against the Applicant in the form of dismissal;
(b)The Applicant exercised his workplace rights;
(c)The Applicant was not dismissed from employment with the Respondent because of or for reasons including the exercise of his workplace rights;
(d)The Respondent did not contravene the FW Act by dismissing the Applicant;
(e)The Respondent did not contravene any other provisions of the FW Act as claimed by the Applicant; and
(f)The Applicant is not entitled to relief.
BACKGROUND
The Applicant commenced employment with the Respondent in 2013. The Applicant was employed by the Respondent as a casual Centre Duty Manager and Lifeguard at the Dandenong Oasis Leisure Centre (Dandenong Centre).[1] The Applicant’s responsibilities included: opening and closing the Dandenong Centre, providing security for the pool area, managing lifeguards and ensuring various aspects of safety in areas of the Dandenong Centre.[2]
[1] Court Book, filed by the Respondent 27 January 2022 (CB), 3-11; Application – Fair Work Division, filed by the Applicant 4 September 2020, Form 2, 3.
[2] CB 19 and 93-98; Affidavit of Daniel Dolata (Applicant), sworn and filed 8 October 2020 (Applicant’s 8 October 2020 Affidavit), [7] and Annexure “DD-18”.
The Respondent is a charitable organisation that provides various community programs and services. Relevantly, the Respondent operates the Dandenong Centre. The Respondent has a dedicated Human Resources team (HR Team). The following people are relevant to these proceedings:
(a)Mr Travis Sauer, who was employed by the Respondent from 23 January 2017 and the Area Manager at the time of the Applicant’s employment (Mr Sauer).
(b)Ms Sandra McAlpine, who was employed by the Respondent from June 2014, and was the Operations Coordinator and manager of the Applicant at the time of his employment (Ms McAlpine).
(c)Ms Ansie Teirney, who was employed by the Respondent from November 2014, and was the Centre Manager at the time of the Applicant’s employment (Ms Teirney).
(d)Mr Daniel Chu, the Dandenong Centre Director (Mr Chu).
The Applicant reported to Ms McAlpine, who reported to Mr Chu and Ms Teirney.
On 10 January 2018 Ms McAlpine and a colleague had a meeting with the Applicant due to ongoing concerns regarding the Applicant’s work performance.[3] Ms McAlpine deposed that the Applicant’s performance concerns at the time included: continually arriving late at work; not wearing his ‘bum bag and radio as required’; not attending training sessions; talking ‘for extended periods of time on the pool deck’; and not assisting other employees when required.[4] The Applicant was placed on a Performance Improvement Plan (PIP) and advised that his progress would be monitored. A further meeting was held on 7 February 2018 to review the Applicant’s PIP.[5]
[3] CB 295; Affidavit of Sandra McAlpine, sworn and filed 12 April 2021 (McAlpine Affidavit), [6]-[7].
[4] CB 295; McAlpine Affidavit, [6].
[5] CB 295; McAlpine Affidavit, [8].
In October and November 2018 the Respondent received various complaints from patrons and co-workers in regards to the Applicant’s conduct at work. The complaints included the following:[6]
[6] CB 221-222 and 272-274; Affidavit of Ansie Teirney, affirmed and filed 12 April 2021 (Teirney Affidavit), [10]-[16] and Annexure “AT11”.
(a)On 24 October 2018 an employee of the Respondent reported that the Applicant made disparaging comments to her about three (3) employees involved in the management of the Respondent. These employees included Ms McAlpine and Mr Chu.
(b)On 31 October 2018 a number of employees of the Respondent reported hearing the Applicant talking to another employee negatively about three (3) employees involved in the management of the Respondent. These employees included Ms McAlpine and Mr Chu.
(c)On 1 November 2018 a lifeguard for the Respondent made a formal complaint in relation to the Applicant. The lifeguard alleged that she was abused by a patron who accused her of not supervising his nine (9) year old son. The lifeguard also alleged that the Applicant witnessed the patron yelling and abusing her and did not assist or intervene, as he was required to do. The lifeguard complained that she felt ‘attacked and threatened’ during the abuse, whilst the Applicant ‘just watched the incident/abuse happen’.[7]
(d)On 9 November 2018 a lifeguard for the Respondent made a complaint to her supervisor that the Applicant did not assist in helping her enforce the Respondent’s policy that patrons wear a wrist band in the spa.[8]
(e)On 11 November 2018 the Applicant arrived 50 minutes late to his duty manager shift to open the Dandenong Centre. As a result there was no one present to open the pool and patrons could not enter.
(f)On 12 November 2018 the Applicant arrived late to his lifeguard shift.
(g)On 12 November 2018 the Applicant was seen standing at reception for 10-15 minutes of his shift.
(h)On 13 November 2018 the Applicant arrived 36 minutes late to his duty manager shift.
(i)On 14 November an employee of the Respondent made an email complaint summarising issues raised by other employees regarding the Applicant failing to complete wristband checks and not being seen during periods of his shifts.[9]
(j)On 16 November 2018 the Applicant did not attend his shift and did not notify the Respondent or organise a colleague to cover his shift.
[7] CB 273: Teirney Affidavit, Annexure “AT11”.
[8] CB 243-244; Teirney Affidavit, Annexure “AT5”.
[9] CB 247-249; Teirney Affidavit, Annexure “AT7”.
Consequently, on 20 November 2018 Ms Teirney invited the Applicant to participate in a formal disciplinary meeting with Ms Teirney and Ms McAlpine on 21 November 2018 (Disciplinary Meeting).[10] The Applicant requested that Mr Sauer attend the Disciplinary Meeting however Mr Sauer was on leave at the time. The Applicant was advised that he could nominate and bring another support person, or reschedule the Disciplinary Meeting. The Applicant asked if he could record the Disciplinary Meeting and Ms Teirney advised that recording was not permitted. Notwithstanding this advice the Applicant recorded the Disciplinary Meeting without the permission of the other participants at the meeting.
[10] CB 223 and 251-262; Teirney Affidavit, [19] and Annexure “AT8”.
On 21 November 2018 the Applicant attended the Disciplinary Meeting with Ms Teirney and Ms McAlpine.[11] Ms Teirney confirmed with the Applicant that he wanted to continue without a support person. Ms Teriney discussed the Applicant’s complaints raised in [9] as well as allegations by colleagues that the Applicant was exhibiting an inappropriate attitude and spreading rumours. Ms McAlpine documented the Disciplinary Meeting.
[11] CB 269-271; Teirney Affidavit, [21] and Annexure “AT10”.
At the conclusion of the Disciplinary Meeting, Ms Teirney determined that the Applicant’s response was inadequate and therefore the Applicant was issued with a formal written warning (Formal Warning) for reasons including: continued unsatisfactory performance, ongoing lateness, taking extended breaks, being judgmental and spreading rumours, and failing to enforce policy.[12] The Formal Warning described the Applicant as having “continued unsatisfactory performance in the workplace” and included information that further recurrence or no attempt to improve performance would result in further disciplinary action, which may include termination. The Formal Warning outlined what improvement was expected to take place. The Applicant’s conduct and progress was scheduled to be reviewed on 11 December 2018.
[12] CB 134 and 136-138; Affidavit of Applicant, sworn and filed 4 March 2021 (Applicant’s 4 March 2021 Affidavit), [8] and Annexure “DD26”; CB 224 and 272-274; Teirney Affidavit, [25] and Annexure “AT11”.
On 27 November 2018 the Respondent received a formal complaint from a patron regarding the Applicant’s failure to provide first aid assistance whilst he was on duty (Patron’s Complaint).[13] The patron also made a formal complaint to the local council which required the Respondent to resolve the issue and included seeking a meeting with and apology from the Applicant. The Patron had sustained a severe cramp whilst swimming and described that she had asked for assistance and “it had been about 10 minutes and no one turned up so she made the decision to go and get changed as she was cold, despite still having a severe cramp”.[14]
[13] CB 224 and 275-282; Teirney Affidavit, [27] and Annexures “AT12” and “AT13”.
[14] CB 281; Teirney Affidavit, Annexure “AT13”.
On 28 November 2018 the Respondent invited the Applicant to attend a meeting on 3 December 2018 to discuss the Patron’s Complaint.[15] The Respondent attached its Disciplinary and Termination Policy (Disciplinary Policy) to the meeting invitation.[16] The Applicant was advised by Ms Teirney that his shifts were covered by other employees for the period from 29 November 2018 to 3 December 2018.[17]
[15] CB 225 and 283-284; Teirney Affidavit, [28] and Annexure “AT-14”.
[16] CB 225; Teirney Affidavit, [28]; CB 121-131; Applicant’s 8 October 2020 Affidavit, Annexure “DD25”.
[17] CB 23; Applicant’s 8 October 2020 Affidavit, [9(u)].
On 29 November 2018 the Applicant wrote to the HR Team regarding the Disciplinary Meeting (Complaint Letter)[18]. The Complaint Letter concerned the Applicant’s grievances with the Disciplinary Meeting and alleged bullying conduct by Ms Teirney and Ms McAlpine. The Respondent submitted that neither Ms Teirney nor Mr Sauer were notified of the Complaint Letter.
[18] CB 26 and 42-46; Applicant’s 8 October 2020 Affidavit, [19] and Annexure “DD4”.
On 3 December 2018 the Applicant attended a meeting with Ms Teirney and Mr Chu, where he was presented with the incident report and witness statements in relation to the Patron’s Complaint. The Applicant denied any wrongdoing. The Applicant was invited to attend a further meeting on 6 December 2018 with Ms Teirney and Mr Sauer, and was encouraged to review the Disciplinary Policy.[19]
[19] CB 225 and 285-286; Teirney Affidavit, [28]-[30] and Annexure “AT15”.
The Applicant was suspended with pay from 3 December 2018 until the scheduled meeting on 6 December 2018 and the completion of the investigation into the Patron’s Complaint.
On 5 December 2018 the Applicant filed a WorkCover Claim (WorkCover Claim) and submitted a certificate of capacity (First Certificate of Capacity) and a doctor’s certificate to the HR Team. The First Certificate of Capacity advised the Respondent that the Applicant was not fit to work from 5 December 2018 to 18 December 2018. Consequently no meeting was held on 6 December 2018. [20] The Respondent “did not finalise the disciplinary processes” as it was “put on hold whilst the WorkCover Claim was dealt with”.[21] The Applicant was not rostered on for any further shifts and never attended for work with the Respondent again. The Respondent contended that the Applicant was dismissed from employment on 5 December 2018, which the Applicant disputed. No written notice of dismissal was provided to the Applicant at this date.
[20] CB 225 and 287-289; Teirney Affidavit, [31] and Annexure “AT16”.
[21] CB 225; Teirney Affidavit, [30].
On 6 December Ms Teirney was advised that the Applicant filed the WorkCover Claim. It was only after receiving a copy of the WorkCover Claim that Ms Teirney became aware that there were bullying claims made by the Applicant.[22]
[22] CB 225; Teirney Affidavit, [31].
On 21 December 2018 the Applicant submitted another certificate of capacity declaring him unfit for work until 15 January 2019.[23]
[23] CB 79-81; Applicant’s 8 October 2020 Affidavit, Annexure “DD13”; CB 143; Applicant’s 4 March 2021 Affidavit, Annexure “DD28”.
On 4 January 2019 the Applicant’s WorkCover Claim was rejected on the basis that the Respondent’s actions constituted reasonable management action. The Applicant appealed the rejection of his WorkCover Claim.
On 8 February 2019 Mr Sauer sent an email to the Applicant stating: “I wanted to reach out and see how you are doing”; and “The YMCA are committed to assisting you in your return to work at Dandenong Oasis”.[24] On 9 February 2019 the Applicant replied and explained how he was feeling. On 12 February 2019 Mr Sauer replied stating “[I] want to assure you that when the time is appropriate and you are back to full capacity we are committed to formally investigating any allegations you would like to raise”. [25]
[24] CB 27, 77-78; Applicant’s 8 October 2020 Affidavit, [28] and Annexure “DD12”.
[25] CB 77-78 and 143-145; Applicant’s 8 October 2020 Affidavit, Annexure “DD12”; Applicant’s 4 March 2021 Affidavit, Annexure “DD28”.
On 13 February 2019 the Applicant submitted another certificate of capacity stating that the Applicant was unfit to work.[26]
[26] CB 72-73; Applicant’s 8 October 2020 Affidavit, Annexure “DD10”.
On 25 February 2019 the WorkCover Claim was resolved at a conciliation conference during which Mr Sauer was in attendance.[27]
[27] CB 84-85, Applicant’s 8 October 2020 Affidavit, Annexure “DD15”.
In or around late February 2019 Mr Sauer and Ms Teirney met in person. Mr Sauer advised Ms Teirney that the WorkCover Claim was resolved and that the Respondent’s Workers’ Compensation Manager said that there was no obligation for the Respondent to return the Applicant to the workplace. Mr Sauer and Ms Teriney expressed the view to each other and agreed that the Applicant should not be offered any more shifts because of ongoing concerns with his performance and conduct.[28] The Applicant was offered no further casual shifts and did not contact the Respondent seeking further casual shifts.
[28] CB 210 Affidavit of Travis Sauer, affirmed 9 April 2021 and filed 12 April 2021 (Sauer Affidavit), [10]-12]; CB 226; Teirney Affidavit, [32]-[34].
On 14 March 2019 the Applicant submitted a certificate of capacity by email to Mr Sauer stating that he had capacity for ‘suitable employment’.[29]
[29] CB 74-75; Applicant’s 8 October 2020 Affidavit, Annexure “DD11”.
On 8 January 2020 the Applicant filed a Stop Bullying Application against the Respondent and Ms Teirney with the Fair Work Commission (FWC Bullying Application). During conciliation on 2 March 2020 the Applicant discontinued his FWC Bullying Application on the basis that he was no longer employed by the Respondent. The Applicant claimed that this was the first time he was made aware by the Respondent that he had been terminated from employment and advanced that 2 March 2020 was therefore the date of his dismissal.[30]
[30] CB 27; Applicant’s 8 October 2020 Affidavit, [31]-[36].
On 17 March 2020 the Applicant filed a general protections application involving dismissal with the Fair Work Commission.[31]
[31] CB 28; Applicant’s 8 October 2020 Affidavit, [40].
On 26 May 2020 the Fair Work Commission, pursuant to s 365 of the FW Act, conducted a Conciliation Conference between the Applicant and the Respondent, which was unsuccessful.[32]
[32] CB 17; Certificate under Section 368.
HEARING BEFORE THE COURT
This matter was heard before the Court on 31 January 2022 and 1 February 2022 by videoconference (Final Hearing). The Applicant appeared in person without legal representation and with the support of a McKenzie Friend.[33] Mr Denton of Counsel appeared for the Respondent. At the Final Hearing the Applicant was the only witness in his case and the Respondent relied on the evidence of three (3) witnesses. Each of the Respondent’s witnesses filed an affidavit prior to the Final Hearing and was cross examined.
[33] Orders made on 31 January 2022 by Her Honour C.E. Kirton QC, Order 2.
EVIDENCE AND DOCUMENTS RELIED ON BY THE PARTIES
The Court has before it a Court Book numbering 323 paginated pages, filed by the Respondent on 27 January 2022 (Court Book). The Court Book included the following documents.
Documents Relied on by the Applicant
The Applicant relied on the following documents at the Final Hearing:
(a)The claim articulated in the Form 2 which was filed with the Application (Claim);
(b)Affidavit of the Applicant, sworn and filed 8 October 2020;
(c)Affidavit of the Applicant, sworn and filed 4 March 2021;
(d)Affidavit of the Applicant, sworn or affirmed and filed 24 January 2022;[34]
(e)Applicant’s List of Objections, filed 27 January 2022 (Applicant’s List of Objections);[35] and
(f)Applicant’s Outline of Submissions, filed 21 January 2022.
[34] The Affidavit of the Applicant, sworn or affirmed and filed 24 January 2022 was not included in the CB.
[35] The Applicant’s List of Objections, filed 27 January 2022 was not included in the CB.
Documents Relied on by the Respondent
The Respondent relied on the following documents at the Final Hearing:
(a)The Response, filed 28 October 2020;
(b)Affidavit of Sandra McAlpine, sworn and filed 12 April 2021;
(c)Affidavit of Ansie Teirney, sworn and filed 12 April 2021;
(d)Affidavit of Travis Sauer, affirmed 9 April 2021 and filed 12 April 2021;
(e)Respondent’s List of Objections, filed 19 January 2022 (Respondent’s List of Objections); and
(f)Respondent’s Outline of Submissions, filed 19 January 2022.
Objections to Evidence
On 31 January 2022, the first day of the Final Hearing, the Court heard objections as to evidence at the commencement of the hearing. The Respondent relied upon the Respondent’s List of Objections and the Applicant relied on the Applicant’s List of Objections.
The Respondent objected to parts of each of the affidavits filed by the Applicant. The Court agreed with some of the Respondent’s objections and accordingly parts of each of the Applicant’s affidavits were struck out.[36] The balance of the objections raised in the Respondent’s List of Objections were dismissed.
[36] Orders made on 21 January 2022 by Her Honour Judge C.E. Kirton QC, Orders 3, 4 and 5.
The Applicant objected to parts of each of the affidavits filed on behalf of the Respondent. By consent parts of each of the affidavits filed by the Respondent were struck out.[37] The balance of the objections raised in the Applicant’s List of Objections were dismissed.
[37] Orders made on 31 January 2022 by Her Honour Judge C.E. Kirton QC, Orders 6, 7 and 8.
The Applicant gave evidence in chief by adopting his three (3) filed affidavits and was cross-examined. The Respondent’s three witnesses all gave evidence in chief by adopting their filed affidavits and were cross-examined.
At the Final Hearing I ordered that the Respondent file a complete bundle of the authorities which the Respondent relied upon.[38] The Respondent sent through a bundle of authorities to my Associates’ Chambers by email but did not file it with the Court. Judgment was reserved on 1 February 2022.
[38] Orders made on 1 February 2022 by Her Honour Judge C.E. Kirton QC, Order 1.
The Court has read and reviewed the transcript of the Final Hearing prior to finalising these Reasons for Judgment.
THE STATUTORY SCHEME
Item 1 of section 342 of the FW Act defines “adverse action” as follows:
342(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.
There is no dispute that the Applicant was an employee of the Respondent under s 335 of the FW Act. It is not contested in these proceedings that the dismissal of the Applicant from his employment was “adverse action” for the purposes of s 342 of the FW Act.
Section 793 of the FW Act deals with liability of bodies corporate. It relevantly provides that any conduct engaged in on behalf of a body corporate by an officer employee or agent of the body within the scope of his or her actual or apparent authority is taken, for the purposes of the FW Act, to have been engaged in also by the body corporate. Subsections (2) and (3) relevantly deal with how the state of mind of a body corporate is established. There is no dispute regarding the authority of Ms Teirney and Mr Sauer as decision-makers and the liability of the Respondent.
Section 340 of the FW Act precludes “adverse action” being taken against another because, amongst other things, that person has exercised, or purported to exercise, a workplace right. Section 340 relevantly provides that:
Section 340 Protection
340(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.
Section 341(1) of the FW Act defines the circumstances in which a person has a workplace right as follows:
Section 341 Meaning of Workplace Right
341(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.
Sections 360 and 361 of the FW Act facilitate proof by an applicant of a claim of adverse action. Section 360 recognises that some adverse action might be taken for a variety of reasons, including reasons unrelated to the reasons that Part 3-1 of the Act proscribes. In order to be actionable under Part 3-1 of the FW Act, it is sufficient that relevant adverse action is taken for reasons that include such proscribed reasons.
Section 361 creates a rebuttable presumption concerning the proof, in any given case, of the reasons for which adverse action was taken. If, in an action alleging conduct was engaged in in contravention of Part 3-1 of the FW Act, it is alleged that a person took or is taking action for a particular reason or with a particular intent, and taking that action for that reason or with that intent would constitute a contravention of that Part 3-1 of the Act, it is presumed that the conduct was engaged in for that reason, unless or until the person who engaged in it proves otherwise.
The purpose of the rebuttable presumption is to cast onto respondents the onus of proving that which is peculiarly within their knowledge. The reverse onus can be discharged if the Respondent gives evidence that a prohibited reason was not a substantive reason for the adverse action and the Court accepts that evidence. The leading authorities of: Board of Bendigo Regional Institute of Technical & Further Education v Barclay & Anor [2012] HCA 32; State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; and Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limit (No 2) [2017] FCA 1046 provide the following relevant principles:
(a)The central question is one of fact and can be articulated as why was the adverse action taken?
(b)The focus of the enquiry is the actual reason or reasons which motivated the decision-maker and whether the alleged prohibited reason was a substantial and operative reason for taking the adverse action.
(c)The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker.
(d)The inquiry is not concerned with mere causation, in the sense that it is not sufficient that there is a factual or temporal connection, however this may necessitate some consideration.
(e)The test does not involve any objective element as the Court must make a finding of fact as to the true reasons of the decision-maker.
(f)Direct testimony by the decision-maker greatly assists the enquiry but the evidence of the decision-maker may be determined to be unreliable. The evidence of the decision-maker may be accepted as reliable and discharge the burden imposed on the employer by s 361 of the FW Act.
(g)Where there are multiples reasons for adverse action, the prohibited reason must a substantial and operative factor.
(h)It is not necessary for the decision-maker to establish that the reason for the adverse action was entirely dissociated from the relevant protected workplace right.
(i)The Court must have regard to all the relevant facts and circumstances and inferences available.
ADVERSE ACTION
Applicant’s cause of action
The Applicant claimed that adverse action has been taken as follows:
(a)The Applicant sent the Complaint Letter; and
(b)The Applicant filed the WorkCover Claim; and
(c)On the basis of the exercise of the workplace right in (a) and/or (b), the Respondent dismissed the Applicant in contravention of the FW Act.
If the Applicant establishes the following matters then the reverse onus in s 361 of the FW Act is enlivened.
(a)Adverse action was taken;
(b)The Applicant had a workplace right; and
(c)The Applicant in fact exercised that workplace right.
Was adverse action taken against the Applicant?
There is no dispute between the parties that the Respondent dismissed the Applicant from employment as defined by s 386 of the FW Act. The dismissal of the Applicant constituted adverse action within the meaning of s 342(1) of the FW Act.
The Applicant and Respondent disagreed about the date of dismissal. The Respondent submitted that the date of dismissal was 5 December 2018, the date the Applicant last attended work, as he was a casual employee. The Applicant submitted that he believed he was employed with the Respondent until 2 March 2020 when the Respondent’s lawyer informed him at the Fair Work Conciliation Conference referred to in [27] that he had been terminated.[39] The Applicant contended that he had not been dismissed or terminated but also stated that he was told he had been dismissed on 2 March 2020.[40]
[39] Transcript P45:L24-40.
[40] Transcript P45: L40-P46:L3-12.
The Applicant’s shifts were covered from 20 to 21 November 2018 in order to alleviate stress on the Applicant.[41] The Applicant’s last shift was on 28 November 2018.[42] The Applicant was effectively suspended with pay by the Respondent pending investigation into the Patron’s Complaint until 6 December 2018 when a follow up meeting was scheduled.[43] The last day the Applicant attended work was 5 December 2018.[44] The Respondent was under no obligation to offer the Applicant shifts as he was a casual employee.
[41] Transcript P94:L28-30.
[42] CB 14; Respondent’s Response filed 28 October 2020, [7].
[43] Transcript P106:L20-28.
[44] Transcript P45:L10-11.
The Respondent maintained that the Applicant was employed as a casual employee. Written notice was not required to be provided to the Applicant pursuant to s 117 of the FW Act as the Applicant was a casual employee: s 123(1) FW Act. The Applicant worked for the Respondent for five (5) years and performed relatively consistent shifts during this time. The Applicant never sought to convert from casual to permanent employment. Neither the Applicant’s Claim nor written submissions clearly advanced that he should not be treated as a casual employee. When Counsel for the Respondent questioned the Applicant about his pay according to hours of work performed, the Applicant expressed that he was a long term employee and expected ongoing work.[45] A casual employee is an employee who has no “firm advance commitment as to the duration of the employee’s employment or the dates (or hours) the employee will work”: WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 95 ALR 681 at [32] (Rossato). In Rossato at [105] to [106], the High Court held that an employee is not a casual employee if there are “binding contractual terms” or “binding contractual promises” as to the duration of employment or the days (or hours) that the employee will work, and that “ongoing work” meant “an ongoing working relationship after each assignment was completed.” There are no binding contractual promises in these circumstances and therefore having consideration to the totality of the relationship the Applicant is a casual employee.
[45] Transcript P53:L17-20.
On 5 December 2018 the Applicant may have been rostered on for shifts in the future. It cannot be said on the 5 December 2018 any managers of the Respondent determined that the Applicant would not be re-rostered. This is evident by the Respondent’s continued efforts to resolve disputes with the Applicant, Mr Sauer’s emails in February 2019 and the lack of evidence adduced by the Respondent showing that there was no intention to offer the Applicant any more shifts. The employment relationship persisted and the Applicant reasonably expected to have ongoing work after he returned from leave and any outstanding performance management plans were concluded.
The Applicant was treated as an ongoing casual employee until late February 2019. On the Respondent’s evidence it was not until after the WorkCover Claim was concluded on 25 February 2019 that the decision was made that the Applicant should not be offered any further shifts with the Respondent. The evidence demonstrates that in late February, after the resolution of the WorkCover Claim, Ms Teirney had a discussion with Mr Sauer about the Applicant’s employment. At this point in time Ms Teirney and Mr Sauer both determined that the Applicant would not be re-rostered. I am satisfied that the Applicant’s employment with the Respondent remained on foot after 5 December 2018 and came to an end in late February 2019.
The decision to no longer offer the Applicant shifts could be characterised as a prejudicial alteration of the position of an employee but this was not pleaded by the Applicant or raised at the Final Hearing.
Did the Applicant exercise a workplace right?
As outlined above, the ability to make a complaint is a workplace right under s 340 of the FW Act. There is no dispute that the Applicant exercised his workplace rights. The Respondent accepted that the Complaint Letter and WorkCover Complaint both satisfied the elements of s 341 of the FW Act.[46]
[46] CB 318; Respondent’s Outline of Submissions filed 19 January 2022, [24].
Was adverse action taken for reasons including the Applicant’s exercise of workplace rights?
The adverse action must have be taken because the Applicant exercised a workplace right. The Applicant has established that he exercised workplace rights and that adverse action has been taken, therefore the reverse onus is enlivened. The Court assumes that the termination of employment was actioned for the prohibited reason that the Applicant exercised his workplace rights unless the Respondent can establish on the balance of probabilities that that is not true.
The evidence before the Court is that Ms Teirney and Mr Sauer were the decision-makers responsible for the Applicant’s dismissal with the Respondent. Ms Teirney and Mr Sauer gave evidence to the Court in relation to the reasons for dismissing the Applicant.
The reasons of people who may have influenced the final decision should also be taken into account, per Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014. On the evidence, Ms Teirney discussed whether the Applicant should be offered more shifts with Mr Sauer.[47] Mr Sauer and the Applicant did not personally interact whilst carrying out their roles at the Dandenong Centre. Mr Sauer expressed the view, to which Ms Teirney agreed, that the Applicant’s serious performance and conduct issues were critical and justified the Respondent not offering more shifts to the Applicant. Both Mr Sauer and Ms Teirney acted on the understanding that the Respondent was not obligated to offer work to the Applicant as he was casual and that the WorkCover Claim needed to be finalised before the status of the Applicant’s employment was properly considered.
[47] CB 210; Sauer Affidavit, [10]-[13].
Applicant’s alleged reasons for dismissal
The Applicant claimed that he was terminated because of and for reasons including the Complaint Letter and WorkCover Claim. The Applicant briefly outlined when and how the Complaint Letter and WorkCover Claim came about. The Applicant alleged that in early November 2018 he informed Mr Sauer of bullying and he identified what he considered to be various instances of misconduct and miscommunication by the Respondent. The Applicant re-iterated throughout his written and oral evidence that he was dismissed with no reason and it was not communicated to him that he had been dismissed. The Applicant effectively argued that the Complaint Letter and WorkCover Claim were reasons for his dismissal as he did not work after these events and the Respondent repeatedly failed to communicate and follow its policies and procedures.
The Applicant disputed the Respondent’s explanation that he was terminated due to work performance. The Applicant denied any poor performance at work including the allegations that he repeatedly arrived late, acted inappropriately and failed to follow policy and procedure.[48] The Applicant denied being made aware of any complaints about him and contended that the complaints reported by the Respondent were all fabricated.[49] The Applicant denied that he was on a PIP and that he had been invited to any meetings regarding his performance.[50] The Applicant submitted that he had only ever had one warning regarding his work performance, there had been no communication about his work performance, the Disciplinary Meeting was an instance of bullying and the Respondent’s material was not credible.[51] The Applicant claimed that he would have continued to work at the Respondent indefinitely if he had not been dismissed.[52]
[48] Transcript P60:L1-14.
[49] Transcript P60:L24-47; P61:L2-14 and P67:L47.
[50] Transcript P59:L8-28.
[51] Transcript P51:L22-24 and P150:L18-42.
[52] Transcript P54:L13-14.
Respondent’s alleged reasons for dismissal
The Respondent denied that the Applicant was dismissed because of the Complaint Letter or WorkCover Claim. The Respondent submitted that the Complaint Letter relied upon by the Applicant was not known to the decision-makers at the operative time and therefore formed no part of the reasoning for the Applicant’s end of employment. The Respondent submitted that the Applicant failed to squarely put to any of the Respondent’s witnesses that the Complaint Letter or WorkCover Claim were reasons for his dismissal.[53] The Respondent further submitted that if there is a contest of credibility between the evidence of the Respondent’s witnesses and the Applicant then the Applicant’s evidence should be rejected.[54]
[53] Transcript P153:l9-12.
[54] Transcript P157:L35-37.
The Respondent contended that the sole reason the Applicant was terminated was his continued poor performance and misconduct as a casual employee. The Respondent submitted that there was documentary evidence to support Ms Teirney’s alleged reason for dismissal. The Respondent explained that the Applicant engaged in a string of misconduct and poor performance in his final month of work which warranted dismissal by the Respondent. The Respondent explained that the decision to not roster on the Applicant was based on: the history of misconduct, the two separate complaints in November within the space of one month, the Applicant’s denial of all responsibility at the Disciplinary Meeting and the unresolved conduct concerns.
Decision-maker’s reasons for dismissal
The claim before the Court is a general protections claim regarding the Applicant’s dismissal. This matter does not concern any contractual claims or allegations that policies and procedures have been breached. All evidence relating to other claims is irrelevant. All claims of fraud or conspiracy made by the Applicant must be dismissed.
The Applicant has provided minimal, if any, evidence supporting his contention that the Complaint Letter or the WorkCover Claim were reasons for his dismissal. The majority of the evidence provided by the Applicant concerned the Applicant’s issues with and allegations regarding the Respondent’s processes and the alleged bullying conduct of Ms McAlpine and Ms Teirney. The Applicant failed to challenge evidence provided by the Respondent’s witnesses. Under cross-examination the Applicant was prone to exaggeration, evasive in his answers and he refused to accept basic propositions of fact. Ms Teirney and Mr Sauer deposed to their reasons for dismissing the Applicant and their evidence remained largely unchallenged.
The Applicant deposed to having over seven years’ experience in the sports recreational industry and to holding some relevant qualifications.[55] The responsibilities of the Applicant’s role were ensuring patron safety, attending to first-aid incidents, answering questions from patrons and following policies and procedures.[56] The Respondent’s witnesses all acknowledged that the Applicant was friendly and they all deposed to have had good working relationships with him.[57] On the evidence the Applicant understood what his role at the Respondent required and he was experienced in his role and working at the Dandenong Centre.
[55] CB 19; Applicant’s 8 October 2020 Affidavit, [1]-[2].
[56] Transcript P83:L12-27; CB 13; Applicant’s 8 October 2020 Affidavit, [7].
[57] Transcript P84:L2-5.
The Applicant was employed by the Respondent on a casual basis and paid an hourly rate based on hours of work. The Respondent was not obligated to provide the Applicant with a firm commitment in advance about how long the Applicant would be employed for, or the days and hours that the Applicant would work.
Ms Teirney explained that in her role as Centre Manager she would be made aware of and then manage ongoing performance issues when team leaders or operations coordinators could not resolve issues themselves.[58] Ms Teirney was informed on her first day as Centre Manager in June 2018 that the Applicant was already on a PIP. Ms McAlpine explained that based on the shift reports and duty manager reports generated by the Respondent, performance issues are identified and then a PIP with a date for improvement is set.[59] Ms Teirney deposed that in November 2018 she witnessed performance issues by the Applicant which included: arriving late to shifts, receiving complaints from colleagues and patrons, failing to implement policies and failing to fulfil responsibilities.[60]
[58] Transcript P87:L24-27 and P90:L45-46.
[59] Transcript P138:L35-37.
[60] CB 221-22; Teirney Affidavit, [10]-[17].
The Applicant described the Disciplinary Meeting as an ambush.[61] As Ms Teirney deposed, it was the Respondent’s policy that another employee attend the Disciplinary Meeting and that is the reason Ms McAlpine attended.[62] Ms Teirney explained that she did not deny the Applicant a support person and the Applicant did not request another person after it was established that Mr Sauer was unavailable.[63] Ms Teirney offered to move the date of the Disciplinary Meeting but the Applicant chose not to, and before the Disciplinary Meeting started she confirmed that the Applicant wanted to proceed without a support person.[64] I accept the Respondent’s evidence regarding the Disciplinary Meeting.
[61] Transcript P61:30.
[62] CB 223; Teirney Affidavit, [19].
[63] CB 223; Teirney Affidavit, [20].
[64] CB 223; Teirney Affidavit, [20]-[21]; CB 264-265; Teirney Affidavit, Annexure “AT9”.
The Disciplinary Meeting was documented and Ms Teirney followed the correct procedure. No witness statement for the Patron’s Complaint was necessary from the Applicant as the Disciplinary Meeting was documented. The Applicant was provided an opportunity to respond to the complaints, provide his version of events, and hear and reply to the concerns about his work performance. Lateness and issues with colleagues were also raised and the Applicant provided an explanation. The Applicant denied any wrongdoing and maintained that any complaints were fabricated. The Termination Policy was provided to the Applicant to ensure he understood the potential severity of outcomes if his work performance did not improve. The Applicant was well aware that if his conduct did not improve the Respondent would not offer him more shifts and he would be dismissed.
The Applicant covertly recorded the Disciplinary Meeting despite being advised by Ms Teirney that he could not do so. The Applicant justified that the recording was necessary due to his lack of trust of the Respondent and he was unapologetic for his actions. The Applicant refused to admit that the recording was an example of the Applicant not following directions and was evidence of the breakdown of trust and confidence in the employment relationship.[65]
[65] Transcript P58:L29-43 and P59:L1-3.
Based on the evidence before the Court, the Applicant cannot maintain that he was unaware of performance issues or that the Respondent did not communicate concerns with his work performance. It cannot be said that Ms Teirney, Ms McAlpine or any other employees of the Respondent engaged in conduct that was not appropriate to their roles or to the events before them. The Respondent’s grounds for performance management actions regarding the Applicant were not baseless and have been documented.
There were at least ten different instances of poor performance or misconduct carried out by the Applicant. The Applicant refused to accept a single one of them. The Applicant attempted to deflect to other instances of colleagues and managers not abiding by policy and procedures. Complaints about the Applicant were well documented and followed the Respondent’s procedure and the implementation of the PIP was conducted according to the Respondent’s procedure.[66] Ms Teirney documented complaints, invitations and the scheduled catch ups with the Applicant. The Respondent has provided corroborative and credible evidence that the Applicant had a history of poor work performance, poor attitude to the performance concerns and needed extensive performance management action. I accept the evidence of the Respondent that the Applicant had performance issues. The evidence provided by the Respondent as to the Applicant’s poor work performance is compelling in character and well-documented, and the Respondent’s witnesses were credible and their evidence coherent.
[66] Transcript P84.
The Applicant’s shifts were firstly covered by the Respondent from 20 to 21 November 2018 to alleviate stress on the Applicant. From 28 November to 5 December 2018 the Applicant was suspended with pay due the ongoing performance management actions. From 6 December 2018 until 15 January 2019 the Applicant was deemed unfit for work. I accept the Respondent’s evidence that there were reasons other than the WorkCover Claim and Complaint Letter for the Applicant not being offered shifts from December 2018 to January 2019. I further accept the Respondent’s evidence that Ms Teirney and Mr Sauer waited until the resolution of the WorkCover Claim before they reconsidered offering the Applicant shifts.
From December 2018 the Applicant worked at the Respondent’s Somerville Centre and as a gardener.[67]
[67] Transcript P50-51.
Mr Sauer sent emails to the Applicant a few times at the start of 2019 but deposed that he operated on the understanding that under workers’ compensation laws there was no obligation to return the Applicant to the workplace, and if the Applicant returned his performance would continue to be monitored.[68] No return to work plan was given to the Applicant and neither Ms Teirney nor Mr Sauer communicated to the Applicant that he would not be offered any more shifts. Mr Sauer was advised that he should not discuss a return to work plan whilst receiving certificates of capacity and whilst the WorkCover Claim was ongoing.[69]
[68] CB 209; Sauer Affidavit, [7]; CB 77, Applicant’s 8 October 2020 Affidavit, Annexure “DD12”.
[69] Transcript P126:L28-34; P129:L28-30.
Ms Teirney deposed that she was hesitant to provide the Applicant with shifts due to his “significant performance and conduct issues” and the Applicant’s denial of all wrongdoing and inability to accept any of the issues raised.[70] Ms Teirney explained that after the WorkCover Claim was resolved a significant amount of time had passed since the Applicant had last worked (three (3) months) and as a casual employee she did not re-roster the Applicant.[71] Ms Teirney and Mr Sauer discussed and decided to de-roster the Applicant due to the significance of the misconduct issue and ongoing performance issues.[72] Ms McAlpine also asked Mr Sauer whether she was required to roster the Applicant on for shifts and she was advised that there was no obligation as he was a casual with significant performance issues. Mr Sauer was also concerned “whether there was an appetite to return the Applicant to the workplace in light of his previous serious performance and conduct issues”.[73] I find that the evidence before the Court corroborates Ms Teirney’s explanation that “given the Applicant’s ongoing performance and conduct issues I was concerned that the Applicant would not provide other employees and patrons of the [Dandenong Centre] with the necessary service especially while he was working unsupervised”.[74] Given the compelling evidence as to the Applicant’s work performance, I accept the evidence of Ms Teirney and Mr Sauer that the operative reason for not re-rostering the Applicant was misconduct and performance.
[70] Transcript P96; CB 226; Teirney Affidavit, [32].
[71] Transcript P113:L38-41.
[72] Transcript P112:L7-18; CB 210, Sauer Affidavit, [11].
[73] CB 210; Sauer Affidavit, [11].
[74] CB 226; Teirney Affidavit, [34].
I further find that the Complaint Letter and the WorkCover Claim were not substantial and operative reasons for the decision to end the employment relationship with the Applicant. I do not accept the Applicant’s evidence, or lack thereof, that Ms Teirney did not offer him more shifts because of prohibited reasons under the FW Act. The immediate reason for withholding shifts from the Applicant when the WorkCover Claim was filed was the commencement of legal proceedings, the unresolved performance management actions and the Applicant’s doctor’s certificate declaring him unfit to work. The Respondent continued to engage with the Applicant and plan performance management action after the Complaint Letter was received on 29 November 2018. The WorkCover Claim impacted whether the Respondent offered the Applicant shifts during the period from 5 December 2018 to 25 February 2019 due to the ongoing legal proceedings. However the WorkCover Claim cannot be said to have been an active reason for Ms Teirney and Mr Sauer’s decision in March 2019 to not re-roster the Applicant. Relevantly, I also accept the evidence that neither Ms Teirney or Mr Sauer were aware of the details of the Complaint Letter and therefore it could not have been a reason for the Applicant’s dismissal.
I accept the Respondent’s evidence that the decision to no longer offer the Applicant shifts and therefore terminate his employment with the Respondent was not made because of the WorkCover Claim or Complaint Letter.
The Respondent has on the balance of probabilities rebutted the presumption in s 361. The Respondent has proven that the Applicant was not withheld shifts for reasons including the WorkCover Claim or Complaint Letter. The Respondent has provided sufficient evidence that the Applicant was no longer offered shifts with the Respondent by reason of his ongoing performance issues and lack of accountability and understanding in regards to his poor work performance. The Respondent has not contravened s 340 of the FW Act by determining to dismiss the Applicant from casual employment.
APPLICANT’S OTHER CLAIMS
The Claim in the Application cites various provisions in the FW Act. The Applicant did not expand further regarding other claims and contraventions. I accept the submissions made by Counsel for the Respondent as to the relevance and validity of the Applicant’s various other claims as follows.[75]
[75] Transcript P153-P154.
Section 343 of the FW Act requires there to be coercion about a workplace right. Neither the Disciplinary Meeting or the Formal Warning constitute a workplace right as defined by the FW Act or as outlined in case law. There has been no contravention s 343 of the FW Act.
Section 344 of the FW Act concerns undue influence or pressure to make a certain agreement or arrangement. The Formal Warning and the Disciplinary Meeting do not fall within the scope of undue influence in s 344. On the facts, there has been no contravention of s 344 of the FW Act.
Sections 346 and 348 of the FW Act concern protections for people to engage in industrial activity. Section 347 defines industrial activity, and attending disciplinary meetings and signing warnings does not fall within the definition provided by the FW Act. Further, the Applicant has not provided any particulars in relation to this claim. There has been no contravention of ss 346 and 348 of the FW Act.
Section 351 of the FW Act sets out an exhaustive set of protected attributes for discrimination purposes. Lodging a claim and filing bullying concerns are not contained in the discrimination protections. There has been no contravention of s 351 of the FW Act.
Sections 352 and 772 of the FW Act concern termination because of a temporary absence due to injury or illness. In this case there are no injuries or illnesses of a kind prescribed by the FW Act. Further there is an exception regarding absence over three months which would apply to the Applicant. There has been no contravention of ss 352 or 722 of the FW Act.
Section 387 provides criteria for harshness for the Fair Work Commission’s consideration of unfair dismissal. This provision is not relevant to the matter before the Court.
RELIEF
The Applicant sought compensation in the sum of $200,000 for economic and non-economic loss. Given there was no contravention of the FW Act the Applicant is not entitled to any relief.
CONCLUSION
As discussed in these Reasons for Judgment, I am satisfied that the Respondent has discharged the onus, pursuant to s 361 of the FW Act and has established that the Applicant was not dismissed for reasons including the exercise of his workplace rights. The Respondent has not contravened the FW Act.
Accordingly, the Application must be dismissed.
In the event that either party desires to make an application for costs after considering these Reasons for Judgment, any such application should be made in accordance with Pt 22 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 17 August 2023
0
5
1