Jain v Special Broadcasting Service Corporation

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Federal Circuit and Family Court of Australia

(DIVISION 2)

Jain v Special Broadcasting Service Corporation [2022] FedCFamC2G 814

File number: SYG 909 of 2020
Judgment of: JUDGE CAMERON
Date of judgment: 6 October 2022
Catchwords:

INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – workplace right – whether a worker’s duty under the Work Health and Safety Act 2011 (NSW) to take reasonable care for his or her own health and safety while at work was a role or responsibility under a workplace law – meaning of “at work”

INDUSTRIAL LAW – discrimination because of disability – meaning of “disability” – distinction may be drawn between adverse action taken because of a disability and its manifestations, and adverse action taken because of the consequences of a disability and its manifestations – inherent requirements of the position

WORDS AND PHRASES – at work, disability   
Legislation:

Disability Discrimination Act 1992 (Cth) s 4

Fair Work Act 2009 (Cth) ss 340, 341, 342, 351

Occupational Health and Safety Act 2004 (Vic) s 25

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 19

Special Broadcasting Service Act 1991 (Cth) s 5

Work Health and Safety Act 2011 (Cth) ss 7, 28, 29

Work Health and Safety Act 2011 (NSW) ss 7, 28, 29
Cases cited:

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) (2013) 216 FCR 70

Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd (2013) 234 IR 190

Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150

Hodkinson v Commonwealth (2011) 248 FLR 409

Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754

Railpro Services v Flavel (2015) 242 FCR 424

Shizas v Commissioner of Police (2017) 268 IR 71

Stephens v Australian Postal Corporation [2011] FMCA 448

Western Union Business Solutions (Australia) Pty Ltd v Robinson (2019) 272 FCR 547

Yu v ACT Education Directorate [2022] FCAFC 110
Division: Fair Work Division
Number of paragraphs: 138
Date of last submissions: 19 August 2021
Dates of hearing: 22-24 June 2021
Place: Sydney
The Applicant: The Applicant appeared in person by video-link
Counsel for the Respondent: Ms P. Bindon
Solicitors for the Respondent: Mills Oakley
Table of Corrections
8 November 2022 In paragraph 5, “September 2017” has been replaced with “October 2018”.
8 November 2022 In paragraph 25, “10 December 2010” has been corrected to “10 December 2019”.

ORDERS

SYG 909 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

PALLAVI JAIN

Applicant
AND:

SPECIAL BROADCASTING SERVICE CORPORATION ABN 91 314 398 574

Respondent

order made by:

JUDGE CAMERON

DATE OF ORDER:

6 October 2022

THE COURT ORDERS THAT:

1.The application be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal…

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Details
Case
[2022] FedCFamC2G 814
Decision Date

CaseChat Overview and Summary

The case of Jain v Special Broadcasting Service Corporation involved a dispute between Pallavi Jain, a former employee of the Special Broadcasting Service (SBS), and the corporation itself. Ms Jain alleged that she was dismissed by SBS for exercising her workplace rights under the Work Health and Safety Act 2011 (Cth) and the Safety, Rehabilitation and Compensation Act 1988 (Cth). Specifically, she claimed that she was dismissed for being absent from work due to adverse health consequences arising from her reporting line to Kumud Merani, her former executive producer. The matter was heard in the Fair Work Commission.

The central legal issue in this case was whether Ms Jain's dismissal constituted "adverse action" as defined in the Fair Work Act 2009 (Cth). The Fair Work Act prohibits adverse action against an employee for exercising a workplace right, which includes the right to take reasonable care for one's health and safety under the Work Health and Safety Act. Ms Jain argued that her absence from work due to health issues related to her working relationship with Ms Merani constituted the exercise of her workplace right under the Work Health and Safety Act. SBS, on the other hand, contended that Ms Jain was not "at work" when she was absent and thus her absence did not amount to the exercise of a workplace right.

The Fair Work Commission found that Ms Jain had indeed suffered from the aggravation of an anxiety disorder, a fact largely undisputed by SBS. The Commission also accepted that Ms Jain had a workplace right under the Work Health and Safety Act to take reasonable care for her health and safety. However, the Commission held that Ms Jain's absence from work did not constitute the exercise of a workplace right because she was not "at work" during her absence. The Commission reasoned that the concept of being "at work" under the Work Health and Safety Act typically refers to being physically present and engaged in activities under the direction or supervision of the employer, which was not the case here.

Given this finding, the Commission concluded that Ms Jain's dismissal did not constitute adverse action within the meaning of the Fair Work Act, and thus her claim for unfair dismissal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 19 April 2021 the parties filed a statement of agreed facts in which the parties agreed on certain facts but many of them were background in nature and not significant to the issues to be decided.Background The proceeding arises out of a history of difficult relations between Ms Jain and Kumud Merani, the executive producer of the Hindi Language Team at SBS, to whom she reported. Ms Jain complained to SBS in 2015 that she had been bullied and harassed by Ms Merani, a complaint that an external investigator found was made out. A mediation between Ms Jain and Ms Merani was held on 13 October 2016 but failed to resolve their differences. Ms Jain subsequently made a Comcare claim in which she alleged that she suffered adjustment disorder arising out of her employment at SBS. She was on related compensation leave from 3 October 2016 until 7 September 2017, when Comcare decided to terminate compensation payments. Ms Jain appealed against that determination to the Administrative Appeals Tribunal (“AAT”). Ms Jain returned to work in December 2017. In October 2018 the AAT set aside Comcare’s 7 September 2017 decision to terminate compensation payments. On 1 November 2018 Ms Jain was told to be absent with pay while a return to work (“RTW”) plan was formulated with rehabilitation provider Carfi NSW. Ms Jain was placed on unpaid personal leave as from 23 January 2019, following which she lodged a claim for incapacity payments with Comcare which, following another AAT appeal, was successful. In about April 2019 Ms Jain relocated to India for financial reasons but continued to engage with Carfi NSW in respect of RTW planning. Ultimately, Ms Jain and Comcare were unable to reach agreement on a RTW plan and on 9 December 2019 SBS dismissed her. Medical experts concluded that Ms Jain suffered from, variously:(a)“chronic adjustment disorder (with mixed anxiety and depression)” – 19 December 2016; (b)no psychiatric disorder – 8 August 2017; or(c)“aggravation of anxiety disorder”, with her interactions with Ms Merani being a stressor contributing to the aggravation – 6 September 2018. In the period following her 2015 complaint, Ms Jain requested on more than one occasion that she no longer report to Ms Merani and that she report to someone else. As a result, on 29 June 2016 she was assigned to report to Renzo Colla, a program manager from a different team, who was to fill the role of “relationship, performance and support manager” and act as an intermediary between Ms Jain and Ms Merani. However, he was unsuccessful in enabling Ms Jain and Ms Merani to work together on an ongoing basis. Following a mediation on 4 October 2017 that unsuccessfully attempted to repair the working relationship between Ms Jain and Ms Merani, a RTW plan was agreed by which Ms Jain reported to Ms Merani under the supervision of Maurizio Pascucci, program manager ALC. The parties agreed that:1.46It was not possible to return the Applicant to her former role as [a senior producer] in the Hindi Language Team because of her inability to work with Ms Merani without jeopardising her health.1.47Consequently, the Applicant worked with the rehabilitation provider Carfi, as appointed by the Respondent, from October 2018 until August 2020, to find an alternative position for the Applicant within SBS or with another employer. With the assistance of the rehabilitation provider the Applicant applied, unsuccessfully, for 73 alternative roles.

Evidence

Evidence Before The Court

The SRC Act is concerned with rehabilitation from and compensation for injuries to employees of the Commonwealth and, relevantly, with the provision of rehabilitation services and of weekly payments in the event of impairment or incapacity to work. For the purposes of the SRC Act, the Commonwealth includes Commonwealth authorities which that Act defines as including bodies corporate incorporated for a public purpose by a law of the Commonwealth. SBS exists as a body corporate by virtue of s.5 of the Special Broadcasting Service Act 1991 (Cth). Applicant’s EvidencePallavi Jain Ms Jain deposed that she commenced employment with SBS as a senior producer on 15 April 2013. On 27 July 2014, she raised concerns with SBS about how she was being treated by Ms Merani and on 15 November 2015 she made a formal complaint of bullying and harassment against Ms Merani. An internal investigation found Ms Jain’s complaints were not substantiated. On 24 March 2016 the Media, Entertainment and Arts Alliance (“MEAA”) initiated a Fair Work Commission (“FWC”) dispute on her behalf, following which an external investigation was conducted by WorkDynamic Australia who found that Ms Merani had engaged in conduct that constituted bullying and harassment. On 28 July 2016, Ms Page, People and Culture Business Partner, advised that SBS did not consider a permanent reporting line change for Ms Jain was a viable solution and, in October 2016, arranged a mediation between SBS, Ms Jain and Ms Merani which was unsuccessful. A Comcare claim Ms Jain had made was accepted on 16 December 2016, during which process Dr Gertler, psychiatrist, diagnosed her with “adjustment disorder with anxious and depressed mood”. As a result, she was given compensation leave between 3 October 2016 and 7 September 2017. Compensation payments were made, terminated after a period, and later reinstated on 16 October 2018 following an AAT appeal and further expert medical evidence. Between December 2016 and October 2017 Ms Jain sought a change of reporting line on the basis that reporting to Ms Merani posed a risk to her health and safety. Between October 2017 and November 2017, the parties attended a series of mediations where a RTW plan was agreed by which she would report to Ms Merani under the supervision of Mr Pascucci. She returned to work in December 2017. From 1 October 2018 to 30 October 2018 Ms Jain was on annual leave. On 26 October 2018, (i.e. after the AAT appeal decision) she was informed by Ms Pitt that a new RTW plan would be have to be implemented in consultation with a rehabilitation provider, Carfi NSW, and that she was not to return to work on 1 November 2018, although SBS would continue to pay her her normal remuneration. In November 2018, Ms Jain began working with Carfi on a rehabilitation plan and on 10 January 2019 Mr Griffin told her that she would be placed on unpaid leave from 23 January 2019. In February 2019, Ms Jain filed a claim with Comcare for incapacity payments which was rejected on 14 March 2019. On 17 March 2020 the AAT set aside Comcare’s decision and determined that Ms Jain was entitled to compensation for incapacity.

Decision

Reasons for decision

Ms Pitt deposed that on 6 September 2018 Dr Walker undertook a desktop review of Dr Pham’s clinical notes and those of Ms Jain’s treating psychologist and advised that it was his opinion that Ms Jain did not have an adjustment disorder, but rather was suffering from intermittent aggravations of her pre-existing anxiety disorder, with her interactions with Ms Merani being a stressor contributing to the aggravation. Administrative Appeals Tribunal decisions regards Ms Jain Ms Pitt deposed that on 26 October 2018 she received a copy of Dr Walker’s report and after reading it was of the view that SBS could not continue to allow Ms Jain to work with Ms Merani, even with their limited contact. That same day she sent an email to Ms Jain regarding her Comcare claim having been accepted with a new diagnosis and proposed next steps in her rehabilitation. Attempts to assist Ms Jain to find alternative employment Ms Pitt deposed that on 9 October 2018 she made various enquiries to seek an alternative role for Ms Jain including approaching News and Current Affairs, advertising sales and other departments looking to fill translator roles. She also researched other government roles for Hindi language translators and continued to search even after Carfi became involved in the RTW plan. She also presented Ms Jain’s case anonymously to a Comcare Care Manager group she was involved with to see if any other Commonwealth agencies might be able to take her on under a trial arrangement but none was able to accommodate her. It was Ms Pitt’s evidence that Ms Jain was not interested in any of the roles suggested, particularly roles as an interpreter or translator. She deposed that she was aware that Ms Jain sought new roles allowing her to work independently, but was of the opinion they were not always appropriate to her experience. Ms Jain applied unsuccessfully for 73 roles while working with Carfi. Ms Pitt deposed that Ms Jain was in India in October 2018 while she was trying to find her alternate employment. Ms Jain advised that she would return to Australia on about 1 November 2018 but on 31 October 2018 provided a certificate from an Indian hospital saying she was unfit to return to work from 31 October 2018 to 5 November 2018. On 8 November 2018 Ms Jain emailed saying she had returned to Australia but had to delay her return to work because of health concerns. Ms Pitt deposed that on 13 November 2018 Mr Marques, the rehabilitation consultant from Carfi, met with Ms Jain for an “initial assessment” and sent Ms Pitt a copy of his report. Ms Pitt also received a Vocational Assessment Report from Mr Marques on 4 January 2019. According to Mr Marques, Ms Jain only agreed to seek journalist positions or roles such as television and radio presenter/producer, freelance writer, political analyst and media and communication officer. She refused to entertain the idea of taking up other roles for which she had transferrable skills, such as a translator or interpreter.

Ratio Decidendi

Legal Principle Established

SBS also submitted that reinstatement was not practical given that it would be futile. In that regard SBS referred to two newspaper articles in which Ms Jain had participated concerning Ms Jain’s dismissal and this proceeding which were published the day before the trial of this matter commenced. CONSIDERATIONBackgroundFactual preliminaries SBS’s written submissions disputed whether it had been proved in this proceeding that Ms Jain had suffered from the aggravation of an anxiety disorder. However, more relevantly, Ms Wicks and Ms O’Neil indicated that they had accepted that she did suffer from that condition. The other relevant facts were largely uncontroversial and so credibility is not generally an issue. I find that Ms O’Neil was the relevant decision maker. When she was dismissed in December 2019, Ms Jain had not performed work for SBS for over a year and, she agreed, she was not receiving compensation payments. Section 340 FW Act Section 340(1)(a) of the FW Act prohibits a person from taking “adverse action”, which is defined by s.342(1) of the FW Act to include dismissal, against another because they have exercised a workplace right. “Workplace right” is defined by s.341(1)(a) of the FW Act to include having the benefit of, or a role or responsibility under, a workplace law. The first limb of Ms Jain’s case was that she had been dismissed for exercising the workplace right and responsibility under s.28 of the WHS Act to take reasonable care for her health and safety by, in her case, being absent from work because of the adverse health consequences for her of reporting to Ms Merani. She also submitted that her absences while receiving compensation payments were the exercise of a workplace right under s.19 of the SRC Act. Statutes such as the WHS Act are workplace laws: AMWU v Visy at 86-87 [78], and s.28(a) of the WHS Act creates in persons working in a business or undertaking, a workplace right and responsibility to protect their own health and safety: Yu v ACT Education Directorate [2022] FCAFC 110 at [39]; AMWU v Visy at 95 [120], 97 [129]. Similarly to the Victorian Occupational Health and Safety Act considered in AMWU v Visy, the WHS Act imposes a responsibility on all persons working in a business or undertaking to exercise reasonable care in relation to health and safety, contravention of which attracts criminal liability and is punishable by significant penalties. Even so, the circumstances in which s.28(a) of the WHS Act will found a workplace right are not unlimited: Yu v ACT Education Directorate at [39]. For instance, the paragraph applies a reasonableness test and so conduct that does not meet that test will not amount to the exercise of a workplace right under the FW Act. Section 28(a) also only applies in circumstances where the person working in a business or undertaking is “at work”. SBS submitted that even if s.28(a) of the WHS Act could create a workplace right, a proposition it disagreed with, the paragraph did not do so in Ms Jain’s case because it did not apply unless she was “at work” and it could not be said that she had been “at work” when she had in fact been absent from work. Ms Jain argued that an employee is “at work” when engaged in activities at the direction, or under the supervision, of their employer and that she had been so engaged when “carrying out the rehabilitation process”, even if she was absent from work.