Hill v Esri Australia
[2021] FedCFamC2G 159
•15 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hill v Esri Australia [2021] FedCFamC2G 159
File number(s): BRG 248 of 2020 Judgment of: JUDGE JARRETT Date of judgment: 15 October 2021 Catchwords: INDUSTRIAL LAW – Commonwealth – workplace rights and responsibilities – general protections – adverse action – termination Legislation: Fair Work Act 2009 (Cth) ss 340, 344, 345, 351 Cases cited: N/A Division: Division 2 General Federal Law Number of paragraphs: 67 Date of last submission/s: 28 April 2021 Date of hearing: 28 April 2021 Place: Brisbane Counsel for the Applicant: the Applicant appearing on his own behalf Counsel for the Respondent: Mr Mackie of Counsel Solicitor for the Respondent: Holding Redlich ORDERS
BRG 248 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MATTHEW HILL
Applicant
AND: ESRI AUSTRALIA
Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
15 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application filed on 30 April, 2020 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE JARRETT:
Matthew Hill worked for the respondent, ESRI Australia Pty Ltd between 22 July, 2019 and 7 January, 2020 as a Senior Systems Administrator. In these proceedings, Mr Hill claims that the respondent breached the Fair Work Act 2009 (Cth) in a number of respects. The respondent denies the claims.
Mr Hill has represented himself throughout these proceedings. His initiating documents – the initiating application and the accompanying form 2 were particularly uninformative as to the nature of his claim.
Orders were made for the delivery of affidavits of evidence-in-chief by any witnesses to be relied upon each party. Mr Hill has delivered in total, four affidavits upon which he relies in these proceedings. Those affidavits set out many and varied claims against the respondent. In his affidavit he makes a number of allegations about his work and his working conditions.
In preparation of the matter for trial, I made some directions for the parties to file an outline of Case. Both parties have done so. Mr Hill filed his outline on 17 March, 2021. In paragraph 1 of the outline Mr Hill records that its purpose is to highlight to the best of his abilities his argument against the respondent in the context of the general protections application of which this Court is seized.
In the context of that outline of argument, Mr Hill claims that the respondent:
(a)contravened s.340 of the Fair Work Act 2009 (Cth) by taking adverse action against him because he exercised a particular workplace right;
(b)contravened s.344 of the Act which prohibits an employer from exerting undue influence or undue pressure on an employee in relation to a decision by the employee about certain matters;
(c)contravened s.345 of the Act which prohibits a person knowingly or recklessly making a false or misleading representation about the workplace rights of another person or the exercise, or the effect of the exercise, of a workplace right by another person; and
(d)contravened s.351 of the Act which prohibits an employer from taking adverse action against a person who is an employee, or prospective employee, of the employer relevantly because of the person’s physical or mental disability.
The respondent denies the claims and, whilst it accepts that it took adverse action against Mr Hill by giving him a show cause notice and thereafter terminating his employment, it says that the reason it took those actions was that Mr Hill’s performance was so poor, it did not wish to retain him as an employee. The respondent denies that it has contravened the Act in the ways alleged by Mr Hill.
BACKGROUND
The respondent provides certain technology and services relating to the electronic collection and use of geographical data.
The applicant applied for a position for the role of senior systems administrator for the respondent in June, 2019. He was interviewed by telephone by Mr Tibo Torche, the respondent’s recruitment manager and then, on 7 June, 2019 he was interviewed in person by Jeff Robinson, the Chief Information Officer of the respondent and Mr Matthew Melloy who was the Manager, ITS team.
Mr Melloy gives evidence that he was impressed with the applicant at the interview. Mr Melloy says that at no time did Mr Hill disclose that he suffered from any disability or that he required any adjustments in the workplace to perform his role. He says that the applicant held himself out as being able to perform work with no limitations or qualifications. His resume contained similar claims.
Mr Melloy recommended the applicant for the position and he was offered employment by the respondent. Another employee of the respondent contacted the applicant’s referees and they provided suitable references for the applicant. Two of the applicant’s referees suggested that the applicant preferred being given an objective and the freedom to achieve that objective in his own way. One described him as excelling at working independently and needing very little guidance. The applicant agreed that was an accurate description of him and how he liked to work. He also agreed that two of his referees described him as a person who went looking for problems or engaging in “future proofing” projects by identifying and fixing things that were not problematical but might become problematical in the future.
The applicant was offered a position with the respondent. He accepted it and he commenced his employment on 22 July, 2019 as a senior systems administrator. In his role he was the most senior technical staff member in the information technology systems team.
The applicant’s employment was subject to a six-month probation period which was to expire on 22 January, 2020. The terms and conditions of his employment were recorded in a written employment agreement. The applicant reported to Mr Melloy.
Despite the respondent’s standard working hours being from 9 AM to 5 PM, Monday to Friday, the applicant requested working hours from 8 AM to 4 PM to suit his family circumstances. The respondent agreed. According to Mr Melloy’s evidence, which I accept, he told the applicant that whilst his ordinary working hours could be 8 AM to 4 PM he needed to be available after hours as most IT professionals are to deal with issues that might arise from time to time and for system maintenance. Mr Melloy explained that time off in lieu could be accrued when work was done outside of ordinary hours such as when system patching, maintenance or similar work was undertaken after hours. Despite being advised of these arrangements, Mr Melloy’s evidence was that the applicant never asked to take time off in lieu.
It emerged during the course of the trial that Mr Hill was suggesting that there were difficulties with his start and finish times on occasions. He suggested to Mr Melloy in cross-examination that he was often required to work late or out of hours and that Mr Melloy knew that was a difficulty for Mr Hill because of his Asperger’s. Mr Melloy rejected the proposition (albeit it had not been clearly put to him in those terms). On this issue, I prefer the evidence of Mr Melloy because, on the uncontroversial facts, Mr Hill sought a rearrangement of his working day when his employment first commenced and it is an uncontested fact that the respondent did not become aware that Mr Hill claimed to have Asperger’s until about 6 September, 2019.
In cross-examination the applicant accepted that if he was given a direction to not worry about looking for problems that have not yet arisen or to not worry about problems that had been identified but had not yet manifested, he would act on the direction but did not like being given such a direction. This practice of looking for problems that have not yet manifested was described in the evidence as “rock turning”.
The applicant agreed in cross-examination that the practice of “rock turning” was apt to sidetrack him from more important tasks. One of his referees suggested that the applicant would occasionally get caught up in unnecessary details or blocked by things that should not be “thing”. The applicant agreed this assessment was fair.
The applicant suggested in cross-examination that at about the midway point of his employment he commenced “rock turning”. He said that he probably could not engage in the practice before that time because he needed to understand the employer’s environment.
The applicant’s evidence was that once he commenced “rock turning”, if he identified an issue he would raise it with his manager through the processes established by the employer. Ultimately the issue would end up with Mr Melloy. The applicant said Mr Melloy did not agree with his assessment on about half of these occasions. The applicant accepted that Mr Melloy would tell the applicant to stop looking at things that were not immediate problems and to prioritise other work instead.
During his employment Mr Hill informed some of the respondent’s staff that he had “Asperger’s”. It is uncontentious that this occurred in early September, 2019 and probably about 6 September when Mr Hill was having an informal conversation on the way to a team lunch with Mr Melloy and Mr Jeffrey Robinson of the respondent. It is also uncontentious that that no formal medical diagnosis or information was provided by Mr Hill to anyone on behalf of the respondent.
On 10 September, 2019 Mr Melloy spoke to Mr Hill and asked if he needed any adjustments to the way in which he worked. Mr Hill told him that the standing desk that had already been provided had been “great support” and it would help him if the workplace was tidy and free from hazards. He told Mr Melloy that safety hazards were a major distraction to him. So, Mr Melloy suggested that he and Mr Hill set aside time on a Friday afternoon to tidy up the IT area, including the server room, to remove any kind hazards. Mr Hill said that he had no other concerns and Mr Melloy invited him to let him know if anything else was bothering him or if there was anything else that the respondent could do for him.
On 24 October, 2019 the applicant met with Jeff Robinson at the applicant’s request. The applicant identified to Mr Robinson problems that he had identified through his “rock turning” activities. Mr Robinson agreed to create a template email which contained details of the problems. It was incomplete and, according to the applicant, there was an expectation that he would go and find time to fill it out for Mr Robinson. The evidence was ultimately unclear about whether the applicant had filled in the detail not but it is clear from the exhibit which is part of Mr Robinson’s evidence that some detail was completed.
The applicant accepted in cross-examination that he had gone to Mr Robinson because Mr Melloy had told him not to focus on the issues that he raised with Mr Robinson. To put it in the vernacular, he went over his immediate supervisor’s head.
On 31 October, 2019 Mr Hill sent an email to Ms Clauson. In that email he talked about his working relationship with Mr Melloy and accused Mr Melloy of being complacent in respect of the issues that Mr Hill was identifying through his “rock turning”. Indeed in that email Mr Hill says “I am starting to feel like my rock turning may lead to an early termination”.
On 1 November, 2019 Mr Hill met with Ms Clauson. Ms Clauson says that at that meeting she and Mr Hill spoke about a number of matters, including the following:
(a)Time sheets and how to complete them. ln response, l arranged for Ms Cherilyn Smith in Office Support, who provides Day 1 orientation, including on the use of time sheets, to give Mr Hill further instruction;
(b)managing workload/hours, upskilling the existing team and additional resource. Ms Clauson told Mr Hill he needed to speak with Mr Melloy about those matters;
(c)that Mr Hill needed to be guided by Mr Melloy on the business priorities;
(d)that Mr Hill needed to stop working additional hours. Ms Clauson told Mr Hill that from that point on, 7.5 hours should appear on Mr Hill’s time sheet and Mr Hill confirmed that he understood Ms Clauson’s expectations and committed to work the ordinary hours of 7.5 hours per day.
Ms Clauson says that she issued the direction to Mr Hill not to work more than 7.5 hours per day as she was concerned about his welfare, due to what appeared to be his inability to prioritise his work and manage his workload.
In cross-examination, Mr Hill did not accept Ms Clauson’s description of this meeting is accurate. However, I am satisfied that her evidence is accurate. I found Ms Clauson, when she was cross-examined by Mr Hill, an impressive witness. Moreover, her recollection of the meeting is corroborated by contemporaneous notes that she took of the meeting.
On 7 November, 2019 the applicant sent an email to Mr Melloy. It dealt with problems that the applicant had identified and remonstrated with Mr Melloy about and Mr Melloy’s approach to them. It recorded the applicant’s frustration. It was consistent with the proposition that there was a difficult working relationship between Mr Hill and Mr Melloy.
By this time, Mr Hill and Mr Melloy were having weekly meetings with each other which soon became daily meetings. In those meetings, Mr Melloy would reaffirm his expectations of Mr Hill. Mr Hill would voice his concerns. In cross-examination Mr Hill confirmed that the sentence “you will always be fighting me” was a reference to these meetings.
In reference to the last paragraph of the email, in cross-examination Mr Hill accepted that he had a lot going on in his personal life at that time and that was affecting his performance.
Mr Hill accepted in cross-examination that by the time he sent this email, his relationship with Mr Melloy was not working. Mr Hill thought that he might get sacked during his probationary period.
Between 21 and 27 November, 2019 Mr Hill worked for the respondent in Melbourne to assist with the transfer of ITS equipment from their old office to their new office and perform a network upgrade. This project was originally scheduled to last from 21 to 25 November, 2019 but Mr Hill’s presence in Melbourne was extended by 2 days due to unforeseen circumstances.
He went to Melbourne with another employee. That employee returned to Brisbane on 25 November, 2019 as he was scheduled to do. Mr Hill remained in Melbourne on his own for an additional two days.
On 27 November 2019 Mr Hill returned to Brisbane.
On 28 November, 2019 Mr Hill had a discussion with Ms Clauson, in which he told Ms Clauson that he had seen his doctor and been advised to rest. Further contact occurred between Mr Hill and Ms Clauson from 29 November to 3 December, 2019 in which Ms Clauson inquired of Mr Hill’s health, and Mr Hill requested a “mediation” occur with himself, Mr Melloy and Mr Robinson. Ms Clauson took this as a request for a “meeting” and began to arrange one as requested.
On 3 December, 2019 Mr Hill sent Ms Clauson a medical report and medical certificate from the Emergency Department of the QEII Jubilee Hospital, stating that he was unfit for work from 30 November, 2019 to 6 December, 2020. Subsequent medical certificates were provided, such that Mr Hill did not return to active duty for the remainder of his employment.
On 11 December, 2019 Ms Clauson e-mailed Mr Hill and advised that the respondent intended to award him 30 hours TOIL over the 7 days that he had worked in Melbourne.
On 12 December, 2019 Mr Hill replied by e-mail saying that he had worked an additional 79.5hrs during his employment thus far. The respondent declined to pay Mr Hill beyond the 30 hours of TOIL, saying (inter alia) that apart from the additional work in Melbourne, he had been directed to not work more than 7.5 hours per day, and he had apparently ignored that direction.
On 18 December, 2020 Mr Hill was sent a “show cause” letter alleging performance deficiencies, requesting a response by 6 January, 2020. The notice was heavily particularised. The show cause notice recorded:
(a)Your employment agreement with Esri Australia dated 22 June 2019, and the position description for the role of Senior Systems Administrator;
(b)the express direction on 1 November 2019 given by Ms Amanda Clauson, Manager, Human Resources, that you must only work your ordinary hours of 7.5 hours per day;
(c)the express direction during the week of 2 December 2019, given by Ms Amanda Clauson, Manager, Human Resources, that she expects to see 7.5 hours per day in your timesheets because of the explicit instruction given on 1 November 2019;
(d)you have now advised that you have performed 79.5 hours of additional work, and that you have rounded down this figure.
The notice proceeds to record:
2.Esri Australia has genuine concerns that you are failing to follow reasonable directions of management.
3.In so doing, you have jeopardised your own wellbeing by failing to take responsibility for your own health and safety. This is particularly concerning in circumstances where you have been directed to not exceed 7 .5 hours of work per day, yet you have claimed to work hours above this limit. Additional hours were not required.
4.Further, Esri Australia is concerned that you are not performing in your role as the Senior Systems Administrator.
In cross-examination Mr Hill accepted that the matters particularised in the show cause notice and in particular those in annexure B were concerns that have been raised with Mr Hill by Mr Melloy during their daily meetings.
Mr Hill made no formal response to the show cause notice. In cross-examination he said that he made a response by making a response by two WorkCover claims, one alleging a physical injury and another alleging a psychological injury. He does not address the performance concerns set out in the show cause notice in his affidavit material before the Court, despite his assertion in cross-examination that he has done so.
On 23 and 24 December, 2020 the respondent was informed that Mr Hill’s WorkCover claims were rejected.
As Mr Hill did not respond to the show cause letter, Mr Melloy and Ms Clauson decided that Mr Hill’s employment should be terminated. The decision to terminate was made together by both Ms Clauson and Mr Melloy. The decision was also discussed with Mr Brett Bundock, the managing director of the respondent who agreed that Mr Hill’s employment should be terminated in his probation period because of the performance and conduct issues that had been identified. I accept the evidence of both Ms Clauson and Mr Melloy and find that Mr Hill’s employment was terminated because of the conduct and performance issues that had been identified in the Show Cause Letter. There is no evidence that there was any other reason for that decision.
On 7 January, 2020 a letter was sent to the applicant by Ms Clauson terminating his employment. Mr Hill was subsequently paid one week’s pay in lieu of notice.
THE ADVERSE ACTION CLAIM
The adverse action said to have been taken by the respondent against Mr Hill is:
(a)issuing him with a show cause notice whilst he had an active workers’ compensation claim;
(b)issuing him with a show cause notice whilst he had “stated and proven that I had outstanding hours that ESRI Australia refused to approve and pay”;
(c)issuing him with a show cause notice whilst he had identified “unsafe Work Practices that I & Other employees were forced to work through”;
(d)discriminating against him “for my known disabilities and upon reiterating my needs and my struggles, my disabilities continued to be exploited”;
(e)upon identifying past employees that were subject to similar conduct, “ESRI Australia made it obvious that I would be terminated”; and
(f)“ESRI Australia took adverse action whilst a Public Interest Disclosure had been sent to several Government Agencies”.
I accept that issuing Mr Hill with a show cause notice was the taking of adverse action against him as that phrase is defined in s.342(1) item 1 of the Fair Work Act. The relevant issue for determination is why that action was taken and whether that reason was a reason proscribed by the Fair Work Act.
The evidence demonstrates, and I find, that the reason the respondent issued the show cause notice to Mr Hill was because he failed to comply with Ms Clauson’s direction about the hours that he was working and he failed to observe the directions given to him by Mr Melloy. I accept that the performance concerns set out in annexure B to the show cause letter were entirely legitimate concerns that had arisen over the course of Mr Hill’s short period of employment. They were not manufactured concerns. When put to Mr Hill in cross- examination, he accepted that the working relationship between he and Mr Melloy was poor and that he and Mr Melloy could not agree on what Mr Hill should do or how he should do it.
The show cause notice was issued before Mr Hill became unwell, leading to the workers compensation claim claims, and as counsel for the respondent points out, the difficulties in Mr Hill’s relationship with his manager and his performance had already led himself to conclude that he might be dismissed during his probation period.
Moreover, the evidence satisfies me, and I find, that the issue of the show cause notice had nothing to do with Mr Hill’s workers compensation claim, his “known disabilities”, the identification of Dr or any other employee who was subject to similar conduct, any unsafe work practices that Mr Hill claims that he or others were forced to work through, or any public interest disclosure that Mr Hill may have made. The issue of the show cause notice did have something to do with the stated and proven outstanding hours that he had claimed from the respondent. Those claims (whether they be legitimate or not) demonstrated that Mr Hill did not and would not comply with directions given to him by the respondent so as to safeguard his own health and safety.
This aspect of Mr Hill’s claim cannot succeed and must be dismissed.
THE UNDUE INFLUENCE OR PRESSURE CLAIM
Section 344 of the Fair Work Act provides:
344 Undue influence or pressure
An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:
(a)make, or not make, an agreement or arrangement under the National Employment Standards; or
(b)make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or
(c)agree to, or terminate, an individual flexibility arrangement; or
(d) accept a guarantee of annual earnings; or
(e)agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.
Mr Hill says that the respondent took adverse action against his employment “whilst offering undue influence and/or pressure as below:
3.1ESRI Australia had continued to change the expectations of my working conditions whilst I was in Melbourne. I was unaware of how much Time would be required for the projects at hand
3.2I was exhausted and no longer able to argue or ask for support around additional needs and working hours
3.3ESRI Australia took it upon themselves to define how much overtime they would pay, regardless of the hours I had proved that I had worked, not only in Melbourne but weeks leading up to the Melbourne & Internet Projects
3.4ESRI Australia had made a guarantee that I could return safely home at predesignated times and when these expectations could not be met, no further assistance was given to complete the tasks at hand
I cannot accept this aspect of Mr Hill’s claim. Whilst Mr Hill was in Melbourne, it is true to say that the expectations of his working conditions whilst he was in Melbourne changed because the nature of the work meant that what was required was unpredictable. The limits put around Mr Hill’s working hours were limits that were placed upon him before he went to Melbourne and were placed upon him for his own health and safety. The direction to work a particular number of hours per day was clearly a reasonable direction given its purpose.
Even accepting all of Mr Hill’s evidence at its highest, this claim cannot succeed and must be dismissed.
THE MISREPRESENTATION CLAIM
Section 345 of the Fair Work Act provides:
345 Misrepresentations
(1)A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b)the exercise, or the effect of the exercise, of a workplace right by another person.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2)Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
Mr Hill argues that the respondent:
“had continually offered misrepresentations about what actions I could challenge and courses of actions I could take to resolve the following grievances:
(a)I had offered on several occasions to have a meeting of mediation with ESRI Australia. Although initially interested, ESRI Australia declined to hold a Mediation attempt as I asked more and more questions about my working conditions, unlawful conduct and had started a Workers Compensation Claim
(b)ESRI Australia had misinterpreted/lied that this such conduct had not happened previously. I know this to be false as the events with Dr. David Stuart Truffet have been well documented against ESRI Australia and pertained to my matters directly
(c)ESRI Australia go on to say that there were performance issues with my employment. I was not made aware of this until after my Workplace Injury. ESRI Australia’s own Employment Agreement states that the Executive Manager for the relevant department is to talk with the Employee and address concerns of performance. This simply did not happen in a context where any actions were taken to assist with my ever growing workload. I had also tried to talk to HR directly as the workload continued to increase.
Even if all of these matters are accepted at their highest, they are not misrepresentations about Mr Hill’s workplace rights or the exercise of the effect of the exercisable workplace right by him. The matters set out in subparagraph (a) above is not a misrepresentation. Nor is the misinterpretation that is set out in subparagraph (b) above. Whilst a lie is a misrepresentation, there is simply no evidence here to establish that there was a lie told by the respondent or anybody on its behalf to the effect asserted by Mr Hill. What is alleged in subparagraph (c) appears to be a failure by the respondent to comply with some workplace policy in relation to performance management but it is not a misrepresentation for the purposes of s.345 of the Fair Work Act.
THE DISCRIMINATION CLAIM
Section 351 of the Fair Work Act provides as follows:
351 Discrimination
(1)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.
Mr Hill claims that the respondent “had openly discriminated against several of my conditions and continued to exploit these attributes knowingly and willingly”. as below:
5.1.ESRI Australia was and has been aware of the needs someone with Adult Asperger’s has. I know this to be true given the longstanding litigation with Dr. Stuart David Truffet
5.2.ESRI Australia was also aware that I had a conductive hearing loss and knew that at times I had trouble with open dialogue in conversation. Though I was at times denied to ask for a recollection of dialogue, summaries and the ability to go back to other employees to understand or reconfirm conversation
5.3.I would often schedule meetings to reconfirm what would be required from others to ensure the appropriate work would be carried out and ESRI Australia had started to advise other Employees not to attend my meeting requests. This ultimately led to more frequent meetings with management as to how I would be struggling with my workload
5.4.Adult Asperger’s offers a lot of complexities in the Workplace when not managed. I have worked with various Employers over time and consider having been good at managing a lot of my Asperger’s Traits. Exclusion happened in meetings as I would often ask to many questions or voice my concerns about overlapping projects
5.5.I can recall on several occasions where my Eating Habits were critiqued as I was expected to be always contactable during the day, not managing consistent eating habits was having detrimental impacts to my own health and I raised concern that not being able to have lunch consistently would have an impact on my workload
5.6.I could go into extreme detail about occasions that ESRI Australia exploited my Adult Asperger’s, the reality is that they were more aware at times with my needs from previously Employees and previous litigation then I was myself. On several occasions, I had been made aware that even others in the office that had obvious Disabilities, had workplace modifications. Others with Adult Asperger’s were offered and maintained a flexible work hours program to ensure that they would not burn out. Such workplace modifications were not offered to myself and when I did try and schedule in the Wednesday of every week as a leaving early day for Scheduled Maintenance, I was still expected to attend meetings and would often be asked to participate in conversation well after the time I was supposed to be leaving work
5.7.ESRI Australia have argued that they were not aware of Physical Disabilities or Impendences, yet they had indeed been made aware that I have had in the past and at times still have pain in my Knees, Back, Neck & Shoulders with varying origins. This whilst not diagnosed as a disability, was a known impedance and I had at times been put into a position where I was expected to complete handling tasks that I had shared concerned over being risky and potentially dangerous
On the uncontroversial facts, the respondent’s offices, Mr Melloy and Ms Clauson and Mr became aware of Mr Hill’s Asperger’s on or about 6 September, 2019. Any adverse action taken against him by reason of that disability can only be actionable if it took place after that date (when the respondent knew about the condition) and if the adverse action was taken because of the condition.
There is no evidence that bears out any of the assertions made by Mr Hill about this matter. Whilst he asserted that he suffered from Asperger’s, there is no evidence before me that demonstrates that. I have, however, assumed that it is so.
The evidence I have accepted demonstrates that when Mr Melloy became a aware of Mr Hill’s Asperger’s, he talked to Ms Clauson about it and then he talked to Mr Hill about what might be put in place to assist him. Mr Melloy was cross-examined about that and it was not suggested that there were things that could have been done or should have been done that were not. The evidence demonstrates that the respondent addressed the concerns raised by Mr Hill to his satisfaction. Thus, rather than taking adverse action against him, the respondent did the opposite.
There is no evidence that Mr Hill suffers from conductive hearing loss. Assuming that to be so, there is no evidence that he informed anybody in the respondent’s employ about that.
CONCLUSION
Mr Hill’s claims are not made out on his evidence or the evidence of the respondent’s witnesses. The evidence demonstrates that there were difficulties with Mr Hill’s relationship as a subordinate employee with Mr Melloy. The evidence demonstrates that they were performance issues with Mr Hill’s functions in his employment. The evidence demonstrates that Mr Hill failed to observe a very clear direction given to him by somebody who had authority to give it to him.
As I have found above, the show cause notice was given to Mr Hill to address those difficulties. He was given an opportunity to respond but did not take it up. On the evidence, it cannot be suggested that the show cause notice was a sham or manufactured. It was given to Mr Hill for a legitimate purpose, namely to have him answer the concerns raised within it. I reject any submission by Mr Hill that the respondent took that adverse action against him because of his Asperger’s or for any other reason than a legitimate attempt to have his performance issues addressed.
Similarly, I am satisfied that the termination of Mr Hill’s employment was for the reasons given by Mr Melloy and Ms Clauson in evidence. Mr Hill did not address the performance issues raised in the show cause letter. Indeed he did not respond at all. His employment was terminated not because of his disparages, not because he had made a public interest disclosure, not because he had a workers compensation claim on foot or for any other reason than his employer determined that his poor performance warranted the termination of his employment during his probation period.
In those circumstances, Mr Hill’s application must be dismissed.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett. Dated: 15 October 2021
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