Kantor v Wisr Finance Pty Ltd

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Federal Circuit and Family Court of Australia

(DIVISION 2)

Kantor v WISR Finance Pty Ltd [2022] FedCFamC2G 672

File number: MLG 3706 of 2019
Judgment of: JUDGE FORBES
Date of judgment: 12 September 2022
Catchwords: FAIR WORK – adverse action – dismissal because of alleged exercise of workplace rights – whether complaints were complaints that the applicant was able to make – whether complaints an exercise of workplace right – employer’s reasons for dismissal – whether employers stated reasons determinative – consideration of all the evidence – whether presumption of prohibited reason rebutted – reverse onus not discharged by employer – applicant entitled to compensation
Legislation: Fair Work Act 2009 (Cth), s 340, 341, 342, 360, 361
Cases cited:

Alam v National Australia Bank [2021] FCAFC 178

BHP Coal v CFMEU (2014) 253 CLR 243
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
CFMEU v Endeavour Coal (2015) 231 FCR 150

Collison v Brighton Road Enterprises Pty Ltd (No 2) [2016] FCCA 1798

Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17

General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605

Hill v Compass Ten Pty Ltd [2012] FCA 761, (2012) 205 FCR 94

Ho v Ngo [2021] FedCCFamC2G 127

Kuhl v Zurich Financial Services Aust Ltd (2011) 276 ALR 375

The Environmental Group v Bowd, [2019] FCA 951

Wong v National Australia Bank [2021] FCA 671

Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99, (2005) 144 FCR 347
Division: Division 2 General Federal Law
Number of paragraphs: 340
Date of last submissions: 1 December 2021
Date of hearing: 3 - 4 November 2021 
Place: Melbourne
Counsel for the Applicant: Mr Miller
Solicitor for the Applicant: McDonald Murholme
Counsel for the Respondent: Mr Manos
Solicitor for the Respondent: Gilbert + Tobin

ORDERS

MLG 3706 of 2019

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

MICHELLE KANTOR

Applicant
AND:

WISR FINANCE PTY LTD

Respondent

order made by:

JUDGE FORBES

DATE OF ORDER:

12 sEPTEMBER 2022

THE COURT ORDERS THAT:

1.Within 7 days of the date of these reasons, the parties’ legal representatives are to confer with a view to bringing in orders which give effect to these reasons for judgment.

2.In the event that no agreement can be reached pursuant to Order 1 herein, each party is to provide the chambers of Judge Forbes with a proposed order.

3.The proceeding will be listed for directions and a further hearing on the question of penalties and costs (if any), on a date to be fixed.

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 Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of…

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Details
Case
[2022] FedCFamC2G 672
Decision Date

CaseChat Overview and Summary

The matter of Kantor v Wisr Finance Pty Ltd involved Ms Kantor, the applicant, suing Wisr Finance Pty Ltd, the respondent, for wrongful dismissal and breaches of the Fair Work Act 2009 (Cth). The case was heard and decided by the Federal Circuit and Family Court of Australia. The primary legal issues the court had to address were whether Ms Kantor's dismissal was wrongful, if there were breaches of the Fair Work Act, and what compensation, if any, Ms Kantor was entitled to receive.

The court found that the dismissal of Ms Kantor was wrongful as it was at least partly due to her exercise of workplace rights. Evidence suggested that the dismissal was not based on a considered assessment of Ms Kantor's suitability and competence but rather on an urgent decision driven by concerns about her conduct. The court held that Mr Nantes, the CEO, did not provide a consistent explanation for the dismissal and his evidence was inconsistent and sometimes rehearsed, indicating reliance on a prepared chronology of events. Ms Kantor, on the other hand, was deemed a determined and forceful witness, consistent with her conduct during her employment.

The court awarded Ms Kantor a declaration that the respondent breached section 340 of the Fair Work Act by dismissing her on 26 July 2019. The court also ordered compensation for economic and non-economic loss, with an amount of $7,000, equivalent to about one month's pay, deemed appropriate for the non-economic loss. Furthermore, the court allowed Ms Kantor to seek penalties for the breaches of the Fair Work Act. Any application for costs was to be made within 14 days, and the parties were to confer to bring in orders reflecting the court's reasons within 7 days. If no agreement was reached, each party was to provide proposed orders to the court for it to make the appropriate decisions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Having heard and considered all the evidence and the parties’ submissions, I have concluded that the applicant is entitled to a declaration and compensation for economic and non-economic loss. My reasons for so finding are set out below.Background The respondent Wisr Finance Pty Ltd (ACN 119 503 221) (Wisr) is engaged in the business of offering consumer lending services in the Australian market. Wisr is a digital-only finance provider and offers products such as unsecured personal loans and secured vehicle loans along with other non-lending services. Wisr is a 100% owned subsidiary of Wisr Limited, a publicly listed company on the Australian Stock Exchange. The parent company was established in 2014 and was initially named DirectMoney. On 25 March 2019 the applicant (Ms Kantor) commenced full-time employment with Wisr in the position of Business Development Manager pursuant to a written employment agreement made on 19 March 2019[1].[1] Kantor affidavit, annexure MK-1, CB 68-78 In the role of Business Development Manager (BDM) Ms Kantor primarily worked from home in Victoria. Her principal responsibilities included building relationships with brokers, meeting growth targets and attending and presenting at professional development days. Ms Kantor was one of a number of business development managers who performed similar work. Ms Kantor worked for approximately 45 hours per week and was paid a salary package of $90,000 per annum plus superannuation. Evidence at trial indicated that she could also earn commissions and qualify for a long-term incentive depending on her performance. Ms Kantor’s employment pursuant to the employment contract was subject to a probationary period of 6 months. Ms Kantor reported to Mr Peter Beaumont, the company’s Head of Growth. The Chief Operating Officer for the company was Mr Matthew Lu and Mr Andrew Goodwin was the Chief Financial Officer. These senior employees all in turn reported to the company’s Chief Executive Officer, Mr Anthony Nantes. Mr Nantes had held the position of Chief Executive Officer since September 2016. Ms Kantor says that after her first week in the role it became apparent to her that the company was understaffed and that servicing and credit officers who were supposed to support her role were underqualified and inexperienced. She said that this gave rise to early concerns about the training of these officers, concerns which she raised with Mr Beaumont. In her affidavit she speaks in general terms about making various complaints and raising concerns about unrealistic and unreasonable performance targets and about staffing issues. On 6 June 2019 Ms Kantor attended an industry awards night in Melbourne. Mr Goodwin, the CFO, travelled to Melbourne from Sydney to attend. The evening was attended by representatives of many finance industry players, including lenders and brokers. Two days later, on 8 June 2019, Ms Kantor received an unsolicited text from an unknown number. The text message[2] stated:Hey Michelle – [name omitted] here. I was the 29 year old going on 40 guy in the tux … I asked [Mr Goodwin] for your number as I was keen to reach out. Really enjoyed our chat the other night so thought I’d say hello[2] MK-2

Evidence

Evidence Before The Court

The evidence does not support a finding that Mr Nantes engaged in a considered and measured assessment of Ms Kantor’s suitability and competence as a long-term employee or her fit within Wisr’s organisational culture. Rather, the evidence points to an urgently effected dismissal, premised on misconduct.Observations about the evidence Counsel for the applicant submitted that Mr Nantes was an unsatisfactory witness who gave meandering answers and travelled to matters which supported his case rather than engaging with the questions asked of him. In relation to some aspects of his evidence the submission has weight. The duty of a witness to answer questions includes not only the positive duty to proffer all material within the witness’s knowledge for which the question calls, but also a negative duty not to volunteer material for which the question does not call[86].[86] Kuhl v Zurich Financial Services Aust Ltd (2011) 276 ALR 375 at [62] As discussed above, cross-examination unearthed detail about important events which had not or had hardly been touched upon in Mr Nantes’ affidavit. For example, Mr Nantes’ coffee shop meeting with Ms Kantor on 17 July 2019, despite it featuring in the applicant’s evidence and being referred to in one of her complaints. Only under cross-examination did Mr Nantes endeavour to explain how the Skype messages were brought to his attention and the role played by his CTO Mr Chisolm. It was only in cross-examination that evidence emerged of his communication with Mr Beaumont and Ms Ho after the receipt of the Sixth Employment Complaint. There are other examples. Under cross-examination Mr Nantes did not always engage with the questions that were asked of him. His answers were sometimes preceded by long pauses and responses were used as a vehicle to make points favourable to his case. On occasion his responses struck me as somewhat rehearsed. On other occasions, he sought to revisit and clarify his answers or to explain documents when they appeared unhelpful to his case. There were also occasions during the course of cross-examination where Mr Nantes seized opportunities to press his narrative, even where that was not responsive to questions. For example, he was at pains, time and again, to infuse into his answers comments about Ms Kantor’s excellent commercial output, her commercial value to the business and the commercial loss suffered by the organisation by reason of these regrettable events[87]. The repetition in this message over time diluted its persuasive force.[87] e.g. Transcript P-88-89, P-100, P-103, P-107 At times Mr Nantes recollection of events was uneven, particularly around the circumstances of the Skype messages. On other occasions Mr Nantes displayed a confident recall of dates and times and an uncanny capacity to direct his inquisitor to pages in the court book and exhibit references to reinforce his answers. A troubling aspect of Mr Nantes’ evidence was the revelation, during cross-examination, that he had a document before him in the form of an annotated chronology referencing certain key events. The applicant submitted in closing that Mr Nantes’ evidence was tainted by this document and that its existence explained his capacity to navigate exhibits and documents and the court book. It was submitted that this document contaminates the reliability of the viva voce evidence that he gave.

Decision

Reasons for decision

That said, Ms Kantor presented as a rather determined witness and she was quite forceful in her responses to questioning when challenged. I imagine Ms Kantor would have been a strong advocate for her interests during employment and her presentation as a witness was consistent with the impression one gleans from the tone and content of her email exchanges.Conclusion as to the reasons for dismissal The respondent’s case does not reveal a consistent story. The initial reason advanced to justify the dismissal was misconduct and breach of company policies as set out in the letter of termination and in the oral and written communications with Ms Kantor. However, subsequently and at trial that reason was refashioned. At the time of preparing his affidavit, Mr Nantes placed less emphasis on the threatening language in the Skype messages and gave a more crafted response, embracing a reasoning process which involved measured consideration of Ms Kantor’s status as a probationary employee, her poor judgement and attitude, inability to control emotions, inappropriate use of technology, poor cultural fit and his loss of trust and faith in her. In final submissions, the respondent pressed this thesis and presented the respondent’s reasons as being about more than just the Skype messages. In his final address, counsel for the respondent said that the word “misconduct” should really be read as “unprofessional”. However, that submission sits uncomfortably with the strong language used by Mr Nantes, including during cross-examination, when he described his response to Ms Kantor’s Skype messages. Under cross-examination, Mr Nantes returned strongly to the misconduct narrative. He repeatedly described the Skype messages as “inappropriate and serious misconduct”[89]. He said that he construed Ms Kantor’s language as “threatening physical violence in the workplace”. He said that threatening physical violence in the workplace was serious misconduct and that there was no context in which threatening physical violence in the workplace was anything but serious misconduct[90]. In respect of that last remark, it was notable that Mr Nantes adopted the language of Ms Kantor’s own objections about Mr Lu’s conduct, as voiced in her Fourth and Fifth Complaints.[89] Transcript P-98-99[90] Transcript P-99 Mr Nantes’ description of the Skype messages escalated as cross examination continued. He said the skype messages were documented evidence of Ms Kantor threatening physical violence in the workplace. He described Ms Kantor’s language as inappropriate, abusive and at “such a misconductual level that it warranted immediate dismissal”. He explained that because of the health and safety of other employees in the organisation, he had to deal with the matter quickly to terminate someone who was threatening physical violence. Then, when describing his reaction to Ms Kantor’s words “you better” in response to Mr Islam’s message, Mr Nantes described them as extremely offensive and amounting to inciting violence against fellow employees. He said he interpreted her words as encouraging Mr Islam to commit an act of violence. Mr Nantes said that he was concerned that Mr Islam sat within reach of several other employees, that he had made a threat of physical violence and that Ms Kantor was inciting him to carry it out[91]. Mr Nantes considered that to be a very very serious matter and warranting instant dismissal.[91] Transcript P-107-108

Ratio Decidendi

Legal Principle Established

In the absence of medical evidence, I am not inclined to Ms Kantor’s claim. I am satisfied that her dismissal would have given rise to distress and an adverse impact on her mental well-being, but it did not greatly limit her ability to re-enter the job market, actively pursue other opportunities and secure another position within a few months. I consider an amount of $7,000, which equates to about 1 months’ pay, is appropriate compensation for this element of her claim.Declaration I propose to make the declaration sought by the applicant, namely that the respondent has breached s 340 of the Fair Work Act 2009 (Cth) by dismissing Ms Kantor from her employment on 26 July 2019.Penalties Ms Kantor seeks the imposition of pecuniary penalties for breaches of the FW Act. In accordance with the usual practice of this Court, the parties will be heard on the issue. This proceeding will be listed for directions on a date to be fixed in order to timetable the filing of evidence and submissions on the question of penalties.Disposition I find that the respondent dismissed the applicant on 26 July 2019 for the reason or reasons which included her exercise of workplace rights. The applicant is entitled to compensation for economic and non-economic loss, a declaration and a right to seek penalties in respect of the contravention. Any application for costs should be made within 14 days. The parties’ legal representatives are to confer with a view to bringing in orders which give effect to these reasons for judgment within 7 days. In the event no agreement can be reached, each party should provide my chambers with a proposed order and the Court will make the orders it considers appropriate.