Handa v CDC Sunshine Pty Ltd - [2025] FedCFamC2G 294

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Handa v CDC Sunshine Pty Ltd [2025] FedCFamC2G 294

File number: MLG 811 of 2023

Judgment of: DEPUTY CHIEF JUDGE MERCURI

Date of judgment: 7 March 2025

Catchwords: INDUSTRIAL LAW – ADVERSE ACTION – where the applicant claims that the respondent breached sections 340 and 351 of the Fair Work Act 2009 (Cth) in terminating his employment – consideration of whether the respondent terminated the applicant’s employment for, or for reasons which included him exercising a workplace right – consideration of whether the respondent terminated the applicant’s employment for reason of any disability of applicant’s, actual or imputed – finding that there was no breach of sections 340 or 351 in the circumstances – application dismissed.

Legislation:
Fair Work Act 2009 (Cth), ss 340, 342, 351, 360, and 361

Disability Discrimination Act 1992 (Cth), s 4

Cases cited:
Board of Bending Regional Institute of Technical and Further Education v Barclay [2012] HCA 32

Khiani v Australian Bureau of Statistics [2011] FCAFC 109

Serpanos v Commonwealth [2022] FCA 1226
Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71

Division: Division 2 General Federal Law

Number of paragraphs: 184

Date of last submissions: 15 October 2024

Date of hearing: 5-6 September and 15 October 2024

Place: Melbourne

Counsel for the Applicant: The applicant appeared in person

Counsel for the Respondent: Mr J Tierney

Solicitor for the Respondent: HWL Ebsworth Lawyers
ORDERS

MLG 811 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
GAURAV HANDA

Applicant

AND:
CDC SUNSHINE PTY LTD

Respondent

ORDER MADE BY:

DEPUTY CHIEF JUDGE MERCURI

DATE OF ORDER:

7 MARCH 2025

THE COURT ORDERS THAT:
1.The applicant’s application is dismissed.

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

Mr Handa was employed by the respondent as a bus driver from June 2022 at the Sunshine Depot. His employment was terminated with effect on 30 November 2022.[1]
[1] Amended Form 2 Application filed on 11 January 2024; Court book page 338.
Mr Handa claims that in terminating his employment, the respondent acted in breach of section 340 and/or section 351 of the Fair Work Act 2009 (Cth) (‘the Act’).
The respondent denies that it terminated Mr Handa’s employment because of, or for any reason which included, the fact that Mr Handa had or exercised workplace right or because of any disability that Mr Handa had. The respondent denies that Mr Handa is entitled to the relief claimed, or any relief at all.
For the reasons which follow I find that Mr Handa’s employment was not terminated for a proscribed reason in breach of either section 340 or section 351 of the Act, and therefore find that the appropriate orders are that the application be dismissed.
PROCEDURAL BACKGROUND
Mr Handa filed an application on 4 October 2023.
On 25 October 2023 the respondent made an application to strike out Mr Handa’s application. For the reasons given at the time, that application was dismissed and Mr Handa was ordered to file an amended application setting out clearly the basis of his claim.[2]
[2] Orders of Deputy Chief Judge Mercuri dated 29 November 2023.
At the commencement of the trial, Mr Handa indicated that he wished to rely on his:[3]
(a)Originating Application filed on 16 February 2023;
(b)Amended Application filed on 11 January 2024;
(c)Amended Form 2 Application filed on 11 January 2024; and
(d)Affidavits each filed on 11 January 2024, 13 March 2024 and 6 May 2024.
[3] Court transcript at page 3.
It also became apparent that Mr Handa also sought to rely upon his affidavit filed on 4 October 2023. This was initially objected to by the respondent although ultimately the respondent agreed to that affidavit being admitted into evidence, but only to the extent that it related to the claims made by Mr Handa in his amended application. The trial proceeded on that basis.
The hearing proceeded seeking the court’s determination on both liability and remedy. Evidence and submissions were led accordingly. For the reasons which follow, I find that the application ought be dismissed, and no issue of remedy arises.
FACTUAL BACKGROUND
CDC Sunshine operates a bus route service contract on behalf of the Department of Transport and Planning. This consists of 12 local route services that run through the inner west and the western suburbs of Melbourne. CDC Sunshine also operates a private charter bus business.[4]
[4] Affidavit of Shaun Lawson affirmed and filed on 1 May 2024, paragraph 3.
The CDC Sunshine depot employs approximately 110 full time drivers, 15 casual drivers and a number of workshop and administrative employees.[5]
[5] Affidavit of Shaun Lawson affirmed and filed on 1 May 2024, paragraph 3.
As stated, the applicant was employed by the respondent as a bus driver from June 2022. His employment came to an end on 30 November 2022. He worked from the Sunshine depot.[6]
[6] Defence filed on 15 August 2024.
Mr Shaun Lawson has been employed by CDC Sunshine since 2018 and has been involved in the bus industry since 2009. He is employed as the Service Delivery Manager and in that role he manages the CDC Sunshine depot and is responsible for overseeing the operations support team. He reports directly to the General Manager of Operations, Mr Paul Gusti.[7]
[7] Affidavit of Shaun Lawson affirmed and filed on 1 May 2024, paragraphs 5 and 6.
Ms Robyn Turner worked for the respondent from 2020 to 2023 as its Human Resources Manager.[8]
[8] Affidavit of Robyn Turner affirmed and filed on 30 April 2024, paragraph 3.
Mr Paul Giusti commenced with the respondent in the role of General Manager of Operations in 2022. He had the delegated authority to terminate the employment of an employee such as Mr Handa.[9]
[9] Affidavit of Paul Giusti affirmed and filed on 30 April 2024, paragraph 10.
Mr Mason was employed as the Operations Supervisor at CDC Sunshine and has been employed in the role for about six years.[10] Mr Mason has sworn an affidavit filed in these proceedings on 1 May 2024. Mr Mason deposes to reporting to Ms Stephanie Wilkinson, the Operations Co-Ordinator. Mr Mason’s direct manager is Mr Lawson, the Service Delivery Manager.[11]
[10] Affidavit of Darren Mason sworn and filed on 1 May 2024, paragraph 3.
[11] Affidavit of Darren Mason sworn and filed on 1 May 2024, paragraph 4.
Between August and November 2022, Mr Handa raised a number of issues with the respondent, which the respondent maintains were relatively minor in nature and which were addressed in some way as and when they were raised. It is common ground that Mr Handa ultimately was not content with the resolution of these matters, which will be set out in more detail below.
Briefly, on 19 August 2022, Mr Handa complained to Ms Wilkinson about his morning supervisor Mr Mason. In particular, Mr Handa claimed that Mr Mason did not provide him with an incident report and a mask.[12]
[12] See Affidavit of Shaun Lawson affirmed and filed on 1 May 2024, paragraphs 13 and following.
There was a further incident on 1 September 2022 in which Mr Handa claims that Mr Mason unreasonably became upset with him when he returned to the depot for his break instead of taking his break whilst on his route.[13] The respondent accepts that this incident occurred because of a breakdown in communication and did not hold Mr Handa responsible. The respondent’s evidence, which I accept, was that Mr Mason was not upset with Mr Handa, but was rather focussed on making sure that the bus route was covered while Mr Handa had his required rest break.[14]
[13] See Affidavit of Shaun Lawson affirmed and filed on 1 May 2024, paragraphs 20 and following.
[14] Affidavit of Shaun Lawson affirmed and filed on 1 May 2024, Exhibit ‘SL-2’.
Mr Handa also raised a concern that he was not paid overtime as required. The documents produced by the respondent indicate that Mr Handa was paid for some overtime, that in the case of other overtime, he was asked to resubmit his claim forms and in respect of overtime which was refused, an explanation was given. These responses were provided in a timely manner.
Mr Handa’s response to questioning regarding this issue in cross examination was consistent with the way he gave his evidence generally. He was at times argumentative, fixed in his position and not prepared to concede that there may have been another option available to him to remedy the issue. For example, in relation to the overtime issue, Mr Handa was aggrieved that his overtime had not been accepted, but did not explain why he did not take up the opportunity to have his overtime processed if he simply resubmitted it with the correct codes.[15]
[15] See Court transcript at page 35.
Mr Handa also raised an issue regarding his tax declaration documentation. It is common ground that Mr Handa completed his tax declaration form in such a way that he did not seek the ‘tax-free’ threshold to be applied. On 5 October 2022, Mr Handa requested a copy of the original form he had completed. The email exchange between Mr Handa and Ms Wilkinson on this issue demonstrates that Ms Wilkinson sought to address this concern, by sending him a new tax declaration form for him to complete and resubmit. Mr Handa maintained that he wanted his original tax declaration form to be used. Ultimately, the matter was escalated to Mr Lawson who again tried to explain the process that Mr Handa had to complete to rectify the situation.[16]
[16] See Affidavit of Shaun Lawson affirmed and filed on 1 May 2024, Exhibit ‘SL-2’.
Later that same day, i.e. 5 October 2022 at 2:12pm, Mr Handa wrote to the CEO of the company seeking his original tax declaration form. In this email, Mr Handa also requested a transfer to Tullamarine Depot when a full-time vacancy arose. This email was answered by Ms Turner, who provided him with his original tax declaration form on 6 October 2022, at 9:31am (one day after he first raised this issue). Ms Turner also addressed Mr Handa’s request in relation to a possible transfer to Tullamarine Depot by enclosing the company’s transfer policy.[17]
[17] See Affidavit of Robyn Turner affirmed and filed on 30 April 2024, Exhibit ‘RT-1’.
Mr Handa suggests that not only did Ms Wilkinson and Mr Lawson fail to address his concern in relation to the tax declaration form and respond to his request in a timely manner, but the respondent was somehow responsible for accepting a form which did not claim a tax-free threshold in circumstances where he did not hold a second job. I accept the evidence from Mr Lawson and Ms Turner on this issue, that it is for an employee to determine whether and if so, how they wish to claim a tax-free threshold in respect of their employment with the company. Moreover, Ms Turner responded to Mr Handa about the obligation upon a driver who holds a second job to declare that other job so that the company can ensure that it does not breach its fatigue management obligations.
On or about 28 October 2022, Mr Handa sought a shift swap by email to Ms Wilkinson. He was advised of the requirements for such a swap to occur and the fact that 10 days’ notice is required, among other things.[18] Mr Handa asked if an exception could be made in his case, because he had an urgent need to attend to a family matter.
[18] See Affidavit of Shaun Lawson affirmed and filed on 1 May 2024, Exhibit ‘SL-5’.
Ultimately, whilst a shift swap could not be made, an alternative was proposed to Mr Handa which allowed him to have the time off to attend to his personal issue. Mr Handa accepted this, albeit he says reluctantly.
The respondent concedes that on occasion a shift swap can occur on less than 10 days’ notice, but this depends on a range of factors and while the respondent tries to accommodate employees it is not always possible. In this case, it is common ground that Mr Handa did not complete the necessary request form and nor did he arrange for another driver to complete the form indicating their preparedness to swap.
Also on 29 October 2022, Mr Handa sent an email to Ms Wilkinson about an overtime request which had been rejected, asking for the reason for the rejection.[19] Mr Handa provided a reason for the delay on his return to the depot and invited Ms Wilkinson to review his overtime request. Mr Handa also asked about company policy regarding talking to passengers while driving. Ms Wilkson’s response provides that overtime requests are assessed on a case by case basis, that the company is reviewing all overtime requests and if found to be valid, his request will be amended once approved.[20] Ms Wilkinson also referred Mr Handa to the CDC employee handbook and to the depot union delegate for more information on company policy regarding talking to passengers. Ms Wilkinson’s response was sent on Monday 31 October 2022 at 10:27am.
[19] See Affidavit of Shaun Lawson affirmed and filed on 1 May 2024, Exhibit ‘SL-5’.
[20] Court book at page 270.
At 10.44am on 31 October 2022, Mr Handa replied to Ms Wilkinson and copied in Mr Lawson among others. Relevantly in that email, Mr Handa said:[21]
Also, I have a job interview coming Wednesday because I am mentally harassed/exhausted by Sunshine Depot management, please advise about my current registration period, is it still one week, if I resign with in coming one or two week?
I also have to advise new employer about my joining period with them, which is linked with your notice of period of registration. (sic)
[21] Court book at page 270.
Later that morning at 11:14am, Mr Lawson responded in the following terms:[22]
Good morning Gaurav
To echo Stephanie’s email, the driver handbook has a wealth of information for drivers, I would point you to sections 5 and 7 of the handbooks for your question relating to talking to passengers. CDC do not forbid taking to passengers, but your safety and the safety of others will always come first. You do not have to be a union member to speak to the delegate. Simon also has great experience and can also assist with bus driving related information.
Regarding the notice period I confirm we require one week’s notice. Am I to take your below email as a resignation with one week’s notice?
Kind regards
[22] Court book at page 269.
At 2:29pm on 31 October 2022, Mr Handa responded in the following terms:[23]
To whom this may concern
Please advise Gaurav Handa’s Employee number 32438 probation period status with CDC.
EMPLOYMENT contract states 3 months period of probation from the assessing date.
Am I still under probation period?
Same question was addressed in previous emails, but intentionally ignored/not responded
Kind regards
Gaurav Handa
[23] Court book at page 269.
At 3.16pm on 31 October 2022, Mr Lawson wrote to Mr Handa in the following terms:
Gaurav
We will not continually respond to the constate (sic) emailing, nor will we accept unfounded accusations. I suggest you forward your concerns in one document, this can then be reviewed and a written response supplied to you.
Kind regards
On 2 November 2022, Mr Handa raised a query about a provision in his employment contract regarding conflicts of interest. Mr Handa’s query was addressed by email from Ms Turner on the same day.[24] Ms Turner’s evidence is that the purpose of the conflict of interests’ policy was to assist the respondent to manage its fatigue management obligations. Mr Giusti gave evidence that this clause was aimed at managing commercial conflict. It is submitted for the respondent that both explanations can co-exist.
[24] See Court book at page 275.
Ms Turner deposes to treating Mr Handa no differently in relation to any of these requests for information than any other employee was or would be treated.
On 11 November 2022, there was a further exchange between Mr Handa and Ms Wilkinson regarding an incident which occurred that morning whilst Mr Handa was on the road. Ms Wilkinson advised Mr Handa to complete an accident form if that had not already occurred. In the course of this exchange, Ms Wilkinson asked Mr Handa to refrain from contacting supervisors on their personal phone numbers and by WhatsApp.[25]
[25] See Court book at pages 279 and following.
On this context, on 12 November 2022, Mr Handa sent an email to Ms Wilkinson in which he said:[26]
Good Morning Stephanie,
First of all, many many Congratulations to you.
You take a very very good care of yourself and in case you need any sort of help in depot please don’t hesitate to contact me. Stay happy, stay calm.
I only have Chris’s number and I will delete it from my phone so there will not be any communication in future.
Thanks
[26] Court book at page 279.
Ms Wilkinson replied in the following terms:[27]
Gaurav
This is not an appropriate workplace comment to make towards me.
I will be addressing this with Shaun.
Please stop contacting me for reasons other than work-related issues.
Regards,
[27] Court book at pages 279 and 280.
Mr Handa replied to Ms Wilkinson directly apologising for any offence caused.[28] Also on 12 November, which was a Saturday, Mr Handa emailed Mr Lawson and put forward his perspective on the email exchange with Ms Wilkinson.[29] He explained that he meant no harm and that there was a background of personal communications between himself and Ms Wilkinson.
[28] Court book at page 283.
[29] Court book at page 278.
As stated, Ms Wilkinson took offence to the content of Mr Handa’s 12 November email and forwarded it to Mr Lawson. Mr Lawson deposes that Ms Wilkinson forwarded this email to him and complained that this amounted to sexual harassment in circumstances where Ms Wilkinson was visibly pregnant at the time, being in the last trimester of her pregnancy.
Mr Lawson forwarded the said email to Ms Turner on 14 November 2022 seeking advice as to how to deal with this. Ms Turner’s evidence about this is set out at paragraph 20 of her affidavit filed on 30 April 2024:
20.Mr Lawson contacted me to speak about the email. He said words to the effect that, “Steph wants to make a complaint about the comments that Gaurav made.’ He said that Ms Wilkinson had taken those comments to be a comment about her pregnancy. Mr Lawson and I discussed Ms Wilkinson’s complaint.
Other than being advised of the outcome of the meeting with Mr Handa, Ms Wilkinson did not otherwise have any input into dealing with the matter relating to her response to Mr Handa’s email.
Mr Lawson wrote to Mr Handa by letter dated 14 November 2022 inviting him to attend a meeting with himself and Ms Natalie Wilton to discuss the email he had sent to Ms Wilkinson. The meeting was scheduled to occur on 16 November 2022. The 14 November letter relevantly stated:[30]
This letter is to invite you to attend a meeting to discuss some inappropriate comments allegedly made by you to another staff member.
…
During this meeting, you will be given an opportunity to provide a response to these concerns. It should be noted that this is a serious concern and pending your response and our review of this response, could result in disciplinary action.
[30] Court book at page 288.
At page 90 of the Court Book is an email from Mr Handa to Mr Lawson in which Mr Handa makes a complaint about Ms Wilkinson. It is appropriate that it be set out in full.
Dear Mr Lawson,
This is a complaint against Stephanie Wilkinson, …
I have already drafted you an email previously about her allegations.
Stephanie wrote to me that “I will be addressing this with Shaun”, this is an threatening approach/behaviour from managerial post.
Stephanie live in a free country, she has a right to address/complaint to any competent authority in the world.
I would be more happy if Stephanie’s allegations should have written/discussed by your other than she telling me she is going to address of Complain to you.
I have taken an advise about my comment to Stephanie and there is only an social and non-social element involved, it has nothing to do with Inappropriate workplace comment.
Mr Lawson, I come to drive Public transport Bus with positive mental attitude, please help me to maintain my positive attitude as I am responsible for public and passenger safety on road.
I should not have written you last two email if Stephanie would not have send me an email with her allegations.
If Stephanie Wilkinson would just have written me that “please stop contacting for reasons other than work related issues…” I wouldn’t have mind. But putting extra mental pressure on me with false allegations and with threatening approach is not right.
Thanks
Kind regards
Gaurav Handa

In the context of this letter, the following exchange then followed:[31]
[31] Court transcript at pages 199 to 201.
Mr Handa:Ms Turner, managers and supervisors have a responsibility to seek confidential advice from a member of resource team if they feel an alleged incident poses risk to the health and safety of an employee. Ms Turner, did Mr Lawson took confidential advice about applicant’s complaint towards Ms Wilkinson’s threatening behaviour?
Ms Turner: This was given to me, yes.
Mr Handa Your answer is, yes. He took confidential advice from you?
Ms Turner:Well, he sent this to me. As I understand it, this was your response to Ms Wilkinson raising with you that she would be reporting your conduct to Mr Lawson.
…
Mr Handa:Ms Turner … Will you be able to find element of sexual harassment in applicant’s comments towards Ms Wilkinson?
Ms Turner:Your comments to Ms Wilkinson were offensive to her. And that is the test we apply … how the message is received and how she perceived it to be.
…
… you were commenting on her appearance. She was pregnant in a male-dominated environment, and she was quite protective of that. She took your comments in an unkindly way, while your intention understandable that is how she took it. … It is about how she perceived it. Your intention, while not meant to be what she received, is what we took on board when we responded in the meeting … And that is why it was determined not to issue you with any kind of formal disciplinary outcome. I understand that’s not what you intended. But to then complain about her complaining about your comments and accuse her of what you accused her of it would be improper to basically investigate her for raising a complaint because you didn’t agree that it was correct because that want’s your intention …
On 15 November 2022, Mr Handa wrote to Mr Lawson raising a number of issues, many of which Mr Lawson believed had already been addressed.[32] The email sent to Mr Lawson was also sent to Ms Turner and to the Info CDC Victoria email. The subject line of the email was ‘Inappropriate Sunshine Management, CDC Meeting Memorandum’.
[32] Affidavit of Shaun Lawson affirmed and filed on 1 May 2024, Exhibit ‘SL-9’.
In that email, Mr Handa said:
To whom this may concern
This is a complaint against CDC Management, Sunshine Depot
Sunshine Management is building continuous mental stress on me, leading me to mental stress
Please find the following Memorandum from my end towards the meeting as described to be held, Evidence 22 …
Mr Handa then set out what appears to be six complaints largely against Ms Wilkinson, including that she had engaged in:
·threatening behaviour, by suggesting that she would raise the matter with Mr Lawson;
·false behaviour, in that Mr Handa’s email was in response to an email from Ms Wilkinson;
·polite and happy discussions herself with Mr Handa and had provided her phone number to Mr Handa;
·inappropriate conduct towards Mr Handa by failing to check his tax declaration forms;
·racist behaviour by failing to provide a copy of his incorrectly completed tax declaration form when requested;
·further racist behaviour by rejecting Mr Handa’s overtime inappropriately; and
·racist behaviour by refusing his request to swap a shift with another driver in an extreme emergency.
Mr Handa attended the meeting on 16 November 2022 and was assisted by Mr Simon McCrae, the union delegate.[33] Mr Handa has maintained that he did not request Mr McCrae to attend on his behalf but rather that Mr Lawson suggested this. Mr Lawson states that the meeting last for about two hours.
[33] Court book at page 316.
The outcome of the meeting according to Mr Lawson was that CDC did not believe that Mr Handa had breached its National Workplace Behaviour Policy or that his conduct amounted to sexual harassment. However, Mr Lawson (and CDC) concluded that Mr Handa’s comments to Ms Wilkinson were not work related and were inappropriate. Mr Lawson deposes that he told Mr Handa that he had exercised poor judgement but that there had been no breach of policy and therefore there would not be any disciplinary action arising from this matter.
Mr Lawson further deposes to explaining to Mr Handa in the 16 November 2022 meeting that his intention may be misunderstood by others and that he therefore needs to be careful and refrain from discussing someone’s personal situation unless he is certain that they are happy to have that conversation.[34]
[34] Affidavit of Shaun Lawson affirmed and filed on 1 May 2024, paragraph 69.
Mr Lawson further says that in the meeting, he also went through each of the six matters raised by Mr Handa and at the end of the discussion about each matter, confirmed with Mr Handa that each matter was resolved.[35] Mr Lawson further deposes that Mr Handa withdrew his allegation of racism contained in his email of 15 November 2022.
[35] Affidavit of Shaun Lawson affirmed and filed on 1 May 2024, paragraph 70.
Mr Lawson says that he discussed the emails that Mr Handa had sent and explained that whilst the company did not wish to stop Mr Handa from raising issues, he was required to do so by following the correct processes.[36]
[36] Affidavit of Shaun Lawson affirmed and filed on 1 May 2024, paragraph 72.
Following the 16 November 2022 meeting, a note was prepared recording the matters discussed (‘RoC’). As the meeting lasted some 2 hours or so, the RoC did not purport to be a verbatim record but rather a summary of the matters discussed.
Relevantly, the RoC stated that the reason for the meeting was to address the following:[37]
•Inappropriate comments allegedly made by Gaurav towards Stephanie Wilkinson.
•The correct process to report incidents and concerns and to address Gaurav’s persistent emails to depot management.
•To discuss the email complaint sent by Gaurav on 15/1/2022.
[37] Court book at page 316.
The RoC records the outcomes of the meeting as follows:
•Shaun addressed the inappropriate comments that Gaurav made towards Stephanie Wilkinson in an email dated 12 November 2022 … Shaun advised Gaurav should refrain from speaking about another employee’s personal life or appearance. In future, Gaurav should not engage in personal conversations unless he is abundantly sure the other party is comfortable with having that conversation.
The RoC then went on to record the outcomes in relation to each of the matters raised by Mr Handa in his email of 15 November 2022. In response to Mr Handa’s complaint about Ms Wilkinson, the RoC records:
Item 1.It has been found that Stephanie was not threatening towards Gaurav, and the comments made by Gaurav were inappropriate and personal and could be considered sexual harassment under the “National Workplace Behaviour Policy”.
The RoC also notes that Mr Handa was given an opportunity to provide evidence in support of his racism allegations about Ms Wilkinson and ultimately withdrew those allegations.
Relevantly, the RoC also records that Mr Lawson advised Mr Handa of the proper procedures for reporting incidents and accidents, that his persistent emails must cease and that if he has any particular problems or queries, he should raise them in person from operations, his fellow drivers or the delegate. In conclusion the RoC states:
Shaun closed the meeting by asking Gaurav if he has any questions to which he responded ‘no’. He informed Gaurav there will be no disciplinary action on this occasion, but he was urged to use this as a learning opportunity but, if the behaviour persists, further discussions may be had which may include disciplinary action.
Mr Lawson says that he was not available when Mr Handa was next in the office and therefore placed the RoC in an envelope and asked the Operations Supervisors if they could hand it to Mr Handa when he was next in. Mr Lawson deposes to asking Mr Mason to ask Mr Handa to read and sign the RoC acknowledgement.[38]
[38] Affidavit of Shaun Lawson affirmed and filed on 1 May 2024, paragraph 76.
It is common ground that Mr Mason provided the RoC to Mr Handa on 24 November 2022 and asked him to sign it. Mr Lawson confirms that on 24 November 2022, Mr Mason called him and said Mr Handa had requested a copy of the RoC which he agreed should be provided to Mr Handa. Mr Lawson also said that he was advised by Mr Mason that Mr Handa was refusing to sign the RoC to which he responded ‘if he doesn’t want to sign that’s fine’.[39] Mr Handa claims that Mr Mason sought to bully him into signing the document, which Mr Mason denies. To the extent that there is an inconsistency between the evidence of Mr Handa and Mr Mason about this issue, I prefer Mr Mason’s version of events.
[39] Affidavit of Shaun Lawson affirmed and filed on 1 May 2024, paragraphs 76 and 77.
Mr Lawson’s evidence is that if an employee refuses to sign a RoC, they simply hand it to the employee and do not engage in an argument about it.[40]
[40] Affidavit of Shaun Lawson affirmed and filed on 1 May 2024, paragraph 78.
It is apparent from Mr Handa’s evidence, including his evidence in cross examination, that he was and remains extremely concerned that at the meeting on 16 November 2022, allegations of sexual harassment were put to him. As he said in cross examination:[41]
… with the false allegation of sexual harassment, the only thing that was ticking in my brain or in my family’s brain was only that sexual harassment at that time. We were blown away. … we were even, you know like, we were not even taking care of our eight month or nine month old daughter.
…
… the sexual harassment episode or allegation, it just took us sleeps, our peace of mind, our – everything you can say.
[41] Court transcript at page 41.
It is also apparent from Mr Handa’s evidence that although the respondent found that he had not engaged in sexual harassment or breached the relevant policy, the fact that the RoC said that his conduct ‘could be considered sexual harassment’ was a matter of significant concern to him.[42]
[42] Court transcript at page 50.
In this context the following exchange occurred:[43]
Respondent’s counsel: You’ve misunderstood that sentence to be a finding that you engaged in sexual harassment.
Mr Handa:First of all, there was no complaint of sexual harassment. Secondly, there is no sexual harassment nature and the record of conversation document that has been drafted through inappropriately called a disciplinary action meeting … without any sexual harassment nature or anything, that your comments were inappropriate, personally, could be considered sexual harassment.
[43] Court transcript at page 50.
Mr Handa then sent a series of emails to Mr Lawson and others on 24 and 25 November. The details of these emails are set out at paragraphs [83] – [84] of Mr Lawson’s affidavit and paragraph [25] – [27] of Ms Turner’s affidavit.
The first email was sent on 24 November 2022 at 6:11pm in which Mr Handa said among other things, that his family life was at risk due to inappropriate threatening behaviour from CDC management which could lead to divorce. In addition, he went on to say:[44]
Under law of Natural Justice and fairness, relevant authorities please help me to understand how my comments were personal, inappropriate and could be considered sexual harassment?
This is a threatening.
If CDC thinks that my comments could be considered under Sexual harassment please file a law suit against me, please do not try to threat me.
[44] Affidavit of Robyn Turner affirmed and filed on 30 April 2024, Exhibit ‘RT-2’.
Mr Handa also said that he had been driving that day but couldn’t continue due to thoughts that he was having. He also said that:[45]
If Cdc top management, TMU Union and relevant ministers of health, public transport and road safety or Honourable Court think that my comments were not inappropriate, personal and considerable under Sexual harassment then I WILL DEFINITELY RESIGN FROM MY JOB because I have enough metal sickness from CDC MANAGEMENT.
[45] Affidavit of Robyn Turner affirmed and filed on 30 April 2024, Exhibit ‘RT-2’.
The 24 November 2022 email was also cc’d to a member of Parliament, the Supreme Court of Victoria as well as CDC managers.
Mr Handa then sent a further email on 25 November 2022 at 4:00am in which he said he was ‘unable to sleep with the Threatening behaviour of your Sunshine Depot as mentioned in my email earlier’. Mr Handa then went on to say:[46]
You are requested either to Terminate my employment if you find my comments are inappropriate, personal and could be considered as Sexual harassment under National Workplace Behaviour Policy or if this is not the case, under Threatening behaviour i want immediate Termination of Stephanie Wilkinson and Shaun Lawson.
I can’t live with this Threatening behaviour and putting Public Transport bus driver under such pressure as a bus operator is putting passenger’s life as risk intentionally.
Immediate action would be a help for my mental health.
[46] Affidavit of Robyn Turner affirmed and filed on 30 April 2024, Exhibit ‘RT-2’.
Mr Handa then sent a further email later on 25 November 2022 to Ms Turner and cc’d to Mr Carrol, the TWU and the Victorian Supreme Court in which he challenged some of the comments in the RoC, said that the attached letter is illegal and:[47]
CDC Management is a serious threat to my mental health and public safety. You want me to sign the illegal document, furthermore Supervisor said that if you don’t sign it SHAUN LAWSON will not be happy.
I request the relevant ministers to intervene in the matter for detailed investigation into the matter because passengers are only safe in the bus if the bus operator don’t put inappropriate/illegal allegations on the driver.
Relevant authorities Please help as soon as possible.
[47] Affidavit of Robyn Turner affirmed and filed on 30 April 2024, Exhibit ‘RT-2’.
By letter dated 25 November 2022, Mr Handa was advised that he was to be stood down on full pay, effective immediately (‘the stand down letter’).[48] In the stand down letter, the respondent confirmed that the RoC was not a performance warning and that no finding had been made that Mr Handa had breached the National Workplace Behaviour Policy. It also referred to the emails sent by Mr Handa on 24 and 25 November 2022 and the concerns those emails raised about his capacity to continue driving. Relevantly, the stand down letter stated as follows:[49]
Your emails state that working with CDC is making you unwell and you have directed that depot management must be terminated. This indicates to us that you no longer wish to be employed by CDC Sunshine, consequently we feel the employment relationship has irretrievably broken down and that it would be in everyone’s best interests that the employment relationship comes to an end.
Accordingly, we have made the decision to stand you down on full pay and are inviting you to attend a meeting to discuss your ongoing employment with CDC Sunshine. You are invited to attend a meeting to show cause as to why your employment with CDC Sunshine should not be terminated.
[48] Affidavit of Shaun Lawson affirmed and filed on 1 May 2024, Exhibit ‘SL-11’.
[49] Court book at pages 319 and 320.
The letter then provided the details of where and when the meeting would take place and invited Mr Handa to bring a support person (‘the show cause meeting’). The letter also referred Mr Handa to the Employee Assistance Program.
Mr Handa replied by email to Mr Lawson, cc’d Ms Turner and others. In that email, Mr Handa said:[50]
This meeting will be audio recorded.
I am very happy that you stand me down because I will not even (sic) again work under your management.
And I will be addressing this to relevant authorities seeking you Termination from Transport related job because the Position you are on does not suit your personality.
Please advise if you have any objections to audio recording.
Do you have any objections if my wife would like to attend the meeting?
Kindly advise the media release policy of CDC because I want this episode of harassment on public domain.
[50] Affidavit of Shaun Lawson affirmed and filed on 1 May 2024, Exhibit ‘SL-12’.
Mr Lawson’s evidence is that he was concerned about the escalating tone of the emails from Mr Handa, and that it appeared from Mr Handa’s emails that he had lost faith in management at CDC Sunshine, particularly in circumstances where Mr Handa had called for the sacking of Mr Lawson and Ms Wilkinson.[51]
[51] Affidavit of Shaun Lawson affirmed and filed on 1 May 2024, paragraph 127.
According to Mr Lawson, the purpose of the show cause meeting was to see if there was a way to work through the situation. Mr Lawson’s evidence is that at the point at which the show cause letter was sent, no decision had been made to terminate his employment. Moreover, he hoped that he and Mr Handa would be able to mend their relationship.
On 28 November 2022 at 2:45am, Mr Handa sent a further email to Mr Lawson attaching a ‘agenda’ for the 29 November 2022 meeting. This ‘agenda’ document contained reference to the various issues raised by Mr Handa, which are discussed above, in the period from August to November 2022. [52]
[52] Affidavit of Shaun Lawson affirmed and filed on 1 May 2024, Exhibit ‘SL-14’.
At 3:26pm on Monday 28 November 2022, Mr Lawson replied to Mr Handa and indicated that CDC was considering his request to record the show cause meeting and that he would be advised of the outcome prior to the meeting starting. In his email, Mr Lawson also made it clear that the show cause meeting was called to discuss the matters outlined in the stand down letter and that CDC would not be ‘revisiting items already raised and addressed’.[53]
[53] Affidavit of Shaun Lawson affirmed and filed on 1 May 2024, Exhibit ‘SL-13’.
Mr Giusti, who had recently joined the company as its General Manager of Operations, had the necessary authority to determine whether or not to terminate Mr Handa’s employment. He was the sole decision maker for the ultimate termination of Mr Handa’s employment. In making his decision to terminate, he relied upon information provided by Mr Lawson and someone from People and Culture to ensure that the proper procedure has been followed.
Mr Handa attended the show cause meeting on 29 November 2022 together with his wife for part of it. Mr Lawson and Ms Turner attended for the respondent.
After discussing matters with Mr Handa for some time, Mr Lawson and Ms Turner took a break. They discussed the matter with Mr Giusti and after some discussion, Mr Giusti accepted the recommendation from Mr Lawson and Ms Turner that the employment relationship had broken down, that it was not able to be salvaged and therefore Mr Giusti decided to terminate Mr Handa’s employment.[54]
[54] Affidavit of Paul Giusti affirmed and filed on 30 April 2024, paragraphs 15 and following.
A letter setting out the outcome of the show cause meeting was provided to Mr Handa, dated 30 November 2022 (‘the outcome letter’). Relevantly, the outcome letter contained the following:[55]
… during our meeting we discussed the concerns you had about the wording used in the Record of Discussion (RoD) that was given to you on 24 November 2022. Once again, we reiterated that the RoD was not a disciplinary letter and only a summary of the discussion held on 16 November 2022. We advised that we had accepted your responses about your comments made to Stephanie Wilkinson and agreed that you had not breached the National Workplace Behaviours policy and that the matter was closed.
Throughout the meeting you disputed that the RoD was an accurate record of the 16 November 2022 meeting and stated that you felt management had harassed and treated you unfairly regarding the matters discussed in the RoD.
In our meeting on 29 November 2022, you confirmed that you did not have faith in management and did not feel that the company had addressed the concerns you raised, despite previously being on the record as agreeing that the matters had been addressed and were resolved. You stated that you did not regret your actions and if in future you felt you were being treated unfairly again, you would address those concerns in the same manner.
In the circumstances, we have found that you have not provided any evidence to convince us that a professional and effective working relationship is possible. We were unable to be satisfied that the employment relationship is repairable due to your obvious distrust of management, combined with what seems to be an inability on your part to recognise that your conduct is inappropriate. Your continued belligerence towards CDC Victoria management has caused the company to form the view that the employment relationship is no longer sustainable, and that this situation is unlikely to change. This has resulted in the company losing trust and confidence in your ability to conduct yourself professionally in the future.
Accordingly, we have been left with no choice than to terminate your employment due to an irrevocable breakdown in our employment relationship with effect from 30 November 2022. You will be paid one (1) week’s pay in lieu of notice along with accrued leave entitlements.
[55] Court book at page 337.

Mr Handa then continued to send various emails over the course of the week following his termination to Ms Turner, Mr Lawson and Mr Giusti claiming that the termination of his employment was illegal and seeking a review of the decision to terminate his employment.
Mr Handa gave evidence that he commenced employment with another company, ‘Transit System’ as a full-time bus driver on 5 December 2022.[56] Although Mr Handa then suggested that perhaps he did not commence on 5 December 2022 but may have commenced a few days later.
[56] Court transcript at page 77; Exhibit A.
SUMMARY OF MR HANDA’S ADVERSE ACTION CLAIM
Mr Handa represented himself. English is not his first language. During the hearing, he presented his case in English, but an interpreter was available for him to use as required.
Without in any way being critical of him, the material that he filed in this matter does not set out the basis of his claims in a form one would expect of a party with legal representation. Having said that, it is apparent from the material that the applicant has filed in these proceedings that he raises a number of criticisms of the respondent and some of the respondent’s witnesses, as well as the manner in which his issues whilst employed by CDC were dealt with.
Ultimately, this proceeding does not confer onto the court the power to conduct a broad inquiry into whether the employer treated the applicant fairly in a general sense or whether it may have responded to issues involving the applicant in a different way. The applicant has brought these proceedings under the general protections provisions of the Act. As such, he must establish that the respondent took adverse action against him for a proscribed reason in breach section 340 or section 351 of the Act.
Relevantly, at Part G of the Amended Application filed by the applicant on 11 January 2024, the applicant alleges that the respondent terminated his employment in violation of section 340 and section 351. In closing submissions, Mr Handa confirmed that for the purposes of section 351, he relied upon the ground of disability.[57]
[57] Court transcript at page 228.
For the purposes of section 340, I understand the applicant claims that he had various workplace rights, and/or exercised various workplace rights and that the termination of his employment was because of those workplace rights and/or the exercise of those workplace rights.
Having said that, the applicant’s broader concerns about the treatment that he received whilst at CDC can summarised as follows. The applicant takes issue with:
·the manner in which the complaint made by Ms Wilkinson was investigated;
·the content of the RoC and in particular the reference to ‘sexual harassment’ therein;
·the fact that if the allegation of sexual harassment was not substantiated, that no action was taken against the complainant or Mr Lawson;
·the way in which he was asked to sign the RoC – in particular, he claims that Mr Mason bullied him when asking him to sign the document.
The applicant claims that the only reason for calling the meeting on 16 November 2022 was to:
·get the applicant to sign a document which did not accurately record what occurred;
·to add to the applicant’s stress;
·to destroy the applicant’s marriage and social life; and
·to discriminate against the applicant.
The applicant further claims that the respondent was concerned that the applicant might take legal action and therefore terminated his employment unlawfully.
The applicant also raises that:
(a)in his email of 31 October 2022, he asked about how much notice he needed to give if he wished to resign but that was only because he was going for another job interview. He takes issue with the response from Mr Lawson who asked if he should take that request as a notice of resignation;
(b)the letter inviting him to a disciplinary meeting was given to and read by Mr Mason, and that this caused the applicant stress resulting in him not driving;
(c)the RoC was misleading in a number of respects and that the applicant was stood down because he had made a complaint about the terms of the RoC;
(d)if the respondent concluded that the applicant’s comments were not sexual harassment, then disciplinary action ought to have been taken against Ms Wilkinson;
(e)the respondent intentionally asked Mr Mason to obtain the applicant’s signature on the RoC, a person against whom the applicant had previously complained;
(f)on 24 November 2022, the applicant made a complaint about being asked to sign the RoC and that on the basis of that complaint, the applicant was stood down and asked to attend a show cause meeting;
(g)the applicant’s mental stress was used against him in the stand down letter;
(h)the applicant claims that the respondent made further misleading statements in the termination letter, including that previous issues had been resolved;
(i)the applicant further claims that the RoC itself contained a threat that further disciplinary action might follow;
(j)the applicant claimed that Ms Wilkinson incorrectly told him that he should not communicate with his supervisor by WhatsApp;
(k)the applicant also claims that he was discriminated against because he made an inquiry about his tax file number and fatigue management;
(l)the applicant further claims that he was discriminated against after he exercised a workplace right to swap a shift and that when the applicant raised this with Ms Turner in HR, Ms Turner did not wish to become involved;
(m)the applicant complains about being referred to the union delegate for information and for representation in the meeting on 16 November 2022, after the applicant had advised the respondent that he was not a union member and did not wish to become a union member – the applicant claims that the union delegate took the respondent’s side in the 16 November meeting and, implicitly, did not appropriately represent the applicant;
(n)in addition, the applicant claims that Mr Lawson did not provide written consent to record the 16 November meeting and that the subsequent recording of that meeting by the respondent is therefore not lawful; and
(o)the applicant also claims that the statement in the RoC to the effect that if the applicant’s ‘behaviour persists, further discussion may be held which may include disciplinary action’ was a threat by the respondent and that by directing the applicant not to send emails, the respondent was seeking to limit his ability to have his concerns addressed at an appropriate level within the respondent.
The applicant also makes a variety of other claims in his 4 October 2023 affidavit, which do not readily fall within the parameters of the present proceedings. For completeness I note that he claims that the respondent’s conflict of interest policy limited his freedom to work and that the RoC did not accurately record the discussion on this issue. The applicant also claimed that the contract provision dealing with a second job is also inconsistent with the Basic Fatigue Management module of the National Heavy Vehicle Accreditation.
The applicant also asserted that he was discriminated against by Mr Mason after he made complaints about him in August 2022 and in October 2022. In essence, the applicant alleges that the respondent took adverse action against him out of fear that he would otherwise have taken action against the respondent for failing to comply with the applicant’s enterprise agreement.
The applicant also claims that he was discriminated against by Ms Turner because he complained about the inappropriate proceedings in the show cause meeting. He sought a review of the decision to terminate his employment.
As stated, the proceedings before this court are not a general inquiry into all grievances that Mr Handa has about his employment with CDC. He has brought proceedings under Part 3-1 of the Act and as such the issues before the court are limited to considering whether there has been a breach of any of those provisions.[58] Of course, having said that, the evidence of the general context in which the dismissal decision was taken, may be relevant to my consideration as to whether to accept the direct evidence by the respondent’s witnesses as to the reasons for the dismissal and for any other possible adverse action taken against Mr Handa.
[58] Khiani v Australian Bureau of Statistics [2011] FCAFC 109, [31].
LEGISLATIVE FRAMEWORK
Mr Handa’s claim is based on an alleged breach of sections 340 and 351 of the Act.
Section 340 relevantly provides:
(1)      A person must not take adverse action against another person:
(a)       because the other person:
(i)        has a workplace right; or
(ii)       has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right;
(b)       to prevent the exercise of a workplace right.
Section 341 then defines ‘workplace right’ as follows:
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee – in relation to his or her employment.
Adverse action is defined in section 342, relevantly in the context of an employer and employee as action by the employer which includes:
(a)dismissing the employee; or
(b)injuring the employee in his or her employment; or
(c)altering the position of the employee to the employee’s prejudice; or
(d)discriminating between the employee and other employees.
Section 351 further provides:
(1)An employer must not take adverse action against a person who is an employee … of the employer because of the person’s race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Section 360 further provides that for the purposes of Part 3-1, a person takes action for a particular reason if the reasons for the action include that reason.
Section 361 goes on to state:
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person, took or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
The issues before the court therefore are whether the respondent took adverse action against the applicant and if it did, whether it did so for a proscribed reason. That is because the applicant had (or had not) exercised or proposed to exercise (or not exercise) a workplace right, or for one of the proscribed reasons in section 351, relevantly in this instance, because of the applicant’s disability.
The onus is on the applicant to establish:
(a)that the respondent took adverse action – so much is conceded in so far as the respondent terminated the applicant’s employment; and
(b)the applicant had, exercised or proposed to exercise, a workplace right and/or had an attribute within one of the proscribed grounds in section 351, in this instance a disability.
Once the applicant establishes these matters, and asserts that the reason for the adverse action is the proscribed reason, the onus shifts under section 361 to the respondent to prove that the proscribed reason was not the reason (or did not include the reason), for taking of the adverse action. To satisfy the onus, the court will need to inquire into what motivated the decision maker who determined to terminate the applicant’s employment and those whose advice the decision maker relied upon in reaching the decision to terminate.
The respondent did not take issue with the suggestion that by making various complaints to his superiors as outlined earlier in these reasons, that Mr Handa exercised a workplace right.
The respondent did take issue with the claim that Mr Handa suffered from a disability, to the extent that it is submitted for the respondent that Mr Handa did not lead any evidence of any such disability.
It is the case that there is no medical evidence before the court that Mr Handa suffered from an identified or identifiable condition which might constitute a disability. However, the evidence before the court is that after he received the RoC document, Mr Handa advised the respondent that he was too stressed to work and that to do so would put himself and the travelling public at risk. There is no suggestion that the respondent did not accept this to be correct and indeed, the respondent stood the applicant down pending the show cause meeting in part on the basis that it accepted his statement that he had not been able to sleep and was suffering stress.
The term ‘disability’ is not defined in the Act. It is defined in the Disability Discrimination Act 1992 (Cth) to generally include a total or partial loss of the person’s bodily or mental functions or a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgement or that results in disturbed behaviour and includes a disability that presently exists … or is imputed to a person.[59]
[59] Disability Discrimination Act 1992 (Cth) s 4.
If this definition were to apply it would include a disability which affects a person’s mental state and also an imputed disability, as opposed to an actual disability. It is open therefore, on the facts of this case for the applicant to assert, in circumstances where he has reported to be unable to drive due to mental stress and where the employer has not taken issue with that situation, that an actual or imputed disability was the reason for the termination of his employment, namely for the claimed adverse action.
The onus then shifts to the respondent to prove that this was not a motivating or part of the motivating factor behind its decision to terminate the applicant’s employment.
Finally, as noted by Snaden J in Serpanos v Commonwealth [2022] FCA 1226 (‘Serpanos’) at [76]:
76.Where, as here, it is alleged that a body corporate (or other non-natural person) has engaged in unlawful adverse action, s 793 of the FW Act serves to assist in attributing the to it the conduct of the human agents through whom its acts and, in certain circumstances, the state or states of mind with which they do so.
At [84] – [91] of the reasons of Snaden J in Serpanos, his Honour sets out a detailed analysis of the interpretation of section 341(1)(c)(ii) of the Act. I respectfully adopt that analysis.
Applying that analysis in this instance, I accept that the various complaints made by Mr Handa to CDC over the period from August to November 2022 are complaints or inquiries that he was able to make in relation to his employment.
In making these inquiries, Mr Handa exercised a workplace right. If these inquiries or complaints formed any part of the decision to terminate his employment, Mr Handa would succeed in his claim.
The effect of section 361(1) of the Act imposes an obligation on the respondent to prove that it (or more particularly, the human actors within the respondent) were not because of (or for reasons which include) the exercise of those workplace rights.
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, the High Court provided guidance on how an employer might discharge this reverse onus. Relevantly at [44] – [45], French CJ and Crennan J said:
44.… The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”.
45.This question is one of fact, which must be answered in light of all the facts established in the proceeding. Generally, it will be extremely difficulty to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer …
Similarly, Gummow and Hayne JJ said at [127]:
127.In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
It is also settled that the reasoning of a person, other than the final decision maker, involved in the process leading up to the decision to terminate, may also be relevant to determining whether the adverse action was taken for a proscribed reason.[60] In Serpanos, at [123] Snaden J summarised the current state of the law as follows:
123.… the court must interrogate not merely the state or states of mind of the person or people who engaged in it; but also that of others whose contribution to that conduct rose beyond some threshold level. …
[60] See Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71 at [221]; Serpanos at [123].
His Honour then went on to say:
124.… A respondent may rebut the statutory presumption for which s 361(1) provides by leading evidence as to why it engaged in the conduct that an applicant seeks to impugn. The question for determination starts and ends with whether, in fact, those reasons actuated that conduct. It is not necessary for a respondent to prove that the reasons for which it did as it did were procedurally or substantively fair … At issue is simply whether they were, in fact, the reasons that animated that conduct.
For the purpose of section 340, in determining why the decision to terminate was made, and whether the fact that Mr Handa had exercised his workplace rights played any part in the decision to terminate, it is therefore necessary to inquire into the reasoning of Mr Giusti, Mr Lawson and Ms Turner.
REASON FOR TERMINATION OF EMPLOYMENT
Each of Mr Giusti, Mr Lawson and Ms Turner gave evidence as the reason why they recommended termination (in the case of the two latter) or decided to terminate (in the case of the former).
In closing, Mr Handa explained the importance of this case. Relevantly, he noted that the mental health of bus drivers is essential to the travelling public as well as to the health and safety of the bus drivers themselves. In those circumstances, he submitted that it is important that a bus driver is able to disclose to their employer if they are suffering from poor mental health.[61]
[61] See Court transcript at pages 222 and following.

In this instance, Mr Handa submits that if he continued working in what he described as a hostile working environment, his mental health would be at risk as would public safety.
Mr Handa submitted that the respondent, in particular Mr Lawson, inappropriately responded to the applicant addressing his mental health, in particular by asking him whether he was tendering his resignation in his email of 31 October 2022 and then ultimately recommending the termination of his employment. Mr Handa further asserts that the respondent did not investigate the concerns he raised about the effect of various incidents on his mental health but rather proceeded to terminate his employment.
Mr Handa submits that the meeting on 16 November 2022 and the events that followed was unfair. Moreover, he submits that the respondent did not investigate or resolve the complaints he raised about Mr Mason. He takes issue with the fact that a record of the 16 November 2022 meeting was not provided to him until 24 November, that it was provided to him by Mr Mason, a person against whom he had previously complained. He also claimed that it contained inaccurate information and statements which he found highly offensive in particular in relation to the allegation that his email to Ms Wilkinson contained comments that were inappropriate, personal and could be considered sexual harassment.
In addition, Mr Handa says that when he was stood down, he had to tell his wife that he had been accused of engaging in sexual harassment and that this made his family life very difficult. He also denies that by his conduct he contributed in any way to the breakdown of the employment relationship.
Moreover, Mr Handa maintained that he had raised a number of complaints and concerns during his employment which were not appropriately investigated or resolved to his satisfaction.
In response to some questions from me about the operation of section 340 of the Act, Mr Handa said that his claim is that he raised various issues during his employment, that this amounted to the exercise of a workplace right and that as a consequence the respondent characterised his behaviour as belligerent and terminated his employment.[62]
[62] See Court transcript at page 227.
In terms of section 351, Mr Handa relies upon his mental stress which he says constitutes a disability and claims that he was subjected to adverse action because of that.
Mr Handa invited the court to find Ms Turner and Mr Lawson not to be credible, particularly in the absence of any evidence from Ms Wilkinson. Mr Handa submits that there are inconsistencies between the evidence of Ms Turner and Mr Lawson as to the nature of the complaint and that this is a factor that I ought to have regard to as well in assessing credibility. In essence, Mr Handa submits that I should not accept their evidence for these reasons.
For example, Mr Handa states that there is an inconsistency between the evidence of Mr Guisti and Mr Lawson on the one hand and that of Ms Turner on the other, as to whether Ms Wilkinson made a complaint of sexual harassment prior to 14 November 2022. On the basis of this inconsistency, and absent any direct evidence from Ms Wilkinson, the applicant submits that the court cannot accept that a complaint of sexual harassment was made by Ms Wilkinson against him. Absent a complaint of sexual harassment, the applicant further submits that the court should conclude that the respondent targeted him for some other, unlawful reason. The applicant therefore says that the respondent’s action in initiating an inappropriate disciplinary meeting, generating a misleading RoC and asking him to sign it was all done for an improper purpose.
Mr Handa went on to say that Mr Giusti and Mr Lawson have misled the court to the extent that they say that Ms Wilkinson made a complaint of sexual harassment. In any event, he says that his comments were pre-judged to be sexual harassment by the respondent and to this extent his was targeted, bullied, discriminated against and harassed.
I do not accept these submissions.
I accept that each of Mr Giusti, Mr Lawson and Ms Turner gave truthful evidence.
It was not necessary for the respondent to call Ms Wilkinson. Her complaint relates to offence she took on receipt of an email from Mr Handa. Mr Handa does not deny sending the email. The issue before the court is not whether Mr Handa engaged in sexual harassment by sending the email. Mr Lawson has given evidence that Ms Wilkinson complained to him about the email. I accept that evidence. But in any event, Mr Handa was not terminated because of the email to Ms Wilkinson. That matter was investigated and he was advised that no further action would be taken. Rather, Mr Handa’s employment was terminated because the respondent formed a view that the employment relationship had irretrievably broken down.
Mr Giusti gave evidence, which I accept, that he was the person authorised to make the decision to terminate an employee’s employment and that he made that decision based on information provided to him by Ms Turner and Mr Lawson who conducted the show cause meeting on 29 November 2022. Mr Giusti also gave evidence about his probing and questioning about the process that had been undertaken to reach the conclusion that the employment relationship had irretrievably broken down.
Mr Giusti deposes to having been advised about a possible situation with Mr Handa on 25 November 2022 and that he was also provided with a copy of Mr Handa’s email to Mr Lawson of 25 November 2022 which prompted the show cause process.[63] Mr Giusti said he was not privy to any of the discussions between Mr Lawson and HR between 25 November 2022 and 29 November 2022. He was simply advised that he may be needed and he indicated that he would be available to take a call if required.[64]
[63] Affidavit of Paul Giusti affirmed and filed on 30 April 2024, paragraph 12.
[64] Affidavit of Paul Giusti affirmed and filed on 30 April 2024, paragraph 14.
Mr Giusti sets out his recollection of the telephone discussion with Mr Lawson and Ms Turner on 29 November 2022. Relevantly, he was advised:[65]
(a)the meeting had not gone well;
(b)Mr Handa was not responding to the issues raised by Mr Lawson and Ms Turner;
(c)rather, Mr Handa was raising other issues which Mr Lawson and Ms Turner believed had been resolved; and
(d)Mr Handa raised his mental health and stress and that he was stressed at work because of Mr Lawson and Ms Wilkinson.
[65] Affidavit of Paul Giusti affirmed and filed on 30 April 2023, paragraph 15.
Mr Giusti deposes to seeking further clarification from Mr Lawson and Ms Turner, including whether Mr Handa had been given an opportunity to put forward his case and whether there could be a working relationship with Mr Handa.[66]
[66] Affidavit of Paul Giusti affirmed and filed on 30 April 2023, paragraph 17.
Mr Giusti said that ultimately, he was satisfied that it was appropriate to terminate Mr Handa’s employment in circumstances where Mr Handa did not acknowledge his actions and made no effort to repair the relationship. Mr Giusti agreed that the employment relationship had broken down.[67] Mr Giusti acknowledged that Mr Handa had raised mental health and stress as an issue, but that was not the reason for the termination of his employment. Mr Giusti’s evidence is that the sole reason for the termination of Mr Handa’s employment was the total breakdown in the relationship. Mr Giusti also deposed to the fact that had he been concerned about Mr Handa’s mental health, he would not have proceeded with a disciplinary procedure but rather would have sought advice as to what support might be provided to Mr Handa to manage any mental health issues.[68]
[67] Affidavit of Paul Giusti affirmed and filed on 30 April 2024, paragraphs 17 to 18.
[68] Affidavit of Paul Giusti affirmed and filed on 30 April 2024, paragraph 20.
Mr Giusti denies that any other issue informed his decision to terminate Mr Handa’s employment as alleged.
I accept Mr Giusti’s evidence including that the fact that Mr Handa had exercised his workplace rights by raising various matters in the period from August to November 2022 played no part in Mr Giusti’s decision to terminate his employment.
For his part, Mr Lawson deposes that the only reason for recommending the termination of Mr Handa’s employment was because it became apparent to him during the show cause process that the employment relationship had irretrievably broken down. The other complaints that Mr Handa had previously raised did not, according to Mr Lawon, form any part of the reason for termination. He says that as far as he was concerned, those matters were resolved at the 16 November 2022 meeting.
Mr Lawson also denies that the decision to terminate was in any way based on a fear that Mr Handa would take action against him or CDC.[69]
[69] Affidavit of Shaun Lawson affirmed and filed on 1 May 2024, paragraph 127.
The basis of the decision to recommend the termination of Mr Handa’s employment was solely that the employment relationship could not be rebuilt and that Mr Handa had lost trust in the management of CDC Sunshine. Mr Lawson formed the view that the relationship had irretrievably broken down.[70]
[70] Affidavit of Shaun Lawson affirmed and filed on 1 May 2024, paragraph 127.
Mr Lawson gives evidence, which I accept, that he went into the show cause meeting with Mr Handa trying to find a solution which would see Mr Handa continue in his employment with the company. I accept that Mr Lawson had not, prior to going into that meeting made a decision to terminate Mr Handa’s employment.
At paragraph 103 of his affidavit, Mr Lawson said:
103. The purpose of the meeting was to ascertain where Mr Handa was at. I wanted to know where all this, almost hatred, towards management was coming from. I wanted to know the reason he was sending these emails, and whether he believed the relationship had been broken.
Mr Lawson’s evidence about Mr Handa’s conduct in this meeting is consistent with the manner in which Mr Handa presented at trial. Namely:
(a)Mr Handa was fixed on the fact that the RoC referred to sexual harassment, notwithstanding that it made it clear that there was no finding that he had engaged in sexual harassment; and
(b)Mr Handa continued to say that the depot management should be terminated.
Mr Lawson deposes to forming the opinion that the relationship with Mr Handa could not be salvaged. There was a break in the meeting for about an hour during which time Mr Lawson and Ms Turner discussed what they had heard and they ultimately both agreed that the employment relationship had broken down and that they should recommend to Mr Giusti that Mr Handa’s employment be terminated.
Mr Handa put a series of questions to Mr Lawson about the various issues that he had raised during his employment. Mr Lawson provided comprehensive evidence in relation to these matters to the best of his recollection. I found Mr Lawson to be a credible witness. He answered questions of him in a frank manner and made concessions where appropriate.
I accept that when Mr Handa raised concerns or complaints or queries about issues relating to his employment with Mr Lawson, Mr Lawson considered and addressed those matters in an appropriate and timely manner. I also accept however, that from Mr Handa’s perspective, he was not always satisfied with the response given. The fact that Mr Handa was not satisfied with the response given, however, does not mean that his concerns or queries were not adequately addressed or that he was dealt with in a different manner to other employees.
Ms Turner also deposes to receiving a series of emails from Mr Handa on 24 and 25 November 2022 which she escalated to Ms Davis, Ms Hansen and Mr Lawson.
Ms Turner deposes to discussing some concerning aspects of these emails with her superiors, including the fact that Mr Handa said that he could not sleep and Mr Handa’s demands that CDC terminate the employment of Mr Lawson and Ms Wilkinson.
In relation to the decision to stand Mr Handa down, Ms Turner deposes to an agreement being reached between herself, Ms Davis and Ms Hansen that Mr Handa needed to be stood down with pay to assess what was happening. She says that her concern at the time was ‘first and foremost, … the safety of the public and other staff. [Mr Handa] was saying that he didn’t think he was fit to work’.[71] Ms Turner deposes to being concerned at the time about Mr Handa’s fitness to drive and whether he would be rested and fit to drive given what was contained in his email.
[71] Affidavit of Robyn Turner affirmed and filed on 30 April 2024, paragraph 28.
Ms Turner received a further email from Mr Handa on 25 November 2022. Ms Turner was in the process of drafting a letter to Mr Handa when she received this email. She then forwarded a draft letter to Ms Hansen and Mr Lawson which she understands was then sent to Mr Handa.
That letter invited Mr Handa to show cause as to why his employment with CDC should not be terminated in circumstances where he was demanding that the management team should be sacked and in circumstances where Mr Handa had indicated that he was applying for another job. Ms Turner states that at the point of sending the show cause letter, CDC had not yet made a decision as to whether to terminate Mr Handa’s employment.[72]
[72] Affidavit of Robyn Turner affirmed and filed on 30 April 2024, paragraphs 33 and 34.
Ms Turner’s evidence is that in sending a show cause letter in these circumstances, the respondent was acting consistently with standard CDC approach where it was considering the possible termination of an employee’s employment.[73]
[73] Affidavit of Robyn Turner affirmed and filed on 30 April 2024, paragraphs 33 and 34.
Ms Turner gives evidence about the applicant’s behaviour during the show cause meeting. She asserts that the applicant was evasive. Ms Turner’s evidence is that during the show cause meeting, at various points, both she and Mr Lawson put to the applicant that it was their view that the relationship had broken down. Ms Turner’s evidence is that the applicant did not indicate his view of whether he also believed that the relationship had broken down or whether he disagreed with this proposition.[74]
[74] Affidavit of Robyn Turner affirmed and filed on 30 April 2024, paragraph 35.
Ms Turner ultimately formed the view that the relationship with the applicant had broken down. At paragraph [36] of her affidavit, Ms Turner said:
36.… [Mr Handa] was not taking any responsibility or accountability for what he could be doing differently to make the relationship work.
Ms Turner deposes to discussing the situation with Mr Lawson and that both of them formed the view that the relationship had irretrievably broken down. Mr Lawson and Ms Turner both agreed that termination was appropriate and sought approval from Mr Paul Guisti, who was the ultimate decision maker.
Ms Turner’s evidence about the briefing given to Mr Giusti is set out at paragraph [38] and [39] of her affidavit in the following terms:
38.… We gave [Mr Giusti] a summary of the meeting. Mr Lawson said that he was recommending termination. He said that Mr Handa was not willing to be managed by him or Ms Wilkinson and he did not acknowledge he had any role in the breakdown of the employment relationship and we were not assured there would be any improvement in Mr Handa’s behaviour towards management. He said our opinion was that the relationship had broken down. I agreed with Mr Lawson.
39.I don’t recall Mr Giusti interrogating our position too much. Mr Giusti agreed and made the decision to terminate Mr Handa’s employment.
Ms Turner’s evidence is that after the discussion with Mr Giusti, she and Mr Lawson resumed the meeting with Mr Handa and advised Mr Handa that his employment would be terminated.[75] The following day, 30 November 2022, a letter of termination signed by Mr Lawson was provided to Mr Handa confirming that his employment was terminated effective 30 November 2022.[76]
[75] Affidavit of Robyn Turner affirmed and filed on 30 April 2024, paragraph 40.
[76] Affidavit of Robyn Turner affirmed and filed on 30 April 2024, paragraph 41.
Ms Turner denies that Mr Handa was terminated because he had, or had exercised a workplace right or because he had made a complaint or for any other prohibited reason.[77] She also denies that she discriminated against him in the way in which she responded to any of his enquiries. Her evidence is that she responded to his enquiries by providing him with the requisite information in the same manner as she did for any other employee.
[77] Affidavit of Robyn Turner affirmed and filed on 30 April 2024, paragraph 42.
In relation to the breakdown of the relationship the following exchange occurred with Ms Turner:[78]
Mr Handa:Could you provide evidence, any situation that can prove that employment relationship was broken down by the applicant?
Ms Turner: Yes.
…
Your emails that you had submitted on 24^th and 25 November I think demonstrated that you were unwilling to be managed by depot management. That the relationship was irrevocably broken down. That you would not be able to work under them. That you were demanding their termination. That to me, demonstrated the relationship had broken down. That would be the evidence I would rely on.
[78] Court transcript at page 207.
In relation to the breakdown of the employment relationship the following exchange occurred:[79]
Mr Handa:… respondent’s allegation that applicant has broken down the employment relationship irrevocably is the presumption only. And respondent’s presumption is based on the misleading information mentioned in the stand down letter that the applicant has directed that the depot management must be terminated. And is based on the violation of the applicant’s complaint of mental stress due to Sunshine Depot Management. Ms Turner, why are you not able to provide evidence in your affidavit that can prove that applicant has mentioned that … depot management must be terminated?
Ms Turner:In your previous email you say, … if we can’t … if we demonstrate that your language wasn’t deemed to be in breach of policy, that we had to sack management. The ROC went to great lengths to explain that you have … been found not to have breached policy, hence there was no disciplinary outcome. So the answer to that question had already been made. You hadn’t breached policy, hence there was no formal disciplinary process, just the record of conversation. So by that you were saying we had to terminate management, because it had already been determined that you hadn’t breached policy. So you were saying we had to sack management.
[79] Court transcript at pages 208 and following.
Ms Turner gives evidence that the reason why she formed the view that termination of employment was appropriate is that it was clear that the employment relationship had irretrievably broken down. Ms Turner refers to the fact that Mr Handa had told her to ‘sack the depot’, that he had informed management that he was actively seeking alternate work and that it was clear to her that he did not wish to continue working at CDC. In addition, Ms Turner’s evidence is that Mr Handa refused to accept that he had any role to play in the breakdown of the relationship and was not prepared to take any steps to remedy the situation. Ms Turner confirmed that in her view, the reasons stated in the termination letter are an accurate description of the reasons for the termination of Mr Handa’s employment.[80]
[80] Affidavit of Robyn Turner affirmed and filed on 30 April 2024, paragraph 49.
In response to a series of questions about her involvement in the various concerns raised by Mr Handa during his employment, Ms Turner gave detailed answers about the steps that she took to follow up with line managers where appropriate. I found Ms Turner to be a credible witness. She took time to explain what she had done, and why. It was apparent from the questions asked by Mr Handa that he did not accept that this was sufficient or adequate. The fact that he held this view did not make it so.

I accept the evidence given by each of Mr Giusti, Mr Lawson and Ms Turner. As far as Ms Turner and Mr Lawson were concerned, the complaints and inquiries made by Mr Handa during his employment were adequately and appropriately responded to in a timely manner. The fact that he was not happy with the response does not bear on that finding. From their perspective, these matters in no way played a role in determining whether to continue his employment or not.
OTHER MATTERS
For completeness, in circumstances where the applicant is representing himself, it is appropriate to say something about an aspect of his claim which might be said to have been pressed although not expressly raised in his Amended application.
In his opening statement, the applicant said that he made complaints about various colleagues and also raised concerns about his employment contract and in particular, clause 15 which dealt with conflicts of interest. The applicant states that after he made these complaints, false allegations were raised against him that he had made inappropriate comments to a fellow worker. He was called to a disciplinary meeting in relation to these false allegations.
The applicant further asserts that following this disciplinary meeting a false RoC was created and he was asked to sign it. He says that he refused to do so in circumstances where if he did sign it, this would be tantamount to him accepting that his previous complaints were baseless and that he had engaged in sexual harassment towards Ms Wilkinson.
The applicant says that as a result of these matters, he ‘was fully broken down mentally and refused to drive and raised concerns against the threatening behaviour of the respondent’. [81] He says that as a consequence, he was accused of having broken the employment relationship and was stood down and called to attend a show cause meeting.
[81] Court transcript at page 13.
To the extent that it could be said that Mr Handa claims that inviting him to a disciplinary meeting on 16 November 2022 itself was adverse action in that it amounted to an alteration to his position to his prejudice, I make the following observations.
First this claim was not included in the applicant’s amended application.
But even if it was, on the basis of the evidence before me, I find that Mr Lawson called the applicant to attend a meeting on 16 November 2022 to deal with a complaint that he had received from Ms Wilkinson and for not for any other proscribed reason.
FINDINGS AND CONCLUSIONS
I find that the respondent has displaced the onus of proof in section 361(1) of the Act. I therefore find that the respondent did not terminate Mr Handa’s employment because, or for reasons which include that, he had exercised a workplace right and therefore did not breach section 340 of the Act.
The applicant’s employment was terminated because, as a result of the emails he sent on 24 and 25 November 2022 and importantly his conduct during the meeting on 29 November 2022, the respondent formed a view that the employment relationship had irretrievably broken down and that there was no evidence that a professional and effective working relationship was possible. Moreover, the respondent formed the view that the relationship was not repairable in circumstances where Mr Handa accepted no responsibility for his part in the demise of the working relationship.
It follows that Mr Handa’s employment was not terminated in breach of section 340(1).
Similarly, based on the same evidence, I am satisfied that any disability, actual or imputed that Mr Handa had played no part in the decision making resulting in the termination of his employment. I find that the reasons for termination given by the respondent’s witnesses are the reasons for the termination and Mr Handa’s stress condition played no part in the decision to terminate.
It therefore follows that Mr Handa’s employment was not terminated in breach of section 351 either.
As there has been no breach of either section 340 or section 351, no compensation is payable.
For each of these reasons, I therefore dismiss the applicant’s application.

I certify that the preceding one hundred and eighty-four (184) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.
Associate:
Dated: 7 March 2025

File number:	MLG 811 of 2023
Judgment of:	DEPUTY CHIEF JUDGE MERCURI
Date of judgment:	7 March 2025
Catchwords:	INDUSTRIAL LAW – ADVERSE ACTION – where the applicant claims that the respondent breached sections 340 and 351 of the Fair Work Act 2009 (Cth) in terminating his employment – consideration of whether the respondent terminated the applicant’s employment for, or for reasons which included him exercising a workplace right – consideration of whether the respondent terminated the applicant’s employment for reason of any disability of applicant’s, actual or imputed – finding that there was no breach of sections 340 or 351 in the circumstances – application dismissed.
Legislation:	Fair Work Act 2009 (Cth), ss 340, 342, 351, 360, and 361 Disability Discrimination Act 1992 (Cth), s 4
Cases cited:	Board of Bending Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 Serpanos v Commonwealth [2022] FCA 1226 Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71
Division:	Division 2 General Federal Law
Number of paragraphs:	184
Date of last submissions:	15 October 2024
Date of hearing:	5-6 September and 15 October 2024
Place:	Melbourne
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr J Tierney
Solicitor for the Respondent:	HWL Ebsworth Lawyers

MLG 811 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	GAURAV HANDA Applicant
AND:	CDC SUNSHINE PTY LTD Respondent

ORDER MADE BY:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	7 MARCH 2025