IEUA v AIAEI
[2013] FCCA 1308
•12 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| IEUA v AIAEI & ANOR | [2013] FCCA 1308 |
| Catchwords: INDUSTRIAL LAW – Fair work – whether adverse action against employee – whether action taken for prohibited reason – reverse onus – balance of probabilities – action not taken for prohibited reason, or for reasons which include a prohibited reason – application dismissed. |
| Legislation: Accident Compensation Act 1985 (Vic) Fair Work Act 2009, ss.45, 323, 340, 342, 343, 351, 360, 361, 550, 551 and 793 Long Service Leave (Commonwealth Employment) Act 1975, s.14 |
| Browne v Dunn (1893) 6 R 67 Board ofBendigo Regional Institute of Technical and Further Education v Barclay & Anor (2012) 290 ALR 647 Harrison v P and T Tube Mills Proprietary Ltd (2009) 181 IR 162 |
| Applicant: | INDEPENDENT EDUCATION UNION OF AUSTRALIA |
| First Respondent: | AUSTRALIAN INTERNATIONAL ACADEMY OF EDUCATION INC. |
| Second Respondent: | SALAH SALMAN |
| File Number: | MLG 222 of 2012 |
| Judgment of: | Judge Turner |
| Hearing dates: | 10 April 2013, 11 April 2013, 12 April 2013, 24 April 2013 and 28 June 2013 |
| Date of Last Submission: | 28 June 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 12 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr White |
| Counsel for the First and Second Respondent: | Mr Follett |
| Solicitors for the First and Second Respondent: | Gadens Lawyers |
ORDERS
The claims of adverse action are dismissed.
The claim of coercion is dismissed.
The claim of discrimination is dismissed.
The claims of breaches of the Modern Award are dismissed.
The claim of non-payment of superannuation contributions is dismissed.
The claims of breaches or threatened breaches of Ms Ali’s contract of employment are dismissed.
The claim for accessorial liability of the second respondent is dismissed.
The application filed on 2 March 2013, the Amended Claim filed on 28 March 2013 and the Amended Application filed on 11 April 2013 are dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 222 of 2012
| INDEPENDENT EDUCATION UNION OF AUSTRALIA |
Applicant
And
| AUSTRALIAN INTERNATIONAL ACADEMY OF EDUCATION INC. |
First Respondent
| SALAH SALMAN |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the Independent Education Union of Australia (the “IEUA”) on behalf of Ms Majida Ali (“Ms Ali”), against the Australian International Academy of Education Inc. (the “AIAEI”) and Mr Salah Salman (“Mr Salman”) the second respondent, who is the Director General of the Australian International Academy of Education (the “Academy”). Mr White of Counsel appeared for the applicant and Mr Follett of Counsel appeared for the respondents.
Ms Ali is a teacher employed by the AIAEI.
The application alleges contraventions of ss.45, 323, 340 and 343 of the Fair Work Act 2009 (the “FWA”), cls. 17.1, 23.3 and 22.8 of the Educational Services (Teachers) Award 2010 (the “Modern Award”) and breaches of Ms Ali’s contract of employment.
The applicant alleges that the respondents took “adverse action” against Ms Ali.
Points of Claim were filed on 2 March 2012. Amended Points of Claim were filed on 23 March 2012. Second Further Amended Points of Claim were filed on 14 June 2012. Third Further Amended Points of Claim were filed on 14 August 2012. An Amended Claim was filed on 28 March 2013. An Amended Application and the fourth Further Amended Points of Claim (the “Points of Claim”) were filed on 11 April 2013.
The Points of Claim
The fourth Further Amended Points of Claim allege:
·That the IEUA was at all times an organisation, registered under relevant legislation, of which Ms Ali is a member.
·That the IEUA is entitled to represent the industrial interests of Ms Ali.
·That the AIAEI is “an incorporated association that is able to be sued (and sue) in its own name and right”.
·That the AIAEI operates the Academy and is the employer of employees at the Academy.
·That Ms Ali is a teacher employed at the Academy who was employed to teach Arabic in the Junior Campus, three days per week; and
·That from October 2010 to date, Mr Salman was, and is, the secretary and trustee of the AIAEI and the director general of the Academy.
·That at all relevant times Mr Salman acted with the apparent authority of the AIAEI.
·That at relevant times Mr Salim Boyaci (“Mr Boyaci”) was and is the personnel/office manager of the Academy.
·That at relevant times Ms Leyla Mohamoud (“Ms Mohamoud”) was employed by the AIAEI as head of the primary campus of the Academy.
·That from August 2006 Ms Ali was employed by the AIAEI as a permanent part-time teacher pursuant to a contract of employment.
·That “from the beginning of the 2011 school year to 5 September 2011(the AIAEI) and Ms Ali agreed to a variation of the terms of the contract such that Ms Ali was to take leave without pay (“LWOP”) to undertake treatment to permit recovery from the effects of carpal tunnel syndrome” [Point 14].
·That on or about 5 September 2011 Ms Mohamoud requested Ms Ali to return to work early from unpaid leave.
·That on 10 October 2011 Ms Ali resumed her normal teaching duties as a permanent part-time teacher on three days per week.
·That “on 12 October 2011, Ms Mahmoud (sic ‘Mohamoud’) informed Ms Ali that (Mr Salman) required Ms Ali to obtain and produce a letter from her treating doctor confirming her capacity to work” [Point 18].That letter was provided on 26 October 2011.
·That on 12 October 2011 Ms Mohamoud informed Ms Ali that Mr Salman required Ms Ali to sign a new contract of employment for a fixed term of employment.
·That in the same telephone conversation Ms Mohamoud told Ms Ali that Ms Mohamoud had spoken to Mr Salman who directed that if Ms Ali did not sign the contract she would not be permitted to continue to work [Point 19].
·That on 18 November 2011 Ms Ali requested a copy of the new contract and Mr Boyaci responded:
“The contract does not leave the office” [Point 31].
·That “on 19 November, (Mr Salman) sent Ms Ali an email saying:
(a)that (she) was engaged on a casual basis;
(b)that ‘because of your health reasons, you are employed at the Academy this term as a clausal (sic ‘casual’) teacher’; and
(c)that (she) could not continue to be employed unless she signed the fixed term contract by the following Monday morning” [Point 34].
·That on 22 November 2011 Ms Ali attended a meeting with Mr Salman and three other employees of the AIAEI when Mr Salman told Ms Ali:
·That it was illegal for her to continue working without signing the contract;
·That she could not take a copy of the contract out of the office; and
·That “if she did not sign the contract immediately she would not be permitted to continue working”.
·That at a second meeting on 22 November 2011, upon Ms Ali refusing to sign the new contract, Mr Salman directed Ms Ali to cease work immediately.
·That Ms Ali was not paid wages from 22 November 2011 for the remainder of the year totalling $3,112.36, a pro rata annual leave loading or superannuation contributions.
·That on 31 January 2012, Ms Ali attended for work but was directed by Ms Mohamoud to meet with Mr Salman. Mr Boyaci then spoke with her and advised her that he had spoken with Mr Salman and that:
“Ms Ali was not permitted to return to work until she had provided a letter which stated… that she would not hold the school responsible for any consequences arising from her injury” [Point 52].
Much of the above is contested.
·That at all relevant times Ms Ali had a workplace right to make a complaint or inquiry in relation to her employment [FWA s.341(1)(c)(ii)].
·That Ms Ali had a workplace right “to initiate or participate in a process or proceedings under a workplace law or workplace instrument” [FWA s.341(1)(b)], being the right to participate in dispute resolution under cl.9 of the Modern Award.
·That Ms Ali had a workplace right “to make a complaint or inquiry to a person or body having the capacity under a workplace law to seek compliance with the law or instrument” [s.341(1)(c)(i)], namely to seek compliance with the FWA and the Modern Award.
·That Ms Ali had a workplace right in that she was entitled to the benefit of a workplace law [s.341(1)(a)] namely the Accident Compensation Act 1985 (Vic) (the “AC Act”).
·That Ms Ali had a workplace right to initiate or participate in a process or proceeding, under a workplace law or instrument [s.341(1)(b)], to apply for accident compensation.
·That the specified conduct of Ms Ali constituted the exercise of workplace rights.
·That the specified conduct of the AIAEI constituted adverse action against Ms Ali:
i)Within s.342(1) Item 1(b), being the threat to convert her employment from permanent to casual or fixed term;
ii)Within s.342(1) Item 1(c) and s.342(2) as the threat to alter Ms Ali’s employment amounted to a threat to dismiss Ms Ali from her employment;
iii)Within s.342(1) Item 1(b) and 1(c) as standing Ms Ali down without pay, altered her position to her prejudice;
iv)Within s.342(1) Item 1(b) and s.342(2) as the AIAEI threatened to alter the position of Ms Ali in her employment to her prejudice.
·That the specified conduct was a threat to Ms Ali not to exercise a workplace right, namely her rights under the AC Act and was coercion within s.343 of the FWA; and
·That the AIAEI breached s.343 of the FWA.
Alleged Adverse Action
It is alleged that the requirements that Ms Ali obtain and produce a letter from her treating doctor confirming her capacity to work, and to sign a new contract for fixed term employment were adverse action.
It is alleged that Mr Boyaci telephoning Ms Ali and stating:
·That the contract “has been ready for her to sign since day one of Term 4”;
·That “we cannot force you to sign, but you are at work illegally”; and
·In response to a request for a copy of the contract that “the contract does not leave the office”;
was adverse action [Point 31].
It is alleged that Ms Mohamoud telling Ms Ali that she had spoken to Mr Salman, who directed that if Ms Ali did not sign the contract she would not be permitted to continue work, was adverse action.
It is alleged that Mr Salman sending Mr Ali an email on 19 November 2011 stating that she was engaged on a casual basis, and “because of your health reasons you are employed at the Academy this term as a clausal (sic ‘casual’) teacher”, was adverse action [Point 34(b)].
It is alleged that Ms Ali being told by Mr Salman at a meeting on 22 November 2011 that:
·“It was illegal for (her) to continue working without signing the contract”;
·She could not take a copy of the contract out of the office; and
·Confirming that if she did not sign the contract immediately, she would not be permitted to continue working,
was adverse action [Point 37].
It is alleged that the above were adverse actions:
a)Within s.342(1)(c) and 342(2) of the FWA in that the AIAEI threatened to injure Ms Ali in her employment, by converting it to casual or fixed term employment.
b)Within s.342(1)(c) and s.342(2) of the FWA in that the AIAEI threatened to alter the position of Ms Ali to her prejudice, by threatening to convert her employment to casual or fixed term.
It is alleged that standing down of Ms Ali with no pay was adverse action under s.342(1)(1)(b) and (c) of the FWA.
It is alleged that:
·not allowing Ms Ali to return to work until she provided a letter stating that she would not hold the school responsible for any consequence arising from her injury [Point 52(c)];
·Mr Boyaci refusing twice to put the undertaking sought in writing [Point 53];
·Mr Boyaci inferring that the Academy would not permit Ms Ali to resume teaching whilst subject to the restrictions [Point 54]; and
·Mr Boyaci proposing to demote Ms Ali to a teachers aide [Point 55]
were adverse actions within ss.342(1)(1)(b), 342(1)(1)(c) and .342(2) of the FWA.
Alleged Reasons for Adverse Action
Point 66 alleges:
·That the directions to Ms Ali, to produce a letter from her doctor and to sign a new fixed term contract were adverse action because Ms Ali had workplace rights to make a complaint or inquiry in relation to her employment, and was entitled to the benefits of the Modern Award.
Point 66A alleges:
·That the adverse action of Mr Boyaci asking Ms Ali to sign a new contract was taken by the AIAEI because Ms Ali had the workplace right to make a complaint or inquiry in relation to her employment and was entitled to benefits under the Modern Award, and exercised her workplace rights.
Point 66B alleges:
·That the adverse action of Ms Mohamoud telling Ms Ali that Mr Salman directed, if Ms Ali did not sign the new contract, she would not be permitted to continue to work, was taken by the AIAEI because Ms Ali had a workplace right to make a complaint or inquiry in relation to her employment, and was entitled to benefits under the Modern Award.
Point 66B(b) alleges:
·That the adverse action of telling Ms Ali that she was now employed on a casual basis and could not be employed until she signed the fixed term contract was taken by the AIAEI because Ms Ali exercised her workplace rights.
Point 66D alleges:
·That the adverse action of telling Ms Ali that if she did not sign the contract she would not be permitted to continue working, was taken by the AIAEI because Ms Ali exercised workplace rights.
Point 66E alleges:
·That the adverse action of directing Ms Ali to cease work immediately, and of ceasing to pay wages and other entitlements to Ms Ali, was taken by the AIAEI because Ms Ali exercised workplace rights.
Point 66F alleges:
·That the adverse action of not permitting Ms Ali to return to work was taken by the AIAEI because Ms Ali exercised workplace rights.
Point 66G alleges:
·That the adverse action of not permitting Ms Ali to return to work, requiring her to sign an undertaking, and threatening to demote her to a teacher’s aide, was taken by the AIAEI because Ms Ali had exercised workplace rights.
Much of the above is disputed.
Point 67 alleges:
·Contraventions of s.340 of the Fair Work Act;
Points 70 and 72A allege:
·That the conduct of Ms Mohamoud was engaged in by her on behalf of the AIAEI, and is to be taken to be conduct of the AIAEI.
Points 71 and 72B allege:
·That the conduct of Mr Boyaci was engaged in by him on behalf of AIAEI, and is to be taken to be conduct of the AIAEI.
Points 72 and 72C allege:
·That the conduct of Mr Salman was engaged in by him on behalf of the AIAEI “within the scope of his actual or apparent authority”.
Point 73 alleges:
·That Mr Salman directed, and knew of, the conduct of Ms Mohamoud.
Point 74 alleges:
·That Mr Salman directed, and knew of, the conduct of Mr Boyaci.
Points 83 – 89 allege:
·Mr Salman knew of the reasons for the adverse action.
Points 90 and 91 allege:
·That Mr Salman:
(a) “aided, abetted, counselled or procured the contraventions…; and/or
(b) was, by act or omission, directly or indirectly, knowingly concerned in or party to the contraventions…; and or
(c) conspired with others to give effect to the contraventions…”
·He was therefore involved in the contraventions.
Remedies Sought
The applicant seeks the following remedies:
·A declaration of contraventions of the Modern Award and of the FWA.
·An order for compensation [s.545(2)b) of the FWA].
·Injunctions restraining the respondents from committing further contraventions.
·The imposition of penalties under s.546 of the FWA.
·An order to pay the penalties to the applicant [s.546(3) of the FWA].
Reverse Onus
It is alleged that the actions in the Points of Claim occurred for a prohibited reason/reasons. Once that is alleged there is a reverse onus (post).
The matters are therefore taken to be established unless the respondents prove on the balance of probabilities that their actions did not occur for the reasons alleged.
Section 361(1) of the FWA provides:
(1)If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
The standard of proof required is the balance of probabilities [s.551 of the FWA].
The Court refers to and accepts the contentions in paras.155 to 157 of the written Final Submissions of the Respondents filed 28 May 2013, as follows:
“As confirmed in Board of Bendigo Regional Institute of TAFE v Barclay,[1] the question as to why particular action was taken is a question of fact,[2] and is one on which the Academy in this case bear the onus of proof (s.361(1) of the FW Act).
The determination of that factual question involve a consideration of the decision-maker’s reason or reasons for engaging in the conduct found to be “adverse action”.[3]
To discharge the reverse onus and defeat the alleged contraventions, the employer (in this case the AIAEI) must lead evidence from the decision-maker in relation to each form of proven adverse action, as to their reason or reasons for making the decision to engage in that conduct, which must not include as a “substantial and operative reason”,[4] the impugned reasons alleged (usually through an express denial), and have that evidence accepted by the Court on the balance of probabilities.[5]
There is no special burden or difficulty in discharging the onus… (see: Barclay (supra)).”.
[1] (2012) 290 ALR 647.
[2] Ibid at [41] and [45].
[3] Ibid at [42]-[43].
[4] Ibid at [56]-[57], [85], [88]-[89], [103]-[104] and [127].
[5] Ibid at [41]-[45], [65], [127]-[128], [131] and [146]; Harrison v P & T Tube Mills Pty Ltd (2009) 188 IR 270 at [31]-[33]; CFMEU v BHP Coal Pty Ltd [2012] FCA 1201 at [203]-[2013]; CFMEU v Bengalla Mining Company Pty Ltd [2013] FCA 267 at [53].
The Court accepts the submission by Mr Follett that “the onus does not vary from case to case”.
“It would be curious if witnesses appearing on behalf of an employer were to be put into a special category in which their evidence was to be treated as generally not discharging the onus ofproving a matter which was peculiarly within their knowledge.” Harrison v P and T Tube Mills Proprietary Ltd (2009) 181 IR 162 per Dowsett J at [265].
The respondents deny each allegation of taking action for a prohibited reason. The reasons stated by the respondents for requiring Ms Ali to sign a new contract and supply medical evidence of her fitness to work are logical and cogent when the circumstances of the situation are taken into account. The attack on the credibility of the witnesses does not lead the Court to reject their evidence as to the reasons for the actions.
A witnesses misunderstanding of a fact or law is not a reason to reject their evidence about why they did something, nor is their inability to remember precise details of events two and a half years ago. Being realistic, the respondent’s witnesses gave cogent evidence. Further, the Court observed the witnesses give evidence and found them to be responsive to questions put to them, having regard to the elapsed time.
The issues and inconsistencies alleged by the applicant do not of themselves, or cumulatively, lead the Court to not accept the evidence of the respondent’s witnesses.
The objection of a breach of the rule in Browne v Dunn (1893) 6 R 67 therefore does not need to be addressed.
The evidence given by the respondents and their witnesses of the reasons for taking the action in relation to Ms Ali is accepted by the Court on the balance of probabilities. The Court does not find other objective evidence of facts which contradicts the evidence given on behalf of the AIAEI. The evidence of Mr Boyaci that he might have tricked Ms Ali into believing that he was consulting with Mr Salman when he was not, is not an issue of credibility that would lead the Court to reject his evidence generally. The other issues as to credibility raised in the applicant’s Outline of Submissions filed 11 May 2013 at pp.13 to 21 are dealt with (post).
The Court finds that the evidence from the respondent’s witnesses discharges the reverse onus on the balance of probabilities.
The Elements of a Case of Adverse Action
The Court accepts Mr Follett’s submissions that there are three elements to a claim based on adverse action:
·First the applicant must prove that a person took adverse action against the applicant.
·Secondly, the applicant must prove that the action was taken because there was a relevant workplace right.
·Thirdly, there is a reverse onus that the adverse action was not taken for a prohibited reason. If the respondents can show that it was not taken for such a reason, no actionable adverse action has been taken.
Exercise of Workplace Rights
It is alleged that Ms Ali exercised workplace rights as set out in paras. 19, 29A, 30, 31(c), 33, 36, 37(b), 38, 39, 42 and 44 of the Fourth Further Amended Points of Claim, namely making a complaint or inquiry within the meaning of s.341(1)(c)(ii) of the FWA.
It is alleged that Ms Ali exercised a workplace right as set out in paras. 45 and 47 of the same Points of Claim by initiating a process or proceeding under a workplace law [s.341(1)(b) of the FWA].
It is alleged that Ms Ali exercised a workplace right by making a complaint or inquiry of a body (the IEUA) having the capacity under a workplace law to seek compliance with that law [s.341(1)(c)(i) of the FWA].
Reasons for the Adverse Action
As provided by s.340(1) of the FWA:
(1)a person must not take adverse action against another person:
(a)because the other person:
(i)has a workplace right;
(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.
These reasons are the “prohibited reasons”.
The meaning of “adverse action” is defined in s.342 of the FWA as follows:
(1)The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...Column 2
if ...1 an employer against an employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee's prejudice; or
(d) discriminates between the employee and other employees of the employer.2 a prospective employer against a prospective employee the prospective employer:
(a) refuses to employ the prospective employee; or
(b) discriminates against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee.3 a person (the principal ) who has entered into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor the principal:
(a) terminates the contract; or
(b) injures the independent contractor in relation to the terms and conditions of the contract; or
(c) alters the position of the independent contractor to the independent contractor's prejudice; or
(d) refuses to make use of, or agree to make use of, services offered by the independent contractor; or
(e) refuses to supply, or agree to supply, goods or services to the independent contractor.4 a person (the principal ) proposing to enter into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor the principal:
(a) refuses to engage the independent contractor; or
(b) discriminates against the independent contractor in the terms or conditions on which the principal offers to engage the independent contractor; or
(c) refuses to make use of, or agree to make use of, services offered by the independent contractor; or
(d) refuses to supply, or agree to supply, goods or services to the independent contractor.5 an employee against his or her employer the employee:
(a) ceases work in the service of the employer; or
(b) takes industrial action against the employer.6 an independent contractor against a person who has entered into a contract for services with the independent contractor the independent contractor:
(a) ceases work under the contract; or
(b) takes industrial action against the person.7 an industrial association, or an officer or member of an industrial association, against a person the industrial association, or the officer or member of the industrial association:
(a) organises or takes industrial action against the person; or
(b) takes action that has the effect, directly or indirectly, of prejudicing the person in the person's employment or prospective employment; or
(c) if the person is an independent contractor--takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; or
(d) if the person is a member of the association--imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to money legally owed to the association by the member).
(2)Adverse action includes:
(a)threatening to take action covered by the table in subsection (1); and
(b)organising such action.
(3)Adverse action does not include action that is authorised by or under:
(a)this Act or any other law of the Commonwealth; or
(b)a law of a State or Territory prescribed by the regulations.
(4)Without limiting subsection (3), adverse action does not include an employer standing down an employee who is:
(a)engaged in protected industrial action; and
(b)employed under a contract of employment that provides for the employer to stand down the employee in the circumstances.
Pursuant to s.361 of the FWA there is a rebuttable presumption that adverse action is taken for a prohibited reason. If rebutted, on the balance of probabilities, the proceedings must fail. An applicant must show therefore that there was adverse action on the facts (s.342 of the FWA). The Court must then determine the reasons for it.
The crucial issue therefore is for what reasons the actions here were taken.
The applicant alleges that adverse action was taken because Ms Ali:
·Had the right to make a complaint or inquiry in relation to her employment;
·That she was entitled to benefits under a workplace instrument (being the Modern Award) to receive regular payments of salary, superannuation contributions, leave and public holidays, and an annual leave loading;
·Had exercised the above rights;
·Refused to sign a new contract;
·Requested a copy of the contract and wanted to get advice on it; and
·The respondents prevented her exercising her workplace rights.
Crucial to the matter therefore is an examination of the evidence of the witnesses for the respondents about the reasons for their actions.
Evidence of Mr Salah Hamed Salman
Affidavit of Mr Salman filed 9 November 2012
The Court refers to the following evidence of Mr Salah in his Affidavit filed 9 November 2012:
·“I am the Director General and Academy Head of (the Academy)… I am also the Secretary of the Academy Board and Secretary of the Trustee of the Board of Trustees.” (Ibid [1]).
·“The Academy as a whole has four campuses…. The Melbourne campuses involve the King Khalid Coburg primary school campus.” (Ibid [6]).
·“The operational matters of the Academy campuses are delegated to the Academy Head…, which is the position I currently hold.” (Ibid [7]).
·On 26 October 2011 the Board approved 12 months LWOP for Ms Ali, for her to resume in first term 2012, with her return subject to medical certification (Ibid [19])
·Another full time teacher at the primary campus, Ms Nagat Ali, had applied for and was granted long service leave for Term 4, 2011. Ms Ahmed was to replace Ms Nagat Ali.
·In early September 2011 Ms Mohamoud informed Mr Salam that “she had made some arrangements for staffing in Term 4… and …had organised for Ms Ali to replace Ms Ahmed in her 0.6 FTE (“full time equivalent”) position for Term 4…” (Ibid [22]).
·“As far as I was concerned at that point in time, Ms Ali would attend at the secondary school campus on either the first day of Term 4 or shortly beforehand, sign a new contract…” (Ibid [24])
·“As far as I was concerned, in order to be legally employed at the Academy…, all teachers had to have a signed written contract with the Academy.” This was because of public liability and WorkCover insurance requirements
·“Of the approximately 170 or so teachers…, every single one of them… had signed a written contract of employment.” (Ibid [24(b)])
·Clauses 10.2 and 10.6 of the Modern Award provided for letters of employment, and fixed term appointments.
·It was “my belief that unless and until Ms Ali signed the contract for the Replacement Position, she would remain as a casual relief employee and would not accrue holiday pay and sick pay”. (Ibid [24(e)].
·It was usual for teachers to sign contracts.
·“As far as I can recall, three contracts for Replacement Positions for Term 4 were drawn up… they are always drawn up under my supervision and do not leave the office”. The other two replacement teachers signed similar fixed-term contracts (Ibid [25] and [26]).
·“Further, given that Ms Ali had been granted 12 months’ unpaid leave because of a medical condition, I was also expecting that she would provide a full medical clearance for her return to work…” (Ibid [28]).
·On “11 October (the second day of Term 4 in 2011) my attention was drawn to the fact that Ms Ali had not signed her contract for the Replacement Position.”
“I telephoned Ms Mohamoud… and asked her where Ms Ali was and why she had not signed her contract…. I was concerned about insurance cover, the Academy’s legal obligations under the Award, and also Ms Ali’s accrued leave entitlements.”
“I asked Ms Mohamoud to make sure that Ms Ali attended at the secondary school to sign the contract….” and “that I wanted Ms Mohamoud to obtain from Ms Ali a letter from her treating Doctor, confirming that she had full capacity to perform her work” (Ibid [32]–[33]).
·“No part of my reason for requiring Ms Ali to sign a new contact for Term 4 of 2011 was because of Ms Ali’s:
(a)ability to make enquiry or complaint about her employment;
(b)entitlement to the benefit of the award; or
(c)carpal tunnel injury
The requirement is imposed uniformly on all teachers in similar position to Ms Ali” (Ibid [34] and [35]).
·“The only reasons why I said to Ms Mohamoud that Ms Ali needed to provide a letter of full capacity from her treating Doctor, were as follows:
(a)given that Ms Ali had been certified as unfit for her work…, I was concerned to ensure that Ms Ali did not return to teaching duties and further injure herself or aggravate her existing condition”
Part of the reason for this was that a previous teacher (Ms Joseph) who had carpal tunnel syndrome and did not notify the Academy of appropriate work restrictions leading to her being forced to retire from teaching.
(b)“I was concerned that allowing Ms Ali to work without any evidence from her treating Doctor… would put the Academy at risk of breaching its occupation health and safety obligations to Ms Ali; and.
(c)…I was also concerned for Ms Ali’s wellbeing. She had worked for the Academy for some time, was a good and loyal employee, and the last thing I wanted was for her to resume work as a teacher and aggravate her injury (possibly destroying her career), in circumstances where steps… to avoid such a situation had not been taken.” (Ibid [36]).
·No part of my reason for requiring Ms Ali to provide a letter from her treating Doctor was because of Ms Ali’s:
(d)ability to make an inquiry or complaint about her employment;
(e)entitlement to the benefit of the Award; or
(f)carpal tunnel injury”. (Ibid [37])
·This requirement is imposed uniformly on all employees who have been certified as unfit to work, and are then returning…” (Ibid [38])
·The only reason why such requirements are not imposed on limited emergency casual relief teachers is because most commonly, the work performed by such persons is of very short duration…” (Ibid [39]).
·“I never said anything to Ms Mohamoud about any requirement for Ms Ali to say… that she would not hold the school “responsible” for anything that happened to her or her hands” (Ibid [47]).
·“No part of my reason for requiring that unless Ms Ali signed a new contract for Term 4 of 2011, she would not be able to continue to work a the Academy for that term, was because of Ms Ali’s:
(g)ability to make an inquiry or complaint about her employment;
(h)entitlement to the benefit of the Award;
(i)conversation Ms Mohamoud on 12 October 2011…;
(j)conversation with the primary school campus receptionist on 15 November 2011…;
(k)email to Mr Boyaci on 16 November 2011…;
(l)conversation with Mr Boyaci on 18 November 2011…;
(m)supposed exercise of any workplace rights…;or
(n)carpal tunnel injury” (Ibid [55]).
·During Term 4, 2011 “Ms Ali was engaged and paid at that point in time as a casual emergency relief teacher…” (Ibid [60]).
·“In particular:
(o)I never said that Ms Ali that she was engaged… as a casual employee because she had a medical condition…;
(p)I did not say to Ms Ali that she could not return from leave early because she had a medical condition” (Ibid [68]).
·“I did not allow Ms Ali to take her contract out of the secondary school…that apart from being a limited-tenure contact, the contract was exactly the same as every other contract Ms Ali had previously signed…. I was quite happy for Ms Ali to take as much advise as she wanted on the contract… and was even happy for her to read the entire contents out to whoever she liked over the phone” (Ibid [70]).
·Ms Ali wanted to make some changes to the contract which I refused. Everyone signs the same form of contract…” (Ibid [75]).
·On 21 November 2011, after Ms Ali left Mr Salam’s office, Mr Boyaci came in and “told me she decided not to sign the contract, was to continue on her existing leave without pay, and that she would provide medical clearance for next year and come back at the start of Term 1 in 2012” (Ibid [77])
(Annexure “MA – 26” to the Affidavit of Ms Ali sworn 20 September 2012 confirms this).
·The only reason why the Academy ceased paying Ms Ali any salary or other remuneration for the remainder of 2011, was because she decided not to work for the Academy… she decided to continue her leave without pay…, and she no longer performed any work for the Academy for the remainder of 2011” (Ibid [81]).
·“No part of my reasons for requiring Ms Ali to sign the contract in order to continue working… or to cause the Academy to cease paying her salary or remuneration for the remainder of 2011 was because of:
(b)…Ms Ali’s supposed exercise of workplace rights” (Ibid [82]).
The Court notes that Ms Ali was not entitled to pay in Term 4, 2011 as she was on LWOP, except if she performed casual work. She was paid for that work (supra) (Transcript “T” 12/04/2013 p.103, l.7).
·“On 9 January 2012, the Academy’s insurers wrote to the Academy, informing it that the claim by Ms Ali had been rejected” (Ibid [87]).
·“I wanted some recognition from Ms Ali that whatever restrictions she had, she understood them and would comply with them” (Ibid [90]).
·“I told Mr Boyaci to organise for Ms Ali to provide a letter to the Academy, which said she understood her medical restrictions….” (Ibid [97]).
·“I thought at the time that it was going to be difficult for Ms Ali to work in her role as a teacher, in light of the specified restrictions on writing and wrist bending” (Ibid [98]).
·“I said to Mr Boyaci that I did not want Ms Ali to aggravate her condition and blame the school, and that if she did, the Academy needed something in writing from her recognising that it was her responsibility” (Ibid [99]).
·“No part of my reasons for issuing these instructions to Mr Boyaci was or imposing the requirements regarding the letter from Ms Ali, were because of:
(a)any of the matters listed in paragraphs 55, 64 and 72 above (including because of my lack of knowledge of several of them, as explained in paragraph 56 above);
(b)Ms Ali’s request to take a copy of her contract out of the office on 22 November 2011 (as set out in paragraph 56(b) of, or as contained in exhibit “MA24” to, the Ali Affidavit);
(c)Ms Ali’s request to make some changes to the contract in the meeting with me on 22 November 2011 (as set out in paragraph 59 of, or as contained in exhibit “MA25” to, the Ali Affidavit);
(d)Ms Ali’s refusal to sign the contract for the Replacement Position;
(e)the content (or existence) of any complain or inquiry Ms Ali made to her Union regarding her dispute with the Academy over her contract, which ended up in FWA (Fair Work Australia);
(f)the content (or existence) of Ms Ali’s letter (from her Union) to the Academy (addressed to me) on 6 December 2011 (exhibited as “DM1” to the Matson Affidavit);
(g)the content (or existence) of Ms Ali’s claim for workers compensation benefits dated 7 December 2011 (exhibited as “MA30” to the Ali Affidavit);
(h)the content (or existence) of the Union’s dispute application filed in (Fair Work Australia) on 12 December 2011 (exhibited as “DM3” to the Matson Affidavit);
(i)Ms Ali’s participation in, or the nature or content of Ms Ali’s participation in, the proceedings commenced in (Fair Work Australia) by her Union (C2011/116); or
(j)Ms Ali’s supposed exercise of any workplace rights” (Ibid [105]).
·“The issue with the letter had nothing at all to do with the signing of the contract for the Replacement Position in November 2011. They were completely separate issues.” (Ibid [106]).
·“Further, no part of my reasons for issuing these instructions to Mr Boyaci or imposing the requirements regarding the letter from Ms Ali, were to threaten, pressure, overbear, prevent or otherwise coerce Ms Ali to not make any claim for workers compensation benefits, or pursue any other rights she may have under the Accident Compensation Act 1985 (Vic.), whether in relation to carpal tunnel syndrome or any other workplace injury. Such a thing never entered my mind” (Ibid [107]).
·“As far as I was (and am) concerned, I have no issue or concern about workers compensation claims being made by employees of the Academy. Such claims do not affect me or the Academy. The Academy is fully insured in relation to such claims (as it is required to be), and the thought of increased insurance premiums or related issues associated with increased numbers of claims, never entered my mind at the time of dealing with Ms Ali’s issues. From my point of view, Ms Ali (like all other employees of the Academy) is and was free to make as many workers compensation claims as she likes. It is a matter for the insurer as to whether it accepts those claims, and makes weekly payments to employees as a result” (Ibid [108]).
Affidavit of Mr Salman sworn 9 April 2013
A further Affidavit was filed by Mr Salman on 18 April 2013. The Court refers to the following evidence:
·“I sought to impost a restriction on the circumstances in which Ms Ali would be permitted to return to work at the Academy as a fixed-term replacement employee for Term 4 of 2011. That restriction was that I wanted Ms Ali to provide a letter from her treating Doctor, confirming that she had full capacity to perform her work as a teacher” (Ibid [3]).
·“I myself, and as Director General…, was concerned about whether Ms Ali could work as a teacher… in a safe manner without risk to her health and safety (and hence, without risk to the Academy under occupational health and safety legislation)” (Ibid [4]).
·“I sought to impose a restriction on the circumstances in which Ms Ali would be permitted to return to work at the Academy in her Ongoing Position from Term 1 of 2012. That restriction was that I wanted Ms Ali to provide a letter from herself to the Academy indicating that she understood the medical restrictions her Doctor had imposed on her return to work, that she would comply with those restrictions, and that she would advise the Academy if circumstances arose where she was unable to continue to comply with those restrictions in order to perform her duties” (Ibid [5]).
·“The letters from Ms Ali’s treating Doctor in 2011, and from Ms Ali herself in 2012, were each directed at removing this uncertainty and mitigating that risk” (Ibid [7]).
The oral evidence of Mr Salman – 12 April 2013
At the hearing on 12 April 2013, Mr Salman gave evidence that on 25 November 2011, he received an email from Ms Ali stating that she would not sign the contract and she would return to work in 2012 (Annexure “MA26” to the Affidavit of Majida Ali filed 21 September 2012).Mr Salman formed the view that “she was not prepared to work” for the remainder of Term 4 (T 12/04/13 p.49, l.20).
Cross Examination by Mr White
Under cross examination by Mr White, Mr Salman gave the following evidence:
·It was his responsibility as Academy Head to appoint and terminate staff, and then to inform the Board.
·Ms Ali signed a contract of employment in 2006 but did not need to sign a new contract when she became permanent (T 12/04/13 p.53, l.44).
·That some of the other teachers do not have signed contracts for permanent employment; they sign a contract to start, but don’t need to sign another to become permanent. Casuals don’t have a signed written contract of employment.
·That the Board has the power to approve LWOP [Exhibit A5 p.15, cl.(r)].
·When Ms Ali didn’t sign the contract on day one of Term 4, 2011, “we considered her as a casual” (T 12/04/13 p.77, l.43).
·The Academy does not allow an employee to take a contract away for advice before they sign it as it is a standard one.
·Ms Ali would not sign the fixed term contract, so she was to be a casual (T 12/04/13 p.79, l.34).
·“That she (Ms Ali) provided medical evidence in December 2010 (when she applied for leave) that she’s ill” (T 12/04/13 p.81, l.43).
·As long as Ms Ali was on leave on medical grounds she needed to get a clearance before she resumed work (T 12/04/13 p.82, l.30).
·That Mr Salman told Mr Boyaci he wanted something in writing from Ms Ali recognising that any aggravation was her responsibility not the Academy’s (T 12/04/13 p.94, l.3).
·Mr Salman didn’t direct him to ask her that, but thought that Mr Boyaci would ask her and that he couldn’t recall if he told Ms Mohamoud the same thing he told Mr Boyaci.
·It is not correct that Ms Ali was “employed as a casual because of health problems” (T 12/04/13 p.99, l.46).
·Ms Ali was employed as a casual “because she didn’t sign any contract” (T 12/04/13p.102, l.23).
·“She was employed…she was paid…” as a casual (T 12/04/13 p.103, l.7).
·“If we know the casual is ill, we don’t employ them” (T 12/04/13 p.105, l.1).
·“Ms Ali subsequently provided the Academy with a medical assessment… dated 26 October 2010, in support of her application for leave” (T 12/04/13 p.110, l.41).
The Evidence of Mr Salim Boyaci
Affidavit of Mr Boyaci filed 9 November 2012
The Court refers to the following evidence of Mr Boyaci in his Affidavit filed 9 November 2012:
·“I am the Personnel/Office manager” of the Academy (Ibid [1]).
·“Ms Ali was replacing Ms Hanan Ahmed during Term 4 of 2011, due to Ms Ahmed replacing Ms Nagat Ali’s role, who was on long service leave in Term 4” (Ibid [7]).
·Contracts had been drawn up for Ms Ali and two other replacement teachers for Ms Nagat Ali in Term 4.
·“One of the things I did on 15 November 2011 was to try to organise to have Ms Ali sign her contract” (Ibid [10]).
·On 18 November 2011 he told Ms Ali that “the Academy could not force her to sign the contract… and that she was at work illegally”
·“My view at that time was that in order to be legally at work and have valid employment, each teacher had to have a signed contract for the position…. as far as I was aware, everyone had a contract and everyone signed their contract” (Ibid [14])
·“No part of my reasons for saying these things was because of Ms Ali’s:
(a)ability to make an inquiry or complaint about her employment;
(b)entitlement to the benefit of the Award;
(c)conversation with Ms Mohamoud on 12 October 2011 (as set out in paragraph 31 of the Ali Affidavit, or otherwise);
(d)conversation with the primary school campus receptionist on 15 November 2011 (as set out in paragraph 44 of the Ali Affidavit, or otherwise);
(e)email to me dated 16 November 2011 (exhibited as “MA19” to the Ali Affidavit); or
(f)carpal tunnel injury” (Ibid [15]).
·“My conversation with Ms Ali on 18 November 2011, and the things I said in it, had nothing at all to do with complaints or an ability to make complaints… Ms Ali’s entitlement under an award…, Ms Ali’s email to me on 16 November 2011 or any injury she had” (Ibid [17]).
·On 22 November 2011 he sat down with Ms Ali for her to sign her contact.
·“Ms Ali wanted to make changes to the contract, which I was not authorised to do” and so they went to see Mr Salman.
·“Mr Salman refused to make any changes to the contract for Ms Ali. Ms Ali then left the office and made a phone call to someone….. When Ms Ali finished on the phone, Ms Ali said to me that she would organise a medical clearance for 2012 like Mr Salman had asked. I asked whether she wanted to sign the contract and Ms Ali said no, that it was too much hassle, and that she would just continue with her leave without pay until Term 1 of 2012” (Ibid [22]
·“On 30 November 2011, I signed and arranged to be sent a letter to Ms Ali about her return to work in 2012 and her required medical clearance (as exhibited at “MA27” to the Ali Affidavit)” (Ibid [25]).
·On 31 January 2012 Ms Ali came to the Academy. “Mr Salman told me to organise for Ms Ali to provide a letter to the Academy, which said that she understood her medical restrictions as contained in her Doctor’s letter, that she would comply with those medical restrictions and the she would inform the Academy if she could not perform her duties having regard to those restrictions. Mr Salman said that I should tell Ms Ali that until she provided such a letter, she would not be permitted to resume work in her ongoing position in 2012” (Ibid [28]).
·That he “was also aware of another example at the Academy where a teacher (Ms Ilsi Joseph) with hand issues had to retire because she did not have any restrictions imposed on her because of her condition” (Ibid [29]).
·“Mr Salman said that he did not want Ms Ali to aggravate her condition and blame the school, and that if she did, the Academy needed something in writing from her recognising that it was her responsibility (and not the Academy’s). Mr Salman did not specifically ask me to pass on this message or reasoning to Ms Ali…, I thought I would tell her this anyway” (Ibid [30]).
·“I did on two occasions leave the room for a short period, and I did attempt to create the impression in Ms Ali that I was going to see Mr Salman…” (Ibid [32]).
·“… it was clear to me that she wanted to hear everything from Mr Salman…. Hence, I wanted to create the impression in Ms Ali that what I was saying was coming directly from Mr Salman…” (Ibid [33].
·“I did say that Ms Ali had to include in her letter that she would not hold the school responsible if she aggravated her injury” (Ibid [35]).
·“I did not twice refuse to put in writing what the Academy was asking of Ms Ali. Ms Ali twice said that she wanted the Academy to write down what it wanted her to write (page 5 and pages 6-7 of “MA33”), and I tried to explain to her verbally what the Academy wanted” (Ibid [37]).
·“I did not propose demoting Ms Ali to a teacher’s aide position…. I cannot promote or demote anyone, or otherwise offer or appoint or move any employee anywhere….I was concerned about Ms Ali’s ability to perform her role as a teacher with the restrictions her Doctor had put in her letter…” (Ibid [40]).
·That nothing he said to Ms Ali on 31 January 2012 was because of matters listed in [15] as follows:
(a)ability to make an inquiry or complaint about her employment;
(b)entitlement to the benefit of the Award;
(c)conversation with Ms Mohamoud on 12 October 2011 (as set out in paragraph 31 of the Ali Affidavit, or otherwise);
(d)conversation with the primary school campus receptionist on 15 November 2011 (as set out in paragraph 44 of the Ali Affidavit, or otherwise);
(e)email to me dated 16 November 2011 (exhibited as “MA19” to the Ali Affidavit); or
(f)carpal tunnel injury.
And listed at [42] including:
(a)any of the matters listed in paragraph 15 above (including because of my lack of knowledge of several of them, as explained in paragraph 16 above);
(b)Ms Ali’s request on 18 November 2011 to get advice about the contract for Term 4 in 2011 and to obtain a copy (as set out in paragraph 47(c) of the Ali Affidavit, or otherwise);
(c)the content (or existence) of Ms Ali’s email to Mr Salman on 18 November 2011 (exhibited as “MA20” to the Ali Affidavit);
(d)the content (or existence) of Ms Ali’s email to Mr Salman on 21 November 2011 (exhibited as “MA22” to the Ali Affidavit);
(e)Ms Ali’s request to take a copy of her contract out of the office in a meeting on 22 November 2011 which I did not attend (as set out in paragraph 56(b) of, or as contained in exhibit “MA25”to, the Ali Affidavit);
(f)Ms Ali’s request (to Mr Salman) to make some changes to the contract in the meeting with Mr Salman and I on 22 November 2011 (as set out in paragraph 59 of, or as contained in exhibit “MA25” to, the Ali Affidavit);
(g)Ms Ali’s refusal to sign the contract for the position in Term 4 of 2011;
(h)the content (or existence) of any complaint or inquiry Ms Ali made to her Union regarding her dispute with the Academy over her contract, which ended up in (Fair Work Australia);
(i)the content (or existence) of Ms Ali’s letter (from her Union) to the Academy (addressed to Mr Salman) on 6 December 2011 (exhibited as “DM1” to the Matson Affidavit);
(j)the content (or existence) of Ms Ali’s claim for workers compensation benefits dated 7 December 2011 (exhibited as “MA30” to the Ali Affidavit);
(k)the content (or existence) of the Union’s dispute application filed in (Fair Work Australia) on 12 December 2011 (exhibited as “DM3” to the Matson Affidavit);
(l)Ms Ali’s participation in, or the nature or content of Ms Ali’s participation in, the proceedings commenced in (Fair Work Australia) by her Union (C2011/116); or
(m)Ms Ali’s supposed exercise of any workplace rights.
· “Further, no part of my reasons for saying what I said to Ms Ali on 31 January 2012, were to threaten, pressure, overbear, prevent or otherwise coerce Ms Ali not to make any claim for worker’s compensation benefits, or pursue any other rights she may have under the Accident Compensation Act 1985 (Vic.), whether in relation to carpal tunnel syndrome or any other workplace injury” (Ibid [45]).
·“As far as I was (and am) concerned, the Academy cannot do anything about WorkCover claims from employees. As far as I understand things, any employee can make a WorkCover application, and there is nothing the Academy can do to stop or prevent claims being made. Consequently, I would not do anything to attempt to prevent an employee making such a claim” (Ibid [46]).
The Oral Evidence of Mr Boyaci on 12 April 2013
Mr Boyaci gave oral evidence at the hearing, that it wasn’t his intention to convey to Ms Ali that she should not make a WorkCover claim (T 12/04/13 p.145, l.25).
Cross Examination by Mr White - 24 April 2013
During cross examination, Mr Boyaci gave the following evidence:
·That he left the room indicating to Ms Ali that he was going to speak to Mr Salman but did not do so. He did that to create an impression (T 24/04/2013 p.234, l.41).
·That it was true he “lied and deceived Ms Ali” (T 24/04/2013 p.235, l.35).
·Mr Salman told him he wanted something in writing from Ms Ali that she wouldn’t hold the Academy responsible if she suffered an aggravation, but Mr Salman never asked him to put that to Ms Ali (T 24/04/2013 p.272, l.40).
Applicant’s Written Outline of Submissions filed 14 May 2013
On p.22 Mr White raised reasons for the Court not to accept the evidence of Mr Salman and Mr Boyaci. These reasons are set out below, with the Courts comments about them.
As to Mr Salman:
As to “whether (he) can delegate powers to appoint and terminate staff”, Mr Salman changed his answers.
As to “whether all teachers must have a signed written contract”, Mr Salman changed his answers.
The Court notes that Mr Salman stated that all staff, other than casuals had a letter of appointment, but once they have been employed they do not need to sign another contract to become permanent.
As to “whether the asserted period of “casual employment was because of Ms Ali’s injury”, Mr Salman said that the period of casual employment was because of Ms Ali’s injury.
The Court notes:
i)Ms Ali was a permanent employee;
ii)she took 12 months LWOP;
iii)she enquired about getting some work in the interim;
iv)she was asked if she would return late in 2011 to fill a vacancy to the end of Term 4, 2011. That was for a fixed term of employment for which she needed to sign a new concurrent contract. As she would not sign a new contract she would only be employed as a casual [Modern Award cl.10.2(a)].
Therefore the casual employment was not because Ms Ali had been away with carpal tunnel syndrome; it was to fill a vacancy for a fixed term.
As to “whether (he) has power to decide leave matters”, he changed his view.
The Court notes that there was some confusion when Mr Salman was questioned about it. The Court did not form the view that Mr Salman was being dishonest.
The Court finds the same applies as to “whether the rules prescribe that the Board must determine leave matters”.
As to “where Ms Ali was required to sign the contract in the first weeks of Term 4, 2011”, Mr Salman expected Ms Ali to sign a new contract in the first weeks of Term 4, 2011.
As to “whether Ms Ali had been certified as unfit to work”, Mr Salman gave evidence that Ms Ali was unfit to work when she applied for LWOP. In the Court’s opinion it does not matter whether he reached that view through discussion or because of a medical certificate.
As to “whether (he) knew of the carpal tunnel injury during Term 4 of 2010” Mr Salman was unclear whether a medical assessment of carpal tunnel syndrome was provided on 26 October 2010 or at the end of the LWOP.
As to “whether (he) received the letter from Ms Ali (MA17) Mr Salman stated he had not seen, and that he was unaware if he had seen, a letter from Ms Ali.
As to “whether (he) wanted a letter from Ms Ali absolving the Academy from responsibility” Mr Salman wanted the letter.
“Whether Mr Salman told Mr Boyaci that the academy wanted a letter from Ms Ali accepting responsibility and/or directed Mr Boyaci to try to obtain one”.
The Court notes that the answers given are reconcilable.
As to “whether Mr Salman became annoyed” (when Ms Ali would not sign a contract). Mr Salman said he was patient but then lost patience.
His answers are reconcilable.
As to “whether Mr Salman told Ms Ali that she was casual because of her ‘health problems’”, he consistently answered that he did not.
As to “whether Mr Salman sees a distinction between refusal to sign a contract and “health reasons”, his responses were a “big difference”, but they can be taken together.
This shows no dishonesty.
As to “whether Mr Salman was aware of the meeting between Mr Boyaci and Ms Ali on the morning of 31 January 2012”, Mr Salman answered that he could not recall whether his discussion was before 31 January, on the morning of 31 January 2012 (or perhaps both)
The Court finds no attempt to mislead in the answers given.
As to “the reason for Ms Ali attending on 31 January 2012”, Mr Salman said that “she wished, I think, to present a Certificate to him or whatever”. He neither denied nor affirmed that he arranged the meeting.
The Court found Mr Salman to be a responsive witness. His recall of events from October 2010 to January 2012 was as good as can be expected, given the elapsed time.
The Court has not identified any attempt to be misleading. Any inconsistencies may have arisen from a desire to be clear about the exact words used in discussion, for instance Mr Salman did not “tell” Mr Boyaci to ask for a letter absolving the Academy (T p.116, l.39).
The Court found Mr Salman to be an honest witness and finds no reason to reject his evidence, that no part of his actions in relation to Ms Ali was because of Ali’s:
a)ability to make an inquiry or a complaint about her employment;
b)entitlement to the benefit of an award; or
c)carpal tunnel syndrome.
The Court finds that on the balance of probabilities, the actions and reasons for them are as stated by Mr Salman.
As to Mr Boyaci
It is alleged Mr Boyaci failed “to concede when appropriate” (T 24/04/2013 pp.230 -235). It is alleged that Mr Boyaci failed to concede he is a “liar”. Mr Boyaci stated that he attempted by his actions to mislead Ms Ali into thinking that he was consulting with Mr Salman. He stated that “to create an impression, that’s why I left the room, not to lie” (T 24/04/2013 p.231, l.45).
The Court notes that to “lie” is “to make a false statement with intent to deceive”: Shorter Oxford Dictionary. Mr Boyaci had grounds to resist admitting the he told a lie. He had not lied.
It is alleged that Mr Boyaci gave “evasive answers”. The Court notes that the answers showed uncertainty, which is understandable about events in late 2011 and early 2012.
As to “whether Mr Salman told Mr Boyaci that the academy wanted a letter from Ms Ali accepting responsibility and/or directed Mr Boyaci to try to obtain one”, a complaint is made about Mr Boyaci’s answers.
Overall, his answers are that Mr Salman did not direct him in those words, but that Mr Boyaci decided to tell Ms Ali and explain the Academy’s position. The Court finds no inconsistencies or attempts to mislead the Court.
As to “whether Mr Salman was aware of the meeting between Mr Boyaci and Ms Ali on 31 January 2012, and whether Mr Boyaci spoke to Mr Salman on 31 January 2012”, there is criticism of Mr Boyaci’s response.
The Court finds the answers given to be consistent and not misleading.
As to “whether Mr Salman exchanged pleasantries with Ms Ali”, there is criticism about Mr Boyaci’s response.
Mr Boyaci thought Mr Salman “probably did” or “yes, that’s right”. The Court finds no prevarication or attempt to mislead.
As to “Did Mr Boyaci walk past Mr Salman’s office”, criticism is made about Mr Boyaci’s response. At first he answered “no”, then “if you go anywhere, you walk past his office” and then “yes”.
It appears to the Court that Mr Boyaci on reflection realised that he must have walked past the office.
The question is asked “whether the refusal to sign the contract was part of the conduct in late 2001 (sic ‘2011’). Mr Boyaci refers to it at para.33 of his Affidavit. At T 24/04/2013 p.262, l.24 he answered that it was. At T p.276, l.30 Mr Boyaci answered that Ms Ali’s conduct in late 2011 was wanting to take the contract out of the office and make changes.
The Court finds no inconsistency in those answers.
As to “whether, in 2011, Mr Salman asked for a letter to the effect that Ms Ali would not hold the school responsible”, Mr Boyaci answered “yes, quite sure from his memory… from what I remember that was discussed… I can’t really remember. But I know there was an issue of letters”.
Clearly Mr Boyaci was attempting to be responsive but had no clear recollection.
The Court found Mr Boyaci also to be a responsive witness. His recall of events was as good as can be expected, given the elapsed time. The Court has not identified any attempt to mislead.
The Court finds no reason to reject his evidence that no part of his actions in relation to Ms Ali was because of Ms Ali’s:
a)ability to make any enquiry or complaint about her employment;
b)entitlement to the benefits of an award; or
c)carpal tunnel syndrome.
The Court finds that on the balance of probabilities, the reasons for the actions are as stated by Mr Salman and Mr Boyaci.
The Evidence of Ms Leyla Mohamoud
Affidavit of Ms Mohamoud filed 9 November 2012
The Court refers to the following evidence of Ms Mohamoud:
·“I am the head of King Khalid Coburg Campus (primary school campus)” ([1]).
·“In or about March 2011, Ms Ali approached me at the primary school campus… and expressed an interest in doing some casual relief teaching (“CRT”)” (Ibid [10]).
·“Ms Ali performed some CRT work for the Academy on 29 March 2011 and 24 April 2011” and on “15 August and 23 August 2011” (Ibid [12]-[13])
·“On 23 August 2011 Ms Ali spoke to me and told me that she was interested in any short-term work for the remainder of 2011 if it became available, and specifically mentioned Term 4” (Ibid [14]).
·Ms Nagat Ali then informed the Academy that she would be taking long service leave for the duration of Term 4 in 2011.
·“I contacted Ms Ali to see whether she was interested in replacing Ms Nagat…. Ms Ali said that she could not work a full-time load…, and that she could only really work the same three days she previously worked, being Monday, Wednesday and Friday” (Ibid [17]).
·That she never told Ms Ali that she was returning early from her unpaid leave, “it was not something I ever said, suggested or even raised with her” (Ibid [26]).
·“On the morning of 12 October 2011, I spoke to Ms Ali and told her that I had spoken to Mr Salman, who told me that he wanted her (Ms Ali) to obtain a letter from her treating Doctor confirming full capacity for her duties, and that he wanted her to go to the secondary school campus to sign her contract” (Ibid [37]).
·“…at no time had I ever requested Ms Ali to return early from her leave of absence and resume her normal position” (Ibid [42]).
·“I did not tell Ms Ali that the letter has to say that she would not hold the school responsible for anything that happened to her hands…” (Ibid [45]).
·That she did not tell Ms Ali that she was shocked about “how determined Mr Salman was” (Ibid [48])
·That she did not tell Ms Ali that she would have to sign a new contract and she never said to Mr Salman that they were bringing Ms Ali back early from her leave into her old position.
The Oral Evidence of Ms Leyla Mohamoud – 12 April 2013
Ms Mohamoud gave the following evidence at the hearing on 12 April 2013:
·That she understood that Ms Ali said she was shortening her leave and coming back to her old position, but that could have been a mistake on her part. Ms Mohamoud didn’t recall telling Ms Ali she was coming back to her old position because that’s not her position to say it (T 12/04/2013 p.132, l.30; p.134, l.5)
·“Well, if I cannot recall it means it didn’t happen” (T 12/04/2013 p.134, l.15).
·That Mr Salman did not say to her that he wanted a letter from Ms Ali saying that she would not hold the Academy responsible for any aggravation to her condition (T 12/04/2013 p.137, l.14).
The Court finds no evidence that it was agreed that Ms Ali was returning to her old permanent position in Term 4, 2011. The Court finds no reason to not accept the evidence of Ms Mohamoud.
Conclusions from the evidence
The evidence establishes that the actions taken by the respondents in relation to Ms Ali were not taken for a prohibited reason.
The Court finds that the reasons for the respondent doing what they did in relation to Ms Ali were:
a)To partly fill a fixed term vacancy at the Academy in Term 4, 2011, and
b)To protect the Academy from liability should Ms Ali not comply with appropriate medical restrictions, and thereby exacerbate her injury and make a claim under the AC Act.
Those are not “prohibited reasons”.
Coercion within s.343 of the FWA
It is alleged further in the Points of Claim that:
·Action (a) – Mr Boyaci stating that Ms Ali “was not permitted to return to work” until she provided a letter absolving the school from liability from any consequence arising from her injury [Point 52(c)];
·Action (b) – That Mr Boyaci refusing to put the wording required into writing [Point 53];
·Action (c) – That Mr Boyaci inferring that Ms Ali could not return to teaching duties while subject to the restrictions [Point 54]; and
·Action (d) – That Mr Boyaci proposing to demote Ms Ali to a teachers aide [Point 55];
were threats for her not to exercise workplace rights under the AC Act.
It is alleged that the above actions considered together were a threat to take action to coerce Ms Ali not to make a claim under that Act, and therefore a breach of s.343 of the FWA.
The Court finds that:
·Action (a) was not action taken to coerce Ms Ali to exercise or not exercise a workplace right. It was action taken to obtain a letter absolving the Academy from liability should a claim be made;
·Action (b) was not action taken to coerce Ms Ali to exercise or not exercise a workplace right;
·Action (c) was not action taken to coerce Ms Ali to exercise or not exercise a workplace right;
·Action (d) was not action taken to coerce Ms Ali to exercise or not exercise a workplace right.
It is alleged that the above actions taken together were taken to coerce Ms Ali not to make a claim under the FWA. Absolving the Academy from liability, not putting something in writing and the other alleged actions, cannot be characterised as actions taken with the intent to coerce Ms Ali to exercise or not exercise a workplace right. The claim of coercion is dismissed.
The Court finds that on 22 November 2011, Ms Ali told Mr Boyaci:
·That she would not sign the contract;
·That she was going home to continue her LWOP;
·That she would provide a medical clearance for the following year; and
·That she would continue her LWOP and come back at the start of Term 1, 2012 (Affidavit of Mr Boyaci filed 9 November 2012 at [22]).
Mr Boyaci did not threaten Ms Ali to “either sign or go home”.
In any event, Ms Ali was on LWOP and had no workplace right to attend for work at that time. Therefore there was no coercion to exercise or not exercise a workplace right.
Discrimination pursuant to s.351 of the FWA
By s.351 an employer must not take adverse action against an employee because of the person’s “… physical disability…”.
The Court finds that the AIAEI did not put Ms Ali on as a casual because of her injury – it employed her as a casual because she would not sign a contract which the Academy believed was a requirement for permanent, or fixed term employment. The Court refers to cl.10.2 of the Modern Award (Exhibit ‘A’) and the requirement for a “letter of appointment”. No adverse action was taken because of Ms Ali’s physical disability. The Academy offered Ms Ali a fixed term concurrent contract (post) but she would not sign the required contract. She was therefore put on casual employment.
The claim of discrimination is dismissed.
Breach of the Modern Award s.45 of the FWA
It is alleged that the respondent breached the Modern Award as follows:
·By making no salary payments to Ms Ali for the period 22 November 2011 to the conclusion of 2011 school year;
·By failing to make any superannuation contributions for that period;
·By failing to pay for annual leave and public holidays during that period; and
·By failing to pay annual leave loading for the period from 22 November 2011 until the end of the 2011 school year.
The Court finds that Ms Ali was on leave without pay for that period, other than when she worked as a casual. There was no breach of the Modern Award (post). That claim is dismissed.
Casual Employment
Mr Boyaci gave evidence that (from 19 November 2011) Ms Ali was employed and paid on a casual basis. (Affidavit of Mr Boyaci at [60] and T 12/04/13 p.103, l.7). Ms Mohamoud gave evidence that Ms Ali was employed on 29 March 2011, 24 April 2011, 15 August 2011 and 23 August 2011 as a casual (Affidavit of Ms Mohamoud sworn 9 November 2012 at [11] and [13]).
The Court accepts the submissions by Mr Follett (supra) that the applicant must show a person (here the AIAEI or the second respondent) took adverse action against the applicant. The relevant adverse action being that the AIAEI failed to pay the applicant for casual work performed by her. There is no reverse onus on whether the applicant was paid for casual work; Ms Ali has to produce evidence that she was not paid for such work. The Court finds no evidence that Ms Ali was not paid for work she performed as a casual. Exhibit ‘A2’ shows that there is no claim for unpaid casual work by Ms Ali.
As a casual she was not entitled to annual leave [s.86 of the FWA and the Modern Award –Exhibit A1 – cl.22(4)(b)].
Casual employees should have superannuation contributions paid by their employer if the employee earns more than $450.00 per month and is over 18 years old. [s.27 of the Superannuation Guarantee (Administration) Act 1992].
Clause 18 of the Modern Award refers to entitlements under Superannuation Guarantee Legislation. The applicant makes no claim under that legislation. There is no evidence that Ms Ali earned more than $450.00 per month as a casual. There is no basis for the claim of non payment of superannuation contributions. That claim is dismissed.
Section 45 of the FWA – Breach of Modern Award – Concurrent Employment
If Ms Ali returned to work from LWOP back to her permanent position and was ready, willing and able to work, she should have been entitled to be paid. However, she had taken 12 months LWOP from the beginning of 2011. Ms Ali contacted Ms Mohamoud in March 2011 and said she was interested in doing some casual relief temping (“CRT”) if any was available.
Ms Ali did some CRT on 29 March 2011, 24 April 2011 and 15 and 23 August 2011 (Evidence of Ms Mohamoud). On 23 August 2011, Ms Ali told Ms Mohamoud that she was interested in doing some short term work for the remainder of 2011, specifically for the duration of Term 4, 2011. Ms Mohamoud did not request Ms Ali to return early from her LWOP and resume her normal position. Returning to work did not cancel her existing contract of employment; she entered into concurrent employment as a casual.
Concurrent employment can be employment on several personal assignments between an employer and an employee. The assignments can run simultaneously. It allows employees to hold multiple positions with the same employer at the same time. There is nothing to prevent a permanent employee who is on LWOP entering into a contract for concurrent employment during that leave.
For instance concurrent employment is provided for in s.14 of the Long Service Leave (Commonwealth Employment) Act 1975, where periods of employment that are wholly or partly concurrent are not counted in ascertaining long service entitlements from the government service. However, the existence of concurrent employment is recognised. Section 14(4) recognises specifically a person “being employed in a qualifying service in a full time capacity” and employment “in a part-time capacity that is or was concurrent with that first-mentioned employment….”
There was to be no variation of the permanent contract of Ms Ali. No workplace right or entitlement was to be taken away from Ms Ali – she was to return to work at the end of her LWOP – which she did on
1 February 2012. By not signing the contract for concurrent fixed term employment she could only be employed on a casual basis as a written letter of appointment was required for other employment.
As a result of working as a casual in concurrent employment, Ms Ali was not working under her contract for permanent employment. She was therefore not entitled to be paid under that contact.
She had no entitlement to accrue annual leave, or to an annual leave loading; there is no proof of earnings sufficient to qualify her for superannuation contributions. As a casual she was not entitled to public holidays. A breach of the Modern Award has not been established.
The claim under s.45 of the FWA is dismissed.
The request to sign a new contract
Ms Ali has been employed on a permanent part time contract for 3 days per week since she commenced her employment with the Academy on 7 August 2006.
On 26 October 2010 it was agreed that she take 12 months LWOP to facilitate her recovery from carpal tunnel syndrome.
That did not bring her employment to an end, but it did vary it so that she was not required to attend at work during those 12 months. During that time, a fixed term vacancy arose for Term 4, 2011. Ms Ali was on LWOP. After being contacted by her, the Academy offered Ms Ali an additional contract to work on a fixed term basis during the time that she was not otherwise to attend for work. That was not a variation of her permanent part time contract. It was to be a new concurrent contract.
There is no prohibition on concurrent contracts of employment that do not require the employee to work at two places at the same time. For instance, an employee can have a contract to work for one employer from 9am to 12pm each day, and a concurrent contract with the same employer from 2pm to 5pm on the same days.
Here, Ms Ali was not required to work under her permanent contract for 12 months, and was offered fixed term employment during Term 4, 2011. Those provisions would not have been inconsistent.
Requiring Evidence of Medical Fitness for work
It is clear that the AIAEI required Ms Ali to provide medical evidence of her fitness for work in order to commence fixed term work in Term 4, 2011, and before she recommenced work on 1 February 2012.
The Academy’s witnesses say that it did that to ensure that, as far as possible, Ms Ali’s condition did not deteriorate as a result of working. Previously, an employee had returned to work with the Academy without medical restrictions; she aggravated her wrist injury and was forced to retire.
It is not clear, what improper motive Ms Ali alleges, that the Academy had in requiring that medical evidence. It was not to prevent her from exercising a workplace right.
There is no detail of what, if any, workplace right the AIAEI wanted to prevent Ms Ali exercising.
It was not to prevent Ms Ali returning to work. The AIAEI was negotiating with Ms Ali for her to return to fill a fixed term vacancy created by another employee being on LSL in Term 4, 2011. It would be perverse for the Academy to try to prevent Ms Ali working, when it was endeavouring to have her fill a fixed term vacancy. Also the AIAEI wanted Ms Ali to resume her work on 1 February 2012, which she did.
It was not to prevent her from making a claim for workers compensation.
It appears from the evidence that the AIAEI or its employees did not want to cause any deterioration to Ms Ali’s condition as a result of her working for it. That was to avoid liability under the AC Act. It was not to prevent Ms Ali making a claim for compensation. It was to avoid causing a compensatable injury to Ms Ali. That is not a prohibited reason. The action was not taken to prevent Ms Ali exercising a right to make a claim for compensation. It was taken to prevent the bases for a claim arising, and to provide a defence if such a claim was made.
The Demand in January 2012
In January 2012 the AIAEI demanded that, before Ms Ali resume her duties in her permanent part time position, she present to it:
a)medical evidence of her fitness for duty;
b)details of any restrictions required; and
c)an undertaking that she would absolve the AIAEI from any liability for any injury that her work may cause her.
Again, the Court finds that the demand for medical information was not made for a prohibited reason. It was made to prevent a compensatable injury to Ms Ali arising, and to provide a defence if she made a claim.
The action was not taken to prevent Ms Ali making a claim. It was taken so that if she made a claim, it could be raised in defence that Ms Ali had not complied with medical restrictions and had absolved the AIAEI of liability. That is not prevention of Ms Ali exercising a workplace right – it is providing a defence to such a claim should it arise.
The Court finds that this demand was made to prevent further injuries to Ms Ali and so that the Academy could raise a defence if a claim was made under the AC Act. Those reasons are not prohibited.
Accessorial Liability
Section 550 of the FWA provides:
Involvement in contravention treated in same way as actual contravention
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a)has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d)has conspired with others to effect the contravention.
Point 90 of Points of Claim alleges that Mr Salman was involved in each of the Contraventions of the FWA alleged against the AIAEI, and therefore he should be taken to have contravened the provisions.
It is alleged that Mr Salman “aided, abetted, counselled or procured the contraventions” of ss.45, 340, 343 and 351 of the FWA “or was knowingly concerned” in them (ss.45, 340, 343 and 351 FWA); “or conspired” in them.
Mr Salman’s liability can only arise if the AIAEI is found to have contravened the relevant provisions. The Court finds that the AIAEI did not contravene any of the provisions as alleged for a prohibited reason. Mr Salman therefore was not involved or concerned in any contraventions of the relevant provisions of the FWA.
As the Court finds that as there was not adverse action taken against Ms Ali, there is no basis for accessorial liability of the second respondent. That claim is dismissed.
Conduct of Ms Mohamoud, Mr Boyaci and Mr Salman
It is alleged that the conduct of Ms Mohamoud, Mr Boyaci and Mr Salman was engaged in on behalf of the AIAEI and is taken to be conduct of the AIAEI (s.793 of the FWA).
It is alleged also that Mr Boyaci’s conduct was engaged in on behalf of the AIAEI and is to be taken as conduct of the AIAEI (s.793 of the FWA).
Further, it is alleged that Mr Salman’s conduct was engaged in on behalf of the AIAEI and is taken to be conduct of the AIAEI (s.793 of the FWA).
As the Court has found that there was not actionable adverse action taken against Ms Ali, the above contentions are dismissed.
Conclusions
The respondents accept that there was threatened adverse action (T 28/06/13 p.15, l.14) that Ms Ali was not to return to her work unless she undertook not to hold the school responsible for causing further injury. As decided (supra) that action was taken to prevent exacerbating her injury and to raise a defence for the Academy if Ms Ali made a claim under the AC Act. It was not taken to prevent her making a claim. It was therefore not taken for a prohibited reason.
None of the actions taken by the AIAEI or its agents, or servants, or by the second respondent were taken for a prohibited reason, or for reasons that include a prohibited reason.
There was no discrimination against Ms Ali because of her physical disability.
There was no breach of the Modern Award in relation to Ms Ali.
The Court finds that the reason the Academy wanted Ms Ali to sign a new contract was for operational reasons to fill a fixed short term vacancy in Term 4, 2011.
Ms Ali’s carpal tunnel injury or her right to make a claim under the AC Act were not the reason or part of the reason for requiring her to enter into a new contract for fixed term employment.
The Academy asked Ms Ali to sign a new contract so that the provisions of her new contract showed that she was employed for a fixed term until she resumed her ongoing permanent part time position on 1 February 2012.
Findings
Neither Ms Ali’s carpel tunnel injury nor her right to make a claim for compensation, were the reason or part of the reason for requesting her to enter a new contract of employment. The reason the AIAEI wanted Ms Ali to sign a new contract for fixed term employment was for operational reasons to fill a short fixed–term vacancy.
The AIAEI asked Ms Ali to sign a new contract so that the provisions of her contract reflected her temporary fixed term employment until she resumed her old permanent part-time position at the commencement of 2012.
Ms Ali was not injured in her employment because of her failure to sign a contract for fixed term employment.
All claims are dismissed.
The Court makes the orders as set out at the beginning of this judgment.
I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of Judge Turner
Associate:
Date: 12 September 2013
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