Guerinoni v Synthes Australia Pty Ltd
[2016] FCCA 1710
•8 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GUERINONI v SYNTHES AUSTRALIA PTY LTD | [2016] FCCA 1710 |
| Catchwords: INDUSTRIAL LAW – Fair work – adverse action – exercise of a workplace right – reasonable notice – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 342. |
| Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barkly (2012) 290 ALR 647 Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567 |
| Applicant: | TARYN GUERINONI |
| Respondent: | SYNTHES AUSTRALIA PTY LTD |
| File Number: | MLG 1832 of 2013 |
| Judgment of: | Judge McNab |
| Hearing date: | 14 June 2016 |
| Date of Last Submission: | 15 June 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 8 August 2016 |
REPRESENTATION
| Applicant In Person |
| Counsel for the Respondent: | Mr McKenna |
| Solicitors for the Respondent: | Corrs Chambers Westgarth |
ORDERS
The application filed on 30 October 2013 be hereby dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1832 of 2013
| TARYN GUERINONI |
Applicant
And
| SYNTHES AUSTRALIA PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
By an amended statement of claim dated 19 March 2014,
Ms Guerinoni (“the applicant”) alleges that she was subjected to adverse action within the meaning of s.342 of the Fair Work Act 2009
(“The Act”) in her employment with the respondent by reason of her making complaints in relation to her employment within the meaning of ss.341(1)(c)(i) and 341(1)(c)(ii) of the Act.
The applicant also alleges a breach of contract and seeks contractual damages for an alleged failure to give reasonable notice upon the termination of employment.
The respondent is a business that supplies medical devices. It was acquired by Johnson & Johnson Medical Proprietary Ltd in June 2012.
The applicant relied on affidavits sworn by her on 28 April 2014 and 29 May 2015. The respondent relied on the affidavits of Charles Clayton (“Mr Clayton”) sworn 30 June 2014; Jodie Kathyrn Adams (“Ms Adams”) sworn 26 June 2014; Christina Costantini
(“Ms Costantini”) sworn 23 June 2014 and Ruth Knocka
(“Ms Knocka”) sworn 10 June 2016.
The Applicant’s case
The applicant entered into a written contract of employment with the respondent on 12 June 2010 and commenced employment as a Sales Associate on 22 February 2010. The applicant notes at [5] of her affidavit, sworn 28 April 2014, that:
The Respondent is a multinational company, forming part of the Johnson & Johnson family of companies. It manufactures and supplies products for use in many areas of health care and medical treatment, including orthopaedic, spinal
cranio-maxillofacial (CMF) trauma and power tools.
The applicant was employed pursuant to a written contract of employment on a package consisting of:
a)Salary: $70,000
b)motor vehicle allowance: $17,500
c)bonuses of: $20,000
d)superannuation 9% of salary (package $113,800)
The applicant deposed that she was employed within the CMF division which involved the provision of implants, instruments and technical expertise for the treatment of cranial and facial reconstruction and trauma as well as sternal closure, rib fixation and surgical power tools. The applicant was part of a team involved in that division of sales and worked with fellow employee of the respondent, Ms Lea Goh
(“Ms Goh”). The applicant worked subject to the supervision of the CMF National Manager, Mr Clayton.
The position was one which involved a degree of expertise in the nature of the products being sold and as a part of her work the applicant had to deal directly with surgeons working in the field of practice to which the products were supplied. The applicant gave evidence that at the time of the cessation of employment she was earning approximately $180,000 per annum in salary and bonuses.
By an email dated 4 April 2011 the applicant was advised that she had successfully completed her Sales Associate CMF training, that she had worked extremely hard over the last 3 months and that she had successfully been promoted to a Sales Consultant position.[1] The terms of her remuneration package were contained in annexures to the
4 April 2011 email and the package was $142,850.
[1] Affidavit of Taryn Guerinoni sworn 28 April 2014 at [8]; see also Annexure TG-2
At the time the applicant commenced employment, Ms Goh was an experienced Sales Consultant based in Victoria working for the respondent and she acted as a mentor to Ms Guerinoni. Ms Goh was responsible for training Ms Guerinoni and would report to Charles Clayton in respect of the applicant’s performance.[2]
[2] Affidavit of Charles Clayton sworn 27 June 2014 at [12]
On 1 March 2012, Ms Goh was promoted to the position of Field Sales Manager.
The applicant gave evidence that between January 2012 and 25 May 2012, her performance was meeting expectations and she received both verbal and written feedback to the effect that her performance was up to the required standard.
Mr Clayton gave evidence that he met with Ms Goh on 7 June 2012 to discuss the applicant’s performance and he became aware that the respondent had received a complaint from a nurse at the Warringal Private Hospital regarding the applicant’s “in-service education” At the hospital.
Mr Clayton gave evidence of a conversation between himself and
Ms Goh on 7 June 2012, where Ms Goh had said words to the effect of:
I was made aware of a complaint regarding Ms Guerinoni’s performance at Warringal Hospital. I contacted Warringal Hospital to verify the complaint. I was told by the CNS at the hospital that she never sees Taryn, she doesn’t cover cases, doesn’t provide education and that she seems disinterested for example, she emails and texts during theatre. She also said she had a meeting with Taryn in late 2011 where she told Taryn she wanted more education and service at the hospital but Taryn had not been sighted since 2011. She told me she was so disillusioned that she asked the surgeon to consider changing suppliers and the surgeon tried a competitor product.[3]
[3] Affidavit of Charles Clayton sworn 27 June 2014 at [30]
Mr Clayton gave evidence that the performance of the applicant was a matter of ongoing discussion between himself and Ms Goh in 2010 and 2011. He gave evidence that he had a meeting with the applicant in October 2010 to discuss her development and said words to the following effect: “you do not communicate effectively and you need to communicate more frequently with Lea and me. You also need to act quickly when matters are urgent.”[4]
[4] Affidavit of Charles Clayton sworn 27 June 2014 at [20]
Mr Clayton also gave evidence that:
In addition to these emails I had regular telephone conversations with Ms Goh in the period March to June 2012 in relation to issues Ms Goh had with Ms Guerinoni’s performance. I cannot recall what was said in each of these conversations but I do know that issues with Ms Guerinoni’s performance were raised on multiple occasions by Ms Goh, including that Ms Guerinoni’s sales activities and sales plans were not sufficient.
My recollection is Ms Goh and I were speaking about issues with Ms Guerinoni’s performance on approximately a weekly basis during this time.[5][5] Affidavit of Charles Clayton sworn 27 June 2014 at [30]
Mr Clayton gave evidence that he decided that on 7 June 2012, there was a need to put in place a performance management strategy which included a detailed action plan and weekly monitoring of the applicant’s activities. He also gave evidence that the complaint from Warringal Hospital was the catalyst for his decision and it was also based on the fact that Ms Goh had been expressing a number of concerns with Ms Guerinoni’s performance.[6]
[6] Affidavit of Charles Clayton sworn 27 June 2014 at [31]-[33] and see handwritten notes at tab 13 of Exhibit CC1
On 8 June 2012 there was a meeting between Ms Goh and Ms Adams (who was the Human Resources Manager of the respondent) and
Mr Clayton, during which the Warringal Private Hospital complaint and Ms Guerinoni’s performance was discussed.[7]
[7] Affidavit of Jodi Kathryn Adams sworn 26 June 2014 at [16]; Affidavit of Charles Clayton sworn 27 June 2014 at [34]
On 13 June 2012, there was a meeting between the applicant, Ms Goh and Ms Adams to discuss the Warringal Private Hospital complaint and the applicant’s performance and sales figures.[8]
[8] Affidavit of Taryn Guerinoni sworn 28 April 2014 at [23-24]; Affidavit of Jodi Kathryn Adams sworn 26 June 2014 at [19-21]
On 14 June 2012, Ms Goh emailed Mr Clayton and copied Ms Adams with a draft document attached titled ‘Sales Projects’.[9] On the same day Ms Goh sent the applicant an email titled ‘Sales Activity’ which attached a document titled ‘Sales Projects’, Ms Guerinoni gave evidence that it was never suggested at that time that she was on performance management plan or anything similar.[10]
[9] Affidavit of Charles Clayton sworn 27 June 2014 at [35] – [37]; tab 16 of Exhibit CC1
[10] Affidavit of Taryn Guerinoni sworn 28 April 2014 at [26]
Between 25 July 2012 and 28 August 2012 the applicant took annual leave.
The applicant gave evidence that on the 30 August 2012 she met with Ms Goh at cafe in Windsor and alleges that, at the time, she was told that “a serious meeting was planned next week and that I could be given two months’ pay to leave.” She gave evidence that “I felt blindsided and completely dismayed by these comments. In fact it had such an effect on me that I immediately burst into tears. It was also a bit embarrassing that this conversation was taking place in such a public venue”. In a Workers Injury Claim Form submitted by the applicant on 8 March 2013,[11] the applicant identified 30 August 2012 as the date on which the injury/condition referred to in the claim form occurred.
[11]Affidavit of Taryn Guerinoni sworn 28 April 2014 at Annexure TG-36
On 31 August 2012 the applicant contacted Ms Adams by telephone to request a meeting to make a complaint about the conduct of Ms Goh. A subsequent email sent on the same day from Ms Adams to
Ms Guerinoni, directed Ms Guerinoni not to contact clients from her personal email and invited her to document the allegation she mentioned during the phone call for further investigation.[12]
[12] Affidavit of Jodi Kathryn Adams sworn 26 June 2014 at [26] – [27]
On 2 September 2012, after taking personal leave between
31 August 2012 and 10 September 2012, the applicant sent an email to Ms Adams and Mr Gary Mitchell (the Managing Director of the Respondent), containing a complaint regarding Ms Goh.[13] This action is relied upon as an exercise of a workplace right in the amended statement of claim at [29] and that is accepted by the respondent.
[13] Affidavit of Taryn Guerinoni sworn 28 April 2014 at [26] and AnnexureTG-16
On 3 September 2012 the applicant attended the Airlie Women’s Clinic and was provided with a medical certificate for an absence from work from 31 August 2012 to 7 September 2012.
On 13 September 2012 there was a meeting between the applicant and Ms Adams at the Melbourne Airport Qantas lounge. The applicant attended the meeting with John Howell from the National Worker’s Union and Madelon Smythe (a support person). Mr Howell attended by phone and Ms Adams took detailed notes of that conversation and produced hand written notes which were subsequently copied into typed notes.[14]
[14] Affidavit of Jodi Kathryn Adams sworn 26 June 2014 at Annexures JA-8 and JA-9
On 17 September 2012 there was a telephone conference between
Ms Adams and the applicant and the substance of that conversation is set out at [41] of the applicant’s affidavit. The applicant tape-recorded the conversation and set out details of the aspects of which she considered significant in her affidavit. The contents of those extracts were not denied by the respondent. In those extracts the applicant asserted that Ms Adams was generally complimentary of her abilities in her role and that there was no intention on the part of the respondent to terminate the applicant’s employment. It was not denied that
Ms Adams had said to the applicant: “you have a right to have your job based on your performance you have demonstrated. You don’t deserve to be moved out of it.”[15]
[15] Affidavit of Taryn Guerinoni sworn 28 April 2014 at [41(x)]
On 20 September 2012 the applicant commenced psychological counselling with a psychologist Nicole Plotkin and was placed on a mental health plan. It is not clear whether her supervisors were aware of this at that time.
On 24 September 2012 there was a further meeting between the applicant and Ms Adams at a cafe in Windsor. There is a conflict in the evidence between the applicant and Ms Adams as to what was said at that meeting. The applicant stated that Ms Adams said at that meeting that:
1) Ms Goh had denied the events of the second meeting on
30 August 2012;
2) because there was no one else present at the time of the second meeting that the respondent was not in a position to take the matter any further; and
3) the only position available to me within the respondent company was under the supervision of Ms Goh.
Ms Adams gave evidence that she said words the effect:
Synthes are not in a position to investigate Lea and Charlie based on your allegations. Lea has denied that she said your job is in jeopardy at the annual meeting on 30 August or that you would be offered two months paid leave. She said she told you there was a serious HR meeting planned with Charlie and me. You are welcome and required back in your CMF position. But you need to work on your communication with Lea. Communication needs to be fair and consistent and you and Lea need to agree on communication between you in terms of frequency and style. I cannot act as a go-between. There is no evidence supporting your allegations and other employees managed by Lee have positive feedback about her management style.
On 28 September 2012 the applicant sent an email to Ms Adams containing her comments on the “Taryn Guerinoni objective
September 2012” document.[16]
[16] Affidavit of Taryn Guerinoni sworn 28 April 2014 at [251] and at Annexure TG-23
On 28 November 2012 Ms Guerinoni received an email from
Ms Adams requesting that she attend a meeting on 3 December 2012 and that one of the issues to be discussed during the meeting was the Performance Improvement Plan that was implemented in June 2012 which was due for final review at the end of December 2012.[17]
Ms Guerinoni gave evidence in relation to this plan that “I found it quite peculiar that these terms were being used when up to then I had no knowledge of such a plan being in place in relation to my role, nor had I cited, reviewed or signed such a document.”[18]
[17] Affidavit of Taryn Guerinoni sworn 28 April 2014 at [8] Affidavit of Jodi Kathryn Adams sworn 26 June 2014 at [55]
[18] Affidavit of Taryn Guerinoni sworn 28 April 2014 at [15]
On 3 December 2012 there was a meeting between the applicant,
Ms Adams and Mr Clayton regarding the Performance Improvement Plan. The applicant alleges that in the course of that meeting she was advised that:
1) she had not met the company’s expectations;
2) she would be terminated if today was a final review; and
3) there had been inadequate ongoing communication with
Ms Goh.
Mr Clayton gave evidence at [57] of his affidavit that he told the applicant at that meeting, words to the effect:
There are continuing issues around communication. Your communication with customers and colleagues is insufficient. You need to be more proactive in your communications with Lea and you need to report incidents when they occur. Communication is a critical element of the role of a Synthes Sales Consultant. You should understand the volume and type of communication required at any given time to ensure that business critical information is communicated in both a timely and efficient manner. In previous meetings with Lea and Jodi you have been informed clearly that part of your role is to communicate with the business generally and with Lea in particular as your manager and that failure to do so would be a failure to carry out adequately the role of a Synthes Sales Consultant.
Mr Clayton then says that the applicant responded with words to the effect of:
“I defer from communicating with Lee via the phone and/or face-to-face. I prefer to use email or text.”
At the end of the meeting I said words to the effect of “we will meet again prior to the end of the year to review the performance plan.”[19]
[19] Affidavit of Charles Clayton sworn 27 June 2014 at [57]
On 18 December 2012 the applicant received an email from Ms Adams advising that the review meeting was to be postponed to
14 January 2013.[20]
[20] Affidavit of Taryn Guerinoni sworn 28 April 2014 at [63] and at Annexure TG-28
Mr Clayton gave evidence that between the meeting of 3 December 2012 and 21 December 2012 it was his understanding that there was an improvement in the applicant’s level of communication although there were still concerns regarding her accepting responsibility and being accountable for tasks.[21]
[21] See email from Ms Goh to Mr Clayton dated 21 December 2012 at Tab 39 of Exhibit CC1
Mr Clayton gave evidence that this time he did not believe there had been sufficient time to determine whether the applicant’s performance had improved in other aspects including in her behaviour towards colleagues and her ability to put in place and execute sales plans.
He gave evidence that on that basis he would continue to place the applicant on a Performance Improvement Plan for a further two months.
On 15 January 2013 there was a meeting between the applicant,
Ms Adams, Mr Clayton and with Madelon Smythe as a support person, during which Ms Guerinoni was advised that she would need to continue on a Performance Improvement Plan for a further two months.
On 19 January 2013 it was alleged by Mr Clayton and Miss Adams that the applicant had become upset and emotional at an awards night held by the respondent because she had not received an award when she believed that she was entitled to one. Mr Clayton forwarded an email Ms Adams outlining concerns that he had regarding the reports that he had received about the applicant’s performance at that award’s night.[22]
[22] See Tab 40 of Exhibit CC1
On 21 January 2013 the applicant sent an email to Ms Adams, copied to Mr Clayton, informing them of her intention to continue her employment with the respondent. In that email she proposed that instead of a Performance Improvement Plan she would prepare a Territory Business Plan.[23]
[23] Affidavit of Taryn Guerinoni sworn 28 April 2014 at [71] and Annexure TG-32
On 22 January 2013 there was a meeting between Mr Clayton,
Ms Adams and the applicant during which the applicant’s behaviour on the awards night was discussed as well as the Performance Improvement Plan.
On 26 January 2013 the applicant contacted the Johnson & Johnson Ethics Point Hotline to make a complaint in relation to Ms Goh,
Ms Adams and Mr Clayton.[24] This is accepted by the respondent to constitute an exercise of a workplace right.
[24] Ibid at [76]
On 29 January 2013 the applicant was contacted by Ms Costantini, the Asia Pacific Human Resources Manager for the respondent regarding the complaint. On 31 January 2013 a meeting was held between the applicant, Ms Adams and Ms Goh during which the applicant was directed to continue with the Performance Improvement Plan.
Ms Adams gave evidence of what she said was the applicant’s rude and aggressive attitude to Ms Goh.[25]
[25] Affidavit of Jodi Kathryn Adams sworn 26 June 2014 at [77]
Ms Constantini contacted Ms Adams on 31 January 2013 seeking information about the complaint.[26]
[26] Affidavit of Christina Costantini sworn 23 June 2014 at [13] and Affidavit of Jodi Kathryn Adams sworn 26 June 2014 at [80]
On 4 February 2013 the applicant was contacted by telephone by
Ms Constantini. At [79] of her affidavit the applicant states:
She was very quick to inform me that my Third Party Review Request had been denied. I pleaded that Ms Constantini investigate the events that unfolded over the preceding 7 months and she agreed. She told me she was writing down the relevant names to begin the process. At the time, I advised her of the following names: Ms. Lea Goh, Ms. Jodie Adams and
Mr. Charlie Clayton.
Ms Constantini gave evidence at [16] of her affidavit that:
“During this conversation Ms Guerinoni explained in further detail her complaint in the performance management process. This conversation lasted for approximately one hour and the outcome of the conversation was that Ms Guerinoni would send me all the documentation she had to support her claims and I would investigate the matter further.
There were further telephone communications between the applicant and Ms Constantini on 7 February 2013 and 28 February 2013.[27] At [19] of her affidavit, Ms Costantini gave evidence in relation to the
7 February telephone call:
[27] Affidavit of Christina Costantini sworn 23 June 2014 at [18]
“I refer to paragraph 80 of Ms Guerinoni’s affidavit filed on
29 April 2014. In that paragraph Ms Guerinoni alleges that during our telephone call on 7 February 2013 I advised her that
I did not see what the problem was as she had not been dismissed. I did not say this. During our meeting on 7 February 2013,
Ms Guerinoni said words to the effect of: “they are trying to create a constructive dismissal.”
In response to this I said words to the effect of:
“Taryn you are still here, you still have a job. If it had been a constructive dismissal you wouldn’t be here. Your managers are trying to work with you and want you to be here.”
Between 18 February 2013 and 1 March 2013 the applicant took annual leave and returned to work on 4 March 2013.
On 6 March 2013 the investigation by Ms Constantini commenced into complaints made by the applicant was completed. Ms Constantini found that none of the complaints made by the applicant was substantiated.[28] The applicant gave evidence at [83] that on returning from work on 4 March 2013 she was given a long list of tasks by
Ms Goh that needed to be urgently completed by 5:00pm the following day. She gave evidence in the following terms:
“Each specific task needed to be reported back to her properly. Ms Goh was well aware at that time that most Fridays I spent attending various hospitals as part of my role. I was at a loss to know how Ms Goh could reasonably expect me to complete the tasks within the timeframe she had said. I knew that I was unable to continue in my role in these unfair conditions and made an appointment immediately to see my doctor at Airlie Clinic.”
[28] Affidavit of Christina Costantini sworn 23 June 2014 at [24] and Annexure CC-5
The following day on 7 March 2013 the applicant attended the Airlie Women’s Clinic and obtained a WorkCover certificate for the purpose of making a WorkCover claim. As noted earlier, the date of injury referred to in the claim was 30 August 2012.[29]
[29] See Annexure TG-37
On 8 March 2013 the applicant commenced medical leave and lodged a Workers Injury Claim Form for stress and she did not return to work after this date.
On 23 April 2013 the respondent sent the applicant a letter and a medical authority form to facilitate the applicant’s return to work.[30]
[30] Affidavit of Jodi Kathryn Adams sworn 26 June 2014 at [86] and JA33
On 6 June 2013 the applicant’s WorkCover claim was resolved at mediation on the basis of the payment of weekly payments between
18 March 2013 and 6 June 2013.[31]
[31] Amended Statement of Claim at [26]; Affidavit of Jodi Kathryn Adams sworn 26 June 2014 at [87]
On 15 July 2013 Ms Adams sent the applicant a further letter forwarding a medical authority form of 23 April 2013 to facilitate her return to work.[32]
[32] Affidavit of Jodi Kathryn Adams sworn 26 June 2014 at [88(a)] and J836
On 28 August 2013 the respondent’s solicitors sent a letter to the applicant’s solicitors seeking to confirm by 2 September 2013 whether the applicant would be returning to work.[33]
[33] Affidavit of Jodi Kathryn Adams sworn 26 June 2014 at [91] and JA 39.
On 6 September 2013 Ms Adams sent a letter to the applicant asking the applicant to confirm by 11 September 2013 whether she planned on returning to work.[34] On 11 September 2013 the applicant’s solicitors sent a letter to the respondent’s solicitors advising that the applicant would be unable to return to work.[35]
[34] Affidavit of Jodi Kathryn Adams sworn 26 June 2014 at [93]; JA 41
[35] Amended Statement of Claim at [27] and Affidavit of Taryn Guerinoni sworn 28 April 2014 at [89]; TG-40
On 6 November 2013 the applicant commenced employment with a new employer, St Jude Medical. She was paid a base salary of $90,000, a car allowance of $20,000 and a sales incentive of $30,000 plus superannuation.
The applicant gave evidence at the hearing that she continued to be employed in a role at that business.
Consideration
The respondent, by its defence and by submissions, accepted that the applicant by her conduct on 2 September 2012 and 26 January 2013 in making complaints to the respondent, had exercised a workplace right within the meaning of ss.341(i) and (ii) of the Act.
The respondent does not admit that the conduct relied upon by the applicant in the amended statement of claim amounts to adverse action within the meaning of s.342. Section 342(1) of the Act contains a table which sets out circumstances in which a person takes adverse action against another person. The adverse action relied upon by the applicant particularised in Item 1(b) and (c) which states that:
1. Adverse action is taken by an employer against an employee if the employer:
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee's prejudice…
The applicant alleges that she suffered an adverse action by the conduct of the respondent in that;
a)she was injured in her employment as and as a result the applicant suffered stress, anxiety, depression, loss of appetite, humiliation, loss of dignity and injury to feelings.[36]
b)altered her position to her detriment as she was subjected to a Performance Improvement Plan on:
c)27 September 2012;
d)
28 September 2012 ( being a request to attend a meeting on
3 December 2012 to review the performance plan); and
e)a meeting on 15 January 2013.[37]
[36] Amended Statement of Claim [31(a)(b)]
[37] Amended statement of claim [31b]
Injury in Employment
In this case, the applicant alleges that the injury which gave rise to her claim for worker’s compensation occurred on 30 August 2012.[38]
This injury occurred prior to the conduct which is alleged to have constituted the exercise of a workplace right. It appears from the applicant’s claim that the injury alleged in the worker’s compensation claim is the same injury said to arise from the alleged breach of the Act.
[38] See Claim Form
In the decision in Patrick Stevedores Operation’s No.2 Pty Ltd v Maritime Union of Australia,[39] Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ state at [4] that injury in employment covers ‘injury of any compensable kind’. The injury must occur in in the employment and must involve a deprivation of one of the immediate practical incidence of employment.[40]
[39] (1998) 195 CLR 1
[40] See also Squires v Flight Stewards Association of Australia (1982) 2 IR 155 at 164 per Ellicott J
In Childs v. Metropolitan Transport Trust, Smithers J held in relation to the expression ‘injured in employment’:[41]
So far as the second charge is concerned, I am unable to see that in the narrow sense in which the word 'injure' seems to be used, the informant was injured in his employment on 22 December.
It did not occasion him any immediate loss of income. It did not mean that he did not do the same work during the period that his employment in the senior revenue pay clerk's office entailed him in performing that work. It is said that it reduced his status so far as the rest of the staff were concerned and did so as from that very moment. No doubt that is quite probable and probably did occur but it seems to me that that kind of thing is more aptly considered to be an alteration in his position than an injury.
I cannot help thinking that 'injury' refers to deprivation of one of the more immediate practical incidents of his employment, such as loss of pay or reduction in rank.
[41] (1981) FCA 200 at 7
S.342 requires there to be conduct subsequent to the exercise of the workplace right that the person has been injured in employment. The applicant’s amended statement of claim relies on conduct between
17 September 2012 and 15 January 2013. As noted at [63], the evidence supports a finding that the injury alleged by the applicant occurred on 30 August 2012.[42]
[42] See Claim Form
It is submitted by the respondent that none of the matters alleged involve conduct which injured the applicant in her employment in the sense that they subjected her to an injury of a compensable kind or resulted in a loss of an immediate practical incidence of employment such as a loss of pay or rank.
In my view, the evidence in this case does not support a finding that the applicant was, as a result of the complaints alleged, subjected to an injury in her employment of the kind which may give rise to a finding of adverse action in breach of s.342(1) of the Act.
Prejudicial Alteration by the Imposition of a Performance Management Plan
The applicant also alleges that the respondent altered her position to her detriment and refers to the imposition of a Performance Improvement Plan as the basis of this allegation. The Performance Improvement Plan is said to be constituted by;
a)the email of 27 September 2012 ( being an email with a list of objectives by email of that date);
b)a meeting held on 28 September 2012 to discuss the list of objectives;
c)
a request made on 28 November 2012 to attend a meeting on
3 December 2012; and
d)a meeting on 3 December 2012.
The email dated 27 September 2012 from Ms Adams to the applicant is a document which details the expectations of the respondent and sets out a clear plan for the applicant to follow in order to meet those expectations. The document commences with the heading
‘Taryn Guerinoni - Business Objectives’ and provides:
The business comprises of four segments that have differing objectives between now and the end of 2012. The four segments and their objectives are outlined below. This document represents the minimum expectations of your activities.
The document then sets out clear directions in relation to the tasks that the applicant is expected to fulfil, and the matters that the applicant must address in order to meet expectations. The document concludes:
Taryn, please list your expectations regarding the frequency and style of communication for discussions so that we may discuss in the meeting and agree moving forward.
The applicant responded to the email of 27 September 2012 on
28 September 2012 with the set of business objectives which she had populated with her own comments. The applicant then posed a series of questions[43] which were as follows:
[43] Affidavit of Taryn Guerinoni sworn 28 April 2014 at page 146
1) This is a very detailed document that I don’t see others having to populate. Is this suggesting you have a performance issue? Or is this part of my yearly development plan?
2) What is the ongoing expectation with these timelines? Once completed, do I have to keep developing new ones, or will Lea feel I am able to carry on with a plan and execute it?
If this is to be an ongoing plan will I eventually develop the focus areas or is Lea going to do this?
3) If one of the objectives takes longer to complete are there ramifications of that?
4) Does this document reflect that Lea feels I am are (sic) not aware of what I am required to do in this role hence the specific objectives with timelines?
In order for me to improve can Lea outline (with specific examples) the areas to be worked on together and not just with a list of instructions?
The applicant included with her correspondence, the comment:
I am seeking encouragement, mentorship and genuine partnership in creating and achieving my business goals more than anything else. I would love to have a sense of a cohesive team within Victoria each with our strengths we can contribute and leverage from for each other.
The applicant then alleges that she attended a further meeting with Ms Adams and Ms Goh on 28 September 2012 and at that meeting she was provided with a list of objectives that had to be complied with, which the applicant defined as a Performance Improvement Plan. In relation to this meeting the applicant gave evidence that she attended a performance review meeting with Ms Adams, Mr Clayton and Ms Goh and gave evidence at [60] of her affidavit that she was advised:
i. I had not met the company’s expectations;
ii. if today was (my) final review then (my) position would be terminated; and
iii. there had been inadequate ongoing communication with Ms. Goh.
Ms Adams gave evidence at [58] of her affidavit that during that meeting the applicant was indeed advised that she was not meeting the requirements of her role and that if “today (being 3 December 2012) was your final review your employment would be terminated”.
Ms Adams also gave evidence that the applicant had responded with words to the effect “the plan was not called a performance improvement plan at any point. The plan was purely sales and I have met those for new business.” The evidence given by Ms Adams detailed the basis on which Mr Clayton and Ms Goh had formed the view that Ms Guerinoni was not meeting the requirements of the role, including:
a) an incident with a customer, Mark Barrit, relating to
Ms Gueronini’s communication which resulted in Mr Barrit making complaint;
b) inappropriate behaviour with colleagues;
c) not asking questions of customers;
d) not delivering reporting on time or arriving to meetings on time;
e) not asking questions in a timely manner; and
f) needing to be given instructions and not showing initiative.
Mr Clayton gave evidence at [57] of his affidavit that at the meeting on 3 December 2012 he confirmed that Ms Adams had said words to the effect that it had been found that the applicant had behaved in an aggressive manner towards Laura Bradford and that as a result of the investigation she would receive a verbal warning for the incident.
During the meeting Mr Clayton said words the effect of: “if today was your final review then your input would be terminated” and “there are continuing issues around communication. Your communication with customers and colleagues is insufficient. You need to be more proactive in your communications with Lea and you need to report incidents when they occur.”
He went on to say:
In previous meetings with Lea and Jodi you have been informed clearly that part of your role is to communicate with the business generally, and with Lea in particular is your manager, and that failure to do so would be a failure to carry out adequately the role of a Synthes Sales Consultant.
The final incident which is said to be evidence of prejudicial alteration of the applicant’s position is a meeting on or about 15 January 2013, involving the applicant, Ms Adams and Mr Clayton. w The applicant alleges that she was advised that:
i)she had improved enough that she would not be terminated;
ii)she would need to go on a further Performance Improvement Plan for two months; and
iii)if she felt that she could not continue on another Performance Improvement Plan, they would support her receiving above the award entitlements.
Mr Clayton gave evidence at [63] of his affidavit that he had told the applicant that there had been an improvement in her performance since the meeting in December 2012, but that there had been insufficient time to determine whether other aspects of her performance had improved and that she would need to continue on the Performance Improvement Plan for another two months. He also gave evidence with words to the effect of:
This role is not for everyone and it seems that carrying out the role of a Synthes Sales Consultant to the level expected is quite stressful for you. If you feel that continuing in the role and continuing to meet the requirements of the role is not something you can do then we could assist you beyond your statutory entitlements.
Mr Clayton then gave evidence that the applicant had stated words to the effect that that she wished to attend the annual sales meeting on the following weekend and that she would give her decision as to whether she wanted to continue in her role on 21 January 2013.
The respondent submitted that:
a)the imposition of a performance management process in the form of a Performance Improvement Plan was not conduct which involved a prejudicial alteration of the applicant’s position;
b)It was not an investigation of alleged misconduct; and
c)it was a plan that was directed towards improving the applicant’s performance rather than an attempt to make her employment less secure.
There may be situations where the imposition of a performance management plan could constitute a prejudicial alteration of the applicant’s position. This might occur when the action taken is irrational or unnecessarily punitive or amounts to victimisation. The Anti –Bullying provisions of the Act recognise that where management action in relation to dealing underperformance is not taken out in a reasonable manner, this may constitute bullying as defined by s.789FD(1) of the Act.
The evidence in this case supports a finding that the development of a Performance Improvement Plan for the applicant did not constitute adverse action by prejudicially altering her position. The development of the plan was made in response to complaints that had been made in relation to the applicant’s performance, including complaints by a major third party customer of the respondent. The detailed and carefully formulated plan was not simply an exhortation to do better. It gave the applicant a clear and plainly discernible set of objectives and standards which were set out to enable her to meet the expectations of the employer and thereby secure her employment. The plan was followed up by regular meetings to enable the applicant to comply with the plan.
It was not suggested by the applicant in the evidence that the plans that had been formulated, in particular the list of objectives that had been compiled by Ms Adams which was set out in the email of
27 September 2012, constituted the prejudicial alteration of a position. Similarly, I do not find that the meetings that occurred to discuss the applicant’s performance against the list of objectives that had been compiled for her prejudicially altered her position. The meetings were held in order for the applicant to understand whether or not she was meeting the expectations of her employer. The object of the meeting was to take the contents of the list of objectives from an abstract set of performance standards and then have them measured against actual performance which was then subject to review in the meetings.
The applicant gave the strong impression in her oral evidence before the court that she was not happy being subject to the management of Ms Goh and refused to accept that there were any valid concerns in relation to her performance. She denied that the complaint from
a customer that prompted Mr Clayton to decide to implement
a Performance Improvement Plan was a serious matter.
For these reasons, I am of the opinion that the applicant was not subject to adverse action by reason of the fact that she made complaints in relation to her employment. I have set out at length the detail of what occurred in relation to the imposition and implementation of
a Performance Improvement Plan, as I am of the view that it reveals the depth of the process undertaken by the applicant and the efforts then to improve her performance.
If I am wrong in relation to a finding that there has been no adverse action, the question arises as to whether there has been any conduct taken as alleged by the applicant because the applicant exercised a workplace right. As noted in Board of Bendigo Regional Institute of Technical and Further Education v Barkly (2012) 290 ALR 647 at 657 [44] per French CJ and Crennan J, the central question for the court was “why was the adverse action taken?”
In Victoria (Office of Public Prosecutions) v Grant,[44] Tracey and Buchanan JJ. state at [32]:
As the trial judge recognised the leading authority on the operation of ss 360 and 361 of the Fair Work Act in the context of Part 3-1 of that Act (which includes s 351) is Board of Bendigo Regional Institute of Technical and Further Education v Barclay(2012) 248 CLR 500; 220 IR 445. The principles which informed this decision were recently reaffirmed by a majority of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41. Relevantly, these authorities establish that:
·The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
·That question is to be answered having regard to all the facts established in the proceeding.
·The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
·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.”
·Even if the decision-maker gives evidence that he or she acted solely for nonproscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
·If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.
[44] [2014] FCAFC 184
The evidence of Mr Clayton by his affidavit of 27 June 2014, at [31] was that on 7 June 2012, Ms Goh was told to set up a meeting with the applicant to “discuss the performance management program and the weekly activity plan for the next month.” That action occurred prior to the first alleged exercise of a workplace right by a period of about two months. Having considered Mr Clayton’s evidence, I accept that the reason for commencing the performance improvement plan and continuing to implement it was because of the genuine concerns that he had with regards to the applicant’s performance. The applicant’s evidence was that those concerns were ill-founded and that she was in fact an exemplary employee. That view does not displace the weight of evidence in this case that Mr Clayton and Ms Goh held concerns regarding the applicant’s performance and worked to improve it.
I find that the evidence supports a finding that the implementation of the performance management plan and the events alleged at [31] of the amended statement of claim were a continuation of that performance management process and unrelated to the complaints that were made by the applicant on 22 September 2012 and 26 January 2013 and that part of her complaint must fail.
Claim of reasonable notice
The applicant alleged that the respondent could terminate the applicant’s employment on providing her with reasonable notice of termination that is said to arise from the terms of the employment agreement as at 11 September 2013.[45] It is alleged at [8] of the amended statement of claim that reasonable notice was six months.
[45] Amended statement of claim at [7]
I am unable to agree with the contention that the contract of employment contained an implied term that the applicant was entitled to reasonable notice of termination of six months. I say this because the contract of employment included an express term for notice of termination which provided that:
1.2 The Employee’s position, roles, responsibilities and duties may change from time to time at the Company’s absolute discretion;
2.3 The employment shall continue until either party terminates this Agreement provided that the Company may at its discretion….
(b) terminate the employment of the Employee at any time upon giving the Employee not less than one (1) month’s prior notice of its intention so to do or one (1) month’s base salary in lieu thereof…”;
The contract also contained the following term:
16.3 No variation, modification or waiver of any provision of this Agreement shall be of any effect unless, and to the extent, that it is confirmed in writing and signed by the parties.[46]
[46] Affidavit of Taryn Guerinoni sworn 28 April 2014, pp.39, 40, 47
There is no evidence that the written agreement was replaced by any subsequent contract on her promotion to the position of
Sales Consultant and the applicant was provided with a revised remuneration plan in those circumstances. The change to the applicant’s position was not so significant as such to give rise to the formation of a fresh contract which would then give rise to the need to imply a term of a reasonable contract. The agreement governing the employment in the written agreement dated 12 January 2010 provided for termination on 4 weeks’ notice or payment in lieu. The applicant was paid in lieu of notice in accordance with the contract.
The facts in this case are in sharp contrast to those in Quinn v Jack Chia (Australia) Ltd [1992] I VR 567. In that case, the plaintiff, Quinn, was employed by the defendant as an assistant to the construction manager on a large long-term building project. The contract of employment contained terms that it may be terminated on not less than one month’s notice.
In April and August 1985, four months after his appointment, the plaintiff assumed the construction manager’s role by effectively overseeing the construction. Ashley J held that the plaintiff de facto assume the construction manager’s role. From August 1985, the plaintiff was appointed to what was held to be a quite different role as construction manager for the project and a general manager for the Jack Chia group. He was also appointed to the board of two of the substantial construction companies which form part of the Jack Chia group and he undertook duties in construction work which was work different to the project that he had been originally engaged to manage as an assistant to the construction manager.
In his decision, Ashley J canvassed the authorities and views of tax rises on the effect of a variation in the circumstances of employment which may give rise to a new contract. Ashley J rejected the submission that an agreed change of job or regrading will always amount to a termination of the existing contract and the commencement of a new one by consent.[47]
[47] Quinn v Jack Chia (Australia) Ltd [1992] I VR 567 at 575
His Honour noted that in the case before him that it was common ground between the parties that the facts of a particular case may show that a change in duties or salary may give rise to a new contract. His Honour stated “alternatively the facts may disclose a continuing contract within which variation of circumstances may occur without there being any need for variation of contractual terms, or a contract which has been subject to specific variation.”[48] In relation to the question of whether the change in the position’s salary in that case gave rise to a new contract, Ashley J concluded at page 578:
I have concluded that the original contract between plaintiff and defendant was replaced rather than varied not simply by taking the position that any change in position and salary not contemplated by the original agreement necessarily requires the conclusion that a new contract has been set up, but rather by focussing on the circumstance that a change of great magnitude in the relationship between the parties was effected as at August 1985. In my opinion, a new and very different employment relationship then arose; and it is inapposite to describe it as involving no more than a variation of the earlier agreement between the parties. No reason in law was suggested why the parties could not by a parol agreement discharge the original contract (which was partly written and partly oral) and replace it with another.
[48] Ibid
I have set out in detail the facts in Quinn, as based on my experience, it is a case which is often cited where the facts relied on are not analogous to the particular facts which formed the basis of that decision. Every pay rise and every modification in duties does not automatically give rise to a claim that the notice period in a written contract no longer applies and the employee has an entitlement to
6 months’ notice or more. To advise a person to bring an action on this basis requires a detailed analysis of the contract and the nature of the changes that are said to have occurred. In this case, the applicant received a higher salary after completing a period of training.
In my view, the change in the work done by the applicant and the increase in salary was not of a magnitude which gave rise to a new contract which contained an implied term in relation to the termination of employment. In any event, as stated above, the contract itself contemplated the variations of the kind which occurred without the need to enter into a new contract.
I note that the applicant commenced employment with a new employer on 6 November 2013 on similar terms and conditions as those that pertained under her contract with the respondent.
In the circumstances, the application should be dismissed.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 8 August 2016
Key Legal Topics
Areas of Law
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Civil Procedure
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Negligence & Tort
Legal Concepts
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Duty of Care
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Negligence
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Causation
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Damages
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Appeal
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