Eckel v Ballarat Community Health Ltd
[2022] FedCFamC2G 890
Federal Circuit and Family Court of Australia
(Division 2)
Eckel v Ballarat Community Health Ltd [2022] FedCFamC2G 890
File number(s): MLG 2742 of 2018 Judgment of: JUDGE SYMONS Date of judgment: 27 October 2022 Catchwords: INDUSTRIAL LAW – Fair Work – general protections – where applicant exercised workplace rights – where applicant alleges adverse action (refusal to employ) taken as a result – where decision not to employ informed by panel interview process – where one of the panel members did not give evidence at hearing – where evidence of other panel members failed to expose decision-making process – where explanation as to scoring of applicant during interview unsatisfactory – reverse onus not discharged by employer – contravention of s 340(1) of the Fair Work Act 2009 (Cth) established Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 342, 345, 360, 361, 368, 539, 793 Cases cited: Alam v National Australia Bank Limited (2021) 393 ALR 629; [2021] FCAFC 178.
Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd (2020) 296 IR 459; [2020] FCA 893.
Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482; [2001] FCA 3.
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22.
Klein v Metropolitan Fire and Emergency Services Board (2012) 208 FCR 178; [2012] FCA 1402.
Lamont v University of Queensland (No 2) [2020] FCA 720.
Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307; [2013] FCA 908.
Serpanos v Commonwealth of Australia [2022] FCA 1226.
Shea v TruEnergy Services Pty Ltd (No 6) (2014) 242 IR 1; [2014] FCA 271.
Transport Workers’ Union of Australia v Qantas Airways Ltd (2021) 308 IR 244 ; [2021] FCA 873.
Qantas Airways Ltd v Transport Workers’ Union of Australia (2022) 402 ALR 1; [2022] FCAFC 71.
Wong v National Australia Bank Limited [2022] FCAFC 155
Division: Division 2 General Federal Law Number of paragraphs: 147 Date of last submission/s: 27 August 2021 Date of hearing: 25-27 August 2021 Place: Melbourne Applicant In person Counsel for the Respondent Mr N. Harrington Solicitor for the Respondent K&L Gates ORDERS
MLG 2742 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BRENDAN ECKEL
Applicant
AND: BALLARAT COMMUNITY HEALTH LTD
Respondent
order made by:
JUDGE SYMONS
DATE OF ORDER:
27 October 2022
THE COURT DECLARES THAT:
1.The respondent contravened section 340(1) of the Fair Work Act 2009 (Cth) by taking adverse action against the applicant for a prohibited reason by refusing to employ him in the role of Clinical Liaison and Withdrawal Nurse.
THE COURT ORDERS THAT:
2.The proceedings are adjourned to 7 December 2022 at 10:00am for further directions.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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
JUDGE SYMONS:
Introduction and background
By application filed on 12 September 2018, Mr Eckel seeks relief under the Fair Work Act 2009 (Cth) (the FW Act) for alleged breaches of what are compendiously described as “general protections” provisions. He seeks compensation and the imposition of a pecuniary penalty. Mr Eckel had earlier made a complaint to the Fair Work Commission (FWC). On 30 August 2018, Commissioner McKinnon issued a certificate under s 368 of the FW Act.
It is unnecessary, for present purposes, to set out the lengthy detail contained in the “Form 2 Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection” (Form 2) filed by Mr Eckel. This is because, as the matter progressed before me, it became clear (and this was confirmed in Mr Eckel’s closing written submissions) that his case against the respondent, Ballarat Community Health Ltd (BCH), principally involved the allegation that “the development of the Clinical Liaison and Withdrawal Nurse Position is a pretext for dismissal of an employee exerting a workplace right through a submission of application to the Fair Work Commission”.
This allegation seeks, in effect, to challenge two decisions. The first being the decision to create the new role of Clinical Liaison and Withdrawal Nurse (the new role) (which arguably had consequences for Mr Eckel’s extant employment) and the second being the decision not to select Mr Eckel for the new role.
The relative clarity of this claim however belies the rather opaque path that this proceeding travelled through the Court. I will return to this issue later in these reasons. It suffices to say at this point that BCH denies this central allegation and opposes the orders sought by Mr Eckel.
Material relied upon by the parties
Mr Eckel
Mr Eckel relies upon affidavits made on 18 December 2020 (first Eckel affidavit) and 14 April 2021 (second Eckel affidavit). Mr Eckel also sought leave, at the commencement of the hearing, to rely upon a further (third) affidavit that had been made on 6 January 2020 (third Eckel affidavit). BCH submitted that the third Eckel affidavit should not be received as part of the trial affidavit material. I refused Mr Eckel leave to rely on the third Eckel affidavit on the basis that it had been filed in support of an unsuccessful application made by him on 14 January 2020 for leave to amend his Form 2 (which the Court had previously ordered should stand as his points of claim). This application was determined by Judge Mercuri (as her Honour then was) on 5 October 2020. Her Honour found that it would be futile to allow the amendment to proceed for the reason that the proposed amendments sought to raise and prosecute alleged breaches of the Occupational Health and Safety Act 2004 (Vic) in circumstances where that Act contained no power for an individual to take such action (refer Eckel v Ballarat Community Health [2020] FCCA 2714).
At the commencement of the hearing, counsel for BCH, Mr Harrington, indicated that he pressed a number of objections to Mr Eckel’s affidavit material that had been identified in a list of objections provided to the Court and to Mr Eckel. The objections were made on the grounds (in some cases, overlapping) that the evidence was irrelevant, argumentative, expressed a conclusion or opinion or contained hearsay. The objections were directed at paragraphs of the first and second Eckel affidavit and documents and material that was either exhibited to (in the case of the first Eckel affidavit) or embedded within the body of (in the case of the second Eckel affidavit). I indicated to the parties that I would not rule separately on each of the objections but that the character of the material filed would (by way of example, a significant proportion of the first and the second Eckel affidavit contained assertions in the nature of submissions) be taken into account in determining (to the extent that such material was relevant) the weight (if any) to be attributed to it. Mr Eckel was cross-examined on his affidavits.
Ballarat Community Health Ltd
BCH relies upon the evidence of its employees who were involved in the decision-making around the creation of the new role and the decision not to employ Mr Eckel in the new role. These individuals are Robyn Reeves, the former Chief Executive Officer of BCH who affirmed an affidavit on 14 May 2021, Brett Vallance, who is employed by BCH in the position of Alcohol and Other Drug Nurse Practitioner and affirmed an affidavit on 3 August 2021 and Suzanne Powell, who is employed by BCH in the position of Manager Alcohol and Other Drug Services and who affirmed an affidavit on 4 August 2021. Each of these witnesses was cross-examined by Mr Eckel.
Both parties prepared pre-trial submissions and provided final submissions in writing which were augmented by oral submissions at the conclusion of the trial.
Agreed or uncontroversial matters
The following matters are not in controversy or were not challenged in cross-examination.
BCH is an organisation engaged in the business of providing affordable health and community care to the Ballarat and surrounding Grampians region community. BCH is funded by the Victorian Government through the Department of Health, the Department of Families, Fairness and Housing and the Education Department. It also receives funding from the Commonwealth Government through the Departments of Social Services and Health, and the NDIS and a range of other funding sources. As at 2018, BCH employed approximately 230 staff.
BCH operates from six locations across Ballarat and Golden Plains Shire (Smythesdale). These locations provide numerous community health services including, relevantly, alcohol and other drug treatment services (AOD services).
Mr Eckel commenced employment in the role of AOD Withdrawal Nurse in May 2015. Mr Eckel was employed on a part time (2 days per week or 0.4 EFT) basis. Mr Eckel ceased employment with BCH on 30 June 2018. The parties disagree as to the nature of Mr Eckel’s employment (whether ongoing or pursuant to a fixed term contract) which matter is discussed later in these reasons.
On 26 March 2018, Mr Eckel made a General Protections Application Not Involving Dismissal (FWC Application), to the FWC. The FWC Application proceeded to a conciliation conference before Deputy President Hamilton on 16 April 2018 but was later discontinued by Mr Eckel on the understanding that BCH would arrange for the provision of appropriate workplace behaviour training.
In the first half of 2018, the respondent made a decision to create the new role. On 26 May 2018, Mr Eckel applied for the new role. On 12 June 2018, a three-person panel, comprising Mr Vallance, Ms Claire Davies of Windana and Ms Powell interviewed Mr Eckel for the new role. The panel assessed Mr Eckel as not suitable for the new role and it was offered to a different candidate.
The opening and refinement of the applicant’s case
In his opening, Mr Eckel identified his case as involving the contention that BCH had reconfigured the AOD services (resulting in the creation of the new role) because he was looking to pursue concerns in the FWC. Mr Eckel agreed that he had initially been employed by BCH on a fixed term contract which came to an end on 30 June 2015 but said that thereafter, he was employed on a permanent part-time basis.
Mr Eckel’s opening – because of what was said but also what was left unsaid – prompted two principal objections from BCH. The first was to make the point that while an adverse action claim plainly enough had been articulated by Mr Eckel, it was not clear whether Mr Eckel maintained the myriad of other complaints that emerged from his Form F2. These complaints, so far as could be distilled from the 29 paragraph document, included allegations that the respondent had breached: (i) s 44 of the National Employment Standards; (ii) provisions of the Nurses and Midwives (Victorian Public Service) (Single Interest Employer) Enterprise Agreement 2016-2020; (iii) s 345(1)(a) of the FW Act by making misleading representations about Mr Eckel’s workplace rights; and (iv) had engaged in a pattern of systemic bullying.
The second objection was to what BCH characterised as the “shapeshifting element” of Mr Eckel’s case through the emergence of the claim that Mr Eckel had been employed on a permanent part-time basis rather than on a fixed term contract. The respondent noted that the issue of employment status had been raised for the first time, and then only tangentially, in Mr Eckel’s document “Outline of Submissions Supplementary (2)” filed on 17 August 2021. In these submissions, Mr Eckel challenged the authenticity of two documents relied upon by BCH in support of its contention that Mr Eckel was employed pursuant to a fixed term contract. Mr Eckel claimed not to have seen these documents until he had ceased employment with BCH.
BCH submitted that, especially in circumstances where the claims (if substantiated) had serious – quasi penal - consequences, it was entitled to understand the nature and extent of the case against it and, in respect of any statutory causes of action flowing from the nature of Mr Eckel’s employment, these needed to be clearly and precisely articulated.
The first objection was, as noted at the outset, largely resolved by the time that Mr Eckel came to make his closing submissions and it became evident that the focus of his case was on the creation of the new role and the failure of BCH to appoint him to it. However, the second objection raised more difficult questions that, not uncommonly, arise in cases such as this where the applicant is self-represented, and claims are not reduced to or articulated in formal pleadings.
Although Mr Eckel maintained that he had put in issue the character of his employment from the outset, when asked during cross-examination to identify where, in his Form 2, the claim of permanent part-time employment appeared, Mr Eckel identified the following paragraph, [4] as its genesis. This paragraph reads as follows:
The Respondent has also contravened the processes of the Enterprise Agreement covering this position being the Nurses and Midwives (Victorian Public Sector) (Single Interest Employer) which is covered by Part B Consultation, Dispute Resolution and Discipline. Specifically 11.1(a)(b) and (d) where there was no consultation, and where 11.2(d)(i), (ii), (iv), (v) and (vii) applies and 11.2(e)(i) and (iv) where there would be significant effects and 11.3 Consultation Steps and Indicative reasonable timeframes: none of these were undertaken. Further 11.4 there has been no Change Impact Statement prior to consultation as there has been no consultation. The haste and the underdevelopment of the position whereby BHS, a partner in the new position, had yet to have input into the new position when the interviews undertaken for the new position of Clinical Liaison and Withdrawal Nurse reveals that the addition of the Withdrawal Nurse to the position has been carefully calculated to disadvantage the Applicant. The urgency to develop the new position and add my position of Withdrawal Nurse to the position demonstrates contrivance on the part of the Respondent to manufacture the dismissal of the Applicant due to the mounting number of contraventions by the Respondent and that these contraventions were in the process of being dealt with by the Fair Work Commission.
Although I have no doubt that Mr Eckel was genuinely of the belief that this paragraph exposed a claim concerning the nature of his employment, with respect to him, it is not possible in my view (even allowing for a liberal interpretation), to identify a claim of this kind. This paragraph (indeed much of the Form 2 and Mr Eckel’s trial affidavits) suffered from a largess and discursiveness that obscured, rather than clarified, his claims against BCH.
Be that as it may, and in circumstances where the respondent indicated that it was in a position to meet Mr Eckel’s claim concerning the nature of his employment and where the question of the status of Mr Eckel’s employment had the potential to inform the legal character of his primary claims, the parties were permitted to lead evidence and cross-examine on the topic.
The Adverse Action Case
On one level, Mr Eckel’s adverse action case is conceptually simple. He alleges that the decision by BCH to remove him from his role as AOD Withdrawal Nurse and to create and fail to appoint him to, the new role, was actuated (at least in part) by:
(a)Mr Eckel making a complaint on 11 August 2017 to BCH about Ms Powell and Jane Measday, General Manager Social Support for the respondent (August complaint);
(b)Mr Eckel making a complaint in early January 2018 to BCH about Ms Reeves, Ms Measday and Ms Powell (January complaint); and
(c)Mr Eckel making the FWC Application.
The complexity, or perhaps obscurity, arises because, as is not uncommon with cases alleging contraventions of general protections provisions, Mr Eckel demonstrated a propensity to focus disproportionately on matters that, at best, were of passing contextual relevance and at worst, entirely irrelevant to the claims he sought to prosecute. In addition, Mr Eckel’s case was overlaid by complaints both historic and contemporaneous, that BCH operated a hostile workplace, engaged in “systemic bias” against men and was an agent of or “asset” of the ALP and adopted a “dirt-unit” approach. These themes permeated almost every facet of Mr Eckel’s case and operated to distract from what might otherwise have been a straightforward and linear narrative of events.
In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observations of the demeanour of each of the witnesses concerned.[1] I have tried to reach my conclusions as to credibility and reliability, on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[2]
[1] See Evidence Act (1995) (Cth) at s 140.
[2] See Fox v Percy (2003) 214 CLR 118 at 129 [31] per Gleeson CJ, Gummow and Kirby JJ.
In addition, I bear in mind s 140(2) of the Evidence Act 1995 (Cth), which indicates that in applying this standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matters alleged.
In respect of the standard of proof required of the employer to satisfy the onus lying upon it pursuant to s 361(1) of the FW Act, it is the “establishment of a reasonable satisfaction on the preponderance of probabilities”.[3]
[3] See Transport Workers’ Union of Australia v Qantas Airways Ltd (2021) 308 IR 244 at [284].
The legislative framework
Part 3-1 of the FW Act is entitled “General Protections”. Amongst other things, it provides for a range of protections designed to safeguard the exercise of “workplace rights”. One of those protections is recorded in s 340(1) of the FW Act, which provides (and, at all relevant times, provided) as follows:
340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).
Section 342(1) of the FW Act defines “adverse action”. Relevantly, an employer subjects an employee to adverse action if the employer:
(a)dismisses the employee;
(b)injures the employee in his or her employment;
(c)alters the position of the employee to the employee’s prejudice; or
(d)discriminates between the employee and other employees of the employer,
(FW Act, s 342(1), item 1).
Section 341(1) of the FW Act identifies the circumstances in which a person might be understood to possess a “workplace right”. It relevantly provides (and provided) as follows:
341 Meaning of workplace right
...
(1) A person has a workplace right if the person
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee – in relation to his or her employment.
Section 341(2) of the FW Act contains an exhaustive list of process or proceedings under a workplace law or workplace instrument and includes “a conference conducted or hearing held by the FWC” (FW Act, s 341(2)(a)).
Section 360 of the FW Act recognises that some adverse action might be taken for a variety of reasons, including some unrelated to reasons that Pt 3-1 of the FW Act proscribes. In order to be actionable under Pt 3-1 of the FW Act, it is sufficient that relevant adverse action is taken for reasons that include such proscribed reasons.
Section 361 of the FW Act 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 that conduct was engaged in in contravention of Pt 3-1 of the FW Act, a person is accused of having done something for a particular reason and the doing of that thing for that reason would constitute a contravention of that Part, it is presumed that the conduct was engaged in for that reason, unless or until the person who engaged in it proves otherwise.
Section 539(1) of the FW Act is entitled “Applications for orders in relation to contraventions of civil remedy provisions”. Amongst other things, it identifies the provisions of the FW Act that qualify as a “civil remedy provision”. Section 340(1) is amongst them. Section 539(2) of the FW Act confers jurisdiction upon this Court to hear applications for relief relating to contraventions of that section. The Court has the power to grant relief in the nature of declarations, compensation and penalties, amongst other things.
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 authority is taken, for the purposes of the 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.
Issues for resolution
I did not understand BCH to dispute that in making the August complaint, the January complaint or the FWC Application, Mr Eckel exercised workplace rights for the purposes of s 341(1) of the FW Act. Indeed, part of the case advanced by BCH was that the robust response provided by it to Mr Eckel raising various concerns and grievances (in particular the investigation of his August complaint by Susan Zeitz of Peacemaker ADR) was part of the objective factual matrix against which any alleged adverse action should be assessed.
I am satisfied, independently of any concession made by BCH, that Mr Eckel had a workplace right, in that he was able to make a complaint or inquiry in relation to his employment within the meaning of s 341(1)(c)(ii) of the FW Act and that he “exercised” that workplace right when he made both the August complaint and the January complaint. As BCH in its written outline filed on 28 June 2021 acknowledges, the definition of a “complaint” in s 341 of the FW Act is broad/wide (citing Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307 at [141]) and has defining characteristics of the kind identified by Justice Dodds-Streeton in Shea v TruEnergy Services Pty Ltd (No 6) (“Shea (No 6)”) (2014) 242 IR 1 at [29]. These include that the complaint, irrespective of the words used, conveys a grievance, a finding of fault or accusation. It was also suggested in Shea (No 6) at [621] that it might be appropriate to apply some inhibiting factors, including that the “grievance must at least be genuinely held, and where it takes the form of an accusation of fault, the complainant must believe it to be valid”. Although BCH emphasised these limiting qualities in its written submissions, I did not understand it to seriously contend that they applied in the case of Mr Eckel. Although the submission was made by BCH that Mr Eckel came to the Court with various opinions and theories as to the motives and actions of BCH and its employees, it was not put at any time that in the expression of his grievances and accusations of fault, Mr Eckel was anything other than genuine in his belief.
I also find, for the avoidance of doubt, that in making the FWC Application and participating in a conference in the FWC on 16 April 2018, that Mr Eckel had and had then exercised, a workplace right for the purpose of s 341(1)(b) of the FW Act.
The situation regarding the alleged adverse action is more nuanced. Although both parties accept that the relationship of employment between BCH and Mr Eckel ceased on 30 June 2018, BCH says that this was because Mr Eckel’s contract, of a fixed term nature, ran its course. I understand BCH, on this basis, to take issue with the characterisation of what occurred as a “dismissal”. Mr Eckel, on the other hand, alleges that his contract of employment was permanent (or ongoing) in character, and BCH contrived to remove him from his employment by taking at least two decisions that could be understood to alter his position (as employee) to his prejudice; first, BCH developed the new role and in doing so, absorbed Mr Eckel’s role as AOD Withdrawal Nurse and second, BCH refused to employ Mr Eckel in the new role. The net result of these decisions was, on Mr Eckel’s case, a dismissal for the purpose of s 342(1) (item 1(a)) of the FW Act.
Ultimately, I accept the submission of BCH that “the true gravamen” of the case is why Mr Eckel’s employment came to an end. This inquiry necessary involves a consideration of the antecedent decisions and circumstances that led to the creation of the new role and the appointment of an individual (other than Mr Eckel) to it. It also requires the Court to reach a view as to the nature of Mr Eckel’s employment prior to its cessation. The evidence directed at each of these issues is set out below.
THE NATURE OF mR eCKEL’S EMPLOYMENT
Mr Eckel’s case and evidence
As noted above, it was common ground that Mr Eckel commenced employment with BCH in the role of AOD Withdrawal Nurse in May 2015. Mr Eckel also accepted that his initial employment had been pursuant to a fixed term contract which ended on 30 June 2015. This arrangement was reflected in an employment contract that was signed by Ms Reeves and Mr Eckel on 29 and 30 April 2015, respectively and which specified a contract start date of 5 May 2015 and a contract end date of 30 June 2015.[4]
[4] See exhibit “RR-1” annexed to the affidavit of Robyn Reeves affirmed on 14 May 2021;CB 305-318
Mr Eckel told the Court however that when the initial contract expired it was his understanding that it had been extended on an indefinite or ongoing basis so that his employment status was one of permanent part-time employment. Mr Eckel did not produce any documents to substantiate this claim but instead referred to a conversation that he said had occurred in August or September 2015 during which Claire Ryan, his manager at the time, had told him (or words to this effect) that “You’re continuing on a permanent part-time position”. Mr Eckel told the Court that Ms Reeves was also present when the conversation took place. It was Mr Eckel’s evidence that the first time that he understood BCH took a different view of his employment status was when he met with Mr David Stevens, Corporate Services General Manager and Ms Measday, on 2 May 2018. According to Mr Eckel, during that meeting Mr Stevens told him that his contract was terminating as opposed to being rolled over and he was handed a letter (referred to below at [49]).
BCH’s case and evidence
Ms Reeves addressed the topic of Mr Eckel’s employment status in her affidavit. It was her evidence that Mr Eckel’s initial fixed term contract (ending on 30 June 2015) was extended to expire on 30 June 2018 and that this extension was based on the length of the service agreement with the (then) Department of Health and Human Services (DHHS) to provide services to the region via a consortium that comprised BCH, Djerriwarrh Health Service, Hepburn Health Service and Grampians Community Health. The service agreement expired on 30 June 2018.
Ms Reeves produced two documents that she said supported this position. The first was a letter dated 10 June 2015 from Erica Smith, Human Resources Coordinator and addressed to “Brendon Eckle” c/- Ballarat Community Health. It read as follows:[5]
Dear Brendon,
Further to your discussions with Claire Ryan, I am writing to confirm the extension of your fixed-term contract in the AOD Nurse position.
Your contract end date has been reviewed and will now end on 30th June 2018. All other terms and conditions remain unchanged from your previous contract.
Brendon, we thank you for your continued work with the AOD Team.
…
[5] See exhibit “RR-2” annexed to the affidavit of Robyn Reeves affirmed on 14 May 2021; CB 320.
The second document produced by Ms Reeves, which was a companion to the first, was a document bearing the title “Ballarat Community Health Changes to Employment Conditions”.[6] The document identified the staff member as “Brendon Eckle” and contained the following information:
[6] See exhibit “RR-2” annexed to the affidavit of Robyn Reeves affirmed on 14 May 2021; CB 321.
For changes other than minor amendments to change of days or hours of work, all proposed changes must be approved with the Senior Manager or CEO, prior to discussion and approval given to the staff member. Please follow checklist below.
….
Minor Change – Complete the below, staff member to sign and send to CEO
Other Change – Complete the below, send to CEO for approval, then HR will send to staff member
Details Current Employment Details Proposed New Employment Details Position Title: AOD Nurse No change Reporting Manager: Claire Ryan " Program & Cost Centre Number: " Start Date: 1 July 2015 Finish Date (temporary arrangement): 30 June 2015 30 June 2018 Weekly Hours: No change Days Worked: " Hours Worked: " Award & Classification " Relevant Allowances or additional payments: "
Checklist & Approval Responsibility Signed Date Changes discussed and confirmed with CEO Team Leader/CEO Changes confirmed with employee Team Leader Signed Form to HR Team Leader/CEO Letter/Contract sent to employee Human Resources Form and copy of letter/contract to payroll & TL Human Resources Check classification and allowance calculations Payroll Review and Update Roster and Leave Entitlements Payroll Team Leader Signature: Date:
CEO Signature: [signed by Robyn Reeves] Date:
Team Leader Signature: Date:
Staff Signature: Date:
The changes to employment conditions document was signed by Ms Reeves on 5 June 2015. Although it made provision for both a team leader and staff signature, it had not been signed by either Mr Eckel or his team leader at the time, Ms Ryan.
Mr Eckel was taken to these documents during cross-examination. He told the Court that the first time that he had seen a copy of the letter from Ms Smith and the Changes to Employment Conditions document was when he received a suite of documents in around October 2018 from CGU. These documents were provided by way of a response to a claim made by Mr Eckel for workers compensation. Mr Eckel reluctantly agreed that he had not sought to challenge these documents, or more accurately, the position they articulated regarding his employment status, until 17 August 2021 when he filed his Outline of Submissions-Supplementary (2) in this proceeding.
Mr Eckel also made and maintained the, frankly, nonsensical submission that the two documents, despite the fact they referred to the position of AOD Withdrawal Nurse, did not concern him as they adopted an incorrect spelling of his name. His inability to be dissuaded from this view reflected poorly on Mr Eckel’s judgment. Mr Eckel also suggested to Ms Reeves that the document which she signed had been generated on a date that did not coincide with her signature. Ms Reeves denied this suggestion.
Mr Eckel was also taken to a letter prepared by Ms Measday which contained the annotation “date sent 2.5.18” and which read as follows:[7]
[7] See exhibit “RR-9” annexed to the affidavit of Robyn Reeves affirmed on 14 May 2021; CB 365.
Dear Brendan,
Re: Conclusion of Fixed-term Contract as AOD Withdrawal Nurse
As you know, your employment contract with Ballarat Community Health (BCH) is due to conclude on 30th June 2018. I am writing to formally advise you that the current position of AOD Withdrawal Nurse will not be maintained after that date. I therefore confirm that your employment with BCH as AOD Withdrawal Nurse will conclude on 30th June 2018.
However, in order to meet our contractual obligations in non-residential withdrawal as well as care and recovery, BCH has developed two new (0.8 to 1.0 FTE) positions, one of which will absorb the vast majority of the current AOD Withdrawal Nurse’s functions. It is for this reason that the AOD Withdrawal Nurse role will not be maintained. The new position descriptions will be available for your consideration once they are finalised.
It is envisaged that these roles will be advertised to candidates in May 2018. I will let you know when this occurs. All BCH employees are encouraged to apply for one or both of the new roles if within their skills and experience.
I understand that you may be looking for alternative employment in the lead up to your contract coming to an end and BCH is willing to provide you with time away to attend interviews if required. Please let Suzanne know if and when you require such time off.
Brendan, I understand that this news creates uncertainty and I would therefore encourage you to utilise BCH’s Employee Assistance Program. Please let me know if you require any information about this.
…
Mr Eckel acknowledged having read this letter at around the time that it was sent. It was his evidence that he disagreed with the letter’s reference to a fixed-term contract and that he had made his views known during the meeting referred to above that took place between himself, Ms Measday and Mr Stevens on 2 May 2018. Mr Eckel agreed that he had not gone to Ms Reeves to contest the issue of the characterisation of his employment status. He told the Court that he was reluctant to do so given that he had already made a complaint about her.
THE CREATION OF AND MR ECKEL’S APPLICATION FOR EMPLOYMENT TO THE NEW ROLE
Mr Eckel’s case and evidence
The case for Mr Eckel, as can be distilled from the first and second Eckel affidavit, Mr Eckel’s outline of submissions filed 14 May 2021, Mr Eckel’s outline of submissions – supplementary filed 28 May 2021, Mr Eckel’s outline of submissions – supplementary (2) filed 17 August 2021 and Mr Eckel’s closing written submissions, is as follows.
As noted above, on 2 May 2018, Mr Eckel met with Mr Stevens and Ms Measday. During the meeting Mr Eckel was handed a “termination of contract” that identified 30 June 2018 as his last day. Ms Measday indicated the reason for termination was that funding from the DHHS was under threat of being lost because performance targets were not being met. Ms Measday indicated that the AOD Team had not been meeting the Drug Treatment Activity Units (“DTAUs”) but was not able to indicate what Mr Eckel’s DTAUs were.
BCH created a new position named Clinical Liaison and Withdrawal Nurse which included funding from Windana and Ballarat Health Services. Mr Eckel’s own position had included a Dual Diagnosis Liaison Nurse component which had already included liaison with other health service providers Ballarat Health Services and St John of God Hospital.
Mr Eckel submitted an application for the new role to the recruitment agency, Talent Propeller. He did not receive an acknowledgment of the application. Mr Eckel, after querying the lack of acknowledgement with BCH was invited, by “HR”, to submit an application directly to BCH.
Mr Eckel attended an interview on 12 June 2018 with his sister, Mary, also present for support. Mr Eckel was not successful in obtaining the new role.
Mr Eckel considers that the “urgency” in the development of the new role reveals its character as a “contrivance” on the part of BCH to manufacture the dismissal of an employee asserting workplace rights being dealt with by the FWC.
Mr Eckel was cross examined about the content of his two affidavits. Under cross examination, Mr Eckel:
(a)agreed that while working for BCH he was also engaged by Hepburn Health Services as an AOD withdrawal nurse on a part time (2 days per week or 0.4 EFT) basis and that this arrangement had persisted up to the time of his interview for the new role;
(b)agreed that throughout his employment, he maintained an opinion that the respondent’s workplace was one that involved a systemic bias against men;
(c)agreed that he maintained the opinion that the BCH acted as an agent of the ALP and that he (the applicant) had been subjected to the ALP “dirt unit treatment” by BCH;
(d)agreed that on 7 August 2017 he made a complaint against two female managers of BCH– Ms Measday and Ms Powell – and that these complaints were investigated by Susan Zeitz of Peacemaker ADR which culminated in the production of a report dated 18 September 2017 and which found that the complaints against Ms Measday and Ms Powell were not substantiated (“the Zeitz report”);
(e)agreed that on 8 January 2018, he made a further complaint against Ms Measday, Ms Powell and Ms Reeves;
(f)agreed that on 26 March 2018, he made a general protections application not involving dismissal to the FWC which made allegations against Ms Measday and which concerned the same matters that had been the subject of the Zeitz report. The applicant told the Court that he did not agree with the Zeitz investigation and did not accept its outcome;
(g)acknowledged that his application letter for the new role (dated 26 May 2018) contained (on p. 3) the following paragraph which he agreed communicated a negative, but accurate, view of the respondent’s workplace:
I bring specific skill and knowledge to this position and I provide this by way of disclosure. I have suffered a workplace injury in this specific team at BCH and am therefore aware that the values espoused by the organisation are not embraced by this team and line-management. I have endured abrasive, directive, coercive and dismissive behaviours all geared around eroding basic human rights in any setting, but particularly poignant in the juxtaposition within a health setting working often with vulnerable adults and youths.[8]
(h)explained that Ms Powell had engaged in a 15-month campaign (commencing in around March 2017) to construct his dismissal;
(i)agreed that at the beginning of the interview for the new role he had announced to the panel that he had made an application to the FWC which involved the making of complaints about his treatment in employment by the respondent;
(j)agreed (reluctantly) that he told the panel that he would be willing to work (only) one day a week “because working under [Ms Powell] has been very difficult” but that he knew going into the interview for the new role that it was to be a 1 FTE position;
(k)told the Court that there was a conspiracy between each of the three panel members – Mr Vallance, Ms Davies and Ms Powell – to mark him down in the interview process and to ensure that he was dismissed from employment;
(l)when asked to identify the basis for his allegation of conspiracy against Mr Vallance explained that it could be inferred from the comment recorded on the final page of Mr Vallance’s interview notes where he stated: “Looking for job sharing arrangement one day a week at BCH”. The applicant accepted that he had made this comment during the interview.
[8] See exhibit “RR-10” annexed to the affidavit of Robyn Reeves affirmed on 14 May 2021; CB 369.
Even making some allowance for the fact that Mr Eckel was self-represented, he was a poor witness who required frequent direction, re-direction and gave discursive and non-responsive answers to the majority of the questions asked of him. A number of his responses were simply nonsensical. I have referred already to the positon he adopted regarding the spelling of his name in the contract extension documents. However, although Mr Eckel was not an impressive witness, ultimately this was not determinative. Instead, where the statutory presumption was engaged, his evidence was mostly of contextual significance.
The respondent’s evidence
Ms Reeves
By way of response to the case ultimately prosecuted by Mr Eckel, Ms Reeves’ affidavit contained the following evidence:
Ms Reeves was employed by BCH as Chief Executive Officer from 4 January 2005 to 23 November 2018. At the time of affirming her affidavit, Ms Reeves was employed as Executive Support Manager at Inspiro Community Health but when she came to give evidence, Ms Reeves told the Court that she was now retired.
BCH and its partner agencies have delivered AOD services for many years. However, in 2014 the entire AOD treatment system was recommissioned and from 2015 and into 2018, BCH was the lead agency in a consortium of partner agencies that provided a range of adult AOD treatment services across the Grampians region. The available funding among the partner agencies after recommissioning was significantly less than had been available previously.
The service delivery of the consortium was monitored by the DHHS and was assessed quarterly. There was an expectation that the consortium would achieve a score of 100% against the relevant targets. The DTAU metric (referred to earlier at [52]) represented the dollar value provided for the provision of particular units of AOD treatment.
Mr Eckel was required to perform his duties as AOD Withdrawal Nurse across the City of Ballarat and the Shires of Golden Plains and Moorabool. The position occupied by Mr Eckel worked together with the position of case manager (0.5 EFT) to deliver non-residential, or home-based withdrawal services in the eastern end of the region.
On 27 April 2018, the DHHS held a performance review meeting with BCH during which the respondent was placed formally on notice that the consortium risked losing funding if its performance in the delivery of the AOD services did not improve. This was in circumstances where BCH had not met the DHHS non-residential withdrawal targets in 2017/2018.
Around the same time, an agency known as Windana was awarded a tender by the DHHS to deliver a residential rehabilitation centre in Ballarat beginning October 2019. Ms Reeves considered there was a need to establish a referral pathway between the Ballarat Health Service (BHS), the Windana Agency and the respondent to ensure efficient and appropriate interagency referrals and functioning.
Ms Reeves directed Ms Measday to undertake discussions with Windana and BHS aimed at exploring how each organisation could jointly streamline AOD service provision within the region with the introduction of a new residential withdrawal service. As a result of her discussions and having regard also to the performance matters raised by the DHHS, Ms Measday prepared a rationale and business case for suggested changes to the configuration of consortium service delivery.[9]
[9] See exhibit “RR-6” annexed to the affidavit of Robyn Reeves affirmed 14 May 2021; CB 353 -355.
The proposed new service configuration identified in the business case, which included additional funding to be provided by Windana and BHS, would expand the AOD withdrawal nursing role (being the role, performed at that time, by Mr Eckel). The new role included a capacity to address emerging addiction and overdose issues related to prescription medications. This was an opportunity to greatly expand and also better integrate service delivery and interventions. To achieve what Ms Reeves described as a “significant capacity increase” the new role needed to achieve three aims, being: a) incorporate the duties from the AOD withdrawal nurse role, as well as those of the case manager; b) incorporate new non-direct service delivery duties; and c) ensure service continuity between Windana and BHS, as well as other community agencies, to develop new referral pathways and streamline the quality of service delivery to vulnerable client groups.
Ms Reeves identified herself as the person who made the decision to restructure the AOD service delivery model and the decision that the AOD withdrawal nurse position was no longer required. Ms Reeves’ evidence was that this decision was made because: a) there was a need to meet the organisational service delivery expectations of the DHHS; b) in order to develop stronger relationships with the respondent’s partner organisations; c) to focus more effort on issues relating to increasing levels of addiction and fatal overdose among users of prescription medications in regional communities; and d) to improve the treatment quality and outcomes for the vulnerable client groups targeted through these services. Ms Reeves identified the fact that withdrawal nursing targets had not been met in 2017/2018 and that this might impact on future funding from DHHS as a significant consideration.
Both Windana and BHS offered to contribute to the funding of the new role. It was determined that it would ideally be a full-time position and comprise a direct care component (approximately 0.6 EFT), a non-direct service development capacity (approximately 0.4 EFT) and other duties such as working with Windana and BHS to develop new referral pathways and partnership arrangements between the three organisations and other community services.
Ms Reeves explained that this was the context in which Mr Eckel’s position at BCH was rendered excess to requirements and would no longer be required to be performed by anyone. The new role incorporated home based withdrawal duties previously required of Mr Eckel in the AOD withdrawal nursing role but broadened these services to include withdrawal from prescription medications. The new role also incorporated the duties of the part time case management (care and recovery) role. This was also abolished upon the introduction of the restructure.
In her affidavit, Ms Reeves said that in making the decision to change the AOD service delivery structure and make the AOD withdrawal nurse position redundant, she had no regard to, and did not in any way take into account any complaints or enquiries made by Mr Eckel in relation to his employment, Mr Eckel’s sex/gender, marital status, family responsibilities, age, trade union activity or political opinion, or the fact that Mr Eckel filed an application in the FWC.
Ms Reeves also identified herself as the person who made the decision not to employ Mr Eckel in the new role. In this regard, Ms Reeves’ evidence was that Mr Eckel was interviewed for the new role on 12 June 2018 by the three person panel comprising of Ms Powell, Ms Vallance and Ms Davies. Both Ms Powell and Mr Vallance represented BCH and Ms Davies represented Windana.
Ms Reeves read the notes of interview and the panel ratings documents for each candidate.[10] Ms Reeves asked the panel the identity of its preferred candidate. The preferred candidate was not Mr Eckel.
[10] See exhibit “RR-11” annexed to the affidavit of Robyn Reeves affirmed 14 May 2021; CB 372 – 386.
The “ratings” document provided by each panel member for Mr Eckel recorded that he failed to meet the majority of the key selection criteria for the new role.
Ms Reeves, “on the basis of the Eckel interview notes, the Ratings and those notes alone and the Preferred Candidate” confirmed the recommendation of the panel not to offer the new role to Mr Eckel.[11] The decision was dissociated from any complaint or inquiry made by Mr Eckel in relation to his employment, the FWC application or because of Mr Eckel’s sex, marital status, family responsibility, age, trade union activity or political opinion.
[11] See paragraph [60] of the affidavit of Robyn Reeves affirmed 14 May 2021; CB 302.
Ms Reeves was cross examined by Mr Eckel. During that process, Ms Reeves provided some further detail about the creation of the new role, including its objectives, however her evidence was not undermined in any substantial way.
In response to a question from Mr Eckel as to whether she had looked at any other options to reconfigure the AOD service delivery model, Ms Reeves’ evidence was as follows:[12]
…at that time we were trying to consider how on earth we were going to address the fact that we were not meeting our targets and that the Department of Health had threatened to remove funding which was desperately needed in the region, and also how we were going to meet the care and recovery targets. So we looked at lots of different options, but this one was the most advantageous because of the fact that Ballarat Health Services and Windana were also prepared to invest and it promised to deliver the best outcomes in terms of avoiding duplication, streamlining service provision, and relationship development with those particular agencies, one of which was new to the region and one of which had been very difficult to engage in the past.
[12] See transcript of proceedings dated 26 August 2021 p 116 lines 13-22.
Ms Reeves resisted the suggestion put to her by Mr Eckel that the option that BCH settled on was the “easiest and the quickest” way to address the problems.
Mr Eckel put directly to Ms Reeves that she had decided to target him as part of the restructure because he had submitted a complaint to the FWC. Ms Reeves provided an emphatic denial of this suggestion. Likewise, Ms Reeves rejected the suggestion that she had reconfigured Mr Eckel’s position because he had made complaints against her (Ms Reeves).
In relation to the complaint that concerned her, being the January complaint, Ms Reeves told the Court that she was aware of it and that it had involved the decision to engage Marie Harris to provide coaching and development services for Mr Eckel, this being a recommendation that came out of the Zeitz report. Ms Reeves told the Court that she had not seen the complaint as it went to the Board of BCH.
Mr Eckel asked Ms Reeves whether any of the panel members had, in the context of passing on information about the interview process for the new role, spoken to her about the Fair Work application. Ms Reeves denied that this had occurred and agreed with the proposition that this would not have been important [to the selection process].
Ms Powell
By way of response to the case ultimately prosecuted by Mr Eckel, Ms Powell’s affidavit contained the following evidence:
Ms Powell has been employed with BCH since 2008. At the time of affirming her affidavit, she was employed in the position of Manager Alcohol and Other Drug Services and had been in that position since around March 2017.
In May 2018, Ms Powell was appointed to a three person panel to interview and assess candidates for the new role. A position description was provided to Ms Powell at around this time.[13]
[13] See exhibit “SP-2” annexed to the affidavit of Suzanne Powell affirmed 4 August 2021; CB 526 – 529.
On 12 June 2018, the panel (including Ms Powell) convened to interview Mr Eckel for the new role. Ms Powell made notes during the interview and participated in a discussion with the other panellists after the interview had ended. Ms Powell completed a separate assessment document immediately following the interview.
Ms Powell did not consider that Mr Eckel performed well during the interview. In her opinion, he did not meet or exceed many of the selection criteria. The panel discussed Mr Eckel’s performance and each panel member decided that it did not warrant a positive recommendation.
According to Ms Powell, “[t]here was another candidate who performed better during the interview process. We did not recommend Mr Eckel for the role on that basis alone.”[14]
[14] See paragraph [15] affidavit of Suzanne Powell affirmed 4 August 2021; CB 520.
In her affidavit, Ms Powell said that when assessing Mr Eckel’s application for the position and not recommending him for the role, she did not have regard whatsoever to Mr Eckel having previously made complaints about his employment, his application to the FWC or any complaint, or because of his sex, marital status, family responsibility, age, trade union activity, political opinion or because he had contested an election. At the hearing, Ms Powell told the Court in evidence in chief that the first time she had become aware of the FWC application was when Mr Eckel had mentioned it at the interview.
Ms Powell expressly disclaimed any connection between her decision not to recommend Mr Eckel for the new role and the fact that he had made a complaint against her – especially her management of him – on a number of occasions in 2017 and 2018. In relation to the first complaint (being the August complaint), Ms Powell explained that this had arisen out of a complaint that she had received from a client about Mr Eckel’s conduct. Ms Powell raised the matter with Mr Eckel and tried to work through the issue. Ms Powell participated in the investigation conducted by Ms Zeitz in late 2017 and when she attempted to introduce some of the recommendations made in the Zeitz report, this caused more conflict and resulted in the January complaint.
Ms Powell deposed in her affidavit that she was not concerned by these complaints and accepted that Mr Eckel had a right to complain to Ms Reeves if he was upset about a workplace issue.
Ms Powell was cross examined by Mr Eckel. The way in which Ms Powell approached this exercise did not reflect well on her. In saying this, I am mindful that Mr Eckel is not legally qualified and has acted on his behalf throughout the proceedings. Not surprisingly, he lacked the aptitude to always cross-examine efficiently in respect of the salient factual controversies in his application and was re-directed on numerous occasions to focus on matters germane to his case. No doubt this was frustrating for those at the receiving end of his questions. However, when I have reflected on Ms Powell’s evidence and her demeanour when in the “witness box”, it is apparent that her significant dislike or distrust of Mr Eckel inhibited her from providing responsive answers to the majority of the admissible questions asked of her. In particular, Ms Powell was unable to tell the Court, beyond noting an inability to recall, anything about the topics of:
(a)the number of applications received for the new role;
(b)whether the two interviews for the new role took place on the same day;
(c)why Ms Powell had assessed Mr Eckel as having “partially met” a key selection criteria for the new role;
(d)any detail of Mr Eckel’s cover letter and CV provided as part of his application for the new role; and
(e)whether she had considered talking to Mr Eckel about the development of the new role
Similarly, when pressed by Mr Eckel to explain her answer that the new role was not conducive to job sharing, Ms Powell was unable or unwilling to elaborate. What made this lack of recall more remarkable than might otherwise have been the case was that Ms Powell, in cross-examination, told the Court that she, in conjunction with Ms Measday and “the HR department” of BCH had devised the position description for the new role and that once implemented, Ms Powell was to be the line manager of the person appointed to the role. It struck me as unusual that a witness who was identified to provide evidence about the appointment and selection process to a role would demonstrate such a poor recall about matters central to that process. Whether it was indifference about the process or disdain for Mr Eckel the result was the same in terms of the impression that I formed about the reliability of Ms Powell’s evidence.
Mr Vallance
Mr Vallance was also offered by BCH as a witness who could provide evidence about the panel selection process for the new role. Mr Vallance has been employed by BCH since December 2002 and at the time of affirming his affidavit was employed in the position of AOD nurse practitioner. Mr Vallance worked alongside Mr Eckel in the AOD team.
In his affidavit, Mr Vallance recorded that he had participated in a panel interview of Mr Eckel on 12 June 2018 and during that process had taken notes which informed the assessment that he completed immediately following the interview.
Mr Vallance deposed in his affidavit that he formed the opinion that Mr Eckel did not present well during the interview, and he assessed him as meeting one out of the 11 selection criteria. Mr Eckel, on his evaluation, did not exceed any of the selection criteria. According to Mr Vallance, the panel did not recommend Mr Eckel for the new role because of the assessment of his performance in the interview process.
Mr Vallance’s affidavit contained a statement disclaiming any connection between the making of the assessment of Mr Eckel and the recommendation against offering him the new role and Mr Eckel’s political opinions, that he had contested an election or that he had made complaints about his employment, including that he had made an application to the FWC. According to Mr Vallance, none of these matters were discussed during the panel interview.
Mr Vallance was cross-examined by Mr Eckel. During this process, his evidence was not substantially challenged or undermined.
Mr Vallance was taken to his notes of Mr Eckel’s interview and asked to explain what he had meant by his comment that Mr Eckel was “not suitable for this role” and whether it was related to the comment “looking for job sharing arrangement” under which it appeared. Mr Vallance provided the following explanation:[15]
---It was other considerations. So yes, that point above it was part of that, but the others were around – there was a dual role. It was a withdrawal nursing role as well as a capacity development role as well, so I didn’t believe that the capacity development role was sort of demonstrated and through the interview process – so part of that, as well as looking for – looking to work one day a week. It was a full-time role.
[15] See transcript of proceedings dated 26 August 2021 p 100 lines 7 – 12.
In his oral evidence, Mr Vallance again disclaimed any connection between his decision not to recommend Mr Eckel as suitable for the new role and the fact that Mr Eckel had made complaints against the respondent, including a complaint to the FWC.
RESOLUTION
What was the nature of Mr Eckel’s employment?
Although it is regrettable that BCH appears not to have obtained Mr Eckel’s signature (or for that matter, the signature of Mr Eckel’s team leader) on the Changes to Employment Conditions document that was signed by Ms Reeves on 5 June 2015, I am satisfied that from around 30 June 2015 to 30 June 2018, Mr Eckel was employed by BCH on a fixed term contract.
I accept as credible and plausible the evidence of Ms Reeves about the relationship between the AOD Withdrawal Nurse role and the terms of the service agreement in place between BCH and the DHHS. I am satisfied that the contract offered to Mr Eckel was one that reflected this agreement.
The contemporaneous documents produced by BCH, as well as the letter dated 2 May 2018, are consistent with Mr Eckel having been offered an arrangement of this kind. The arrangement itself is consistent with the funding model adopted more generally by BCH. Further, it is not insignificant that Mr Eckel did not seek to challenge either the documents themselves, or the character of his employment, until a very late stage of this proceeding.
The creation of the new role
What flows from this finding is that it cannot be said that the creation of the new role, of itself, brought Mr Eckel’s employment with BCH to an end; instead it came to an end as a result of the effluxion of time. However, the case was nonetheless conducted on the basis that because the creation of the new role and the restructure of the respondent’s AOD services had the result that the role of AOD Withdrawal Nurse, performed by Mr Eckel until 30 June 2018, was made redundant, this decision should be interrogated, as it was one that was obviously inimical to his interests.
However, before such an interrogation is warranted it needs to be first established that there was a relevant adverse action. The respondent, no doubt making allowance for Mr Eckel’s status as a self-represented litigant took a liberal approach to the characterisation of it decision-making and whether it involved the taking of adverse action against Mr Eckel. As noted at [40] above, BCH identified the pertinent question as being why Mr Eckel’s employment came to an end. However, in circumstances where this question has now been answered, the issue becomes whether there is any extant claim that BCH took adverse action against Mr Eckel.
Beyond dismissal, s 342(1) of the FW Act also provides that an employer will take adverse action against an employee if the employer “injures the employee in his or her employment” or “alters the position of the employee to the employee’s prejudice”.
In relation to injury in employment, what is contemplated is that the employer takes an action which has a consequence, namely injuring an employee. It is the consequences of the action, not the action itself which is the injury and that consequence must cause some kind of material harm or detriment to the employee.[16]
[16] Lamont v University of Queensland (No 2) [2020] FCA 720 at [65]-[67].
Here, in circumstances where Mr Eckel’s employment lawfully came to an end on 30 June 2018 and where there was no suggestion made by him (and nor was this reflected in any evidence before the Court) that BCH had engendered in Mr Eckel any expectation that the AOD Withdrawal Nurse role would continue beyond the expiry of his contract, I am not satisfied that the creation of the new role involved an injury to Mr Eckel in his employment. Mr Eckel obtained from BCH precisely what had been promised contractually to him through the conclusion of a fixed term contract of employment.
In relation to whether there had been an alteration of the position of Mr Eckel (as employee) to his prejudice, the authorities stipulate that what is required is that: (i) the employee is, individually speaking, in a worse situation after the employer’s acts than before them; (ii) the deterioration has been caused by those acts; and (iii) the acts were intentional in the sense that the employer intended the deterioration to occur.[17]
[17] Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482 at [54].
Here again, and recognising that this category of adverse action covers not only legal injury but any adverse affectation to, or deterioration in, the advantages enjoyed by the employee in question[18], I am unable to find on the evidence presented in this case, that the creation of the new role satisfied this definition. This is because there was nothing put before the Court that suggested that BCH (as employer) had communicated or engaged with Mr Eckel in such a way that would have engendered in him an expectation that his employment in the role of AOD Withdrawal Nurse (or more generally) would have continued beyond its contractual end date. Although it was Mr Eckel’s case that he thought his employment was permanent in character, there was no objective evidence put before the Court that suggested this was the situation and I have, for reasons explained above, found otherwise.
[18] Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402 at [84].
I wish to record that had I been required to determine whether the decision to create the new role had been actuated by proscribed reasons I would have found to the contrary. The evidence of Ms Reeves on this topic was credible and plausible. I accept that the decision to restructure the AOD services delivery reflected business and funding exigencies connected with the provision of funding from the DHHS and a desire to better service the regional communities and to direct resources to the deepening opioid crisis. Once appraised by the DHHS of its concerns that BCH had not met its non-residential withdrawal targets for 2017/2018 and was, as a result, liable to lose funding, BCH took the sensible step of preparing a business case to work through its options. Nothing in this process suggests, even faintly, that BCH was motivated to remove the role previously occupied by Mr Eckel or that any such objective was driven as a response to his exercise of workplace rights.
Was there a refusal to employ Mr Eckel?
In circumstances where I have found that Mr Eckel’s contract of employment came to an end on 30 June 2018, what occurred with respect to the decision made by BCH not to employ Mr Eckel in the new role can, at its highest, only be understood as a refusal to employ.
Section 342(1), item 2(a) of the FW Act identifies that a prospective employer will take adverse action against a prospective employee in circumstances where the prospective employer refuses to employ the prospective employee.
BCH made the primary submission that there could be no refusal to employ in circumstances where Mr Eckel had made plain to the members of the interview panel that he was only prepared to work one day a week in any future or new employment in the reconfigured structure. This had the result that Mr Eckel was not prepared to accept the position on offer and so there could be no concomitant refusal.
In support of this submission the respondent took the Court to the decision of Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd [2020] FCA 893. However, the primary areas of dispute in that case (beyond the question of liability) concerned whether there had, in fact, been a job vacancy. The Court determined that there had been and that the prospective employer had contravened s 351(1) of the FW Act when it had decided not to proceed with the application of the prospective employee because of his age. The Court (Banks-Smith J) proceeded on the basis that once any controversy regarding the existence of a vacancy had been resolved favourably to the applicant that it was appropriate to direct attention to the question of why the prospective employer had refused to employ that individual.[19]
[19] Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd [2020] FCA 893 at [95]-[96].
I likewise proceed on the basis that where BCH did not contend that there was no job vacancy (and plainly enough there was one) and where BCH made a decision not to employ Mr Eckel to that vacant role, that my focus must turn to the reason why this decision was made.
What was the reason for the refusal to employ?
Identification of the decision maker
Section 341(1) requires a causal link between the adverse action and the exercise or possession of the workplace right. In establishing the causal link, the Court’s task is to identify the actual reason or reasons for the adverse action.
A threshold matter that necessarily shapes this inquiry is the identification of the decision-maker or decision-makers. In this case, although Ms Reeves was designated the “ultimate decision maker” (it was her unchallenged evidence that she made the decision not to offer the new role to Mr Eckel) it was also Ms Reeves’ evidence that this decision was informed by the notes of interview and the panel rating document prepared by each of the three panel members and what Ms Reeves described as the recommendation (of the panel) not to offer the new role to Mr Eckel.
In this respect, the decision-making process more closely resembles that which was under consideration in the decision of Wong v National Australia Bank Limited [2022] FCAFC 155 (“Wong”) in which case the Full Court found that the appellant’s immediate supervisor, notwithstanding he had not made the ultimate decision to terminate Ms Wong’s employment by reason of her poor performance and behaviour, was nonetheless a participant in the decision and his reasons for acting were therefore relevant.
Here, and like in Wong, Ms Reeves based the decision not to offer Mr Eckel the new role on “information, assistance and advice” provided to her by the panel. Some of this material reflected the deliberations of the panel as a whole (producing the recommendation) and some of this reflected the thought process of the individual panel members (this being the interview notes and panel rating document that was considered by Ms Reeves).
Like in Wong, the information provided to Ms Reeves “was adopted by her for its truth” and this information represented a large (if not the entire) part of the information upon which Ms Reeves acted. Indeed, in circumstances where the panel was constituted for the explicit purpose of interviewing and evaluating applicants for the new role it would have been surprising had any different approach been taken by Ms Reeves to the information.
I find that in these circumstances, each of the members of the panel – namely, Mr Vallance, Ms Powell and Ms Davies – contributed to the making of the decision not to employ Mr Eckel in the new role and that their contribution was “significant”, “plainly important”, “major”, “substantial” or “essential”.[20] It was accepted by BCH that the panel members did have a material effect on the decision not to employ Mr Eckel in the new role because Ms Reeves had relied upon their observations and determinations.
[20] See Wong at [83] and see Qantas Airways Ltd v Transport Workers’ Union of Australia (2022) 402 ALR 1 at [221], [225]-[226] but compare Serpanos v Commonwealth of Australia [2022] FCA 1226 at [119]-[120].
It follows that if BCH seeks to displace the statutory presumption creation by s 361 it must demonstrate that the conduct of each of these individuals (in addition to that of Ms Reeves) was not actuated by a reason or reasons prohibited by ss 341(1)(b) or (c) of the FW Act. BCH did not disagree in any fundamental respect with the identification of the relevant decision-makers. It was submitted by counsel for BCH that the upshot of the Full Court’s decision in Qantas Airways Ltd v Transport Workers’ Union of Australia (2022) 402 ALR 1 was that the Court must focus on the conscious reasoning process of those human actors who had a material effect on the ultimate outcome.
How does the Court assess whether a decision maker has been actuated by a prohibited reason?
The decision of Alam v National Australia Bank Limited [2021] FCAFC 178 at [14] contains a useful summary of the principles to be applied in making this appraisal. They include:
…
(d) the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision‑makers to give direct evidence of their reasons for taking the adverse action: Bendigo v Barclay at [43]‑[44];
(e)the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding: Bendigo v Barclay at [41], [45] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, (2014) 253 CLR 243 (CFMEU v BHP Coal) at [7] (French CJ and Kiefel J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, (2015) 238 FCR 273 (CFMEU v Anglo Coal) at [27]; ABCC v Hall at [19];
(f)while the evidence of the decision‑maker as to the reasons for the taking of the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre‑condition: CFMEU v BHP Coal at [192]; Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215, 273 FCR 332 at [72];
(g)the Court’s rejection of the evidence of the decision‑maker as to the reasons for the adverse action will ordinarily be “a weighty consideration and often a determinative consideration” in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action (Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 302 IR 400 at [116]), but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated: ibid; CFMEU v Anglo Gold at [27]; Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333, (2011) 193 FCR 526 at [272]. When there is evidence of a broad range of facts and circumstances, which are not dependent on acceptance of the decision‑maker’s evidence about his or her asserted reason for the dismissal, such evidence must be taken into account in assessing whether the reasons asserted by an applicant were a substantial and operative reason for the action; ibid at [113]; TechnologyOne Ltd v Roohizadegan [2021] FCAFC 137 at [105]‑[106];
(h)even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption: National Territory Education Union v Royal Melbourne Institute of Technology [2013] FCA 451, (2013) 234 IR 139 at [20]; PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, (2020) 274 FCR 225 at [154] (Snaden J);
(i)the decision‑maker’s knowledge of the circumstance asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance: Bendigo v Barclay at [62]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218 at [80] (Jessup J); Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, (2014) 242 IR 1 at [777]. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason: CFMEU v BHP Coal at [20], [87]‑[88]; Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76, (2015) 231 FCR 150 at [32], [47]‑[48] (Jessup J); and
(j)adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition: CFMEU v BHP Coal; Endeavour Coal at [52] (Perram J).
Has BCH discharged the statutory onus?
In this case, BCH made what could only be described as a forensic choice not to call evidence from the third panel member, Ms Davies.
I asked counsel for BCH what the Court was to make of this decision in circumstances where the only evidence before the Court from which Ms Davies’ reasoning process as to her assessment of Mr Eckel might be divined was her interview notes.
Counsel’s response to this question was as follows:[21]
[21] See transcript of proceedings dated 27 August 2021 p 199 line 4 to p 200 line 21.
Your Honour, we start from the proposition that – and I must accept she had an involvement in the decision-making process because she was one of the panel. We then move, in my respectful submission, to the case of the business records of the organisation, which is the notes, and it could be said, well, that’s just hearsay those – it’s documentary hearsay to produce her notes from the panel. My response to that is if it’s a business record it’s an exception to the hearsay rule, and so what you’ve got is you’ve got two of the intermediate decision-makers – if I can describe them like that – two people involved who have come along and said, “I was there. This is what happened, and here are my notes”.
You’ve then got the notes, which are an exception to the hearsay principle, from the third decision-maker, and there is nothing in those notes, in my respectful submission, that supports the case that Mr Eckel seeks to prosecute that there was adverse action because he exercised a workplace right. If you look to those notes - …when I go to page 382 of the court book here, and you will see in that first box the Fair Work Commission question mark has been written in there.
So it’s consistent with the other notes of the other panel members, and it, in my submission, making – referring to this entry, it simply records that there was, as we know…the evidence because Mr Eckel told us and the panel members told us – Mr Eckel came in and told everybody about his Fair Work Commission complaint, so this panel member, who you didn’t hear from, has recorded that fact as well. That should not be interpreted as, well, this decision-maker must have taken that into account in an adverse or in a prohibited manner, and you’re assisted, your Honour, because there’s a question mark at the end of it: a Fair Work Commission question mark. What’s going…effectively, it’s open to you to draw the inference. What does that mean? So says this decision-maker.
Your Honour, there’s another really important strand of evidence which supports the input of Ms Davies and that is that…You’ve got evidence from Mr Vallance at page 503 at paragraph 11:
The panel did not recommend Mr Eckel for the role based because of the assessment of his performance at interview. We discussed his assessment. So far as the…did not warrant a positive recommendation. I said as much to the other panel members.
So you’ve got evidence of discussions between the panel members, but what you don’t have is any evidence of Ms Davies making adverse comments or suggesting that because complaints have been made by Mr Eckel should not be offered the job, as it were. That’s insofar as Mr Vallance is concerned. Now, there’s no evidence from Ms Reeves that Ms Davies had made any adverse comment to her either. So the submission I’m making is you will come to this judicial task and say, well, what is the evidence from the decision-making chain? Is there any positive evidence of improper adverse or unlawful adverse action?
In my submission, there’s none of that….You will look at all the circumstances because that’s what the court – in Barclay the High Court said you take into account all the circumstances. My submission is that upon the preponderance of the evidence of the panel inquiry there is simply no basis to draw an inference, adverse to my client that somehow Ms Davies must have been given to deciding the matter in a manner – deciding it in a manner where she was actuated by an improper consideration by an unlawful consideration. Now, I accept 361 imposes the onus on me, as it were – the respondent, I should say, to call the positive evidence.
But when you look across the expanse of that positive evidence – the panel documentation, two of three members of the panel and no evidence of off-colour, unclear, ambiguous comments that might suggest actuation for a prohibited ground – there’s simply no basis for your Honour to make a finding of fact – because that’s what it is; actuation is a finding of fact – a finding of fact that at least one aspect of the panel decision-making was influenced by or actuated by the exercise of the workplace right by Mr Eckel.
However, the fundamental difficulty for BCH is that not only was no direct evidence from Ms Davies put before the Court as to her reasons for taking the decision to score Mr Eckel in the manner that she did and to join, ultimately, in the decision of the panel not to recommend Mr Eckel for the new role, but the documentary evidence that was offered provided no further illumination.
The interview notes prepared by Ms Davies and admitted as “business records” appear only to record responses provided by Mr Eckel during the interview rather than any commentary or evaluation from Ms Davies. There is no entry recorded at all for one of the interview questions. No rating is applied to two of the eleven key selection criteria. One of these (number 10) is a key selection criteria described as “BCH values”. Further, while Ms Davies has scored Mr Eckel as achieving a “does not meet” rating in five of the key selection criteria, one of these being “organisational fit”, no entry is recorded in the section of the form below which invites “Overall Rating & Comments”.
It is also the case (a matter that BCH noted in its submission referred to at [126] above) that Ms Davies’ interview notes included the annotation “Fair Work Commission?”. In circumstances where Ms Davies was not called to explain the reason behind this record I am not persuaded that the appropriate inference to draw is that she was not troubled by Mr Eckel’s reference to his FWC application. It is equally plausible that the annotation, accompanied by a question mark, instead indicted a level of uncertainty or some sense of misgiving on the part of Ms Davies as to the suitability of Mr Eckel for the role. The position is that the Court simply does not know.
The reason attributed to Ms Davies for her assessment of Mr Eckel and her decision not to recommend him (along with the other two panel members) for the new role was that Mr Eckel performed poorly and was not the preferred candidate. However, Ms Davies was not called to adopt or otherwise this reason. Further, and reflecting the quality of the information in her interview notes, no intelligible reasoning emerged from the material that was put before the Court that shed light on why Ms Davies made this assessment and joined in this recommendation. The fact that no respondent witness gave evidence that Ms Davies had made adverse comments about Mr Eckel or had connected his making of complaints to the decision not to offer him the new role, says nothing about her reasoning process.
In these circumstances I am not able to discern and am therefore not able to be satisfied as to the reason why Ms Davies did not recommend Mr Eckel for the new job. I am also not able in these circumstances to discount the possibility that the reason or reasons included one proscribed under the FW Act. I do not accept the submission made by BCH that I should be satisfied, in the absence of “any positive evidence of improper adverse or unlawful adverse action” that her reasons were benign.
BCH did not make any submission or lead evidence to the effect that Ms Davies’ contribution to the decision-making was different or inferior to those of the other panel members. There was no attempt to differentiate her contribution from the other decision makers. BCH did not seek to argue that her conduct should not be attributed to BCH for the purpose of s 793(1) of FW Act.
Moreover, there were other features of the respondent’s evidentiary case and the quality of the evidence of the two panel members from whom the Court heard, that was underwhelming.
BCH sought to displace the presumption that it had refused to employ Mr Eckel in the new role for proscribed reasons through its assertion that Mr Eckel had variously “performed poorly” at the interview and was “not the preferred candidate”. Notably, apart from Mr Vallance, neither Ms Reeves nor Ms Powell identified Mr Eckel’s preference to only work one day per week as a factor that had in any way informed their decision-making about Mr Eckel’s suitability for the new role. As noted above, the evidence of Ms Powell was that “[she] did not consider that Mr Eckel performed well during the interview. He did not meet or exceed many of the selection criteria”.[22]
[22] See paragraph [13] of the affidavit of Suzanne Powell affirmed 4 August 2022; CB 520
BCH submitted that the Court should conclude, based on the contemporaneous interview documents and the evidence of Mr Vallance and Ms Powell that on the facts before the Court, there was an objective, fair and reasonable and unanimous assessment by the panel members (evidenced by the key selection criteria ratings recorded on each of the notes that were made) and that the panel members objectively assessed Mr Eckel and rated him below another candidate. He was not employed because of that rating.
I cannot agree. The evidence of Ms Powell especially and Mr Vallance to a lesser degree was bland and uninstructive. The reason offered by both of these witnesses as to why they had not recommended Mr Eckel for the new role, namely, that he was not “the preferred candidate” might appropriately describe the net result of the assessment process that they each applied to Mr Eckel’s performance during his interview but it does not, in my opinion, adequately expose the reasoning process that underscored it. It operates as a self-serving conclusion that begs more questions than it answers.
Based on my observations recorded at [91]-[92] above, I found Ms Powell to be an unreliable and unhelpful witness. Her notes of the interview were similarly uninstructive on the critical question of why Mr Eckel had attributed to him the low scores that Ms Powell (and the other panel members) recorded. Ms Powell did not record any rating against three of the key selection criteria. One of these was “BCH values”. Against this entry Ms Powell had simply recorded “No” without further explication. Ms Powell (like Ms Davies) did not make any entry in the assessment form which invited “Overall Rating & Comments”. Further, BCH did not produce any documents related to the assessment of the “preferred candidate” or otherwise produce any evidence as to how any comparison between Mr Eckel and this individual had been undertaken. The evidence, scarce as it was, existed in a vacuum.
This case provides a powerful example of the efficacy of the reverse onus provision through its recognition that corporate knowledge about the true reason for adverse action resides in the respondent through its human actors. Here, the failure of BCH to expose this knowledge has created material consequences for it. Having considered all of the evidence in aggregate, BCH has failed to satisfy me that it took adverse actions for reasons that were dissociated from the exercise by Mr Eckel of workplace rights.
In saying this I have considered and taken account of the matters that were identified by BCH as part of the objective matrix against which its postulated reason/s for refusing employment to Mr Eckel should be assessed.
These included the express disavowals by Ms Reeves, Ms Powell and Mr Vallance of any connection between their reasons for refusing to employ Mr Eckel to the new role and any proscribed consideration.
They also include what was described as a lack of animus between Mr Vallance and Mr Eckel and the fact that two out of the three members of the panel were not the subject of a former complaint made by Mr Eckel. However, it is also the case that Ms Powell (who I have described previously as an unreliable witness) was the subject of the August and January complaints and would, had Mr Eckel been successful in his application for the new role, worked in close proximity to him as his manager.
BCH also identified the Zeitz report, and its conclusion that Mr Eckel had not been bullied by either Ms Powell or Ms Measday as evidence both of a lack of organisational hostility and a robust approach to workplace complaints. While I accept that the Zeitz report (and the investigation that preceded it) constitutes evidence of the latter proposition, I cannot overlook the fact that contained within the report were the following observations:
7.1.It is generally acknowledged that the work environment that Brendan joined had its own long standing work culture and forms of behaviour. It is also generally acknowledged that the culture has permitted behaviour that can be dismissive and isolate those individuals whose personalities and working patterns are not consistent with the core group. That was Brendan's immediate and personal experience and the information provided makes clear that he was not alone in his perception or experience.[23]
….
10.1I accept that Brendan has had a less than ideal working experience with BCH to this point and that some of that is attributable to the workplace culture and attitude that he encountered on commencement. [24]
[23] See exhibit “RR-4” annexed to the affidavit of Robyn Reeves affirmed 14 May 2021; CB 336.
[24] See exhibit “RR-4” annexed to the affidavit of Robyn Reeves affirmed 14 May 2021; CB 343.
This information also forms part of the objective circumstances against which BCH’s postulated “reasons” are to be evaluated.
CONCLUSION
In closing submissions, Mr Eckel asked rhetorically:
it comes as a bit of a surprise to me to think that I’ve – I can’t even meet the – most of the criteria of a job that I’ve been doing most of my working career.[25]
[25] See transcript of proceedings dated 27 August 2021 p 207, lines 37-38.
Had BCH squarely grappled with this question then the outcome in this case might well have been different.
However, and despite other aspects of Mr Eckel’s case being obscure and unwieldy, I have found that in circumstances where he articulated a case that contained the allegation that BCH refused to employ him in the new role for the reason that he had exercised workplace rights within the meaning of ss 341(1)(b) and (c)(ii) of the FW Act and where BCH has failed to satisfy me that it did not take this adverse action for the reason/s alleged, that to this extent, Mr Eckel’s application should succeed. I will make a declaration accordingly.
The hearing was concerned with liability only. In these circumstances, the matter will be listed for directions to fix a timetable for a hearing on the question of remedy, including any penalties.
I certify that the preceding one hundred and forty-seven (147) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 27 October 2022
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