Heraud v Roy Morgan Research Ltd

[2016] FCCA 185

FEDERAL CIRCUIT COURT OF AUSTRALIA

HERAUD v ROY MORGAN RESEARCH LTD [2016] FCCA 185

Catchwords:
INDUSTRIAL LAW – whether Respondent contravened s.340 and s.351 of the Fair Work Act 2009 (Cth) (“the Act”) – seven contraventions pleaded – Applicant on maternity leave – Respondent engaged in restructuring of business – Applicant’s employment made redundant – whether failure to return Applicant to pre-parental leave position constituted adverse action within the meaning of s.342(1), Item 1(b) of the Act – whether creation of expectation of redeployment in alternative positions, which was later defeated, constituted adverse action within the meaning of s.342(1), Item 1(c) of the Act – found three contraventions of s.340 of the Act.

Legislation:

Fair Work Act 2009, ss.340, 365, Pt.3-1, ss.368, 351, Div.5, Pt.2.2, ss.83, 84, 65, 341, 342, Div.4, Pt.2.2, ss.360, 361, 12, 14, 30D

BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCAFC 132
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157
Childs v Metropolitan Transport Trust [1981] Industrial Arbitration Service (Current Review) 946
Jones v Department of Energy and Minerals (1995) 60 IR 304
National Tertiary Education Union  v Royal Melbourne Institute of Technology [2013] FCA 451
Stanley v Service to Youth Council Incorporated[2014] FCA 643
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184
Transport Workers Union of Australia v Premier Motor Service Pty Ltd [2015] FCA 650

Applicant: JAYE HERAUD

Respondent: ROY MORGAN RESEARCH LTD

File Number: MLG 1775 of 2014

Judgment of: Judge Jones

Hearing date: 24 August 2015

Date of Last Submission: 23 December 2015

Delivered at: Melbourne

Delivered on: 5 February 2016

REPRESENTATION

Counsel for the Applicant: Ms Knowles

Solicitors for the Applicant: Kelly Workplace Lawyers

Counsel for the Respondent: Mr Catlin

Solicitors for the Respondent: James Yeatman, solicitor

THE COURT DECLARES THAT:

1. In deciding not to return the Applicant to her pre-parental leave position after her personal carer’s leave ended, the Respondent contravened s.340 of the Fair Work Act 2009 (Cth) (the Act) by injuring the Applicant in her employment, for the reason that, or for reasons which included as a substantial and operative reason that, the Applicant had exercised her workplace right to take maternity leave.

2. In deciding not to make any positions in the Research Centre available to the Applicant, the Respondent contravened s.340 of the Act, by altering her position to her prejudice, for the reason that, or for reasons which included as a substantial and operative reason that, the Applicant had exercised her workplace right to request flexible working arrangements.

3. In deciding to terminate the Applicant’s employment, the Respondent contravened s.340 of the Act when it, dismissed the Applicant, for the reason that, or for reasons which included as a substantial and operative reason that, the Applicant had exercised her workplace right to request flexible working arrangements.

THE COURT ORDERS THAT:

1. The matter be set for a half-day hearing with respect to relief for the found contraventions and the question of penalties on 21 April 2016 at 2:15pm.

2. In the event the parties are unable to agree in relation to the question of relief and/or do not have agreement as to submissions on penalties, they are to file submissions 3 days prior to hearing.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1775 of 2014

JAYE HERAUD

Applicant

And

ROY MORGAN RESEARCH LTD

Respondent

REASONS FOR JUDGMENT

Introduction

1. On or about 10 September 2012, Jaye Heraud (“the Applicant”) commenced employment with Roy Morgan Research Ltd (“the Respondent”) as National Customised Operations Director (“NCOD”). On or about 27 September 2013, the Applicant commenced maternity leave, for an estimated period of 39 weeks, ending around 2 July 2014.

2. Following the loss of major clients and the emergence of a new competitor in the Respondent’s core business in 2013, the Respondent embarked on developing a restructuring of the business in late 2013 and into 2014. A consequence of this was redundancies of staff positions.

3. By correspondence dated 11 June 2014 and signed by Stephanie Graham, Human Resources Officer, the Applicant was informed she would be made redundant, effective from 27 June 2014.[1]

   [1] Annexure to Applicant’s Application, Fair Work Division filed 29 August 2014.

4. The Applicant filed a complaint under s.365 of the Fair Work Act 2009 (“the Act”) alleging she was dismissed by the Respondent in contravention of Part 3-1 - General Protections - of the Act (“general protection provisions”). On 19 August 2014, Commissioner Lee, Fair Work Commission issued a certificate pursuant to s.368 of the Act certifying that he was satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.

5. On 29 August 2014, the Applicant filed an Application – Fair Work Division and Form 2 Application - Dismissal from employment in contravention of a general protection. In her Form 2, the Applicant makes seven complaints, which allege that the Respondent contravened ss. 340 and 351 of the Act. Her complaints with respect to s.340 of the Act rely on her workplace rights under Div.5, Pt.2.2 of the Act to take maternity leave, to be consulted during her period of maternity leave and to return to work at the completion of her parental leave: ss. 83 and 84 of the Act, as well as to request Flexible Working Arrangements: s.65 of the Act. The complaints pursuant to s.351 of the Act relate to her attributes of being pregnant and having carer/family responsibilities. The particulars of the seven complaints are set out at [36] below.

6. The Respondent accepts the Applicant had workplace rights within the meaning of s.341 of the Act, but denies that, other than termination, it took adverse action as claimed by the Applicant. The Respondent also argues that whatever action it took during the relevant period was not for the reason, or reasons that included as a substantial and operative reason, that the Applicant had or exercised or proposed to exercise a workplace right. The Respondent submits that the only reason it took any action was simply to effect a commercially necessitated restructuring of the business, which ultimately meant the Applicant’s position prior to maternity leave and a proposed restructured position were redundant and there were no other suitable positions available within the business.

Background

1. Before turning to the particular claims made by the Applicant alleging contravention of the general protection provisions of the Act, I will set out a chronology of events which form the factual circumstances giving rise to these proceedings. The interpretation or colour given by the Applicant and the Respondent’s witnesses to this chronology is detailed later in this decision, where the evidence of the witnesses is set out. The following are to be taken as findings of fact, because these are either undisputed or self-evident from the documentary material.

2. On or about 10 September 2012, the Applicant commenced employment with the Respondent in the position of NCOD. She reported directly to Mr Gordon MacMillan, General Manager, Operations. Reporting directly to her were Project Field Managers.

3. On or about 8 April 2013, the Applicant advised the Respondent of her pregnancy.

4. On or about 3 June 2013, the Applicant provided the Respondent with a medical certificate regarding her pregnancy. The Applicant was provided with a “Parental Leave Notification Form” to complete by the Respondent. In this form, the Applicant recorded the information required, including her personal email address.

5. On or about 27 September 2013, the Applicant commenced maternity leave for a proposed period of 9 months, ending on or about 2 July 2014.  Mr Euan Wilson was appointed to act in the Applicant’s position whilst she was on maternity leave.

6. During 2013, the Respondent lost major clients, resulting in a significant decrease in revenue. In addition, a new competitor emerged in a core area of its business. 

7. On 30 October 2013, Michele Levine, CEO sent an email to all Melbourne, Sydney and Brisbane staff of the Respondent, inviting them to attend a “Roy Morgan Business Briefing” to be held on 31 October 2013.[2]

   [2] Annexure JH2.2, Applicant's affidavit filed on 14 August 2015 (Exhibit A2).

8. At the Roy Morgan Business Briefing, a PowerPoint presentation was delivered to staff who attended.[3] One page of the PowerPoint was headed “Our business environment”, with the following dot points:

   [3] Annexure JH2.3, Applicant's affidavit filed on 14 August 2015 (Exhibit A2).

   - “Sales flat over the last 12 months – loss of major media contracts

   - Replace manual processes with better and more efficient technology

   - Refocus Client Services to become a sales driven function

   - Implement a Research Centre to focus on the activities and research to support our products

   - Manage down annual and long service leave accruals

   - Company closes for 2 weeks over Christmas

   - Priority on doing things more efficiently”

9. The next PowerPoint slide is headed “Current Structure”. Under the Chief Executive Officer are located four divisions of the business; Client Services, Operations, Corporate Services and International. In this organisational structure, the Applicant was located in the division, Operations. The next PowerPoint slide is headed “Proposed Structure”. Under the Chief Executive Officer are located five divisions of the business; Client Services, Research Centre, Research Operations, Corporate Services and International. The final PowerPoint slide is headed “Consultation - we want your input.” Under this heading, staff are invited to let the Respondent know what they think, what concerns, ideas or suggestions they may have on any of the points discussed in the proposal and are encouraged to “Speak Up!”

10. On 26 November 2013, the Applicant emailed Mr Daniel Guthrie, stating:[4]

    “… I haven’t received an Omnibus newsletter since I left, I think it was meant to get sent to my personal email account, is that right?

    I’ve also tried to access my last pay slip and went to log into my email, however my password no longer seems valid. I think its [sic] most likely that my current password has expired or something along those lines. Are you able to get it re-activated for me please?”

    [4] Annexure JH2.1, Applicant's affidavit filed on 14 August 2015 (Exhibit A2).

11. Mr Guthrie responded by email that same day, stating that he had added the Applicant to the Omnibus list and would follow up with payroll.

12. On or about 27 January 2014, Mr Stephen Gibson, Mr Noel Duve and Mr Gordon MacMillan prepared a proposed new structure for the Respondent’s organisation, which was taken to an Executive meeting held on 3 February 2014. The proposal was approved in a slightly changed form. The proposed structure for Operations, as approved at the Executive meeting held on 3 February 2014, was presented to the Respondent on 25 February 2014.[5]  There is no evidence regarding the title and composition of the Executive meeting held on 3 February 2014, nor is there evidence about whom the proposal was presented to on 25 February 2014.

    [5] Affidavit of Stephen Gibson filed on 31 July 2015 (Exhibit R6) at [4] to [7].

13. By correspondence dated 27 February 2014, signed by Mr Sam Schwarz (then) Director, Human Resources,[6] the Applicant is informed under the heading “Variation to Employment”:

    “I am pleased to confirm your appointment to the Face to Face [sic] Field team. Please refer to the table below for additional detail.”

    [6] Annexure JH1, Applicant’s affidavit filed on 23 April 2015 (Exhibit A1).

14. The table sets out a comparison between the Applicant’s Previous Role and New Role, according to specific characteristics. It describes her Role as Project Director Customised under both headings. This description is incorrect, as the Applicant’s previous role was NCOD. No change is recorded for the Applicant’s Division or Department, those being respectively described as Operations and Data Capture. The Applicant’s reporting line is changed from Gordon MacMillan, General Manager, Operations, to Dario Trifkovic, Face to Face [sic] Field Director and her Team is changed from Customised to Face to Face [sic] Field.

15. Correspondence dated 26 March 2014 and signed by Mr Schwarz was sent to the Applicant in the same terms as the correspondence dated 27 February 2014, except that the Applicant’s “Previous Role” is now described as “Project Director Customised” and her “New Role” is now described as NCOD.[7] 

    [7] Annexure JJ1, Affidavit of Jill Jepson filed on 31 July 2015 (Exhibit R1).

16. On 31 March 2014, the Applicant emails Mr MacMillan.[8] In this email she states as follows:

    [8] Annexure JH3, Applicant’s affidavit filed on 23 April 2015 (Exhibit A1).

    “As discussed, I’m due to return to work in early July 2014. Whilst I’m not really in a position to finalise plans for this just yet, I thought I’d propose that we could take advantage of the ‘keeping in touch’ days whilst I’m on maternity leave. As I understand it the act allows for 10 paid days in the office whilst the maternity leave continues.

    I’ve been advised (by Sam) that there have been many changes since I went on leave and thought this might be a good way to get my finger back on the pulse.

    …

    I’ve also copied Dario as I’ve been advised that I now report to him.”

17. On or about 15 April 2014, Mr Trifkovic contacted the Applicant, advising her that Mr Gibson, Chief Operations Officer, had given approval for her to complete some Keeping In Touch Days.

18. On 29 April 2014, the Applicant attended for her first Keeping In Touch day and met with Mr Schwarz, who showed her details of the new company restructure, which he subsequently emailed to her. The document he emailed is entitled “Proposed Company Structure, April 2014, v2.15”.[9] This document is in a PowerPoint format. At slide 14 of this PowerPoint is the heading “Proposed Operations Team”. The COO is Stephen Gibson. One of the seven Divisions below Mr Gibson, is a Division, “Face-to-Face FIELD”, with Mr Trifkovic identified as the Director. Another division is called “Acting Project Director Customised Operations”, with Mr Wilson identified as the Acting Director. At slide 18 of this PowerPoint is a heading “Proposed Face-to-Face Field Team Operations”. The Director is identified as Mr Trifkovic. There are four reporting Divisions to Mr Trifkovic, one of which is called “Customised”. The Applicant is located in this Division and her role is described as “Project Director Customised”. There are no persons reporting directly to the Applicant.

    [9] Annexure JH4, Applicant’s affidavit filed on 23 April 2015 (Exhibit A1).

19. On 5 May 2014, the Applicant met with Mr Trifkovic and Mr Gibson. Later on that same day, the Applicant met with Ms Katiforis and Ms Schwensen, both Managers of the newly created Research Centre.

20. On 5 May 2014, Ms Katiforis emails the Applicant stating, “Thanks for coming in for the chat. Here are the Position descriptions as discussed.” Attached to that email are copies of position descriptions for a Senior Project Manager, (classification 10) reporting to the Research Director, a Project Manager, (classification 8), and a Project Director, (classification 11), reporting to the Research Director.[10]

    [10] Annexure  JH5, Applicant’s affidavit filed on 23 April 2015 (Exhibit A1).

21. On 7 May 2014, the Applicant emails Mr Schwarz attaching her request for a temporary flexible working arrangement, pursuant to s.65 of the Act. [11]

    [11] Annexure  JH6, Applicant’s affidavit filed on 23 April 2015 (Exhibit A1).

22. On 26 May 2014, Mr Schwarz emailed Ms Levine stating:[12]

    “Please note the attached proposal for redundancy for the National Customised Operations Director role.

    Can you approve/or not [approve] this proposal. If approved I will meet with (the Applicant) to discuss the proposal to make her role redundant. She will then have a little time to provide feedback after which I will come back to you for a decision about the future of [the] role.”

    [12] Annexure JJ2, Affidavit of Jill Jepson filed on 31 July 2015 (Exhibit R1).

23. The attached redundancy proposal was emailed on 13 May 2014 by Mr Schwarz to Mr James Yeatman, In-House Legal Counsel and to Ms Jill Jepson, Head of Corporate Services. Mr Yeatman emailed Mr Schwarz on 26 May 2014 stating that, “I am fine with this proposal”, after which the proposal was emailed to Ms Levine.

24. The redundancy proposal commences by setting out details of the Applicant’s previous title/role and the role listed on the organisation chart. It then sets out in tabular form, ten tasks from the Applicant’s NCOD position description, with the percentage of time spent by the Applicant on these tasks. The redundancy proposal then sets out what has changed in the role, in respect of each of the identified tasks. The redundancy proposal then states:

    “1.    The National Customised Operations Director role is the most senior of the Customised Operations group.

    2.  Due to (the Applicant’s) current parental leave status, the role is currently filled in an acting capacity by Euan Wilson. Euan is seconded to the role until 31 July 2014.

    3.  All duties of the National Customised Operations Director role will cease at the conclusion of the current “Ten to Men” customised project, scheduled to end by 31 July 2014.

    How does the change impact the role?

    It is proposed that the role is made redundant at the end of July 2014. However, (the Applicant) has requested a FWA to commence 2 July 2014 with a RTW proposal of 20 hrs p/wk. Given this, it is most sensible to maintain Euan in the role in an acting capacity and to make the role redundant now, so that we can immediately discuss redeployment opportunities with (the Applicant) that might best suit her FWA request.

    …

    Legal Counsel:

    James Yeatman is ok with this proposal….

    CEO Decision:

    [Michele Levine to approve]”

25. On 27 May 2014, Mr Schwarz emailed the Applicant stating:[13]

    “As discussed over the past few days, there is a proposal to make your role redundant. With that in mind, and until you are consulted and decisions made, I am not able [to] approve your request for a part-time return to work in July 2014 as I do not know which role you may, or may not be undertaking.

    However, after our consultation with you has concluded and we have resolved your work and role status, I am happy to consider your request at that time.

    I will be in touch tomorrow to arrange the first of our consultation meetings about the proposal to make your role redundant.”

    [13] Annexure JH7, Applicant’s affidavit filed on 23 April 2015 (Exhibit A1).

26. On 4 June 2014, the Applicant met with Mr Schwarz and was given a letter dated 4 June 2014 and signed by Mr Schwarz, which was headed, “Proposal for Role Redundancy”. In that letter Mr Schwarz stated:[14]

    [14] Annexure JH8, Applicant’s affidavit filed on 23 April 2015 (Exhibit A1).

    “Thank you for meeting with me today to discuss the proposal to make the National Customised Operations Director (previous title)/Project Director Customised Operations (as now listed on the Organisation Chart) role in the Operations department in our Melbourne office redundant. For clarity, whilst there has been a change in role title, the role functions have not changed.

    As outlined in Michele Levine’s (CEO) all staff meeting on 31 October 2013…

    Michele Levine subsequently met with staff on Monday 26 May 2014 to inform them that whilst costs in some areas have reduced, more work was required to reduce costs, and part of this work will involve becoming a leaner organisation. Ms Levine explained that unfortunately, redundancies will be a necessary part of this continued cost reduction work.

    The proposal to make your role redundant is not a reflection on your work performance. The proposal to make your role redundant is due to:

    - A review of the Operations Department has led to the shift of all Customised Operations roles in to the Syndicated Operations team; and

    - The result of this move is to remove duplication of duties across the Customised and Syndicated teams; and

    - All field interviewer management will now be undertaken by one team.

    Before any decision is made about your role which may impact your employment at Roy Morgan Research, as discussed in our meeting today, I would like to first consult with you in order to give you an opportunity to consider the proposal and to provide the Company with your thoughts on the proposal. I would like to hear your views about whether there is anything the Company can do [to] minimise the effect of the proposal on your employment. This may include amending the proposal, so if you think there is [a] commercially and operationally acceptable alternative to making your position redundant, I would welcome your ideas.

    I will meet with you again on Friday 6 June 2014 to hear your thoughts, which I hope you can also provide in writing. If, after considering your input, we proceed with the proposal to make your role redundant for the reasons noted above, you will be offered an opportunity to participate in our redeployment program. I will meet with you again on Tuesday 10 June 2014 after considering your input in order to inform you of the decision regarding your role.

    The following information outlines the Redeployment Program and what will occur if your role is made redundant and you do not find a new role as part of the Redeployment Program.”

1. By correspondence dated 11 June 2014 and signed by Stephanie Graham, Human Resources Officer, the Applicant was informed she would be made redundant effective 27 June 2014.[15]

   [15] Annexure JH9, Applicant’s affidavit filed on 23 April 2015 (Exhibit A1).

The Applicant’s Claims

1. The Applicant makes seven claims of adverse action in the proceedings. In those claims the Applicant refers to her substantive role, this being the position of NCOD, that she held prior to taking maternity leave, which was located in the Customised Team of the Operations Division of the business. She also refers to the restructured role, this being the Project Director Customised located in the Face-to-Face Field Team. The claims are as follows:[16]

   a. Roy Morgan Research contravened s.340 of the FW Act by taking adverse action within the meaning of s.342 for the reason, or for reasons which included the reason, that (the Applicant) had exercised her workplace right to take maternity leave, by not consulting her about changes to her Substantive Role which led to the Restructured Role: Claim [17]-[19] (First Adverse Action );

   b. Roy Morgan Research contravened s.351(1) of the FW Act by taking adverse action within the meaning of s.342 for the reason of, or for reasons which included the reason of, (the Applicant’s) pregnancy, by not consulting her about changes to her Substantive Role which led to the Restructured Role: Claim [20]-[22] (Second Adverse Action );

   c. Roy Morgan Research contravened s.351(1) of the FW Act by taking adverse action within the meaning of s.342 for the reason of, or for reasons which included the reason of, (the Applicant’s) family responsibilities, by not consulting her about changes to her Substantive Role which led to the Restructured Role: Claim [23]-[25] (Third Adverse Action );

   d. Roy Morgan Research contravened s.340 of the FW Act by taking adverse action within the meaning of s.342 for the reason of, or for reasons which included the reason of, that (the Applicant) had exercised her workplace right to take maternity leave, by failing to consult with her about changes to her role and reducing the status of her role: Claim [26]-[28] (Fourth Adverse Action);

   e. Roy Morgan Research contravened s.340 of the FW Act by taking adverse action within the meaning of s.342 for the reason, or for reasons which included the reason, that (the Applicant) had exercised her workplace right to take maternity leave, by not returning (the Applicant) to the Substantive Role or the Restructured Role at the end of her maternity leave: Claim [29]-[31] (Fifth Adverse Action);

   f. Roy Morgan Research took adverse action against (the Applicant) in contravention of s.340 of the FW Act for the reason, or reasons which included the reason, that (the Applicant) had exercised or proposed to exercise her workplace right for the flexible working arrangements request, by withdrawing the Research Centre Positions: Claim [32]-[33] (Sixth Adverse Action);

   g. Roy Morgan Research took adverse action against Ms Heraud in contravention of s.340 of the FW Act for the reason, or reasons which included the reason, that she had exercised or proposed to exercise her workplace right for the flexible working arrangements request, by terminating her employment: Claim [34]-[35] (Seventh Adverse Action).[17]

   [16] Part D, Applicant’s Outline of Submissions filed on 28 August 2015.

   [17] The Applicant refers to this pleaded claim in her written submissions as the "sixth adverse action". I take this to be a mere typographical error and treat this pleading as relating to the Applicant’s claim of a seventh adverse action.

The Law

1. Relevantly, given the issues raised by this Application, the Act prohibits an employer from taking adverse action against its employee, because the employee has exercised or proposes to exercise a ‘workplace right’. The Act also prohibits an employer from taking adverse action against its employee, because of a specified attribute of an employee. Those protections are conferred by ss. 340(1) and 351 of the Act.

2. Section 340(1) of the Act relevantly provides:

   A person must not take adverse action against another person:

   (a)     because the other person:

   (i)     has a workplace right; or

   (ii)     has, or has not, exercised a workplace right; or

   (iii)   proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

   …

3. Section 341(1) of the Act relevantly defines a ‘workplace right’ as:

   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

   …

4. Section 342 of the Act sets out the meaning of ‘adverse action’ and relevantly provides:

   (1)     The following table sets out circumstances in which a person takes adverse action against another person.

Meaning of adverse action
Item	Column 1 Adverse action is taken by ...	Column 2 if ...
1	an employer against an employee	the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee’s prejudice; or (d) discriminates between the employee and other employees of the employer.

…

1. Section 351(1) of the Act protects employees from adverse action based on particular attributes, including “family or carer’s responsibilities” and “pregnancy.” Section 351(1) of the Act provides:

   “An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”

2. With respect to the Applicant’s claimed workplace right, the following provisions under the National Employment Standards (NES) of the Act are relevant.

3. Division 4, Pt.2.2 of the Act deals with requests for flexible working arrangements. Section 65 of the Act relevantly provides:

   Requests for flexible working arrangements

   Employee may request change in working arrangements

   (1)     If:

   (a)     any of the circumstances referred to in subsection (1A) apply to an employee; and

   (b)     the employee would like to change his or her working arrangements because of those circumstances;

   then the employee may request the employer for a change in working arrangements relating to those circumstances.

   Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.

   (1A) The following are the circumstances:

   (a)     the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;

   …

4. Division 5, Pt.2.2 of the Act sets out an employee’s general entitlement to 12 months unpaid parental leave.

5. Section 83 of the Act provides:

   Consultation with employee on unpaid parental leave

   (1) If:

   (a)     an employee is on unpaid parental leave; and

   (b)     the employee's employer makes a decision that will have a significant effect on the status, pay or location of the employee's pre-parental leave position;

   the employer must take all reasonable steps to give the employee information about, and an opportunity to discuss, the effect of the decision on that position.

   (2)     The employee's pre-parental leave position is:

   (a)     unless paragraph (b) applies, the position the employee held before starting the unpaid parental leave; or

   (b)     if, before starting the unpaid parental leave, the employee:

   (i)     was transferred to a safe job because of her pregnancy; or

   (ii)     reduced her working hours due to her pregnancy;

   the position the employee held immediately before that transfer or reduction.

6. Section 84 of the Act provides:

   Return to work guarantee

   On ending unpaid parental leave, an employee is entitled to return to:

   (a)     the employee's pre-parental leave position; or

   (b)     if that position no longer exists--an available position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position.

7. Turning back to Pt.3-1 of the Act, s.360 of the Act provides:

   For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

8. Section 361 of the Act provides:

   (1)     If:

   (a)     in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

   (b)     taking that action for that reason or with that intent would constitute a contravention of this Part;

   it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

   (2)     Subsection (1) does not apply in relation to orders for an interim injunction.

9. The effect of s.361 of the Act is to reverse the legal onus in relation to the reason or reasons for which the adverse action was taken. That is to say, at the end of the trial of fact, the question will be whether the Respondent has established, on the civil standard, that the action taken was not taken for a reason, or for reasons which included a reason, proscribed by the legislation. That question is to be answered by reference to all of the evidence which bears upon it: CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 per Jessup J at [27].

10. Section 361 of the Act comes into operation only after it has been established “that adverse action was taken” and “that a relevant workplace right exists” “as an objective fact”.[18]

    [18] CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 at [76].

11. In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 (“Barclay”), French CJ and Crennan J explained at [21] that:

    Sections 360 and 361, in Div 7 of Pt 3-1, make it easier than it otherwise would be for an employee to establish a contravention of the protective provisions in Pt 3-1, including s 346. Section 360 provides that, for the purposes of Pt 3-1, “a person takes action for a particular reason if the reasons for the action include that reason”. Section 361(1), … casts a burden of proof on an employer to show that it did not take action for a prohibited reason …

12. Gummow and Hayne JJ stated as follows at [127]:

    In determining an application under s 346 [it is necessary 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 [is] to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it [is] the reasons of the decision-maker at the time the adverse action was taken which [is] the focus of the inquiry.

13. In BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCAFC 132, Flick J (with whom Dowsett J agreed) stated at [95]:

    Contrary to the approach of Isaacs J in Pearce, a factor that may “enter ... into the reason[ing]” process of an employer does not constitute a “reason” for the purposes of s 360 if that factor does not amount to “a substantial and operative reason” for the taking of adverse action. The fact-finding task imposed by s 346 is to filter out those factors that may have passed through the mind of an employer and to determine what was the “substantial and operative” reason or reasons for taking adverse action. If any one of those “substantial and operative” reasons was a proscribed reason, s 360 operates to confirm that the taking of action for that reason is prohibited.

14. The principles In Barclay were summarised, as follows, by the Full Court of the Federal Court of Australia in State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32]:

    …

    -   The central question to be determined is one of fact. It is: “Why was the adverse action taken?”

    -   That question is to be answered having regard to all the facts established in the proceeding.

    -   The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.

    -   It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”

    -   Even if the decision-maker gives evidence that he or she acted solely for non proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.

    -   If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.

Evidence and findings

1. The following persons filed affidavits:

   a)The Applicant filed an affidavit on 23 April 2015 (Exhibit A1) and on 14 August 2015 (Exhibit A2);

   b)Mr Stephen Gibson, Chief Operations Officer of the Respondent filed an affidavit on 31 July 2015 (Exhibit R6);

   c)Ms Jill Jepson, Head of Corporate Services of the Respondent filed an affidavit on 31 July 2015 (Exhibit R1);

   d)Ms Athina Katiforis, Research Centre Manager of the Respondent filed an affidavit on 31 July 2015 (Exhibit R5);

   e)Ms Karen Schwensen, Research Centre Manager of the Respondent filed an affidavit on 31 July 2015 (Exhibit R7);

   f)Mr Dario Trifkovic, Face-to-Face Field Director of the Respondent filed an affidavit on 31 July 2015 (Exhibit R9); and

   g)Mr Euan Wilson, Head of Call Centre Operations of the Respondent filed an affidavit on 31 July 2015 (Exhibit R8).

2. All those who filed affidavits, except for Mr Trifkovic, were cross-examined.

3. The parties tendered exhibits:

   a)A3 – Bundle of documents containing copies of job applications by Applicant;

   b)A4 – Copies of Applicant’s PAYG payment summary for year ending 30 June 2015 and payslips from AKA Promotions (Australia) Pty Ltd;

   c)A5 – copy of  “Ten to Men” Technical Report 2014;

   d)A6 – copy of  Respondent’s Parental Leave Notification Form;

   e)A7 –  copy of  LinkedIn profile of Euan Wilson;

   f)R2 – Record of Activity of emails attaching Respondent’s Omnibus Newsletter sent to Applicant’s email account;

   g)R3 – Record of Departures of Respondent’s Employees from 1 July 2013/2014; and

   h)R4 – Respondent’s 2014-2015 report to Workplace Gender Equality Agency.

4. I found the Applicant to be a credible witness, she gave her evidence in a straightforward and responsive manner. The Respondent’s witnesses were generally credible.

5. According to Ms Jepson, Ms Michele Levine, the Chief Executive Officer of the Respondent, was the decision-maker with respect to decisions affecting the Applicant’s employment. There were key persons who, in my view, would have been able to give relevant evidence on the matters in dispute and who were not called by the Respondent as witnesses. These were:

   a)Ms Michele Levine, Chief Executive Officer of the Respondent;

   b)Mr Sam Schwarz, who was the Human Resources Director of the Respondent for most of the relevant time; and

   c)Mr Gordon MacMillan, who was General Manager, Operations of the Respondent for some of the relevant time period.

6. It is obvious that Mr Schwarz and Mr MacMillan no longer work for the Respondent. However, no explanation was provided to the Court why either of these individuals were not called to give evidence.

7. I have set out the evidence of the witnesses around events or dates relevant to the issues in dispute before the Court.

The Position of National Customised Operations Director

1. The Applicant’s formal qualifications are a Certificate IV in Business Management and a Certificate III in Information Technology Network Administration. The Applicant deposed that prior to her employment with the Respondent, she was employed by Hoed Research and Colmar Brunton. She said that she was employed as Operations Director by Colmar Brunton and her position involved managing field operations, putting together proposals and on occasions liaising with clients.

2. The Applicant gave evidence that during her employment with Hoed Research she was involved in the establishment and then management of a call centre.

3. The Applicant’s evidence is that the role of NCOD involved customised, ad hoc market research. She reported to Gordon MacMillan, then General Manager – Operations and managed project managers of field operations.

4. At the time she commenced employment with the Respondent, the Applicant was engaged in large customised projects; these being, “Ten to Men”, a National Drug Survey and a project called “Young Minds Matter”. She said that she was employed to oversee the field managers of these projects and to improve the efficiency of the projects.

5. Ms Schwensen gave evidence regarding the creation of a customised proposal, the collection of the data, the analysis and the final research product. She said that the first step was the preparation of a proposal, having regard to a client’s needs, including methodology (such as questionnaire design, sampling, weighting and design) and budgetary considerations. Once this proposal was complete, the next step was the operationalisation of the project. This was the area the Applicant was involved in. She says that this involved the implementation of the proposal for the collation of data and ensuring the capturing of data was undertaken in the correct manner. She says this necessitated iteration between those involved in the preparation of the proposal and the Applicant, regarding any issues that may have emerged. The collected data would then be processed into the Respondent’s database (Asteroid). The analysis of this data and its presentation into a research product is then prepared by another division of the Respondent’s business.

6. The Applicant agreed that a table included in the redundancy proposal, prepared by Mr Schwarz and emailed to Ms Levine on 26 May 2014, reflected the responsibilities and duties of her position and the proportion of time she spent on these. The table is as follows:[19]

   [19] Annexure  JJ2, Affidavit of Jill Jepson filed on 31 July 2015 (Exhibit R1).

Duties:

Approx % of Time (each week)

1. Responsible for all operational outcomes on Roy Morgan Research Customised (ad hoc) projects nationally. (This excludes ‘Large Government Quant’ projects that require a team based structure)

Manages planning and implementation of commissioned projects as per schedule and timetabling from Customised Client Services.

    10%

2. Manage and develop a team of project managers who have a holistic responsibly [sic] for operational outcomes.

This involves both full time and casual staff dependent on project scope.

     35%

3. Co-ordinate and build on the existing operations to ensure a cohesive approach to customized [sic] field work which produces premium quality work to budget, on time and to specification.

     10%

4. To retain the integrity of the sample, ensure that interviewing quotas are controlled and achieved and completion rates are monitored and reported as requested by the GM – Operations

Review as required, with field staff, field performance and any corrective action required to achieve the necessary sample and quotas.

      10%

5. Ensure that interviewing staff have adequate equipment, materials and training to complete the field work to a world class standard.

Dependent on the specific needs of the project organise through the field project staff the necessary work related support to ensure interviewers will perform as required.

       7.5%

6. Work with Operations and research teams to develop new methodologies and techniques to incorporate into the Customised repertoire.

Make recommendations on best practice to complete specific projects.

       5%

7. Feedback to the business in a constructive and evidenced based manner on issues that are impacting completion rates both internal (Eg, length of survey, structure of questionnaires) or external, (cultural or technological shifts, weather etc)

Perform debriefing sessions, with relevant parties, as necessary.

      7.5%

8. Work with the GM – Ops, and the national field systems director and the finance team to develop metrics and tools to accurately measure the progress of operation projects and expenditure.

Where possible/appropriate measure actual costs vs budget and take/recommend appropriate action as necessary.

      5%

9. Work closely with operational departmental managers to improve measurement of performance.

Identify improvements in current work processes and reporting systems.

       5%

10. Work with research teams to develop responses to proposals that a (sic) cost effective and address the needs of the client.

Consult and input into costs through planning and pre project meetings.

       5%

1. In cross-examination, the Applicant agreed that she did not have qualifications in psychology or statistics, nor did she have detailed skills in questionnaire design, sampling, weighting design, and data analysis. She said, however, that she needed to have an understanding of areas such as the methodology of questionnaire design being utilised in the field in order to perform her job. She said that she learned the skills on-the-job. She also said that her former position with Hoed Research, as the Head of a call centre, required knowledge and skills in statistical analysis.

The Respondent’s business in 2013

1. Ms Jepson gave evidence that in 2013, the Respondent lost major clients, which had a significant effect on the company’s profitability. In particular, the Respondent lost News Ltd as a client. That resulted in a net loss to the business for the 2013/14 financial year in the vicinity of $8 million. Further, the three customised projects, Young Minds Matter, Ten to Men and the National Drug Survey, which were worth about $12 million in revenue, being completed over 2014. In addition, a new competitor called Newspaper Works was launched in September 2013, resulting in the loss of business from Fairfax as well. She stated that the wages bill, as a proportion of the Respondent’s overall total expenses, was around 70% and that in order to survive, the Respondent needed to reduce its wages bill to around $20 million from $32 million.

2. On 31 October 2013, Ms Levine addressed the Respondent’s staff about the need to reduce costs and work smarter in order to return the firm to profitability.

3. Ms Jepson stated that on 6 June 2014, Mr Schwarz left the business and following his departure she took over responsibility for all Human Resources matters, until the appointment of a Human Resources Manager in July 2014. She stated she was involved in the final stages of the redundancy of the Applicant’s position at the Respondent after Mr Schwarz departed.

4. As noted above, in late January 2014, Mr Gibson, Mr Duve and Mr MacMillan prepared a proposed new structure for the Respondent’s organisation, which was taken to an Executive meeting on 3 February 2014. This proposal was approved in a slightly changed form. The changes made at the Executive meeting affected reporting lines. The proposed structure for Operations, as approved at the Executive meeting on 3 February 2014, was presented to the company on 25 February 2014.[20]  No evidence was given about the composition of the Executive meeting or the presentation to the company. There is no evidence, therefore, before the Court about who approved the proposed restructure, which formed the basis for the correspondence then sent to the Applicant dated 27 February 2014, signed by Mr Schwarz, advising her of the variation to her employment .[21]

   [20] Affidavit of Stephen Gibson filed on 31 July 2015 at [4] to [7] (Exhibit R6).

   [21] Annexure JH1, Applicant’s affidavit filed on 23 April 2015 (Exhibit A1).

The period from February 2014 to March 2014

1. The Applicant says that she received the correspondence from Mr Schwarz dated 27 February 2014 (see [19] above) on 26 March 2014, because she was on holiday and away from home until that time. She says that she telephoned Mr Schwarz on or about 26 March 2014, informing him that the description of her current role as Project Director Customised was incorrect.

2. The Applicant says this was the first time she was aware that the organisation was proposing to undertake a restructure of its business.

3. Ms Jepson stated that she was aware that the Applicant had a social acquaintance with Mr Trifkovic and Mr Wilson, both of whom were former employees of Colmar Brunton. Ms Jepson’s belief is that the Applicant would have been informed by these people about the changes occurring at the company, as a result of the loss of major clients and the economic and structural challenges facing the company. The Applicant stated that none of these people alerted her to the restructuring of the company and the staff meetings about the proposed restructure. Her evidence was that the conversations were limited to personal matters, such as how her newborn baby was going and so forth.

4. Ms Jepson also relies on records of emails sent by the Respondent to the Applicant’s personal email address, attaching copies of its Omnibus Newsletter (Exhibit R2). I am satisfied that this record is a record of the dates when the Applicant opened the emails, attaching copies of the Omnibus Newsletter sent to her personal email address. Exhibit R2 shows that the date of the email attaching the first Omnibus Newsletter sent to the Applicant’s email address, whilst she was on maternity leave, was opened by the Applicant on 19 December 2013. It does not specify which Omnibus Newsletter was attached to that email. The only version of the Omnibus Newsletter before the Court is the October 2013 Omnibus Newsletter produced by the Applicant.[22]

   [22] Annexure JH2.4, Applicant’s affidavit filed on 14 August 2015 (Exhibit A2).

5. The Applicant maintains that her appointment, effective 3 March 2014, to the position of Project Director Customised involved a significant change in her role, this being her reporting lines. She said prior to the appointment to Project Director Customised, she reported to Mr MacMillan, General Manager – Operations. However, following the appointment, she was reporting to Mr Trifkovic, who previously was employed at a level below her. Further, she argues, those persons who previously reported to her as NCOD, now reported to Mr Trifkovic and were placed at the same level as her. She maintains that this appointment resulted in her dropping a level in the reporting line and amounted to a demotion.

6. She said that she telephoned Mr Schwarz on 26 March 2014, stating that the change to the reporting lines for her role was effectively a demotion. She says that Mr Schwarz denied this, stating that Mr Trifkovic had been promoted to a position above her.

7. She said that she then spoke to Mr Trifkovic that day and he informed her that he had not been promoted, but that his reporting lines had simply been changed and he would now report to Mr Gibson. In his affidavit, Mr Trifkovic confirms the content of this conversation.

8. Mr Gibson’s evidence is that the effect of the new structure was that people’s roles remained the same, but the reporting lines changed. He stated that the only change to the Applicant’s role arising from the restructure was her reporting line. He maintains that the Applicant’s “role was not demoted in terms of title, responsibilities or remuneration.”[23]

   [23] Stephen Gibson’s affidavit filed on 31 July 2015 at [10] (Exhibit R6).

9. Ms Jepson maintains that the letter dated 27 February 2014, sent by Mr Schwarz to the Applicant incorrectly reflected the Applicant’s role and she relies on a subsequent letter dated 26 March 2014 signed by Mr Schwarz, which the Applicant denied she received. As I have noted, this correspondence describes the Applicant’s “Previous Role” as “Project Director Customised” and her “New Role” is now described as NCOD.[24] This description of the Applicant’s roles is clearly once again incorrect.

   [24] Annexure JJ1, Affidavit of Jill Jepson filed on 31 July 2015 (Exhibit R1).

10. Ms Jepson’s evidence is also that Mr Schwarz’s letter did no more than change the Applicant’s reporting lines.

April 2014

1. Following a request by the Applicant to Mr MacMillan to engage in some Keeping In Touch Days, she was telephoned by Mr Trifkovic, who arranged for her to attend the Respondent’s premises on 29 April 2014 for the first of her Keeping In Touch Days.

2. The Applicant’s evidence is that she met with Mr Schwarz on that day and he showed her details of the new company structure (see [24] above). The Applicant stated that, at her meeting with Mr Schwarz, he advised her that the role of Project Director Customised was now under review, as there had been less than anticipated customised work coming through in 2014. He advised her that the company was shedding positions and said, words to the effect that, she would be wise to begin looking elsewhere for work prior to her return. She said that when she asked if I “should be concerned” about continuing in employment with the company, he said “Yes”. She said she then discussed with him what a redundancy payment would be for her.

3. Mr Gibson confirmed that the Applicant’s restructured role was under review at that time, as there had been less than expected customised work coming through in 2014.

4. The Applicant stated that she then met with Mr MacMillan, who was her direct manager. She said that he told her the company had lost a big client and as a result he was not sure what her role would be when she returned to work. She said he told her she should speak to Mr Gibson, but that Mr Gibson was not available on that day.

May 2014 Meetings

1. The Applicant’s evidence is that at the meeting with Mr Gibson and Mr Trifkovic held on 5 May 2014, Mr Gibson advised her that:[25]

   a)     the Data Capture department (that I sat within for my original role and the Restructure role) was now closed. As a result I had been “temporarily” put into the Face-to-Face field team so that I did not fall off the Organisational Chart whilst I was on maternity leave. However, during the Restructure the company had always intended for me to eventually move into a newly created department, the Research Centre; and

   b)     The company was not able to advise me of the decisions that had been made concerning my role because I was on maternity leave.

   [25] Applicant’s affidavit filed on 23 April 2015 at [21] (Exhibit A1).

2. The Applicant said that she told Mr Gibson and Mr Trifkovic that she was disappointed she was not consulted during any restructure discussions, as she was a Director in the team and these changes had a direct impact on her role. She said that Mr Gibson agreed that it was unfortunate that she had not been consulted and stated that she “had not been contacted because I was on maternity leave.”  

3. The Applicant said that Mr Gibson informed her that Ms Katiforis and Ms Schwensen would head the Research Centre Department. He also stated that Ms Katiforis was aware of the proposal for the Applicant  to join the Research Centre, although he had not discussed this with Ms Katiforis since February 2014.

4. Mr Gibson denied that he told the Applicant that the Data Capture Department was closed. He deposed that he said that the “Data Capture no longer had a “title” on the organisational chart, but the roles, and function of the roles, continued.”[26] Mr Gibson agreed that he told the Applicant “that her role was temporarily placed within the Face-to-Face field team”.[27]

   [26] Stephen Gibson’s affidavit filed on 31 July 2015 at [13] (Exhibit R6).

   [27] Ibid.

5. Mr Gibson also confirmed that he was of the view that given the type of role the Applicant held, she should be placed within the newly created Research Centre and that this was something he wanted to speak to the Applicant about, and for her to speak to Ms Katiforis and Ms Schwensen about this.

6. Mr Gibson denied that he told the Applicant that the Respondent did not consult with her about the decisions to be made, because she was on maternity leave.

7. Mr Trifkovic confirmed Mr Gibson’s evidence that he said that the Data Capture Department no longer had a title on the organisation chart and that the same people who were previously doing Data Capture continued to do the same duties, although in different reporting lines. He further confirmed that Mr Gibson told the Applicant that her role had temporarily been placed within the Face-to-Face field team. Mr Trifkovic said:[28]

   “Mr Gibson also informed Ms Heraud that it was his vision that her role should be placed within the newly created Research Centre, and this was something she should speak to Athina Katiforis and Karen Schwensen about.”

   [28] Dario Trifkovic’s affidavit filed on 31 July 2015 at [5] (Exhibit R9).

8. Following the meeting with Mr Trifkovic and Mr Gibson, the Applicant went, accompanied by Mr Trifkovic, to meet with Ms Katiforis and Ms Schwensen. The Applicant’s evidence about this meeting held on 5 May 2014 is that:

   a)Ms Katiforis and Ms Schwensen were aware of the proposal for her to eventually move from the Face-to-Face field team and join the Research Centre;

   b)Ms Katiforis stated that there were three positions currently available within the Research Centre, and that all roles would be suitable, depending on the level of commitment the Applicant was willing to make upon her return. The Applicant was told that any of the three roles would be ideal for a new parent as the Respondent would be happy for her to do some hours of work from home;

   c)Ms Katiforis stated she would email her the position descriptions of the three roles, so that she could review each one and decide which was closest aligned to her availability;

   d)Ms Katiforis suggested that the Applicant might be best to return in the position of Project Manager (category 8) so that she could become familiar with the project process;

   e)Ms Katiforis then asked the Applicant how many days she would be returning to work. The Applicant said she was not sure at this time, as she did not know what role she was returning to; and

   f)Ms Katiforis stated that depending on her level of commitment, being how many hours she could work, the Respondent would need to match her role accordingly. Ms Katiforis said that it would be difficult for the Applicant to work in the role of Project Director, if she was not working full-time hours.

9. Ms Katiforis’ evidence is that:

   a)after she returned from leave in early 2014, and following discussions with Ms Schwensen, she became aware that the Applicant was one of the staff members potentially being considered for redeployment to the Research Centre;

   b)there were three types of positions in the Research Centre relating to project management: Project Director, Senior Project Manager and Project Manager;

   c)as she was aware the Applicant had project management experience, she thought that the Project Manager position would be suitable for her, as she did not know the extent of the Applicant’s specific market research skills, which would be increasingly necessary and important for the Senior Project Manager and Project Director positions;

   d)she expressed her opinion to the Applicant that she thought the Project Manager position would be in line with some of her skills and told the Applicant she did not think that she had the research skills and experience to perform the duties of the Senior Project Manager and Project Director;

   e)the Applicant appeared reluctant to consider the Project Manager position; and

   f)the outcome of the meeting was that the Applicant, having been made aware of her opinion about her lack of market research experience, was to consider which of the positions she thought she had the necessary skills and experience to fill. She asked the Applicant to consider the positions and let her know which one of them she thought she would be interested in.

10. Ms Katiforis denied:

    a)that she made any references to the Applicant’s level of commitment, as the Respondent has always had people filling the roles of Senior Project Manager and Project Director positions, whilst working part-time;

    b)that the outcome of the meeting was that the Applicant was to review the three positions to decide which one was closely aligned to her availability; and

    c)the Applicant’s claim that all she had to do was to let her know which role she wanted and she would be given that role.

11. Ms Schwensen’s evidence is that:

    a)during early 2014 she had general discussions with Mr Gibson about moving people from other areas of the Respondent’s business into the Research Centre and one of the people on the list was the Applicant;

    b)the Applicant was asked at the meeting held on 5 May 2014 when she was likely to return to work and, if on a part-time basis, on what days. The Applicant stated that she did not know on what basis she would return to work at that stage;

    c)Both she and Ms Katiforis told the Applicant that they thought the Project Manager position would be in line with the level of the Applicant’s skills. This assessment was based on their evaluation of the skills the Applicant was required to perform in the position of NCOD. Because of the informal nature of the meeting, the Applicant had not brought a resume or summary of her experience;

    d)Ms Katiforis told the Applicant that the more senior roles required increasing levels of market research experience and that as far as she knew the Applicant did not have this experience. She said the Applicant agreed with this;

    e)the Applicant appeared reluctant to consider the Project Manager position;

    f)the potential salary for each of the positions in the Research Centre was not discussed at the meeting. Ms Schwensen presumed the Applicant would remain on her current salary if employed in any of the positions;[29] and

    g)the Applicant asked if she could go away and review all three position descriptions. Ms Katiforis agreed to this request and offered to send the Applicant all three position descriptions so she could consider her suitability for them in her own time, and advise them whether she believed she possessed the skills necessary to fulfil the more senior roles.

    [29] Karen Schwensen’s affidavit filed on 31 July 2015 at [9] (Exhibit R7).

12. Ms Schwensen denied that the outcome of the meeting was that the Applicant was to review the three positions to decide which one was closely aligned to her availability. Ms Schwensen stated that the Applicant “was to review the descriptions to determine which most closely matched her competency.”[30]

    [30] Karen Schwensen’s affidavit filed on 31 July 2015 at [10] (Exhibit R7).

13. Mr Trifkovic stated with respect to the Applicant’s evidence about her meeting with Ms Katiforis and Ms Schwensen:[31]

    “In my opinion, Ms Heraud’s recollection of what was said at the meeting is generally correct. Ms Heraud may have formed the view that she could accept any of the positions offered, and it seemed to me that the issue of Ms Heruad’s redeployment had started, but nothing was agreed in relation to Ms Heraud’s hours of work, and remuneration, or start date were not discussed.”

    [31] Dario Trifkovic’s affidavit filed on 31 July 2015 at [8] (Exhibit R9).

14. There is no dispute that after this meeting no further discussions took place between the Applicant, Ms Schwensen and Ms Katiforis.

15. The Applicant said that she believes that had she been involved in the meetings held with staff regarding the restructure, she would have had the opportunity to transition into positions in the Research Centre, as she would have had a better opportunity to discuss her strengths and weaknesses with Ms Katiforis.

16. Cross-examination of the Applicant focused on her formal qualifications, the skills exercised in her position as NCOD and in her employment before commencing with the Respondent. The Applicant agreed that she did not have tertiary degrees in statistics or psychology. It was put to the Applicant that she did not have skills in the areas of questionnaire design, sampling, weighting design, data analysis and liaising with clients. The Applicant responded that she did not have skills in weighting design, but maintained that she had acquired knowledge of the other areas, on-the-job. She stated that she acquired these skills, as she needed to have an understanding of those areas in the discharge of the role as NCOD. She also said that she acquired skills of statistical analysis in her position of Call Centre Manager at Hoed Research.

17. Ms Jepson was cross-examined on Exhibit R3, which sets out in tabular form details of departures by staff from the Respondent from 1 July 2013/2014. The table records the name of the staff member, the reason for departure, the Department in which the staff member was located and his/her role, as well as the start and end date of employment with the Respondent. The Applicant is listed in that table. The reason for her departure is recorded as redundancy. The Department in which she was located is specified as Research Centre and her role is described as Maternity Leave.

1. Ms Jepson gave evidence that the Applicant was identified in the table as being located in the Research Centre, because she had had discussions with Ms Schwensen and Ms Katiforis to see whether there was any interest in retraining. Ms Jepson conceded that there was a possibility the Applicant might return to the Research Centre at the end of her maternity leave, but that her position had been made redundant. In reply, Ms Jepson stated that the retraining or extra training would be contemplated for positions anywhere in the spectrum of Project Manager to Project Director.

May 2014 - Flexibility Work Arrangement Request

1. The Applicant says that after she made a request for flexible work arrangements in the email sent to Mr Schwarz on 7 May 2014, she received an email from him on 8 May 2014 asking her details about what days she wanted to work.

2. The Applicant’s evidence is that on or about 12 May 2014, she telephoned Mr Schwarz regarding his email dated 8 May 2014, advising him that she was having difficulty selecting what days to work because:[32]

   [32] Applicant’s affidavit filed on 23 April 2015 at [32] (Exhibit A1).

   a)     Ms Katiforis has expressed her preference that I take a position three pay grades below my role of National Customised Operations Director; and

   b)     Mr Gibson had taken little interest in assisting me with my return to work.

3. The Applicant stated Mr Schwarz expressed concern over the handling of her position by Mr Gibson and Ms Katiforis and told her not to have any further contact with Ms Katiforis. The Applicant stated that Mr Schwarz then informed her that there had been a discussion within the company that her role was to be made redundant, that she would be offered redeployment options as part of the redundancy process, though these positions would not be at her current salary and that she would receive a response to her request for flexible work arrangements within 21 days.

4. The Applicant said that, on 20 May 2014, Mr Schwarz telephoned her and advised her that next week he would be having a conversation with Ms Levine about the formal redundancy of her role. The Applicant said Mr Schwarz informed her that Ms Levine had shifted her view on her role and that a large number of roles were to be made redundant across the business. As a result, roles at the Research Centre would not be offered to her. Instead, she would be offered current vacancies in the company, which Mr Schwarz described briefly. She stated that Mr Schwarz told her that an alternative was for her to sign a separation agreement, under which she would receive the same payout as that for redundancy. She said she asked Mr Schwarz why she would do this, as she had not done anything wrong. She said that he replied that the separation agreement would be “more respectful, cleaner and quicker”.

5. On 27 May 2014, Mr Schwarz emailed the Applicant regarding her request for flexible work arrangements (see [31] above), stating:[33]

   “…I am not able [to] approve your request for a part-time return to work in July 2014 as I do not know which role you may, or may not be undertaking.”

   [33] Annexure JH7, Applicant’s affidavit filed on 23 April 2015 (Exhibit A1).

6. Ms Jepson was cross-examined on the email by Mr Schwarz on 26 May 2014 to Ms Levine.[34] With respect to the following extract:

   How does the change impact the role?

   It is proposed that the role is made redundant at the end of July 2014. However, (the Applicant) has requested a FWA to commence 2 July 2014 with a RTW proposal of 20 hrs p/wk. Given this, it is most sensible to maintain Euan in the role in an acting capacity and to make the role redundant now, so that we can immediately discuss redeployment opportunities with (the Applicant) that might best suit her FWA request.

   Ms Jepson conceded that a reason for bringing forward the Applicant’s redundancy and keeping Mr Wilson in the NCOD role in an acting capacity, was that the Applicant had made a request for flexible working arrangements.

   [34] Annexure JJ2, Jill Jepson’s affidavit filed on 31 July 2015 (Exhibit R1).

The Redundancy

1. At a meeting with Mr Schwarz held on 5 June 2014, the Applicant is given the letter, dated 4 June 2014, signed by Mr Schwarz

2. Ms Jepson stated that she was involved in the final stages of the redundancy of the Applicant. She stated that in or around May 2014, Mr Schwarz was reporting to her, but that all decisions for redundancy in the corporate restructure were made by Michele Levine, CEO of the organisation.

3. Ms Jepson asserts that at no time prior to the termination of the Applicant’s employment, following her return to the Respondent for Keeping in Touch Days, did the Applicant “give any indication to Roy Morgan of her preferred working days or hours upon her return to work.”[35] She said that because of this the Respondent was “hamstrung in its ability to make any commitment to (the Applicant) about opportunities in other roles while she was unable to indicate her availability.”[36] Ms Jepson did concede in cross-examination that the Applicant had given an indication of the hours she would work.

   [35] Jill Jepson’s affidavit filed on 31 July 2015 at [20] (Exhibit R1).

   [36] Jill Jepson’s affidavit filed on 31 July 2015 at [20] (Exhibit R1).

4. Ms Jepson stated that the Applicant’s dismissal, as a result a redundancy, was due to restructure of the business and was in no way due to any conduct on the Applicant’s part. She further stated the Applicant was a valued member of the Respondent and would be welcomed back if she wished to apply for, and was offered, a new position.

5. It is not clear from the evidence whether or not the meeting proposed by Mr Schwarz for 6 June 2014 went ahead. What is clear is that correspondence terminating the Applicant’s employment was signed by a person from the HR Department, not Mr Schwarz.

6. The Applicant claims that her position of NCOD was not made redundant until after she was terminated.

7. The Applicant’s evidence is that Mr Wilson, who was employed to temporarily fill her role whilst she was on maternity leave, continued in her role for approximately 3 months after her restructured role was made redundant.

8. Ms Jepson confirmed the statement in the proposal for redundancy (Annexure JJ2, Exhibit R1) that given the Applicant had applied for a flexible working arrangement, it was more sensible for Mr Wilson to remain in the Applicant’s position of NCOD. Ms Jepson explained that the logic behind that was that Mr Wilson was holding that role in an acting capacity to complete a particular project, being the Ten to Men project, which they were aware was coming to a conclusion and that it did not make sense, for the continuity of work, to bring in somebody else to finish that job, for that short period of time. Secondly, she stated the Respondent was trying to be more proactive, so that if people were coming back into a new position in the organisation, the Respondent could start people afresh in their new position, rather than having to swap and change them around the organisation.

9. Mr Wilson deposed that he remained in the role, formerly held by the Applicant, until the end of July 2014. In cross-examination he agreed, having regard to a printout from his LinkedIn profile (Exhibit A7), that he worked in the Applicant’s role up until 31 August 2014. Mr Wilson said that following discussions with Mr Gibson, he was offered and accepted the position as Operations Executive, reporting to Mr Gibson. This position involved managing two large customised projects, which had been commissioned. He said that he held this position for around 1 ½ months. With respect to his statement on his LinkedIn profile, that he worked in that position for five months, Mr Wilson stated that he put that timeline in, because he was still managing customised projects when he moved into his next role. He said he continued managing these projects until December 2014. He agreed, based on his knowledge of the Applicant’s role, that she would have been capable of filling the Operations Executive position.

10. Mr Wilson said that he was subsequently offered the position of Head of Call Centre Operations and is presently employed in this role. He gave evidence, in reply, that he had previous experience in CATI, but not call centres.

11. The Applicant stated that she was never made aware during the period leading up to her redundancy that:

    a)the client had extended the time line for the “Ten to Men” project;

    b)there was an opportunity for employment as an Operations Executive; or

    c)there was an opportunity for employment as a Call Centre Manager.

12. The Applicant stated that after she was made redundant, on 29 October 2014, the Respondent advertised externally, a new position in the Research Centre, this being Research Director.[37] The advertisement specified that an Applicant would be required to possess, inter-alia:

    -   Significant research knowledge and understanding with proven experience leading large scale commercial and social research projects with a deep understanding of research methods.

    -   Excellent research practitioner with practical and theoretical knowledge of sampling and weighting design, questionnaire design and data capture approaches.

    [37] Annexure JH3.1, Applicant’s affidavit filed on 14 August 2015 (Exhibit A2).

13. Ms Schwensen was asked to comment on the Applicant’s evidence regarding her knowledge, skills and experience. Commenting on the Applicant’s evidence regarding the statistical skills she acquired whilst Manager of the Call Centre at Hoed Research and as NCOD, Ms Schwensen stated the statistical skills required in the research function were those involved in multi-variant analysis or regression analysis. She opined that these were not the skills the Applicant had stated she acquired from her previous employment experience.

Consideration

1. Before considering each of the claims of adverse action, it is appropriate to deal with general submissions made by the Respondent in its outline of submissions and its post-trial submissions.

2. The Respondent submits that the restructuring of the organisation, which occurred over the period between late 2013 and 2014, was a genuine response by it to very significant external factors, which had developed over 2013. As a consequence of these external factors, (see [67] above), the Respondent engaged in restructuring its business, which led to redundancies of a number of its employees. In addition, the restructuring was an attempt by the Respondent to return to a former model, which had previously been effective, the consequence of which was to remove a line of management, which the Applicant had occupied prior to going on maternity leave.

3. The Court accepts that the Respondent was confronted with significant external factors, which impacted upon its profitability and viability, and that it engaged in a process of restructuring the organisation. The Court further accepts that it is the prerogative of an employer to rearrange its organisational structure, to reorganise positions and the skills, responsibilities and duties, which comprise that position, and redistribute these amongst other employees: Jones v Department of Energy and Minerals (1995) 60 IR 304.

4. The dispute in these proceedings is not about whether or not the restructuring of the Respondent’s organisation was genuine or indeed whether the Respondent engaged in a process resulting in redundancies of its employees. The questions the Court must address are whether, as pleaded by the Applicant, in each of the alleged claims of adverse action, there was objectively on the facts, adverse action and workplace rights. If this is established by the Applicant, then the Court must then decide whether the Respondent has discharged the reverse onus, in accordance with s.361 of the Act.

5. The Respondent was at pains, in its evidence and submissions, to emphasise that it had an established record of promoting equality in the workplace. Ms Jepson gave evidence about the numbers of women employed in senior positions and the Respondent’s impeccable conduct accommodating female staff, who wished to work flexibly, because of their family responsibilities. I accept the evidence of the Respondent in this respect. It is not clear whether the Respondent relies upon this as objective evidence in discharging its legal onus under s.361 of the Act. In any event, the fact is that the dispute in these proceedings is not about whether or not the Respondent is a family friendly company that supports and promotes women. The questions the Court must address are whether, as pleaded by the Applicant, in each of the alleged claims of adverse action, there was objectively on the facts, adverse action and workplace rights. If this is established by the Applicant, then the Court must then decide whether the Respondent has discharged the reverse onus, in accordance with s.361 of the Act.

6. The following findings apply in respect of each claim of adverse action. I find that:

   a)at all relevant times the Respondent was a constitutional corporation, within the meaning of s.12 of the Act;

   b)the Respondent is an employer of employees in Victoria; and

   c)by reason of ss. 14 and 30D of the Act, the Respondent is a national system employer, bound to observe ss. 340 and 351 of the Act.

First Adverse Action

1. The Applicant’s pleadings in relation to the claimed first adverse action are that the Respondent contravened s.340 of the Act by taking adverse action within the meaning of s.342 of the Act for the reason, or for reasons which included a reason, that the Applicant had exercised a workplace right to take maternity leave, by not consulting her about changes to her Substantive Role which led to the Restructured Role: Claim [17] to [19].

2. The Applicant’s written submissions are as follows:

   (i)     prior to going on maternity leave, Ms Heraud’s Substantive Role was National Customer Operations Director: this role was in the Customised Team, Ms Heraud had four direct reports, who were Project Managers, and she reported directly to the General Manager of Operations, Mr MacMillian;

   (ii)     Roy Morgan Research advised Ms Heraud about changes to her Substantive Role, namely that she was to be employed in the Restructured Role, by a letter dated 27 February 2014;

   (iii)   in the Restructured Role, Ms Heraud was in the Face-to-Face Field Team, she reported to Mr Trifkovic, who reported to Mr MacMillian as Ms Heraud had previously, she had moved down a level on the proposed organisational chart and she had no longer had direct reports;

   (iv)    Roy Morgan Research took adverse action against Ms Heraud within the meaning of s.342(1) Item 1(d) by discriminating between Ms Heraud and other employees of Roy Morgan Research by not consulting her about changes to her Substantive Role, in particular:

   (A)     Ms Heraud did not receive notification of the 31 October 2013 staff briefing about proposed workplace change, in particular, she did not receive the 30 October 2013 “all staff” email from Michele Levine CEO, which invited staff to a briefing scheduled for 31 October 2013, which was sent to staff’s work email addresses at a time when Ms Heraud did not have access to her work email;

   (B)     Roy Morgan Research had requested Ms Heraud to provide her personal email address while on maternity leave, including on on [sic] a Parental Leave Notification Form: this was because Roy Morgan Research used employees’ personal email addresses to correspond with them while on maternity leave;

   (C)     in contrast to other staff of Roy Morgan Research, Ms Heraud was not briefed of the proposed workplace change at the staff briefing on 31 October 2013 and she did not receive a copy of the PowerPoint presentation dated 31 October 2013 addressed to All Staff Meeting, which included information about proposed workplace change and invited staff to consult about the changes;

   (D)    Roy Morgan Research advised Ms Heraud about changes already made to her Substantive Role, namely that she was to be employed in the Restructured Role, by a letter dated 27 February 2014.

   (v)     in order to discharge its burden of proof under s.361, Roy Morgan Research needed to lead positive evidence, in particular by a relevant decision maker, that the adverse action was not for a prohibited reason, and for this evidence to be accepted;

   (vi)    the evidence, including Roy Morgan Research’s evidence, is that its method of contacting staff by email while on maternity leave was to the employee’s personal email address and that relevant personnel were aware that Ms Heraud was absent from work on maternity leave at the time of the October 2013 consultations, notice of which went to staff’s work email addresses: in this event, a reason that Ms Heraud was not consulted about the changes to her Substantive Role was that she had taken maternity leave;

   (vii)   moreover, Roy Morgan Research has not proven that it did not take the adverse action, by not consulting Ms Heraud about changes to her Substantive Role which led to the Restructured Role, for the reason that, or for reasons which included the reason that, Ms Heraud had exercised her workplace right to take maternity leave, pursuant to s.361.

   (footnotes omitted)

3. The Respondent submits that the First, Second, Third and Fourth adverse action claims are not founded on the Applicant’s redundancy or initial change in her lines of report, but rather that she “was not consulted about the changes to her Substantive Role that led to the creation of the Restructured Role”. Claim at [21].

4. The Respondent submits, in its Post-Trial Submissions, that the failure to consult, as pleaded by the Applicant, relates to an alleged failure to consult with the Applicant whilst on maternity leave, in relation to the change of reporting lines of her position (described by the Respondent as “restructured position”). This, it is submitted, is to be contrasted with a claim that the Respondent failed to consult with the Applicant when her position was being made Redundant.

5. The Respondent submits:[38]

   [38] Respondent’s Outline of Argument filed on 18 August 2015.

   “17. This claim firstly fails on the basis that consultation did take place. The consultation was comprised of, inter alia:

   (a)     Telephone conversations with the Respondent’s then human resources director Sam Schwarz and general manager Gordon Macmillan during March 2014 about changes that were occurring at the Respondent;

   (b)     face-to-face meetings between the Applicant and Mr Schwarz on 29 April 2014 during which the Applicant was informed that there were many roles under review as part of a significant planned restructure of the Respondent and that her role is one of those being reviewed;

   (c) subsequent to the meetings referred to in the previous sub-paragraphs (is) the sending of a proposed organisational chart to the Applicant (sic) information;

   (d)     meetings on 5 May in which the Applicant met with Ms Katiforis, Mr Trifkovic and Ms Schwensen;

   (e) subsequent telephone conversation on 20 May between the Applicant and Mr Schwarz in which the Applicant was reformed (sic) that it was proposed that her position be made redundant and that she be given the opportunity to respond to the proposal.”

   “25.  This claim fails for the further reason that given the significant changes occurring at the Respondent and in particular in the workplace areas in which the Applicant was employed the Applicant cannot satisfy the “operative reason” test for any deficiencies in the consultation she refers to. The consultation was similar to that provided to other employees who experienced changes to or redundancies in their employment.”

6. As to consultation with respect to the restructured position, the Respondent makes the following arguments in its Post-Trial Submissions:

   a)the proposed organisational changes exhibited in the PowerPoint presentation sent to the Applicant by Mr Schwarz were just proposals and predicated upon further discussions with the Applicant prior to any final decision;

   b)the Applicant’s evidence that she had no idea changes were occurring at the company, despite her relationship with and easy access to staff such as Wilson, Williamson and Trifkovic, should be disbelieved; and

   c)there was no evidence before the Court that the Respondent had made a final decision in relation to her restructured position.

1. In Childs v Metropolitan Transport Trust [1981] Industrial Arbitration Service (Current Review) 946 (“Childs”), Smithers J discussed the distinction between an “injury” and an “alteration of employee’s position” as follows (at p.948):

   “So far as the second charge is concerned, I am unable to see that in the narrow sense in which the word ‘injure’ seems to be used, the informant was injured in his employment on 22 December. It did not occasion him any immediate loss of income. It did not mean that he did not do the same work during the period that his employment in the senior revenue pay clerk’s office entailed him in performing that work. It is said that it reduced his status so far as the rest of the staff were concerned and did so as from that very moment. No doubt that is quite probable and probably did occur but it seems to me that that kind of thing is more aptly considered to be an alteration in his position than an injury. I cannot help thinking that ‘injury’ refers to deprivation of one of the more immediate practical incidents of his employment, such as loss of pay or reduction in rank.”

2. Having regard to the evidence, I find that the Respondent injured the Applicant in her employment by not returning her to her pre-parental leave position, pursuant to s.84 of the Act. I am satisfied that the Applicant intended to return to work on 2 July 2014. I am satisfied that the Applicant’s pre-parental leave position was available for her to return to until at least 31 August 2014. The Respondent decided to make the Applicant redundant effective 27 June 2014.

3. Accordingly, I find that the Respondent took adverse action against the Applicant within the meaning of s.342(1), Item 1(b) of the Act, by not returning the Applicant to her pre-parental leave role. I am also satisfied that the impugned conduct constituted an alteration to the Applicant’s position to her prejudice: s.342(1)(c) of the Act.

4. As the Applicant has established to the Court’s satisfaction that she had a workplace right and that the Respondent engaged in adverse action, I now turn to consider whether the Respondent has, having regard to the facts and circumstances, rebutted the presumption under s.361 of the Act, that it took that action, because the Applicant was entitled to the benefit of a workplace right.

5. Ms Jepson’s evidence is that Ms Levine was the final decision-maker in all the decisions regarding restructure and redundancy.  I agree with the Applicant’s submission that Ms Levine acted on the recommendation of Mr Schwarz. This is evident on the face of the redundancy proposal forwarded by Mr Schwarz to Ms Levine on 26 May 2014 (Annexure  JJ2, Exhibit R1).

6. In these circumstances, the question arises whether the decision-maker’s reasons were tainted or to be attributed to those set out by Mr Schwarz in his detailed redundancy proposal.

7. In National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451, Gray J stated at [26] to [28]:

   [26] It is often the task of a court to make a finding as to the minds of which natural person or persons constitute the directing mind and will of a corporate body, for the purpose of determining the state of mind of that corporate body. Sometimes, the question is as to the knowledge of the corporate body. As Brennan, Deane, Gaudron and McHugh JJ said in Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 583:

   A division of function among officers of a corporation responsible for different aspects of the one transaction does not relieve the corporation from responsibility determined by reference to the knowledge possessed by each of them.

   The same can be said of states of mind other than knowledge, such as reason or intent. In Voigtsberger v Council of the Shire of Pine Rivers (No 2) [1981] FCA 207; (1981) 58 FLR 239, the question was whether an employee in local government had been dismissed from her employment for a proscribed reason. Although the local council itself had made the ultimate decision to dismiss, Evatt J found that it was an earlier decision of the finance committee that was the critical decision. The council had merely “rubber-stamped” the recommendation of the finance committee later on the same evening. The finance committee consisted of eight councillors, six of whom had not been called as witnesses. His Honour held that the decision to dismiss the employee had not been proved not to be actuated by the proscribed reason alleged.

   [27] Wood (On Behalf Of The Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne [1979] FCA 22; (1979) 41 FLR 1 was another local government case. The ultimate decision had been made by the Town Clerk, who was the chief executive officer of the employer. There was a question as to whether the decision was tainted by the involvement, in conjunction with the town clerk, of the deputy town clerk, who was said to have acted for a proscribed reason. Ultimately, Smithers J found that the decision was that of the town clerk only, and was not tainted by the proscribed reason. In the course of his reasons, at 19, his Honour said:

   In the task of ascertaining the mind of the defendant corporation, with respect to the standing down of Mr Kane, that mind may be located in the mind of one authorized officer or of more than one person exercising the executive power of the corporation. It is a pure question of fact where in particular circumstances that corporate mind may be located. In a case where two officers are concerned in the solution of an administrative problem and are working jointly to solve it and decide what the corporation is to do and are working in harmony and in full confidence, the one with the other, the mind of the corporation is to be found in the course of conduct agreed upon between them and the reasons which in the end are the operating reasons for the policy agreed upon.

   [28] In Gibbs v Palmerston Town Council [1987] FCA 732 (unreported, Federal Court of Australia, Gray J, 21 December 1987), I referred to both Wood and Voigtsberger. At 84–85, I said:

   there is still a difficult question of the extent to which the improper purpose of one person may be a substantial operative factor in the decision of another. Clearly, if the actual decision maker simply “rubber stamps” a decision in fact made by another, the purpose of that other will be a substantial operative factor. At the other extreme, if the actual decision maker truly believes the false and innocent reasons advanced by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person. The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority.

8. Neither Ms Levine, nor Mr Schwarz were called by the Respondent to give evidence in relation to the decision to make the Applicant redundant on 27 June 2014. Ms Jepson gave evidence about the reasons for the conduct engaged in by the Respondent. However, on her own evidence, Ms Jepson was only involved (one assumes in the implementation of the decision to make the Applicant’s role redundant) after Mr Schwarz ceased employment with the Respondent. It appears on the documentary evidence that Ms Jepson was kept informed of various proposals and that was the extent of her involvement. On the face of the redundancy proposal forwarded by Mr Schwarz to Ms Levine on 26 May 2014 (Annexure JJ2, Exhibit R1), and in the absence of contrary evidence from the actual decision-maker and the person recommending the taking of the conduct, I cannot be satisfied that a substantial and operative reason for the adverse action was not for the prohibited reason.

9. In these circumstances, I find that the Respondent has not rebutted the presumption pursuant to s.361 of the Act, that it took the adverse action, in not returning the Applicant to her pre-parental leave role, for the reason that, or for reasons which included a reason that, the Applicant had exercised her workplace right to take maternity leave.

10. Accordingly, I find the decision of the Respondent to make the Applicant redundant and not to return her to her pre-parental leave position contravened s.340(1) of the Act.

Sixth Adverse Action

1. The Applicant’s pleadings in relation to the claimed sixth adverse action are that the Respondent Roy Morgan Research took adverse action against (the Applicant) in contravention of s.340 of the FW Act for the reason, or for reasons which included the reason, that she had exercised or proposed to exercise her workplace right for the flexible working arrangements request, by withdrawing the Research Centre Positions: Claim [32]-[33].

2. The Applicant submits that:

   (i)     on 7 May 2014, Ms Heraud sent Roy Morgan Research a request for flexible working arrangements;

   (ii)     on 20 May 2014, Mr Schwarz advised Ms Heraud that she would not be offered any of the Research Centre positions due to a decision of Ms Levine’s;

   (iii)   Roy Morgan Research took adverse action against Ms Heraud within the meaning of s.342(1) Item 1(c) by altering Ms Heraud’s position to her prejudice by withdrawing the Research Centre Positions;

   (iv)    on Ms Heraud’s evidence, Mr Schwarz advised her that Ms Levine had made the decision to withdraw the Research Centre Roles. Roy Morgan Research did not call Mr Schwarz or Ms Levine to dispute that Ms Levine made this decision neither did it lead evidence on who it says was responsible for the Research Centre Positions being “off the table”;

   (v)     by not leading any contradictory evidence by the relevant decision maker, Roy Morgan Research has not discharged its onus under s.361;[and]

   (vi)    Roy Morgan Research has not proven that it did not take the adverse action, by withdrawing the Research Centre Positions, for the reason that, or for reasons which included the reason that, Ms Heraud had exercised her workplace right to request flexible working arrangements, pursuant to s.361.

   (footnotes omitted)

3. The Respondent argues that the Applicant’s claim that the redundancy was timed to defeat a Flexible Work Arrangement application should be rejected, on the basis that any work done under such an arrangement needed to be predicated on a genuine underlying job.

4. The Applicant submits the Respondent took adverse action against her within the meaning of s.342(1), Item 1(c) of the Act by altering her position to her prejudice, by withdrawing the Research Centre positions.

5. The Respondent, in its post-trial submission, argues that:

   40.    With regard to the Applicant’s argument that the discussed research centre proposed positions constituted genuine job offers, the Applicant’s case stretches credulity. It is not until the Applicant returns to the work that the Respondent has to ensure actual working arrangements, flexible or otherwise.

6. On the evidence, I am satisfied as to the following:

   a)On 5 May 2014, Mr Gibson informed the Applicant that he considered that an appropriate redeployment for the Applicant would be within the newly created Research Centre;[40]

   b)That, at the very least, the Managers of the Research Centre (Ms Schwensen and Ms Katiforis) considered the Applicant was suitable for the position of Project Manager in the Research Centre;[41]

   c)on 7 May 2014, the Applicant emailed Mr Schwarz with her request for temporary flexible working arrangements;

   d)Mr Schwarz prepared a redundancy proposal dated May 2014, sent to Ms Jepson and the Respondent’s legal counsel on 13 May 2014 and subsequently sent to Ms Levine on 26 May 2014, recommending that the Applicant be made redundant and that the proposed date of her redundancy be brought forward;

   e)on 20 May 2014, Mr Schwarz informed the Applicant, during a telephone conversation, that Ms Levine had changed her view about the Applicant’s restructured position, that he would be discussing with Ms Levine a formal redundancy of her role and that the roles at the Research Centre would not now be offered to her;[42] and

   f)on 27 May 2014, Mr Schwarz emailed the Applicant regarding her request for a flexible working arrangement, stating that he would not be able to approve the Applicant’s request for part-time return to work in July 2014, as he did not know which role she may or may not be undertaking.

   [40] See (Exhibit A1), Applicant’s affidavit filed on 23 April 2015 at [21], (Exhibit R6), Stephen Gibson’s affidavit filed on 31 July 2015 at [13], (Exhibit R9), Dario Trifkovic’s affidavit filed on 31 July 2015 at [5].

   [41] See above the evidence of Ms Katiforis set out at [93] to [94], the evidence of Ms Schwensen set out at [95] to [96] and the evidence of Mr Trifkovic set out at [97].

   [42] see above at [106] .

7. As the Applicant had exercised her right to take parental leave and was responsible for the care of her baby, she was entitled to the benefit of s.65 of the Act. I find, therefore, that the Applicant was both entitled to and exercised a workplace right within the meaning of s.341 of the Act.

8. I accept that the Respondent had conveyed to the Applicant, in early May 2014, that she would be appropriately redeployed in the Research Centre. Further, I am satisfied that the Applicant had a genuine basis for believing that she would be offered redeployment within the Research Centre. Indeed the Respondent’s own documents (Exhibit R3) had the Applicant located in the Research Centre at the time the Applicant was made redundant.

9. The evidence does not establish that the Respondent had made a formal offer to the Applicant for redeployment in any position in the Research Centre.

10. I am, however, satisfied the Respondent had created an expectation that the Applicant would be redeployed in the Research Centre, at least in the position of Project Manager.

11. I now turn to consider whether this expectation of redeployment in the Research Centre constitutes an alteration to the Applicant’s position to her prejudice within the meaning of meaning of s.342(1), Item 1(c) of the Act.

12. In Premier Motor Service, Perry J cited various authorities to the effect that the prejudicial alteration of an employee’s position, as contemplated in s.342(1), Item 1(c) of the Act, extends to circumstances where the Respondent has reneged on an assurance or an expectation of re-employment raised by the Respondent (see [195] above).

13. In respect of the circumstances found by the primary Judge, his Honour stated at [48]:

    [48] First, the primary judge found that an arrangement existed whereby Mr Cole was expected to be available for, and himself expected to perform, the charter work (at [37]). It is not necessary, as earlier explained, in the case of item 1(c), for a legal right to be impacted upon to the employee’s prejudice. It can suffice if action is taken which impacts on an employee’s expectations to her or his prejudice. For example, in Belandra the union argued that the employer, Belandra, had altered the position of its employees to their prejudice when it decided not to re-employ them despite its initial intentions to do so after a fire destroyed its premises. The argument was that the employees had an expectation just before that decision was made that they would be re-employed. When that expectation was not fulfilled by Belandra, their position was altered to their prejudice. The prejudice was said to lie in the elimination of the job security which they previously held. North J accepted that argument holding that, even if the employees had no legal right to re-employment, “the fact that their expectation of re-employment, raised by the employer, was disappointed amounted to an alteration of their positions to their prejudice” (at 187 [71]).

14. I find that the Respondent had created an expectation on the part of the Applicant in early May 2014, that she would be redeployed in the Research Centre, at least in the position of Project Manager. There is no doubt that this expectation was disappointed when the Applicant was informed by Mr Schwarz later in May 2014, that arising out of decisions Ms Levine had taken, positions in the Research Centre would not be available to her.

15. It is consistent with the authority cited above to find, and I do so find, that the circumstances set out above amounted to an alteration of the Applicant’s position to her prejudice, within the meaning of s.342(1), Item 1(c) of the Act. The prejudice arose from an expectation created by the Respondent as to the Applicant’s future employment security, which was then not fulfilled by the Respondent.

16. As the Applicant has established to the Court’s satisfaction that she had a workplace right and that the Respondent engaged in adverse action, I now turn to consider whether the Respondent has, having regard to the facts and circumstances, rebutted the presumption under s.361 of the Act, that it took that action, because the Applicant exercised a workplace right.

17. Neither Ms Levine, nor Mr Schwarz were called by the Respondent to give evidence in relation to the decision not to make positions in the Research Centre available to the Applicant. In these circumstances, and having regard to all the facts and circumstances, I find that the Respondent has not rebutted the presumption pursuant to s.361 of the Act, that it took the adverse action, in deciding not to make any positions in the Research Centre available to the Applicant, for the reason that, or for reasons which included a reason that, the Applicant had exercised her workplace right to request flexible working arrangements.

18. Accordingly, I find the decision of the Respondent, not to make the positions in the Research Centre available to the Applicant for redeployment, contravened s.340(1) of the Act.

Seventh Adverse Action

1. The Applicant’s pleadings in relation to the claimed seventh adverse action are that the Respondent Roy Morgan Research took adverse action against Ms Heraud in contravention of s.340 of the FW Act for the reason, or reasons which included the reason, that she had exercised or proposed to exercise her workplace right for the flexible working arrangements request, by terminating her employment: Claim [34]-[35].

2. The Applicant submissions are as follows:

   (i) on 7 May 2014, Ms Heraud sent Roy Morgan Research a request for flexible working arrangements;

   (ii)     on 4 June 2014, Roy Morgan Research advised Ms Heraud that it proposed to make her Restructured Role redundant;

   (iii)   on 27 June 2014, Roy Morgan Research retrenched Ms Heraud ;

   (iv)    Roy Morgan Research took adverse action against Ms Heraud within the meaning of s.342(1) Item 1(a) by dismissing Ms Heraud, in particular:

   (A)     despite the initial proposed redundancy of Ms Heraud’s position being the end of July 2014, Roy Morgan Research brought forward its proposed redundancy to 27 June 2014 and retrenched Ms Heraud effective that date;

   (B)     Roy Morgan Research kept on Mr Wilson, who had been acting in Ms Heraud’s position, in Ms Heraud’s position after Ms Heraud scheduled return from maternity leave on 2 July 2014.

   (v)     the evidence is that the relevant decision makers were Michele Levine, CEO, acting on the recommendation of Mr Schwarz, which included the prohibited reason (that is, that Ms Heraud had made the flexible working arrangements request). The evidence, including Roy Morgan Research’s evidence, is that:

   (A)     despite the initial proposed redundancy of Ms Heraud’s position being the end of July 2014, Roy Morgan Research brought forward its proposed redundancy to 27 June 2014 and did not return Ms Heraud to work at the end of her scheduled maternity leave;

   (B)     Roy Morgan Research kept on Mr Wilson, who had (sic) acting in Ms Heraud’s position, in Ms Heraud’s position after Ms Heraud’s scheduled return from maternity leave on 2 July 2014;

   (C)     a reason for this was that Ms Heraud had made the flexible working arrangements request.

   (vi)    On the evidence, Ms Levine made the decision on the basis of a recommendation from Mr Schwarz. If a decision is “rubber stamped” by an earlier decision or recommendation which is based on a prohibited reason, the prohibited reason will still be a substantial operative factor and it is necessary to call the earlier decision maker as well as the final decision maker to discharge the onus under s361;

   (vii)   Roy Morgan Research did not call Mr Schwarz or Ms Levine. Roy Morgan Research has not discharged its onus under s.361. Further, Ms Jepson’s evidence supports that the prohibited reason was a reason for the adverse action;

   (viii) In the circumstances, Roy Morgan Research has not proven that it did not take the adverse action, by terminating her employment, for the reason that, or for reasons which included the reason that, Ms Heraud had exercised her workplace right to request flexible working arrangements, pursuant to s.361.

   (footnotes omitted)

1. As the Applicant had exercised her right to take parental leave and was responsible for the care of her baby, she was entitled to the benefit of s.65 of the Act. The Applicant made a request for flexible working arrangements on 7 May 2014. I find, therefore, that the Applicant was both entitled to and exercised a workplace right within the meaning of s.341 of the Act.

2. It was not in dispute that the termination of the Applicant’s employment constituted adverse action within the meaning of s.342(1), Item 1(a) of the Act.

3. As the Applicant has established to the Court’s satisfaction that she exercised a workplace right and that the Respondent engaged in adverse action, the question becomes whether the reason, or reasons which include a substantial and operative reason, for the Respondent’s decision to bring the termination date of the Applicant’s employment forward in time, was that she had made a request for flexible working arrangements.

4. Neither Ms Levine, nor Mr Schwarz were called by the Respondent to give evidence in relation to the decision not to make positions in the Research Centre available to the Applicant.

5. The Respondent’s post-trial submission, is that it is abundantly clear on the evidence that during the period in which the Applicant’s flexible working arrangements request was “live”:

   a)no position had been identified and agreed to between the Applicant and the Respondent, into which she could be redeployed; and

   b)the Applicant had, for no disclosed reason, ceased all contact with the Respondent in relation to redeployment opportunities.

6. The second assertion by the Respondent is to be immediately rejected. The uncontested evidence of the Applicant is that Mr Schwarz had informed her that the offers of positions in the Research Centre were no longer available and that the Respondent would be looking at redeployment opportunities from within current vacancies. The evidence is that no steps were taken by the Respondent to identify other redeployment opportunities by the Respondent. 

7. The first assertion is the same as the content of Mr Schwarz’s email to the Applicant on 27 May 2014, in which he stated he would not be able to approve the Applicant’s request for flexible working arrangements commencing in July 2014, as he did not know which role she may or may not be undertaking. On the evidence, it is clear that by this time Mr Schwarz had recommended to Ms Levine that the Applicant’s employment be made redundant forthwith and not as planned at the end of July 2014. In my view, it is disingenuous to argue that no position had been identified, when in fact the Respondent had decided to make the Applicant’s position redundant.

8. In the absence of evidence from Mr Schwarz regarding the redundancy proposal for the NCOD role prepared by him, some time before 13 May 2014 and sent to Ms Levine on 26 May 2014, the resolution of this dispute largely centred around an extract from that redundancy proposal as follows:

   How does the change impact the role?

   It is proposed that the role is made redundant at the end of July 2014. However, (the Applicant) has requested a FWA to commence 2 July 2014 with a RTW proposal of 20 hrs p/wk. Given this, it is most sensible to maintain Euan in the role in an acting capacity and to make the role redundant now, so that we can immediately discuss redeployment opportunities with (the Applicant) that might best suit her FWA request.

9. Ms Jepson was not a decision-maker in relation to the decision to bring the time of the Applicant’s redundancy forward, although she was copied into the email sent by Mr Schwarz regarding this proposal. Ms Jepson conceded, however, in cross-examination, that a reason for bringing forward the Applicant’s redundancy and keeping Mr Wilson in the role in an acting capacity, was the Applicant’s request for flexible working arrangements.

10. In my view, that was an appropriate concession for Ms Jepson to make. This is because, although there may have been other reasons related to convenience and commerciality, it is a logical construction of that extract from the redundancy proposal. In my opinion the fact that the Applicant had made a request for flexible working arrangements was a substantial and operative reason for the recommendation that the date of the Applicant’s redundancy be brought forward. This is so, in my opinion, having regard to the use of the word “However” immediately prior to the reference to the Applicant’s request for flexible working arrangements, the use of the phrase “Given this”, when the writer refers to maintaining Mr Wilson in the Applicant’s pre-parental leave position and making the Applicant’s role redundant “now”.

11. On the face of the redundancy proposal forwarded by Mr Schwarz to Ms Levine on 26 May 2014 (Annexure JJ2, Exhibit R1), and in the absence of contrary evidence from the actual decision-maker and the person recommending the taking of the conduct, I cannot be satisfied that a substantial and operative reason for the adverse action was not for the prohibited reasons.

12. In these circumstances, I find that the Respondent has not rebutted the presumption pursuant to s.361 of the Act, that it took the adverse action, in deciding to bring forward the Applicant’s redundancy, for the reason that, or for reasons which included the reason that, the Applicant had exercised her workplace right to request flexible working arrangements.

Conclusion

1. For the reasons set out in this judgment, I make the declarations set out above.

I certify that the preceding two hundred and thirty-eight (238) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 5 February 2016