Hodkinson v Commonwealth
[2011] FMCA 171
•31 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HODKINSON v THE COMMONWEALTH | [2011] FMCA 171 |
| INDUSTRIAL LAW – Fair Work Act 2009 – adverse action – dismissal – injury to employee in employment – alteration of position of employee to employee’s prejudice – discrimination between employees of employer. INDUSTRIAL LAW – Fair Work Act 2009 – adverse action – disability discrimination contrary to s.351 alleged – ss.5 and 6 of the Disability Discrimination Act 1992 do not inform the interpretation of s.351 – conduct which contravenes the Disability Discrimination Act 1992 does not, by reason of that contravention, also contravene the Fair Work Act 2009. INDUSTRIAL LAW – Fair Work Act 2009 – dismissal for temporary absence from work contrary to s.352 – reg.3.01 of the Fair Work Regulations 2009 provides exhaustive statement of illnesses or injuries which will support a claim under s.352. INDUSTRIAL LAW – Fair Work Act 2009 – reverse onus of proof provided by s.361 – provisions to which reverse onus applies. PRACTICE & PROCEDURE – Fair Work Act 2009 – reverse onus of proof provided by s.361 – before reverse onus will operate applicant must identify the prohibited reason for the alleged action which the respondent must disprove in order to make out its defence. WORDS & PHRASES – Fair Work Act 2009 – “injures employee in his or her employment” – “alters the position of the employee to the employee’s prejudice” – “discriminates between the employee and other employees of the employer”. WORDS & PHRASES – Fair Work Act 2009 – “disability” – to be understood according to its ordinary meaning, not by reference to the definition of disability in the Disability Discrimination Act 1992. |
| Fair Work Act 2009, ss.12, 336, 340, 341, 342, 351, 352, 360, 361, 725, 728, 732, 734 Disability Discrimination Act 1992, ss.4, 5, 6 Acts Interpretation Act 1901, s.13 Fair Work (Transitional Provisions & Consequential Amendments) Act 2009, schs.2, 3, 16 Workplace Relations Act 1996, s.4 Australian Human Rights Commission Act1986, s.46PO Fair Work Regulations 2009, reg.3.01 |
| Liquor Hospitality & Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221 Barclay v Board of Bendigo Regional Institute of Technical & Further Education [2011] FCAFC 14 Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 Rojas v Esselte Australia Pty Ltd (No.2) (2008) 177 IR 306 Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (1999) 140 IR 131 Randall v Greyhound Australia Pty Ltd [2008] FMCA 1191 M Collins & Son Ltd v Bankstown Municipal Council (1958) 3 LGRA 216 R v Scott (1990) 20 NSWLR 72 Qantas Airways Ltd v Gama (2008) 167 FCR 537 Stevenson v Murdoch Community Services Inc [2010] FCA 648 Rogers v Millennium Inorganic Chemicals Ltd (2009) 229 FLR 198 Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2000) 106 FCR 482 McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111 Childs v Metropolitan Transport Trust (1981) IAS Current Review 946 Squires v Flight Stewards Association of Australia (1982) 2 IR 155 Health Services Union of Australia v Tasmania (1996) 73 IR 140 Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 Linehan v Northwest Exports Pty Ltd (1981) 57 FLR 49 Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 102 FCR 97 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 |
| Applicant: | SANDRA HODKINSON |
| Respondent: | THE COMMONWEALTH (DEPARTMENT OF HUMAN SERVICES) |
| File Number: | SYG 772 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 8 September 2010 |
| Date of Last Submission: | 8 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Britt |
| Solicitors for the Applicant: | Turner Freeman |
| Counsel for the Respondent: | Mr A. Searle |
| Solicitors for the Respondent: | Blake Dawson |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 772 of 2010
| SANDRA HODKINSON |
Applicant
And
| THE COMMONWEALTH (DEPARTMENT OF HUMAN SERVICES) |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a former employee of the Child Support Agency (“CSA”) (as it was then known), one of a number of agencies administered by the respondent, the Department of Human Services. The applicant’s employment with the CSA commenced on 6 July 2009 and was subject to a six month probationary period. In October 2009, whilst still on probation, the applicant encountered a number of medical difficulties and was prescribed some time off work. She was placed on a gradual back-to-work program upon her return, the initial stages of which involved a reduction in her standard working hours. She was also placed on a Work Improvement Plan because she failed to meet certain productivity targets which had been set for the month of October.
On 22 December 2009 the respondent dismissed the applicant on the basis that she had not met the requirements of her probation.
The applicant alleges that her medical difficulties impacted on her ability to perform to the standard required. She alleges that this was a factor which should have been, but was not, taken into consideration by the CSA when assessing her performance.
The applicant alleges that the respondent breached ss.340-342 of the Fair Work Act 2009 (“FWA”) by taking adverse action against her because she exercised or proposed to exercise a workplace right, the CSA’s internal review mechanisms, and because she suffered a disability or disabilities. The adverse action was alleged to be:
a)dismissal;
b)injury in employment;
c)alteration of the applicant’s position to her detriment; and
d)discrimination as between the applicant and other employees.
The applicant also alleges that, in the circumstances, her dismissal by the respondent constituted:
a)disability discrimination under s.351 of the FWA and ss.5 and 6 of the Disability Discrimination Act 1992; and
b)dismissal on the grounds of temporary absence from work because of illness or injury contrary to s.352 of the FWA.
The applicant seeks reinstatement, compensation and the imposition of a pecuniary penalty on the respondent, payable to her.
The respondent alleges that its decision to dismiss the applicant was as a consequence of her poor performance during the probation period and her failure to satisfactorily complete the probation period and had only occurred after she had been given significant opportunity to address the deficiencies in her performance. The respondent alleges that its decision to dismiss the applicant was unrelated to any workplace right, decision to exercise a workplace right or proposal to exercise a workplace right and the dismissal did not breach any benefit or protection to which the applicant was entitled under the FWA or the Disability Discrimination Act.
Legislative provisions
Part 3-1 of chp.3 of the FWA provides for employees’ general protections. Division 3 of pt.3-1 provides for the protection of workplace rights and the exercise of those rights. Sections 340-342 of the FWA are found in div.3 of pt.3-1 and relevantly provide:
340 Protection
(1)A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person. …
341 Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c)is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment …
342 Meaning of adverse action
(1)The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...
Column 2
if ...
1 an employer against an employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
…
(2) Adverse action includes:
(a)threatening to take action covered by the table in subsection (1); and
(b)organising such action. …
Division 5 of pt.3-1 provides for other protections. Section 351 of the FWA is found in that division and relevantly provides:
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 preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(2)However, subsection (1) does not apply to action that is:
(a)not unlawful under any anti‑discrimination law in force in the place where the action is taken; or
(b)taken because of the inherent requirements of the particular position concerned; or
(c)if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3)Each of the following is an anti‑discrimination law:
…
(ab) the Disability Discrimination Act 1992; …
Section 352 in also found in div.5 of pt.3-1 of the FWA. It provides:
352 Temporary absence—illness or injury
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Regulation 3.01 of the Fair Work Regulations 2009 provides:
3.01 Temporary absence — illness or injury
(1) For section 352 of the Act, this regulation prescribes kinds of illness or injury.
(2) A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:
(a)24 hours after the commencement of the absence; or
(b)such longer period as is reasonable in the circumstances.
(3) A prescribed kind of illness or injury exists if the employee:
(a)is required by the terms of a workplace instrument:
(i) to notify the employer of an absence from work; and
(ii) to substantiate the reason for the absence; and
(b)complies with those terms. …
Section 361 of the FWA is concerned with proving the reason for action alleged to be contrary to a provision of pt.3-1 of the FWA. It provides:
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
Importantly, s.360 provides:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
The applicant submitted that the Disability Discrimination Act has relevance to her claim. Sections 5 and 6 of that Act provide:
5 Direct disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
(3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.
6 Indirect disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and
(c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and
(c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.
(3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.
(4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.
Section 4 of the Disability Discrimination Act provides:
disability, in relation to a person, means:
(a) total or partial loss of the person’s bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) the malfunction, malformation or disfigurement of a part of the person’s body; or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future (including because of a genetic predisposition to that disability); or
(k) is imputed to a person.
To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.
Evidence
The applicant
The applicant swore an affidavit in these proceedings on 28 May 2010 in which she deposed that she was one of twenty-four “new-starters” employed by the CSA to be collections officers in its newly established Sydney-based Specialist Enforced Collection Teams. She deposed that she was employed to collect outstanding child support money owed to the Australian Government from parents who had an obligation to contribute to the cost of raising their child or children. This involved case-managing a portfolio of “customers” by contacting – mostly by telephone – paying parents, receiving parents and relevant third party stakeholders in order to resolve issues regarding child maintenance.
The applicant deposed that she commenced on a six month probationary period and that the first few months of her employment consisted mostly of training. The applicant deposed that her employment over the first three to four months was largely uneventful and that she believed that she was performing her job to the standard required of a new recruit. However, there were three incidents during this period which, she deposed, occurred “out of the ordinary course of work events”:
a)on 13 July 2009 the applicant returned from a scheduled lunch break eight minutes late. She deposed that she had been feeling unwell, which she explained in her evidence to have been because she suffered from a blood disorder, and that during the break she had taken the opportunity to rest, not realising that the time had passed. She said that immediately upon her return to the training room the matter was raised by her then team leader, Steve Cunio, and was also mentioned in her first probation report. The applicant deposed that she believed that the matter had been resolved reasonably by these actions and she was never again questioned in relation to tardiness;
b)during a training session, while the topic of raising children and, in particular, the cost of raising children of different ages was being discussed, the applicant made a comment which, she deposed, was intended to be light-hearted, namely that “teenage girls don’t cost much to feed because they don’t eat much”. In a private meeting between herself and Mr Cunio about twenty-four hours later, she was advised that her comment had been both inappropriate and disrespectful towards anyone suffering anorexia. The applicant deposed that she immediately apologised and also offered to apologise to the group as a whole. She said that Mr Cunio advised her that this would not be necessary as long as she refrained from making any further “Freudian slips”. The applicant deposed that this incident was also raised in her first probation report. Again, she believed that the matter had been resolved; and
c)the applicant received one customer complaint submitted by a third party on behalf of a receiving parent with whom she had been trying to communicate. The applicant deposed that the complaint arose out of her attempts to discuss a particular matter directly with the receiving parent in circumstances where the parent had appointed an authorised third party to deal with matters relating to the CSA. The applicant deposed that the complaint was dealt with immediately by her new team leader, Philip Maxwell, and the CSA’s service manager, Liza Blyth. She deposed that she was advised by Ms Blyth that there would be no further need to discuss the matter and that, consequently, a scheduled meeting for this purpose had been deemed unnecessary and was cancelled. The applicant deposed that she believed that the matter had been finalised.
Prior to her employment with the respondent, the applicant had been diagnosed with long-standing whiplash injuries which shortened her discs C3/C4 and C4/C5. Those injuries are not part of these proceedings and were subject to occupational health and safety support which the respondent provided to the applicant by way of chair, footstool and correct operation of a mouse.
The applicant encountered other medical difficulties during her probationary period. In October 2009 she was diagnosed with “bulging discs” and was prescribed two days’ rest and medication. She returned to work in the first week of November and was placed on a gradual back-to-work program in accordance with her doctor’s instructions. The program was co-ordinated with the CSA’s return-to-work officer, John Tubman, and required the applicant to work 5 hours per day in the first week, 6 hours per day in the second week, 7 hours per day in the third week and 7.24 hours thereafter. In addition, she was required to take regular “position breaks” of five minutes every half hour in order to stretch her back. The applicant deposed that neither her absence nor her reduced hours were taken into account by the CSA when measuring her output or performance.
At around the same time as her back problem and her return to work, the applicant also suffered gynaecological problems. She was in significant pain and was very concerned about her condition as her specialist had spoken to her about the possibility that uterine cancer might be diagnosed. Her specialist recommended a day surgery procedure which was scheduled for 9 December 2009.
On 6 November 2009, after her return to work following her back problem, the applicant’s team leader, Mr Maxwell, advised her that she was going to be placed on a Work Improvement Plan (“WIP”). He cited the following issues:
a)not meeting the monthly dollar target of $17,500 set for October 2009;
b)not meeting finalised cases of six per month;
c)not averaging twenty outbound calls per day, over the week; and
d)not meeting milestone and workload management.
The applicant deposed that she was advised by Mr Maxwell that the purpose of the WIP was “to get you across the line in your probation, to help you meet your targets”. The applicant deposed that, amongst other things, when she asked Mr Maxwell whether the time she had had off had been taken into account when looking at her failure to meet those targets, he said that he would have to ask Ms Blyth.
In a meeting held on 9 November 2009, which Ms Blyth attended, the applicant indicated that she objected to being placed on a WIP. She felt that her October targets should have been adjusted to reflect her two-day absence when she had been deemed medically unfit for work. She deposed that, during the meeting, the following exchange took place:
Applicant:Shouldn’t there be some consideration given to the fact that I have been away and now I will be on a strict return to work program?
Ms Blyth:There is absolutely no consideration given to a staff member requiring time off due to illness or injury, even if a member is suffering from “something like Glandular Fever”.
Applicant:I am concerned that I will not meet the targets during November as my doctor has placed me on a gradual return to work program due to my serious back injury … The time taken to implement the WIP will further reduce the amount of hours I have available to make contact with parents and collect more money.
Ms Blyth:There is no allowance for this time off and other team members will also be dealing with the WIP requirements.
The applicant deposed that about three quarters of her group of new-starters were placed on WIPs during the probation period.
The applicant deposed that the pressure at work became extreme as she was required to meet the same targets as her colleagues while she was working reduced hours. She deposed that, despite her ongoing back problems, she pleaded with her doctor to “escalate” her return-to-work program. She said that he agreed to do so because he could see her mental state. In this regard, in cross-examination the applicant was taken to an email from Mr Tubman to Ms Blyth in which the following comment appears:
Consequently, there was concern that she may be pushing herself beyond what she can comfortably manage in order to meet the competencies required to complete her probation.
Notwithstanding the above he was happy for her to continue with the upgrade in the suitable duties program. The doctor advised that she should be Ok provided that she can take the 5 min stretch breaks every half hour.
The applicant agreed that taking the stretch breaks accorded with her doctor’s recommendations and said that she did take them.
The applicant deposed that from November 2009, she was required to attend weekly technical support officer sessions, weekly WIP meetings with her team leader as well as weekly return to work meetings with her team leader and the return-to-work officer.
In relation to the customer complaint that she had made direct contact with a receiving parent, although the parent had directed that she was to be contacted through a representative, the applicant contested the proposition that she had been told in training or that there was a guideline to the effect that she was not to make direct contact with a receiving parent if they had a nominated representative. The applicant said that in the case in question she had attempted unsuccessfully to contact the authorised representative on several occasions and, because there was an absence of leadership in the CSA, she had no-one to ask whether she could proceed to contact the parent. In the circumstances, where the contact information was old and after having tried to contact the representative on three occasions, the applicant said that she thought she called the parent simply to ask her whether there was another phone number or other details for the representative.
The applicant conceded that after she made contact with the parent, the authorised representative complained to the CSA that she had spoken to the receiving parent in an intimidatory fashion and had cut her off when she was speaking. However, the applicant denied the proposition that the receiving parent had asked her to send something in writing and that she had declined to do so.
The applicant rejected the proposition that the WIP was based on a customer complaint or on her behaviour in the workplace. She said that it was specifically for certain things which were based around targets, such as collections and the number of telephone calls made. She rejected the proposition that certain behaviour could lead to an inability to meet targets such as the ones she referred to.
The applicant deposed that she felt very disappointed to be involved in the WIP process. Despite this, she believed that she approached the WIP with a positive attitude. She attended all meetings and was available for all support sessions. She deposed that during the month of November each of her support officers confirmed that she was doing everything possible to meet her targets.
The applicant attended WIP meetings with Mr Maxwell on 17, 20 and 27 November 2009. During those meetings, she and Mr Maxwell generally discussed her “progress of the WIP actions”. She said that Mr Maxwell agreed with her on many occasions when she explained how the WIP was hindering rather that assisting her in reaching her targets.
The applicant deposed that on 7 December 2009 she received an email asking her to attend a WIP meeting later that day. Attached to the email was a document which the applicant was asked to read and bring in for discussion. That document, part of annexure SAH-2 to the applicant’s affidavit, appears to be a record of her previous WIP meetings.
The meeting on 7 December 2009 was conducted by Mr Maxwell and Ms Blyth. The applicant deposed that at the beginning of the meeting she was presented with a document which she had not previously seen, namely, a copy of her completed WIP form covering the period 9 November to 4 December 2009. Included in the “Comments” section of the WIP form are the case notes which were emailed to the applicant earlier that day as well as an additional note for “Week 4”, which stated:
Sandra, Liza and Team Leader EC 6, discussed on the 7th Dec 2009 the finalisation of Sandra’s Work Improvement Plan (WIP).
It was said the WIP is about providing further support for staff being probationers currently not meeting targets on dollar value and volume of outbound calls. The dollar targets going forward in Enforced collect over the next coming months will only increase. Sandra being here for 5 months now through probation and through this WIP has not met the dollar targets, call volume targets benchmarks set.
As Team Leader of EC 6, I am recommending to terminate her ongoing employment due to the fact that Sandra has not met existing targets on dollar value and volume of outbound calls benchmarks set.
The applicant deposed that after she was handed the copy of her completed WIP form the following exchange took place:
Mr Maxwell: The purpose of this meeting is to put forward a recommendation to the delegate to terminate your ongoing employment due to not meeting your targets.
Applicant:I don’t have a copy of the document you are referring to. I wasn’t aware that this was the purpose of the meeting. I am alarmed at the presence of Liza but now I realise why she is in the room.
Mr Maxwell: Its [sic] got to do with fitting in to the environment and not meeting your targets.
The applicant deposed that, at that point, she started to make notes of what was being said. Ms Blyth looked at her notes and said:
Ms Blyth:Its [sic] not about not fitting in to the environment, its [sic] about meeting the expectations.
Applicant:What do you mean?
Ms Blyth:The recommendation is that you do not continue due to not meeting expectations. You have failed to meet collection targets; and failed to make 20 outbound calls average per day. … Other staff in a similar position have been offered the opportunity of a one week extension to prove they could meet targets. This is an option in the WIP document. … Other options would be for you to consider your position with the agency, or to accept the recommendation of termination.
Applicant:I am due to have surgery this week. I have arranged my leave. My mother has to come from Brisbane to attend to me for the surgery as my husband is unavailable on that day. I have already arranged her flights from Brisbane. … If I could cancel the flights without financial loss then I would, and would postpone the surgery.
Ms Blyth:That doesn’t apply to you then [the extension]. I will be proceeding with the recommendation for termination to the delegate and they will be in touch. You will be given the opportunity to respond to the recommendation.
The applicant deposed that on more than one occasion during the meeting she clarified with both Ms Blyth and Mr Maxwell the basis upon which the recommendation for termination was being made. In particular, she asked:
Are there any other issues in regard to my performance, such as conduct or training, attendance or commitment?
She deposed that Ms Blyth and Mr Maxwell each separately confirmed that there were “no other issues” and that the recommendation for termination was “only based on the two targets” which they had identified.
The applicant deposed that she was absent from work from Wednesday, 9 December 2009 to Friday, 11 December 2009 inclusive due to the pre-arranged surgery. When she returned to work on Monday, 14 December 2009 she was given her final probation report, which also included earlier reports completed in July and September 2009. According to the final probation report, the applicant failed to satisfy five of the six performance criteria at the five month review of her probationary employment. Amongst the comments made were the following:
Aligns with Organisational Objectives:
Sandra demonstrates a general understanding of the APS environment and CSA’s role and function. Sandra continues to learn with the support of her team leader and TSO’s [Technical Support Officers].
Sandra demonstrates a general understanding of the Australian Public Service Environments.
However, Sandra is still failing to create a sense of urgency with payments as per collection handbook. Quality Audits show that Sandra is failing to ask for and/or document request for lump sum payment, is failing to follow up on default arrangements and is not referring cases correctly as per Enforced Collect (EC) referral guidelines.
Achieves Results:
Sandra has failed to meet notional benchmarks in Sept, Oct and Nov 2009 months. In response to October results Sandra was placed on a WIP to improve her collection as well as outbound calls. Sandra failed to meet either objective at the completion of her WIP.
Sandra struggles with the intent of the WIP as she felt the additional team leader meetings and face to face with TSO’s was impacting on her ability to meet designated outcomes rather than seeing this as an opportunity for assistance.
Supports Productive Working Relationships:
Sandra on occasions has failed to establish rapport and deal sensitively with customers. This was highlighted by a complaint from a Representative Authority (RA) that was made to CSA and a South Australian Minister. The complaint issues were:
A)the RP [receiving parent] X had an RA on the case and that is who you should have been dealing with
B)an allegation that the conversation you had with PP [paying parent] [sic] X was based on intimidation, harassment and bullying
C)it is alleged that RP X requested that you put your request in writing
D)it is alleged no receipt number was offered and the exact nature of the call is still unclear to RP X.
The complaint was partially up held on points: A, B & C.
Displays Personal Drive and Integrity:
Despite unexpected medical issues Sandra has worked with CSA and her doctors to put together a “suitable duties plan”. This plan assisted Sandra to continue through her probation whilst also addressing her medical issues.
During the period of restricted duties and absences Sandra felt her targets should have been reduced to reflect this time away. …
Communicates with Influence:
Sandra was resistant to the implementation of the WIP. Sandra saw the process as punitive rather than supportive.
On receiving feedback in relation to a complaint call, Sandra initially took no ownership nor would acknowledge any role she may have had in exacerbating the complaint.
Sandra has demonstrated ongoing difficulties in receiving feedback as documented in her weekly WIP review sessions with her Team Leader. Sandra describes the Quality Audits process as being deconstructive in their feedback and has had issues with TSO support. …
In relation to the performance criterion “achieves results” the applicant said that after she failed to hit the October target by $620 she raised issues about the WIP on the basis that it was going to hinder her meeting her work targets. She said that regardless of the fact that she was on a gradual return-to-work program, she was still required to meet the same targets as everyone else and this made her anxious and concerned.
In relation to the criterion “supports productive working relationships”, the complaint concerned direct contact with the receiving parent discussed earlier in these reasons. The applicant’s comment in relation to this issue was that the complaint had been dealt with in November and she queried why it was being raised again in December as a basis for termination.
In relation to the criterion “communicates with influence” the applicant said that she could see that the respondent had taken the view that she had attitudinal issues with the situation but disputed the facts on which that conclusion was based given that at, apparently, a point after the complaint was lodged, the applicant found herself on the phone with the complainant representative of the receiving parent. The applicant said that she identified herself and dealt with the complaint at that time.
The applicant deposed that on 15 December 2009, the day after her return to work following her day surgery and her receipt of the final probation report, she spoke to Denise Tyler (the Human Resources Manager). She deposed that the following conversation took place:
Applicant:… I feel like no-one is listening to me and my concerns about my illness and injury and the way in which it has impacted on my targets. I am hoping that you will be able to take on board my concerns and assist me.
Ms Tyler:I am only here to ensure that the correct process takes place, that procedural fairness occurs and that nothing illegal occurs …
Applicant:Do you think that there has been an occurrence of disability discrimination in respect of my case? Would you be able to review this for me? Who else can I obtain support from if I am not successful getting my point across? …
Ms Tyler:I won’t be in your corner. I will look at the disability discrimination for you. You may be able to take your case to the Human Rights Commission. It appears that you have already been given a fair go …
The applicant deposed that she felt very disappointed at the lack of support provided by Ms Tyler. Nevertheless, on 16 December 2009 she emailed Ms Tyler and asked her to consider:
… the possibility that I have been Discriminated against due to Disability on two occasions – one during the months of October/November whilst I was suffering from a back injury, and a second occasion after being notified of not meeting the WIP for November and not being offered an extension due to requiring time off to attend Day Surgery …
By email later on 16 December 2009 and following some intervening exchanges, Ms Tyler advised the applicant as follows:
I found that John Tubman made contact with you on commencement so I’m satisfied that the CSP [Child Support Program] carried out its duty of care in that regard. I also can see that John has had a good deal of interaction with you and that you have been well supported. I think you will find that a doctor is the appropriate person to comment on whether a person has a disability rather than a legal adviser. No need for that though, I just wanted to check that we hadn’t missed the opportunity to ensure that your needs were attended to both at the start and during your time here.
Ms Tyler confirmed on 17 December 2009 that she would not be conducting an investigation into the applicant’s allegations of disability discrimination.
On 16 December 2009 the applicant emailed Ms Blyth three documents in response to the latter’s recommendation for termination. In the first document the applicant addressed each of the performance criteria in her final probation report. In the second document she provided an assessment of her WIP and outlined why she believed “the WIP has failed me”. Finally, in the third document the applicant responded to an email which had been sent to her by Ms Blyth on 15 December 2009. In that email Ms Blyth “clarified” her reasons for making the recommendation and invited the applicant to comment.
The applicant deposed that on 17 December 2009 she received a letter from Mark Cartledge (the State Manager and ministerial delegate) advising her that he was considering terminating her employment for failing to perform satisfactorily during the probationary period. The letter stated:
In considering this decision, I have also taken into account a number of concerns raised during the entire probation period that are reflected in probation reports and from consultation with the leadership team. These concerns are:
· On 17 July 2009 your Team Leader noted (in the probation report) that you were overall, meeting the requirements of probation. However, the Team Leader had cause to note concern around your apparent lack of understanding of the APS Values and Code of Conduct. On 13 July 2009, it is noted that you had arrived 8 minutes late to the training, after having lunch (written feedback delivered on 15 July 2009) and had also voiced an inappropriate comment in the presence of your colleagues (written feedback delivered on 15 July 2009). The team leader noted an improvement in this regard, after having brought the matter to your attention.
· At 1 month of probation Team Leader was satisfied that, overall, you met the requirements of probation for that period. However, the Team Leader noted that your behaviour towards some of your peers, e.g. TSOs and Trainers was unacceptable and not in line with the APS Code of Conduct and APS Values …
· At the 2.5 month probation the team leader noted that you were, overall, meeting requirements. There was some concern over your apparent difficulty to prioritise work loads and this was noted. At this point there was reason to be optimistic that you had taken on board the previous concerns around your behaviour and manner towards others.
· Between the 2.5 and 5 month probation reports the team leader became increasingly concerned with your performance. Observations on particular cases confirmed that you were not meeting targets, not finalising cases and not meeting the required number of outbound calls. In addition you were not meeting milestones around overdue work and OBIs. As a result a Work Improvement Plan was put in place between 9 November 2009 and 4 December 2009 to support you and to give you the opportunity to improve.
· All of the requirements of the WIP were not met.
· Whilst there was no formal reduction in your targets to account for your unplanned leave, when looking at your final achievements, the team leader did take into account that you had been absent for 3 days and you still did not meet the target. This is the way any other employee would be treated in similar circumstances. I do not agree that there was any discrimination or disadvantage to you in this regard. For clarity, I asked Ms Blyth to demonstrate to me a projected outcome. Please see below for calculations;
Full collection expectation for November was $26 250
3 days reduction figures are $22 500
Sandra’s results were $20 042
Full phone call expectation for November was 420 (average 20 per day)
3 days reduction figures are 360 (average 17 per day)
Sandra’s calls were 222 (average 10 per day)
· The 5 month probation report also highlighted a re-emergence of poor behaviours, in that you were found to have spoken inappropriately to a customer. The complaint was extremely serious in nature and was subsequently partially upheld in that it was found that you had:
1. Inappropriately questioned a Receiving Parent (RP) about their wish to nominate a representative.
2. You had acted in a way that the RP found to be intimidating. When Ms Blyth listened to the call, she noted that you had repeatedly talked over the RP thus not allowing her to finish what she wanted to say. In addition Ms Blyth found that your tone towards the RP became aggressive to the point of being rude.
3. When the RP asked that you put your requests to her in writing, you refused.
The customer had also alleged harassment towards her by you. Ms Blyth did not uphold that part of the complaint but it is worth noting that this was the customer’s perception of how she was treated by you.
· Whilst some improvement had previously been noted in regards to the way in which you treat our customers and your peers, I am concerned that you appear to have not consistently behaved in accordance with the APS Values and Code of Conduct or to the CSP’s Customer Service Principles and throughout your employment your behaviour has demonstrated an emerging trend which indicates you struggle with interpersonal relationships. You have conceded that this is due to your “personality type”. However, I am not inclined to accept that this in any way mitigates your behaviour. The partially upheld complaint is, as I have noted of an extremely serious nature which is in contrast with our Customer Service Principles. The way in which you conducted yourself on this occasion was in direct contradiction with one of the key expectations of the Australian Government. The fact that you refer to this incident as “the only complaint ever received about me” indicates to me that you do not appreciate the gravity of the issue.
· I note that you have had 13 days unplanned leave since September 2009, 4 of which were without a Doctor’s certificate. Prior to this time, as you have pointed out previously, the team leader noted you had “Excellent Attendance.”
· Upon your return from Unplanned Leave the Rehabilitation Case Manager (RCM) and your Team Leader worked with you to put in place a “Suitable Duties” plan. … I have reviewed the level of support provided to you by the RCM and it appears from the information I currently have that satisfactory steps were taken to address potential medical issues. I have no reason to believe that there was any pressure brought to bear on you to be at work contrary to your doctor’s advice.
· Although your team leader has noted that you have subsequently met requirements for “Develops and Uses Professional and Technical Expertise” I note that you have not achieved your targets for any month during the probation period and I am also concerned that it appears your behaviour has not been consistently at the level expected of Public Servants in terms of the APS Values and Code of Conduct.
Mr Cartledge invited the applicant’s comments before making a final decision.
The applicant emailed Mr Cartledge on 21 December 2009, attaching her response. In it she stated that, based on her calculations and allowing for her absences and the time she spent dealing with the WIP administration, she had in fact met the collection targets for all months, including October and November 2009. She stated that the CSA’s workload management strategy “allows for performance variances for individual months, indicating that overall targets over time should be accomplished”. In this connection she stated that, as at the end of November, her overall collection target (over August-November 2009) was $52,500 while her actual collections were $55,294. She also had a telephone conversation with Mr Cartledge on 22 December 2009 at which time she was invited to put forward any further issues.
The applicant was dismissed by Mr Cartledge on 22 December 2009. In the dismissal letter Mr Cartledge wrote:
After having carefully considered the points you put to me, I remain concerned overall about your performance during the probation period. In particular, I am concerned about your failure to meet benchmarks/targets and the very serious nature of the Step 3 Complaint call. … I have decided that your employment should be terminated on the ground that you have failed to meet a condition of engagement. …
The respondent
Liza Blyth
Ms Blyth swore an affidavit on 9 July 2010. At the relevant time she was employed by the respondent in the role of service manager within the CSA, as it was then known. In that role she was responsible for the supervision of various teams including the Enforced Collect Team and for the 2009 new-starter programs. She deposed that, broadly, there were two aspects to her role, the first being to manage and support subordinate employees and the second being to ensure that people were meeting expectations, with the overarching goal that the business was performing and meeting expectations. Although part of her role involved managing and supporting new-starters through their training and probation, if she identified that a probationary employee had not met all the conditions of employment, she was responsible for making a recommendation to the delegate that the employee’s employment be terminated. Annexed to Ms Blyth’s affidavit was a copy of the CSA “Work Level Standards” document which defined “the ‘whole of job’ requirements and expectations of staff operating at each classification level from CSO 1 to EL 2”. These included the requirements for a Customer Service Officer (“CSO”) level three, the position to which the applicant had been appointed on a probationary basis. The document stated:
The Work Level Standards are a tool that can be used in:
§ Position classification
§ Evaluation of work value
§ Job design or redesign
§ Recruitment and selection
§ Performance management
The Work Level Standards describe expected standards of performance. They are comprehensive statements of the broad job requirements, key duties and responsibilities, required capabilities, operating context and performance characteristics that embody effective performance at a particular work level. (emphasis included)
Amongst the characteristics of the work required of a CSO 3 were:
· A requirement to work independently as an effective team member under general supervision and direction. It is expected that work would be routinely monitored and checked by more senior staff
· A requirement to constructively participate in team operations and meetings and to manage own work in accordance with team priorities in a timely manner and to the standards set
· Responsibility for providing advice and administrative support in specific areas
· Exercise of decision-making within defined parameters, in line with established procedures and protocols
· Application of judgement and limited discretion in decision-making following advice and clarification from more senior staff
· A need for accuracy, precision and a high level of attention to detail in applying job-specific knowledge
· A requirement to respond well to and to provide quality advice and service to customers, with an emphasis on an ability to communicate effectively with staff and customers
· Exercise of organisation, co-ordination and information management skills
That Work Level Standard also specified certain required capabilities for employees of the CSA, including those at the level of CSO 3:
Essential capabilities for roles at this level are:
Contributes to Strategic Thinking
· Supports shared purpose and direction
· Thinks strategically
· Harnesses information and opportunities
· Shows judgement, intelligence and commonsense
Achieves Results
· Identifies and uses resources wisely
· Applies and builds professional expertise
· Responds positively to change
· Takes responsibility for managing work to achieve results
Supports Productive Working Relationships
· Nurtures internal and external relationships
· Listens to, understands and recognises the needs of others
· Values difference and diversity
· Shares learning and supports others
· Provides excellent customer service
Displays Personal Drive and Integrity
· Demonstrates public service professionalism and probity
· Engages with risk and shows personal courage
· Commits to action
· Promotes and adopts a positive and balanced approach to work
· Demonstrates self-awareness and commits to personal development
Communicates with Influence
· Communicates clearly and concisely
· Listens, understands and adapts to audience
· Negotiates to reconcile diverse views
Develops and Uses Professional and Technical Expertise
· Develops and uses technical, professional or specialist knowledge and expertise
Ms Blyth described the role of a CSO 3 within the Enforced Collection Division of the CSA as involving the collection of moneys from paying parents, saying that those employed in that role had to be able to manage challenging aspects of the role including difficult customers.
Also annexed to Ms Blyth’s affidavit was a CSA “Capability Framework” which described the capabilities expected of staff operating at each level from CSO 1 to EL 2 and which also stated that it provided “comprehensive statements of the behaviours, attributes, abilities, values and skills that underpin effective performance at a particular work level”. The document indicates that different levels of achievement were expected commensurate with the seniority of the employee. The framework described itself as a tool which could be used in performance management, learning and development and career and succession planning. Relevantly, in relation to CSO 3 a number of capabilities are set out in terms identical except in an irrelevant respect to the required capabilities set out in the Work Level Standards document quoted above at [49]. The framework indicates the standard of achievement expected of CSO 3s.
Annexed to Ms Blyth’s affidavit was a copy of the respondent’s letter dated 23 June 2009 offering the applicant on-going employment as a CSO 3. Attachment A to the Acceptance Form which accompanied that letter specified that there would be a six month probationary period from the commencement of employment during which time regular probationary reports were to be completed by the applicant’s supervisors. It went on to say that if at any time the respondent was not satisfied with the applicant’s work performance, attendance or conduct, her employment might be terminated.
Ms Blyth deposed that the respondent’s new-starter program relevant to the applicant was one which comprised about twelve weeks of theory and classroom-based learning and about twelve weeks of practical exercises, teamwork and training focusing on debt and enforcement skills. The practical exercises included actually working as a CSO within the CSA. Annexed to Ms Blyth’s affidavit was a copy of the program timetable. A copy of the trainer guide for the “New Starter Program” was also annexed to Ms Blyth’s affidavit. One stage of the training which it described was the provision to the participants of “the probation report form and the Child Support Program work level standards”. It went on to say that the trainer was to:
Explain to participants that they will complete the probation report form with their Team Leaders throughout the probation period at the various feedback points as outlined in the probation model on page 9 of the Participant Workbook. (emphasis included)
The program participant workbook which was annexed to Ms Blyth’s affidavit identified that a team leader was to provide feedback to the new employee after two weeks, a probation report to the employee at one month and then regular feedback and a probation report at 2.5 months. The workbook also recorded that after the 2.5 month point, the team leader was to continue with regular feedback and was to provide a probation report at five months following which he or she was to complete an employment recommendation which might involve recommending that the employee’s employment be terminated. The workbook also recorded that a probationer could be recommended for dismissal at any time for serious performance or conduct issues. Ms Blyth deposed that in addition to the initial two week feedback and the subsequent probation reports prescribed by the probation model, on-going qualitative feedback would also be provided by technical support officers. The relevant service manager might also provide additional feedback on an on-going basis as required or appropriate.
A copy of the applicant’s probation report for the first two stages of her probation, namely the two week feedback, the one month probation report and the 2.5 month probation report, was annexed to Ms Blyth’s affidavit. The two week feedback comments appearing in that report identified that the applicant met agreed requirements although some adverse matters were identified, namely:
Sandra needs to understand that all information provided to her in training is important and that she needs to absorb the information to enable her to complete her tasks.
and
Sandra needs to be a little more mindful of others learning styles and allows [sic] other team members to demonstrate their understanding.
and
Sandra … would benefit by being more proactive in developing more of a rapport with her peers.
and
Sandra needs to display a better understanding of the APS Values and Code of Conduct.
The document bears the signature of the applicant and Mr Cunio, her then-supervisor, together with the applicant’s acknowledgment that she understood what had been explained to her by her supervisor.
The reviews completed at one month and at 2.5 months, both of which appear in the probation report annexed to Ms Blyth’s affidavit, identified that the applicant met agreed requirements although on each occasion a number of issues were identified:
[Stage 1 – Part B, report dated 30 July 2009 – At 1 month]
Sandra requires guidance in organising her work effectively …
Sandra needs to be mindful of questioning decisions made by TSO … Sandra has been challenging in an argumentative manner and needs to be aware of the tone of voice she exercises when challenging or questioning …
Assessment activities have indicated that Sandra needs to be prompted, on occasion, to provide the relevant and correct information and would benefit from additional revision of training materials …
[Stage 2 – Part C, report dated 16 September 2009 – At 2.5 months]
Sandra appears to have difficulties prioritising her workload and would benefit from using cleansing techniques to organise her tasks…
Sandra needs to better balance her personal needs in relation to team goals and priorities. …
I would like to see Sandra be more vocal in putting forward suggestions about team matters (e.g. in a team meeting) and increasing her participation in the Performance Management Process (e.g. completing a self-assessment for the purposes of this discussion/report).
Each of these reports was signed by the applicant and by Mr Cunio, the applicant indicating that she agreed with the assessments.
Separately annexed to Ms Blyth’s affidavit was a copy of Part D of the probation report, being that part relevant to the five month review. The five month report was completed by Mr Maxwell. There the applicant is recorded as having failed to meet five of the six agreed requirements. A copy of that report was annexed to the applicant’s affidavit and is quoted above at [37]. Part D of that probation report also notes that the applicant was working with the rehabilitation case manager to ensure that she was undertaking suitable duties whilst on medical restrictions from her doctor.
Ms Blyth deposed that after the applicant’s 2.5 month probation report she observed that the applicant’s performance was not meeting expectations. This observation was based on her reading of Mr Cunio’s report rather than on having observed the applicant’s work herself. Ms Blyth acknowledged that Mr Cunio was of the view that the applicant was meeting all of the agreed requirements but she pointed to the qualifying statements which he made in the report.
On 13 October 2009 Mr Cunio provided feedback to the applicant at which time it was identified that the applicant could further develop, or required further support, in relation to managing “outcome based in-trays” (a specific type of electronic in-tray item which required an employee to take action at a specific time, in a specific manner and to record the outcomes against “the milestones”) and “in-trays” (a computer-based document management concept), as well as in dealing with all feedback and issues in a positive manner at all times. It was also identified that the applicant needed to employ strategies to improve her collection approach as she was at a high risk of not meeting targets in the future.
Ms Blyth also annexed to her affidavit copies of the applicant’s Technical Support Officer (“TSO”) audit results dated 16, 26 and 30 November 2009. These reports recorded that the applicant needed development in respect of various identified performance criteria. Ms Blyth deposed that, following each TSO audit, she noted that the applicant was not improving despite the support that was being provided.
On 9 November 2009 the CSA received a letter of complaint about the applicant from a customer’s authorised representative which was considered to be serious and with which Ms Blyth dealt personally. Ms Blyth listened to the recording of the relevant telephone conversation and found the applicant to have been defensive, rude and to have spoken over the top of the parent. Ms Blyth deposed that following her investigation of the compliant she determined that the applicant should not have called the parent directly but should have called the parent’s authorised representative; the conversation which the applicant had had with the parent was based on intimidation; and the applicant had refused to put something in writing as requested.
Ms Blyth said that on 19 November 2009, when she advised the applicant of the outcome of her inquiry into this incident, she was of the view that the complaint did not warrant the termination of the applicant’s employment.
By November 2009 it was evident to Ms Blyth that the applicant was not, on the whole, meeting all the expectations of probation. In particular, Ms Blyth was concerned about the complaint which had been made against the applicant as well her inability to finalise cases and manage her “in-trays”. Ms Blyth considered that the applicant would be assisted through the development and implementation of a WIP. Ms Blyth deposed that such plans were implemented for a period of either two or four weeks in order that probationary employees could be afforded every opportunity to meet the expectations of the period of probation. She deposed that such plans were designed to support and assist employees to understand their underperformance issues, to implement strategies to overcome those issues and to improve their performance.
Broadly, the applicant’s plan was designed to assist her with respect to underperformance issues which had been identified and discussed on 6 November 2009 with her team leader, Mr Maxwell. These were the fact that the applicant had not:
a)met her monthly dollar target of $17,500 for October 2009;
b)finalised six cases per month;
c)averaged twenty outbound calls per day over the week; or
d)met milestones and workload management requirements.
Ms Blyth agreed that when she met with the applicant on 9 November 2009 to discuss the latter being placed on a WIP she said, in response to the applicant’s query concerning whether there should be some consideration given to the fact that she had been away and was on a strict return-to-work program, that there would be no change to targets because of illness. She agreed that the applicant said that she was concerned that she would not meet the November targets as her doctor had placed her on a gradual return-to-work program as a result of her back injury. Ms Blyth also agreed that the applicant said that the time taken to implement the WIP would further reduce the hours she had available to make contact with parents and collect money.
On the completion of the WIP on 4 December 2009 Ms Blyth reviewed the results and determined that the applicant was not meeting or close to meeting expectations and targets. Ms Blyth considered the results of the WIP together with the applicant’s performance over the entire probation period and formed the view that the latter’s performance during that period was not satisfactory and that she should not be offered on-going employment. Ms Blyth decided to recommend to the delegate of the Secretary that the applicant’s employment with the respondent be terminated.
Ms Blyth had discretion to extend the WIP by a week in some instances. Of the twenty-five new starters (although the applicant in her affidavit says that there were twenty-four new starters), fourteen were placed on WIPs and two or three of them were granted an extended WIP. The applicant requested an extension of her WIP. When asking for the extension, the applicant advised Ms Blyth that she was booked in for surgery in December 2009. Ms Blyth considered the applicant’s request but nevertheless decided that, having regard to all the circumstances of the applicant’s probation, this was not appropriate. Ms Blyth agreed that upon being told that the applicant was booked in for surgery, she advised the applicant that she was not going to extend her WIP.
Ms Blyth said that the decision to extend a WIP would be made by her in consultation with that employee’s team leader.
As to the targets and benchmarks which the applicant was expected to meet, Ms Blyth deposed that she was not permitted to adjust them but, in any event, they were not the sole determinant of whether an employee met the conditions of probation and would be offered on-going employment with the respondent. Ms Blyth deposed that targets were not adjusted for other new employees who were absent from work for various reasons, although due regard was had to each employee’s absence from work when assessing the employee’s overall performance during the probation period.
On 15 December 2009 Ms Blyth wrote to the applicant and formally informed her that she was going to recommend that her (the applicant’s) employment be terminated. In that email Ms Blyth summarised a number of concerns extending over a number of months regarding the applicant’s performance. The applicant responded to that email but as Ms Blyth was on leave from around this time it was dealt with by Ms Tyler who passed it on to Mr Cartledge.
On 16 December 2009 Ms Blyth sent an email to Ms Tyler providing some calculations concerning how the applicant’s collection and call targets might be arithmetically reduced based on the applicant’s restricted work hours of six hours per day, which she worked out to equate to approximately three days’ absence. These were the figures later quoted by Mr Cartledge in his letter to the applicant of 17 December 2009, quoted above at [45].
Although it can be accepted that some of the applicant’s fellow probationers were permitted extensions on their WIPs, it has not been demonstrated that the decision to not extend the applicant’s WIP amounted to her being “singled out” in the sense considered in Squires’s case and the Health Services Union case. In Squires’s case the employer had deliberately treated the informant in a discriminatory and adverse manner because his union insisted on it. In the Health Services Union case Marshall J concluded that the respondent’s apparent intention was to discriminate against the applicant union and its members because they had not agreed to a wage claim settlement which other unions had accepted. His Honour discerned a quality of victimisation in the respondent employer’s conduct.
To conclude that an employee has been “singled out” requires not only a finding that the employee has been treated differently from other employees but also that the treatment in question was deliberately less favourable than the treatment of other employees. In this case, no attempt was made to compare the circumstances of the probationary employees who were offered extended WIPs with those of the applicant to show that the decision in relation to the applicant was something more than a different decision based on different facts. In particular, evidence was not adduced which suggested that the respondent, when refusing the applicant an extension of her WIP, deliberately sought to treat her less favourably than the other probationary employees whose WIPs had been extended. As a result, the evidence in this case does not support a conclusion that the applicant was “singled out”, in the sense considered in Squires’s case and the Health Services Union case, and that she was injured in her employment on that account.
Alteration of employee’s position to their prejudice
It is next necessary to consider whether the denial of an extension of her WIP amounted to an alteration of the applicant’s position to her prejudice. In Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 Evatt J said at 290:
The relevant history of [predecessors to s.342 of the FWA] is that since 1904 when the Act first came into operation sanctions have been provided against an employer who dismissed an employee in certain proscribed circumstances. In 1909 the phrase “or injure him in his employment” was inserted whilst in 1914 the phrase “or alter his position to his prejudice” was added. It is clear in my view that the words were added to the section to overcome a situation in which an employer did something short of dismissing an employee but which was something which could be said to be harmful to him in his employment. (parenthetical references omitted)
His Honour went on to adopt what Smithers J had said in Childs v Metropolitan Transport Trust at 947 which was, relevantly:
No doubt, because it was found that a man could suffer because of his activities in the operation of the Act, through action taken against him by his employer because of those activities, which did alter his position in his employment to his detriment, but did not actually injure him then and there in a practical way. It seemed good to parliament, therefore, to say to employers, ‘You must not dismiss him for any of those reasons. You must not injure him in his employment for any of those reasons and you must not, whether you injure him or not, alter his position to his prejudice.’
In Linehan v Northwest Exports Pty Ltd (1981) 57 FLR 49 at 61-62, Ellicott J held that an employer who treated an employee as a regular and permanent employee until the employment was terminated and thereafter denied him that status and the benefits which accompanied it, such as annual leave and sick leave payments, had thereby altered the employee’s position to his prejudice.
As to the meaning of “position”, in Childs v Metropolitan Transport Trust Smithers J said:
It is possible to read the word ‘position’ in a narrow way merely as referable to the immediate incidents of day-to-day employment. But I do not see any reason why it should be so circumscribed in meaning. It seems to me that the word ‘position’ should be read rather to refer to a man’s employment position in all its attributes and that to find what those attributes are in any particular case, you look at the terms of employment, the terms of the agreement in relation to the particular employment. (at 947)
These views were also adopted by Evatt J in Blair v Australian Motor Industries and referred to by RD Nicholson J in Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 at 70 [229].
In order to determine whether the respondent altered the applicant’s position to her detriment, it is necessary to identify and compare her “position” before and after the decision to not extend the WIP and then to determine whether it was altered to her detriment as a result of that decision. On 7 December 2009, when Ms Blyth and the applicant discussed the possibility of an extension of the latter’s WIP, the WIP had concluded and the applicant’s position was that of a probationary employee who was entitled to be considered for an extension of a WIP. After Ms Blyth’s decision to not extend the WIP, the applicant was a probationary employee who had been denied an extension of her WIP and who was subject to the alternative recommendation that her employment be terminated. Ms Blyth’s making of that decision did amount to an alteration of the applicant’s position to her prejudice because it resulted in her position after the decision being less advantageous than her position had been before it.
Discrimination between employees
The applicant also submitted that the respondent’s decision to deny her an extension to her WIP, when extensions were given to other employees, amounted to discrimination between her and those other employees. The Macquarie Dictionary (5th ed.) relevantly defines “discriminate” in the following terms:
1. to make a distinction, as in favour of or against a person or thing.
The Shorter Oxford English Dictionary (6th ed.) relevantly defines “discriminate” as:
4. Make a distinction in the treatment of different categories of people or things, esp. unjustly or prejudicially against people on grounds or race, colour, sex, social status, age, etc.
The element of intent is central to these definitions. To discriminate requires a conscious decision to make a distinction, in this case between people.
The proscription of discrimination between employees for a prohibited reason should be seen in the context of the objects of pt.3-1. Section 336 of the FWA relevantly provides that the objects of the part are:
(d)to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part.
Although it has been held earlier in these reasons that ss.5 and 6 of the Disability Discrimination Act do not inform the interpretation of s.351 of the FWA, nevertheless s.5’s characterisation of discrimination, as a person being treated less favourably than others, appears to encapsulate an important part of the meaning of discrimination to be derived from the dictionary definitions and the object expressed in s.336(d), in the sense that a person is being treated unjustly, prejudicially, discriminated against, victimised or adversely affected.
Seen in this context, the discrimination between employees referred to in item 1 of s.342(1) involves an employer deliberately treating an employee, or a group of employees, less favourably than others of its employees; cf. BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 102 FCR 97 at 112 [48] and would include, although not be limited to, the sort of conduct seen in Squires’s case and in the Health Services Union case. However, for the reasons discussed in relation to the possibility that the applicant had been “singled out” and had thus suffered an injury in her employment, I do not conclude that the respondent discriminated between her and others of its employees when it decided to not extend her WIP.
Reason for adverse action
The remaining question is whether the alteration of the applicant’s position to her detriment by denying her an extension to her WIP was action taken for a prohibited reason. The applicant relied on s.351 of the FWA and submitted that the decision to not extend her WIP was because of her disabilities which she identified in final addresses to be her gynaecological problems, her bulging discs, her back problems and her need to have surgery in relation to them. However, at no point prior to addresses had it been suggested that the applicant’s bulging discs and back problems had had anything to do with the December 2009 surgery and, indeed, the evidence does not suggest that they did. When opening the applicant’s case, her counsel relevantly referred only to an unspecified physical disability and the case ran on the basis that the December 2009 procedure arose out of the applicant’s gynaecological problems and her worry over possible uterine cancer. Prior to addresses it was not suggested that it had anything to do with her orthopaedic problems and by then it was too late to do so to any effect.
Accepting that the applicant’s case must be that her December 2009 procedure related only to her gynaecological problems and her concern over possible uterine cancer and had nothing to do with her orthopaedic issues, a difficulty confronting her is that she has not demonstrated that those gynaecological issues amounted to a disability and if they did, what that disability was. The reason for an employer’s conduct is usually peculiarly within the knowledge of the employer and because of that is, in broad terms, presumed to be a prohibited reason unless shown to be otherwise. However, the applicant still bears the onus of establishing the elements of the cause of action on the balance of probabilities. One of those elements, in the context of the decision to not extend the applicant’s WIP, was that she suffered from a physical or mental disability. The applicant has failed to demonstrate that she did, relevantly, suffer from a disability.
This lack of specificity in the applicant’s allegations takes on a further significance when considering the question of the respondent’s reason for not extending the applicant’s WIP and the possible operation of the reverse onus of proof under s.361. The effect of that section is that in proceedings under s.351, if an allegation of adverse action for a prohibited reason is made, it is then presumed that the action was taken for that prohibited reason, or with that intent, unless the employer proves to the contrary: Davids Distribution at 501 [109] per Wilcox and Cooper JJ. However, it is necessary for an applicant to allege the particular intent in question: s.361(1)(a); cf. Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 at 559-561, 556, 574-575 [31]-[37], [54], [74]-[75]. In other words, in these proceedings, to enliven the reverse onus of proof the applicant had not only to allege that the decision to not extend her WIP was taken because she suffered from a disability but also to identify the disability said to have motivated the respondent’s conduct. However, she did not do this.
Because the applicant did not plead or otherwise identify the disability which was allegedly the reason for the respondent’s adverse action, she failed to make an allegation which satisfied the requirements of s.361(1)(a) or Davids Distribution. This has the result that the respondent is not required by s.361 to prove that its action was not taken for a prohibited reason. Moreover, to require the respondent to discharge the reverse onus of proof without the applicant having first properly specified the matters which the respondent would have to address would amount to an impermissible denial of procedural fairness.
Because the reverse onus provided by s.361 does not apply, the onus of proof of the respondent’s motivation rests with the applicant. However, the applicant adduced no evidence which was directly addressed to Ms Blyth’s reason or reasons for not extending the applicant’s WIP apart from deposing to the relevant conversation in the terms reproduced above at [35]. In the respondent’s case, Ms Blyth deposed that she considered the applicant’s request for the extension but
decided that, having regard to all of the circumstances of her probation, this was not appropriate.
Ms Blyth also deposed that she “categorically reject[ed]” any suggestion that the applicant’s injury or health was a factor in her election to not extend the WIP by a week. This issue was not explored with Ms Blyth when she was cross-examined and, in particular, it was not put to her that her decision to not extend the applicant’s WIP was because of a particular disability suffered by the applicant or even because of the applicant’s absence from work for surgery.
I find that the applicant has not proved that Ms Blyth’s decision to not extend the applicant’s WIP was because of a disability suffered by the applicant.
In any event, the applicant’s case appeared to proceed on the basis that it was her mere absence from work by reason of surgery for ill-specified reasons which was the reason for the decision not to extend her WIP and that this was sufficient to prove the s.351 claim in relation to the WIP extension. However, as observed earlier, a distinction must be drawn between the physical or mental limitations associated with a disability and the practical consequences of those limitations. An allegation based on the latter fails to allege a disability in the manner necessary to enliven the reverse onus of proof or to make out an essential element of a claim of disability-based adverse action.
For these reasons, I find that the allegation that the applicant’s WIP was not extended by one week because she suffered a disability has not been made out.
Other adverse action – conduct contrary to the Disability Discrimination Act
The above conclusions dispose of the applicant’s claims based on allegations of disability discrimination. As the definitions of “discriminate” in the Disability Discrimination Act do not inform the interpretation of s.351 and thus the availability of relief in respect of adverse action taken because of an employee’s disability, it is not necessary for the Court to consider the applicant’s claims under the FWA, derived from or based on ss.5 and 6 of the Disability Discrimination Act, that the respondent should have made “reasonable adjustments” for her by way of an extension of her WIP or an adjustment of her targets.
Further, to the extent that those claims may be thought, notwithstanding ss.725, 728, 732 and 734 of the FWA, to have some independent standing in these proceedings, an action based on conduct which is alleged to have contravened the Disability Discrimination Act depends on there first having been a complaint made to the Australian Human Rights Commission (“Commission”) which has been terminated by the President of the Commission: pt.IIB Australian Human Rights Commission Act1986. Absent the termination of such a complaint by the President of the Commission, this Court has no jurisdiction to entertain a claim based on alleged contraventions of the Disability Discrimination Act: s.46PO Australian Human Rights Commission Act. It has not been suggested that the applicant in these proceedings made such a complaint.
Consequently, the applicant’s allegations that the respondent should have made “reasonable adjustments” for her by way of an extension of her WIP or an adjustment of her targets, to the extent that they are based on the Disability Discrimination Act and are not prevented by ss.725, 728, 732 and 734 of the FWA, fail because an essential pre-condition to the Court’s jurisdiction to consider them is absent.
Other adverse action – discrimination between employees because of workplace right
The applicant submitted that her dismissal was a discriminatory act taken because she had made a complaint or inquiry. However, it has been found earlier in these reasons that the fact that the applicant had made complaints or inquiries and the possibility that she might make further complaints or inquiries formed no part of Mr Cartledge’s decision to dismiss her.
Moreover, the applicant has not demonstrated that she was deliberately treated differently from other employees of the respondent. Although the evidence indicates that the applicant was the only probationer in her intake who was dismissed, she adduced no evidence to suggest that this was the product of discriminatory treatment. Nor was it an issue which was put to Mr Cartledge. The fact that the applicant’s probation had an outcome which was different from the outcomes enjoyed by other probationers is insufficient to prove discrimination. It was necessary for the applicant to prove that the respondent deliberately treated her less favourably than its other employees and she has failed to do this.
Conclusion
The application will be dismissed.
I certify that the preceding one-hundred and ninety-two (192) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 31 March 2011
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