Fenton-Jones v Haidar
[2019] FCCA 3251
•15 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FENTON-JONES v HAIDAR | [2019] FCCA 3251 |
| Catchwords: INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Application for leave to substitute employer against whom applicant proposes to claim dismissed her in contravention of s.340(1), s.343, and s.351 of the Fair Work Act2009 (Cth) (FW Act) in circumstances where the applicant had made such claims against a person who was not her employer – application made more than 14 days after the Fair Work Commission (FWC) issued a certificate under s.368(3)(a) of the FW Act in relation to an application the applicant made to the FWC to deal with the dispute with the employer – whether in those circumstances applying to substitute the employer as a respondent constitutes an application pursuant to s.370(a)(ii) of the FW Act for an extension of time within which to make a general protections court application against the employer – whether applicant has reasonable explanation for delay – whether applicant has a meritorious case if extension granted – whether otherwise appropriate to grant extension – extension refused and application to substitute employer as respondent dismissed – application brought against person admitted not to be the employer dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.340(1), 343, 351, 360, 361, 365, 368, 370, 545 Federal Circuit Court Rules 2001 (Cth), r.7.01 |
| Cases cited: Atkinson v Killarney Properties Pty Ltd [2016] FCCA 3233 Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284 Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 Esso Australia Pty Ltd v Australian Workers’ Union [2016] FCAFC 72; (2016) 258 IR 396 Fair Work Ombudsman v Austrend International Pty Ltd [2018] FCA 171 Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Union Industry [2019] FCA 1265 Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456 |
| Applicant: | BETH FENTON-JONES |
| Respondent: | GEORGE HAIDAR |
| File Number: | SYG 495 of 2019 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 30 April 2019 |
| Date of Last Submission: | 30 April 2019 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2019 |
REPRESENTATION
| Applicant in person |
| Solicitors for the Respondent: | Mr M Dunne of Hospitality Legal Pty Ltd |
ORDERS
The application in a case filed on 7 March 2019 to substitute United Gaming & Leisure Hotel Group Pty Ltd as the respondent is dismissed.
The application against the respondent Mr George Haidar is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 495 of 2019
| BETH FENTON-JONES |
Applicant
And
| GEORGE HAIDAR |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Ms Fenton-Jones, commenced a proceeding in this Court claiming relief under the Fair Work Act 2009 (Cth) (FW Act). She claims that, contrary to s.340(1), s.343, and s.351 of that Act, her employer took adverse action against her by terminating her employment. Ms Fenton-Jones identified the respondent, Mr Haidar, as her employer.
Shortly after she filed her application, Ms Fenton-Jones realised that Uniting Gaming & Leisure Hotel Group Pty Ltd (UGL), not Mr Haidar, was her employer and, therefore, ought to have been named as the respondent. In those circumstances Ms Fenton-Jones now applies for an order that UGL be substituted as the respondent. Ms Fenton-Jones initially applied to substitute UGL as the respondent by sending to the Registry a document titled “Request for Amendment”. When the Registry brought the document to the attention of my chambers I arranged to list the matter before me on 7 March 2019.
On 7 March 2019 Ms Fenton-Jones, who is not legally represented, appeared by telephone, and Mr Dunne appeared for Mr Haidar. In the course of the hearing Mr Dunne informed me he had instructions to act for UGL for the purpose of the application for substitution, and said UGL, therefore, should be treated as having received notice on that day of Ms Fenton-Jones’ application for substitution. I directed that the application for substitution be adjourned to the first court date that had been fixed when Ms Fenton-Jones commenced this proceeding.
On 15 March 2019 Ms Fenton-Jones filed an application in a case in which she claimed an order that UGL be substituted for Mr Haidar as the respondent. That application was made returnable on 20 March 2019. On that day I set down for hearing Ms Fenton-Jones’ application in a case, and directed the parties file affidavits on which they intended to rely.
It would be convenient if I first identify why Ms Fenton-Jones requires the permission of the Court to substitute UGL as a respondent, and the principles that are relevant to determining whether the Court should grant such permission. I will then identify the evidence before me.
Why leave is required and relevant principles
There are two reasons why Ms Fenton-Jones requires the permission of the Court to alter the identity of the respondent. First, r.7.01 of the Federal Circuit Court Rules 2001 (Cth) permits the Court to allow a party to amend any document filed by the party. That implies that a party cannot amend a document without the Court’s permission. Second, there are the statutory provisions that govern the bringing of a proceeding where an employee alleges he or she has been dismissed from his or her employment in contravention of provisions that include s.340(1), s.343, and s.351 of the FW Act.
Section 340(1), s.343, and s.351 are “civil remedy provisions” within the meaning of s.539 of the FW Act. Subsection 340(1) of the FW Act provides that a person must not take “adverse action” against another person because, among other things, the other person has exercised a “workplace right”; s.343 prohibits a person from taking any action with intent to coerce a person to exercise or not exercise a “workplace right”; and s.351(1) of the FW Act provides that a person must not take “adverse action” against another person because, among other things, of that person’s sex.
Under s.545(1) of the FW Act this Court may make any order it considers appropriate if it is satisfied that a person has contravened a civil remedy provision. That includes the making of an order under s.545(2) of the FW Act awarding compensation for loss that a person has suffered because of the contravention. Thus, a person who claims to have suffered loss because of a person’s contravention of a civil remedy provision may commence a proceeding in this Court for an order awarding compensation for such loss.
Where the adverse action of which a person complains he or she was a victim consists of dismissal from employment, that person cannot commence a proceeding in this Court under s.545 of the FW Act unless the preconditions provided for in subdivision A of Division 8 of Part 3-1 of the FW Act are satisfied. There are three relevant provisions. First, there is s.365 of the FW Act which provides that, if a person has been dismissed, and the person (or an industrial association that is entitled to represent the industrial interests of the person) alleges the person has been dismissed in contravention of Part 3-1 (which includes s.340, s.343, and s.351 of the FW Act), the person (or industrial association) may apply to the Fair Work Commission (FWC) for the FWC to deal with the dispute. Second, there is s.368 of the FW Act which provides that the FWC may deal with the dispute by mediation or conciliation, or by making a recommendation or expressing an opinion. Finally, there is s.370 of the FW Act, which provides:
A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) both of the following apply:
(i)the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b) the general protections court application includes an application for an interim injunction.
The expression “general protections court application” is defined in s.368(4) of the FW Act as an application to a court under Division 2 of Part 4-1 of the FW Act for orders in relation to a contravention of Part 3-1 of the Act. Section 545 is contained in Division 2 of Part 4-1; and the “certificate under paragraph 368(3)(a)” referred to in s.370(a)(i) is a certificate s.368(3)(a) of the FW Act requires the FWC to issue where the FWC is satisfied that all reasonable attempts (other than by arbitration) to resolve the dispute for the dealing of which an application under s.365 of the FW Act has been made, have been, or are likely to be, unsuccessful.
The effect of these provisions is that a person who claims he or she has been dismissed from his or her employment in contravention of s.340, s.343, or s.351 of the FW Act cannot apply for a remedy under s.545 of the FW Act unless three things occur: first, the person applies under s.365 of the FW Act to have the dispute dealt by the FWC; second, the FWC issues a certificate pursuant to s.368(3)(a); and third, the person applies to this Court within 14 days after the day the certificate is issued, or within such further time as the Court may allow.
It can now be seen why, because of these provisions of the FW Act, Ms Fenton-Jones requires this Court’s permission to amend her application. Ms Fenton-Jones applied to the FWC under s.365 of the FW Act in relation to what she claims was her dismissal from employment in contravention of s.340, s.343, and s.351 of the FW Act. That application was based on UGL having been her employer. The FWC issued a certificate under s.368(3)(a) of the FW Act on 13 February 2019. That means that Ms Fenton-Jones was required to commence a proceeding against UGL 14 days after the certificate was issued, namely, by 27 February 2019. Ms Fenton-Jones did commence a proceeding within this period, but it was against Mr Haidar, a person whom she now acknowledges was not her employer. Because Ms Fenton-Jones has not commenced a proceeding against UGL in 14 days, she can only do so if the Court makes an order under s.370(a)(ii) of the FW Act.
It only remains to consider whether by applying for an order that UGL be substituted for Mr Haidar as a respondent it can be said that Ms Fenton-Jones is making a “general protections court application in relation to the dispute” against UGL that is the subject of the s.368(3)(a) certificate the FWC issued. That question is to be answered in the affirmative. In form Ms Fenton-Jones is seeking to substitute UGL as the respondent to the general protection claims she currently makes against Mr Haidar. That, in substance, constitutes the making of general protections claim against UGL; and because Ms Fenton-Jones has applied to substitute UGL as the respondent more than 14 days after the FWC issued the certificate, Ms Fenton-Jones requires an order of this Court under s.370(a)(ii) of the FW Act allowing her more than 14 days within which to bring an application against UGL.
I now turn to the principles that govern the exercise of the power of s.370(a)(ii) of the FW Act to allow further time. The relevant principles were stated by Marshall J in Brodie-Hanns v MTV Publishing Limited when considering a provision in the Industrial Relations Act 1988 (Cth) that is similar to s.370(a)(ii) of the Act. His Honour said:[1]
1.Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
2.Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3.Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
4.The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
5.The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6.Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion.
[1] (1995) 67 IR 298, at pages 299-300
Mr Dunne relied on the following passage from the judgment of Judge Lucev in Atkinson v Killarney Properties Pty Ltd:[2]
[2] [2016] FCCA 3233, at [22]
In Sims v RM Capital Pty Ltd & Anor (No. 2) [2015] FCCA 149 at [5]-[6] per Judge Lucev the Court summarised the relevant principles in relation to the exercise of the Court’s discretion under r.3.05 of the FCC Rules to extend time specified in a court order as follows:
a)there are no criteria for extending the time set out in r.3.05 of the FCC Rules;
b)the Court’s discretion is, therefore, unfettered, but it is generally accepted that the relevant considerations are those set out by the Federal Court in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315; FCR at 348-349 per Wilcox J (“Hunter Valley Developments”) namely:
i)that the relevant time ought not be lightly ignored;
ii)the length of the delay;
iii)the explanation for the delay;
iv)the prejudice to the other party; and
v)the prospects of success of the underlying application, with the emphasis generally being on this consideration; and
c)it is for the Court to weigh the factors, and according to the particular circumstances one factor may outweigh another.
Evidence
Ms Fenton-Jones is qualified in hospitality management, marketing, and administration.[3]
[3] Affidavit of B A Fenton-Jones 01.04.2019, [introduction]
In September 2018 Ms Fenton-Jones answered an advertisement published on “Seek” for the position of a part-time marketing and promotions manager at “The Wagon Wheel Hotel”.[4] “The Wagon Wheel Hotel” is a registered business name the owner of which is UGL.
[4] Affidavit of B A Fenton-Jones 01.04.2019, [1]
The Seek advertisement stated that The Wagon Hill Hotel is an iconic pub and bistro that has been servicing the St Marys community for decades, but has undergone a complete transformation. Under the heading “The role” it was stated that “we are looking for an experienced Marketing and Promotions manager who is creative and self-motivated to join us on this journey”, and that ‘[r]eporting to the Licensee, this role will be responsible for all end to end marketing and promotions required to promote the business and any new ventures”.[5] The advertisement also set out the “key responsibilities”.[6]
[5] Affidavit of G Haidar 16.04.2019, [2]
[6] Affidavit of G Haidar 16.04.2019, [2]
Ms Fenton-Jones attended an interview with Mr Haidar, after which Mr Haidar sent to Ms Fenton-Jones the following email:[7]
[7] Affidavit of B A Fenton-Jones 01.04.2019, [2]
Here is what I would like from you and the starting pay packet until our next review.
The remainder of this year is a foundation year, that is ensuring branding is consistent, identifying your point of difference versus competitors and fixing things like the website while also promoting key events. Once you have understood the goals you will need to put together a calendar of events to show how you will achieve these.
After each event you will need to provide a report to show whether you have met targets and why/why not.
As we spoke in our meeting we need to increase our bistro and bar sales by 50% give or take, I think this is achievable from someone like yourself.
Ms Fenton-Jones commenced her employment at The Wagon Wheel Hotel at St Marys on 20 September 2018. She participated in a “handover” from the previous employee. That consisted of the previous employee showing Ms Fenton-Jones physical files relating to membership and forms that had been previously used.[8]
[8] Affidavit of B A Fenton-Jones 01.04.2019, [3]
According to Ms Fenton-Jones, on 21 September 2018, when in the office having a meeting with Mr Haidar, Mr Haidar said words to the effect of: “So tell me why someone like you is still single and not married”. Ms Fenton-Jones replied it was her choice. [9] Mr Haidar does not recall saying words to the effect Ms Fenton-Jones attributes to him.[10]
[9] Affidavit of B A Fenton-Jones 01.04.2019, [6]
[10] Affidavit of G Haidar 16.04.2019, [6]
At 8.34 pm on 7 October 2018 Ms Fenton-Jones sent a text to Mr Haidar that she had not been too well that day, that she would see how she would feel the following day, but just do half a day from home. After three more text exchanges, Mr Haidar sent a text message stating that he was leaving on Tuesday night “so make sure I see your pretty face before I go”.[11]
[11] Affidavit of B A Fenton-Jones 01.04.2019, [7], page 15
On 16 October 2018, when Mr Haidar was in Lebanon, Ms Fenton-Jones says that “she woke to a message” Mr Haidar had sent stating “Sweet dreams princess”.[12] There is in evidence a screenshot of a text message from Mr Haidar which does state “Sweet dreams princess” sent at 10:29 pm.[13] That, however, is after at least four messages had been exchanged between Mr Haidar and Ms Fenton-Jones. The first of those messages was sent by Ms Fenton-Jones at 8:08 pm stating “Looks amazing!!”. The second message was sent by Ms Fenton-Jones at 10:19 pm stating she is doing a massive clean of the office tomorrow because it is filthy and dusty, and she cannot work in there. Mr Haidar responded at 10:26 pm by saying that sounded great, but Ms Fenton-Jones should keep away from his side, and that he will clean his side when he gets back. Ms Fenton-Jones responded at 10:28 pm by saying that was fine, that she will email Mr Haidar updates on everything else on the following day, and that she was “finally getting some sleep now”. It is in response to that message that at 10:29 pm Mr Haidar texted “Sweet dreams princess”. The text exchange ended with Ms Fenton-Jones replying at 10:29 pm with: “You too Mr”.
[12] Affidavit of B A Fenton-Jones 01.04.2019, [8], page 16
[13] Affidavit of B A Fenton-Jones 01.04.2019, [8], page 16
According to Ms Fenton-Jones, on 19 October 2018 she had a telephone conversation with Mr Haidar “discussing work-related queries”, in the course of which words to the following effect were spoken:[14]
Mr Haidar:You have got me at an advantage as I’ve been drinking so I’m very vulnerable.
Ms Fenton-Jones: It sounds like you’re having fun, so if you can let me know what’s happening on the work front you can get back to it.
Mr Haidar:Why are you single? I’m married but we’re only together because of my children.
Ms Fenton-Jones: I don’t need to hear about that, can we get back to work or shall I talk to you later?
Mr Haidar:I’d like to hear about the kind of men you go for.
Ms Fenton-Jones: I don’t date colleagues or married men, I need to go finalise some work issues, I’ll speak to you later.
[14] Affidavit of B A Fenton-Jones 01.04.2019, [8]
Also according to Ms Fenton-Jones, after the call ended Mr Haidar sent a text message stating: “We have only just meet [sic] but in time we can tell each other secrets”.[15]
[15] Affidavit of B A Fenton-Jones 01.04.2019, [8], page 17
Mr Haidar does not recall that he and Ms Fenton-Jones exchanged words to the effect of the first two passages to which I refer in paragraph 24 of these reasons. He otherwise denies saying the other words Ms Fenton-Jones attributes to him.[16]
[16] Affidavit of G Haidar 16.04.2019, [7]
According to Ms Fenton-Jones, on 26 October 2018 she had to go to hospital for day surgery. She let Mr Haidar, Mr Corliss, and Mr Hussary know. (Mr Corliss was the licensee for the venue, and Mr Hussary was the DJ.[17]) Ms Fenton-Jones received missed calls and text messages from Mr Hussary regarding a work query when Ms Fenton-Jones was in hospital, but she was unable to attend the call. Ms Fenton-Jones says that on 28 October 2018 she emailed Mr Hussary, and he responded with an email “in which he was very aggressive and threatening for no apparent reason”.[18] The email exchange is as follows (errors in original):
Mr Hussary to Ms Fenton-Jones (and Mr Haidar) (24.10.2018):
Please see what I have come up with attached is just a form to send out to enquirers that come through . . . .
Ms Fenton-Jones to Mr Hussary (24.10.2018):
Thanks Will, I’ll have a proper look tomorrow morn when I’m back in the office.
[17] Affidavit of B A Fenton-Jones 01.04.2019, [4]
[18] Affidavit of B A Fenton-Jones 01.04.2019, [11]
Mr Hussary to Ms Fenton-Jones (cc Mr Haidar) (27.10.2018):
UPDATED LIST AND PRICES PLEASE SEE ATTACHED AND APPROVED,
WHAT I THINK WILL WORK FOR THE AREA
Ms Fenton-Jones to Mr Hussary (28.10.2018):
Also where’s the info for that other person who wanted the booth? Need you to send to me if you want me to organise booking instead of just texting me.
Mr Hussary to Ms Fenton-Jones (cc Mr Haidar) (28.10.2018) (errors in original):
To be honest my moth dose not talk to me they way you do, if you want to start working as a team no problems lets do it, just watch the way you questions every little thing to try and put me on show just remember i don’t report to you, instead of crying about how i spelt grey goose fix it and move on do not cry about it.
Mr Haidar, in his affidavit, annexes a copy of the following email he says he sent to Mr Hussary and Ms Fenton-Jones on 28 October 2018 in response to Mr Hussary’s email of the same date:[19]
I don’t understand what’s going on with you 2 at the moment I’m not happy with this type of work put everything on hold until we meet tomorrow.
I have never had this type of staffing issues [sic].
[19] Affidavit of G Haidar 16.04.2019, [9]; page 18
According to Mr Fenton-Jones, on 29 October 2018 she told Mr Haidar “about this conversation”, to which Mr Haidar responded: “That’s just who Will is, you just have to deal with it”.[20] Mr Haidar does not, in his affidavit, address this part of Ms Fenton-Jones’ affidavit.
[20] Affidavit of B A Fenton-Jones 01.04.2019, [11]
According to Ms Fenton-Jones, on or about 9 November 2018 she met Mr Haidar to discuss planning and upcoming events. During that meeting she and Mr Haidar had a conversation to the following effect:[21]
Mr Haidar:You look stressed out and sad, let me take you out to lunch.
Ms Fenton-Jones: No, I need to get this work done before tonight and I’m flat out, I don’t have time for that.
Mr Haidar:Then let me take you out on Sunday night to the Casino and we can have dinner and drinks. Will that cheer you up?
Ms Fenton-Jones: I don’t need to be taken out; I need to talk about work.
[21] Affidavit of B A Fenton-Jones 01.04.2019, [12]
At that point someone knocked at the office door, and as Mr Haidar went to answer it he put his hands on Ms Fenton-Jones’ shoulders and said: “It will be fun”.
Mr Haidar admits he may have said to Ms Fenton-Jones words to the effect that she looked stressed and sad, and “let me take you out to lunch”, although he meant lunch at the hotel. He does not recall Ms Fenton-Jones stating words to the effect: “No, I need to get this work done before tonight and I’m flat out, I don’t have time for that”. Mr Haidar otherwise denies saying the other words Ms Fenton-Jones attributes to him; and he denies putting his hands on the shoulders of Ms Fenton-Jones.[22]
[22] Affidavit of G Haidar 16.04.2019, [10]; I do not need to resolve this, or any other conflict of evidence, for the purpose of determining the application before me. I do note, however, that in the General Protections Application Involving Dismissal Form Ms Fenton-Jones filed with the FWC, Ms Fenton-Jones states Mr Haidar invaded her personal space on two occasions, but she does not allege Mr Haidar placed his hands on her shoulders or otherwise touched her.
On 18 November 2018 Ms Fenton-Jones sent a text message to Mr Haidar stating that her car had broken down on her way back from her parents, that she needed to get her car towed on the following day and find a place to replace the alternator, and, for that reason, she would be in work on the following day. Ms Fenton-Jones said that she will hopefully be in on Tuesday, but she would let Mr Haidar know “by the arvo”.[23]
[23] Affidavit of B A Fenton-Jones 01.04.2019, [13], page 32
At 9:06 pm on 19 November 2018 Mr Haidar sent an email to Ms Fenton-Jones (cc to Mr Dale Corliss, the licensee) as follows:[24]
You have a meeting tomorrow with Dale to show him what you have done and he will be talking to you about what needs to be done.
[24] Affidavit of B A Fenton-Jones 01.04.2019, page 36
Ms Fenton-Jones responded with an email to Mr Haidar and Mr Corliss sent at 9:44 am on 20 November 2018:[25]
[25] Affidavit of B A Fenton-Jones 01.04.2019, pages 34-35
I think an email/text at 9pm is a highly irregular time to organise a meeting. As I told you, I’m without a car till this afternoon.
There is also no time of meeting, no request or offer of suitable time, what exactly is being discussed. We’re all on email and phone so I see no need to be in the office when we can all do this via other means; and this includes in general as well.
Also George will you be part of this meeting? Will the other managers? It would seem to make sense that everyone be involved including Kitchen and other duty managers if we’re discussing “what’s happening” as a business overall
I’m happy to conference call and walk you all through the online side or discuss what you need from me. But until I have wheels, which as I said will be sometime this afternoon, all being well, I won’t be in by lunch.
Dale, if you are happy to reschedule, then we can meet either later this afternoon or tomorrow morning or at a time that suits us both.
Also am I to understand that I now have 2 bosses, or 3 when Eddie weighs in or Niki when he asks of things from me, or Will when he’s telling me what to do?
I’m finding it very hard to keep up with who runs what as since I’ve started the majority of “handover” has been third hand information that has been passed on or last minute tid bits relayed via members of staff or things I’ve found out in passing.
There seems to be no continuity with information across the team or hotel, no managerial concept that isn’t a knee jerk reaction, on top of constantly having to explain social media as a whole and how the design process isn’t just a 5 minute turn around when there’s nothing left from predecessors for me to use for the types of media you want organised for the hotel.
Not to mention the efforts I’ve gone to organising certain things for the hotel only to have it changed last minute or someone else having taken over which has wasted countless hours on projects that I could have been spending on more important tasks.
And will Dale be supplying the Marketing budget as you said would be provided when you got back from overseas, or my full job description as well? Also P&L statements that I’ve been asking for since I started in order to provide you with a full break down for what you’ve requested of me.
I suggest at this stage, until I have the following from yourselves, sitting down to discuss anything is going to get us nowhere.
FULL job description of my role/s
Marketing budget – approximate costing total
P&L statements from the past 12 months
Social media expectations
In house expectations/needs
Future events to promote
Previous budget from other areas ie kitchen inc buying costs and food providers
Previous spending on past promotion/s
These are things that I should have received upon starting, as in any marketing role, so once you can provide me with those, I’m happy to come in and discuss everything with you.
In the meantime Dale, if you want to email me or call and let me know what specifically you need, I’m happy to get it done. There should be a few more posters coming in by the end of the week for inside as well as the 2xA0 sizes for outside you were after. I’ll be finalising things at my end for the full menus, functions and social, but if you can also remember that I only work 3 days and that doesn’t leave a lot of time for design, graphics, coding, reimaging, content management, media replacements, as well as chasing up functions and event queries.
Mr Haidar responded by email sent at 10:02 am on 20 November 2018 as follows:[26]
As far as I’m concerned I have asked for you to be at the pub you are in no position to tell me what is right or wrong or complain about how many bosses there are if you are unhappy and can’t do what is expected from you we have no problem with you leaving
So it would be wise for you to make the effort to attend the pub and have the meeting with Dale and since you are carrying on I will be there
[26] Affidavit of G Haidar 16.04.2019, page 22
The following emails were then exchanged:
Ms Fenton-Jones to Mr Haidar (10:03 am; 20.11.2018):[27]
[27] Affidavit of G Haidar 16.04.2019, page 22
What is expected of me? I still have no roll description. Could you at least provide me that?
Mr Haidar to Ms Fenton-Jones (10:05 am; 20.11.2018):[28]
[28] Affidavit of B A Fenton-Jones 01.04.2019, page 40
Marketing and events coordinater [sic]
Mr Haidar to Ms Fenton-Jones (10:06 am; 20.11.2018):[29]
[29] Affidavit of G Haidar 16.04.2019, page 22
You have known this from day 1
Ms Fenton-Jones to Mr Haidar (10:.06 am; 20.11.2018):[30]
[30] Affidavit of B A Fenton-Jones 01.04.2019, page 39
The full break down of the role. That’s a title not a description.
Mr Haidar to Ms Fenton-Jones (10:07 am; 20.11.2018):[31]
[31] Affidavit of B A Fenton-Jones 01.04.2019, page 39
Come in and I’ll tell you
Ms Fenton-Jones to Mr Haidar (10:08 am; 20.11.2018):[32]
[32] Affidavit of B A Fenton-Jones 01.04.2019, page 38
I’d like it in writing please.
Mr Haidar to Ms Fenton-Jones (10:10 am; 20.11.2018):[33]
[33] Affidavit of B A Fenton-Jones 01.04.2019, page 38
I’m at a funeral now
Mr Haidar to Ms Fenton-Jones (12:35 pm; 20.11.2018):[34]
[34] Affidavit of G Haidar 16.04.2019, page 21
It would be preferable for us to meet in person when you have your car so that we can go through the following:
1. Concerns raised
2. Expectations of the role
3. Contract and role description
Dale and myself would like to do this with you tomorrow at 10 am. Is this suitable?
Ms Fenton-Jones to Mr Haidar (2:17 pm; 20.11.2018):[35]
[35] Affidavit of G Haidar 16.04.2019, page 20
I’ll confirm once I’ve picked my car up,
Mr Haidar to Ms Fenton-Jones (4:22 pm; 20.11.2018):[36]
Need to know if you will be attending tomorrow’s meeting at 10 am as I need to plan for other work on.
Ms Fenton-Jones to Mr Haidar (4:23 pm; 20.11.2018):[37]
Still waiting to hear from mechanics so at this stage, Thursday is best as confirmed if that works for you both.
[36] Affidavit of G Haidar 16.04.2019, page 20
[37] Affidavit of G Haidar 16.04.2019, page 19
Mr Haidar to Ms Fenton-Jones (4:26 pm; 20.11.2018):[38]
[38] Affidavit of G Haidar 16.04.2019, page 19
Sorry Thursday was never in the question needs to be tomorrow if you can’t make 10 am pick a time.
On the evidence before me, there was no further communication until 3:54 pm on 21 November 2018 when Mr Corliss sent by email a letter dated 21 November 2018 to Ms Fenton-Jones which was as follows:[39]
[39] Affidavit of B A Fenton-Jones 01.04.2019, pages 44-45
During the hiring process key responsibilities and expected performance objectives were outlined to you clearly. You have failed to meet the expectation in any of the areas specified within the plan that you and your manager had agreed to.
For the past two months we have attempted to work with you and help you to improve your performance. You were offered resources and additional support staff, which you refused. Management have tried to arrange an urgent meeting with you today Wednesday 21st Nov, in order to identify any problems. Unfortunately, you haven’t made any attempt to show up to work.
We regretfully notify you that after performance shortcomings, we have come to the conclusion that the company demands the termination of your services, effective 28/11/2018.
Upon your termination, you are required to return all Wagon Wheel’s assets/documents you might have. Also, please remove company’s financial details for future Adobe renewals.
We wish you all the best in your future endeavour.
On 26 November 2018 the accounts department of The Wagon Wheel Hotel sent an email to Ms Fenton-Jones requesting information about the hours Ms Fenton-Jones worked for the pay week ending 21 November 2018.[40] The email requested that, “as our records indicate that you [sic] last attended work” on 15 November 2018, and “we have heard nothing from you, if any work was done since then”. The email also asked Ms Fenton-Jones to “confirm you are going to attend your final week at work and fulfil your routine duties”. The email concluded:
Please note that based on our current information/record your last worked day was Thursday 15th November. And if you chose [sic] to not appear at work during your final week, then there will be no pay for this Thursday 29th Nov 2018. . . .
[40] Affidavit of B A Fenton-Jones 01.04.2019, page 48
Ms Fenton-Jones replied by email sent on 28 November 2018.[41] She said that she had confirmed with Mr Haidar the work she had performed up to 21 November 2018. As for the week commencing on 22 November 2018 Ms Fenton-Jones claimed “all logins and effective access to the work server were revoked and therefore I was unable to access any social media or online capabilities with which to do my job”, and that the “[c]ompany knowingly made it impossible to finalise or continue to work as I had been for the previous employed time”. Ms Fenton-Jones said “you are still required by Fair Work and the NES to pay the weeks [sic] owing to me, that being 3 days salary and the remaining benefits including all leave entitlements, as well as any extra days that have been worked outside of my expected hours”. After stating that on 24 November 2018 she relayed “handover notes” by email, Ms Fenton-Jones noted there were “a number of factors” that “played into” with “regards to attending work to finalise my duties” and why there had been “no communication”, these being:
a)Ms Fenton-Jones’ not having been given a “full job role description”, as she had been asking since she first started;
b)an “email 2 days before the final termination date” did not “suffice as communication enough to explain what these duties are, what is expected of me and what you further need prior to my leave from the Company”;
c)no written information was given after emails dated 20 November 2018 “when I received aggressive responses to valid questions asked of the employer Mr Haidar”;
d)Ms Fenton-Jones decided to maintain contact via email after “aggressive emails and threatening and harassing texts from members of staff”; and
e)No “communication was given regarding revoking logins”.
[41] Affidavit of B A Fenton-Jones 01.04.2019, pages 48-49
Ms Fenton-Jones then attached a spreadsheet of what she claimed were “extra hours and days she worked”, and demanded she be paid for the additional hours.
The accounts department of UGL responded on 6 December 2018 by email attaching a letter to Ms Fenton-Jones.[42] That letter contains the following statements:
a)Ms Fenton-Jones was given a lawful instruction to attend a meeting to discuss her employment, and that her refusal to comply “was grounds for dismissal for serious misconduct”.
b)Ms Fenton-Jones was given one week’s notice on 21 November 2018 of the termination of her employment on 28 November 2018 together with a further instruction that she attend UGL to complete her employment duties during the notice period. Ms Fenton-Jones forfeited her right to payment for that week by failing to attend the hotel.
c)On 24 November 2018 “we discovered that your work had been deleted from our computer server, including but not limited to photos of our venue and graphic advertisement flyers”, and that, after “we were unable to contact you, your logins and effective access to the work server was reasonably revoked”. In any event, Ms Fenton-Jones was required to attend the hotel where she would have been able to access any social media and online capabilities to complete her job.
d)Ms Fenton-Jones only questioned not receiving a written role description after she was queried what if anything she had done; and that a lack of job description did not prevent her from identifying what she had done.
e)Without conceding Ms Fenton-Jones worked additional hours, the additional hours were not authorised.
f)The material Ms Fenton-Jones handed over “was embarrassingly meagre”.
[42] Affidavit of B A Fenton-Jones 01.04.2019, pages 46-47
The letter concluded with a request that Ms Fenton-Jones provide all material on which she worked.
Ms Fenton-Jones responded by email sent on 17 December 2018 stating that she “will endeavour to respond within 7 working days”.[43] The only evidence before me of any response is Ms Fenton-Jones lodging a General Protections Application Involving Dismissal (FWC General Protections Form).[44]
[43] Affidavit of B A Fenton-Jones 01.04.2019, page 46
[44] Affidavit of G Haidar, 16.04.2019, annexure A
Explanation for not naming UGL as respondent
Ms Fenton-Jones gave a number of explanations for having included Mr Haidar as the respondent, rather than UGL. In the “Request for Amendment” Ms Fenton-Jones stated that “[d]ue to a misunderstanding of the forms, I submitted the details of the respondent incorrectly, citing a Mr George Haidar instead of the United Gaming and Leisure Hotel Group Pty Ltd, as cited on the Fair Work Commission Certificate under s.365”. In her affidavit of 13 March 2019 Ms Fenton-Jones said she prepared the documents herself and “made an honest mistake” by inserting the name of Mr Haidar. Ms Fenton-Jones said that she thought the name of Mr Haidar was to be entered because he was “the Employer and contact named on previous forms, as well as the main contact prior to his Legal Representation taking over”. Ms Fenton-Jones further said she had “no cause to mislead the court and other parties as I have been wanting to move forward quickly with this case since it was brought before the Fair Work Commission in February”. Ms Fenton-Jones also said she has been diagnosed with depression and anxiety.
Mr Dunne submitted Ms Fenton-Jones made no mistake by naming Mr Haidar as the respondent, rather than UGL. Mr Dunne relied on the s.368 Certificate having clearly identified UGL, Ms Fenton-Jones’ having incorrectly deposed that Mr Haidar “was the Employer and contact named on the previous forms”, and that Ms Fenton-Jones bears hostility towards Mr Haidar. Mr Dunne further submits that in any event, if Ms Fenton-Jones did make a mistake, she has given no explanation why she made such a mistake.
I do not accept that Ms Fenton-Jones intentionally included Mr Haidar as a respondent knowing he was not her employer, but that UGL was her employer. By lodging the FWC General Protections Form, it is apparent Ms Fenton-Jones wanted to pursue claims she believes she has against her employer. It is inconceivable in those circumstances that Ms Fenton-Jones named as a respondent a person whom she did not believe was her employer.
Even if it be assumed Ms Fenton-Jones holds an animus against Mr Haidar, it would be an illogical means of giving effect to that animus by naming him as an employer knowing that UGL was her employer. It is true it is difficult to understand why Ms Fenton-Jones named Mr Haidar as the respondent in circumstances where she had named UGL as an employer in the FWC General Protections Form. But the absence of a reasonable explanation for the occurrence of an event does not compel the acceptance of an irrational explanation for the happening of the event.
I find, therefore, that Ms Fenton-Jones’ naming Mr Haidar, rather than UGL, as a respondent was due to a genuine, although not a reasonable, mistake by her.
Apparent merits of claims
In the Form 2 she filed with the Court (FW Claim), Ms Fenton-Jones claims her employer (to use a neutral word for the time being) (Employer) contravened s.340(1)(ii), s.343, and s.351 of the FW Act. Before I set out Ms Fenton-Jones’ claims, it would be convenient to say something about each of these provisions.
Section 340(1)
Subsection 340(1) of the FW Act relevantly provides that a person must not take “adverse action against another person . . . because the other person . . . has . . . exercised a workplace right”. Three matters must be established before a person will be held to have contravened s.340 of the FW Act. First, the person has taken “adverse action against another person”. That expression is defined in a table contained in s.342(1) of the FW Act which identifies in one column the persons by whom and against whom adverse action must be taken, and, in another column, the conduct that, if taken by and against such persons, constitutes adverse action. For the purposes of these proceedings, the relevant person who must take the adverse action is “an employer”, and the person against whom the employer takes the adverse action must be “an employee”; and the employer takes “adverse action” if 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.
The expression “dismisses the employee” is not defined. The word “dismissed”, however, appears in s.12 of the FW Act after which appear the words “see section 386”. Section 386 is contained in Part 3-2 of the FW Act which deals with unfair dismissal. Subsection 386(1) provides:
A person has been dismissed if:
(a)the person's employment with his or her employer has been terminated on the employer's initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
It has been assumed that the definition of a “person has been dismissed” in s.386 of the FW Act applies to the expression “dismisses the employee” as it appears in s.342(1) of the FW Act.[45]
[45] Fair Work Ombudsman v Austrend International Pty Ltd [2018] FCA 171 (Gilmour J)
The second matter that must be established before a person can be found to have contravened s.340 of the FW Act is that the employee against whom the employer has taken adverse action has, among other things, exercised a “workplace right”. Under s.341(1) of the FW Act a person has a “workplace right” if, among other things, the person, being an employee, “is able to make a complaint . . . in relation to his or her employment”. The ordinary meaning of the word “complaint” is a statement expressing a grievance or a finding of fault; and an expression of grievance or accusation need not be factually correct, substantiated or ultimately made out in order to constitute a complaint within the meaning of s.341(1)(c)(ii) of the FW Act.[46]
[46] Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 at [600]
The third matter that must be proved to establish a contravention of s.340 of the FW Act is that the employer has taken the adverse action for a particular reason, or for reasons that included a particular reason.[47] That requirement arises from the presence of the word “because”:[48] section 340(1) of the FW Act prohibits a person from taking adverse action “because” a person has a “workplace right”, or because the person has exercised, or has not exercised, or proposes to exercise, or proposes not to exercise, such a right. Further, where the particular reason is one of a number of reasons for which the adverse action is taken, the particular reason must be “a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons”,[49] or must be an “operative or immediate reason for the action”.[50][
[47] FW Act, s.360
[48] Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284, at [26] (Tracey J)
[49] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [127]) (Gummow and Hayne JJ)
[50] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [140]) (Heydon J)
An important aspect of determining whether in any given case a person has taken adverse action “because” of one or more of the matters specified in s.340(1) of the FW Act is s.361(1) of that Act. That subsection provides:
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.
Mr Dunne submitted that when assessing the apparent merits of Ms Fenton-Jones’ claims it is not open to the Court to apply the presumption provided for by s.361(1) of the FW Act. I do not agree. In assessing the apparent merits of Ms Fenton-Jones’ claim based on an asserted contravention of s.340(1) of the Act, what I am required to assess is her prospects of succeeding on her claims if the matter were to proceed to a final hearing. Given that at the final hearing s.361 of the FW Act would apply, if the preconditions for its application are satisfied, an assessment of Ms Fenton-Jones’ prospects of success must take into account the fact that the onus falls on the Employer to show that any adverse action Ms Fenton-Jones will be able to prove was taken against her was taken for a reason, or for reasons that did not include as an operative factor, Ms Fenton-Jones’ having exercised a workplace right. Thus, when assessing whether Ms Fenton-Jones has reasonable prospects of succeeding on her claim based on the Employer’s contravention of s.340(1)(a)(ii) of the FW Act, it is necessary to ask whether there is evidence to suggest the Employer undertook adverse action against Ms Fenton-Jones for a reason that did not include as a substantial and operative factor a proscribed reason, and, if so, whether Ms Fenton-Jones has reasonable prospects that the Employer will not succeed in establishing the employer took the adverse action for a reason that did not include a proscribed reason as a substantial and operative factor.[51]
[51] See Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Union Industry [2019] FCA 1265, at [74] where Snaden J said: “Section 361(2) provides that the reverse onus for which s 361(1) provides “…does not apply in relation to orders for an interim injunction.” There is authority that suggests, notwithstanding s 361(2), that, in an interlocutory application for injunctive relief, account might be taken of the existence of the reverse onus in assessing whether or not there exists a prima facie case for the relief sought . . . .”
Section 343
Section 343 of the FW Act provides as follows:
(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.
Section 343 of the FW Act must also be read with s.361(1), which I have reproduced above. The expression “intent to coerce” has been interpreted to consist of two elements:[52]
First, it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice. Second, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable.
[52] Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2001] FCA 456; (2001) 109 FCR 378 at [41] (Merkel J) quoted with approval in State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160; (2013) 218 FCR 172 at [71]
Although a contravention requires proof that the alleged contravener intended to exert pressure on another, it is not necessary that the contravener have knowledge that his or her conduct is unlawful, illegitimate, or unconscionable. All that need be shown is that the action the person has taken or has threatened to take is conduct the law characterises as unlawful, illegitimate, or unconscionable.[53]
[53] Esso Australia Pty Ltd v Australian Workers’ Union [2016] FCAFC 72; (2016) 258 IR 396 at [176] (Buchanan J, with whom Siopis J agreed)
Section 351
Section 351 of the FW Act provides that an employer must not take “adverse action against a person who is an employee . . . of the employer because of the person’s . . . sex”. The expression “adverse action” has the meaning to which I have already referred; and s.361 also applies to s.351 of the FW Act.
Ms Fenton-Jones’ claim based on asserted contravention of s.340(1)
Ms Fenton-Jones’ claim based on contravention of s.340(1) of the FW Act is contained in paragraphs 24(1) to 24(4) of the FW Claim. She there alleges as follows:
a)Ms Fenton-Jones exercised a workplace right to inquire in relation to her employment by asking the Employer for a job description on 19 November 2018.
b)The Employer took adverse action against Ms Fenton-Jones by describing her position as “Marketing & Events Co-ordinator”, which was an alteration of her position because that “was not the description I was employed as”.
c)The Employer required Ms Fenton-Jones to attend a meeting in circumstances where she had been given insufficient notice, the Employer was aware her vehicle was at the “mechanics for a broken alternator”, the Employer told her not meeting “was not an option”, and that Ms Fenton-Jones “suggested alternative means including phone calls, conference calls or new times and days, all of which were dismissed”.
On a fair reading of these allegations, it is reasonable to suppose that Ms Fenton-Jones alleges as follows:
a)Ms Fenton-Jones made an inquiry of the Employer in relation to her employment, that inquiry being that she be informed of her job description, and for that reason she exercised a workplace right;
b)the Employer took adverse action against Ms Fenton-Jones by altering her position, insisting on her attending a meeting in circumstances where it was unreasonable for Ms Fenton-Jones to attend, and by terminating her employment; and
c)the Employer took the adverse action identified in (b) because Ms Fenton-Jones exercised her workplace right identified in (a).
There is no question the Employer terminated Ms Fenton-Jones’ employment and, for that reason, the Employer took adverse action against her. I am not satisfied, however, there are reasonable prospects the Employer will not prove that it terminated Ms Fenton-Jones’ employment for a reason or reasons other than the reason, or for reasons that includes as a substantial and operative factor, Ms Fenton-Jones having exercising a workplace right by making an inquiry or a complaint in relation to her employment. That is so because the contemporaneous documents I have identified earlier in these reasons show the following:
a)by email sent at 9:06 pm of 19 November 2018 the Employer directed Ms Fenton-Jones to attend a meeting on the following day with the licensee of the Hotel, Mr Corliss, for the purpose of Ms Fenton-Jones showing Mr Corliss what she had done and what needed to be done;
b)by email sent at 9:44 am on 20 November 2018 Ms Fenton-Jones indicated she would not attend any meeting on 20 November 2018;
c)by email sent at 12:35 pm on 20 November 2018 Mr Haidar informed Ms Fenton-Jones that Mr Corliss and Mr Haidar thought it would be preferable for them to meet with Ms Fenton-Jones in person at 10:00 am on 21 November 2018 so they could go through concerns Ms Fenton-Jones had raised, expectations of her role, and “contract and role description”;
d)after Ms Fenton-Jones stated that “at this stage . . . Thursday is best”, Mr Haidar directed that the meeting had to occur on the following day (that is, on 21 November 2018), and informed Ms Fenton-Jones that if 10:00 am did not suit her, she could nominate another time; and
e)Ms Fenton-Jones did not nominate any other time, and she did not attend work on 21 November 2018.
Given these facts Ms Fenton-Jones has no reasonable prospects of the Employer not establishing the following:
a)the Employer had given Ms Fenton-Jones a direction to attend two meetings for the purpose, or for purposes that included the purpose of Ms Fenton-Jones giving an account of the work she had performed, and for the purpose of the Employer discussing with her work she would be performing;
b)Ms Fenton-Jones refused or was unwilling to comply with the Employer’s directions to attend any such meeting;
c)the Employer’s directions to Ms Fenton-Jones were reasonable in the circumstances;
d)the Employer terminated the employment of Ms Fenton-Jones for the reasons set out in the letter dated 21 November 2018 by which the Employer terminated Ms Fenton-Jones’ employment, those reasons including Ms Fenton-Jones’ failure to turn up to work;
e)the reasons stated in the Employer’s letter dated 21 November 2018 did not relate to Ms Fenton-Jones’ having made any inquiry or complaint in relation to her employment, and, therefore, did not relate to Ms Fenton-Jones exercising any workplace right; and
f)the Employer, therefore, did not terminate Ms Fenton-Jones’employment or take any other adverse action against her because she exercised a workplace right.
Although not relevant to the findings I have made, it might be appropriate to say something about Ms Fenton-Jones’ claim that she “suggested alternative means including phone calls, conference calls or new times and days, all of which were dismissed”.
a)Ms Fenton-Jones did not respond to Ms Haidar’s offer that she nominate a time on 21 November 2018 other than at 10:00 am if that time did not suit Ms Fenton-Jones.
b)Ms Fenton-Jones’ claim assumes that her attending a meeting with the Employer during the time for which she was required to work for the stated purpose of discussing her work was a matter for negotiation between the Employer and her. That, however, ignores Ms Fenton-Jones was an employee of the Employer who had contracted to perform work for three days a week, and that it was an implied term of her contract of employment she would comply with the lawful and reasonable directions of the Employer.
c)The only reason Ms Fenton-Jones ultimately communicated to the Employer for not being in a position to attend a meeting on 21 November 2018 was the assertion that her car was being repaired. There are two things to note about that. First, there is nothing in the evidence before me to suggest that it was an express or implied term of Ms Fenton-Jones’ contract of employment that her attending work was conditional on her being able to arrive there by means of her own vehicle. Secondly, in her affidavit of 25 April 2019 Ms Fenton-Jones deposes that she never indicated to Mr Haidar that she would be “in” work, “due to my car being out of service and Mr Haidar knew this”.[54] Ms Fenton-Jones annexed a receipt as evidence that her car was being repaired. The receipt records: “Install new alternator with one year warranty 31/2 hr labour”. The receipt, however, is dated 19 November 2018. If the receipt is an accurate record, and Ms Fenton-Jones has herself put the invoice in evidence, presumably as an accurate record, it would appear that by 19 November 2018 Ms Fenton-Jones’ vehicle had been repaired. That, in turn, would suggest that the statement Ms Fenton-Jones made in the email she sent at 2:17 pm 20 November 2018 that she would confirm a time of meeting “once I’ve picked my car up”, and the statement she made in the email she sent at 4:23 pm on 20 November 2011 that she was “[s]till waiting to hear from mechanics”, were misleading, because by that time, according to the receipt, her vehicle had been repaired.
[54] Affidavit of B A Fenton-Jones 25.04.2019, [8]
Finally, Ms Fenton-Jones has no reasonable prospects of succeeding in establishing that the Employer altered her position, or that the Employer directing her to attend a meeting constituted adverse action. Mr Haidar stating in his email of 20 November 2018 that Ms Fenton- Jones’ role description was “Marketing and events coordinater [sic]” could not reasonably be considered as having purported to alter the position Ms Fenton-Jones held. And Ms Fenton-Jones’ being required to comply with a reasonable direction to attend a meeting also cannot reasonably be considered to constitute adverse action.
Thus, I am not satisfied that Mr Fenton-Jones would have reasonable prospects of succeeding on a claim against UGL based on a contravention of s.340(1) of the FW Act.
Ms Fenton-Jones’ claim based on asserted contravention of s.343
Ms Fenton-Jones’ claim based on a contravention of s.343 of the FW Act is contained in parts of paragraphs 24(2), 24(3), and 24(5) of the FW Claim. She there alleges as follows:
a)The Employer told Ms Fenton-Jones she was in no position to question or complain of what was expected of her, and the Employer had no problem with her leaving.
b)Ms Fenton-Jones asked for a written explanation of her job description and job title, but was told by email she was a “Marketing & Events Co-ordinator”.
c)On 21 November 2018 Ms Fenton-Jones received a letter of termination of employment from the Employer citing numerous incorrect and untruthful points about her employment.
None of these alleged facts is reasonably capable of being characterised as an exertion of pressure by the Employer, or as the exertion of pressure that, in a practical sense, deprived Ms Fenton-Jones of choice; and Ms Fenton-Jones does not allege she was induced not to exercise any right to complain or make an inquiry in relation to her employment or was reluctant to do any of these things. The evidence reveals Ms Fenton-Jones raised issues with the Employer and decided not to attend a meeting the Employer directed her to attend or to arrange for a different time on 21 November 2018 on which she could attend. Further, none of these alleged facts is reasonably capable of being characterised as unlawful, illegitimate, or unconscionable.
For these reasons, I am not satisfied that Mr Fenton-Jones would have reasonable prospects of succeeding on a claim against UGL based on a contravention of s.343 of the FW Act.
Ms Fenton-Jones’ claim based on asserted contravention of s.351
Ms Fenton-Jones’ claim based on contravention of s.351 of the FW Act is contained in parts of paragraphs 24(6) and 24(7) of the FW Claim. She there alleges as follows:
a)Throughout her employment Ms Fenton-Jones regularly had dealings with Mr Hussary via text, email, and in person in which she was “often threatened or harassed, including to “watch myself” and calling me names such as “c***”, all which employer was aware of”.
b)Ms Fenton-Jones expressed discomfort with this behaviour, but she was regularly laughed at and told “"that was just his (Mr Hussary) way and I had to deal with it””.
c)Ms Fenton-Jones was subjected to “[c]ontinual discrimination and double standards with regards to myself and male colleagues”.
d)Ms Fenton-Jones was subjected to discrimination “via sexual harassment constituting sexual discrimination”. Ms Fenton-Jones regularly attempted to meet with the employer to discuss her conditions and role, “often resulting in offensive and intimidation actions, inappropriate body contact, comments regarding appearances, and questions pertaining to personal life and sexual lifestyle”.
These claims must be considered in the light of the evidence Ms Fenton-Jones filed. There is in evidence two sets of documents evidencing dealings between Ms Fenton-Jones and Mr Hussary. One consists of the email exchanges I have reproduced in paragraphs 27 and 28 of these reasons. These exchanges cannot reasonably be characterised as harassment; and Mr Haidar’s response cannot reasonably suggest indifference by him.
The second set of documents is two text messages Mr Hussary sent to Ms Fenton-Jones. The first was sent on 24 November 2018 in which Mr Hussary stated: “Let’s not make things messy send me the log in details I’m not going to ask again nicely”.[55] Mr Hussary sent the second text message on 25 November 2018, stating (errors in original): “I think I’m a idiot it had nothing to with facebook ur a little cunt u took the link down it was working fine until yesterday”.[56] The text message is without question abusive. There are, however, three things to note about these two text messages. First, they occurred after 22 November 2018, when the Employer gave notice terminating Ms Fenton-Jones’ employment. Second, the text messages appear to have been sent in relation to a particular issue. The text message cannot reasonably be characterised as forming part of a consistent pattern of harassment. Third, there is nothing in the evidence to suggest Ms Fenton-Jones brought these text messages to the attention of Mr Haidar or Mr Corliss.
[55] Affidavit of B A Fenton-Jones 01.04.2019, page 30
[56] Affidavit of B A Fenton-Jones 01.04.2019, page 31 (errors in original)
Ms Fenton-Jones has deposed that in addition to the email exchanges to which I have referred “there had been other emails exchanged between Mr Hussary and myself in which his attitude was aggressive, however I do not have access to them”.[57] Ms Fenton-Jones has not provided, however, any details about the emails from which it is possible to determine whether the emails were aggressive, or the matters on which Ms Fenton-Jones relies for concluding the emails were aggressive.
[57] Affidavit of B A Fenton-Jones 01.04.2019, [11]
As I have already noted, Ms Fenton-Jones deposed to having a conversation with Mr Haidar on 29 October 2018 about a conversation she had with Mr Hussary to which Mr Haidar said that that is who Mr Hussary is, and that Ms Fenton-Jones had to deal with it. Two things may be said about this evidence, assuming it is accepted. First, Ms Fenton-Jones does not set out the conversations she had with Mr Hussary that was the subject of her conversation with Mr Haidar. Second, the conversation is a single instance. It falls short of the claim Ms Fenton-Jones makes in the FW Claim that she was “often harassed”.
There is another matter to note about this part of Ms Fenton-Jones’ claim, and the evidence she has provided in relation to it; and this relates to the statement of contraventions contained in the FWC General Protections Form. Ms Fenton-Jones does not there allege that throughout her employment she regularly had dealings with Mr Hussary via text, email, and in person in which she was “often harassed, including to “watch myself” and calling me names such as “c***”, all which employer was aware of”. Mr Fenton-Jones only refers to the two dealings evidenced by the two sets of documents to which I have already referred.
The question I must consider on this part of Ms Fenton-Jones’ claims is whether, assuming Ms Fenton-Jones’ evidence is accepted, and having regard to the documentary evidence that is before me, Ms Fenton-Jones has a reasonably arguable case that the Employer contravened s.351 of the FW Act. And here it is important to be clear about the claim Ms Fenton-Jones has brought in this Court. It is a claim under the FW Act alleging dismissal of her employment in contravention of a general protection provision. Although Ms Fenton-Jones alleges a contravention of s.351 of the FW Act, she does not allege that she was dismissed because of the matters on which she relies for claiming the Employer contravened s.351 of the FW Act. For that reason alone, Ms Fenton-Jones has no reasonable prospects of succeeding on a claim based on the Employer’s contravention of s.351 of the FW Act. But even if Ms Fenton-Jones is to be taken to make such a claim, for reasons I have already given, she would have no reasonable prospects of the Employer not being in a position to prove that it terminated her employment for the reasons the Employer gave, and that the Employer did not terminate Ms Fenton-Jones’ employment because of her gender.
I then turn to Ms Fenton-Jones’ claim that she was subjected to discrimination “via sexual harassment constituting sexual discrimination”, and that she regularly attempted to meet with the employer to discuss her conditions and role, “yet was met with unwanted sexual advances, often resulting in offensive and intimidation actions, inappropriate body contact, comments regarding appearances, and questions pertaining to personal life and sexual lifestyle”. There is in evidence text messages Mr Haidar sent to Ms Fenton-Jones that are clearly inappropriate, these being “sweet dreams princess”, “I’m leaving Tuesday night so make sure I see your pretty face before I go”, “Okay have you missed me” followed up with “You didn’t answer my question”, and “Good morning princess I don’t like to hear you being upset hang in there I’ll be by your side soon I’ll keep the wolfs [sic] away from you this week”. There is also evidence given by Ms Fenton-Jones of conversations she had with Mr Haidar which I have already set out, some of which Mr Haidar does not recall saying, but some of which he denies saying, and evidence that at the end of one conversation Mr Haidar put his hands on Ms Fenton-Jones’ shoulders.
The question I have to consider on this part of Ms Fenton-Jones’ claims, however, is not whether, because of the text messages Mr Haidar sent to Ms Fenton-Jones and, assuming Ms Fenton-Jones’ evidence is accepted, the statements Mr Haidar made and his placing his hands on Ms Fenton-Jones’ shoulders, Ms Fenton-Jones has a reasonably arguable claim that the Employer contravened s.351 of the FW Act. The question is whether, accepting Ms Fenton-Jones’ evidence and the documentary evidence, Ms Fenton-Jones has a reasonably arguable case that she was dismissed in contravention of the s.351 of the FW Act. As with her claim based on harassment, however, although Ms Fenton-Jones alleges a contravention of s.351 of the FW Act, she does not allege that she was dismissed because of the matters on which she relies for claiming the Employer contravened s.351 of the FW Act. For that reason alone, this part of her claim has no reasonable prospects of succeeding on a claim based on the Employer’s contravention of s.351 of the FW Act. But even if Ms Fenton-Jones is to be taken as making such a claim, for reasons I have already given, she would have no reasonable prospects of the Employer not being in a position to prove that it terminated her employment for the reasons the Employer gave, and that the Employer did not terminate Ms Fenton-Jones’ employment because of her gender.
Conclusion on apparent merits of Ms Fenton-Jones’ claims
For these reasons, I am satisfied Ms Fenton-Jones would not have reasonable prospects on succeeding on her claims that the Employer dismissed her from her employment in contravention of s.340(1), or s.343, or s.351 of the FW Act.
Conclusion and disposition
I have found that Ms Fenton-Jones included Mr Haidar, rather than UGL, as a respondent because of a mistake. Ms Fenton-Jones has not delayed to any significant extent in seeking to remedy her mistake by applying to substitute UGL as a respondent. And UGL would suffer no prejudice if I were to allow the additional time. Had I been satisfied, therefore, that Ms Fenton-Jones would have a reasonably arguable case against UGL, if it were to be substituted as a respondent, that she was dismissed in contravention of s.340(1), s.343, or s.351 of the FW Act, I would have been satisfied that I should allow her additional time to that provided for by s.370(a)(ii) of the FW Act to bring a claim against UGL. I am not satisfied, however, the Ms Fenton-Jones would have a reasonably arguable case against UGL, if she were permitted to substitute it as the respondent, and I am satisfied she would not have a reasonably arguable case. For that reason, I am unable to be “positively satisfied that the prescribed period should be extended”.[58]
[58] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, at pages 299-300
I propose, therefore, to order that the application in case to substitute UGL as a respondent be dismissed, and to dismiss the application brought against Mr Haidar on the ground it is accepted Mr Haidar was not the employer of Ms Fenton-Jones.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 15 November 2019
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