Evangeline v Department of Human Services
[2013] FCCA 807
•28 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EVANGELINE v DEPARTMENT OF HUMAN SERVICES | [2013] FCCA 807 |
| Catchwords: INDUSTRIAL LAW – Fair work – alleged breaches of sections 340, 343, 345 and 351 of Fair Work Act (Cth) – allegations of adverse action and coercion – allegations of sex discrimination and physical or mental disability discrimination – whether respondent breached obligations as to enquiry and disclosure – whether respondent through delegated decision maker acted without procedural fairness or with preconceived intent to find against applicant – whether decision to conduct additional enquiry and interviews connoted bias or adverse intent – whether respondent sought to coerce or influence third parties – whether the respondent breached the applicant’s workplace rights. |
| Legislation: Fair Work Act 2009 (Cth): ss.340, 343, 345, 351, 361, 369 Disability Discrimination Act 1992 |
| Cases cited: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia No 3 (1998) 195 CLR 1 National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114 |
| Applicant: | MICHELLE EVANGELINE |
| Respondent: | DEPARTMENT OF HUMAN SERVICES T/A CHILD SUPPORT AGENCY |
| File Number: | BRG 300 of 2011 |
| Judgment of: | Judge Coker |
| Hearing date: | 16-18 April 2012 |
| Date of Last Submission: | 18 April 2012 |
| Delivered at: | Townsville |
| Delivered on: | 28 June 2013 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr McLeod |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
THE COURT ORDERS:
That the Application filed on 28 April 2011 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
BRG 300 of 2011
| MICHELLE EVANGELINE |
Applicant
And
| DEPARTMENT OF HUMAN SERVICES T/A CHILD SUPPORT AGENCY |
Respondent
REASONS FOR JUDGMENT
The Court having made Orders on 28 June 2013 and indicating that Reasons for Judgment would be subsequently provided, now provides those Reasons.
INTRODUCTION
This application was commenced on 28 April 2011 by Michelle Evangeline. For convenience, I shall refer to her as, “the applicant”. The respondent to the application is the Department of Human Services – Child Support Agency. For convenience, I shall refer to the Department as, “the respondent”.
The application filed by the applicant on 28 April 2011 detailed the final orders sought and grounds for the application, as particularised in the claim that was filed concurrently with the application. In that claim, the applicant annexed a copy of the certificate under section 369 of the Fair Work Act 2009. Commissioner Spencer there noted that all reasonable attempts to resolve the dispute between the applicant and the respondent had been made and that it was the Commissioner’s assessment that there was little likelihood of further successful resolution, other than by way of proceedings before the court.
The applicant detailed the particulars of what she said were the sections of the Act which had been breached. They included breaches of sections 340, 343 and 345 as well as section 351 of the Fair Work Act. The contraventions that were alleged were as follows:
Contravention 1
S340 ProtectionThe Respondent is required under section 59(1) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) to give to the Commonwealth, in respect of a claim affecting the Commonwealth, any document held by the relevant authority that relates to the claim.
The Respondent purposely failed to provide a copy of the Wise Workplace Investigation report (concerning the allegations of harassment) to the Comcare prior to the determination. Whether or not this document was critical in Comcare’s decision to accept or deny liability is irrelevant in so far as the Respondent’s requirement to provide the document to Comcare, that its, it was not for the Respondent to decide what documents are and are not relevant to the claim. The Applicant’s claim under Section 54 of the SRC Act noted that a significant contributing factor to the injury was the harassment, which was the subject of the Wise Workplace investigation and report.
The Respondent also failed to provide further evidence to Comcare, including emails between the Applicant and her immediate supervisor, Mr. John Duric, which demonstrated that the Applicant was suffering from the injury substantially prior to any disciplinary action taken in December 2008, which the Respondent presented as a contributing factor to the injury. In this regard, the Applicant was disadvantaged as she was on sick leave and did not have access to her emails at work.
The Respondent lodged a 299-page response to the Applicant’s claim under section 64 of the SRC Act. The Applicant acknowledges that it is within the power of the Respondent to provide a response to Comcare under the SRC Act, which includes any matters that the Respondent feels is relevant in determining the claim. However, the Respondent went beyond their powers under the Act and made false statements in order to support an alternative argument presented by the Respondent that the injury was not work related. The false statements made by the Respondent in their 299 page response include:
(a)Michelle takes out a DVO against her ex partner
(b)Michelle incurred financial difficulty
(c)Michelle’s current boyfriend is at present not at work but on Workcover.
Put bluntly, the Respondent is not authorised by law to fabricate false information and present this as evidence relevant to the claim made by the Applicant. Such actions by the Respondent are breaches of the APS Values and the APS Code of Conduct, and are therefore not actions that are excluded by the definition of ‘adverse action’. The Respondent states that their responses to Comcare are authorised under law, and as such are excluded from the definition of ‘adverse action’. Providing false or misleading information is not authorised under the relevant laws, and as such, the Respondent is in breach of multiple workplace laws/instruments, including the General protections provisions of the Fair Work Act and the APS Values and the APS Code of Conduct.
Contravention 2
S343 CoercionAdverse Action taken, described in Contravention 1 amounts to Coercion:
The Applicant was entitled to receive benefits under the SRC Act, which are provided for an employee who suffers a workplace injury. The ‘adverse action’ taken by the Respondent, described in Contravention 1 therefore also amounts to a s343 breach of Coercion as follows:
343 Coercion
(1) A person (DHS) must not organise or take, any action against another person (The Applicant) with intent to coerce the other person, or a third person (Comcare), to:
(a)exercise or not exercise a workplace right; or
(b)exercise a workplace right in a particular way.
(where the ‘workplace rights’ referred to are the workplace rights of the Applicant).
Therefore, by the Respondent providing false or misleading information to Comcare in relation to the claim, and by omitting or failing to provide all relevant documents such as the Wise Workplace report to Comcare, the Respondent has engaged in Coercion with the intention of
(a) ‘coercing’ Comcare to deny liability for the Applicant’s workplace injury, or
(b) ‘coercing’ Comcare to not exercise the Applicant’s workplace right which was an entitlement to benefits under the SRC Act for a workplace injury, or
(c) ‘coercing’ Comcare to exercise the Applicant’s workplace right in a particular way:
Both the Applicant and the Respondent presented evidence to suggest or demonstrate that the Applicant was in fact suffering from an injury; however, the Respondent’s shotgun approach in their responses was intended to coerce or persuade Comcare that the Applicant’s injury was excluded from the definition of a compensable injury. The Respondent provided statements suggesting that grounds for exclusion could include either that the injury was not related to events at the workplace, or, that the injury should be excluded on the grounds that a significant contributing factor was administrative action taken by the Respondent which was reasonable, either or which would render the claim fatal.
Comcare’s initial determination on 24th September 2009 was to deny liability for the Applicant’s claim. The decision acknowledged that the Applicant did suffer a workplace injury, where events at work had significantly contributed to the injury, but that the injury was excluded on the basis that a significant contributing factor was reasonable administrative action taken by the Respondent.
Comcare later overturned this decision when Comcare accepted liability for the Applicant’s injury of their own volition (by way of consent), through the process of the Applicant appealing to the Administrative Appeals Tribunal, where the Respondent was no longer a party to the process.
Contravention 3
s340 Protection
Adverse Action taken:The Applicant lodged a request for a reconsideration of Comcare’s determination to deny liability. This request was lodged by the Applicant on 28th February 2010.
The Respondent provided a response to Comcare dated 31 March 2010 in relation to this application. The Code of Conduct Investigation into allegations of harassment was finalised by the Respondent on 26th Nov 2009, however, the Respondent again deliberately chose not to provide documents relating to this Investigation in their response to Comcare. This response also provided an inaccurate timeline of events.
Comcare’s original determination of the matter acknowledged that the events of alleged harassment by a colleague were a significant contributing factor in the Applicant’s injury – this decision by Comcare removes any doubt about the nexus between the alleged harassment and the Applicant’s workplace injury. It follows then, that any documents relating to the investigation of the harassment would be documents relevant to the Applicant’s claim – and places an onus on the Respondent to provide any such documents, irrespective of whether or not the Respondent considers them relevant in the reconsideration of the matter by Comcare.
The report by Wise Workplace Investigations formed a part of the overall Code of Conduct Investigation, where a member of the Respondent was nominated as the Decision Maker. Therefore, both the Wise Workplace report, and the overall report by Mr. Brett Thompson the decision maker are documents that relate to the Applicant’s claim under the SRC Act. As the Respondent had not provided these documents to Comcare, Comcare exercised its powers under s71 of the SRC Act, to request these specific documents from the Respondent. Section 71(2) also requires that the Respondent was required to comply with the notice without delay. In breach of this requirement, the Respondent requested an ‘extension of time’ to comply with the s71 notice.
Delays in the Respondent providing the requested documents to Comcare resulted in delays for Comcare to reach a decision on the reconsideration of the Applicant’s claim.
Furthermore, when Comcare requested these documents under s71 of the SRC Act, it was noted on the request that Comcare considered that “the information requested is considered significant in the assessment of this claim”. Although the Respondent finally supplied both the Wise Workplace report and the overall Code of Conduct Investigation report to Comcare, Comcare later advised the applicant that these documents were not relevant to the claim and as such had been returned to the Respondent, and would not be held on the Applicant’s claim file. This decision to remove the reports was heavily influenced by the Respondent, who had also advised the Applicant that she was not entitled to view either or these documents.
Contravention 4
s343 CoercionSimilar to the Adverse Action in contravention 1 and the resulting section 343 coercion breach described in Contravention 2.
If the authority to accept or deny liability for the Applicant’s injury rested with the Respondent, then there could be no s343 breach of coercion – only adverse action. However, as the authority to decide liability rested with a 3rd party – Comcare, then the Respondent’s actions again amount to a section 343 breach of coercion under the Fair Work Act.
Comcare’s decision to again deny liability after a reconsideration of the matter was made on 15th June 2010. To further demonstrate the impact of the Respondent’s coercion and influence over Comcare’s decisions to deny liability, in preparation for the Applicant’s appeal to the Administrative Appeals Tribunal, Comcare issued a further s71 notice to the Respondent requesting the following:
(a) (The Applicant’s) Personnel file;
(b) Compensation and rehabilitation files;
(c) All medical reports, return to work and clinical notes you have including all CMO assessments and reports;
(d) All leave records(e) Any other documentation related to the employee’s employment with you, including documents relating to any disciplinary action contemplated or taken against the employee and any pre-employment medical history
This is quite an odd request from Comcare, given that Comcare had considered the matter for liability in both an initial determination and in a further reconsideration of the matter. This suggests that Comcare had previously denied liability with the aid of the Respondent’s position that this was the correct decision to reach. In preparing the case to go before the AAT, it became apparent to Comcare that the correct decision was in fact to accept liability for the Applicant’s claim, and Comcare did so by way of consent orders that were approved by the AAT – however it is crucial to note that this decision was finally reached by Comcare without the influence or ruling of the AAT. That is, the AAT did not have to intervene in reaching the correct decision; Comcare overturned their previous two decisions, and now accepted liability for the Applicant’s injury.
Contravention 5
S340 ProtectionThe Respondent’s actions to delay providing the Wise Workplace report and the overall Code of Conduct Investigation report, as well as the Respondent’s influence over what documents were relevant to the Applicant’s claim further adversely affected the applicant in her exercise of section 59 of the SRC Act – to request a copy of documents held by Comcare that relate to the claim.
In preparation to take the matter before the AAT, the Applicant requested that copies of the two reports in question be provided to her under section 59 of the SRC Act. The workplace right provided by this law is not simply the right to request information; it is the right to be provided with such documents that relate to the claim. The Applicant was unable to exercise her right to obtain copies of these reports via s59 SRC Act, due to the Respondent’s influence over Comcare that these documents did not relate to the Applicant’s claim, and therefore should not be held on her claim file.
Contravention 6
s340 Protection
Workplace Right(s)(a)To make a complaint to DHS regarding allegations of harassment in the workplace;
(b)To be employed in the Australian Public Service, where the principles of the APS Values and Code of Conduct are abided by and enforced
(c)To have a workplace that is free from unlawful discrimination
Relevant Workplace Law/Instrument(s):
Australian Public Service Act & Regulations;
Fair Work Act;Department of Human Services policies (eg 805: Managing Misconduct, 706: Harassment and Bullying in the Workplace);
The Applicant lodged a formal written complaint to the Respondent on 23rd April 2009, regarding alleged harassment by a colleague, and raising concerns regarding how several managers had handled the complaints over the previous 6 months, from 23rd Oct 2008 onwards. As a result of the complaint, and request to have these matters investigated, the Respondent decided to investigate the allegations of harassment by Mr. Darin Bryant. The relevant policy outlining this process is below:
1.0 Policy Statement
1.1 One of the Australian Public Service (APS) Values is that ‘APS provides a fair system of review of decisions taken in respect of APS employees’ (Value O).
Under section 33 of the Public Service Act 1999 (Review of actions) an APS employee is entitled to a review, in accordance with the regulations, of an APS action that relates to his/her employment.
1.2 This policy outlines the review of an action process in relation to an employee’s employment by the Department of Human Services (DHS), where the action was considered unfair or unreasonable by the employee requesting the review.
1.2 It is important to understand that the purpose of the Review of Action process is to attempt to resolve employees’ concerns about the actions.
The process shall be:
(a)fair and impartial;
(b)completed in a timely manner;
(c)consistent with the principles of procedural fairness; and
(d)consistent with the use of alternate dispute resolution mechanisms (conciliation and/or mediation)where appropriate;
1.3 Most employment matters that affect an employee personally in the course of their employment can be dealt with in this way. These might include, for example, application of conditions of employment; performance management issues; inappropriate behaviour in the workplace; discrimination; harassment; A failure or refusal to act may also constitute an action that can be reviewed.
Some examples of how the Respondent demonstrated Adverse Action in this process are:
This process took over 7 months to complete (decision reached on 26th Nov 2009);
External independent investigation by Wise Workplace Investigations was disregarded by The Respondent as ‘deficient’, when in fact this opinion of the report’s deficiency was based on the Respondent’s need to maintain consistency in their position regarding the Applicant’s Comcare claim that the Applicant had provided ‘little evidence’ to support her allegations.
The internal delegate decision maker, Brett Thompson, omitted one of the allegations from the final report, dated 26th Nov 2009. If you compare the original report done by Wise Workplace Investigations with the final report by Brett Thompson of DHS, you will notice that the Wise Workplace report breaks the matters down into 8 allegations. Brett Thompsons’ final report dated 26th Nov 2009 only has 7 allegations that were considered: allegation number 7 in the Wise Workplace report had been removed from Brett Thompsons’ final report.
Brett Thompson’s internal report also fails to take into account further information, which he himself uncovered, in further interviews, eg interviews conducted by Brett Thompson and witnesses.
The Respondent is also guilty of discrimination s351 Fair Work Act due to preferential treatment provided to the accused employee above the Applicant.
The ultimate decision of the DHS Investigator was based on the opinion of one of the Applicant’s supervisors, that the Applicant had a history of ‘misconstruing’; events. Not only was the Applicant not provided with this evidence to make comment on prior to the decision, the supervisor providing this ‘opinion’ on which the decision seems to be based was potentially able to be held in breach of the Code of Conduct for not taking action in regards to the Applicant’s complaints of harassment. This denotes a serious conflict of interest in replying upon the testimony of this employee’s opinion.
The Respondent’s dismissal of the Wise Workplace report as deficient; the removal of one of the allegations from the final report; and the ultimate conclusion that there was no breach of the Code of Conduct also ensured that the Respondent could not be held vicariously liable for the harassment – because according to the Respondent, the harassment never occurred.
Not only is this a breach of the General Protections provisions of the Fair Work Act, it is a breach of contract of the Applicant’s employment with the Public Service, which is bound by the Australian Public Service Act, and regulated by the APS Values and Code of Conduct – which render these actions as breaches of multiple Commonwealth laws.
Contravention 8, 9 and 10 are constituted by allegations of adverse action, coercion and discrimination. They are as follows:
Contravention 8
340 Protection
Contravention 9
345 Misrepresentation
Contravention 10
351 DiscriminationWorkplace Rights include: The entitlement to a further Review, either by DHS (The Respondent) or the Merit Protection Commissioner
Relevant Workplace Law/Instrument(s):
Australian Public Service Act & Regulations
Fair Work ActDepartment of Human Services policies
The Respondent misrepresented the Applicant’s workplace rights in regards to her entitlement to a review of the decision of Brett Thompson.
The Respondent initially failed to provide a response to the Applicant’s enquiries as to what her rights were to a further review process
The response eventually provided by the Respondent advised the Applicant that she was entitled to a review of Brett Thompsons’ decision, but then months later declined to undertake a review of these matters – on the basis that it was not a matter that related to her employment, and as such, the Respondent misrepresented that the Applicant was not entitled to a further review. Harassment in the workplace by a colleague is a matter that relates to the Applicant’s employment, and as such she should have been entitled to a further review by either the Respondent or the Merit Protection Commissioner.
The Respondent then influenced the decision of the Merit Protection Commissioner as to whether or not to undertake a review of any of the matters raised by the Applicant.
The application was responded to by the respondent in a response dated 19 May 2011. There, the respondent denied contravention of section 340 of the Fair Work Act in relation to contravention (1), (3), (5), (6) and (8) and further denied any breach of section 343 of the Fair Work Act in respect of contraventions (2) and (4). Additionally, the respondent denied any breach of the provisions of section 341 as alleged in contravention 9 or of section 351, as alleged in contraventions (7) and (10).
The final orders that are sought by the parties in relation to the proceedings were detailed in the outlines filed respectively by them. The orders sought by the applicant are in these terms:
In this proceeding the Applicant alleges contraventions by the Respondent of the General Protections provisions of Pt 3-1 of the FW Act. The Applicant seeks remedies against the Respondent to the following effect:
(1) A declaration that the Respondent took adverse action(s) against the Applicant in contravention of s 340(1) &/or (2) of the Act.
(2) A declaration that the Respondent took coercive action(s) against the Applicant in contravention of s343(1) of the Act.
(3) A declaration that the Respondent took adverse action(s) against the Applicant in contravention of s 351(1) of the Act.
(4) The imposition of pecuniary penalties upon the Respondent under s 546 of the Act for each contravention of s 340, s 343, and s 351 of the Act, in favour of the Applicant.
(5) Orders under s 545 of the Act, that the Respondent pay damages to the Applicant in the following two regards:
(a) Compensatory damages for loss or damage suffered by her as a result of the contraventions of s 340, s 343, and s 351 of the Act; and
(b) Exemplary damages in respect of the contraventions of the Act, for the Respondent’s deliberate and contumelious disregard of the Applicant’s workplace rights.
The orders sought by the respondent in relation to the proceeding are succinct and to the point. They are simply that the application be dismissed in relation of all alleged breaches of the Fair Work Act.
BACKGROUND
Before turning to the evidence in relation to this matter, it is necessary to provide at least some framework or history, in relation to the proceedings. The parties appear at least to agree generally as to certain of the particulars relating to the history, though in respect of some dates there continues to be dispute. It is clear that the applicant was employed by the respondent in the Child Support Agency. The applicant says from 15 February 2007 until 1 November 2010 whilst the respondent says that the resignation was effective as and from 24 November 2010.
On 23 April 2009, the applicant lodged a complaint against another employee of the respondent, in which claims of sexual harassment were made. Following the written complaint, the respondent initiated an investigation to determine whether that employee had breached the code of conduct relevant to employment within the Commonwealth Public Service. Mr Brett Thompson, a sanctioned delegate of the respondent, was appointed as the decision maker.
It appears clear, that prior to the formal written complaint being made in relation to the inappropriate behaviour alleged by the other employee, other indications were given by the applicant of concerns in relation to certain behaviours of the other employee and the complaint was detailed, at least verbally, to the applicant’s manager, Mr John Duric, as well as various other managers, including Ms Elle Davis, Ms Sandy Devietti and Ms Tracey Lew.
Following the formal complaint in relation to the matter, the decision maker engaged the services of Wise Workplace, to provide a report in respect of each of the applicant’s allegations against the employee, for possible breaches of the code of conduct. The report prepared by Wise Workplace Investigations is dated 5 August 2009 and found that there were four of the eight allegations proven in relation to breaches. The report made recommendations with regard to the other employee’s conduct and steps that should be taken, including a recommendation that disciplinary action should be taken against the other employee.
The decision maker determined that further interviews and inquiry was appropriate in relation to the investigation of the complaint and conducted such further interviews and inquiry. The decision maker, having conducted further inquiry over a period of approximately three more months, determined on 25 November 2009 that the other employee had not breached the Australian Public Service Code of Conduct.
Prior to that determination, the applicant lodged a complaint with the Australian Human Rights Commission, claiming that the respondent had breached various provisions of the Disability Discrimination Act and the Sex Discrimination Act, however that complaint was withdrawn prior to a conciliation conference, that was ordered to take place by the Australian Human Rights Commission.
Additionally, the applicant lodged a claim with Comcare for compensation under the Disability, Rehabilitation and Compensation Act 1988, relating to a condition that the applicant suffered from, which the applicant said was as a result of the workplace events, including, particularly, the harassing behaviours of the other employee.
On 22 September 2009, that claim was denied by Comcare but the applicant, exercising her rights, requested Comcare to reconsider the decision on 28 February 2010. Comcare, following reconsideration, continued to deny the claim and the applicant then applied to the Administrative Appeals Tribunal for a review of the decision of Comcare. A settlement was reached between the applicant and Comcare wherein it was apparently agreed that Comcare would accept liability for the applicant’s condition. A consent decision reached between the applicant and Comcare was dated 11 November 2010.
Following the applicant’s lodgement of a written complaint regarding allegations of sexual harassment, the applicant did not generally return to work, between the date of the written complaint, 23 April 2009 and her resignation in November of 2010, though the applicant says that whilst she did not return to employment with the Child Support Agency, she did participate in some rehabilitative activities conducted at Lavarack Barracks in Townsville, prior to ceasing employment in November of 2010.
Shortly after the applicant ceased employment with the respondent, she lodged an application with Fair Work Australia, claiming various actions by the respondent amounted to contraventions of the general protections found in Part 3-1 of the Fair Work Act and a conciliation conference was held on 27 January 2011. That conciliation conference was unsuccessful and led to the issue of the certificate pursuant to the provisions of section 369 of the Fair Work Act, which triggered the applicant’s review rights.
THE LEGISLATION
It then followed that on 28 April 2011, the applicant made the present application to the Federal Magistrates Court, as it then was. The various breaches that are alleged and the contraventions which are contended to have occurred arise pursuant to sections 340, 341, 342, 343 and 351 of the Fair Work Act. Those sections are in these terms:
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.
(2)A person must not take adverse action against another person (the second person)because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
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.
Meaning of process or proceedings under a workplace law or workplace instrument
(2)Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a) a conference conducted or hearing held by FWA;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f) appointing, or terminating the appointment of, a bargaining representative;
(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer’s leave;
(i) making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);
(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k) any other process or proceedings under a workplace law or workplace instrument.
Prospective employees taken to have workplace rights
(3)A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.
Exceptions relating to prospective employees
(4)Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings.
(5)Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2-8 (which deals with transfer of business).
342 Meaning of adverse action
(1) The following table sets out circumstances in which a person takes adverse action against another person.
Adverse action is taken by … 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.2 a prospective employer against a the prospective employer:
prospective employee (a) refuses to employ the
prospective employee; or(b) discriminates against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee
343 Coercion
(1)A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b) exercise, or propose to exercise, a workplace right in a particular way.
(2) subsection (1) does not apply to protected industrial action.
351 Discrimination
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the particular position concerned; or
(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed – taken:(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) Each of the following is an anti-discrimination law:
(aa) the Age Discrimination Act 2004;
(ab) the Disability Discrimination Act 1992;
(ac) the Racial Discrimination Act 1975;
(ad) the Sex Discrimination Act 1984;
(a) the Anti-Discrimination Act 1977 of New South Wales;
(b) the Equal Opportunity Act 1995 of Victoria;
(c) the Anti-Discrimination Act 1991 of Queensland;
(d) the Equal Opportunity Act 1984 of Western Australia;
(e) the Equal Opportunity Act 1984 of South Australia;
(f) the Anti-Discrimination Act 1998 of Tasmania;
(g) the Discrimination Act 1991 of the Australian Capital Territory;
(h) the Anti-Discrimination Act of the Northern Territory.
Section 340 of the Fair Work Act prohibits a person from taking adverse action against another person, because of some workplace right that that other person has. Subsection (b) similarly prohibits a person from taking adverse action against another person to prevent the exercise of a workplace right by that other person.
Section 341 provides that a person has a workplace right if they are entitled to the benefit of, or have a role or a responsibility under a workplace law or a workplace instrument. It is noteworthy that the term, “workplace law” is broadly defined in section 12 of the Fair Work Act to include Federal, State or Territory laws, regulating employment relationships.
Section 342 defines what constitutes adverse action. Adverse action includes action by an employer against an employee which leads to the dismissal of the employee or injures the employee in his or her employment or alters the position of the employee to the employee’s prejudice or discriminates against the employee and other employees of the employer.
The High Court, in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia No 3 (1998) 195 CLR 1, held that “injured”, in employment circumstances, covers injury of any compensable kind. Additionally, the High Court held that the alteration of the position of the employee to the employee’s prejudice referred to an intentional act directed to an individual employee or prospective employee. The term, again, can be widely interpreted and covers not only illegal injury but any adverse effect of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.
The issue of whether an intent is required in order to constitute an adverse action has been the subject of further consideration by the courts and the need for an intentional act on the part of the employer but rather a consequential result has been the subject of further consideration.
Section 342 notes particularly that an action taken by an employer is not an adverse action if it is authorised by or under the Fair Work Act or any other law of the Commonwealth, State or Territory.
THE EVIDENCE
Before turning, then, to the various alleged breaches in relation to the matter, it is necessary, in my assessment, to at least consider the evidence called in relation to the proceedings. As noted in the brief history that I provided in relation to this matter, a number of managers and superiors of the applicant are mentioned as having been advised of concerns and in particular, it was suggested that they had in some way breached their obligations, in relation to taking appropriate action to provide protection for the applicant.
None of the various deponents, other than Mr Thompson, were required for cross-examination. However, the evidence of Alexandra Malota, Elle Mary Davis, Colleen Margaret Wright, Tracey Jane Lew, Jacelle Shay Howell, Janet May Haskins and Sandra Denise Devietti were relied upon by the respondent. All of those deponents made reference to the fact that they were currently or had previously been employed by the Department of Human Services and were in such employment, at the time of the incidents alleged to give rise to the claims in relation to this matter.
Each of the deponents referred to various approaches made to them, either by the applicant directly or, at least in the case of Ms Malota, by Comcare seeking information in respect of the claim made by the applicant to Comcare under the Safety, Rehabilitation and Compensation Act. Ms Malota details in her affidavit the fact that she is responsible for co-ordinating applications to the AAT for review of Comcare reviewable decisions and in that role, she notes the involvement she had with regard to a section 71 notice, received by the Department of Human Services on 17 May 2010.
The due date for a response to be provided by the respondent to Comcare was 18 May, the affidavit says 2009, but I presume it should correctly be 2010, which provided only one day for a response to be provided. Ms Malota notes that her response was given to the notice on 21 May 2010. Further information was then sought by Comcare on 13 July 2010 and a further notice, pursuant to the provisions of section 71, was received under cover of a letter from Comcare on 16 August 2010.
The due date for compliance with that notice was 13 September 2010 and Ms Malota indicates that various enquiries were made, including enquiries of Mr Thompson in relation to his role as the sanctioned delegate of the Department and that information was then provided on 8 September 2010. I accept the evidence of Ms Malota in relation to this matter.
The other deponents to affidavits in relation to these proceedings detail their involvement in some way or form with the applicant including meetings with her in the role of team leaders, or being requested to participate in meetings for the purposes of ensuring transparency in relation to discussions with the applicant.
Each of the deponents, Ms Davis, Ms Lew, Ms Howell, Ms Haskins and Ms Devietti, note in various ways, the indications given by Ms Evangeline that she did not want to escalate this matter or for the complaint to be discussed with either the other departmental employee or with the immediate superior of the applicant, to whom an initial concern had been expressed.
I accept the unchallenged evidence of those witnesses in relation to the accuracy of their records as to the meetings and in particular, the fact that the applicant specifically sought to restrict any direct approach being made to the other employee of the Department.
Insofar as the deponent, Colleen Margaret Wright, is concerned, Ms Wright indicated that she was, at the time of swearing her affidavit, employed as the director, employee relations section, people services branch of the Department of Human Services and that her role included providing advice to people (HR) teams and managers, about operation, people management issues and the APS code of conduct, fitness for duty and attendance performance management and engagement of promotions and reviews of action, under the Public Service Act.
In that role, Ms Wright indicated that she had reviewed files available to her and located various documents referring to discussions between the Department of Human Services and the applicant about seeking reviews of Department of Human Services decisions. Annexed to her affidavit sworn 30 September 2011 and marked as items 4.1 through 4.20 are copies of emails and other communications between the respondent and the applicant.
Additionally, Ms Wright, in her review of files available to her, has located files and correspondence from those files between the Department of Human Services and the Merit Protection Commissioner. Those various items of correspondence and communication are noted as items 5.1 through 5.13, being communications between 9 August 2010 and 2 December 2010.
I accept Ms Wright’s evidence in relation to this matter and in particular, the completeness of the communications that have been referred to.
The only two witnesses who actually appeared in relation to the matter were the applicant and the decision maker for the code of conduct investigation, Mr Thompson. I shall turn to the evidence of Mr Thompson first in relation to this matter before turning to the evidence of the applicant.
Mr Thompson was employed, at the time of trial, by the Department of Human Services as the, “sanctions delegate”. He was, however, previously employed as the director of workplace relations, within the human resources section of the Department and he notes that in that role he was contacted on 28 April 2009 by Mr Brendan Keogh, the acting state manager, stating that the applicant had lodged a complaint of sexual harassment against Mr Darren Bryant, in the Townsville office of the Child Support Agency.
Mr Thompson indicates that he was appointed the decision maker for the code of conduct investigation into the alleged breaches of the code of conduct by the employee and that that appointment was effective on 5 May 2009, pursuant to the Department of Human Services HR delegations. His role as a decision maker he says, required him to investigate the allegations that the employee may have breached the Australian Public Service code of conduct, to determine whether the employee did breach the code of conduct and to provide a report detailing his investigations, including the determination of whether or not the employee breached the code of conduct, to the assistant secretary, human resources.
Mr Thompson, in his affidavit affirmed 5 October 2011, details the various considerations that were required to be met in relation to such serious allegations as were made by the applicant and went on to indicate that on 29 April 2009, he engaged Wise Workplace to assist in making a decision about the possible breaches of the code of conduct, by way of preparation of a report, following their investigation into the alleged breaches.
The terms of their engagement related to the conduct of interviews and the preparation of a preliminary report and Mr Thompson noted specifically at paragraph 11 of his affidavit, that the engagement concluded at the point where the preliminary report was provided. Mr Thompson goes on to particularly note that the report forms only one part of any code of conduct investigation process and that any report, including the findings, are only preliminary and recommendations only.
Wise Workplace were not delegated a decision making power but were rather simply one of the investigatory options that were open to Mr Thompson, as the delegated decision maker. Mr Thompson notes at paragraph 21 of his affidavit that the report was prepared by Ms Kamira of Wise Workplace and contained various recommendations in respect of the eight alleged breaches of the code of conduct by the employee, including the investigator’s view of the evidence, that four of the alleged breaches were substantiated.
However, in paragraph 22, Mr Thompson notes that in his role as the delegated decision maker, he considered that there were a number of flaws in the report and recommendations. He details those flaws in paragraphs 22.1 to 22.6 of the affidavit. They were as follows:
22.1I had serious concerns about the information provided by the witnesses and the way in which they appeared to be interviewed. In particular, I had particular concerns about the evidence provided by Mr Van Dyk and considered that he needed to be asked supplementary questions in order to clarify his evidence and make a determination about whether this was reliable. I considered this to be particular important as I felt Mr Van Dyk’s evidence was critical to the investigation and subsequent findings.
22.2I was also concerned with the absence of a statement from Mr Steve Condon whom I thought could provide relevant information.
22.3I also had concerns the way in which the information provided by Mr Braynt (sic) had been considered by the investigator in particular the information provided in the response. It appeared to me that the investigator had not given sufficient consideration to this information or considered further enquiries such as obtaining the electronic timesheets of the two parties leaving that were likely to provide independent evidence that could assist in considering the complaint.
22.4I also believed that the investigator had failed to take into account relevant facts including the relationship between Mr Bryant and Ms Evangeline.
22.5I also thought that the failure to distinguish issues relating to Mr Bryant and Mr Duric may have undermined the quality of the investigation and the recommendations.
22.6I also had serious concerns that the investigator may have failed to adequately and critically consider the complaint and information being provided by witnesses. It seemed to me that as a result of this (sic) witnesses had not been fully questioned particularly about inconsistencies that enabled a clear statement of the allegations to be produced.
Mr Thompson then goes on to note, that as a result of the flaws, he determined that there was insufficient information to make a decision and that further investigations were necessary. He indicates, then, that he personally reinterviewed a number of the witnesses, including the applicant, with such interviews being conducted between 12 August and 20 October 2009.
Mr Thompson's affidavit details at length the inquiry that was made by him and the extensive nature of that inquiry. The affidavit also then explains the position taken by him, as the delegated decision maker, with respect to the release of his report, or any other report, and notes in particular, that as it related to a third party it would be in breach of various privacy requirements if it were to be released, unless that were with the consent of the third party.
He says in paragraph 46 of his affidavit, that an approach was made to that third party employee on 26 November 2009, and that consent was not forthcoming. Mr Thompson also notes, particularly, the exchanges between he and the applicant about other avenues of complaint following his code of conduct investigation and determination, and of the steps that were taken by him, in relation to meeting his obligations, and, more generally, the respondent's obligations, in relation to the provision of information to the applicant.
Mr Thompson was cross‑examined by the applicant in relation to his evidence in relation to this matter, and to the investigation conducted by him. The applicant's inquiry on occasion went beyond areas that fell within the compass of the investigation by Mr Thompson, and on occasions sought what can only be considered as his opinions or views, in relation to certain actions, which Mr Thompson quite properly noted were not with the purview of his role.
He was asked, for example, whether he had a good working knowledge of the department's policies, including their harassment and bullying policies and he indicated that he did. He was then asked whether he knew that if it were the case that the respondent was found to be in breach of any of the requirements that arise, pursuant to those policies, then, the respondent would be liable in relation to such breaches, if it were found that they had not complied. He noted that that was the case, but, he had not been involved in any general inquiry that was made.
Mr Thompson was asked about the actions of the applicant's superior, following complaint made in relation to Mr Bryant, but indicated that that was outside the purview of what he was required to do as the designated decision maker, and that he had focused on inquiry, in relation to Mr Bryant.
The applicant appeared determined to achieve some, as regard alleged failures suggested on points the part of Mr Thompson in his inquiry, by suggesting that he had not been as comprehensive as might have been proper. For example, the applicant questioned him at length, about the dates of complaints made or other actions taken, and when he was unable to be more specific than to say that the report made reference to dates, or the affidavit made reference to dates, the applicant seemed to think that that achieved some advantage on her part.
What was relevant, however, was that Mr Thompson, quite properly, drew a distinction between the relevance or importance of dates in relation to a complaint, as opposed to their relevance or importance, in relation to the general investigation. Mr Thompson said, at one stage, words to the effect, "It's an important part of the complaint, but it is not so important to the investigation”. In fact the allegations are far more important than the date of reporting or making any complaint.
The applicant understandably perhaps, was focused in her cross‑examination of Mr Thompson, upon possible failings in his investigative process, or alternatively influences upon that investigative process, contrary to the interests of the applicant. He was asked specifically about the fact that he was not involved in the human rights and equal opportunity complaint which was brought by the applicant, but subsequently discontinued. He was asked why that was and whether it was to keep his investigative process separate from any other inquiry. He acknowledged that that was the case, and went on to note, "That he had to focus on the applicant's allegations and the investigation against Mr Bryant."
Similarly, when questioned about the reasons for commissioning the report by Wise Workplace he was asked whether he acknowledged that four complaints were in the report seen as substantiated, and he indicated that he was aware of that, but also noted, as contained within his affidavit, that he thought that there were deficiencies in the investigative process. He clearly emphasised the distinction between the investigation and the decisions.
Interestingly, the applicant then challenged the genuineness of the position taken by Mr Thompson, in relation to concerns as to whether there were deficiencies in the report prepared by Wise Workplace, in that she enquired of him whether proceedings had been brought against Wise Workplace, in relation to breach of contract.
He indicated that he had not made any such recommendations, and when asked whether there was any other action taken, he was unable to comment in respect of same. With respect, this was one of the many instances where the applicant either suggested or inferred some conspiracy to defeat her claim rather than to appreciate the different roles of those involved in any enquiry or investigation.
Mr Thompson was asked about the other interviews that he had conducted over and above those which had been previously attended to by Wise Workplace. They included interviews with Mr Van Dyk and Mr Condon, a fellow employee in whom the applicant had confided in. Mr Thompson, I think, quite properly indicated that due particularly to the seriousness of the allegations, and the concerns that were raised, it was appropriate for him to conduct as wide a ranging inquiry as possible. Notwithstanding that Mr Condon in particular, had not witnessed any particular actions, he had been involved in discussions with the applicant and as he had that first-hand knowledge of what the applicant alleged were the serious breaches by the other employee, it was appropriate that there should be more complete investigation, being mindful of the fact that his inquiry in relation to the matter was required to be as he put it, "completely fair", to both the complainant and the other employee.
The applicant then in her cross‑examination of Mr Thompson, got to the brunt of her concerns in relation to the determination. He was asked whether the true reason that he had decided that the report by Wise Workplace was deficient, was not because of flaws but because it had found that certain of the allegations were substantiated, and if that was the case, then the respondent, would have been liable to the applicant for damages. Mr Thompson most vehemently denied any such allegation.
I accept without hesitation the genuineness of that response, and the offensiveness of the allegation made, in relation to any such ulterior motive on the part of Mr Thompson. Mr Thompson was, I thought, a most professional witness, and more particularly had conducted his role as the delegated decision maker in a most professional manner. He had made all inquiry that could and should have properly been made in relation to the matter, and properly balanced the significant amounts of evidence that was made available to him.
In his role as the delegated decision maker it was perfectly appropriate and proper for him to commission the preparation of a report, certainly for the purpose of interviews being conducted and thereafter to consider whether any additional or further inquiry should be made. To suggest, as appeared to be a recurring theme in the applicant's cross‑examination, that Mr Thompson had been influenced by concerns as to the possible liability or consequences for the respondent was without substance.
It was simply a case of the applicant, in my assessment, trying to pull herself up by her own bootstraps, and relying upon conspiracy theories, in order to justify or explain the failure in her complaint brought in respect of these proceedings. Toward the end of her cross‑examination of Mr Thompson, the applicant put a lengthy suggestion to the witness and asked for his response.
Basically, the applicant suggested that the actions taken by Mr Thompson, were influenced by the fact that he knew that she had made a complaint in relation to Mr Bryant, and in relation to her immediate superior, at the time of making allegations with regard to Mr Bryant. Further, that as he had a good knowledge of policy and procedure, that he was acutely aware that the respondent could be liable for the actions of its employee. and in failing to make a reference to concerns expressed with regard to her immediate manager, and knowing of her complaint to the Human Rights and Equal Opportunity Commission prior, to the preparation of the report, as well as having found deficiencies in the Wise Workplace report, that all such factors could be considered by a reasonable person to give rise to a suggestion that Mr Thompson had not brought an impartial mind to the decision to be made by him, in relation to the matter.
Mr Thompson categorically rejected such a suggestion, and I thought showed considerable grace and restraint in the challenge made to his professional approach and inquiry, in relation to the proceedings.
I should note that I was most impressed with the evidence of Mr Thompson, and would find without hesitation that his inquiry in relation to this matter, and decisions, were made in a professional and wholly unbiased or uninfluenced manner.
I turn then to the evidence of the applicant. I found her to be without doubt, one of the most impressive self-represented litigants that I have ever had before me. She was intelligent, articulate and well prepared, in relation to the claim that she brought, in relation to these proceedings.
She acknowledged that there were seven alleged contraventions, though in the original they had been more extensively detailed as 10 contraventions. She indicated however that it was perhaps more accurate to refer to them as seven contraventions, followed by three actions which gave rise to claims of adverse action, coercion, or discriminatorily behaviours.
The applicant's evidence in relation to this matter was provided comprehensively in the material filed, and in particular her Trial affidavit and the annexures, contained within her various affidavits. The applicant acknowledged that Mr Thompson was the ultimate decision maker, but sought to emphasise the fact, that he must have been in some way adversely influenced against her, to have disregarded the substantiated findings that were made by Wise Workplace.
However, she did recognise, that whilst Wise Workplace had found a basis for some substantiation, that Mr Thompson was entitled to conduct further inquiry, and that he had then notified her of his determination, to the effect that the contraventions were not proven.
The applicant indicated in the outline that was provided by her in relation to these proceedings, that she had been denied procedural fairness. When asked to explain what she meant by such a suggestion, she advised that the problem did not lie with the decision of the delegated decision maker, Mr Thompson, but rather arose from the fact that he needed to conduct the investigation with procedural fairness and that he had failed to do so.
When asked whether she accepted that procedural fairness meant a right to be heard and provided a right to be properly apprised of the allegations made against a person, she indicated that it was clear that the decision maker, Mr Thompson, was either biased or influenced adversely to her, and that that was motivated by a desire or wish to protect the respondent.
The applicant indicated that the actual bias of Mr Thompson, related to manipulation or disregard of evidence, but there appears to be little basis upon which such a determination could be made, particularly when the evidence of the inquiry and the consideration of the decision maker was so comprehensive.
The position of the applicant in relation to the matter was troubling, in that she continued throughout her affidavit evidence, but also her oral evidence, to be suggesting an element of conspiracy or manipulation. Where ever a finding was made contrary to the interest of the applicant, or a decision was taken either by the respondent or other government departments, or instrumentalities, it was easy from the applicant's perspective, to construe that there was bias, a breach of procedural fairness, or other impropriety, simply to justify the denial by the applicant, of the legitimacy of what was alleged.
Quite simply, the applicant appears to be convinced, that any finding adverse to her position can only be explained by impropriety on the part of the decision maker, but more widely the respondent and the government generally.
When asked about her position in relation to this matter, the applicant indicated that after she became aware of the decision of Mr Thompson, in respect to there being no basis upon which the allegations could be found substantiated, the decision, "Just kept niggling at me." The applicant also said that she could not understand how the allegations could be seen as unsubstantiated.
She said that a feeling grew that it was, "Not quite right", and she gave evidence to the effect that this feeling quickly enlarged when she started asking questions in relation to the appeal or review procedures that might have been available to her. The applicant indicated when speaking with Mr Thompson that he was, "Guarded in his responses", and wanted to know what she had found out in her own inquiries, rather than to just advise her of her rights.
The fact is, however, that this is a matter entirely of the applicant’s perception, and one that is unable to be substantiated on the evidence that has been provided, in relation to the matter.
Quite simply, the applicant became convinced that the determination in relation to the matter was one that was based not on the evidence that was gathered and the proper application of the procedures and rules, but rather one that was designed to exculpate the department from any liability in relation to inquiry.
The applicant acknowledged towards the latter part of her cross‑examination, that in relation to many of the issues and concerns that were expressed by her, in relation to the behaviours of the department and the departmental officers, as well as the decision maker, that her view was that there had not been compliance by the department or its officers with the regulations or requirements.
Additionally, when questioned about the alleged breaches, arising as a result of discrimination, the applicant continued to repeat that the motivations of the decision maker were purely and simply to ensure that the respondent was protected from being found in any way liable because of sexual harassment or discrimination.
When asked specifically whether it was her hypothesis that the decision to find the allegations unsubstantiated, was so as to remove any liabilities, in relation to the matter, she acknowledged that that was the case, and that it was a similar argument in relation to the entire findings, whether they related to discriminatory behaviour or adverse action on the part of the department or it's officers.
The applicant specifically noted in an answer to such questions that in her view such an intent was, "At the heart of the decisions was the need to avoid legal liability under the Sex Discrimination Act." I would think that it could be properly contended, that that was the view in relation to each and every one of the alleged breaches of the legislation.
The position of the applicant and with respect the absolute flaw in her argument was encapsulated at the end of lengthy questioning about the basis for any stance taken by the applicant. When asked specifically about her position in relation to the matter, she acknowledged that she just didn't know but rather, “held a belief”. When then was asked whether it was the case that she had just coupled all together the concerns that she had to reach conclusion that the decision maker had found the allegations unsubstantiated to avoid liability arising from that determination, she acknowledged, rather tellingly, "That is the hypothesis." Interestingly, she was then asked whether she thought that might have been thought by others to be a fanciful contention and she answered, "Of course."
The fact is that the applicant appears to be able to recognise as an observer looking in, that her position in relation to the matter is hypothetical, and generally without substantiation, but once she becomes more fully involved in her own theories, they become more than simply hypotheses or beliefs but become fact. And further, in a self-serving way, become the basis for explaining any decision contrary to the position taken by the applicant.
The applicant's position in relation to the inquiry made by Comcare about production of documentation seems to arise from similar beliefs held by the applicant. The position of the applicant is to suggest that Comcare were not able to act independently of the Department of Human Services, such that any determination by Comcare of the fact that the report and assessments, which were not initially provided, including the Wise Workplace report, were not relevant to their determination, was as a result of adverse influence or involvement by the respondent.
It is clear, unfortunately, that there is little, if anything, which would be able to convince the applicant of the irrationality of her position, in relation to this matter. Perhaps I need only to further say, that where there is belief, supposition or conspiracy theory on the part of the applicant, I am far more inclined to accept the evidence expressed by the other witnesses in relation to the proceedings.
DISCUSSION
I turn then to the actual complaints made in relation to the proceedings.
Contravention (1). The applicant contends that the respondent's code of conduct investigation deliberately found the applicant's allegations of harassment were unsubstantiated. However, that is simply a contention on the part of the applicant. The applicant says that the adverse action of the decision maker included a failure to afford the applicant procedural fairness throughout the decision making process, suggesting, for example, that the disengaging, or discontinuing of involvement by the investigator, Wise Workplace was an adverse action rather than simply one perfectly entitled to be made by the decision maker, and it would appear, on the evidence, legitimately made by the decision maker.
The respondent, through the delegated decision maker, acted in an appropriate and proper manner at all times. The complaint against the other employee was received and acted upon by the respondent. A decision maker was delegated, and the decision maker conducted an investigation with regard to procedural fairness, being mindful of the fact that procedural fairness does not only relate to provision of information to the complainant, but also requires considerations relevant to procedural fairness in respect of the party alleged to have breached the requirements.
There is no evidence of any aspect of the process having been decided adversely to the applicant. Suggestions by the applicant that the decision maker undermined the applicant's credibility, falsified evidence, or misinterpreted, or misrepresented the statements made by witnesses, is fanciful in the extreme.
The statements are far more designed to justify the stance taken by the applicant in relation to the proceedings than to in any way suggest that there was a breach of any requirement placed directly upon the respondent or the delegated decision maker.
The respondent informed the applicant about matters in relation to her complaint and acted at all times in a manner that was appropriate. The respondent, through the decision maker, addressed the applicant's allegations in a fair, timely, systematic, appropriate, effective and proper way.
The respondent through its own officers, prior to the complaint being made, sought to act upon the applicant's complaint, as is evidenced by the various unchallenged statements of the witnesses called on behalf of the respondent.
It was the applicant who expressly requested that the respondent not escalate, or further take action, in relation to the complaint. And it is hard to imagine a more difficult situation than the, "Catch 22", that the respondent must have found themselves in, where to act would be contrary to the wishes of the complainant, but to fail to act is then seen as in some way, a breach of the obligations or duty of care that falls upon the respondent.
The contravention is not able to be proven in any way in relation to the proceedings.
In relation to the further contraventions alleged to arise from adverse action, as detailed in contraventions 2, 3, 4, 5, 6 and 7, in each instance I would find without hesitation, that the allegations of delay in providing information sought by the applicant, for example, in relation to rights of review, was lawful and proper and as noted in section 342(3), that action taken by an employer is not adverse action if it is authorised by or under the provisions of the Fair Work Act, or any other law of the Commonwealth state or territory.
A decision therefore not to take a further review of actions, if authorised by law, is not adverse to the interests of the applicant. Any and all suggestions of adverse actions or intent on the part of the respondent are without any evidentiary basis whatsoever, and arise much more from the hypothetical assessments of the applicant, or her own need to explain a finding contrary to that which she sought as being explained by bias or other inappropriate action, on the part of the respondent.
Similarly, allegations of coercive behaviours on the part of the respondent, including in their dealings with Comcare, and the Merit Protection Commissioner, are fanciful in the extreme. Those separate entities were in no way coerced or influenced by the actions of the respondent. It is irrelevant whether there was intent to coerce
The third parties, Comcare and the Merit Protection Commissioner, sought information at different times from the respondent, and such information was provided. It may not necessarily have been provided in the first instance without specificity, or without comment by the respondent, but that in no way leads to a suggestion of coercion, as was noted by Weinberg J in the National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114:
Coercion implies a high degree of compulsion, at least in practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply.
To suggest that the actions of the respondent in any way could be connoted as coercive behaviour flies in the face of good sense and a rational consideration of the situation that existed, at the time of request for information.
Insofar as the general complaint of discriminatory behaviours are concerned, the allegations that the contraventions were constituted as a result of the applicant's sex, or because of the applicant's physical or mental disability, again flies in the face of the evidence that was given. Comprehensive actions were taken in relation to the proceedings. There is not a skerrick of evidence to suggest that the action of the respondent were in any way influenced because of the sex or physical or mental health of the applicant.
The applicant has not provided any evidence whatsoever of actions or behaviours taken by the respondent which were as a result of her sex or state of health. To succeed in such a contention would require the applicant to satisfy the court that the respondent would have acted in a different manner if the applicant were not a woman or were not suffering from some physical or mental disability.
Apart from the hypotheses and beliefs stated by the applicant in that regard, there is no evidence whatsoever, and it is clear that whilst section 361 notes that if a person took or is taking action for a reason or intent that would constitute a contravention of part 3-1 of the Act, then it is presumed that it was taken for that reason unless the person proves otherwise. It is necessary in that respect however to consider that the reverse onus of proof, which is referred to in section 361 of the Fair Work Act, only operates if the applicant first establishes that some action that was prescribed by the Fair Work Act was taken against the applicant by the employer.
There is no evidence whatsoever of such action or intent on the part of the respondent, and therefore the reverse onus of proof does not arise in relation to the proceedings.
I am satisfied on the evidence that is before me, in relation to this matter, that there is no basis upon which it could be found in any respect that the respondent has acted in a manner which gives rise to any of the sanctions contained within part 3-1 of the Fair Work Act. Accordingly, the only proper course in relation to proceedings is to dismiss the application in the proceedings, and I intend to so order.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Coker.
Associate:
Date: 17 July 2013
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