Ibarra Campoverde v Regional Health Care Group Pty Ltd
[2017] FCCA 1502
•30 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| IBARRA CAMPOVERDE v REGIONAL HEALTH CARE GROUP PTY LTD | [2017] FCCA 1502 |
| INDUSTRIAL LAW – Adverse action – reasons for adverse action – whether witnesses to events said to justify adverse action should, by reason that they have supplied accounts of those events, be classified as persons who participated in the decision to take adverse action – whether witnesses’ motivations are to be taken into account when determining the reason for the taking of adverse action – whether the extent of the decision-maker’s enquiries into events said to justify adverse action was relevant to why adverse action was taken against an employee. |
| Legislation: Fair Work Act 2009, ss.340, 341, 342, 539, 546, 545, 547, 360, 361, 346 |
| Cases cited: Jones v Dunkel (1959) 101 CLR 298 Fabre v Arenales (1992) 27 NSWLR 437 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 Cubillo v Commonwealth (No.2) (2000) 103 FCR 1 Wood ( on behalf of the Industrial Relation Bureau) v Lord Mayor, Councillor and Citizens of the City of Melbourne (1979) 41 FLR 1 Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251 Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd (2015) 253 IR 66 Gibbs v Palmerston Town Council [1987] FCA 477 Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500 Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 |
| Applicant: | EDDO MESIAS IBARRA CAMPOVERDE |
| Respondent: | REGIONAL HEALTH CARE GROUP PTY LTD |
| File Number: | SYG 2029 of 2016 |
| Judgment of: | Judge Cameron |
| Hearing date: | 14-15 June 2017 |
| Date of Last Submission: | 15 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2017 |
REPRESENTATION
| Solicitor for the Applicant: | Ms L. Tucker of Redfern Legal Centre |
| Counsel for the Respondent: | Mr D. Mahendra |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2029 of 2016
| EDDO MESIAS IBARRA CAMPOVERDE |
Applicant
And
| REGIONAL HEALTH CARE GROUP PTY LTD |
Respondent
REASONS FOR JUDGMENT
ALLEGATIONS
The parties
The respondent, Regional Health Care Group Pty Ltd (“Regional Health Care”), is a company which supplies hospital products to organisations in the health care sector. The applicant, Mr Ibarra, commenced work as a picker in the company’s warehouse in September 2015. On 22 April 2016 Regional Health Care terminated the employment of Mr Ibarra on the basis of alleged misconduct.
On 28 July 2016 Mr Ibarra commenced this proceeding alleging that the termination of his employment constituted adverse action contrary to s.340 of the Fair Work Act 2009 (“FW Act”). Mr Ibarra’s allegations were contained in his Form 2 form filed with his application and in his affidavit sworn 27 October 2016.
Incidents on 23 March 2016
On 23 March 2016 Mr Ibarra alleged an incident occurred in the warehouse of Regional Health Care in which he was subject to bullying and harassment by another colleague, Mr Keiron Jankovski. Mr Ibarra alleged that his dismissal stemmed from this incident and his attempts to report the incident to management. Mr Ibarra deposed that he attempted to report this incident to his manager immediately. Mr Ibarra alleged that his manager, Zac Trajkovski, warned him against reporting the matter to senior management and threatened him with termination if he did so. He alleged that following this discussion with his manager he was once again involved in a confrontation with Mr Jankovski, in which Mr Jankovski physically assaulted him.
Reporting of the incident to senior management and termination
Mr Ibarra alleged that later on 23 March 2016, he approached the senior manager’s office to report the incident, however the senior manager, Linda Walters, was away from work at that time. Mr Ibarra alleged he provided a written report of the incident to the senior manager’s office. Mr Ibarra alleged that he was instructed by senior management to take leave while the incident was investigated. Mr Ibarra alleged that on 22 April 2016 he attended a meeting with Ms Walters, and two other staff members and was issued a written notice of termination by Ms Walters. His termination letter stated that his employment was terminated on the grounds of misconduct, as a result of the company’s investigation into the incidents that occurred on 23 March 2016.
Relief sought
The Mr Ibarra seeks monetary compensation for the economic loss arising from his dismissal.
Mr Ibarra alleged that as a result of the alleged harassment at his workplace, his suspension and subsequent termination from employment, he had suffered “significant dislocation” to his life. He alleged that the stress that stemmed from his termination caused problems in his domestic relationships and had lead him to attend counselling. He sought compensation for the hurt, humiliation and distress he had suffered in the amount of $10,000.
Mr Ibarra also sought the imposition of pecuniary penalties on Regional Health Care.
RESPONSE
Regional Health Care denied the allegations made by Mr Ibarra, in particular the implications that he had been the victim of bullying. Regional Health Care alleged that an investigation was conducted by their company into the events of 23 March 2016 which revealed that Mr Ibarra had been the cause of the incident. Regional Health Care alleged that Mr Ibarra was terminated because of his inappropriate conduct on 23 March 2016. Regional Health Care denied Mr Ibarra’s claim that his employment was terminated on the basis that he exercised a workplace right or because he had made a workplace complaint.
RELEVANT LEGISLATION
Part 3-1 of ch.3 of the FW Act provides for employee’s general protections. Division 3 of pt.3-1 provides for the protection of workplace rights and for the exercise of those rights. Sections 340 to 342 of the FW Act 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.
(2)A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
…
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.
…
Section 361 of the FW Act is concerned with proof of the reason for action alleged to be contrary to a provision of pt.3-1 of the FW Act. At all relevant times it provided:
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 that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
…
Section 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.
Penalties and compensation
Section 539 of the FW Act provides s.340 is a civil remedy provision. In combination, ss.539(2) and 546(2) provide that the maximum pecuniary penalty for a contravention of s.340(1) is 60 penalty units for an individual and 300 penalty units for a corporation. At the time of the alleged events, a penalty unit was worth $180: s.4AA, Crimes Act 1914.
Section 545(2)(b) of the FW Act provides that the Court may award compensation for loss suffered because of a contravention of any of the civil remedy provisions. Section 547(2) provides that, unless good cause is shown to the contrary, if an order for interest is sought the Court must include interest up to the date of judgement on any sum for compensation ordered to be paid under that Act.
APPLICANT’S EVIDENCE
Eddo Ibarra
Events of 23 March 2016
Mr Ibarra deposed that, between 3pm and 3:30pm on 23 March 2016, he entered the Regional Health Care warehouse despatch office and stumbled on a plastic tub which was on the floor. Mr Ibarra deposed that Mr Jankovski said to him:
Hey idiot, pick it up.
Mr Ibarra deposed that he went into the office and that when he left, Mr Jankovski again screamed at him once more to pick up the tub. He deposed that he asked where it had gone and that he and Mr Jankovski had the following exchange:
Mr Jankovski: Someone has done it for you. You should shut up and piss off.
Mr Ibarra:What the fuck is wrong with you, why are you upset?
Mr Jankovski: Don’t fuck with me
Mr Ibarra further deposed that Mr Jankovski repeated that he was a “stupid idiot” and should “piss off”.
Initial complaint
Mr Ibarra deposed that he immediately approached his manager Mr Trajkovski to report the incident. He alleged Mr Trajkovski responded with words to the following effect:
You’re an idiot, you should listen to Keiron because he is your boss.
Mr Ibarra deposed that Mr Trajkovski told him to continue with his picking.
Mr Ibarra deposed that upon leaving Mr Trajkovski’s office, he encountered Mr Jankovski who said to him:
Don’t you understand English?
Mr Ibarra deposed that he went to speak to Mr Trajkovski saying that he needed to make a complaint to the Chief Operating Officer, Ms Walters about the incident. He deposed that the following exchange took place:
Mr Trajkovski: If you are going then don’t come back any more.
Mr Ibarra: Sorry boss but I have to report this one.
The incident continued
Mr Ibarra deposed that upon leaving Mr Trajkovski’s office after this second conversation, he once again encountered Mr Jankovski and said to him:
What’s wrong with you mate? Can you come outside to talk?
Mr Ibarra deposed that Mr Jankovski used his shoulder to hit him on the left side of his chest causing him to spin around. Mr Ibarra deposed that he then left the premises to avoid further confrontation.
Second complaint and formal statement.
Mr Ibarra deposed that following his third exchange with Mr Jankovski, he went to Regional Health Care’s office located in Dunning Avenue, Rosebery to speak with Ms Walters. He deposed that when he arrived he spoke to Annmarie Harlick and Phoebe Yang who informed him that Ms Walters was away but they invited him to come into the office to give a statement.
Mr Ibarra deposed that while giving his statement Mr Trajkovski entered the office and the following exchange occurred:
Mr Trajkovski: I have ten witnesses that saw you hit Keiron with your shoulder.
Mr Ibarra: That’s not true. It was the opposite.
Investigation and termination
Mr Ibarra deposed that the next day, he received a telephone call from Ms Harlick who told him not to attend work until the events of 23 March 2016 were investigated. He deposed that on 22 April 2016 he attended a meeting with Ms Walters, Mr Trajkovski, Ms Harlick and Ms Yang.
Mr Ibarra deposed that during the course of the meeting, he said very little. He deposed that Ms Walters told him that a decision had been made that his behaviour was unacceptable and that she had statements from several witnesses saying that he was the problem. He deposed that Ms Walters then informed him that he was dismissed and handed him an employment separation certificate which stated his employment was terminated for misconduct. Copies of that separation certificate and a dismissal letter dated 22 April 2016 were annexed to Mr Ibarra’s affidavit.
Impact of termination
Mr Ibarra deposed that his termination placed significant stress on his relationship with his wife, from whom he had since separated, and his wider family. He further claimed that the loss of income resulting from his termination prevented him from travelling to Ecuador to visit his father prior to his death in August 2016 which had devastated him. Mr Ibarra deposed that he has attended counselling as a result of the stress caused by his termination.
RESPONDENT’S EVIDENCE
Keiron Jankovski
Mr Jankowski is employed by Regional Health Care as a supervisor. He deposed that he was Mr Ibarra’s immediate supervisor throughout the entire period of the latter’s employment and that Mr Ibarra would report to him on a daily basis. Mr Jankowski deposed that Mr Ibarra’s performance was poor and on multiple occasions he had discussed his concerns with Mr Ibarra.
Incidents on 23 March 2016
Mr Jankowski deposed that on 23 March 2016 at approximately 3.15pm he observed Mr Ibarra to kick a small plastic bin in the despatch area. He deposed that a conversation took place to the following effect:
Mr Jankowski: Why did you kick the plastic bin for? Don’t be an idiot about it.
Mr Ibarra: Go and get fucked.
Mr Jankowski: Eddy I am speaking to you in a much nicer way than you are.
Mr Jankowski deposed that he observed Mr Ibarra enter the despatch office and then leave shouting loudly and in an aggressive manner. Mr Jankowski deposed that Mr Ibarra approached him quickly and shoulder charged him as he walked past while saying words to the effect of:
You’re a mother fucker. Do you want to go outside?
In his oral evidence Mr Jankowski said the physical contact was more in the nature of a nudge than a rugby league charge.
Mr Jankowski deposed to having interpreted Mr Ibarra to be inviting him to fight. He went to follow Mr Ibarra outside but was discouraged from doing so by two colleagues.
Zak Trajkovski
Mr Trajkovski is Regional Health Care’s National Distribution Manager. Mr Trajkovski supervised those working in picking and packing in the distribution centre.
Mr Trajkovski deposed that Mr Ibarra had been underperforming in his role and Mr Trajkovski viewed Mr Ibarra’s performance as below the general standard of work performed by his counterparts. He deposed that he had spoken to Mr Ibarra on multiple occasions about the speed and accuracy of his work. He further deposed that performance records of Mr Ibarra were sent through to Linda Walters on two occasions in March 2016.
Mr Ibarra’s behaviour on 23 March 2016
Mr Trajkovski deposed that on the afternoon of 23 March 2016, he had approached Mr Ibarra regarding his performance. He deposed that later in the afternoon he heard Mr Ibarra shouting and swearing at Mr Jankovski. Mr Trajkovski deposed that Mr Ibarra then entered his office and said to him works to the effect of:
I was walking through the despatch area when I kicked a small plastic bin that was in my way. Keiron then told me off in front of everyone for kicking the bin and said not to do it again. I told him that he wasn’t my boss and shouldn’t tell me what to do…
Mr Trajkovski said that Mr Ibarra was very angry, offensive and abusive and would not calm down.
Mr Trajkovski deposed that he responded to Mr Ibarra with words to the following effect:
Keiron is your supervisor Eddo. He’s got every right to instruct you not to kick RHGC property and doesn’t deserve to be sworn at. Get back to work.
Mr Trajkovski alleged that Mr Ibarra left his office, but immediately returned swearing and screaming at him. He deposed that Mr Ibarra stated that he wished to speak with Ms Walters, but was told that she was on leave. He deposed that in response Mr Ibarra threw some picking slips onto his desk and left his office. Mr Trajkovski deposed that after Mr Ibarra left his office, he overheard more shouting and swearing and it appeared to Mr Trajkovski that Mr Ibarra was involved in an incident with Mr Jankovski.
Mr Trajkovski deposed that later that afternoon he received a telephone call from Ms Cassandra Marshman, the Customer Service Coordinator, asking Mr Trajkovski to attend the Dunning Avenue offices of Regional Health Care with words to the effect of:
Can you come over? Eddo is here and he is loud and aggressive. He is scaring us and he is with Phoebe and Annmarie and we are worried.
Mr Trajkovski deposed that upon attending the Dunning Avenue office he heard Mr Ibarra speaking loudly in the meeting room.
Mr Trajkovski deposed that he entered the meeting room to find Mr Ibarra speaking loudly and excitedly and told Mr Ibarra that he was scaring the female staff in the office and instructed him to calm down and leave the premises. He deposed that on or around 23 March 2016 he sent Ms Walters an email setting out a summary of the events that occurred on 23 March 2016. That email concluded with the words:
I believe with his poor performance and his attitude including todays [sic] incident he should be dismissed immediately.
Linda Walters
Ms Walters is Regional Health Care’s Chief Operating Officer. She deposed that she is also its Human Resources Manager. On 23 March 2016 she was overseas.
Ms Walters deposed that on 23 March 2016 she was informed by email of an incident involving Mr Ibarra and Mr Jankovski. She deposed that she instructed Ms Harlick to obtain full statements from Mr Ibarra, Mr Jankovski and anyone else who had witnessed the incident. She said that it was not until this matter came before the Fair Work Commission, in a step necessarily antecedent to proceedings such as this one, that she became aware that Mr Ibarra had made a complaint. Ms Walters said she categorised a complaint to be something more formal than what had occurred in this case.
Ms Walters deposed that upon reviewing Mr Ibarra’s statement dated 6 April 2016, she wrote a letter to Mr Ibarra confirming that he had been stood down with pay from 23 March 2016 while an investigation took place. The letter also invited him to a meeting on 22 April 2016.
Ms Walters deposed that upon her return to work on 18 April 2016, she reviewed the statements taken from the warehouse and office staff and gave each employee who had provided a statement the opportunity to add to or amend their statement but did not seek out warehouse staff who had not come forward with statements. She did, however, speak to the office staff and during the course of those inquiries was told by Ms Yang that she had been frightened by Mr Ibarra, who had been very loud.
Ms Walters deposed that on 22 April 2016 she conducted a meeting with Mr Ibarra and Mr Trajkovsky. Ms Harlick and Ms Yang were also in attendance. Ms Walters deposed that she commenced the meeting by saying words to the effect of:
We are here today to discuss the incident that occurred on the 23rd March 2016 in the Primrose Avenue warehouse and the offices at Dunning Avenue. As promised I have been doing an investigation into this matter. Mr Ibarra I have read over all of the statements from your warehouse colleagues who witnessed the incident between you and Mr Jankowski, your statement and Mr Jankowski’s statement. In addition I have spoken to witnesses both at Primrose Avenue and Dunning Avenue. Do you have any witness statements or additional information that you wish to present to me?
Ms Walters deposed that Mr Ibarra responded with words to the effect of:
No nothing.
Ms Walters deposed that she then said words to the effect of:
We have statements from the warehouse staff stating that you were the aggressor, both in language, and in action on the 23rd March 2016. The statements are consistent in describing you as being very loud, yelling, swearing and being physically violent towards Mr Jankovski. We also have office staff from Dunning Avenue statements, stating they were frightened by your very loud voice and aggressive behaviour on the afternoon of the 23rd March 2016 when you visited that office. Do you have anything to say about this?
She deposed that Mr Ibarra did not offer any further comment on this information and that she went on to say to Mr Ibarra words to the following effect:
After having read all of the statements I am considering terminating your employment. Is there anything else you would like to say?
to which Mr Ibarra replied:
No, nothing.
Ms Walters deposed that at the conclusion of the meeting she said to Mr Ibarra:
… given the information that I have before me the company has decided to termination you [sic] employment for misconduct.
Ms Walters deposed that she then handed the letter of termination to Mr Ibarra, who did not offer any further comment.
Ms Walters deposed that in making the decision to terminate Mr Ibarra’s employment, she considered the following:
a)the fact Mr Ibarra’s version of events did not align with what any of the other witnesses had said;
b)Ms Walters had formed the view that Mr Ibarra’s behaviour was violent and aggressive and created a safety risk to others;
c)the fact Mr Ibarra was not taking responsibility for his behaviour and the possibility he would engage in similar behaviour in the future;
d)the effect of his behaviour on the female office staff;
e)the length of Mr Ibarra’s employment with Regional Health Group, being approximately 6 months; and
f)Mr Ibarra’s poor performance history and conversations he had had with Mr Trajkovski regarding this.
Annmarie Harlick
Ms Harlick is Regional Heath Care Group’s Executive Administration Officer.
Events of 23 March 2016
Ms Harling deposed that at or around 3.30pm on 23 March 2016, she received a telephone call from Mr Trajkovski asking who was looking after staffing issues in Ms Walters’s absence. She deposed that Mr Tajkovski said that Mr Ibarra might arrive seeking to discuss a matter with Ms Walters. At the conclusion of this telephone call, Ms Harlick deposed that she heard a very loud male voice in the reception area. Ms Harlick deposed that she entered the reception area and had the following conversation with the man, whom she understood to be Mr Ibarra:
Ms Harlick: What is going on?
Mr Ibarra: I am here to discuss an issue with Linda.
Ms Harlick:Linda is on annual leave. Why don’t you come with Phoebe and me into the meeting room on the ground floor to discuss this issue? We can email Linda your statement.
Ms Harlick deposed that she, Mr Ibarra and Ms Yang sat in a meeting room where Mr Ibarra, speaking very loudly and making vigorous hand movements, described an incident that had occurred in the warehouse. Ms Harlick wrote down his version of events for the purpose of a statement. Ms Harlick deposed that Mr Trajkovski entered the meeting room as Mr Ibarra was concluding his statement and asked Mr Ibarra to leave.
Ms Harlick deposed that once Mr Ibarra left the office she learnt that the Customer Service Coordinator, Ms Marshman, had called Mr Trajkovski to attend the office because the employees in customer service were scared of Mr Ibarra and scared for the safety of her and Ms Yang who were with him. Even so, she herself had had no issue with the way Mr Ibarra had spoken to her, albeit he was loud.
Johnny Mihailovic
Mr Mihailovic is a picker and packer for Regional Health Care.
Mr Mihailovic deposed that between 3.15pm and 3.25pm on 23 March 2016, he witnessed Mr Ibarra walk past some tubs in the despatch area and kick one. Mr Mihailovic deposed he heard Mr Jankovski tell Mr Ibarra not to do that.
Mr Mihailovic deposed that in response, Mr Ibarra ran into the despatch office. He deposed that he heard Mr Ibarra shouting inside the office although he could not make out what he was saying.
Mr Mihailovic deposed that when Mr Ibarra left he shoulder-charged Mr Jankovski and invited Mr Jankowski to come outside.
Cassandra Marshman
Ms Marshman is Regional Health Care’s Co-ordinator Customer Service.
Ms Marshman deposed that on 23 March 2016 Mr Ibarra came into the reception area of the Distribution Centre office, shouting and swearing. Ms Marshman deposed that Mr Ibarra went into the meeting room with Ms Harlick and Ms Yang where he continued to be extremely loud. Ms Marshman alleged that Mr Ibarra’s behaviour caused the women working in customer service to feel intimidated and unsafe.
Ms Marshman deposed that she phoned Mr Trajkovski and relevantly said words to the following effect:
Can you please come over here as soon as possible, as Eddo is here and he is yelling and being aggressive? … He is scaring us and I am worried about Annmarie and Phoebe’s safety.
Ms Marshman deposed that Mr Trajkovski arrived within a couple of minutes and entered the meeting room.
OTHER EVIDENCE
Statements made by Martina Daly and Daniel Petkoski were adduced into evidence as information which had been before Mr Walters when she made the decision to dismiss Mr Ibarra. Ms Daly worked in the despatch area and stated that when Mr Ibarra left the warehouse on 23 March 2016, he and Mr Jankovski were shouting at each other.
Mr Petkoski stated that on 23 March 2016, Mr Ibarra kicked the plastic tub out of his way as he was walking through the warehouse, before going in to the office. He stated that when Mr Jankovski asked Mr Ibarra about the plastic tub, Mr Ibarra became angry and swore at Mr Jankovski before going back into the office. Mr Ibarra came out of the office and then went back into the office once more. Mr Petkoski stated that when Mr Ibarra left the office for the last time, he walked towards Mr Jankovski, swore at him and shoulder charged him.
CONSIDERATION
Witnesses
Although there were inconsistencies between the accounts of the witnesses called by Regional Health Care, I am not persuaded that they were of significance for this matter and conclude that they only represented the vagaries of human recollection. The impression I gained of Regional Health Care’s witnesses, particularly Ms Walters who struck me as a straightforward and professional person, was that they were doing their best to give their honest recollections.
On the other hand, Mr Ibarra’s evidence was often discursive and unresponsive to the questions put to him to the point of sometimes appearing evasive. Also, his evidence was often not of much assistance and on at least one occasion was shown to be incorrect. In his affidavit Mr Ibarra said that no questions had been put to him during his meeting with Ms Walters but when her account of the event was put to him he agreed that she had indeed put questions to him and invited him to respond. This was an important encounter and the inconsistency in Mr Ibarra’s accounts did not engender confidence in the accuracy of his evidence more generally.
I conclude that the overall consistency in the accounts of the several Regional Health Care witnesses points to Regional Health Care’s version of events being the more likely. I am strengthened in this conclusion by the shortcomings in Mr Ibarra’s evidence which I have identified.
In making this finding I have not overlooked Mr Ibarra’s submission that various potential witnesses were not called, in particular a Ms Daly who was in the warehouse at the relevant time. However, the simple fact that a witness is not called does not lead necessarily to the drawing of an adverse inference under the rule in Jones v Dunkel (1959) 101 CLR 298. It was said in Fabre v Arenales (1992) 27 NSWLR 437:
The significance to be attributed to the fact that a witness did not give evidence will in the end depend upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so. But there are circumstances in which it has been recognised that such an inference is not available or, if available, is of little significance. The party may not be in a position to call the witness. He may not be sufficiently aware of what the witness would say to warrant the inference that, in the relevant sense, he feared to call him. The reason why the witness is not called may have no relevant relationship with the fact in issue: it may be related to, for example, the fact that the party simply does not know what the witness will say. A party is not, under pain of a detrimental inference, required to call a witness “blind”. (at 449–450 per Mahoney JA, Priestley and Sheller JJA concurring).
Further, the rule in Jones v Dunkel applies to situations when a party is required to explain or contradict something: Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 at 142-143 [51] per Gleeson CJ and McHugh J, and does not operate to require a party to give merely cumulative evidence: Cubillo v Commonwealth (No.2) (2000) 103 FCR 1 at 120 [360]. The potential witnesses to whom Mr Ibarra referred would have given evidence which was cumulative of evidence which was given by other witnesses and it was not shown that they were necessary for the explanation or clarification of any particular matter or matters. I draw no adverse inference from the fact that the respondent did not call the potential witnesses to whom Mr Ibarra referred in addresses.
Decision-maker
Mr Ibarra’s principal contention was that when it came to deciding how to deal with Mr Ibarra following the events of 23 March 2016, Ms Walters was not the only decision-maker in that her decision was based on the statements and comments of those employees present on the day of the incident including, in particular, emails she received from Mr Trajkovski and Ms Harlick on the day of the incident. Pointing to the evidence that Ms Walters had reviewed the statements made by members of staff and spoken to those staff as well as to office staff who had not made statements by the time the decision to dismiss him was made, Mr Ibarra submitted that employees other than Ms Walters made material contributions to the ultimate decision with the consequence that the decision was not that of a single decision-maker but had been a collective undertaking.
Therefore, in this case, one issue to be determined is who participated in the decision-making. In that connection, in Wood (on behalf of the Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1 Smithers J said:
In the task of ascertaining the mind of the defendant corporation, with respect to the standing down of Mr Kane, that mind may be located in the mind of one authorised officer or of more than one person exercising the executive power of the corporation. It is a pure question of fact where in particular circumstances that corporate mind may be located. In a case where two officers are concerned in the solution of an administrative problem and are working jointly to solve it and decide what the corporation is to do and are working in harmony and in full confidence, the one with the other, the mind of the corporation is to be found in the course of conduct agreed upon between them and the reasons which in the end are the operating reasons for the policy agreed upon. (at 19)
In Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251 the relevant facts, as later summarised by Reeves J in Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd (2015) 253 IR 166, were that Kodak employed a redundancy process whereby two supervisors, Mr Lay and Mr Shannon, assessed Mr Elliott for redundancy by reference to certain criteria. A third person, Mr Walshe, the General Manager of Kodak, then made the ultimate decision to terminate Mr Elliott’s employment. The Full Court of the Federal Court held that, if either of Mr Lay or Mr Shannon’s assessments was influenced by a prohibited reason, that would have impugned the decision of Mr Walshe even though it had not been disclosed to him. The Full Court said:
… Lay made an indispensable contribution to the rankings. He and Shannon co-operated in a joint assessment, with each giving an account of what influenced them individually. If it were the fact that Lay was influenced in giving a low mark by a prohibited reason, it can be assumed that if the ranking were done without having regard to that prohibited reason, it is likely that a different ranking would have been given by Lay. This, inevitably, would have affected the ranking process, whatever the views of Shannon. It would have been a different assessment process. Furthermore, whatever debate there might be about the extent of Walshe’s power or involvement in the decision, his evidence was that he took the Lay/Shannon assessment and worked from there. It follows that if the Lay/Shannon assessment is affected (or infected) by either Lay or Shannon having held an undisclosed prohibited reason, then he would have, in effect, inadvertently adopted it so that its force continued regardless of the lack of any express prohibited reason in the mind of Walshe. (at 260 [37])
In CFMEU v Clermont Coal Pty Limited, Reeves J relevantly said:
… where the reasoning process is dispersed through an assessment process involving a number of persons, … the judgment in Kodak requires me to examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision. … it focuses on the conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. If one or more of the reasons employed by one or more of them was a prohibited reason, that will impugn the ultimate decision. This is what I consider the Full Court meant by “inadvertently” adopting an “undisclosed prohibited reason” in Kodak … (at 198 [121]) (reference omitted)
In Gibbs v Palmerston Town Council [1987] FCA 477 Gray J said:
Clearly, if the actual decision maker simply “rubber stamps” a decision in fact made by another, the purpose of that other will be a substantial operative factor. At the other extreme, if the actual decision maker truly believes the false and innocent reasons advised by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person. The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority. (at [114])
It is important to keep in mind that the inquiry is one that concerns decision-makers and not individuals who do not have a role in that process. In this case, the witnesses who gave the statements which were collected by or for Ms Walters were part of an investigative process but were not part the decision-making process. The situation was no different for the office staff who, in the first instance gave oral accounts to Ms Walters. All these individuals provided information but made no assessment of it and merely submitted it for the consideration of others. Consequently, the reasons those individuals might have had for giving the accounts they provided are not relevant to the present enquiry. This was not a case where something like a committee made a recommendation to an ultimate decision-maker.
The remaining question is therefore whether, as Regional Health Care argued, Ms Walters was the sole decision-maker or whether, notwithstanding my finding that the witnesses were not decision-makers, there were, nevertheless, additional individuals who participated in the consideration and analysis of information upon which the decision to dismiss Mr Ibarra was based.
It is true that the last sentence of Mr Trajkovski’s email to Ms Walters on 23 March 2016 said:
I believe with his poor performance and his attitude including todays [sic] incident he should be dismissed immediately.
However, the evidence makes it clear that this email and another one from Ms Harlick which alerted Ms Walters to the events of 23 March 2016 simply started the process of investigation and were not part of the relevant decision-making process which I conclude did not commence until Ms Walters returned from overseas in mid-April 2015. The evidence does not support a conclusion that anyone reviewed the evidence which was collected, or even a portion of it, and then made a recommendation to Ms Walters. The evidence satisfies me that Ms Walters was the sole decision-maker in this case.
Reason(s) for dismissal
Mr Ibarra has alleged that his dismissal, which under the FW Act was adverse action, was motivated by a reason prohibited by that Act, specifically him having exercised his workplace rights to make a complaint and to propose making a complaint. That allegation having been made, under s.361 of the FW Act, Regional Health Care bears the onus of disproving it, if it is to succeed in this proceeding.
It was said in Mr Ibarra’s written submissions that Regional Health Care should have examined the available evidence more critically than it did and that:
The flaws in the investigation and consequent decision to terminate Mr Ibarra demonstrate that references to his ‘misconduct’ are not sufficiently supported to displace the presumption that Mr Ibarra’s actions in making a complaint and his behaviour in being upset at the time of making the complaint, compounded by the responses of his supervisors at the warehouse, formed a substantive and operative reason for the dismissal.
That submission mistakes the relevant issue, which was the motivation of the decision-maker, Ms Walters, not whether Ms Walters based her decision on perfect information or might have made further enquiries. In Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500 the High Court considered the proper approach to determining whether adverse action has been taken for a prohibited reason. Relevantly, the question is whether the prohibited reason which Mr Ibarra alleged motivated his dismissal was, in fact, a “substantial and operative” reason for Regional Health Care taking that adverse action.
Mr Ibarra also submitted that:
… the opinions given regarding the behaviour of Mr Ibarra were clearly formed while Mr Ibarra was exercising his workplace right to make a complaint about workplace health and safety. In Clermont, Reeves J found that one of the material decision makers formed a perception of the Applicant as being “sarcastic and blunt” while the Applicant was acting in his capacity as a CFMEU executive member and thus assessed the Applicant in that matter on the basis of a prohibited reason, resulting in the adverse action.
What Reeves J did relevantly say was:
… I think it was likely that [Mr Scott] was generally known within Clermont Coal’s management team, and by its superintendents and supervisors, as a union activist who was particularly difficult to deal with.
Given these aspects of his general manner and his approach to carrying out his union activities, it was always likely to be a difficult task for Mr Christensen and Mr Fleming to assess Mr Scott’s attitude, ensuring their assessments were free of the substantial and operative intrusion of the alleged particular reasons. This does not mean that s 361 of the FWA will inevitably apply to protect a union activist like Mr Scott from adverse action. … However, it does mean that, where an employee’s attitude is a central part of an assessment as to whether he will be subjected to … adverse action and that employee is a union activist, it will be necessary to carefully examine the reasoning process of the person making the assessment to ensure that it is made for a reason associated with his performance as an employee, or more generally, rather than for any reason substantially and operatively associated with his union activities. In my view, Mr Christensen made that distinction, but I am not satisfied, on the balance of probabilities, that Mr Fleming did. … (at 221 [194] – [195])
In Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150, the Full Court of the Federal Court was concerned with adverse action taken against an employee who took a day of leave, to which he was entitled, but which he took without having complied with a work management agreement that he had made with the employer. As Perram J put it:
… Mr McDermott’s absences can bear two characterisations. They can be seen as the exercise of lawful rights under the Workplace Agreement. They can also be seen as an unreliable attendance record. Which of these characterisations Mr Young put upon Mr McDermott’s actions is a purely factual inquiry which the trial judge resolved. (at 169 [77])
In the same case Jessup J noted, discussing the decision of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243, that the analogous protection given by s.346 of the FW Act (which prohibits adverse action being taken against a person because he or she is involved in industrial activities) is not against adverse action being taken because an employee engaged in an act or omission that had the character of a protected industrial activity but was, rather, protection against adverse action being taken because that act or omission had the character of a protected industrial activity. That is to say, if adverse action is taken because an employee’s conduct contravened an employer’s conduct policy, it does not become a breach of s.346 merely because the conduct involved, at the same time, participation in industrial activity or, by analogy a breach of s.340 merely because the conduct also involved the exercise of a workplace right to make a complaint. The existence of such a connection is insufficient. What is necessary is that the actual reason of the decision-maker, in his or her own mind, be the employee’s participating in industrial activity or, by analogy, his or her exercise of workplace a right: CFMEU v Endeavour Coal at 160-161 [32] per Jessup J.
I am not persuaded in this case that it was. Ms Walters’s evidence, which I accept, satisfies me that the fact that Mr Ibarra had exercised the workplace right to make a complaint or had proposed to exercise it by making a complaint to her formed no part of her reason for dismissing him. I find that Ms Walters accepted the accuracy of the information contained in the statements from the warehouse staff which were placed before her and the information provided to her in oral form by the staff in Regional Health Care’s head office who encountered Mr Ibarra when he turned up there on 23 March 2016. It was Mr Ibarra’s poor behaviour as revealed by that information which was the substantial and operative reason for his dismissal.
In that regard I note Mr Ibarra’s submission that in:
… the termination letter and the Employment Separation Certificate, there is no reference to the performance of Mr Ibarra. It is only in the affidavit prepared for these proceedings in which Ms Walters makes reference to performance issues. It is therefore apparent from the Respondent’s evidence that the complaint and behaviour of Mr Ibarra were the material elements of the decision to terminate.
Those factual contentions are not correct. The dismissal letter dated 22 April 2016 said, amongst other things:
T[h]e meeting was called to discuss, the incidents that occurred on the 23rd March 2016, at Unit 5, 26-34 Dunning Avenue, Rosebery and 3-11 Primrose Avenue, Rosebery and the subsequent investigation that the company has undertaken into these incidents.
As a result of the investigation, which includes signed statements from witnesses at the Primrose Avenue and the Dunning Avenue sites, we have found that your behaviour on the 23rd March 2016 was unacceptable.
As stated to you in the meeting on the 22nd April 2016, Regional Health Care Group Pty Ltd, is terminating your employment on the grounds of misconduct, effective as of close of business today.
The separation certificate also expressly stated that Mr Ibarra had been dismissed for misconduct. Those documents plainly did deal with Mr Ibarra’s “performance’ in the sense of his conduct on 23 March 2016 and clearly identified the reasons why Mr Ibarra was dismissed, reasons which accord with Ms Walters’s evidence on that question.
CONCLUSION
I find that Regional Health Care has discharged its onus under s.361 of the FW Act. That being so, an essential element of Mr Ibarra’s cause of action has not been made out with the consequence that his application to the Court must be dismissed.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 30 June 2017
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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