Farquhar v Commonwealth of Australia represented by Services Australia - [2023] FedCFamC2G 1100

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Farquhar v Commonwealth of Australia represented by Services Australia [2023] FedCFamC2G 1100

File number: MLG 773 of 2022

Judgment of: JUDGE BLAKE

Date of judgment: 30 November 2023

Catchwords:
INDUSTRIAL LAW – Adverse action – alleged dismissal for making complaints and inquiries – alleged dismissal for taking personal leave – HELD that employee dismissed for conduct and performance reasons, not for making complaints and inquiries.

INDUSTRIAL LAW – Adverse action – alleged adverse action taken because of a temporary absence from work, on the basis of race and on the basis of disability – HELD that employee not subject to adverse action of any kind.

INDUSTRIAL LAW – Alleged failure to provide payslip within one working day of paying an amount to an employee in relation to the performance of work – claim dismissed.

Legislation:
Fair Work Act 2009 (Cth) pt 3-1, ss 97(a), 107(3)(a), 340, 340(1), 340(1)(a), 341, 341(1), 341(1)(a), 341(1)(c)(ii), 342, 342(1), 351, 352, 360, 361, 361(1), 361(1)(a), 361(1)(b), 536, 536(1).

Fair Work Regulations 2009 (Cth) reg 3.01.

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) rr 13.05(1), 13.13.

Workplace Relations Act 1996 (Cth) s 298V.

Cases cited:
Alam v National Australia Bank Ltd (2021) 288 FCR 301

Australian Building and Construction Commissioner v Hall [2018] FCAFC 83

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273

Construction Forestry Mining and Energy Union v Endeavour Coal (2015) 231 FCR 150

Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697

Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108

Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17

Gallagher v Cendak [1988] VicRp 70

General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605

Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171

Khiani v Australian Bureau of Statistics [2011] FCAFC 109

Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1

Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244

Serpanos v Commonwealth of Australia [2022] FCA 1226

Shizas v Commissioner of Australian Federal Police [2017] FCA 61

Tattsbet Ltd v Morrow (2015) 233 FCR 46

Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456

Division: Division 2 General Federal Law

Number of paragraphs: 115

Date of hearing: 14, 15 & 16 August 2023

Place: Melbourne

Counsel for the Applicant: In Person

Solicitor for the Applicant: None

Counsel for the Respondent: Ms Lucas

Solicitor for the Respondent: Lander & Rogers Lawyers
ORDERS

MLG 773 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
HELEN MARIE FARQUHAR
Applicant

AND:
COMMONWEALTH OF AUSTRALIA REPRESENTED BY SERVICES AUSTRALIA
Respondent

ORDER MADE BY:

JUDGE BLAKE

DATE OF ORDER:

30 NOVEMBER 2023

THE COURT ORDERS THAT:
1.The Application dated 12 April 2022 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:

This is an application by Helen Marie Farquhar (‘Ms Farquhar’). Ms Farquhar claims the Commonwealth of Australia represented by Services Australia (‘Services Australia’) contravened various provisions of the Fair Work Act 2009 (Cth) (‘Act’).
Ms Farquhar represented herself at the hearing, and throughout the proceedings. She relied on three affidavits filed prior to the hearing, as well as various documents tendered during the course of the hearing. Given her status as an unrepresented litigant, I also permitted her to expand upon her evidence by giving evidence-in-chief orally from the witness box. She was cross-examined.
Services Australia relied on evidence given by Arpita Patel (‘Ms Patel’) (Team Leader), Martin Bonett (‘Mr Bonett’) (formerly a Team Leader), Rebecca Fidge (‘Ms Fidge’) (Program Manager and formerly a Services Support Manager), Jill Davidt (‘Ms Davidt’) (Senior Human Resources Advisor), Jodie Mather (‘Ms Mather’) (currently Director of People Support – HR Advisory), Karissa Stuckings (‘Ms Stuckings’) (Director of Employee Relations), and Georgie Hall (‘Ms Hall’) (Assistant Director Payroll Services), as well as documents tendered during the hearing. Each of these witnesses was cross-examined by Ms Farquhar except for Ms Stuckings.
THE CLAIMS
Ms Farquhar commenced the proceedings by filing an Application, and Form 2 dated 12 April 2022. On 18 October 2022, Services Australia filed an application seeking to dismiss the proceedings under rule 13.13, or alternatively rule 13.05(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). That application came before the Court on 1 December 2022. At that hearing, I clarified with Ms Farquhar the claims she wished to pursue. Following that hearing, I made orders confining the issues at trial to the following:
2. The Final Hearing is to deal with on [sic] the following issues only:
(a)whether Ms Farquhar was dismissed in contravention of s 341(1)(a) of the Fair Work Act 2009 (Ct) [sic] (‘Act’) for complaining about bullying to her team leader;
(b)whether Ms Farquhar was dismissed in contravention of s 352 of the Act because of her temporary absence from work due to illness or injury;
(c)whether Ms Farquhar was subjected to adverse action because of her race in contravention of s 351 of the Act when she was told that she “spoke like an aboriginal person”;
(d)whether Ms Farquhar was subjected to adverse action because of a physical disability in contravention of s 351 of the Act when she was reprimanded for taking too long to go to the toilet or taking too many toilet breaks; and
(e)whether Services Australia contravened s 536 of the Act by failing to give a payslip to Ms Farquhar within one working day of paying an amount to Ms Farquhar in relation to the performance of work.
3.All other previous claims made by Ms Farquhar be summarily dismissed under rule 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
The orders above were made with the agreement of Ms Farquhar.
Notwithstanding the efforts of the Court to clarify the issues in dispute, the scope of the claims advanced by Ms Farquhar expanded during the trial. As will become apparent, I have endeavoured to deal with all of the claims advanced by Ms Farquhar (given her status as an unrepresented litigant), and notwithstanding the terms of the orders made on 1 December 2022.
PRINCIPLES
Section 340 of the Act
Section 340 of the Act is found within Part 3-1 of the Act. Relevantly, section 340(1) of the Act provides as follows:
(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.
The term ‘adverse action’ is defined in section 342(1) of the Act. Relevantly, ‘adverse action’ includes the dismissal of an employee from employment, injury to the employee in his or her employment, altering the position of the employee to the employee’s prejudice, or discriminating between the employee and other employees of the employer.
For the purposes of section 342 of the Act, an employer:
(a)‘injures [an] employee in his or her employment’ if it subjects him or her to legally compensable injury; and
(b)‘alters the position of [an] employee to the employee’s prejudice’ if, by its conduct, it visits any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.
See: Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, 18 [4] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ).
An alteration to the position of an employee will be prejudicial if it visits adverse consequences that are real and substantial, rather than merely possible or hypothetical: Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244, 250 [32] (Gray, North and Besanko JJ); Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697, [48] (Katzmann J).
Section 341(1) of the Act identifies when a person has a ‘workplace right’. It relevantly provides as follows:
(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.
Extensive consideration has been given by Courts to the words ‘complaint or inquiry’, and to the meaning of the phrase ‘is able to make a complaint or inquiry…if the person is an employee – in relation to his or her employment’ in section 341(1)(c)(ii) of the Act. See for example: Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456 at [41], and [43]; Serpanos v Commonwealth of Australia [2022] FCA 1226 at [89]; Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46 at [28]; Alam v National Australia Bank Ltd (2021) 288 FCR 301 at [94]; [97]-[98].
Section 351 of the Act
Insofar as Ms Farquhar makes allegations about a contravention of section 351 of the Act, that section provides as follows:
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 orientation, 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 2010 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 352 of the Act
Ms Farquhar also advances a claim under section 352 of the Act. That section provides as follows:
352 Temporary absence—illness or injury
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Regulation 3.01 of the Fair Work Regulations 2009 (Cth) (‘Regulations’) sets out prescribed kinds of illness or injury for the purposes of section 352 of the Act. It provides as follows:
3.01 Temporary absence—illness or injury
(1)For section 352 of the Act, this regulation prescribes kinds of illness or injury.
NoteUnder section 352 of the Act, an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
(2)A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:
(a)       24 hours after the commencement of the absence; or
(b)       such longer period as is reasonable in the circumstances.
Note:The Act defines medical certificate in section 12.
(3)      A prescribed kind of illness or injury exists if the employee:
(a)       is required by the terms of a workplace instrument:
(i)        to notify the employer of an absence from work; and
(ii)       to substantiate the reason for the absence; and
(b)       complies with those terms.
(4)A prescribed kind of illness or injury exists if the employee has provided the employer with evidence, in accordance with paragraph 107(3)(a) of the Act, for taking paid personal/carer’s leave for a personal illness or personal injury, as mentioned in paragraph 97(a) of the Act.
NoteParagraph 97(a) of the Act provides that an employee may take paid personal/carer’s leave if the leave is taken because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee.
(5)      An illness or injury is not a prescribed kind of illness or injury if:
(a)       either:
(i)        the employee’s absence extends for more than 3 months; or
(ii)the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and
(b)the employee is not on paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence.
(6)In this regulation, a period of paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act does not include a period when the employee is absent from work while receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers’ compensation.
The reasons for the adverse action and the reverse onus
Sections 340, 351, and 352 of the Act operate in conjunction with section 360, and 361 of the Act. Those sections provide as follows:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
In Australian Building and Construction Commissioner v Hall [2018] FCAFC 83 (‘Hall’), a Full Court of the Federal Court examined closely the text of section 361 of the Act. The Full Court set out a number of important observations about what needs to occur before section 361 of the Act is engaged. While the Full Court was there discussing a case that was run on the pleadings, the comments made are nevertheless apposite to the present matter. The Full Court stated the following:
[13]Stated compendiously, s 361(1) places an onus or burden on a person involved in a proceeding relating to a contravention of Part 3-1 of the FWA to “prove otherwise” than that he or she took the contravening action for the particular reason, or with the particular intent, alleged in the applicant’s application. The consequence of a failure to discharge this burden is that it is presumed against the person concerned that the contravening action was taken for that particular reason or with that particular intent. Before this presumption operates, however, two pre-conditions must be met. First, under s 361(1)(a) the particular reason or the particular intent for the contravening action must be alleged in the application. It is with respect to that alleged reason or that alleged intent that the person concerned must prove otherwise. The word “particular” in s 361(1)(a) must be given its ordinary and natural meaning. Relevantly, that is: “2. being a definite one, individual, or single, or considered separately: each particular item. 3. distinguished or different from others or from the ordinary; noteworthy; marked; unusual. ... 6. dealing with or giving details, as an account, description, etc., of a person; detailed; minute; circumstantial”. See Susan Butler (ed), Macquarie Dictionary (Pan Macmillan, 7th ed, 2017) vol 2, 1096.
[14]It follows that an allegation under s 361(1)(a) must precisely and distinctly identify the alleged reason, or the alleged intent, for the contravening conduct. This need for care and precision in making the allegations in connection with which the presumption may operate is similar to that required with respect to the analogous situation of averments in criminal prosecutions (see Gallagher v Cendak [1988] VicRp 70; [1988] VR 731 at 738–739 (Vincent J) and JD Heydon, Cross on Evidence (LexisNexis Butterworths, 11th ed, 2017) at [7105]). In Part 3-1 of the FWA, it is also heightened by the provisions of s 360. That section, when read with s 361(1)(a), requires a person who is alleged to have taken a contravening action to establish that the particular reason for which it is alleged that person took that action is not included among any of the reasons for which he or she took that action. It is important to note that, in contrast to s 361, s 360 only applies to a “particular reason” and it does not extend to a “particular intent”, both of which are covered by s 361. Section 360 therefore only applies to the “particular reason” component of s 361.
[15]The second pre-condition which must exist for the presumption in s 361(1) to operate is of equal importance in this matter. It is the requirement in s 361(1)(b) that “taking that action for that reason or with that intent would constitute a contravention of this Part”. This precondition therefore requires more than an allegation with respect to an action, reason or intent. Additionally, it requires that taking the alleged action, for the alleged reason or with the alleged intent (or both), “would constitute a contravention of that Part”.
[16]The Full Court alluded generally to this aspect of s 361 in Tattsbet Ltd v Morrow (2015) 233 FCR 46; [2015] FCAFC 62 albeit without mentioning the effect of s 361(1)(b). An issue under consideration in that proceeding concerned a contravention of s 340(1)(a) of the FWA. With respect to the question whether s 361 reversed the onus or burden of proof for such a contravention “upon nothing more than the making of an allegation”, Jessup J (with whom Allsop CJ and White J agreed) cited a long list of first instance judgments which supported the conclusion that “the party making an allegation that adverse action was taken ‘because’ of a particular circumstance needs to establish the existence of the circumstance as an objective fact”: at 75 [119].
[17]Of more direct relevance to the requirements of s 361(1)(b), an earlier Full Court said of a predecessor provision to s 361 (s 298V of the Workplace Relations Act 1996 (Cth)) that it did not “relieve the applicant ... from proving on the balance of probabilities each of the ingredients of the contravention. It enables the allegation to stand as sufficient proof of the fact unless the employer proves otherwise”: see Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463 at 501; [1999] FCA 1108 at [109] (Wilcox and Cooper JJ).
[18]On this point, it is also worth mentioning the more recent Full Court decision in Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273; [2015] FCAFC 157 which the primary judge cited in his reasons at [23] (see below at [98]). In that matter, Jessup J (with whom Rangiah J agreed) observed that the question whether the presumption in s 361 had been displaced fell to be determined at the end of the trial and its answer would depend on “the assessment of all of the facts by the trier of fact, including, most importantly in the conventional case, his or her assessment of the evidence given by the decision-maker acting on behalf of the employer” (see at [27]–[28]).
[19]Having regard to these observations and, in particular, to the provisions of s 361(1)(b), we consider that an applicant wishing to take advantage of the presumption in s 361, in addition to making the allegation in a form that meets the requirements of s 361(1)(a), must provide sufficient information about the action, and the related reason or intent (or both) for which that action was taken, to show that, in combination, they would constitute a contravention of a provision of Part 3-1 of the FWA. This means that, in a proceeding such as the present one, which was conducted on pleadings, an applicant is required to plead in his or her statement of claim all the material facts concerning the contraventions alleged against Services Australia. As French J said in Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171 at 173; [1991] FCA 557 at 6, “[a] material fact is one which is necessary to formulate a complete cause of action. ... Material facts must be pleaded with the degree of specificity necessary to define the issues and inform the parties in advance of the case they have to meet.”

Assuming the operation of the presumption in section 361 of the Act is enlivened, in order to rebut the presumption in section 361 of the Act, an employer must typically lead evidence to show that the proscribed reason, or circumstance that is alleged did not factor in any substantial, or operative way as a reason for the conduct that an applicant seeks to impugn: General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605, 612 (Gibbs J), 619 (Mason J, with whom Stephen and Jacobs JJ agreed). It falls to the Court to determine ‘the actual reason of the decision-maker, in his or her own mind’: Construction Forestry Mining and Energy Union v Endeavour Coal (2015) 231 FCR 150 at [32] (Jessup J, with whom Perram J agreed at [77], Bromberg J dissenting).
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, the High Court considered how an employer might rebut the presumption contained in section 361. French CJ and Crennan J at [44]-[45] stated:
[44]There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”
[45]This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. [footnotes omitted]
Where an employer gives evidence of why it engaged in the conduct the employee complains about, the inquiry starts, and ends with whether, in fact, those reasons relevantly actuated that conduct. Importantly in the context of the way this matter proceeded before me, and was argued by Ms Farquhar, it is not necessary for an employer to prove that the reasons that actuated its conduct were procedurally or substantively fair: Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [33] (Gray, Cowdroy and Reeves JJ). A claim under Part 3‑1 of the Act ‘…is not a broad inquiry as to whether [Ms Farquhar] has been subjected to a procedurally or substantively unfair outcome’: Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17, [48] (Bromberg J).
It is necessary to examine the minds of those who influence the decision of a corporation, or other organisation. Courts have held it necessary to examine the minds of more than one individual when a decision is made jointly, where a decision is made on recommendation, or where reliance is placed by a decision-maker upon another: see, for example, National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139, and Shizas v Commissioner of Australian Federal Police [2017] FCA 61.
Section 536 of the Act
Finally, insofar as Ms Farquhar’s claim under section 536 of the Act is concerned, that section provides as follows:
536 Employer obligations in relation to pay slips
(1)An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.
FACTS
On 14 June 2021, Services Australia offered employment to Ms Farquhar. The offer was for Ms Farquhar to be employed at Australian Public Service (‘APS’) Level 2 on a full-time basis as part of the Indigenous Apprenticeship Program (‘IAP’). She was to commence employment on 28 June 2021.
Ms Farquhar did not commence work on 28 June 2021 because she was unwell. She ultimately commenced on 1 July 2021. On 2 July 2021, Ms Farquhar was again absent from work. On 5 July 2021, Ms Farquhar was late for work. On 6, and 7 July 2021, Ms Farquhar was again absent from work.
On 8 July 2021, a meeting was held between Mr Bonett, Ms Davidt, and Ms Fidge (among others) to discuss Ms Farquhar’s absences. Each of Mr Bonett, Ms Davidt, and Ms Fidge were aware that Ms Farquhar had been unable to attend work for a range of reasons she had given to Services Australia, including suffering from gastroenteritis. It is also apparent that Ms Farquhar disclosed a range of other issues, including that she had anxiety, had been sexually assaulted by her husband who has a brain injury, and has a severely disabled child with a rare illness. Mr Bonett, Ms Davidt, and Ms Fidge discussed options to assist Ms Farquhar, including leave without pay to allow to her to focus on her issues, and potentially encouraging her to seek medical advice about any conditions so that workplace adjustments could be considered.
On 8 July 2021, Mr Bonett met with Ms Farquhar. He offered her a period of leave without pay which she refused as she was keen to work. Mr Bonett’s note of the conversation is in evidence. In the note, Mr Bonett records, among other things, that Ms Farquhar would seek an appointment with her General Practitioner in the near future to discuss reasonable adjustments for her physical and mental health, to be able to manage her workload, and also records Ms Farquhar stating she had difficulty with prolonged sitting, and early daily commencement times.
On 9 July 2021, Mr Bonett received a letter from Dr Raj Kudikyala concerning Ms Farquhar. That letter provided as follows:
The purpose of this letter is to keep the employer/s to keep updated with the concerns currently being experienced by Helen.
Ongoing hip pain concerns due to an injury sustained early this year.
Family discord (between Helen & her partner) as ongoing issues.
Required actions suggested: From an employer's perspective to help Helen cope with the above issues during these difficult times. The request being, a professional assessment by an Occupation therapist, for workplace modifications (furniture for seating etc) compatible to her ongoing Hip & back concerns …
Mr Bonett forwarded the letter above to Berni Branovski, and Ms Fidge. He made attempts to arrange an assessment, but was unable to do so immediately given Ms Farquhar’s absences. When he eventually arranged an assessment to take place on 26 July 2021, Ms Farquhar was absent. Despite this, Mr Bonett nevertheless made changes to Ms Farquhar’s desk location at the Services Australia Collins Street Office, and obtained another more suitable chair for her.
On 23 July 2021, while Mr Bonett was on leave, Ms Fidge and Iresha Perera (‘Mr Perera’), who was Ms Farquhar’s acting Team Leader, met with Ms Farquhar to discuss a number of matters. During the meeting, Ms Fidge and Ms Perera, among other things, reinforced with Ms Farquhar the following: the importance of being at work at the hours that she is scheduled and completing her record of attendance, instances where she had been late in completing her record of attendance, the importance of being at work on time as she still has training to undertake, and the importance of calling the attendance line if she was running late for work to inform Services Australia of her expected time of arrival. Ms Farquhar was offered the possibility of changing her work hours, but advised that she would like to retain the work hours she had.
On 1 August 2021, Ms Fidge sent an email to Ms Farquhar reminding her to update her record of attendance. On the same day, Ms Fidge also sent an email to, among others, HR Support, and Mr Bonett, which noted that Ms Farquhar had not progressed any further with her proficiency, had missed her workplace assessment, and was only at work for part of the day on 29 July 2021.
In around August 2021, Ms Fidge made arrangements for Ms Farquhar to work at the Bourke Street Office. There were staff available to support Ms Farquhar at the Bourke Street Office; the Collins Street Office did not have any staff on-site due to Covid-19 restrictions.
Between 4 August 2021, and 7 September 2021, Ms Farquhar was absent from work except for 18 August 2021.
On 26 August 2021, Mr Bonett spoke with Ms Farquhar. In the meeting, Mr Bonett discussed with Ms Farquhar an upcoming medical procedure Ms Farquhar was to undergo to address the effects of a kidney stone. Ms Farquhar requested to work from home during this time, but was told this was not possible because she was still undergoing training. Ms Farquhar was told that she would be moved to the Bourke Street Office where there were supports available. Ms Farquhar was informed that she had the option to resign if the timing was not right for her, and to reapply for the IAP at a later time. In response, Ms Farquhar expressed her gratitude for the continued support she received, and stated that she was keen to continue with her training, and not resign from her apprenticeship and reapply at a later stage.
At around this time, Mr Bonett was required to prepare a draft probation report for Ms Farquhar. On 10 September 2021, Mr Bonett met with Ms Farquhar to discuss the draft probation report, and a letter of direction that was to be given to her (‘Direction Letter’). Mr Bonett went through the draft probation report, and the requirements in the Direction Letter with Ms Farquhar. Following that meeting, copies of the draft probation report, and the Direction Letter were sent to Ms Farquhar with a request that she sign the probation report. She subsequently did so.
The finalised probation report signed by Ms Farquhar, and Mr Bonett is in evidence. It records Services Australia’s view that there were various issues with Ms Farquhar’s performance, or conduct, including the following:
(a)that Ms Farquhar did not meet expected standards of output, and performance. Ms Farquhar had attended 35% of the 45 scheduled days at work, and was late on 10 occasions when she had attended for work. It is noted in the report that this impacted Ms Farquhar’s training;
(b)that Ms Farquhar did not meet expected standards of behaviour. It is noted that concerns had been raised with Ms Farquhar about reporting absences, including days in which she has been late to work. The report notes that the Direction Letter was to be issued to Ms Farquhar regarding these matters; and
(c)that Ms Farquhar did not meet expectations overall. It is noted in the report that it is hoped that Ms Farquhar will have the opportunity to demonstrate required proficiencies and behaviours to complete her probation.
Ultimately, Mr Bonett’s recommendation in the probation report was for Ms Farquhar’s probation to be extended for a further three months. Termination of employment was not recommended by Mr Bonett.
In addition to signing the probation report, Ms Farquhar was invited to add her comments to the report. In the comment box, Ms Farquhar wrote ‘Since becoming aware of attendance line, record keeping & timesheets requirements, I have contacted every day & updated record whilst at work. Thnx’.
The Direction Letter is dated 10 September 2021, and is addressed to Ms Farquhar from Mr Bonett. In the Direction Letter, Ms Farquhar is directed to:
(a)comply with the absence reporting requirements as outlined in the Department of Human Services Agreement 2017-2020 (‘Agreement’);
(b)comply with sub clause F2.1 of the Agreement, that an employee must retain an accurate record of their attendance, including commencement, break and finish times, and records of their leave of absences;
(c)comply with subclause F10.2 and F10.4, that an employee must seek prior approval before accessing, or accruing flex time; and
(d)adhere to your agreed work schedule.
In the Direction letter, Ms Farquhar is also informed by Mr Bonett that a failure to comply with the directions in the letter may result in the implementation of a range of sanctions, including termination of employment.
Subsequent to all of this, Mr Bonett prepared a probation performance support plan for Ms Farquhar. Ultimately, on 5 October 2021 Mr Bonett met with Ms Farquhar to discuss the performance support plan. Mr Bonett was unable to meet Ms Farquhar any earlier because she had been absent from work since leaving work early on 22 September 2021. A copy of the probation performance support plan signed by Ms Farquhar is in evidence before me. The document records, among other things, areas where Ms Farquhar needed to improve, strategies to improve performance or behaviour, support to be provided, and the measure of improvement required. Ms Farquhar signed the document.
On 20 October 2021, Ms Patel became Ms Farquhar’s Team Leader. Ms Patel was aware of the performance support plan, and was aware of the supports Ms Farquhar had been receiving. She did not, however, read the probation report.
On 22 October 2021, Ms Patel had her first conversation with Ms Farquhar over Microsoft Teams. At around this time, Ms Farquhar asked to change her start time as she was frequently coming in late. Ms Patel agreed to that request, and Ms Farquhar’s start time was changed from 8:30 am to 9.00 am from 25 October 2021. Despite that change, however, Ms Farquhar continued not to adhere to work hours. Ms Patel states, and I accept, that Ms Farquhar only attended on time on one day in the first week the start time was changed to 9.00 am. In the second week of the 9.00 am start, Ms Farquhar was late for work on 1 November 2021.
On 25 October 2021, Ms Farquhar sent a text message to Ms Patel in which she stated ‘my foot has small fracture makes walking difficult, can only work slowly’. Ms Patel says, and I accept, that apart from this text message, Ms Farquhar did not advise Ms Patel that she was suffering from any disability.
At this stage, Ms Farquhar had still not demonstrated proficiency in relation to telephony skills. Ms Farquhar was still subject to quality checking in relation to her calls. Each day after taking calls, Ms Farquhar was to complete a checking form which was then provided to the Services Australia Quality Checking Team. As a result of this, and other measures, including being copied on emails, Ms Patel was able to monitor Ms Farquhar’s performance in relation to her telephony skills.
On 26 October 2021, Ms Patel arranged for the workplace assessment, which had still not been conducted given Ms Farquhar’s various absences, to occur at the Collins Street Office on Friday, 29 October 2021.
In early November 2021, Ms Patel took steps to complete an updated performance support plan. She was able to confirm the satisfactory completion of the IAP modules, and that Ms Farquhar had met the absence reporting requirements by calling the Collins Street Attendance Line. Ms Patel identified that Ms Farquhar was not meeting expectations in relation to her adherence to her schedule. Among other things, Ms Patel identified instances of late starts, and incorrect use of codes for scheduled activities.
As part of this process, on 5 November 2021, Ms Patel conducted a quality checking evaluation in relation to a call that Ms Farquhar had taken on 25 October 2021. Ms Patel listened back to the recording of the call, and formed the view that the customer had not been treated in a professional manner by Ms Farquhar.
On 8 November 2021, Ms Patel met with Ms Farquhar over Microsoft Teams to discuss quality checking feedback, to identify learning gaps, and also discuss what resources she could have used. Ms Patel subsequently sent Ms Farquhar an email attaching the performance support plan. That document, which had been completed up to that point by Ms Patel, identifies areas in which Ms Farquhar was not yet meeting expectations. I note that at some stage, Ms Farquhar added comments to the document, and in those comments stated that ‘I agree with the discussions of today’s interim probation report meeting. I take on board and accept my errors regarding comments in personal in cdms…’.
Following the meeting, Ms Patel sent the performance support plan to Ms Farquhar. She never received any response from Ms Farquhar in relation to the performance support plan.
On 9 November 2021, a technical update meeting was held. It appears Ms Farquhar did not receive that invitation. She joined the meeting late, and other employees were leaving the meeting to complete a quiz. She subsequently sent on the group chat, a number of messages to Ms Patel in which she alleged Ms Patel criticised her every move, and that Ms Patel had pushed her so far she was considering resigning. The messages also mentioned in general terms Ms Farquhar’s difficulties with being subjected to family violence. Following a brief conversation between Ms Farquhar, and Ms Patel, Ms Farquhar told Ms Patel by text message that she was going to seek support from the IAP team, and that she felt, among other things, she was being harassed, bullied, and was unsupported despite having disclosed her health issues, personal relationship issues, and family violence issues. Ms Farquhar then left work.
At approximately 2.15 pm on 9 November 2021, Ms Farquhar sent an email to HR Support, copied to Ms Fidge, and Ms Patel. In that email, Ms Farquhar stated, among other things:
(a)that she did not feel she had been supported in the workplace, and that she felt she had been bullied, and harassed in the workplace, including by Ms Patel;
(b)that Ms Patel messaged her three times by 9:09 am to ask why she was not logged in, and taking calls;
(c)that she was reprimanded by Ms Patel for taking seven minutes to walk 250 steps to, and 250 steps from the toilet; and
(d)that she had fully disclosed her health issues, personal relationship issues of family violence, and other matters to Services Australia.
At 9.15 am on 10 November 2021, Ms Davidt responded to Ms Farquhar’s email complaint of 9 November 2021. In that email;
(a)Ms Farquhar was advised that HR Support was an advisory service, and if she wanted someone to represent her, she should feel free to contact the relevant union (CPSU);
(b)Ms Davidt summarised the various supports that had been provided to Ms Farquhar from the business unit, the IAP, and her Rehabilitation Case Manager, and stated that she was satisfied Ms Farquhar had been provided with adequate support;
(c)Ms Davidt acknowledged the concerns raised by Ms Farquhar about being bullied, and harassed, and addressed each of the matters raised by Ms Farquhar in her email;
(d)Ms Davidt stated that ‘While it is appreciated that you have indicated that your walking is limited due to your foot, hip and back injuries; the agency has not received any medical information about any additional workplace adjustment (outside of arranging a workstation assessment) that is required to manage these conditions in the workplace. It is therefore reasonable and appropriate for your line manager to raise with you your adherence to schedule – particularly as this is a matter that has previously been discussed with you, is the subject of a direction letter issued to you on 10 September 2021 and is a performance measure in the Performance Support Plan that you are currently participating in’;
(e)Ms Davidt encouraged Ms Farquhar to review the Preventing and Resolving Workplace Bullying Policy, and also the Managing Complaints Policy, and invited Ms Farquhar to raise further concerns, and provide further information; and
(f)Ms Davidt noted that Ms Farquhar had left the workplace on 9 November 2021, and reminded her, in line with the Direction Letter issued to her previously, that she was required to provide medical evidence for all absences or personal leave for the remainder of the year.

Ms Farquhar did not attend for work after 9 November 2021. She did not take any further step to pursue her complaints about bullying, harassment, or discrimination despite the invitation from Ms Davidt. Ms Farquhar’s absences from that time until her employment ended were mostly, but not completely, supported by medical certificates.
On 18 November 2021 at 12.06 pm, Ms Patel sent an email to Ms Farquhar which attached the performance support plan, and a further probation report that she had prepared.
In that email, Ms Patel advised Ms Farquhar, among other things, that Ms Farquhar had not met the Telephony Skills Assessment, Quality, Customer Service Time, Absence Reporting, and the IAP Check Point assignments, and that the recommendation was that Ms Farquhar’s employment be terminated. Ms Farquhar was requested to provide any responses by close of business on 22 November 2021.
At 2.18 pm, Ms Farquhar sent an email to Ms Patel. In that email, Ms Farquhar stated ‘My proficiency has not been achieved, as even though i am not making errors on any system applications, i have unfortunately not used approved terms in comments. This is due to various different instructions during training, and I’ve been away since this was last made known to myself’. She requested some documents be sent to her. These were subsequently sent to her by Ms Patel, along with a reminder that while Services Australia had received some medical certificates from Ms Farquhar in relation to her absences, it had not received certificates to cover all the days of absence.
On 19 November 2021, communications passed between Ms Farquhar, and Ms Patel in relation to the probation report. Ms Farquhar provided comments on the probation report. Ms Patel subsequently provided the probation report, and performance support plan to HR Support. Ms Patel understood that by sending these documents to Ms Davidt in HR Support, she was recommending to the person delegated with decision-making authority that Services Australia terminate Ms Farquhar’s employment, that Ms Farquhar would have an opportunity to respond to any proposed disciplinary action, and that while the process unfolded, it was business as usual.
On 22 November 2021, Ms Davidt sent an email to Ms Mather, Director of People Support – HR Advisory. The email contained various attachments, and may be described as a package of briefing documents for Ms Mather. Ms Mather was the person with the relevant delegated power to terminate Ms Farquhar’s employment. Ms Mather was asked to review, and consider the recommendation to terminate Ms Farquhar’s employment, and, if appropriate, sign a letter attached to the package that if issued, would notify Ms Farquhar of Services Australia’s intention to terminate her employment.
Ms Mather considered the probation report, and the performance support plan, and considered Ms Farquhar’s performance, and conduct to be unsatisfactory. Ms Mather also considered that there had been enough time for Ms Farquhar’s performance to be assessed towards the end of her probation. She further considered that Ms Farquhar’s conduct may amount to a failure to adhere to a lawful and reasonable direction, given the content of the Direction Letter issued to her on 10 September 2021.
On 23 November 2021 at 2.10 pm, Ms Mather wrote to Ms Davidt and indicated it was appropriate to issue to Ms Farquhar the notice of intent to terminate Ms Farquhar’s employment.
On 29 November 2021, Ms Mather was provided with Ms Farquhar’s response to the notice of intent to terminate. Ms Mather then considered whether to proceed with the termination of employment in light of Ms Farquhar’s response. Ms Mather considered, among other things, Ms Farquhar’s concern about the perceived lack of training, but was satisfied that the training had been satisfactory. Ms Mather also considered Ms Farquhar’s failure to attend for work, and report her absences from 22 to 23 November 2021 to be a relevant factor as it indicated ongoing behavioural issues, and a failure to follow requirements. On the basis of these matters, Ms Mather was satisfied there were proper grounds to terminate Ms Farquhar’s employment on the basis that she had failed to meet a condition of engagement, namely, unsatisfactory performance and conduct during the probation period. Ms Mather subsequently signed the notice of termination of employment on 29 November 2021.
WAS MS FARQUHAR DISMISSED IN CONTRAVENTION OF SECTION 340 OF THE ACT?
Dismissal for making a complaint about bullying and harassment
Ms Farquhar contends that she was dismissed for complaining about bullying, and harassment from her Team Leader, Ms Patel.
Services Australia dismissed Ms Farquhar. It concedes that Ms Farquhar exercised a workplace right by making complaints in her employment. The relevant issue remaining for the Court is whether Ms Farquhar was dismissed from employment because she made the complaints.
Services Australia contends that it dismissed Ms Farquhar from employment because of unsatisfactory performance, and unsatisfactory conduct. Three persons were involved in the process leading to the decision to terminate Ms Farquhar’s employment. They were Ms Patel, Ms Davidt, and Ms Mather. It is necessary to consider the evidence of these three individuals in order to ascertain whether the reverse onus in section 361 of the Act has been discharged by Services Australia.
Ms Patel made the recommendation to dismiss Ms Farquhar. That recommendation effectively arose from the completion of the further probation report. The further probation report was prepared by Ms Patel. Ms Patel’s evidence was that Ms Farquhar had satisfactorily completed the mandatory learning modules as outlined in the performance support plan. Ms Patel also assessed that Ms Farquhar had met expectations regarding the accuracy of maintaining her attendance record. Ms Patel considered, however, that Ms Farquhar had not met expectations in relation to the telephony skills assessment in any of the relevant weeks. She also considered that Ms Farquhar had met absence reporting expectations in 4 out of 5 weeks, and therefore she did not meet overall expectations in that area (as the requirement is to achieve 100% compliance). Ms Patel further found that Ms Farquhar did not meet expectations regarding scheduled work hours. Overall, Ms Patel’s evidence was that Ms Farquhar was not right for the role, that her work performance was deficient, and that additional time (by way of extending the probation period, and continuing the supports that had been provided) would not result in Ms Farquhar satisfactorily completing the probation. Ms Patel’s evidence was that, having regard to these matters, termination of employment was the appropriate outcome.
Ms Patel was asked, inter alia, whether she dismissed Ms Farquhar because Ms Farquhar had made a complaint of bullying and harassment, or because Ms Farquhar was absent from work. She firmly denied doing so.
As noted above, Ms Davidt received the documents, including the probation report, from Ms Patel on 19 November 2021. Ms Davidt’s evidence was that her role was to ‘act on a recommendation made by the business line by taking information from the business line in relevant areas of the agency…and providing information to the delegate’. As noted earlier, Ms Davidt prepared a brief of documents for Ms Mather, and sent those documents to her.
Given the unrepresented status of Ms Farquhar, I questioned Ms Davidt as to whether her role was merely to pass information on to Ms Mather that had been provided by the business line, or whether she was able to provide her own views to the delegate. Ms Davidt explained that if she felt a particular case was deficient, she would take the matter back to the business unit, and ask the business unit to address it. If individuals in the business unit wished to proceed, she might then outline her concerns to the delegate. It seems clear from this information, and other answers that she gave, that Ms Davidt is not just a person who passes information on. She has the opportunity to influence events, and decisions. Having said that, Ms Davidt made it clear in her evidence, and in her answers to the Court from the witness box, that in Ms Farquhar’s case, she simply passed on the information obtained from the business unit to Ms Mather.
Ms Davidt’s evidence was that in presenting the recommendation to Ms Mather, she did not take into consideration Ms Farquhar’s complaint about bulling or harassment, her race or her disability. Ms Davidt stated that in her view, the complaint had been dealt with. She also stated that her role in actioning the recommendation was based on her understanding that Ms Farquhar was not meeting the requirements of her probation.
Ms Mather holds a delegation from the Agency Head. The delegation enables her to make decisions, including decisions to terminate the employment of certain APS employees. It was Ms Mather who had the ultimate power, and made the ultimate decision to terminate Ms Farquhar’s employment.
Ms Mather gave evidence of her receipt of the email from Ms Davidt on 22 November 2021. Ms Mather’s evidence is that she read, among other things, the probation report, the performance support plan, and emails. Ms Mather’s evidence was that having read the documents that had been sent to her, she considered that Ms Farquhar’s performance and conduct was unsatisfactory. Ms Mather considered there was sufficient evidence for her to issue a notice of intention to terminate Ms Farquhar’s employment.
In reaching this conclusion, Ms Mather’s evidence was that she was aware Ms Farquhar had taken a significant amount of leave, and was also aware that family violence issues, and health issues had been a factor in her taking the leave. Ms Mather’s evidence was that she had a good understanding of the business areas expectations. Ms Mather’s evidence was that even taking those matters into account, she considered there had been enough time for Ms Farquhar’s performance to be assessed towards the end of her probation.
Of some significance, Ms Mather also considered that Ms Farquhar had failed to adhere to the directions contained in the Direction Letter of 10 September 2021. Ms Mather stated that Ms Farquhar’s failure to comply with the requirements of the Direction Letter was a ‘persuasive factor in my decision to issue the notice of intent to terminate’.
Ms Mather stated that given these matters, she was satisfied it was appropriate to issue the notice of intent to terminate Ms Farquhar’s employment.
Ms Mather gave evidence that on 29 November 2021, she received a further email from Ms Davidt which contained, among other things, Ms Farquhar’s response dated 26 November 2021. Ms Mather noted that in her response, Ms Farquhar had raised concerns about a perceived lack of training, however, on reviewing the matter, she (Ms Mather) considered the amount of training to have been provided as being satisfactory. Ms Mather also considered that Ms Farquhar had failed to attend work, and report her absences on 22 and 23 November 2021. Ms Mather’s evidence was that she considered this demonstrated an inability, and unwillingness to continue to comply with the basic expectations of work. For these reasons, Ms Mather says she was satisfied there were proper grounds to terminate Ms Farquhar’s employment.
Ms Mather’s evidence was that the only reasons she decided to terminate Ms Farquhar’s employment were the reasons set out in the letter of termination sent on 29 November 2021. Ms Mather expressly denied terminating Ms Farquhar’s employment because she made a complaint, because Ms Farquhar took leave or had a right to access leave, or because of Ms Farquhar’s race or physical disability.
In her evidence, and submissions, Ms Farquhar made various criticisms of Services Australia, its officers, and process. By way of example, she claimed she had met some of the proficiency levels it was stated she had not met. She said certain material relied on by Services Australia contained no study grades, or progress of her. She said that Ms Patel had deliberately misrepresented her employment, study outcomes and circumstances, and had maliciously excluded facts. She submitted that Ms Patel was intolerant, and had intentionally placed her workstation away from the toilet. She complained she was not provided with one-on-one support, and that there was a failure to take account of her ‘serious renal disease’. She says the performance support plan was supposed to be reviewed each week, but was only reviewed twice in the proposed period of four weeks. She claims she was not permitted flex leave, and that she was constantly followed up through various means by Ms Patel. In relation to her treatment of the customer on the call of 25 October 2021 that Ms Patel listened to, she sought to justify her behaviour by stating that the customer had abused her. She says she was not provided a buddy. She claimed that at various points she was treated unfairly, and that she had been denied natural justice, and a fair process.
Ms Farquhar was clearly aggrieved at the termination of her employment. Observing her, she clearly wished to remain employed by Services Australia, and was sorry to lose employment. All of this is human, and perfectly understandable. Much of what Ms Farquhar said, however, amounted to little more than an invitation by her to the Court to embark upon an enquiry as to whether the termination of her employment was procedurally or substantively unfair. The Court cannot do this. Where she sought to adduce evidence which might have been relied on to impugn the reasons given by Ms Patel, Ms Davidt, and Ms Mather, that evidence was not clear, was imprecise, lacked particularity, and was at times inconsistent or not accurate. As to the latter points, by way of example, and simply for Ms Farquhar’s understanding and benefit as an unrepresented litigant, I observe that:
(a)there is no evidence to support any assertion that Ms Patel deliberately misrepresented Ms Farquhar’s employment, or had excluded facts, or was intolerant;
(b)there is no basis to complain about a denial of natural justice, or procedural fairness. The process was clear, transparent, and Ms Farquhar had opportunities to participate in it;
(c)there is no basis to complain that Ms Farquhar was not granted leave. She had more leave than she was strictly entitled to;
(d)there is not a basis to complain about inadequate support. The probation reports, performance support plan, and emails all disclose a high level of support; and
(e)Ms Farquhar produced no expert evidence of her serious renal failure, though I accept she underwent treatment for a kidney stone.
As I endeavoured to explain to Ms Farquhar during the hearing, the Court does not entertain applications for unfair dismissal. The job of the Court is to ascertain whether Services Australia has acted unlawfully. In the context of this particular claim, the job of the Court is to determine whether Services Australia (through any of Ms Patel, Ms Davidt, or Ms Mather) has adduced evidence to overcome the reverse onus in section 361 of the Act.
In my view, each of Ms Patel, Ms Davidt, and Ms Mather came to the view that Ms Farquhar’s employment should end because of her performance and her conduct. Each was clear in their evidence. Their evidence as to their reasons was not successfully challenged. I accept the evidence given by each of them as to the reasons for dismissing Ms Farquhar from employment. Each of them should be believed.
I note that the reasons given by Ms Patel, Ms Davidt, and Ms Mather for the decision to terminate Ms Farquhar’s employment is supported by other evidence including the following:
(a)the content of the covering letter of termination dated 29 November 2021, and the covering email accompanying the letter both support the evidence given by the witnesses as to the reasons given for termination;
(b)the history of events around Ms Farquhar’s performance and conduct support the reasons given for termination. This is not a case in which performance or conduct issues were raised at the last minute by an employer to justify termination of employment. Rather, it is apparent that over a long period of time, Services Australia had concerns about the conduct and performance of Ms Farquhar. These concerns are thoroughly documented. So much can be seen from the first probation report, the Direction Letter, the performance support plan, the second probation report, and the various assistance that was given to Ms Farquhar over the period of employment;
(c)contemporaneous statements made by Ms Farquhar at the time seem to acknowledge her issues in relation to performance. As I have noted earlier, she told Ms Patel ‘My proficiency has not been achieved, as even though I am not making errors on any system applications, i have unfortunately not used approved terms in comments’; and
(d)far from seeking to discourage Ms Farquhar from making a complaint, Ms Davidt replied fully to the complaint of bullying at the time, and even advised Ms Farquhar as to how to take it further. Ms Farquhar did not take any further steps to prosecute the complaint, despite the invitation to do so.
For all of the above reasons, I find that Services Australia did not terminate Ms Farquhar’s employment because she made a complaint of bullying, and harassment. Her employment was terminated because of her work performance, and conduct, as stated by Ms Patel, Ms Davidt, and Ms Mather, and as set out in the letter of 29 November 2021 terminating Ms Farquhar’s employment. Services Australia has discharged the reverse onus cast upon it.
Dismissal for exercising the right to take personal leave
This claim was not a claim that was sought to be agitated when I settled the claims Ms Farquhar was entitled to pursue on 1 December 2022. It is a claim that emerged during the hearing. Given Ms Farquhar’s unrepresented status, I raised the matter with Ms Lucas, Counsel for Services Australia, and suggested that it needed to be addressed.
As formulated during the hearing, the claim requiring consideration is whether Services Australia dismissed Ms Farquhar because she exercised a workplace right to take personal leave.
Given the evidence I have considered, and the findings I have made, I find that Services Australia did not dismiss Ms Farquhar because she exercised a workplace right to take personal leave. I am satisfied, for the reasons given earlier, that Ms Farquhar’s employment was terminated for the reasons given by Ms Patel, Ms Davidt, and Ms Mather, and not because Ms Farquhar exercised her right to take personal leave. There is other evidence before the Court that supports such a conclusion. That evidence includes the following:
(a)the evidence of Mr Bonett, and others as to the support that was given to Ms Farquhar. Such support included discussions with her about taking a period of unpaid leave, inviting Ms Farquhar to reach out to others for support, including Maxine Campbell, and providing pastoral support to Ms Farquhar;
(b)the decision by Mr Bonett, after the first probation report, to extend the period of probation to enable Ms Farquhar to improve, notwithstanding her absences from work up to that time; and
(c)the attendance data tendered by Services Australia during the hearing. That data discloses that while Ms Farquhar exhausted her entitlement to paid personal leave, Services Australia nevertheless allowed her to take 53 days of leave without pay in addition to her paid entitlement to personal leave. That discloses a generous approach to the taking of leave (including personal leave) by Ms Farquhar by Services Australia. It does not support any conclusion that Services Australia wished to terminate Ms Farquhar’s employment because of her taking of personal leave in relation to her absences.

When these matters are considered, I find that Services Australia did not terminate Ms Farquhar’s employment because she exercised her right to take paid personal leave. Services Australia has discharged the reverse onus cast upon it.
WAS MS FARQUHAR DISMISSED IN CONTRAVENTION OF SECTION 352 OF THE ACT?
Ms Farquhar was absent from work on many occasions. The evidence indicates there were times when she produced a medical certificate, and other times when she did not. There were times when she notified her employer in accordance with requirements, and times when she did not. Against this background, Ms Farquhar asserts generally that she was dismissed from employment because of a temporary absence from work because of illness or injury of a kind prescribed by the Regulations.
Ms Farquhar did not identify the prescribed kind of illness or injury she relied on for the purposes of section 352 of the Act. She did not identify the dates of the alleged prescribed kind of illness or injury. She did not identify whether, or when she provided medical certificates (or statutory declarations), or what documents, or other evidence she relied on. She did not identify how she complied with the terms of the Agreement. She has not established the existence of the circumstances she alleges as an objective fact. As Hall makes clear, the operation of section 361 of the Act does not relieve an applicant from proving on the balance of probabilities each of the ingredients of the contravention. Ms Farquhar, in this case, has failed to prove the ingredients of the contravention. Strictly speaking, no occasion arises for the presumption in section 361 of the Act to operate.
Even if I am wrong in my analysis above, I would nevertheless conclude that Ms Farquhar was not dismissed because of a temporary absence from work due to illness or injury. Ms Farquhar was absent from work on many occasions. She exhausted her personal leave entitlements, and was permitted to take leave without pay. Ms Farquhar was dismissed from employment for all the reasons I have set out earlier in this judgment. Services Australia has discharged any reverse onus cast upon it. For these reasons, Ms Farquhar’s claim under section 352 of the Act must fail.
WAS MS FARQUHAR SUBJECTED TO ADVERSE ACTION BECAUSE OF HER RACE IN CONTRAVENTION OF SECTION 351 OF THE ACT?
During the hearing, Ms Farquhar clarified that she was not alleging she had been dismissed because of her race. Rather, her claim was that, more generally, she had been subject to adverse action because of her race.
There were two aspects to Ms Farquhar’s race claim. The first claim by her is that she was criticised for how she sounded when she spoke. The second was a claim relating to her exposure to family violence.
The claim relating to how Ms Farquhar sounded when she spoke
Ms Farquhar’s evidence as to what occurred to give rise to this claim is neither detailed nor consistent. In her affidavit of 28 February 2023, she stated ‘comments of sounding unprofessional, do other aboriginal people sound the same by team leader AP’. In another affidavit, she stated ‘Team leader said I sounded unprofessional because of how i talk and sound. I talk and sound like an aboriginal woman which not only am i proud to be but indeed am. And I was in the aboriginal apprenticeship program after all’. In the witness box, she said she was told ‘I sounded unprofessional’ and ‘is that what all aboriginals sound like’.
Ms Farquhar’s claims about how she sounded appear to be sourced from, and based upon the content of the further probation report. In that document, Ms Patel recorded that ‘as heard in one of Helen’s call recording that I listened to, her responses lacked professionalism. This included asking closed questions for proof of identity, using the words “nope” to respond to customer answers and leading to the customer becoming frustrated. Such responses can be perceived as unfairly blocking access to customer records’.
Despite the lack of particulars as to when the alleged events occurred, Ms Patel denied in the witness box ever making any comment linking Ms Farquhar’s telephone manner to her race, or aboriginality.
In my view, Mr Farquhar’s allegations fall short of the standard set in Hall. She has not provided sufficient information, or particulars about the adverse action, or the reason for the action to show that in combination, it would constitute a contravention of section 351 of the Act. Lest there be a different view, I regard Ms Farquhar’s own evidence as to what occurred to be inconsistent. I prefer the clear evidence of Ms Patel, and accept it. Ms Patel’s evidence to the Court is supported by the content of the further probation report. Nothing was said, or done by Ms Patel, or any other member of Services Australia’s staff to link the unprofessional telephone manner of Ms Farquhar to her race, or status as a First Nations person. For these reasons, this claim must fail.
The claim relating to Ms Farquhar’s exposure to family violence
In one of her affidavits, Ms Farquhar stated ‘Whether I was discriminated against BECAUSE OF; race 351…Domestic violence isn’t like it is for other people’. In the hearing, Ms Farquhar added to this evidence. Ms Farquhar said in the witness box ‘there was also a comment, but it didn’t have – the word “aboriginal” or anything wasn’t in there, but it was to do with domestic violence when I was reiterating again to my personal situation. She said “isn’t that normal for you”. And I took the “you” to be my people. Or even if it was myself’. Asked about when this took place, Ms Farquhar said it would have been very late October, or at the start of November.
Ms Farquhar’s own evidence about this matter is not particularised, and fails to meet the standard in Hall. On her own evidence, no individual within Services Australia made any comment expressly linking Ms Farquhar’s exposure to family violence to her aboriginality. The adverse action is not identified or particularised. The claim must fail.
WAS MS FARQUHAR SUBJECTED TO ADVERSE ACTION BECAUSE OF A PHYSICAL DISABILITY IN CONTRAVENTION OF SECTION 351 OF THE ACT?
During the hearing, Ms Farquhar clarified that she was not alleging she had been dismissed because of any disability. Rather, her claim was that, more generally, she had been subject to adverse action because of her disability.
Ms Farquhar gave evidence of a number of matters that she said constituted adverse action because of her physical disability. Among other things, Ms Farquhar claimed:
(a)she was reprimanded for taking too long to go on her bathroom breaks. In her affidavit of 28 February 2023, she stated ‘Numerous criticisms of time to go to and from toilet’, and that she required ‘2 additional toilet breaks due to medical advice’. In her email complaint of 9 November 2021, she stated it took ‘7 minutes to walk the 250 steps to and 250 steps from, the toilet, and she reprimanded me for not taking five minutes. I replied with my foot injured, and my hip and back injury, I can do this no faster. Her response was she didn’t know I was injured, did I just do it at work’. In the witness box, she claimed these conversations occurred from around mid-October until 9 November 2021, that the comments were made publicly, that she was reprimanded once, and said that she felt embarrassed, and that she was letting the team down. She also said in the witness box that she had been exposed to discrimination because she had provided a medical letter saying she needed extra toilet breaks, and yet this was not given to her;
(b)in her affidavit of 28 February 2023, that she was ‘Being placed in workstation furthest away from the toilets’. She says she was reprimanded ‘even though I have a hip and knee injury, and my workstation was the furthest in the entire office from the toilets’. In the witness box she repeated these claims, and stated that Ms Patel knew she had a disability, yet she was reprimanded, and nothing was done about it; and
(c)in her affidavit of 19 June 2023, that ‘I was discriminated against because of my disability, namely the legal requirements of reasonable adjustments in the workplace not occurring, even after an assessment took place, no steps were taken to implement any outcomes’. She also stated that Mr Bonett identified a need for an assessment as early as possible in order to make reasonable adjustments for her hip and back injuries, and states that her hip and back injuries were known to management. In the witness box, Ms Farquhar expanded upon this claim, complaining that the workplace assessment was conducted in the Collins Street Office, and that Ms Patel allocated her the workstation closest to the toilet at the Collins Street Office, but then she was moved back to Bourke Street. She claimed that in effect, things were adjusted for her for one day.
I have considered these claims closely. There are difficulties with Ms Farquhar’s evidence, and claims.
First, Ms Farquhar’s evidence in relation to the reprimand she supposedly received is inconsistent. In her affidavit she talks of numerous criticisms, however, in the witness box she said it was a single reprimand. Further, the content of the reprimand is not particularised. Nor are particulars given of when the reprimand was given, where it was given, who was present, or how it was made public. Even if given, she has not articulated how the reprimand constitutes adverse action.
Second, Ms Farquhar’s evidence is that she had medical advice to support her need to take extra toilet breaks, or to be closer to the toilet. She may have had such advice, and may have had it in writing, but it was never produced to Services Australia. The only medical evidence produced to Services Australia is a letter from Millennium Medical Centre Footscray dated 9 July 2021, referred to earlier. In that letter, Services Australia is requested to conduct, or arrange a ‘professional assessment by an Occupation therapist, for workplace modifications (furniture for seating etc) compatible to her ongoing Hip and back concerns’. No mention is made of Ms Farquhar needing to be placed closer to the toilet either because of kidney problems, or any other medical issue which may have necessitated her taking additional, or longer toilet breaks.
Third, there is no evidence of Ms Patel having knowledge of Ms Farquhar’s kidney problems, or any other medical issue requiring the taking of further, or longer toilet breaks. There is one text message Ms Farquhar sent to Ms Patel on 25 October 2021 in which she makes Ms Patel aware of her foot fracture which makes walking difficult.
Fourth, insofar as the workplace assessment is concerned, the evidence taken as a whole discloses that attempts were made to arrange a professional assessment for Ms Farquhar. Those attempts were frustrated because of Ms Farquhar’s absences from work. Ms Patel, Ms Fidge, and Mr Bonett all gave evidence, which was not challenged, of workplace assessments being cancelled because of Ms Farquhar’s absences from work. Further, by the time the workplace assessment was conducted, Ms Farquhar was out of the office, and ultimately never returned to the office. This is not a case in which an employer sat on its hands. Rather, Services Australia made attempts to arrange those assessments, but they could not proceed.
Fifth, I note the clear evidence of Ms Patel. Ms Patel’s evidence, which I accept, is that:
(a)she did not reprimand Ms Farquhar for taking too long to go to the toilet;
(b)she did have a discussion with Ms Farquhar about using certain ‘aux’ codes to understand why Ms Farquhar’s use of certain ‘aux’ codes were longer than expected, particularly in relation to screen-based breaks. This included a discussion about which ‘aux’ code to use when going for a toilet break, but she never reprimanded Ms Farquhar for taking too long to go to the toilet;
(c)she did have a discussion about moving Ms Farquhar’s desk closer to the toilets at the Bourke Street Office. Ms Patel’s unchallenged evidence is that she spoke to the Team Leader on site but was informed that Ms Farquhar’s desk was already closest to the toilet, and other desks that appeared closer were not part of the Services Australia (Medicare) office; and
(d)the workplace assessment was eventually undertaken. It recommended use of an ergonomic chair, and encouraged the taking of short rest breaks, but the report made no reference to the location, or the need to relocate, Ms Farquhar’s desk.
In the circumstances above, I find that Ms Farquhar has failed to articulate what adverse action was taken against her. The Court prefers, and accepts the evidence of Ms Patel. The Court finds that no adverse action taken falls within the definition of section 342 of the Act.
DID SERVICES AUSTRALIA CONTRAVENE SECTION 536(1) OF THE ACT?
Going into the trial, this claim was neither particularised nor developed. The first real evidence adduced by Ms Farquhar in relation to this matter was in her reply affidavit of 9 June 2023. There she annexed an email of 3 December 2021 that she sent to Services Australia requesting copies of previous attachments to emails sent by them. Ms Farquhar also attached a copy of an email from 6 December 2021 from a support officer at Services Australia asking Ms Farquhar to identify the attachment she was seeking. A further email is attached to Ms Farquhar’s affidavit dated 31 December 2021 in which Ms Farquhar complains that she requested payslips some time ago, but has not received them. During the course of the trial, Ms Farquhar tendered various payslips into evidence.
Ms Farquhar expanded on her evidence in the witness box. She confirmed she had regularly accessed, and printed the payslips during her employment through a computer program, or system called Essentials. She also indicated that she ceased to attend the office on, and from 9 November 2021 until her termination date of 29 November 2021. She stated that as she was not in the office in this period, she did not receive, and could not access her payslips.
It is convenient to deal with Ms Farquhar’s claim by reference to the two time periods she has identified, and that are set out in the paragraph above. In the period from the commencement of her employment until 9 November 2021, Ms Farquhar’s evidence is that she regularly accessed her payslips, and printed them via the Essentials program. She has not adduced any evidence to make good the claim advanced that during this period of time, she did not receive her payslips within one working day of Services Australia paying an amount to her in relation to the performance of work.
Given the state of the evidence, I find that Services Australia did not contravene section 536 of the Act during the period from Ms Farquhar’s commencement of employment to 9 November 2021.
The remaining issue is whether the evidence enables a finding to be made that Services Australia contravened section 536(1) of the Act after 9 November 2021. The evidence on this issue is somewhat problematic. The evidence before the Court is:
(a)Ms Farquhar was not in the office after 9 November 2021. She did not access the Essentials system after that time because she did not return to the office. Her employment ceased on 29 November 2021;
(b)between 9 November 2021, and 29 November 2021, Ms Farquhar was absent from work without authorisation for 15 hours on 22 November 2021 and 23 November 2021. She was paid salary for these hours to which she was not entitled. The amount of the overpayment was approximately $635.69;
(c)Ms Hall’s evidence is that:
(i)Ms Farquhar would have been able to access Essentials until at least 29 November 2021 when her employment ended; and
(ii)after Ms Farquhar’s employment ended, she would not have been able to access any electronic system in order to gain access to her payslips, and the only way she could receive payslips after her employment ended would be to make a request for them.
There are four payslips relevant to the period during which Ms Farquhar’s employment ended. They are payslips for the period 28 October 2021 to 10 November 2021 (‘Payslip 1’), for the period 11 November 2021 to 24 November 2021 (‘Payslip 2’), for the period 25 November 2021 to 8 December 2021 (‘Payslip 3’), and for the period 9 December 2021 to 22 December 2021 (‘Payslip 4’). I have looked at each of these payslips. There is no detailed, and direct evidence before me as to what the entries on these payslips mean. For example, Payslips 1 - 3 contain payments for ‘Salary’. There are also, however, apparent deductions for ‘Salary’. There are also entries on Payslips 1 – 3 for ‘LWOP unauthorised’, ‘LWOP Personal Lea’, and ‘Term – Flex Cash’, as well as entries under other headings. I have no evidence as to what any of this means, or about its overall effect on net amounts paid to Ms Farquhar in relation to the performance of work. While I could guess what the amounts mean, for example, that salary represents a payment for the performance of work, I am reluctant to do so given that there also appears to be deductions for salary.
Doing the best I can with what is entirely insufficient, and unsatisfactory evidence, Ms Farquhar did not work after 9 November 2021. I find, therefore, that Services Australia has not contravened section 536(1) of the Act in relation to Payslips 2 – 4. There is not sufficient evidence before me to conclude that amounts paid to Ms Farquhar, and recorded in those payslips relate to the performance of work by Ms Farquhar. There is good reason to consider, given Ms Farquhar did not work after 9 November 2021, that any payments referred to in Payslips 2 – 4 do not relate to the performance of work.
It seems clear Ms Farquhar did work, and was paid amounts in relation to the performance of work in the period covered by Payslip 1. It is equally clear that during her employment, Ms Farquhar, despite her numerous and various absences, was able to access and print her pay slips through the Essentials system. There is no direct evidence before me as to when Payslip 1 was created or produced or became available through Essentials. It is reasonable to infer it was created sometime between 10 November 2021, and 24 November 2021 (the period when Payslip 2 ends), and became available on Essentials during this time. Ms Farquhar remained employed during the entirety of this period. Among other things, she was absent without authorisation on 22, and 23 November 2021. Given these matters, it was open to Ms Farquhar to attend work prior to her termination of employment, and access her payslips, as she had done previously throughout her employment given that at least on two of those days, she ought to have been at work. Given the evidence, I conclude that Services Australia has not contravened section 536(1) of the Act in relation to Payslip 1. The payslip was available to Ms Farquhar through the Essentials System. She had access to that system as an ongoing employee, including in the period of one working day after the payslip of was issued.
DISPOSITION
Ms Farquhar has not succeeded in any of her claims. The only appropriate order is that the Application dated 12 April 2022 be dismissed.

I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.
Associate:
Dated: 30 November 2023

File number:	MLG 773 of 2022
Judgment of:	JUDGE BLAKE
Date of judgment:	30 November 2023
Catchwords:	INDUSTRIAL LAW – Adverse action – alleged dismissal for making complaints and inquiries – alleged dismissal for taking personal leave – HELD that employee dismissed for conduct and performance reasons, not for making complaints and inquiries. INDUSTRIAL LAW – Adverse action – alleged adverse action taken because of a temporary absence from work, on the basis of race and on the basis of disability – HELD that employee not subject to adverse action of any kind. INDUSTRIAL LAW – Alleged failure to provide payslip within one working day of paying an amount to an employee in relation to the performance of work – claim dismissed.
Legislation:	Fair Work Act 2009 (Cth) pt 3-1, ss 97(a), 107(3)(a), 340, 340(1), 340(1)(a), 341, 341(1), 341(1)(a), 341(1)(c)(ii), 342, 342(1), 351, 352, 360, 361, 361(1), 361(1)(a), 361(1)(b), 536, 536(1). Fair Work Regulations 2009 (Cth) reg 3.01. Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) rr 13.05(1), 13.13. Workplace Relations Act 1996 (Cth) s 298V.
Cases cited:	Alam v National Australia Bank Ltd (2021) 288 FCR 301 Australian Building and Construction Commissioner v Hall [2018] FCAFC 83 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46 Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 Construction Forestry Mining and Energy Union v Endeavour Coal (2015) 231 FCR 150 Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 Gallagher v Cendak [1988] VicRp 70 General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244 Serpanos v Commonwealth of Australia [2022] FCA 1226 Shizas v Commissioner of Australian Federal Police [2017] FCA 61 Tattsbet Ltd v Morrow (2015) 233 FCR 46 Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456
Division:	Division 2 General Federal Law
Number of paragraphs:	115
Date of hearing:	14, 15 & 16 August 2023
Place:	Melbourne
Counsel for the Applicant:	In Person
Solicitor for the Applicant:	None
Counsel for the Respondent:	Ms Lucas
Solicitor for the Respondent:	Lander & Rogers Lawyers

MLG 773 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	HELEN MARIE FARQUHAR Applicant
AND:	COMMONWEALTH OF AUSTRALIA REPRESENTED BY SERVICES AUSTRALIA Respondent

ORDER MADE BY:	JUDGE BLAKE
DATE OF ORDER:	30 NOVEMBER 2023