Han v St Basil's Homes

Case [2023] FCA 1010

FEDERAL COURT OF AUSTRALIA

Han v St Basil’s Homes [2023] FCA 1010

File number: NSD 1226 of 2020
Judgment of: RARES J
Date of judgment: 25 August 2023
Catchwords: INDUSTRIAL LAW – whether employer took adverse action in issuing first and final warning and or terminating employee because employee exercised workplace right to make a complaint or inquiry in relation to employment in contravention of ss 340(1)(a)(ii) and 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) or her race in contravention of s 351(1) – where multiple decision-makers took adverse action to terminate employee’s employment –­ whether any decision-maker had any proscribed substantial and operative reason for taking adverse action – whether s 793(2) or (3) attributed state of mind of one or more decision-makers to employer in relation to negating presumption in ss 360 and 361(1) of Act ­– where evidence by employer’s decision-makers not negate presumption that adverse action of termination of employee taken because employee exercised workplace right to make complaint or inquiry or because of employee’s race – Held: adverse action taken for proscribed reason in terminating applicant but not in issuing warning
Legislation: Fair Work Act 2009 (Cth) ss 340(1)(a), 341(1)(c), 342(1), 351(1), 360, 361(1), 793(2), (3)
Cases cited:

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

Australian Federation of Air Pilots v Regional Express Holdings Ltd (2021) 290 FCR 239

Australian Red Cross Society v Queensland Nurses’ Union of Employees (2019) 273 FCR 332

Berry v CCL Secure Pty Ltd [2017] FCA 1546

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

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

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243

Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309

Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251

Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551

Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186

Qantas Airways Ltd v Transport Workers’ Union of Australia (2022) 292 FCR 34

Rumble v The Partnership (t/as HWL Ebsworth Lawyers) (2020) 275 FCR 423

Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441

Whelan v Cigarette & Gift Warehouse Pty Ltd (2017) 275 IR 285

Wong v National Australia Bank Ltd (2022) 318 IR 148
Division: Fair Work Division
Registry: New South Wales
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 242
Date of hearing: 6–8 December 2021, 28–29 April 2022, 28 July 2022
Counsel for the Applicant: The applicant was self-represented
Counsel for the Respondent: Mr H Pararajasingham
Solicitor for the Respondent: McPhee Kelshaw Solicitors & Conveyancers

 

ORDERS

NSD 1226 of 2020
BETWEEN:

WEI HAN

Applicant
AND:

ST BASIL'S HOMES

Respondent

ORDER MADE BY:

RARES J

DATE OF ORDER:

25 AUGUST 2023

THE COURT ORDERS THAT:

1.It be declared that, on 23 January 2020, the respondent took adverse action against the applicant in contravention of…

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Han v St Basil's Homes [2023] FCA 1010
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[2023] FCA 1010
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CaseChat Overview and Summary

Han v St Basil’s Homes is a case in the Federal Court of Australia concerning allegations of adverse action by an employer against an employee. The employee, Ms Han, alleged that she was terminated and received a final warning due to her exercising her right to make a complaint or inquiry about her employment and because of her race. The court was required to determine whether the employer, St Basil’s Homes, had taken adverse action against Ms Han for these reasons in contravention of the Fair Work Act 2009 (Cth). Specifically, the court had to assess whether any decision-maker involved in terminating Ms Han's employment had a proscribed reason for doing so, and whether any state of mind of these decision-makers could be attributed to the employer to negate the presumption of adverse action.

The court’s reasoning focused on the application of sections 360 and 361 of the Fair Work Act, which place the onus on the employer to prove that the adverse action was not taken for a proscribed reason. The court considered the roles of multiple decision-makers in the termination process and whether any of them had a proscribed reason for their actions. The court found that while the employer had not successfully negated the presumption that the adverse action was taken for a proscribed reason, it did not find that the adverse action in issuing the warning was for a proscribed reason. The court held that adverse action was taken for a proscribed reason in terminating Ms Han but not in issuing the warning.

The court declared that the employer took adverse action against Ms Han in contravention of sections 340(1)(a) and 351(1) of the Fair Work Act. It ordered the parties to confer and file draft agreed orders regarding compensation, reinstatement, and pecuniary penalties within a specified timeframe, with additional submissions and estimates for the balance of the hearing.

Orders

Orders of the court

1. It be declared that, on 23 January 2020, the respondent took adverse action against the applicant in contravention of s 340(1)(a) of the Fair Work Act 2009 (Cth), because she had exercised her workplace right as an employee to make a complaint or inquiry in relation to her employment.

2. It be declared that, on 23 January 2020, the respondent took adverse action against the applicant in contravention of s 351(1) of the Act, because of her race.

3. On or before 1 September 2023, the parties confer and file draft agreed orders or, in the event of disagreement, her and its draft orders providing for:

(a) the applicant to file and serve points of claim and evidence in support of:

(i) any compensation for any loss she claims under s 545(2)(b) to have suffered because of the contraventions declared in order 1 and 2 above;

(ii) any claim for reinstatement; and

(iii) any pecuniary penalty she seeks in respect of the contraventions;

(b) the respondent to file and serve any points of defence and evidence in response;

(c) written submissions:

(i) by the applicant limited to 5 pages;

(ii) by the respondent limited to 5 pages; and

(iii) by the applicant in reply limited to 2 pages; and

(d) an estimate of the length of the balance of the hearing in respect of this proceeding.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Thus, in Kodak 129 IR 251, an employee, Mr Lay, gave a ranking of employees to assist his superiors in determining whether to make particular ranked employees redundant. Mr Lay’s rankings played an indispensable part in the assessment process that his superiors undertook in arriving at the adverse action against Mr Elliot. Lee, Madgwick and Gyles JJ explained that, if Mr Lay was influenced in giving a low assessment for a proscribed reason, first, it was likely that he would have given a different assessment were he not so influenced, secondly, this inevitably would have affected the ranking process for employees based on the assessment, whatever the view of appropriate ranking by others, including one of the company’s directors, involved in the decision to take adverse action, and that, therefore, it “would have been a different assessment process”. Their Honours explained (at 260 [37]):Furthermore, whatever debate there might be about the extent of [the director’s] power or involvement in the decision, his evidence was that he took the Lay/Shannon assessment and worked from there. It follows that if the Lay/Shannon assessment is affected (or infected) by either Lay or Shannon having held an undisclosed prohibited reason, then he [scil: the director] would have, in effect, inadvertently adopted it so that its force continued regardless of the lack of any express prohibited reason in the mind of [the director].(emphasis added) In Wong v National Australia Bank Ltd (2022) 318 IR 148 at 159 [37], 167–168 [78]–[83], Katzmann, Charlesworth and O‘Sullivan JJ applied Kodak 129 IR 251. In that case, an individual provided information to the decision-maker on which the latter proceeded without investigating its reasonableness, truth or accuracy (at 167 [79]). Their Honours said that, first, it is necessary to enquire into whether an individual contributed to the decision-making process culminating in the adverse action to a degree sufficient to warrant an evaluation as to whether he or she acted for a proscribed reason or with a proscribed intent (at 167 [78]). Secondly, where the decision-maker acts on the basis of such information, the state of mind of the individual who supplied it is relevant. They said (at 167 [80]):an inquiry into the reasons of a corporate entity may require an examination of the states of mind of human actors other than the single individual having the authority to bind the corporation in the relevant act. Depending on the nature and degree of the involvement of the other individual (or individuals) in the decision-maker’s process in arriving at the decision, it may be necessary to assess whether each individual relevantly had a proscribed state of mind, within the meaning of s 793(2), that affected the reason or intention why the decision-maker took the adverse action (at 167–168 [81]–[82]). Their Honours said (at 168 [83]):it was necessary to inquire into Mr Arnott’s reasons for making the contribution that he did, whether it be described as “significant”, “plainly important”, “major”, “substantial” or “essential”. It is enough to identify that Ms MacLeod proceeded from factual assumptions that were detrimental to Ms Wong and that were principally (although not solely) based on an assumption that Mr Arnott’s assertions were true. Mr Arnott’s motivations were relevant and as such his actions and accompanying state of mind may be attributed to NAB in accordance with s 793 of the [Fair Work Act].(emphasis added)THE WITNESSES

Decision

Reasons for decision

The effect of ss 360 and 361 is that the person alleged to have taken adverse action under Pt 3-1 of the Act has the onus of proving that the pleaded proscribed reason or intention for taking the action did not form the, or a, substantial and operative reason or intention of each of the decision-maker(s) or other individual(s) involved in the decision-maker(s) coming to have the relevant impugned state of mind in doing so: Qantas Airways Ltd v Transport Workers’ Union of Australia (2022) 292 FCR 34 at 86–87 [174], [177] per Bromberg, Rangiah and Bromwich JJ. Their Honours also held, in the context of considering the position where there is more than one decision-maker or individual involved whose reasons for taking the adverse action must be evaluated (at 101 [230]):It must be kept steadily in mind that what is required is a causal and thus factual inquiry into all of the substantial and operative reasons for a decision being made. It is necessarily fact and circumstance specific, potentially with a multitude of such reasons being in play. In the field of causation, the question of fact as to whether something is a cause (or may have been a cause so as to trigger the presumption in s 361(1)), is required to be ascertained “by reference to common sense and experience and one into which considerations of policy and value judgments necessarily enter”: see Minister for the Environment v Sharma (2022) 291 FCR 311 per Allsop CJ at [305], citing March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 per Mason CJ (with whom Toohey J and Gaudron J agreed).(emphasis added) Where more than one person is involved in the taking of action, including the making of a decision, it is necessary to consider and evaluate the role that each played in that action or decision and whether that individual had the, or a, substantial and operative reason for the taking of the adverse action that, by force of s 793(2), would be the, or a, proscribed reason because of which that person or another person involved took that action. The reason or intention for which a person takes adverse action for the purposes of ss 360 and 361 of the Act need not involve the person having an accurate appreciation of the legal nature of the action: Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551 at 585–‍568 [61] per Kiefel CJ, Keane, Nettle and Edelman JJ. They explained (relying on what Gleeson CJ had said in Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 at 330–331 [26]) that it is sufficient to establish the person’s intention or purpose by showing that he or she intended to take the particular action (here, giving Ms Han the warning or terminating her employment) with actual knowledge of the circumstance that, and engaged in that conduct because, relevantly, the employee had exercised the workplace right in issue or the conduct discriminated against him or her because of his or her race (or one or more other reasons or characterisations proscribed in s 351). But it is not relevant to establish liability that a person acts under a mistake of law as to whether an adverse action is lawful.

Ratio Decidendi

Legal Principle Established

Item 24, headed ‘High Risk Medication Management’, set out in detail the legislative requirements for documenting the management and administration of schedule 8 medications, and provided, in particular:To prevent any error or [misappropriation] of S8 [scil: schedule 8] Medications, St. Basil’s will ensure that the:•Registered nurse and witness to administration must remove S8 medication from storage as required.•Procedure for medication administration as outlined in Section 13: Medication Administration Procedure (DAA and non-packed Medications) of this document is followed by the registered nurse and observed by the witness.•Removal of S8 medication for administration is recorded in S8 register by registered nurse including quantity of drug, time of day, quantity of drug held after administration and signature of registered nurse.•Witness checks the entry and countersigns the entry if all details are correct.•Remainder of S8 medication is returned to storage and locked away.(emphasis added)BACKGROUND Prior to June 2019, Ms Han had not experienced any difficulties in her work for, or relationships with her fellow workers or management at, St Basil’s. She worked as the registered nurse assigned to the east/west wing at the Lakemba premises. Late in the first half of 2019, she perceived a change after a new senior registered nurse, or as Ms Han understood her to be, a new care manager, Djeddalyn Alcantara, was appointed. Ms Han and the registered nurse assigned to level 2 at the Lakemba premises reported to Ms Alcantara. In fact, in about June 2019, St Basil’s increased Ms Han’s workload by about 40% from what it had been. Ms Han understood that Ms Alcantara was responsible for this. However, as Mr Rooke made clear in his evidence, St Basil’s board had required economies to be made and, in consequence, St Basil’s introduced a new model in July 2018 which increased the numbers of recreational activity officers on floors and decreased the qualified nursing staff. He said this was because, as he put it, “on the nursing staff, there was actually a big problem, because we had overspent because we had too many people on the floor … So, in 2019, we were clawing that back a little bit”. This involved allocating to Ms Han responsibility for, in addition to her then current 32 residents, five care staff and one team leader (a position below a registered nurse) in the east/west wing and an additional 10 residents, two care staff and one team leader in the dementia unit on level 1. Those two locations were about five minutes’ walk from each other. There were also about 35 residents on level 2 and about another 9 in the dementia unit on level 1 who had been allocated to the other registered nurse (the level 2 registered nurse) on duty with Ms Han. This appeared to be the result of a cost cutting measure that split the work previously done by the registered nurse in the dementia unit on level 1 between the level 2 and east/west wing registered nurses.