Hewitt v Topero Nominees Pty Ltd
[2015] FCCA 915
•30 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HEWITT v TOPERO NOMINEES PTY LTD | [2015] FCCA 915 |
| Catchwords: INDUSTRIAL LAW – Claims of adverse action in the form of bullying and other coercive action – whether bullying claims made out – where exercise of workplace work made out – did respondent’s conduct arise therefrom or with intent to coerce its cessation – whether applicant constructively dismissed – whether such dismissal constituted adverse action. |
| Legislation: Fair Work Act 2009, ss.340, 341, 342(1), 343, 343(1)(a), 361, 386, 386(1)(b) |
| State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 Sallehpour v Frontier Software Pty Ltd O’Meara v Stanley Works Pty Ltd PR973462 [2006] AIRC 496 Baltic Shipping Company v Dillon (The Ship Mikhail Lermontov) (1993) 176 CLR 344 Poletti v Ecob (No.2) (1989) 31 IR 321 |
| Applicant: | DELWYN HEWITT |
| Respondent: | TOPERO NOMINEES PTY LTD TRADING AS MICHAELS CAMERA VIDEO DIGITAL |
| File Number: | MLG 1519 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 27, 28, 29 & 30 January 2015 |
| Date of Last Submission: | 17 March 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 30 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Addison |
| Solicitors for the Applicant: | Maddison & Associates |
| Counsel for the Respondent: | Ms Jardine |
| Solicitors for the Respondent: | Bespoke Law |
ORDERS
The respondent pay the applicant $2,031.50.
The application is otherwise dismissed.
| FEDERAL CIRCUIT COURT AT MELBOURNE |
MLG 1519 of 2013
| DELWYN HEWITT |
Applicant
And
| TOPERO NOMINEES PTY LTD T/AS MICHAELS CAMERA VIDEO DIGITAL |
Respondent
REASONS FOR JUDGMENT
Introductory
The applicant seeks by her further amended Statement of Claim
(“the Statement of Claim”) various remedies arising from what was for her a very unhappy period of employment with the respondent from March 2011 until October 2012. In the main the unlawful action alleged against the respondent could be described as adverse action within the meaning of the Fair Work Act 2009. The respondent denies any unlawful conduct.
For the reasons that follow, I have concluded that the respondent did not take adverse action against the applicant, but that the respondent does owe the applicant a relatively small amount of money for underpayment of salary.
Agreed Facts
Although there are significant areas of factual controversy, much of what occurred is either uncontroversial or sufficiently obvious from the contemporaneous documentation to be taken as agreed.
The parties tendered as exhibit AR1 a folder of materials, including outlines of evidence and documents the parties might rely on. The documents are indexed/paginated in a slightly confusing fashion, but references in these reasons for judgment will hopefully be intelligible.
The applicant, who is a very experienced photographer, wrote to Peter Michael, the moving force, so to speak, of the respondent, by way of email (document 1.2). (His reply is dated 4 November 2010). This email clearly responded to an advertisement by the respondent seeking employees. Relevantly the email expressed a preliminary query prior to sending in a job application and relevantly asserted:
“I will be ready early next year to apply for work in your Media School. I will then have completed my Certificate IV Workplace Training and Assessment. I already have experience in teaching basic photography and camera skills. I developed and delivered the entire course syllabus. I thought I would ask and see what the potential employment opportunities in your Media School are?”
Although there is no formal record of it, there must have been some contact by way of response from the respondent, because on
21 January 2011 the applicant emailed Alwyn Hanson of the respondent (document 12) indicating that she was halfway through her two weeks of classes studying the Certificate IV in Training and Assessment. It would seem that both parties had some view that the applicant would be at the very least applying for employment thereafter.
On 18 March 2011 the respondent through Mr Michael wrote to the applicant (document 14) confirming the applicant’s employment to commence on 21 March 2011. From the evidence given it is clear there were one or possibly two meetings before the employment started.
The letter of appointment relevantly stated:
“We look forward to your arrival here on Monday 21st March at 9am and are delighted to have you joining our Media School Team.
I confirm that your salary will be $45,000 p.a. Based on 5 days per week or less pro-rata depending on the number of days that you have worked in a week. In addition, holiday and sick leave entitlements are applicable and superannuation is applicable.
This rate will be reviewed in 12 months.
All new employees commence on up to 6 months probation, we look forward to you completing that period.”
The applicant was paid at an hourly rate of $22.77 (see documents
9 to 9.3, the only payslips the applicant has preserved). It seems clear that this is a division into an hourly rate of the $45,000 per year figure divided by a notional working week.
In December 2011, while driving with Mr Hanson to (or possibly from – it is not wholly clear, or material in any event), Sandown, the applicant raised the prospect of a pay increase. Mr Hanson said he would look into the matter.
It seems reasonably clear that once the matter had been raised the applicant raised it on a number of occasions through January, February and March of 2012. There is some difference of emphasis in the evidence to which I shall return, but essentially it appears that
Mr Hanson on each occasion told the applicant words to the effect that the matter had been referred to Mr Michael and that he would revert to her.
In April 2012 the issue of whether the applicant should work as a casual came up. There is some dispute as to when, but from document 15, being the applicant’s notes of a meeting on 13 April 2012, it would appear that it was discussed at the very least on that day.
Later in April a meeting took place at which Mr Hanson admits that he shouted at the applicant and this led the applicant to complain to
Mr Michael. In discussions arising from that complaint, the issue of whether the applicant was employed pursuant to the correct award emerged, and Mr Michael suggested that the matter should be referred to the Fair Work Ombudsman (“FWO”).
The applicant did refer the matter to the FWO (her undated letter is document 17). Document 18 is her email to Chantal Meehan dated
29 June 2012. It is not quite clear whether this was the first such correspondence but, at any rate by then matters were clearly underway with the FWO.
I note that the letter to Ms Meehan (document 18), also appends a log of times worked from 16 May 2012 onwards.
On 20 July 2012 the applicant met Mr Michael, Mr Hanson and another person and her notes are document 19. It is clear that, whatever else was talked about, there was some discussion as to how the applicant might best use her time and some sort of discussion about her working on the shop floor.
On 23 July 2012 the applicant wrote again to Ms Meehan (document 20) following receipt of an email from Mr Michael dated 20 July 2012 to which it will be necessary to return.
On 24 July 2012 the applicant met Mr Michael for an extended period of time. The applicant’s notes are document 21. It is clear that the applicant was complaining of being badly treated by Mr Hanson and the applicant was raising a number of issues to which, once again, it will be necessary to return.
On 9 August 2012 the FWO wrote to the respondent (document 25) about the applicant’s complaint. I note that it was the FWO’s position that penalty rates did not apply to the applicant’s employment, nor did overtime rates. The FWO wrote “from further information provided by Ms Hewitt the initial classification has been altered to reflect that
Ms Hewitt is classified under the Modern Award as a Level 2 Tutor/Instructor”.
The letter from the FWO appended a schedule of pay rates under the Educational Services (Post-Secondary Education) Award 2010.
That finding itself followed earlier correspondence, apparently not revealed until fairly late in the piece to the applicant, between the FWO and Mr Michael dated 25 July 2012 in which the FWO opined that the General Retail Industry Award did not apply to the applicant’s work, but the Educational Services (Post‑Secondary Education) Award 2010 did (document 243).
On 17 August 2012 the FWO wrote to the respondent (document 248). That letter confirmed the earlier matters intimated as to the applicant’s award coverage and noted that:
“You should rectify any underpayments that have occurred. Please be advised that the Fair Work Ombudsman will be taking no further action in relation to this matter at this time.”
On 28 August 2012 a meeting took place between the applicant and
Mr Michael and the applicant’s notes are document 26. It is clear that by then things were not going well because Mr Michael told the applicant that she need not feel bound to be “here”, i.e., at Michaels.
On 7 September 2012 the FWO wrote to the applicant (document 27), notifying the outcome of the investigation in relation to her complaint. Relevantly, the letter confirmed that the appropriate classification under the Modern Award was as a Tutor/Instructor Level 2 and that the current base rate of pay under the Modern Award for the applicant was $19.83 per hour.
The letter also confirmed that:
“Clause 21.3(c)(ii) of the modern award states “each contact hour of delivery by a tutor/instructor will count as 1.25 hours of work, including administration, assessment and consultation”. You have sought an explanation of the application of this provision. I have consulted with a number of industry parties, including the National Tertiary Education Union, who have confirmed that tutors and instructors are paid for delivery time only, and other work associated with the delivery of the course, including administration, preparation, consultation etc, is not separately payable. It is noted that other work undertaken by an employee not relating to the course they are delivering, would be payable at ordinary rates.”
The letter went on to state:
“From the detailed information you and your employer have provided in relation to your duties, it appears that you work set hours each week. During these hours you perform a combination of general administration work, preparation work associated with classes you deliver and actual delivery. These types of work are payable on the following basis under the modern award:
·General administration and other duties not related to courses being delivered - $19.83 per hour.
·Administration, preparation, consultation etc associated with the delivery of a course – not payable.
· Time spent delivering course - $24.79 per hour.”
The letter went on to refer to the request by the FWO to the respondent that the applicant be paid any underpayment and that no further action will be taken.
On 12 September 2012 a meeting took place between the applicant and Mr Hanson. This considered the work that the applicant would be doing through till the end of the year in the media school. The applicant’s record of the meeting together with the proposed schedule is document 30.
On 25 September 2012 a further meeting took place, between the applicant and Mr Michael, with the applicant’s role outlined, being document 34. By this stage the duties to be performed were clearly being expanded to include sales in the bag and accessory area.
By 11 October 2012 there had clearly been discussions between the applicant and Mr Michael because the applicant wrote an email to him (document 35). She articulated an underpayment of wages and sought an increase in her hourly rate of pay, together with overtime rates for weekend work. The letter noted that if the matter could not be agreed it would require formal arbitration.
Also on 11 October 2012 an exchange of emails took place (documents 35.1 - 35.2) between the applicant and Mr Michael. The first email, clearly a response to document 35, sought correspondence from the FWO, previously referred to by the applicant, that she was entitled to a rate of $24.79 per hour for course delivery. The applicant responded with part of the letter from the FWO and Mr Michael sought all of it. The applicant did not send the whole of the correspondence from the FWO, a matter raised significantly in the proceeding, but reiterated that she was entitled to $24.79 per hour for contact hours.
On 15 October 2012 Mr Hanson wrote the applicant with a revised list of dates for classes in 2012 (document 36). This shows that
Mr Hanson, at least, plainly envisaged the applicant’s employment continuing at that time.
On 16 October 2012 following a meeting between them, the applicant emailed Mr Michael (document 38). That email asserted an understanding on the applicant’s part that the respondent was seeking to change her terms of employment contract. It asserted that the applicant was employed in the Media School team and, relevantly, concluded:
“I understand you want to change my contract to work in the Media School and in another areas of michaels (MCVD). Can you please reply and make clear what the department is, what my duties would be, what the rate of pay would be for week days, out of ordinary hours, weekend work, what award I would be paid under, sales commissions, what proportion of work would be Media School work and the other change of duties.”
A reply dated 17 October 2012 from Mr Michael relevantly said:
“Fair Work Australia made an award determination for you.
I do not anticipate that this will change.
I would like to clarify that Topero Nominees Pty Ltd trading as michaels camera video digital is your employer. Topero Nominees Pty Ltd conducts both retail sales and photographic education.
As discussed & provided to you on the 25th September below the outline of your role is below.”
The role outline dated 25 September 2012 listed as objectives:
“1. Teach classes
2. Admin - class bookings/sales/queries – 2 sessions per day at agreed times (est ½ - 1 hour per session)
3. Sales in bag & accessory area.”
The applicant replied late in the evening of 17 October 2012 to
Mr Michael (document 39). The terms of this letter make it clear what the difference between the parties at that time was:
“I have received your email today, following our discussion yesterday (16/10/12) regarding the dispute concerning my rate of pay, in which you propose to amend my contract of my employment. You are proposing much more than a change in duties, you fundamentally want to change the job that I was hired to do.
In the context of a dispute lodged with Fair Work Australia regarding appropriate payment of award pay rates, I challenge your capacity to do this and think that you are acting in a matter that is damaging to my employment, which seems to me could be a breach of the Fair Work Act.
I suggest that the matter should be dealt with by Fair Work Australia as part of the dispute settlement. Until that occurs the status quo should remain.”
On 18 October 2012 a meeting took place between the applicant,
Mr Michael and two others not presently relevant. The applicant’s notes of the meeting are document 40. Mr Michael formally requested that the applicant undertake training in relation to gadget bags as of that time and purported to direct the applicant to follow instructions. From the notes it would appear that the applicant raised the question of her dispute over award entitlements. The notes record Mr Michael as asking the applicant whether she really wished to work for the respondent and indicated that the conditions had to be accepted or not.
It would seem from the notes that the applicant raised the question of bullying by her manager and refused to accept the conditions posited by Mr Michael until Fair Work Australia had resolved the dispute. The meeting appears to have ended with Mr Michael telling the applicant to go home for the rest of the day and think if she wanted to work there.
The file note made by Mr Michael is also dated 18 October 2012 and is document 40.2. It is largely to the same effect as the applicant’s notes (document 40 referred to above). I note that amongst other things
Mr Michael recorded:
“I re-iterated that this was a change to her job & that she did not have a choice. It was this or she may not want to work here any longer ie. resign.
She then started – well – her manager insulted her and is bullying.
I then stopped her and advised that I needed a yes or no answer – was she going to accept the job role as per that document or not. She advised that she wasn’t.”
The application to Fair Work Australia to deal with the dispute appears to have been signed by the applicant on 19 October 2012 (document 41.3).
On 22 October 2012 Mr Michael wrote to the applicant (document 42) threatening her with dismissal for failing to follow instructions or fulfil assigned duties. Having set out a number of concerns the letter stated:
“Based on my concerns, I am proposing to terminate your employment with notice. Before doing so, however, I wish to give you an opportunity to respond to these concerns and the proposed dismissal.
Accordingly, I require you to attend a meeting with me at 9:00 AM on 23 October 2012 to discuss these matters.”
On 27 October 2012 the applicant wrote to Mr Michael (document 45) relevantly stating:
“I reluctantly write to request that we reduce my present arrangement at michaels, within the Media School from three days down to two days per week.
While I love my job in michaels Media School, I am really upset with the recent discussions, meetings and emails regarding my employment arrangements and changes to my duties where I have been directed to do work of quite different duties from the job I accepted, and have been threatened with termination of my employment.
The amount of pressure being placed on me to change the nature of my job is unrelenting, and causing me a great deal of stress, which is not good for my health. This all really started when I made a simple request for a review of my pay in December of last year and I feel that the request has caused a lot of negativity directed at me. For instance, I have raised on a number of occasions the way in which my manager has been [sic] behaved unprofessionally towards me and been verbally aggressive towards me.
I request to begin in working two days per week from Monday 29 October 2012.
You have previously said I can reduce my days by mutual agreement and I am now asking that we do so.
Can you please reply as soon as possible.
I look forward to your response, and continuing my role in the michaels Media School.”
The response from Mr Michael dated the same day, 28 October 2012 (also document 45) relevant asserts:
“As we discussed last Wednesday & Thursday you lodged an application for FWA to deal with a dispute in accordance with a dispute settlement procedure dated 19 October 2012. On Thursday, I advised that we would halt all discussions/processes related to any aspect of conditions related to your employment until subsequent to the FWA determination.”
On 29 October 2012 the applicant wrote to Mr Michael resigning her employment which was accepted almost instantly by Mr Michael (document 46).
The applicant’s resignation letter raises a number of matters, but the kernel of it is perhaps in the following:
“I feel I have been forced to give up this job I like because I am really distressed and upset with the recent discussions, meetings, negotiations and emails regarding my employment conditions and the way I have been treated. I have been directed to do work of substantially changed duties from the job I accepted, and have been threatened with termination of my employment. This threat of employment termination was sent via email at 6.15pm one night, requesting I attend a meeting the following morning. In essence, the email said if I didn’t attend, I could be sacked. Luckily for me I happened to check my emails that night, otherwise I would have been terminated. On top of this I have been subject to bullying and threatening behaviour by my manager which all started after I asked about my pay being reviewed.”
The letter went on to iterate a number of complaints about the treatment of the applicant by the respondent and noted the very considerable effects that the stress of all these matters had occasioned to the applicant, requiring medical treatment.
Fair Work Australia listed the dispute for Conference on 1 November 2012, but on 30 October 2012 FWA notified a cancellation of listing as the matter had been withdrawn (document 47).
It is apparent from medical certificates (documents 48 and 49) that the applicant was unwell at the least and unable to work from 31 October 2012 until 8 November 2012 due to work related stress.
On 1 November 2012 Mr Michael wrote to the applicant (document 49.1). The body of the letter relevantly commences “I refer to your resignation email of 29 October 2012 and for the record, I wish to clarify our position.” That letter, while consistent with the evidence given by the respondent, was plainly designed, (whether consciously or otherwise), to be somewhat self-serving.
Thus far the matters recorded have been as I indicated at the outset relatively uncontroversial, because the documents speak for themselves and are not the subject of any significant challenge. At this stage however, it is necessary to look at what the parties did not agree about. To do that requires an analysis of the evidence given.
What follows is not taken from transcript, but from my notes. It does not purport to be an exact record of what the witnesses said. Furthermore, because there is so much documentation, I propose to a considerable extent to paraphrase that evidence that is given because I have come to clear views as to where the truth of the facts lie.
The applicant’s evidence in chief
The applicant said she was keen to progress as a trainer and undertook a certificate in training which enabled her to take work as an instructor. She approached the respondent via the website and, as already indicated in the agreed section above, she achieved employment.
Having started work on or about 4 March 2011, she worked in a media school. She taught Adobe elements and, in teaching students, explained the nuts and bolts of the software. She also conducted what was described as a “day walk” together with other classes also.
The applicant said she was leading the day walk from January 2012.
The applicant said her manager was Alwyn Hanson, who was a full-time employee, whereas she was part time. She generally worked three days per week but sometimes four or five. She said there were some other persons involved in marketing on a periodic basis. The applicant worked generally Tuesday, Wednesday and Saturday more than other days.
The applicant emphasised the instruction aspect of her employment and pointed the Court to document 7 which referred to the team at michaels Media School as “experienced, fully qualified teachers”.
As earlier indicated, the applicant stated that documents 9 to 9.3 were the only payslips she had. These were not given to her from time to time but could be seen if you logged in. The work included Wednesday nights, Saturday and Sunday work but the pay rate was always the same.
The applicant confirmed she had submitted these matters to the FWO. She said she was told she would be working in the media school and was given a name tag with a title, Lecturer.
The applicant said she loved the work and was happy with her wages which were what she had accepted. In December 2011, she and Mr Hanson were driving to Sandown Racecourse for a sports photograph when she asked about getting an increased rate of pay. Everything was going well. She said Mr Hanson responded favourably and he said he would look into it but nothing actually happened. The applicant asked Mr Hanson again in January 2012 about her pay and she said that he yelled at her and said he was discussing the matter with Mr Michael.
In February 2012, she had still not heard so she asked again and she said Mr Hanson yelled at her, “The matter is in hand with Peter Michael.”
In March 2012, the applicant raised her pay again with Mr Hanson. She was sitting at Grant Petite’s desk and the applicant said that
Mr Hanson snapped at her, “It’s in discussion. It’s in hand.”
The applicant says she asked again later in March about her pay and said that Mr Hanson replied that it was not fair if she got paid more than others. The applicant said she replied that others in the media school got the media school rate of $40 per hour and that she was not asking for more than them. The applicant said Mr Hanson yelled at her, “It’s in discussion with Peter Michael”, so loud that everyone throughout the office could hear.
In April 2012, the applicant asked about her pay again and she said that Mr Hanson yelled at her and told her to stop asking. Mr Hanson’s replies were constantly to the effect that “it’s in discussion”.
A further discussion with Mr Hanson took place in April, in media room 3, when she asked again about her pay. She said Mr Hanson said she could only increase her pay if she became a casual. According to the applicant, she asked for an offer to be put in writing but never received one.
Thereafter, the applicant said she started thinking about awards. At some point, Mr Hanson said to her in the April discussion, words to the effect, “You’re not a teacher. You’re not university qualified.”
Mr Hanson said, “You’re on retail rate.”
At what I think was yet a further meeting in April (although the evidence is not entirely clear and it may have been at the one just described), the applicant was sitting at a desk with Mr Hanson standing next to her. She asked again about her pay and, according to the applicant, Mr Hanson blew up, yelling and red in the face and shouted, “You’re not university qualified.” The applicant replied that she was an instructor. Mr Hanson said, “You’re in the retail award. You’re not right. You’re definitely wrong.”
The applicant said in the witness box that this episode upset her and, indeed, she became labile at this point.
The applicant said the next time she went to work, she asked to meet Mr Michael and she complained to him about Mr Hanson’s behaviour. She also told Mr Michael that she was not in the Retail Award. Mr Michael said she was. The applicant asked Mr Michael about overtime and penalty rates and he replied that she was not university qualified. The applicant replied that she knew that but nonetheless she should be employed under a different award.
The applicant said the next time she was at work, Mr Michael said the only way to resolve this difference of opinion was for her to complain to the FWO. The applicant did not wish to do this but Mr Michael said this was the only way and, as a result, the applicant lodged a Form 2 to the FWO in late April 2012. Document 17 is what the applicant emailed the FWO. The teaching she performed was non-accredited.
The applicant said that one day at work after she had lodged her complaint, Mr Hanson said, “Haven’t you got anything better to do than come in?” This was one of her scheduled days at work. She said she was then berated during the day walk about not wearing the media school’s shirt. The applicant said she had previously asked Mr Hanson what to wear and he allegedly replied that, “It did not matter, it’s your call.” Mr Hanson then asked the applicant why she was not wearing the Michaels lanyard but, in fact, no such lanyards existed. The applicant’s evidence was that Mr Hanson said this in a loud, aggressive voice in the presence of some six students.
Later, the applicant was blamed by Mr Hanson and Mr Michael for the cancellation of a class. A client did not have the appropriate lens for a class and wanted to borrow one. Lenses were available. The applicant said she would check but Mr Hanson said borrowing was not permitted. The client then cancelled and the flow on was the cancellation of the class for which she was blamed.
Later again on another occasion at work while the applicant was checking if everything was ready, the applicant said Mr Hanson walked past saying, “What are you doing here? You’re not needed.” She replied in return, “Normal day.”
The evidence then traversed an issue about the applicant being blamed for making an adjustment to the “wallpaper” following which
Mr Michael later said to the applicant that she needed to think if she needed to work a third day. On this occasion, according to the applicant, Mr Michael also said that sales people are also teachers. The applicant replied she was an instructor. This incident took place in July and the applicant’s notes of 20 July 2012 were made at the time.
The applicant’s notes of that meeting have, of course, already been summarised above.
The applicant said that soon after her Fair Work complaint (30 April 2012), Mr Michael asked her to create a log of the hours that she worked every day. (This is document 18.1 to 18.12).
The applicant said that she had a meeting on 20 July 2012 and complained at least twice about Mr Hanson’s bullying and unprofessional behaviour. She also wrote to the FWO complaining that her employer was trying to downgrade her to the sales floor and she was concerned that this was because of her pay claims and her complaint about Mr Hanson’s behaviour. (That letter is document 20).
A further meeting on 24 July 2012 is the subject of the notes (document 21) that have already been dealt with above.
Thereafter, the FWO wrote to Mr Michael, who gave the applicant a copy of the letter. The letter told the respondent to pay the applicant according to the Education Award and that penalty rates were not applicable.
The applicant pointed to document 24, being her own letter to the FWO, about the level of her qualifications applicable to her award classification.
The applicant was taken to document 243, being the FWO’s letter to Mr Michael dated 25 July 2012, and said she had only recently seen it.
The applicant confirmed she was not paid penalty rates and was classified at level 1.
The applicant was taken to document 248, being the FWO’s letter to Mr Michael, 17 August 2012, and likewise she had only recently become aware of it. The applicant confirmed she was not paid in accordance with the Education Award.
Following receipt of document 27, being the last letter received by the applicant from the FWO, a meeting took place in August between herself, Mr Michael and Mr Hanson. At this meeting, they were telling her that she would have to work one day per week in retail sales. The applicant said Mr Michael also told her she need not feel bound to be there and should feel free to get a job at another place down the road. When saying this, Mr Michael allegedly pointed down the road.
The applicant was taken to document 34, the typeset of which was
Mr Michael’s. The applicant asked why she was required to work in sales and he replied that this was to learn more about cameras. The applicant replied that she might not like retail and might work less.
The applicant also complained of being berated by Mr Hanson at a macro-photography class in front of students. This, in my view, was a reference to the lens issue described above.
The applicant gave a spreadsheet to Mr Michael based on her contact hours showing she was owed $2031.50 (document 29 to 29.1), but
Mr Michael said he did not have to pay. The applicant told Mr Michael that the FWO had told him to pay as per the award, which he challenged. She gave him a copy of the award. Both Mr Michael and Mr Hanson insisted the applicant work one day in retail.
The applicant claimed back pay for penalty rates, but Mr Michael said there was no entitlement under her letter of offer.
The applicant conceded that she was offered a five per cent pay rise. She said she cried in front of Mr Michael because she was complaining about Mr Hanson and had had to leave the room.
An issue arose as to the applicant being paid at one and a half times the ordinary rate of pay, but Mr Michael did not accept this and would not take the matter back to the FWO.
The applicant complained that Mr Hanson sabotaged her one-on-one training statistics and allocated training to someone else.
The applicant traversed the material already set out in the agreed section above about the email exchanges and meetings between her and the respondent, Mr Michael, in October of 2012. The applicant’s evidence about these matters is, in my view, sufficiently indicated by the documents concerned.
The Applicant under Cross-Examination
I do not propose to traverse the applicant’s evidence in cross-examination in any great detail. I propose to record only more salient points.
The applicant was cross-examined about the nature of her duties and how long it took her, so to speak, to get up to speed. I found the applicant’s evidence in this regard responsive and convincing. It should be noted that there were clearly some aspects of the work the applicant performed for the respondent that were not familiar to her and it is scarcely surprising that it took her some time to become adept. The applicant conceded that she was properly inducted. Although she had some complaint to make, the clear impression I got from her evidence is that she was adequately trained by Michaels to discharge her duties.
When taken to her first claim for an increase of pay made to
Mr Hanson in about December 2011, the applicant conceded she had asked for a pay increase and had said on that occasion, “I have to put food on the table.” She said that Mr Hanson agreed that her pay rate should be increased but conceded that Mr Hanson had no power to approve a pay increase. He said he would ask Mr Michael.
The applicant was cross-examined about her pay discussions with
Mr Hanson in January 2012. She did not agree that Mr Hanson was always loud, or that he was an extrovert and an “out there” personality. She said Mr Hanson was rude and abrupt to her.
The applicant was pressed as to whether Mr Hanson yelled and shouted at her and strongly maintained her assertion that he had. The applicant denied asking for a pay rise every time she spoke to
Mr Hanson.
The applicant conceded that, in April 2012, Mr Hanson told her to stop asking and that he had told her the only way she could get a pay rise was to become a casual.
The applicant said that she was quite timid, but that every time she asked for a pay rise, Mr Hanson became heated.
Following the incident in late April where Mr Hanson conceded he acted inappropriately, she asked to meet Mr Michael, who told her, inter alia, that she was employed pursuant to the Retail Award and not university qualified. The applicant said Mr Hanson never apologised to her.
The applicant said that, after the FWO complaint, she did not ask for a pay rise, as she knew the matter was with the FWO.
It was put to the applicant that the respondent agreed a five per cent increase to her pay in April 2012, but she did not accept this was the case. She said the matter was raised first in about August or September 2012.
The applicant denied that Mr Hanson said that a pay claim for $40 per hour was unreasonable and said that she had not, in fact, claimed $40 per hour. She said Mr Hanson did not mention the Retail or Teachers Award and that she had not mentioned a 30 per cent increase herself. The applicant denied being obstinate and difficult and said that she was right. She said that she had done new work when asked to do so.
It was put to the applicant that the remark about “why come in” on
2 May 2012 was a joke, but she denied that this was a joke. She said that she asked Mr Hanson to repeat this remark and could not believe it. She said he was not laughing and nor was she.
The applicant was cross-examined in some detail about the various instances where there were difficulties over what the applicant wore and about camera lenses and the like, which have already been detailed earlier, and she stuck to her position. The applicant was cross-examined about salespeople teaching the use of cameras and conceded this could be the case. She conceded that some salespeople teach in the media school.
At the meeting on 20 July 2012, Mr Michael was concerned with the best use of the applicant’s time. He was concerned with the amount of preparation time for one class. Mr Michael said that the applicant was taking more time in preparation than others and had asked her to think about whether she should be there for a third day.
The applicant was taken to the FWO letter of 7 September 2012 (document 27) and conceded that she received it. She conceded that she copied only part of this letter to Mr Michael and had not included the part of it which asserted that the applicant was not entitled to payment for preparation. Tellingly, the applicant said, “I didn’t think I should be working for nothing.” The applicant confirmed that she was trying to enforce a 1.25 per cent loading for each of her contact hours after she had been given her hourly rate by the FWO.
The applicant also conceded that Mr Michael, in the meeting in August 2012, wanted her to work in the sales floor to learn more about cameras. She said the sales floor was a pressured environment. She has not worked in the bag and accessories area. She conceded
Mr Michael never said she would be paid less if she worked on the sales floor.
The applicant had asked for back pay on penalty rates under the Retail Award. She understood, however, that no penalty rates were payable to her under the Education Award. It was put to the applicant that she resigned because she knew that at the foreshadowed Fair Work Australia hearing, it would become apparent that she had deliberately made claims for preparation to which she knew she was not entitled under the Education Award. The applicant denied this and said that she understood that she was entitled to back pay under the Retail Award. She did not accept that she knew she was going to lose in Fair Work Australia.
The applicant repeated that she knew that the FWO’s letter said that there was no payment for preparation, but she did not think that she should work for nothing. She said it was not in her mind that she had suppressed the FWO advice about no pay for preparation. She said that she worked very hard and that Mr Michael identified only one instance where it took her an excessive amount of time to prepare. She said she could not say how long other people took to prepare.
The applicant said that she considered a move to sales a downgrade, and that she had never attended any sales training.
By leave of the Court, the applicant was permitted to give evidence of her work since her employment with the respondent ceased. She has worked as a freelance camerawoman and then obtained work as a fitness instructor, which has gradually increased. Her photography is gradually decreasing. She is paid on an hourly basis and performs about 30 hours a week as a fitness instructor, for which she is paid $25.88 per hour.
The Evidence in chief of Mr Hanson
Mr Hanson has been employed by the respondent for six years and is in charge of the media school. He has been in retail for almost 30 years and management for about 25 years. He has extensive camera experience. The media school is very successful, and he presently works for five days per week teaching. He also works from home and undertakes photo walks.
Mr Hanson described the way in which the applicant was recruited and trained and, in due course, worked with him to an extent. Initially, they had a very good relationship.
Mr Hanson knew the applicant’s rate of pay, which he had a part in setting. Mr Hanson said $45,000 was an average salary in sales.
In December 2011, on the way back from Sandown Racecourse, the applicant said to him that she would earn more if she worked for Safeway.
Mr Hanson said he replied that he would discuss the matter with
Mr Michael in the New Year. When she asked him again, he said he would pass it on to Mr Michael. It was not his job to approve a pay rise. There were a series of conversations. At the second conversation, Mr Hanson said he offered the applicant a five per cent increase. The applicant responded that she had had advice that she was not employed as retail staff and should be paid under the Education Award and had raised the prospect of being paid $40 per hour. She said this had come from the FWO. Mr Hanson said this would be impossible.
Mr Hanson said he was going back and forth and that Mr Michael rejected the applicant’s request. Mr Hanson said he had never had a situation where an employee told him he was wrong. There was definitely tension between him and the applicant thereafter.
There were a series of discussions about the applicant’s pay. On one occasion, she was sitting at his desk and Mr Hanson told her that she was part of the Retail Award. She replied that he was wrong.
Mr Hanson said he got a bit flustered. He was frustrated. He apologised to her a few days later, as he had raised his voice to her, and this should not happen.
Mr Hanson said he would step back from the pay issue, but tension with the applicant continued thereafter. He said that every time he tried to expand her role she would say “that depends.”
The applicant’s version of the event in April 2012 was put to him.
Mr Hanson said he was a fraction irate and told her she was part of the Retail Award. He was trying to be firm about his position. The applicant was saying he had underpaid her, and he took that personally, which he conceded was wrong.
Classes continued throughout the rest of the year, and Mr Hanson said his relationship with the applicant was totally professional. He denied berating the applicant in front of the class about the media school shirt issue. He said he might have made an amusing remark. I would interpolate and say it is quite clear he did indeed take the applicant to task for this.
Similarly, his responses on the question of the Michaels lanyard issue suggest to me that this was indeed raised with the applicant in front of the whole class.
Mr Hanson denied berating the applicant on the customer lens issue, but said that he could not recall blaming the applicant because the class was cancelled. The matter sits so vividly in Ms Hewitt’s memory that I think her version is more probably correct.
Mr Hanson was further examined about his relationship with the applicant between April and September 2012. He conceded there were tensions between them. She constantly questioned him about a pay rise, and it reached a stage where he took a step back because the matter was with the FWO. On the occasion when he lost his self-control he knew he had upset her, and Mr Michael took him to task for this.
Approximately two months after April 2012, Mr Michael told
Mr Hanson that he was upsetting the applicant and told him to be careful. He said he tried to be as careful as he could and, as it were, step back.
Towards the end of the applicant’s employment, Mr Hanson stopped her doing portrait and macro classes because she lacked knowledge of the cameras. He did these by himself from October 2012 onwards. This evidence was given with evident sincerity, and I accept it.
Mr Hanson was taken to document 44, being the proposed dates for the applicant’s work in the latter part of 2012. He said that initially the applicant and he worked really well together, but this changed between December 2011 and April 2012 when the applicant was wholly focused on her pay rise and was nagging him. When he did not produce what the applicant wanted this led to tension. He said there were no other issues with the applicant.
Mr Hanson under cross-examination
As with the applicant’s evidence, I do not propose to traverse the cross-examination of Mr Hanson in considerable detail. The applicant’s versions of events were clearly put to him. Mr Hanson conceded the initial discussion about pay in December 2011. He said he had told the applicant that he understood that she wanted a pay rise and that she needed to put food on the table. He had had a casual discussion with Mr Michael in the New Year and told him the applicant was seeking a pay rise. The matter was raised again in March 2012, and Mr Michael said he would look into it.
Mr Hanson conceded that the applicant would have followed up her first inquiry with him in January 2012 and that he told her it was being discussed with Mr Michael. He denied shouting at the applicant and said there were an awful lot of conversations about pay. The applicant was quite insistent, and every conversation with her was about her pay rise. He said that as far as he was concerned, a review was due in March 2012.
There were lots of meetings, although formal meetings were rare. The applicant would ask about her pay rise, and he replied that he had passed it on to Mr Michael. He had not followed up with Mr Michael.
In March 2012 Mr Hanson was asked by Mr Michael to meet him, and as he went past the applicant she asked “Is that about my pay rise?” He said “No”. He did not yell at the applicant and was not annoyed. He was focused on going to see Mr Michael.
When it was put to him that he shouted at the applicant on 31 March 2012 about her being on the Retail Award, Mr Hanson said any conversations about retail were after a pay offer was made. He was certain that the respondent offered a 5 per cent increase in April 2012. Mr Michael told him to put the offer to the applicant, and he went and told her. It was not put in writing. When challenged, Mr Hanson was clear, saying “I’m telling the truth. The offer clearly happened, I’m under oath.”
Mr Hanson said the offer was made in the period March to April 2012. The applicant queried the amount and said she was employed under the Teaching Award, but he replied she was in the retail business. He did not recall saying it was not fair that she should be paid more than others.
Mr Hanson said that retail staff are used as teachers. He himself has a Certificate IV in Training, as does the applicant. Retail staff do not have Certificate IV. The applicant said the rate of $40 per hour was paid in the media school, which was $17.23 more than her. She said the award figure was $40 per hour and was known as the media school rate. The respondent offered a 5 per cent pay rise, but she rejected it and said she was payable under a different award, but he had said she was payable under the Retail Award. Mr Hanson said he passed the purport of this information to Mr Michael and was not seeking to coerce the applicant.
On 4 April 2012 there was discussion between the applicant and
Mr Hanson. Mr Hanson said that at that point an offer had already been made and that he did not tell the applicant to stop asking. He said the applicant firmly believed she was correct and said that her award was based on teaching. Mr Hanson said that he said to her firmly that she was in a retail store, and she replied he was wrong. He conceded in the witness box “She was correct, I must admit”.
There was no mention of another award until March 2012. The applicant just wanted a pay rise.
Mr Hanson was questioned about the meeting on 13 April 2012. He denied that he said the applicant’s pay could only be increased if she was casual. The applicant had a figure in mind and had an award she wanted to be in. He said “We have lots of casuals, and why not do that as an option?” He said he was trying to help the applicant and tried to help her as much as he could.
Mr Hanson was taken to document 15, being the applicant’s notes of a meeting on 13 April 2012 and accepted that they were about right. He made the point it was not his job to set the applicant’s rate of pay.
Mr Hanson was cross-examined about the incident on 21 April 2012. The applicant asked Mr Hanson about her pay and award coverage. He was standing because the applicant was seated at his desk. He raised his voice and told her she was a retail employee.
Mr Hanson told her he had been in retail for many years and that she was wrong. Mr Hanson’s evidence was that he was stern but not abusive. He was getting quite frustrated. The applicant had asked for a pay rise and been offered one, which she had not accepted. The applicant was very focused, and no matter what he said she said he was wrong.
Mr Hanson said that he did not bully the applicant. He overstepped the mark on one occasion and was told not to do so by Mr Michael.
When questioned about the incident on 2 May 2012 when he said
“Do you really need to be here?”, he said that this was his warped sense of humour and was not intended to be anything more. He said that he had said something like this to Mr Michael on Saturdays also and that he had made this comment to others. It was not meant to be rude but was simply his warped sense of humour. I should interpolate again that strange though this evidence was, it was given with evident sincerity, and indeed I accept it.
Mr Hanson was taken in some considerable detail to the allegations in paragraph 15 of the Statement of Claim. In general, he denied the assertions that he had berated the applicant.
Mr Hanson conceded that on 12 September 2012 (paragraph 15(p) Statement of Claim) the applicant had provided a spreadsheet to
Mr Michael. It was after this meeting that Mr Michael told the applicant that her duties should change. Mr Hanson said he had told Mr Michael it would be a good idea for the applicant to work on the shop floor numerous times.
The evidence in chief of Mr Michael
Mr Michael is a chartered accountant by profession and has been the managing director of the respondent for some 15 years. The respondent employs between 60 and 70 employees, of whom about 30 work in retail. The media school is important but small. It constitutes about 1 to 1 ½ per cent of the business.
Mr Michael gave evidence of the engagement of the applicant and said that he had thought at the time that the relevant Retail Award applied.
Mr Michael became aware that the applicant was asking for a pay rise in about late 2011 or early 2012. He was not specifically aware of the applicant’s duties in the media school.
He said Mr Hanson came to see him and told him that the applicant had asked for a pay rise. He responded that the applicant was fairly paid. Mr Hanson had mentioned that the applicant was concerned that casuals were paid more per hour than she was. He replied that the applicant had come from casual employment and she might prefer to be casual rather than a part-time employee. The matter went backwards and forwards, and he left it with Mr Hanson because he was her manager. This process went on for a number of months. Mr Hanson was the meat in the sandwich.
In April 2012 Mr Michael offered the applicant a 5 per cent pay rise. This was confirmed in writing in about September/October 2012 but had, as he understood it, been made earlier by Mr Hanson.
At some point Mr Hanson was unable to handle the applicant, and Mr Michael met her with Mr Hanson and the finance manager. The outcome of the meeting was that the applicant insisted she should be paid under a Teaching Award, and Mr Michael was certain she was properly paid under the Retail Award. The applicant had done some research and suggested that the FWO should adjudicate. Mr Michael thought this was a good idea, as it would give certainty.
Mr Michael gave evidence of his discussions with the FWO about the applicant’s duties. He said it was agreed with the FWO that the applicant should prepare a log of her duties. He told the applicant he wanted a record. After some time, the applicant made a spreadsheet which he sent on to the FWO.
Mr Michael gave evidence about his conversation with the applicant about the amount of time it took her to prepare for classes. He asked her why it had taken her two and a half hours to prepare for a two hour class. She replied that she had to be prepared for the worst. Mr Michael responded that most customers want to know the basics. He said it was not necessary to learn the whole thing, and that she could ask if anything was raised that she did not know.
The outcome of this conversation was that Mr Michael was in shock that the applicant was wasting so much time and money on preparation. He said in his evidence that “we have to maximise our return”.
Mr Michael gave evidence about becoming aware that the applicant said that Mr Hanson was bullying her. He said there was no specific detail. He said he confirmed with the applicant that she had had a copy of the respondent’s policy and that she could make a formal complaint. After this conversation with the applicant, he spoke with the training manager to make sure that the applicant was properly inducted.
The applicant had earlier raised some difficulty with Mr Hanson, and he had told Mr Hanson to be mindful of what he said and to apologise. Mr Michael’s evidence was that the applicant never gave him details but just said that Mr Hanson was bullying her.
Mr Michael’s evidence was largely a matter of commenting on the documents which have already been traversed earlier in his decision. It is clear that in the fullness of time, Mr Michael wanted the applicant to work in retail. He said that it was “my right to ask people to do work as long as it is not harsh or unreasonable”. The applicant refused to work in the accessories area, and he had a meeting with her to say how serious this was, because he had to call a halt to it.
He said the applicant steadfastly refused, and then said that Mr Hanson was bullying her. He told the applicant he had never had an employee who says they won’t do something. He did not know what to do, and it was a serious matter. He asked the applicant if she really wanted her job, but retracted this the next day at a meeting. He told the applicant to go home and think if she wanted to work there.
Mr Michael under cross-examination
Mr Michael could not recall how the applicant’s pay rate had been struck. He said it was more than the retail rate, and that $45,000 was a reasonable rate which he had probably come up with himself. He confirmed that it was he who decided any pay rises.
When cross-examined about the various times that Mr Hanson had approached him about the applicant’s pay, Mr Michael did not seem to me to have a particularly clear memory. He did remember making a suggestion that the applicant could go casual when the applicant raised the issue of being paid less than casual employees. It was put to Mr Michael that the log of hours that he had requested the applicant to prepare was done to single out the applicant, but he denied this. He said this emerged from discussion with the FWO and would not have come out of thin air.
Mr Michael was taken to documents 273 to 281, being spreadsheets of the applicant’s hours of work. He said he might have sent multiple spreadsheets to the FWO. Although it is not a matter of any great moment, the answers given about documents 273 to 281 had all the appearance of being made up by Mr Michael on the run.
Mr Michael did confirm, however, that he was very interested in the fact that he did not think that the applicant was making the best use of her time.
Mr Michael could not recall telling the FWO the applicant was not qualified. He knew that the applicant had a teaching qualification.
Mr Michael was taken to the applicant’s notes, (document 26), of the meeting on 28 August 2012. He denied pointing down the street and denied raising a change to one day on the shop floor at that meeting. I would interpolate and say that it is clearly the case that the applicant’s notes are correct.
When it was put to him that he was seeking to change the applicant’s employment contract by making her work in the retail area,
Mr Michael denied this. He said they were not seeking to change her contract, but he wished her to do sales.
When taken to the applicant’s notes of the meeting dated 18 October 2012, Mr Michael denied directing the applicant to work in retail. Once again, it is clear that the notes are correct.
Indeed, when recalled to be further cross-examined the following day, it does Mr Michael credit that he had looked at his notes overnight and admitted that he had, in fact, directed the applicant to work one day per week in retail. She had not accepted this instruction and had asserted that he was trying to breach her contract, and he had sent her home with pay.
Mr Michael admitted that he had sent document 42 to the applicant, but appeared to deny that it constituted a threat to her employment. Given the terms of the letter, that is a surprising position.
Mr Michael did not agree that the applicant was at this time clearly suffering from a high degree of stress. He did not agree that he had placed the applicant under stress. He did not tell the applicant to work two days per week and did not intend to increase stress on the applicant.
Mr Michael conceded that on 10 September 2012 the applicant had broken down in tears before him and had said she was being bullied. Nonetheless, there was never any detail in the applicant’s complaints, and he had told her to provide details and make a formal complaint either to himself or Deborah Sherger. If there were just general complaints, there was nothing for him to act on, and relationships between him and the applicant were already strained.
Mr Michael denied being happy for the applicant to be bullied and said he had not bullied or harassed her. He denied blaming the applicant for deletion of wallpaper notes or for the cancellation of a class arising out of the lens issue.
When questioned about the amount paid to the applicant, Mr Michael said he had done the exercise of calculating the applicant’s pay by reference to the Teaching Award. He was comfortable that what had been paid was in excess of the award.
Some observations about the credit of the witnesses
The applicant was plainly a sincere witness. She was generally direct and responsive in her answers and clearly believed everything that she said to be truthful. It is very apparent that the events that transpired during her employment by the respondent were increasingly stressful to her at the time and remain distressing to her now. She became labile at times while giving her evidence. This is an important consideration because I have no doubt that the stress that the applicant felt herself under caused her perception of the events at times to be overly acute. Towards the end of her employment there is little doubt that she was to an extent, so to speak, demonising the respondent and its officers.
The same could also be said in reverse of Mr Michael. I have commented some aspects of his evidence unfavourably. He was not entirely a credible witness. However, in the main his answers responded directly to the questions put.
I have left Mr Hanson until last. In many ways he is the most important witness in the case. Most of what the applicant complains of is said to have emanated from his treatment of her in the first instance. My views can be put shortly. Mr Hanson was an outstanding witness. He impressed me as being entirely direct and forthright in his answers. He freely conceded that he had misconducted himself on one occasion and his expressions of regret struck me as being entirely sincere. He was not only, in my opinion, a truthful witness but a good historian.
Findings about the facts
The applicant plainly saw getting a job at michaels as an instructor as a step forward for her of some significance. At various times she was at pains to refer to herself as a teacher or an instructor. As I find, it was an important matter for her own sense of self to be regarded in that fashion, even though the full-time salary for the position was, looked at objectively, extremely modest, being only $45,000. This figure is substantially below average weekly earnings.
Although the applicant was by no means wholly proficient in the duties michaels wanted her to carry out, she clearly became so, although there is an aspect to this that, in my opinion, was unsatisfactory for the respondent. The applicant obviously spent large amounts of time preparing for classes. It is quite clear that Mr Michael thought this amount of time was far too much and was costing him money. The applicant’s attention to detail was, in my opinion, probably greater than otherwise might have been necessary because of her perception that she was a teacher and needed to be able to respond to absolutely any query that might come up. The reality is that Mr Michael did not think that such an amount of time was necessary and was, in any event, unprofitable for his business.
These matters came to light, however, because by December 2011 the applicant was seeking a pay rise. Her contract did not entitle her to one until March 2012. She was plainly a person well prepared to push her own case.
As I find the applicant thought that she deserved a pay rise by no later than December 2011 because her work was going well, in part, and because it would seem entirely clear that she had formed the view that other persons, including casuals, might be better paid. On any view of the matter, she was dissatisfied with her pay by that stage.
It is entirely clear that Mr Hanson did not have the authority to grant the applicant a pay rise. He referred the matter to Mr Michael, who was in no hurry to award a pay rise because he thought the applicant was being paid a fair rate of pay. The applicant, being the sort of person she is, did not let the matter drop. Even on her version of the events, the picture described by Mr Hanson as being nagged is all too clear. I accept Mr Hanson’s evidence that the applicant raised this matter with him very routinely, even though he had told her and continued to tell her that the matter was with Mr Michael.
At the meeting in April 2012 this finally got the better of Mr Hanson and he lost his temper and yelled at the applicant. He apologised relatively shortly thereafter.
At or about the same time, the issue became defined between the parties, first in discussions between the applicant and Mr Hanson and subsequently with Mr Michael as being a question of award coverage.
As it transpired, the better view is that the applicant should have been appointed pursuant to the provisions of the Educational Services (Post-Secondary Education) Award 2010. I note, however, that the view of the FWO was scarcely entirely authoritative. The correspondence from the FWO referred to the necessity of making inquiries with industry players to answer a question that clearly the FWO was unable to answer without making such inquiries.
Importantly, however, the award coverage issue did not in one sense lead to the answer the applicant was hoping for because she was made aware that the preparation time she was seeking was not payable.
The pay inquiries were marching, so to speak, contemporaneously with the concerns of Mr Michael that the applicant was not really earning her pay. It is clear that over time he sought to have her work in the retail areas of his operations. The applicant regarded this as a demeaning step downwards. The people who work in sales do not have a Certificate IV qualification.
The applicant asserted to the respondent that Mr Michael was seeking to change her contract of employment. Mr Michael clearly regarded himself as entitled to demand that any employee perform any work provided it was not harsh or unreasonable. The applicant refused to do sales work and would unquestionably have been dismissed if she had not resigned.
The Law about adverse action
In the recent decision of the Full Court of the Federal Court in State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184, Tracey and Buchanan JJ said at [32]:
“As the trial judge recognised the leading authority on the operation of ss 360 and 361 of the Fair Work Act in the context of Pt 3–1 of that Act (which includes s 351) is Board of Bendigo Regional Institute of Technical and Further Education v Barclay(2012) 248 CLR 500. The principles which informed this decision were recently reaffirmed by a majority of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41. Relevantly, these authorities establish that:
• The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
• That question is to be answered having regard to all the facts established in the proceeding.
• The court is concerned to determine the actual reason or reasons which motivated the decision-maker. The court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
• It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
• Even if the decision-maker gives evidence that he or she acted solely for 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.”
The Claims as Put
The Statement of Claim is, regrettably, by no means entirely easy to follow and puts a number of matters in a fashion that it is not easy to analyse. I have done my best to deal with the various matters claimed in the Statement of Claim construing them as best I can.
The Claim of Constructive Dismissal (Paragraphs (5) and (5A) of the Statement of Claim)
I will set out paragraphs (5) and (5A) of the Statement of Claim:
“5. The Applicant was forced to resign her employment with the Respondent on 29 October 2012. The Respondent’s conduct towards the Applicant left the Applicant with no choice but to resign her employment.
Particulars
The Respondent engaged in a systematic and concentrated campaign of bullying and harassment of the Applicant. The campaign began after the applicant complained about her wages. The campaign included inappropriate conduct towards the applicant including threats to dismiss the applicant and threats to fundamentally change the basis of the employment. Further particulars of the conduct are included in this statement of claim.
5A The Applicant’s forced resignation was a constructive dismissal pursuant to section 386(1)(b) of the Fair Work Act 2009 the conduct was engaged in because the Applicant exercised a workplace right and was in breach of section 340(1) of the Act.”
The written submissions of the applicant at paragraphs 50 to 52 deal with this aspect of the claim (although at paragraphs 53 to 57 the submissions deal with the reverse onus of proof in s.361 of Fair Work Act 2009 (“the FW Act”)). The submissions appear to confirm that it is put that the applicant was dismissed within the meaning of s.386(1)(b) (relevantly a course of conduct engaged in by the employer) as a result of her complaint about her terms and conditions of employment, this being adverse action proscribed by s.340 of the FW Act.
The termination of employment is dealt with at a number of points later in the Statement of Claim, but as far as I can see, the only point at which the assertion of constructive dismissal is dealt with in terms is at paragraphs 32 to 33, where it is pleaded:
“32. The change in duties that were being forced on the applicant together with the ongoing bullying and harassment were to such an extent that the Applicant had no real choice but to call her employment at an end on 29 October 2012 in circumstances of constructive dismissal.
33. Following the decision by the Applicant that she had no real choice but to resign her employment…”
The position is not helped by the fact that the assertion of constructive dismissal wraps together the alleged changing of duties with the alleged campaign of bullying and harassment.
It should be borne in mind that this case is not concerned with whether any dismissal of the applicant was fair or unfair (see Sallehpour v Frontier Software Pty Ltd [2005] FCA 247 at [38] – a decision given under the comparable provisions of the Workplace Relations Act 1996 (“the WR Act”), per Marshall J). Nonetheless, since termination is of its nature an action that is adverse to an employee, the Court is required to consider whether or not the conduct of the respondent was such that the applicant was forced to resign because of conduct or a course of conduct engaged in by the employer.
The applicant’s submissions refer to the decisions of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd PR973462 [2006] AIRC 496, and the Federal Court in Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154.
The Full Bench in O’Meara relevantly said at [23]:
“the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end.”
It should be noted that that decision was concerned with a termination of employment that was at the initiative of the employer.
In this case, there are two sub-parts to the conduct that is said to have caused the applicant to resign. Part of the conduct was the desire of the respondent to change the work that the applicant did.
It is clear that the applicant was appointed to work in the media school. The letter that appointed her made no mention of any work anywhere save in the media school. It is clear the applicant was engaged as an instructor in that school.
While it is also clear that persons who merely worked as sales representatives on the shop floor also to an extent gave instruction, it would seem that they were not required to have the Certificate IV in Training and Assessment qualification which the applicant had.
Clearly the applicant saw the work she did as being superior in quality and status to that of a salesperson on the shop floor, and it was this state of mind that caused her to accuse the respondent of seeking to breach her contract of employment when the alternative duties were posited.
Mr Michael thought he had the power to re-allocate the applicant’s duties and had never had an employee refuse any initiative on his part to do so.
The matter might be thought to be finely balanced in one sense because, looked at objectively (bearing in mind the salary of $45,000 per annum and the relatively straightforward nature of the qualification involved) the applicant's employment was not really at any significantly superior status. Nonetheless, to my way of thinking, there is a difference between being a greeter, meeter, and salesperson on a shop floor and being an instructor in a separate environment where people come to you by appointment, even if some of what you do in the latter might be replicated in the former. I think the applicant was right to say that the respondent was seeking to alter her contract of employment.
At this level of analysis, the applicant resigned from her employment because she felt herself forced to do so because of the respondent’s conduct in insisting upon what seemed to her to be a very significant change of duties. In my view, this comes in the ultimate within the meaning of a dismissal pursuant to s.386 of the FW Act. But I repeat, this is not an unfair dismissal claim, but an adverse action one.
I am quite clear in my mind that the applicant was not forced to resign by a course of conduct of bullying on the part of the respondent. She was not harassed either. The fact is that Mr Hanson lost his temper once with the applicant, and there is no serious suggestion that
Mr Michael was ever anything other than courteous, albeit that his relationship with the applicant became strained throughout the course of the applicant's pay complaints.
The desire of the respondent through Mr Michael to change the duties of the applicant did not flow at all from the applicant's complaint about her rate of pay. Rather, it emerged because Mr Michael was of the view, not in my view an unreasonable one in the circumstances, that he was not getting a sufficient amount of work out of the applicant for the hours that he was paying.
Thus, the claim relating to s.340 of the FW Act must fail. Not only was the applicant not subjected to a campaign of bullying and harassment, but none of what the respondent did that caused contributions to the decision of the applicant to resign occurred because the applicant made a pay claim.
The claims at paragraphs 6 to 9 of the Statement of Claim
At paragraph 6, the applicant's request for a pay increase in December 2011 is pleaded. It is conceded that this enquiry was the exercise of a workplace right as defined in s.341 of the FW Act (respondent’s written submissions paragraph 11). At paragraph 8 of the Statement of Claim it is pleaded that Mr Hanson acted in a bullying manner to coerce the applicant to cease pursuing her workplace rights in breach of s.343 of the FW Act at the meetings in April 2012. It is also pleaded at paragraph 9 that the respondent’s conduct in relation to the applicant’s follow-up enquiries and meetings constitute adverse action, in that it made the applicant's position at work less secure than it had been prior to the conduct.
The difficulty with this aspect of the complaint is that while I accept that Mr Hanson yelled at the applicant once, I am not able to accept – and should make it clear that I entirely fail to accept – that Mr Hanson acted in a bullying manner by speaking aggressively, abusively or contemptuously, to the applicant on a number of occasions. He spoke aggressively and loudly on one occasion.
Furthermore, while Mr Hanson was clearly seeking to express his point of view about what the appropriate award coverage was, it was clearly not in any way in his mind that he was seeking to coerce the applicant to do anything. To raise this single conversation to that level of activity is to take it far further than it can go.
Furthermore, I do not accept that the conduct of Mr Hanson was, as alleged in paragraph 9, adverse action in that it made the applicant's position at work less secure than it had been prior to the conduct. Once again, this goes further than the single instance can justify. Furthermore, the phrase pleaded “made the Applicant's position at work less secure than it had been prior to the conduct” is not replicated in s.342 of the FW Act, where adverse action is defined. Insofar as it might be said to injure the employee in her employment, or alter the position of the employee to her prejudice, I do not think that in all the circumstances of the case Mr Hanson’s conduct, as I have found it, can be said to constitute adverse action.
The matters alleged in paragraph 14 of the Statement of Claim
The applicant as is common cause lodged a complaint to the FWO. It is conceded that this was the exercise of a workplace right. It should be noted that it is quite clear that Mr Michael was entirely in favour of submitting the matter to the FWO.
At paragraph 15, it is pleaded that immediately after the applicant queried her pay (I take this to be the referral to the FWO) both
Mr Hanson and Mr Michael instituted “an ongoing campaign of bullying, harassment, and threatening comments”. It is pleaded that the conduct of the employer was conduct that resulted in the applicant coming to the view that she had no real choice but to resign her employment. It is pleaded that this constituted adverse action pursuant to item 1 of the table in s.342(1), and further that it was conduct intended to coerce the applicant with the intent that she not exercise her workplace right in breach of s.343(1)(a) of the FW Act.
I should make it clear again that I do not think that there was an ongoing campaign of bullying, harassment, and threatening comments by Mr Hanson and Mr Michael. The respondent in the person of
Mr Michael was perfectly prepared to let the matter go to the FWO, and maintains even now that referral showed that no moneys had been underpaid to the applicant, albeit that she was being remunerated under the wrong award. The respondent did not do anything to the applicant to her detriment as a result of her raising her pay claims with the FWO.
Furthermore, the respondent was not seeking to coerce the applicant not to exercise the workplace right of referring her complaint to the FWO. The respondent co-operated in the process.
In paragraph 15 of the Statement of Claim, there is a long list of particular matters said to constitute “adverse conduct”. It is not in fact clear from the pleading whether these matters are said themselves to be adverse conduct but that is the inference I draw.
Rolled up pleadings of this sort are difficult in many ways to disaggregate.
So far as the facts alleged in subparagraph 15(a) are concerned, I am unable to make a finding as to this matter but, on any view, it was hardly more than trivial.
The same should be said about the allegation at paragraph 15(b).
As to the allegation contained in subparagraph 15(c), “Haven’t you got anything better to do than come in?”, I accept Mr Hanson’s explanation for this matter. However misconceived, it was an attempt at levity.
It is clear that the applicant was required to keep a log of hours for the tasks that she performed by Mr Michael in May 2012 (subparagraph 15(d)). This was an endeavour by Mr Michael to participate in the complaint to the FWO. It was not in any sense unlawful, albeit that no other employee was asked to do so.
The allegation that Mr Hanson berated the applicant for not wearing a Michaels lanyard (subparagraph 15(e)), is not made out. While it is clear there was some discussion and possibly difference of opinion between Mr Hanson and the applicant, it did not amount to berating or to unlawful conduct.
The allegation contained in subparagraph 15(f) that the applicant was unfairly blamed for the cancellation of a class is not, in my view, made out although it is clear a class was cancelled. To the extent that any blame may have been apportioned to the applicant, in my view it was certainly not because of the exercise by her of any workplace right or with intent to coerce her in relation to any such right.
The matter contained in subparagraph 15(g) is, in my view, of trivial significance and I am not able to make a finding about it in any event.
The matter alleged in subparagraph 15(h) at worst simply constituted a misunderstanding.
The matter contained in subparagraph 15(i) is incapable, even if it occurred, of constituting adverse action.
The matter contained in subparagraph 15(j) relates to the endeavours, as they came to be, by Mr Michael to change the applicant’s duties. I have already made it clear that I do not regard this as in any way activated by the exercise by the applicant of any workplace right or intention to coerce her in relation to such a right.
So far as the applicant complained to Mr Michael, as alleged in subparagraph 15(k) of the Statement of Claim, I have accepted
Mr Michael’s evidence about these matters. On the one occasion when the applicant raised specific matters, he admonished
Mr Hanson who apologised. Otherwise, he made it clear to the applicant that in the absence of a formal complaint and merely generalised assertions, he was not in a position to act.
The matter alleged in subparagraph 15(l) is incapable of constituting adverse action.
The matter in subparagraph 15(m), like many of the matters to which reference is made, is a minor matter which has achieved a greater significance in the applicant’s mind than objective scrutiny of it would establish.
The matter alleged in subparagraph 15(n) is simply an assertion as to what took place. It reflects the disagreement between the applicant and the respondent as to her correct award coverage. This was not part of a campaign of bullying but merely an assertion by the respondent, through Mr Hanson and Mr Michael, of what they genuinely believed the position to be. It was not adverse action.
The matter alleged in subparagraph 15(o) relating to alleged bullying by Mr Hanson is covered by paragraph 224 above.
The matter alleged in subparagraph 15(p), to the extent that it is made out on the facts, is incapable of constituting adverse action. It simply records the genuine disagreement between the parties as to the applicant’s award coverage.
The matter alleged in subparagraph 15(q) is clearly established. There is no doubt that Mr Michael threatened to terminate the employment of the applicant. It is not asserted, however, how this fact constituted adverse action. In my view, it was part of a process whereby
Mr Michael was seeking to enforce what he regarded as his prerogative to tell employees what work to do. This did not occur because the applicant had raised issues as to her award classification or rate of pay. It did not occur because there was an attempt to coerce the applicant about any complaint she made about these matters.
The further log of hours requested was clearly desired by Mr Michael to work out whether he was getting value for the pay he was paying her. It did not have anything to do with the applicant’s complaint about her pay or her award classification.
The complaint in subparagraph 15(s) of the Statement of Claim merely reflects Mr Hanson sending the applicant a proposed roster of days with work. It is not clear that this in fact constituted any detriment to the applicant at all.
The matter alleged at subparagraph 15(t) is clearly established but for the reasons discussed in relation to subparagraph 15(q), it does not constitute unlawful conduct.
The matter alleged in paragraph 16
This matter revisits the log of work required by the respondent after the applicant initially complained to the FWO. It has already been dealt with above.
The matter alleged in paragraph 20 of the amended Statement of Claim
The assertion that the failure to rectify the applicant’s pay was taken with intent to coerce the applicant not to exercise her workplace right is plainly not made out. What happened was that Mr Michael at all material times thought that the applicant was either being paid pursuant to the correct award or had been paid the appropriate amount. It was not action taken to coerce the applicant in relation to a workplace right.
The matters alleged in paragraph 21 of the amended Statement of Claim
It is pleaded here that the respondent directed the applicant to change her duties to start working as a retail sales assistant. It was immediately following the conclusion of the FWO’s investigation. As I find this desire to change the applicant’s duties did not, in any way, arise out of her application for a pay rise, her assertions that she was employed under the wrong award or any matter that she had raised by way of workplace right. It arose because the respondent wanted her to work in an area in which there was work, as the respondent saw it, for her to do.
This being so, the interrelated complaint in paragraph 22 of the Statement of Claim is likewise not made out.
The matters alleged in paragraph 23 of the amended Statement of Claim
This pleads that the applicant’s lodging of a dispute resolution, Form 2, with Fair Work Australia constituted the exercise of a workplace right. So much is clearly so. Reference is then made to the particulars contained in paragraph 20 of the Statement of Claim. I regret to say that I am simply not able to understand in what way it is asserted this constitutes unlawful conduct and contravention of the provisions of the FW Act.
The matters contained in paragraph 24 of the amended Statement of Claim.
This matter has already been dealt with. It arises from the threat to terminate the applicant’s employment. It was not action undertaken to cease or not exercise a workplace right.
The matters alleged in paragraphs 25 and 26 of the amended Statement of Claim
It is common cause that the applicant was stood down and sent home to consider whether she wanted to continue her employment with Michaels. This action was not however taken, in my view, with a view to coercing the applicant not to pursue her workplace right. It was done because the respondent wanted her to consider her position and submit to the respondent’s desire that she change to working in the sales area.
The same conclusion, in my view, arises in relation to those matters contained in paragraph 26 of the amended Statement of Claim.
The matters contained in paragraph 27 of the amended Statement of Claim
There is no evidence that the change of duties to sales would have incurred a reduction in the applicant’s pay. This claim is not made out.
The matters contained in paragraph 28 of the amended Statement of Claim
These matters have already been dealt with above.
The matters contained in paragraph 29 of the amended Statement of Claim
This is simply a roll up of all the various individual matters already dealt with above.
The matters contained in paragraph 30 of the amended Statement of Claim
I do not accept that Mr Hanson continuously behaved aggressively towards the applicant nor do I accept that she was ostracised, discriminated against and subject to bullying behaviour. Insofar as it is pleaded that the respondent failed to take appropriate action to ensure the applicant’s health and safety at work, it is not particularised as to how this occurred. Given that I do not accept the factual basis which underpins the claim, the claim is not made out.
The matters contained in paragraph 31 of the amended Statement of Claim
I have already dealt above with the question as to whether the change of duties to include sales was or was not in breach of the employment contract and have found that it was. This undoubtedly would have altered the applicant’s position to her prejudice.
This has not, however, been pleaded as a breach of contract action. It is pleaded only as part of the process whereby it is said that the applicant had no choice but to resign and the termination of employment being a dismissal constituted adverse action within the meaning of the FW Act.
I note that if an action for wrongful dismissal had been pursued, the applicant’s maximum award of damages pursuant to the contract would have been very limited as she was covered by an award and would presumably have been entitled to one week’s notice in any event.
The Prayer for Relief
Because the dismissal was not unlawful for the reasons I have described, the applicant is not entitled to remuneration lost as a result.
Although it is clear that the applicant has been rendered unwell as a result of the events that befell her while she was employed by the respondent, it must be noted that this ill health has been occasioned at least in part by a misperception on the applicant’s part of what was being done and what was happening to her.
The relief sought includes “compensation for pain and suffering and emotional distress”. The applicant’s written submissions do not appear to me to touch on this aspect of the claim at all. No reference is made in the pleadings to Chapter 4 Part 4 – 1 of the FW Act, that part of the FW Act given this Court powers to make orders where a civil penalty provision has been breached. Given I have not found any breach of a civil penalty provision because I have not found any adverse action this is perhaps is of no moment. Insofar as this might be thought to give rise to a claim at common law, it faces the difficulties associated with the continuing state of the law in relation to damages for hurt feelings arising out of breach of contract. I do not believe that the decision of the High Court in Baltic Shipping Company v Dillon (The Ship Mikhail Lermontov) (1993) 176 CLR 344 has yet expanded to this extent in any event.
The claim also seeks “punitive damages” and the imposition of a penalty together with associated declarations.
There is no occasion for exemplary damages in this case. The claim for a penalty clearly fails as I have not found any contravention of a civil remedy provision.
The Claim for Pay
Contrary to the position advanced by the respondent, I think that the applicant is owed the $2,031.50 she has claimed for underpayment. It is clear from what Mr Michael said in evidence that he had, as it were, looked at the applicant’s pay overall and compared it to the amount that the applicant was paid.
This methodology of course falls foul to the authorities relating to underpayments of award wages best exemplified by the decision of the Full Court of the Federal Court in Poletti v Ecob (No 2) (1989) 31 IR 321 As best I recall little if anything was made in cross examination of this issue. While it may very well be taken overall the applicant’s total pay as Mr Michael asserted would meet the total that would be required to be paid under the award, these specific claims advanced by the applicant are not in my view displaced by the evidence, and it is therefore appropriate that she receive an award in this sum.
In my view, it is appropriate to bring all aspects of this dispute to a single and conclusive determination. Although the pay claim was in the main largely ignored during the hearing by both parties (and wholly so in the Statement of Claim) it was sufficiently clearly raised before the Court, and clearly constitutes part of the overarching single federal dispute, it is appropriate to deal with it now. I will order that the respondent pay the applicant this sum, but otherwise the application is dismissed.
I certify that the preceding two hundred and fifty six (256) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 30 April 2015
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