Hudston v Activ Foundation Inc
[2017] FCCA 699
•21 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUDSTON v ACTIV FOUNDATION INC | [2017] FCCA 699 |
| Catchwords: INDUSTRIAL LAW – Adverse action – dismissal from employment – reason for the dismissal – dismissal following an investigation into disciplinary allegations which were confirmed – application dismissed. |
| Legislation: Evidence Act 1995 (Cth), s.140 Fair Work Act 2009 (Cth), ss.340, 341, 342, 346, 351, 361, 387 |
| Cases cited: Bendigo Regional Institute of Technology and Further Education v Barclay (No 1) (2012) 248 CLR 500 Celand v Skycity Adelaide Pty Ltd [2016] FCCA 399 Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) FCA 399 Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402 |
| Applicant: | MARGARET HUDSTON |
| Respondent: | ACTIV FOUNDATION INC |
| File Number: | PEG 210 of 2015 |
| Judgment of: | Judge Driver |
| Hearing dates: | 9-10 February, 20-21 March 2017 |
| Date of Last Submission: | 19 April 2017 |
| Delivered at: | Sydney, via telephone to Perth |
| Delivered on: | 21 June 2017 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondent: | Ms R Airey of HWL Ebsworth Lawyers |
ORDERS
The application lodged on 15 May 2015 and filed on 18 May 2015 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 210 of 2015
| MARGARET HUDSTON |
Applicant
And
| ACTIV FOUNDATION INC |
Respondent
REASONS FOR JUDGMENT
Introduction and background
By application lodged with the Perth registry on 15 May 2015 and filed on 18 May 2015, Ms Hudston seeks relief under the Fair Work Act 2009 (Cth) (Fair Work Act) for alleged adverse action, being her dismissal from employment, being treated differently to others, and being victimised, bullied and harassed. She seeks compensation and the imposition of a pecuniary penalty. Ms Hudston had earlier made a complaint to the Fair Work Commission. On 1 May 2015 Deputy President Kovacic issued a certificate under s.368 of the Fair Work Act.
The respondent (Activ) opposes the application. Activ admits that Ms Hudston was dismissed from her employment and that she had earlier made a complaint to its Chief Executive Officer about her employment but denies that Ms Hudston was dismissed because of her complaint. Activ pleads that on or about 16 February 2015, it became aware that Ms Hudston may have engaged in misconduct by failing to follow a care plan, breaching its code of conduct in failing to follow incident reporting requirements and failing to attend to training requirements. Activ investigated the alleged misconduct and, on 26 March 2015, Ms Hudston was advised in writing that the alleged misconduct had been substantiated (for the most part) and that her employment was being terminated.
Ms Hudston relies upon her two affidavits made on 29 April 2016 and 4 September 2016, to each of which are annexed a bundle of documents. Ms Hudston made a further affidavit on 11 November 2016 which dealt with procedural matters. Ms Hudston was cross‑examined on her substantive affidavits.
Ms Hudston also sought to introduce evidence from her brother, Dennis Hutchison and Cassandra Rowe who is the mother of a former client of Activ. Activ objected to the receipt of that evidence and I sustained the objection. Ms Hudston had also subpoenaed a number of former employees or clients of Activ to give oral evidence. I permitted Ms Hudston to call on the subpoenas to four people, namely Christina Giuttari,[1] Monica Klobenz, Elaine Latouche[2] and Alexandra Lambert.[3] Each of those persons were called and gave oral evidence.
[1] The mother of a client of Activ.
[2] Activ employees.
[3] A former union representative.
Ms Hudston tendered three bundles of documents to complete her case which became Exhibits A1, A2 and A3.
Activ relies upon the evidence of its employees who were involved in the process leading up to the dismissal of Ms Hudston. These were Rebecca Buckley, Mark Furr (both of whom had made witness statements which they adopted orally), Michelle Bilson who made an affidavit on 28 October 2016, Lyn Maree Mills who made an affidavit on 28 October 2016 and Janina Mary Harland who made an affidavit on 22 December 2016. All but Ms Mills were required for cross-examination.
I also received as an exhibit[4] a client profile of a client of Activ who I will refer to as “KC”[5] who had been the subject of an incident leading to the investigation of Ms Hudston and her dismissal.
[4] Exhibit R1.
[5] I ordered at the outset of the trial of this matter that the names of any clients of Activ referred to in evidence or in my judgment be suppressed and referred to by pseudonym.
A further large bundle of documents was tendered by consent (consent bundle).
Both parties prepared pre-trial submissions and counsel for Activ made oral submissions at the end of the trial. I gave Ms Hudston the opportunity to provide final submissions in writing which she did on 4 April 2017. Regrettably, those submissions were unhelpful, as rather than attempt to draw conclusions from the evidence, Ms Hudston made broad and unsupported allegations of “systemic corruption” by a “dysfunctional and deceitful” management at Activ which had set out to “scapegoat” Ms Hudston with the aim of finding reasons to terminate her employment in order to conceal a “culture of poor duty of care”. Activ filed final submissions in reply on 19 April 2017.
Consideration
Agreed facts
The following facts are agreed by the parties.
On 7 April 2014, Ms Hudston commenced work for Activ.
The offer of employment was made in a letter dated 1 April 2014. This letter is document 5 in the consent bundle.
As part of its provision of respite care services, Activ operates short stay facilities in the Perth metropolitan area. One of these is located at 2 Lockett Street, Coolbellup (Lockett Street Premises). The Lockett Street Premises can accommodate up to five adults requiring respite care.
Ms Hudston was employed as a Residential Aide in a permanent part time capacity.
The duties of a Residential Aide are set out in the job description form. Ms Hudston signed a copy of the job description form. The job description form for a Residential Aide signed by Ms Hudston is document 2 in the consent bundle.
Activ has a Code of Conduct and Ethics Policy. The Code of Conduct and Ethics Policy is document 3 in the consent bundle. Ms Hudston was employed to work at the Lockett Street Premises.
During her employment, Ms Hudston worked 49 hours per fortnight. Ms Hudston worked additional hours as required.
Pursuant to the Activ Foundation Incorporated - United Voice - Direct Care Enterprise Agreement 2012 (Agreement), the base hourly rate Ms Hudston was paid when her employment commenced was $22.03. Ms Hudston was also paid penalty rates and overtime rates as specified in the Agreement, when applicable. The Agreement is document 1 in the consent bundle.
Pursuant to the Agreement on 1 July 2014, the base hourly rate paid to Ms Hudston increased to $22.9167 per hour. Ms Hudston was also paid penalty rates and overtime rates as specified in the Agreement, when applicable.
On 9 July 2014 Ms Hudston signed an RTO Enrolment Form to enrol in a Certificate III qualification in Disability (Training). This form is document 6 in the consent bundle.
On 22 August 2014, the Training was confirmed in a letter sent to Ms Hudston. This letter is document 7 in the consent bundle.
On 17 November 2014, Ms Hudston sent an email and attachment to Jan Graham, the personal assistant to Tony Vis, Activ's Chief Executive Officer. This email with the attachment is document 8 in the consent bundle.
On 24 November 2014, Mr Vis sent an email to Ms Hudston. This email is document 9 in the consent bundle. ·
On 25 November 2014, Ms Hudston sent an email to Mr Vis. This email is document 10 in the consent bundle.
On 25 November 2014, Ms Buckley sent an email to Ms Hudston. This email is document 11 in the consent bundle.
On 26 November 2014, Ms Hudston sent an email to Ms Buckley. This email is document 12 in the consent bundle.
On 26 November 2014, Ms Buckley sent an email to Ms Hudston. This email is document 13 in the consent bundle.
On 26 November 2014, Ms Hudston sent an email to Ms Buckley. This email is document 14 in the consent bundle.
On 1 December 2014, Ms Buckley met with Ms Hudston at Activ's premises in Wembley to discuss Ms Hudston's complaint to Mr Vis.
On 15 December 2014, Ms Buckley wrote to Ms Hudston confirming their discussion on 1 December 2014. Attached to the letter was a table setting out a summary of the complaint with follow up questions in relation to the complaint. This letter and its attachment is document 15 in the consent bundle.
On 30 December 2014, Ms Buckley met with Ms Hudston regarding the investigation into Ms Hudston's complaint to Mr Vis.
On 29 January 2015, Patrick McKenna, Ms Hudston's line manager, ceased working for Activ following his resignation.
KC is a client of Activ who receives respite care at the Lockett Street Premises. KC has high care needs which are outlined in her Client Short Profile and care plan. This Client Short Profile is document 4 in the consent bundle.
As with all staff, Ms Hudston was required to be aware of KC’s Client Short Profile and care plan whenever KC was at the Lockett Street Premises.
As with all staff, Ms Hudston was required to perform the duties set out in the job description form relevant to her position whenever she was working at the Lockett Street Premises.
On 16 February 2015, Ms Hudston was working at the Lockett Street Premises.
As a consequence of an incident which occurred at the Lockett Street Premises, the police attended the Lockett Street Premises to investigate a complaint of sexual assault.
On 18 February 2015, Ms Buckley wrote to Ms Hudston advising Ms Hudston that she was stood down from duty. This letter is document 16 in the consent bundle.
On 18 February 2015, Ms Hudston gave a statement to the police in relation to the alleged sexual assault. This statement is document 17 in the consent bundle.
On 25 February 2015 Dr Kiran Puttappa issued a medical certificate regarding Margaret Richmond's fitness for work. Margaret Richmond is the same person as Ms Hudston. This medical certificate is document 18 in the consent bundle.
On 9 March 2015, Ms Buckley wrote to Ms Hudston setting out four allegations of unsatisfactory·behaviour. This letter is document 19 in the consent bundle.
On 13 March 2015, Ms Hudston provided a written response to the allegations. This response is document 20 in the consent bundle.
On 16 March 2015, Ms Buckley and Ms Harland met with Ms Hudston and a representative from United Voice to discuss the allegations.
On 26 March 2015, Ms Buckley wrote to Ms Hudston terminating Ms Hudston’s employment. This letter is document 21 in the consent bundle.
Ms Hudston was entitled to one week's notice of the termination of her employment which Activ paid in lieu of requiring Ms Hudston to work the notice period.
In addition, the following facts derived from the evidence are not contentious.
Activ is the largest disability services provider in Western Australia and has been in operation for 65 years. Previously known as the Slow Learning Children's Group, Activ provides services to manage and support people living with disabilities, particularly intellectual disabilities.[6]
[6] Statement of Mark Furr dated 17 June 2016 (M Furr statement), [5].
Activ delivers comprehensive support to people living with disabilities including in accommodation.[7] Activ offers respite care for adults at two locations in Perth.[8] One of these locations is the Lockett Street Premises.[9]
[7] M Furr statement, [7].
[8] Affidavit of Michelle Bilson dated 28 October 2016 (M Bilson affidavit), [10].
[9] M Bilson affidavit, [11].
As noted above, Ms Hudston commenced work for Activ on 7 April 2014 as a Residential Aide working on a part time basis.[10] As a Residential Aide, Ms Hudston's responsibilities and duties were set out in a job description form and included supporting service recipients in maintaining personal hygiene and appearance. Possession of or progression towards a Certificate III in Disability Work was considered desirable knowledge and experience.[11]
[10] Statement of Agreed Facts, [1], [4].
[11] The job description form is documents 2 in the consent bundle.
On 29 October 2014, Mr McKenna, Team Leader, Adult Respite, issued a letter to Ms Hudston setting out six allegations in relation to her conduct.[12] Ms Hudston responded to this letter.[13]
[12] Statement of Rebecca Buckley dated 17 June 2016 (R Buckley statement), [32].
[13] R Buckley statement, [38].
On 10 November 2014, Lyn Gorman, Team Manager, Respite and Recreation, issued a warning letter on the basis that three of the allegations which had been made against Ms Hudston had been “substantiated”.[14] Activ understood that Ms Hudston would dispute the allegations that had been substantiated, but no such dispute was received by Activ.[15]
[14] R Buckley statement, [41].
[15] R Buckley statement, [43].
As noted above, on 17 November 2014, Ms Hudston sent an email and attachment to the personal assistant to Activ's then Chief Executive Officer, Mr Vis.[16] Some correspondence between Activ's Manager, Employee Relations, Ms Buckley, and Ms Hudston ensued, with Ms Buckley meeting with Ms Hudston to understand more about the issues she had raised in her letter to Mr Vis.[17]
[16] Statement of Agreed Facts, [13].
[17] Statement of Agreed Facts, [16]-[21].
It is Activ's contention that Ms Hudston's complaint to Mr Vis was treated seriously and investigated, although concessions were made by several witnesses in cross-examination. The complaint resulted in a letter of allegation being put to Mr McKenna who responded to the allegations but resigned before the investigation was complete. Activ's evidence shows that there was no communication to Ms Hudston when the matter was considered to be closed, although Activ considered that the complaint had been finalised.[18] Ms Hudston would have known that Mr McKenna had left Activ and a new team leader appointed to Lockett Street.[19]
[18] R Buckley statement, [84].
[19] R Buckley statement, [80].
As noted above, three months after making the complaint, on 16 February 2015, Ms Hudston was rostered to work at the Lockett Street Premises. As a consequence of the incident which occurred at the Lockett Street Premises during that shift, the police attended the Lockett Street Premises to investigate a complaint of sexual assault.[20]
[20] Statement of Agreed Facts, [27]-[28].
As noted above, following an investigation into the alleged incident, Ms Buckley wrote to Ms Hudston setting out four allegations of unsatisfactory behaviour, which Ms Hudston subsequently responded to.[21] As part of Activ's investigation into the allegations of unsatisfactory behaviour, Ms Hudston met with Ms Buckley and Ms Harland, Consumer Liaison and Policy Development Officer. Ms Hudston was accompanied to the meeting by a representative from the union, United Voice.[22]
[21] Statement of Agreed Facts, 32]-[33].
[22] Statement of Agreed Facts, [34].
As noted above, on 26 March 2015, Ms Buckley wrote to Ms Hudston advising her of the termination of her employment.[23] The reason for termination stated in this letter was the four allegations of misconduct that had been substantiated.
[23] Statement of Agreed Facts, [35].
The legal principles
I accept Activ’s submissions concerning the legal principles to be applied.
Section 342(1) of the Fair Work Act states that an employer takes adverse action against an employee if 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.
Pursuant to s.340(1), any adverse action taken against an employee is a contravention of the Fair Work Act only if it is taken for a prohibited reason. Section 340(1) states that:
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.
As such, adverse action which is taken for a reason other than a reason set out in s.340(1) is not a contravention of the Fair Work Act.
The expression "workplace right" is defined in s.341(1) of the Fair Work Act as:
(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 proceeding under a workplace law or 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.
Ms Hudston has not alleged that she had, or exercised, the workplace rights set out in s.341(1)(a), (b) or (c)(i) but alleges that the workplace right she had and exercised was the right to make a complaint or inquiry in relation to her employment which she exercised on 17 November 2014 when she wrote to Mr Vis.
As a consequence of the structure of s.340(1), the key evidentiary issue in this matter is the reason or reasons Activ acted in the manner in which it did in relation to the adverse action Ms Hudston alleges that she was subject to. In essence, the enquiry is whether Activ's actions were taken for prohibited reasons (or for reasons that included a prohibited reason) or only for legitimate ones. This necessarily involves examining why the particular decision makers at Activ made the decision that they did.
Activ may have taken action against Ms Hudston for a combination of reasons, some of which were prohibited and some of which were not. If there was a combination of reasons, s.360 of the Fair Work Act is relevant. Section 360 states:
For the purposes of this Part, a person takes an action for a particular reason if the reasons for that action include that reason.
In considering s.360, this Court has noted that: [24]
In terms, s.360 of the FW Act recognises that a person takes action for a particular reason if the reasons for the action include that reason. In National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; (2013) 234 IR 139 the Federal Court observed at [20] per Gray J that:
… Further, s 360 of the Fair Work Act recognises expressly that action may be taken for more than one reason. What the party seeking to rebut the presumption must do is establish on the balance of probabilities that the alleged improper reason was not a reason for the taking of action. Generally (although as a matter of logic, not necessarily) the evidence as to the state of mind of the decision-maker or decision-makers will include evidence as to what are claimed to be the actual reasons for the decision. Even if the reasons advanced as actual reasons for the decision are accepted as such, the absence of evidence that there were no additional reasons, or that the actual reasons did not include the alleged proscribed reasons, will usually result in a failure to rebut the presumption.
The phrase “takes action for a particular reason if the reasons for the action include that reason” has been interpreted to mean that the reason must be an operative or immediate reason for the action. It need not be the sole or dominant reason: Maritime Union of Australia v CSL Australia Pty Ltd [2002] FCA 513; (2002) 113 IR 326 at [54]-[55] per Branson J; Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor [2012] HCA 32; (2012) 248 CLR 500 at [103] per Gummow and Hayne JJ and [140] per Heydon J (“Barclay”).
[24] Picos v HealthEngine Pty Ltd & Anor [2015] FCCA 1983 at [54] - [55].
Section 361 then creates a rebuttable presumption that the action taken by Activ was taken for a prohibited reason. Section 361 states:
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 that the action was, or is being, taken for that reason or with that intent unless that person proves otherwise.
The effect of this is to create a reverse onus whereby the onus is on the employer rather than the employee to establish why the employee was subjected to the adverse action. If the presumption is not rebutted, the employer will be considered to have taken the adverse action for a prohibited reason.
This does not mean that the employee has no evidentiary burden to meet. This was explained by Collier J in Jones v Queensland Tertiary Admissions Centre Ltd(No 2) at [10] as follows: [25]
… the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason … it is not sufficient for [an applicant] to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that [an applicant] is able to prove these allegations, the burden is then cast on to [the employer] to prove that adverse action was not taken against [an applicant] because of [her] workplace rights for the purposes of section 340 and 361 of the Act.”
[25] [2010] FCA 399. Footnotes omitted.
Similarly in United Firefighters Union of Australia v Easy,[26] Ross J stated that:[27]
The practical effect of s361 is that in most cases an explanation of the real reason for the adverse action, consistent with the absence of a proscribed reason, is also necessary to rebut the presumption. But it is important to note that s 361 does not obviate the need for the applicants to prove the existence of the objective facts which are said to provide the basis of the respondent’s conduct. The onus does not shift from the applicant to the respondent until the applicant establishes the elements of each of the general protections upon which it seeks to rely. It is not enough for the applicants to merely make assertions regarding these elements, they must be determined objectively.
[26] [2013] FCA 763.
[27] [41].
If the applicant meets the evidentiary burden to prove that, on the balance of probabilities she exercised a workplace right and she was subject to adverse action, the onus will shift to the employer. Evidence of the decision makers will be crucial in determining why the adverse action was taken. In the context of s.346, which provides protection for employees in respect of industrial activities, the High Court discussed the application of the onus which arises from s.361 in Bendigo Regional Institute of Technology and Further Education v Barclay [No 1] (Barclay).[28] In this decision, Gummow and Hayne JJ said that: [29]
In determining an application under s 346 [it is necessary] to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence lead to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to balanced against evidence adduced by the employee and the overall facts and circumstances of each care; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
[28] (2012) 248 CLR 500 (Barclay).
[29] Barclay at [127].
In the same decision, French CJ and Crennan J observed that:[30]
The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
[30] Barclay at [44] - [45].
In Short v Ambulance Australia,[31] Dowsett, Bromberg and Murphy JJ provided a summary of the application of s.361 as follows:
When an employee alleges that an employer has taken action against him or her because the employee exercised a workplace right s 361 casts the onus on the employer to “prove otherwise”. Under s 360, while there may be multiple reasons for an employer to have taken the adverse action, the employer takes action for a prohibited reason if the reasons for the action include that reason. The rationale for the presumption was explained by Mason J in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 617 per Mason J as being to throw on to the employer the onus of proving that which lies peculiarly within its own knowledge (cited with approval in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [50] (French CJ and Crennan J)).
Where adverse action is taken by one person against another, the task of a court in a proceeding alleging contravention of s 340 or s 351 is to determine why the person took the adverse action and to ask whether it was for a prohibited reason or reasons which included a prohibited reason (Barclay at [5], [44] per French CJ and Crennan J). The question is whether a prohibited reason was a “substantial and operative” reason for the respondent’s action (Barclay at [104] per Gummow and Hayne JJ, see also [59] per French CJ and Crennan J). The relevant inquiry is therefore into the “particular reason” of the decision-maker for taking action (Barclay at [42] per French CJ and Crennan J, [102] per Gummow and Hayne JJ), which is a determination of fact to be made by the court taking account of all the facts and circumstances of the case and available inferences (Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 88 ALJR 980 at [7] per French CJ and Kiefel J, Barclay at [45] per French CJ and Crennan J, [79] per Gummow and Hayne JJ).
To displace the presumption created by s 361 in light of the effect of s 360, the respondent must prove that its conduct was not motivated in whole or in part by the prohibited reason alleged. A failure to displace the presumption enables the allegation by an applicant of adverse action for a prohibited reason to stand as sufficient proof of that fact: Davids Distribution Pty Ltd v National Union of Workers (1991) 91 FCR 463 at [109] per Wilcox and Cooper JJ.
[31] [2015] FCAFC 55.
Where the adverse action is termination of employment the enquiry is into whether the employee was subject to adverse action and is not an enquiry into whether the employee was unfairly dismissed or otherwise poorly treated. In Tsilibakis v Transfield Services (Australia) Pty Ltd,[32] White J stated that:
It is necessary to keep in mind that the focus in a case like the present must be on whether the employer has taken the adverse action for a proscribed reason. It is not a review generally of the fairness of the employer’s conduct. The Full Court made this point in Khiani v Australian Bureau of Statistics [2011] FCAFC 109 when it said:
[31] ... A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3–1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts. In the present case, the question is whether the respondent has taken adverse action against the appellant because she had a workplace right to be on sick leave, or because she had exercised that right.
[32] The first question to be addressed in such a case is whether adverse action was taken. Determining this question requires identification of the adverse action alleged. ...
[32] [2015] FCA 740
In Celand v Skycity Adelaide Pty Ltd[34] (Celand), Judge Brown stated that: [35]
…an application under section 340 of the FWA is [not] an opportunity for an applicant to raise any type of grievance, arising from his/her employment. Accordingly these proceedings are not a broad inquiry as to whether Ms Celand has been “subject to a procedurally fair or substantially unfair outcome.
[34] [2016] FCCA 399.
[35] Celand at [26], footnotes omitted.
An application under s.340 of the Fair Work Act is also not an opportunity for an applicant to raise grievances about the employer's general operations. As Spender, Graham and Tracey JJ observed: [36]
Courts do not exist to allow self-represented litigants to make scatter-gun claims against all and sundry and to indulge themselves by using proceedings they have instituted as vehicles for which might be seen as private “Royal Commissions”.
[36] Manolakis v Carter [2008] FCAFC 183 at [10].
The only enquiry relevant in an application under s.340 of the Fair Work Act is as follows:
a)Did the applicant exercise a workplace right?
b)Was the applicant subjected to adverse action?
c)If yes to both of these, then: Did the employer take the adverse action for a reason which was, or included, the applicant's exercise of a workplace right?
If the direct evidence of the decision-makers includes positive evidence that the action was not taken for a prohibited reason and that evidence is not considered unreliable because of other contradictory evidence then the presumption will be successfully rebutted and the employee's claim that the employer contravened s.340(1) will not be made out.
Claim 1 - dismissal
It is uncontroversial that dismissing an employee from his or her employment is adverse action. If the employee is dismissed because he or she exercised a workplace right then the adverse action is a contravention of the Fair Work Act.
Ms Hudston has asserted that she made a formal complaint to Activ's CEO. It is common ground that this complaint was made on 17 November 2014.[37]
[37] Agreed statement of facts, [13].
As noted above, to satisfy s.340(1), Ms Hudston needs to prove the existence of facts which are said to be the basis for Activ's conduct.[38] Once Ms Hudston proves the existence of her exercise of a workplace right and the fact that adverse action was taken, s.361 of the Fair Work Act operates to presume that the action was taken for the reasons asserted by Ms Hudston.
[38] Rojas v Esselte Australia Pty Ltd (No. 2) [2008] FCA 1585 at [46]-[50] per Moore J.
The onus is then transferred to Activ to rebut the presumption. This onus is difficult to discharge unless the decision-maker is called to give evidence of the decision-making process.[39] Ms Hudston otherwise bears the onus of proof, to the civil standard, on all other aspects of her case.[40]
[39] Barclay at [45] per French CJ and Crennan J.
[40] Evidence Act 1995 (Cth), s.140.
For the purposes of s.340(1), Ms Hudston needs to show evidence, and not merely allege, that she exercised a workplace right (in this case, by making a complaint in relation to her employment). It is not a requirement that the content of the complaint be justified or proved. In Shea v TRUenergy Services Pty Ltd (No 6)[41] (Shea), Dodds-Streeton J stated:[42]
In my view, as was common ground, there is no requirement that, in order to constitute a complaint that a person is able to make, a grievance must be justified or an accusation of fault must be true, or capable of ultimate proof or substantiation.
The relevant object of the provision is to protect employees from retribution in the form of adverse action because they have exercised a workplace right by making a complaint in relation to their employment, rather than to protect employees who have proved, or are able to prove, that the grievance or accusation is justified or meritorious. Were it otherwise, the protection afforded by the provision would be largely illusory, as persons would be vulnerable to retribution for making a complaint unless, and perhaps until, their case could subsequently, by some unspecified means, be proved or found valid.
[41] [2014] FCA 271.
[42] [618]-[619].
There is no requirement in the relevant provisions in the Fair Work Act, nor has one been inferred, that an employee is only protected if the complaint made is justified or proved. It may be that “false, baseless, unreasonable or contrived accusations” would not amount to the making of a complaint.[43] In any event, Activ is not contending that the complaint to its CEO was not legitimate or made in good faith. Indeed, it is common ground that Ms Buckley, Activ's Manager, Employee Relations, met with Ms Hudston in relation to the complaint.[44] It is also common ground that Ms Buckley summarised the complaint and asked questions about the complaint for clarification.[45]
[43] Shea at [620].
[44] Agreed statement of facts, [20].
[45] Agreed statement of facts, [21].
It is Ms Buckley's evidence that the complaint was investigated and a letter was issued to Mr McKenna, against whom Ms Hudston had made specific complaints, setting out allegations about his conduct that had arisen from her investigation of Ms Hudston's complaint.[46] While Mr McKenna responded to the letter of allegation, shortly after this response was received, he resigned from Activ.[47] For Ms Buckley, this resignation concluded her investigation of Ms Hudston's complaint and she considered that the matter was closed.[48] Ms Buckley conceded in cross-examination that, with the benefit of hindsight, that was an inadequate conclusion to the investigation. There should have been a conclusion reached on the question whether there were any systemic issues arising from the complaint which needed to be addressed. The process of finalising the complaint was flawed.
[46] R Buckley statement, [72].
[47] Agreed statement of facts, [23].
[48] R Buckley statement, [84].
Ms Hudston has not adduced any evidence of any further exercise of a workplace right after her complaint was made, investigated and finalised.
I accept that evidence as to the content of the complaint is irrelevant to any consideration of s.340(1). It is sufficient that the complaint was made, which is common ground. While that is strictly true, the circumstances leave Ms Hudston with a strong and unresolved sense of grievance. I am satisfied that her complaint was based upon sincerely held concerns about the management of the Lockett Street Premises which probably had some substance. Ms Hudston was not alone in her concerns, as the oral evidence of her witnesses demonstrates. Those concerns bore upon the standard of care of residents in the Lockett Street Premises. While Activ was entitled to find Ms Hudston at fault in its investigation of the incident on 16 February 2015, I do not rule out the possibility that a more active investigation of Ms Hudston’s complaint might have resulted in corrective measures which could have avoided the incident. That incident had consequences not only for Ms Hudston but also for KC, and the other resident at the time, who is a young handicapped man who was convicted of a serious criminal offence and imprisoned.
I find that adverse action (ie the dismissal) and the exercise of a workplace right (ie the making of a complaint) are established. The onus therefore shifts to Activ to show that the adverse action was not taken for a reason that included the prohibited reason of Ms Hudston's exercise of a workplace right.
It is Activ's position that Ms Hudston was dismissed solely because of her misconduct, particularly on 16 February 2015.[49] Ms Hudston does not dispute that the alleged sexual assault occurred while she was on duty.[50] Ms Hudston's statement to the police[51] was that she left a female client alone in the shower and left the door open while the female client was in the shower and a male client elsewhere in the house. As noted above, the Court is not required to consider whether this misconduct is a valid reason for dismissal but rather that this alone, and not the complaint to Activ's CEO, was the reason for the dismissal.
[49] R Buckley statement, [150], M Bilson affidavit, [62], M Furr statement [38].
[50] M Hudston affidavit of 29 April 2016, [13].
[51] Document 17 of the consent bundle.
Activ's decision makers' evidence is as follows:
a)Ms Bilson's evidence is that she was aware that Ms Hudston had made a complaint about her team leader[52] but in making her decision about terminating Ms Hudston's employment had no regard to the complaint to Activ's CEO and only considered Ms Hudston's conduct[53]. She maintained that position in cross‑examination, and impressed me as an honest and impartial witness;
b)Ms Buckley's evidence is that she did not consider the complaint to Activ's CEO to be relevant to any decision in relation to the alleged misconduct[54] and that she recommended Ms Hudston's employment be terminated on the basis of the substantiated allegations of misconduct[55]. She also maintained that position in cross-examination;
c)Mr Furr's evidence is that he cannot recall being told that Ms Hudston had made a complaint to the CEO[56] and that, while he could have challenged Ms Bilson's decision, he was comfortable with the decision made[57]. Mr Furr’s role was basically a formal one. I am satisfied that he had no personal or organisational agenda to pursue separate from the disciplinary process; and
d)Ms Harland’s evidence is that she was involved in the investigation and drew a conclusion about the alleged misconduct[58] but the decision about Ms Hudston's employment was to be made by Ms Bilson[59]. Ms Harland gave evidence in cross-examination about the detail of her involvement. She impressed me as an honest and impartial witness who did her best to competently investigate a very serious matter.
[52] M Bilson affidavit, [27].
[53] M Bilson affidavit, [62].
[54] R Buckley statement, [150].
[55] R Buckley statement, [153].
[56] M Furr statement, [39].
[57] M Furr statement, [38].
[58] J Harland affidavit, [106]
[59] J Harland affidavit, [103].
I accept the evidence of the decision makers referred to above. I conclude that Ms Hudston's claim that adverse action was taken against her when Activ dismissed her by reason of the exercise of a workplace right must be dismissed in circumstances where:
a)Ms Hudston has not led any evidence apart from her own which would indicate that the asserted workplace right was a factor in her dismissal;
b)the decision-makers have given direct evidence, which I have accepted, that they reached a decision to dismiss Ms Hudston only because of misconduct;
c)where the decision makers were aware that Ms Hudston had exercised a workplace right, they have given direct evidence, which I have accepted, that the workplace right was not a factor that they considered in the decision making process; and
d)the real reason for Ms Hudston's dismissal, and the only reason on the evidence, was her established misconduct and behaviour which was found to be in breach of Activ's policies.
Claim 2 – different treatment
Ms Hudston claims that she was treated differently from other employees and that this amounted to adverse action in breach of s.340(1). This is not a claim made pursuant to s.351 so is not a discrimination claim. The onus is on Ms Hudston to not only show that she was treated differently but why this was adverse action. I accept that a person can be subject to different treatment which is not adverse such as when an employee is treated more favourably. "Different treatment" is not one of the categories of adverse action in item 1 of the table to s.342(1). As such, it is not sufficient for Ms Hudston to simply assert that she was treated differently and that this was adverse action; she is required to show how this alleged treatment either injured her in her employment, altered the position of her employment to her prejudice or discriminated between her and other employees.
The discrimination referred to at paragraph (d) of item 1 is broad enough to encompass both direct and indirect discrimination; it is discrimination "on the broadest grounds."[60] The discriminatory treatment is adverse action taken by an employer but is only adverse action in contravention of s.340(1) if it is taken because the employee discriminated against exercised a workplace right. Arguably, for the discrimination to be prohibited adverse action pursuant to s.340(1) it must be discrimination on the basis of the employee having (or not having) and exercising (or not exercising) a workplace right.[61]
[60] Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402 at [101] per Gordon J.
[61] This is in contrast to discrimination under s.351(1) which prohibits discrimination for prescribed reasons.
As I understand Ms Hudston’s presentation of her case, the alleged different treatment is said to be as follows:
a)the issuing of a letter on 29 October 2014 which outlined six examples of unsatisfactory behaviour (October 2014 Letter);[62] and
b)the issuing of a letter on 9 March 2015 which outlined four examples of unsatisfactory behaviour (March 2015 Letter).[63]
[62] M Hudston pre-trial submissions, [1]. This letter is annexure 2 to the first M Hudston affidavit.
[63] M Hudston pre-trial submissions, [2]. This letter is document 19 in the consent bundle.
The difficulty for Ms Hudston is that she has not been able to show that issuing these letters amounted to adverse action; that is she has not shown that the letters injured her in her employment, prejudicially altered her employment or discriminated between her and other employees. Further, she has established no causal link between the alleged different treatment and what workplace right she had or exercised.
Ms Hudston sought to rely on assertions of "complaints" made to the manager of another respite facility in relation to various issues in the Lockett Street Premises in July 2014 as the reason that the October 2014 Letter was issued.[64]
[64] M Hudston affidavit of 29 April 2016, [3].
Ms Hudston, however, did not adduce any evidence to show how these alleged complaints in July 2014 caused the October 2014 Letter to be issued nor that they resulted in her being treated differently. In particular, there is no evidence that the alleged complaints in July 2014 to another manager were ever brought to the attention of Mr McKenna who signed the October 2014 Letter. Indeed, it is Ms Hudston's evidence that she had "no contact" with Mr McKenna between making the alleged complaint in July 2014 and the issuing of the October 2014 Letter.[65] I accept Activ’s submission that Ms Hudston has not provided any, or any sufficient, evidence to satisfy this Court that, on the balance of probabilities, she exercised a workplace right by making a complaint in relation to her employment that caused Activ to issue the October 2014 Letter.
[65] ibid.
In the absence of any evidence that the October 2014 Letter was adverse action or that any workplace right was exercised prior to the letter being issued, Ms Hudston cannot meet the evidentiary threshold for the onus to shift to Activ to show that the October 2014 Letter was issued for a reason that was not (or for reasons that did not include) a prohibited reason.
Further, Ms Hudston has asserted that "all staff members" had had allegations made against them by a particular client but that she was the only employee stood down following the issuing of the October 2014 Letter.[66] There is, however, insufficient evidence to establish:
a)the identity of the staff members against whom Ms Hudston says the allegations were made;
b)how those allegations were the same as the allegations made against her;
c)when those allegations were made;
d)the nature of those allegations; or
e)how those allegations against other employees were addressed by Activ.
[66] M Hudston affidavit, [27].
Importantly, Ms Hudston acknowledges that only some of the allegations against her in the October 2014 were "similar to those made against other staff that had not been stood down"; that is, there were more and different allegations made against her. Ms Hudston has not provided any evidence beyond her own assertion that she was, in fact, subject to different treatment nor why this alleged different treatment was adverse action. Further, Ms Hudston has not shown how the different treatment she asserts she was subjected to was caused by her exercise of a workplace right.
Ms Hudston also asserts that the client who made the allegation against her later retracted that allegation but Activ continued with its investigation anyway.[67] It is Activ's evidence that the allegation was not withdrawn.[68] Ms Hudston has not shown why the continued investigation of a complaint of misconduct is adverse action for the purposes of s.340(1) nor any causal link between the investigation of the allegation and some prior exercise of a workplace right by her.
[67] M Hudston affidavit, [27].
[68] R Buckley statement, [33].
With respect to the October 2014 Letter, it is Activ's evidence that the letter of allegation was issued, Ms Hudston had an opportunity to respond both in writing and orally which she did, only some of the allegations were substantiated and a warning letter was issued in respect of the allegations that had been substantiated.[69] I accept that evidence.
[69] R Buckley statement, [40]-[42].
While it is not disputed that standing an employee down may, in some circumstances, be considered to injure an employee in his or her employment,[70] Ms Hudston has not established that the stand down injured her in her employment.
[70] Wood v City of Melbourne Corporation (1979) 26 ALR 430, 431.
In any event, I have accepted Activ's evidence that it is both common and routine for employees to be stood down when misconduct allegations have been made and are under investigation.[71] As such, Ms Hudston was stood down in accordance with Activ's common and routine practice so was not treated differently from other employees where misconduct has been alleged. Ms Hudston's own evidence is that another employee was stood down during an investigation.[72] Where action is taken by an employer in compliance with its own policy it does not amount to adverse action.[73]
[71] R Buckley statement, [30].
[72] M Hudston affidavit, [42].
[73] Construction, Forestry, Mining and Energy Union v Bengalla Mining Company Pty Ltd [2013] FCA 267.
While Ms Hudston sent an email to Janine Poa, an employee of Activ, stating that she would dispute the warning letter, I accept Activ's evidence that no such dispute was made in the period following the issuing of the warning letter.[74]
[74] R Buckley statement, [43].
Ms Hudston has also alleged that the March 2015 Letter was an example of how she was treated differently from other employees.[75] While in her evidence, Ms Hudston claims that no one else was stood down over what she saw as a similar incident[76], she has not provided any evidence regarding letters of allegation; that is, she has not shown why her being issued with a letter of allegation constituted being treated differently. During the trial, she called for and was granted access to her personnel and investigation files.
[75] M Hudston pre-trial submissions, [2].
[76] M Hudston affidavit, [26].
I accept Activ's evidence that the March 2015 Letter was issued following an investigation into the incident on 16 February 2015 which had concluded that Ms Hudston failed to follow a client's care plan, had compromised that client's dignity, not followed lines of reporting and not acted promptly after a serious incident.[77]
[77] J Harland affidavit [69]-[70].
It does not appear to me that either the October 2014 Letter or March 2015 Letter were anything other than a management tool to address allegations of misconduct and designed to give Ms Hudston the opportunity to have input into Activ's consideration of the allegations.
Even if the two letters were considered as the initiating step in an investigation, an investigation into an employee that is held to be adverse action will not be a contravention of the Fair Work Act if the employer had reasonable or adequate cause for commencing the investigation.[78] I accept that it is reasonable and, indeed, good practice for an employer undertaking an investigation into allegations of misconduct against an employee to advise the employee in writing of the allegations and invite the employee to respond to the allegations. To do otherwise may leave the employer exposed to a claim of unfair dismissal for failing to follow a proper process.[79] In my view, issuing a letter of allegation is reasonable management action which will not be adverse to the employee's interests if it is part of a fair investigation into the allegations against the employee. It will only be if the motivation for the letter of allegation is, or includes, the employee's exercise of a workplace right that it will be adverse action in contravention of the Fair Work Act. That is not the case here.
[78] Jones v Queensland Tertiary Admissions Centre (No 2) (2010] FCA 399 at [84] per Collier J
[79] Pursuant to s.387(b)-(c) of the Fair Work Act, in considering harshness etc, the Commission is required to consider whether an employee was notified of the reason for the termination of employment and given an opportunity to respond.
Claim 3 - bullying
Ms Hudston asserts that what she describes as "very lengthy" meetings, which she describes as "bullying" were adverse action.[80]
[80] M Hudston affidavit, [8].
There is no dispute that commencing an investigation may be, but will not always be, characterised as adverse action.[81] Ms Hudston, however, has not provided any authority for the proposition that a meeting between an employer and employee conducted in the course of an investigation can amount to adverse action.
[81] See eg Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) FCA 399
I am not persuaded that the alleged meetings injured Ms Hudston in her employment, altered the position of her employment to her prejudice or were discriminatory. I am also not persuaded the investigation was caused by her exercise of a workplace right.
It is Ms Hudston's evidence that she was accompanied by a union member, Rachel Hughes, in the meetings.[82] Ms Hughes did not give evidence. While Ms Buckley's evidence is that one meeting on 16 March 2015 which was attended by Ms Hughes with Ms Hudston went for approximately two hours. Ms Buckley also states that at no time did Ms Hughes raise any concerns about how the meeting was conducted.[83] Ms Harland who was present in this meeting gives evidence in similar terms.[84] I accept their evidence.
[82] M Hudston affidavit, [37].
[83] R Buckley statement, [128]-[130].
[84] J Harland affidavit, [95].
I conclude that Ms Hudston has not met the evidentiary burden to prove that any adverse action occurred or how this alleged adverse action was caused by her exercise of a workplace right in a way which brought the exercise of that workplace right to the attention of the relevant decision maker or makers.
Conclusion
Ms Hudston has failed to establish any of the elements of her case. I will order that her application be dismissed.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 21 June 2017
[33] [16].
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