Khorramdel v Bluefly Pty Ltd
[2019] FCCA 1941
•6 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KHORRAMDEL v BLUEFLY PTY LTD | [2019] FCCA 1941 |
| Catchwords: INDUSTRIAL LAW – Adverse action claim – bullying – classification. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 342, 343, 344, 345, 349, 351, 360, 361, 789FD Professional Employees Award 2010, Sch B |
| Cases cited: Annear v Spotless Facility Services Pty Ltd [2015] FCCA 1335 |
| Applicant: | SIAVASH KHORRAMDEL |
| Respondent: | BLUEFLY PTY LTD |
| File Number: | SYG 283 of 2018 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 20 June 2019 |
| Date of Last Submission: | 20 June 2019 |
| Delivered at: | Wollongong |
| Delivered on: | 6 August 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Gibson Howlin Lawyers |
ORDERS
The Application filed 5 February 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 283 of 2018
| SIAVASH KHORRAMDEL |
Applicant
And
| BLUEFLY PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
These Reasons for Judgment explain why the Court has dismissed an application filed by the Applicant on 5 February 2018.
Background
On 5 February 2018, the Applicant, who describes himself as an IT professional, brought a claim under the Fair Work Act 2009 (Cth) (hereafter referred to as ‘the Act’) alleging dismissal in contravention of a general protection. The Applicant was employed by the Respondent between 25 May 2017 and 23 November 2017 in the position of Information Technology Support Analyst Level 1/2. Doing the best the Court can to understand the Applicant’s case, it seemed to have a number of components. He contends that he was dismissed in contravention of a general protection and, specifically, because he raised the issue of whether he was being properly paid in accordance with the Professional Employees Award 2010 (hereafter referred to as ‘the Award’). If so, the Applicant contends that he should be paid compensation for 10 weeks that he was unemployed, at the same rate as he was employed with the Respondent.
The Applicant also contends, whatever the outcome of the contravention claim, that he was not paid in accordance with the Award. He contends that he was engaged, and should have been paid, as a “Level 2 – Experienced Professional”, in accordance with the Award. He contends that he was only paid as a Level 1.
He thus contends that he was underpaid not just for his weekly payments, but also in respect of the period of four weeks’ notice of termination to which he was entitled under the Award. The totality of the Applicant’s claim was for $13,653.20. Notwithstanding the relative small quantum of the claim, the Applicant chose not to pursue this matter in the Small Claims List, which this Court conducts for Fair Work matters.
There is a further component to the Applicant’s claim which the Court found very difficult to understand. It was a generalised allegation of bullying, but the contention lacked particulars and any explanation of the statutory basis.
By way of a Response filed 13 March 2018, the Respondent, the Applicant’s former employer, opposes the orders sought by the Applicant and merely seeks that the Application be dismissed, together with an order for costs in its favour. There are a number of components to the Respondent’s defence. The Respondent contends that the Applicant did not exercise a workplace right, by raising the issue of the correct payment under the Award, until after he had been terminated. In any event, the Respondent contends that it terminated the Respondent on the basis of performance issues, whether or not he exercised a workplace right before termination.
The Respondent contends that it was entitled to terminate the Applicant based on inadequate performance following three counselling sessions. The Respondent is, like the Court, somewhat mystified about the claim of bullying, as it was never raised by the Applicant during his employment, is not substantiated by the evidence, and is not, in any event, properly pleaded. Finally, the Respondent contends that the Applicant’s position was at all relevant times as a Level 1 under the Award.
It follows from the above that the Court must decide:
a)Was the applicant dismissed in contravention of a general protection? This will involve deciding whether he had, in fact, exercised a workplace right before termination. Even if the Court finds in the Applicant’s favour in this regard, the Court will need to decide whether he was, in fact, terminated for non-performance, rather than because he raised the issue of whether he had been properly paid in accordance with the relevant Award. If the Applicant succeeds in his contravention claim, the Court will need to decide what loss, if any, he has suffered and what compensation should be ordered.
b)In any event, the Court will need to decide the precise nature of the Applicant’s classification pursuant to the Professional Employees Award 2010. Specifically, was he a Level 1 or Level 2 – Experienced professional? The Court will then need to consider whether he was properly paid in accordance with the Award.
There are a number of uncontentious facts. The Respondent commenced business in April 2003. The position which the Applicant was subsequently granted was advertised in March 2017. The Applicant applied for the position on 20 May 2017, was interviewed by the Respondent’s Directors on 23 May 2017, and an offer was made, in writing, on that same date. The Applicant accepted the offer, and commenced employment with the Respondent on 25 May 2017.
The parties agree that there were a number of meetings which, for present purposes, will be described as performance meetings between the Applicant, and the Directors of the Respondent. These occurred on 6 October, 24 October and 26 October 2017. What actually took place at these meetings is in dispute.
On 21 November 2017, the Respondent sent to the Applicant what can be described as a show cause letter. On 22 November 2017, in the evening, the Respondent sent to the Applicant a letter of termination which was dated 23 November 2017. On that same day, the Applicant responded to the show cause letter.
The Respondent terminated the Applicant’s employment and paid his accrued entitlements up to 24 November 2017.
It is uncontentious that the Applicant commenced proceedings in the Fair Work Commission seeking general protections relief on 13 December 2017. A conciliation was attempted without success.
The present proceedings commenced on 5 February 2018.
The evidence
At the hearing, the parties relied on the following evidence:
·Application – Dismissal from employment in contravention of a general protection: Form 2, filed 5 February 2018;
·Affidavit of Siavash Khorramdel, affirmed 3 March 2018 and filed 6 March 2018;
·Response, filed 13 March 2019;
·Affidavit of Craig Colnan, sworn 19 April 2018 and filed 20 April 2018;
·Affidavit of Tony Tuccillo, sworn 20 April 2018 and filed 23 April 2018;
·Affidavit of Siavash Khorramdel, affirmed 27 June 2018 and filed 29 June 2018;
·Affidavit of Siavash Khorramdel, sworn 9 February 2019 and filed 13 February 2019; and
·Affidavit of Siavash Khorramdel, sworn/affirmed 12 June 2019 and filed 14 June 2019.
In addition, a number of documents were tendered in evidence:
·Applicant’s calculations;
·Respondent’s aide memoire;
·Respondent’s Notice to Produce dated 12/03/2019; and
·Applicant’s payslips dated 14/07/17 and 31/07/17.
The applicable law
The Court respectfully adopts the statement of applicable law by Judge O’Sullivan in Annear v Spotless Facility Services Pty Ltd [2015] FCCA 1335 (6 July 2015) at paragraphs 31 to 54:
The legislation
The applicant’s claims raised for consideration the general protection provisions in Division 3-1 of the FW Act. The provisions of ss.340, 341, 342, 343, 344, 345, 349, 351, 360 and 361 of the FW Act are relevant.
Section 340(1) of the FW Act provides:
“(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.”For the purposes of s.340(1) of the FW Act, the term ‘workplace right’ is defined in s.341(1) of the FW Act:
“(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.”
A ‘workplace law’ is defined in s.12 of the FW Act and includes the FW Act and any other statutory law which regulates the employment relationship.
The circumstances in which “adverse action” is taken by an employer against an employee is set out in s.342(1) at Item 1 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). |
Section 343 of the FW Act provides as follows:
“(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(i) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(ii) exercise, or propose to exercise, a workplace right in a particular way.”Section 344 of the FW Act provides as follows:
“An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:
(a) make, or not make, an agreement or arrangement under the National Employment Standards; or
(b) make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or
(c) agree to, or terminate, an individual flexibility arrangement; or
(d) accept a guarantee of annual earnings; or
(e) agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.”Section 345 of the FW Act provides:
“(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.”
Section 349 of the FW Act provides:
“(1) A person must not knowingly or recklessly make a false or misleading representation about either of the following:
(a) another person's obligation to engage in industrial activity;
(b) another person's obligation to disclose whether he or she, or a third person:
(i) is or is not, or was or was not, an officer or member of an industrial association; or
(ii) is or is not engaging, or has or has not engaged, in industrial activity.
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.”
Section 351(1) of the FW Act provides:
“(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”
In relation to the applicant’s claims of adverse action the FW Act provides that once an applicant has established either that they have a workplace right or an attribute (for the purposes of s.351) and that they have been subject to adverse action s.361 of the FW Act operates to reverse the normal onus of proof.
Section 361 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.(2) Subsection (1) does not apply in relation to orders for an interim injunction.”
By virtue of s.360 of the FW Act a person takes action for a particular reason if the reasons for the action include that reason.
It is also necessary to note that s.140 of the Evidence Act 1995 (Cth) deals with the question of the standard of proof in these proceedings and provides:
“(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into court in deciding whether it is so satisfied, it is to take into account;
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.”Approach to adverse action allegations
The leading authority on the approach to the adverse action provisions of the FW Act is Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another [2012] HCA 32; (2012) 290 ALR 647 (‘Barclay’). The High Court (French CJ, Gummow, Hayne, Heydon and Crennan JJ) upheld an appeal against a majority decision of a Full Court of the Federal Court that adverse action had been taken “because” the respondent had engaged or proposed to engage in industrial activities, an attribute proscribed by s.346 in conjunction with s.347 of the FW Act.
In that case, the High Court confirmed that the question of whether a particular action or decision was taken because of a proscribed reason, or for reasons which included a proscribed reason, is a question of fact to be determined on the whole of the evidence.
What their Honours describe as the “correct approach” is set out at paragraphs [41]-[45] of their reasons:
“41. The question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act. These provisions must be construed together in accordance with the principles of statutory construction established by this Court, which must begin with a consideration of the text of the relevant provisions and may require consideration of the context including the general purpose and policy of the provisions.
Determining why a defendant employer took adverse action against an employee involves consideration of the decision-maker's "particular reason" for taking adverse action (s 361(1)), and consideration of the employee's position as an officer or member of an industrial association and engagement in industrial activity ("union position and activity") at the time the adverse action was taken (ss 342, 346(a), 346(b), 347 and 361(1)).
Clearly a defendant employer interested in rebutting the statutory presumption in s 361 can be expected to rely in its defence on direct testimony of the decision-maker's reason for taking the adverse action. The majority in the Full Court correctly rejected an argument put by the respondents that the introduction of the statutory expression "because" into a legislative predecessor to s 346, in place of the previous statutory expression "by reason of", rendered irrelevant the state of mind of the decision-maker.
There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression "because" in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?"
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.”
French CJ and Crennan J also considered the effect of s.360 of the FW Act at [57] to [59]. Their Honours adopted the reasons of Mason J in General Motors Holden Pty Ltd v Bowling (1976) 136 CLR 676.
At paragraphs [100] to [104], Gummow and Hayne JJ discuss the meaning of “because” in s.346 which is in similar terms to s.340 of the FW Act:
“100. The application of s 346 turns on the term "because". This term is not defined. The term is not unique to s 346. It appears in s 340 (regarding workplace rights), s 351 (regarding discrimination), s 352 (regarding temporary absence in relation to illness or injury) and s 354 (regarding coverage by particular instruments, including provisions of the National Employment Standards).
The use in s 346(b) of the term "because" in the expression "because the other person engages ... in industrial activity", invites attention to the reasons why the decision-maker so acted. Section 360 stipulates that, for the purposes of provisions including s 346, whilst there may be multiple reasons for a particular action "a person takes action for a particular reason if the reasons for the action include that reason". These provisions presented an issue of fact for decision by the primary judge.
Reference was made in argument to Purvis v New South Wales. That litigation concerned the application of the Disability Discrimination Act 1992 (Cth) to the suspension and expulsion of a disabled student from a State school. Section 5(1) used the expression "because of the disability". Gummow, Hayne and Heydon JJ emphasised that s 10 of the statute stated that if an act is done for two or more reasons, one of which is the disability of a person, even if it not be the dominant or a substantial reason for doing the act, the act is taken to be done for that reason. This provision may be compared with s 360 of the Act just described.
With respect to what became s 346 of the Act, paragraph 1458 of the Explanatory Memorandum to the Fair Work Bill 2008 stated:
"Clause 360 provides that for the purposes of Part 3-1,
a person takes action for a particular reason if the reasons for the action include that reason. The formulation of this clause embodies the language in existing section 792 which appears in Part 16 of the WR Act (Freedom of Association) and includes the related jurisprudence. This phrase has been interpreted to mean that the reason must be an operative or immediate reason for the action (see Maritime Union of Australia v CSL Australia Pty Limited). The 'sole or dominant' reason test which applied to some protections in the WR Act does not apply in Part 3-1." (emphasis added)The phrase "operative or immediate reason" used in CSL is relevantly indistinguishable from the phrase "a substantial and operative factor" used by Mason J in Bowling.
In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised "a substantial and operative" reason, or reasons including the reason, for the employer's action and that this action constitutes an "adverse action" within the meaning of s 342.”
Their Honours warn at paragraph [121] of the dangers of an enquiry contrasting “objective” and “subjective” tests in applying s.346 of the FW Act. They conclude at paragraph [126]-[128]:
“126. The relevant frame of reference in this case is a statutory provision in which neither the words "objective" nor "subjective" appear. There is an inherent risk of misguidance when seeking to imply tests or requirements in the application of a statutory provision absent some persuasive basis to do so. Nothing was put in argument, nor are there any decisions of this Court, to provide such a basis. Indeed, no direct challenge was made to what had been said by Mason J in Bowling.
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a "substantial and operative factor" as to constitute a "reason", potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
Whilst it is true to say, as do the respondents, that there is a distinction between discharging the onus of proof and establishing that the reason for taking adverse action was not a proscribed reason, there is nothing to suggest that the conclusions drawn by the primary judge, and the findings and reasons upon which these were based, did not take this into consideration. As Lander J concluded, if the reasons for the conclusions and the facts for which they were formulated are not challenged, then the contravention of s 346 cannot be made out. This proposition should be accepted. To hold otherwise would be to endorse the view that the imposition of an onus of proof on the employer under s 361(1) creates an rebuttable presumption at law in favour of the employee.”
Heydon J said at [146]:
“To search for the "reason" for a voluntary action is to search for the reasoning actually employed by the person who acted. Nothing in the Act expressly suggests that the courts are to search for "unconscious" elements in the impugned reasoning of persons in Dr Harvey's position. No requirement for such search can be implied. This is so if only because it would create an impossible burden on employers accused of contravening s 346 of the Act to search the minds of the employees whose conduct is said to have caused the contravention. How could an employer ever prove that there was no unconscious reason of a prohibited kind? An employer's inquiries of the relevant employees would provoke, at best, nothing but hilarity. The employees might retort that while they could say what reasons they were conscious of, they could say nothing about those they were not conscious of.”
Given the nature of the applicant’s claim(s) it is important to note that Collier J in Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399 (“Jones”) explained the nature of the onus cast upon an applicant in an application, such as this as follows:
“10. That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason, was explained by Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531; (1999) 140 IR 131 at [161]- [162] and Moore J in Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; [2008] 177 IR 306 at 321-322 [49]- [50]. To paraphrase observations of Moore J in Rojas [2008] FCA 1585; [2008] 177 IR 306 at 322, it is not sufficient for Ms Jones to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that Ms Jones is able to prove these allegations, the burden is then cast on to QTAC to prove that adverse action was not taken against Ms Jones because of her workplace right for the purposes of s 340 and s 361 of the Act.”
Finally in State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 the Full Court of the Federal Court said:
“32. As the trial judge recognised the leading authority on the operation of ss 360 and 361 of the Fair Work Act in the context of Part 3-1 of that Act (which includes s 351) is Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500. The principles which informed this decision were recently reaffirmed by a majority of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41. Relevantly, these authorities establish that:
The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
That question is to be answered having regard to all the facts established in the proceeding.
The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
Even if the decision-maker gives evidence that he or she acted solely for non-prescribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable. If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.”
Those ‘principles’ have since been considered in a number of Full Court decisions.
The hearing
The Applicant represented himself at the hearing which took place on 20 June 2019. Whilst the Applicant was representing himself it was clear to the Court that he was an intelligent and articulate man who advanced his case with great passion, indeed forcefulness at times. His unwavering conviction that he had been wronged by the Respondent was palpable.
The Respondent was represented by a solicitor, Ms Jamieson. Evidence-in-chief was given by the Applicant, as well as the two Directors of the Respondent, Mr Craig Colnan and Mr Tony Tuccillo. Each of these people were cross-examined.
Credit issues
As will be seen below, and particularly in the context of whether the Applicant did in fact exercise a workplace right by raising concerns about whether he was paid in accordance with the relevant Award, there is a clear divergence between the evidence of the Applicant and Mr Colnan. It is, somewhat regrettably, necessary to make a number of observations about credit in this case.
The Applicant was, regrettably, pervasively unresponsive, argumentative and at times aggressive in cross-examination. At one point in cross-examination he was warned by the Court about the lack of wisdom inherent in being aggressive towards the Court, let alone towards Ms Jamieson, who was cross-examining him. His aggressive manner manifested itself at times during the cross-examination that he conducted of the Respondent’s witnesses. It is somewhat ironic that in the Respondent’s records of the performance appraisals with the Applicant the matter of his aggression was specifically raised with him. That it should be manifested so clearly in the Applicant’s manner in cross-examination, and in the way he conducted his case generally, is insightful. The Court has already observed the Applicant to be both intelligent and articulate, and as having advanced his case with passion.
The Court records that it has carefully considered whether it may have misconstrued the Applicant’s assertiveness and passion for his case, with aggression. The Court’s observation about the Applicant’s aggression remains its finding. Often it is a matter of degree but, in this case, the Applicant’s manner went beyond mere assertiveness. In any event, the adverse credit finding goes beyond matters of demeanour. As will be seen below, there were inconsistencies within the Applicant’s evidence, inconsistencies between his evidence and that of the Respondent’s Directors, and there is a disturbing issue of non-disclosure. It is more likely than not, the Court concludes, that the Applicant has engaged in a subjective reconstruction of events, probably because he was representing himself and caught up with his own passionate self-belief in his claim.
By contrast, the evidence given by Mr Tuccillo and Mr Colnan was unremarkable.
Observations about some of the key documents.
The advertisement for the position in respect of which the Applicant was subsequently engaged is dated 27 March 2017. It refers to a position as: ‘mid-level desktop support analyst’. It makes no reference to classifications under the Award, but the evidence strongly indicated that he was engaged at Level 1, Pay Point 1.3.
The resume that the Applicant submitted indicates that the Applicant gained his Bachelor of Applied Science with majors in applied computing and physics in 1992. The last computer course that the Applicant had undertaken was in 2008. In cross-examination, the Applicant agreed that the nature of IT work was a constantly changing environment. When the Applicant put to Mr Colnan, ostensibly with the purpose of challenging the plausibility of this proposition, that the Applicant came with 15 years’ work experience and yet was engaged at Level 1, Mr Colnan responded that the Applicant’s 25-year-old degree in IT was obsolete, and meant nothing to the Respondent. The other significant matter that emerges from the Applicant’s resume is that his last employment ended in July 2016, just under a year before he started with the Respondent.
The letter of offer was dated 23 May 2017. It describes the position offered to the Applicant as: ‘Support Analyst L1/2’. A probationary period of 12 weeks was stipulated, during which time the Applicant was expected to demonstrate proficiency. The letter states that towards the end of the 12 week period there would be a review of the position and a determination of the options for continuance. In relation to salary the letter states: ‘Your commencing salary is $60,000 per annum inclusive of superannuation with a review after six months.’
A number of significant things emerge from this letter of offer of employment. There was a probationary period of 12 weeks. There was opportunity to review after 12 weeks. The salary of $60,000 was inclusive of superannuation, and again was to be reviewed after six months. As foreshadowed earlier, the parties did not contend that the letter of offer prescribed an annual rate higher than Pay Point 1.3 which, pursuant to the Award, prescribed an annual wage of $52,474, with the balance presumably representing superannuation.
Indeed, even the Applicant did not contend that his starting salary package was in accordance with Level 2. The Respondent’s case was that the salary package offered to the Applicant was simply based on the market, and the approximation to the Award was actually quite peripheral.
The show cause letter is dated 21 November 2017. It raises the four ‘main issues’ that the Respondent had with the Applicant’s employment, as follows:
- Continued client complaints regarding your service level and proficiency
- Failure to follow reasonable direction from your manager
- Becoming aggressive and argumentative in response to feedback regarding your performance
- A general lack of initiative to adapt, learn and contribute to workplace improvement efforts.
The penultimate paragraph makes it clear that the Respondent was considering terminating the Applicant’s employment. The final paragraph commences with this sentence:
Should you wish, please respond in writing within two days of the date of this letter.
During the evidence of Mr Colnan, and indeed implicit throughout the Respondent’s case, was the contention that this show cause letter, sent on the morning of 21 November 2017, allowed the Respondent two business days to respond. That is clearly not the case. The letter in question merely stipulated ‘within two days of the date of this letter.’ This means 23 November 2017. It cannot, in any sense, mean 22 November 2017.
The termination letter is dated 23 November 2017 but it is uncontested that it was received the preceding evening, 22 November 2017. Whilst it sets out the basis of the Respondent’s decision to terminate the Applicant, the observation in paragraph 6 that:
You have not responded to our letter of 21 November…
is somewhat peremptory, given that the letter was received on 22 November 2017. Nonetheless, this Court observes, it is not asked to decide whether the Applicant was wrongfully terminated. Moreover, in the immediately following paragraph it contains the clearly incorrect assertion that the Applicant’s notice period was one week. Clearly it is four weeks in accordance with the Award, but this seems to be a matter that the Respondent, no doubt through its advisors, came to appreciate after 23 November 2017. There is no dispute that the Applicant eventually did receive four weeks’ notice and was paid accordingly, subject to the issue of the correct amount.
The fact of complaints from clients of the Respondent’s business does not appear in dispute. There were at least two complaints from the Respondent’s clients: from Patrick Yu, from Centurion Group, and from Neil Christiansen from Christiansen O’Brien Pty Limited architects.
There is evidence about the three performance management meetings. The first meeting was held on 6 October 2017. This was a meeting between Mr Colnan and the Applicant. Mr Colnan’s file note of the meeting is the Annexure D to his Affidavit.
The client complained that they found the Applicant to be rude, impatient, expressed issues far too technically, was generally unhelpful, and lacked customer service skills. Mr Colnan records that he told the Applicant that, when listening to him on the phone, his opinion was that he frequently appeared to be ‘gruff’. The file note records the Applicant’s response as being ‘somewhat aggressive…’ The record notes that Mr Colnan observed to the Applicant that ‘... he frequently appears to be angry.’ The Applicant was then described to engage in a ‘rant’.
He raised the issue that the Applicant seemed to have a strong tendency ‘to undertake tasks the hard way, is generally dismissive of advice and frequently ignores or chooses to argue with Tony and me rather than take the opportunity to learn and grow.’ Later in the meeting, the note records that Mr Colnan raised the issue of the Applicant’s frequent late attendance at work. The note records that the Applicant: ‘... then became angry…’
The Applicant produced in his evidence what he purports to be a contemporaneous record made by him of the meeting of 6 October 2017. What is significant about this document is that there is no record of any complaint in the nature of a workplace right.
The second performance management meeting took place on 24 October 2017, again between Mr Colnan and the Applicant. This related to Mr Christiansen’s complaint. The note records that on reading Mr Christiansen’s email to the Respondent, the Applicant ‘... instantly became angry and said he would respond in writing …’ The note then goes on to refer to the technical nature of the work undertaken, and what is clear from the file note is that the author perceived the Applicant to blame Mr Tuccillo, and then the client for the problems, without accepting any responsibility himself. Towards the end of the file note Mr Colnan records:
At this point there was no point in continuing the discussion as Simon was becoming angrier and waving his arms around. I told Simon that this was another black eye for our business and that I cannot let this keep happening.
The Applicant responded to the matters raised in the performance appraisal on 24 October 2017, with his own letter to Mr Colnan of 24 October 2017. This document was in the evidence of both the Applicant and Mr Colnan. In this letter the Applicant provides his perspective on the complaint but, on any objective reading of the document, seems to externalise all responsibility to the client, and to Tony Tuccillo. He also raised concerns about the Respondent’s procedures suggesting the need to improve the Respondent’s technical documentation. In the penultimate sentence the Applicant states:
We had few times discussed Tony’s behaviour who using F-word and yelling all day.
Interestingly, the Respondent followed up on the Applicant’s complaint, by way of an email 24 October 2017. This was the Annexure G to Mr Colnan’s Affidavit. What is significant about this email is its conciliatory tones, and its willingness to respond to the concerns raised by the Applicant about how the Respondent conducts its business, about further training to the Applicant, and an offer to explain matters in as much detail as was required.
The third performance management meeting was on 26 October 2017. Mr Colnan’s note of the meeting is the Annexure H to his Affidavit. It is a lengthy file note. There was a discussion of the Christiansen complaint. The note records:
Simon [i.e. the Applicant] again laid the blame at Tony’s feet for misinforming him... he also indicated that the issue were Neil’s fault.
Later on, the record notes the Applicant’s contention that Mr Colnan:
... had deliberately supplied him with misinformation regarding the standard setup for clients.
Later on, the note also records:
Simon then went into an extended monologue about how he knows better than us about some issues and that Tony and I seek to discredit and deceive him. I asked why we would do that. He was unable to explain.
The file note does record concerns that the Applicant raised about Tony Tuccillo using the F-word, and ‘yelling all day’. The record states:
I said that I had not heard Tony swear other than in frustration and only to himself. Simon confirmed that Tony had not used the F-word in anger, nor directed to Simon. Simon apparently finds this word offensive. I told him that I respected his feelings on this matter and that we would make positive efforts to curb currently infrequent swearing.
The Applicant produced a record that he made in relation to the meeting on 26 October 2017. There is reference to Tony using the F-word and yelling all the time. The Applicant’s record clearly states, however:
My employment is covered by award and Tony is paying me under award rate.
The Applicant relies on his file note of 26 October 2017 as evidence in support of the proposition that he had exercised a workplace right prior to his termination, in raising the question of whether he was correctly paid in accordance with the Award.
The Court accepts that there is a risk that all records produced of meetings can be self-serving, i.e. they present the perspective of the person making the record who, in this case, is not a disinterested person. In cross-examination, the Applicant was challenged as to why his file notes of the meetings of 26 October do not appear amongst the many documents annexed to his first Affidavit of 6 March 2018. Moreover, the Applicant was challenged about why these seemingly important records would not have been produced to the Fair Work Commission in the course of the Applicant’s application.
This was clearly a challenge to the authenticity of these records, insofar as they purport to be a contemporaneous, or quasi-contemporaneous record. The Applicant’s explanation in cross-examination was partly satisfactory, and partly unsatisfactory. He explained that he was representing himself and did not know what evidence was necessary or important. This is understandable.
On the other hand, the credit issues surrounding the Applicant’s evidence do raise issues about the authenticity of the documents, insofar as they purport to be contemporaneous. In the end, there is no need to make a finding about the authenticity of these file notes because the Court will find that the Applicant’s later letter of 23 November 2017 does evidence the exercise of a workplace right, and that this took place before he had been terminated at least in the sense that, using the Respondent’s own standards, two days had not elapsed since their letter of 21 November had been sent.
On 23 November 2017, and in response to the show cause letter of 21 November 2017, the Applicant wrote to the Respondent. He specifically contends:
I also discussed with you my employment is covered by award and he is paying me under award rate.
The Court is satisfied, therefore, that before the Applicant was terminated in accordance with the timeframe set by the Respondent itself, he had, in fact, exercised a workplace right as defined in s.341 of the Act by raising the issue of whether he was being paid properly.
However, there is another interesting statement made by the Applicant in the final dot point on the letter. He states:
My scope of work is focused on troubleshooting and not technical configurations which mainly are performed by you.
As will be seen below, the Respondent contends that this was an admission by the Applicant that his classification was as a Level 1, rather than as a Level 2.
The cross-examination
The Applicant was cross-examined by Ms Jamieson, the Respondent’s solicitor. The Applicant was cross-examined about the letter of offer of employment, and it was suggested to him that given that the pay was to be reviewed after six months, this suggested there was the possibility of progression from Level 1 to Level 2, after six months. The Applicant strongly refuted that, saying words to the effect: ‘I would not have bothered to apply if it was only Level 1.’ The Court does not accept the Applicant’s evidence in this regard. It is plainly implausible. He had been unemployed for a considerable period of time before gaining employment with the Respondent. Moreover, even on the Applicant’s own case, the first time he raised the issue of not being employed at the correct classification was on 26 October 2017, many months after he started working for the Respondent.
The Applicant was cross-examined about the nature and extent of the supervision of his work by the Directors of the Respondent. The Applicant was strident in his insistence, however, that he was not supervised by the Directors of the Respondent, but just received “guidance” from them. This became a quasi-mantra of the Applicant’s case. Were the Applicant not so pervasively unresponsive, uncooperative and argumentative in cross-examination, the Court would be tempted to give him the benefit of the doubt and to accept that the Applicant genuinely did not feel that he either needed, or that the Directors of the Respondent provided, supervision. In reality, the Court finds that the distinction drawn by the Applicant between “guidance” and “supervision” merely reflected his pernickety approach to the issue.
The Applicant was cross-examined about the training task that he was given early in his employment. He ultimately, and reluctantly, agreed that the task was not completed. He said that he started it, but could not complete it because of technical problems, and that the task was ultimately abandoned by the Respondent.
The Applicant was asked whether he was still unemployed. He responded that he was not unemployed and, in fact, was working in an IT department at Level 2 and had been there for more than a year. It should be noted that the Applicant originally resisted answering this question, and had to be directed to do so. He agreed that he had received a Notice to Produce on 12 March 2019 asking for the production of: “all employment contracts, all written offers of employment, entered into by you since the termination of your employment with our client.”
When it was put to him that the documents had not been produced, relevant to his current work, two things occurred. Firstly, his manner became distinctly evasive and uncooperative. He said the documents were “not available.” He was asked to explain where in his Affidavit material he discloses his current employment. Again, eventually, he conceded that it was not there. He explained that he works 38 hours per week, from 9:00am to 5:00pm, at a Level 2 troubleshooting IT position where he is paid $550 per day on a casual basis, albeit working as a full-time casual. When pressed for his employment contract, pursuant to the Notice to Produce, he insisted once again: “…it is not available.”
Ms Jamieson asked the Applicant whether he was prepared to ask his employer, during an adjournment, for a copy of the contract. Amongst other things, the Applicant’s response was: “…it is all bullying…” In any event, the Applicant was asked by the Court to communicate with his employer during the adjournment and ask whether an electronic copy of the document could be forwarded either to the Applicant, or to the Court via my Associate. This did not take place.
The significance of the absence of any verifying information about the Applicant’s employment cannot be overstated. In a case where there are issues about the Applicant’s credit, he did himself a great disservice by not disclosing what is clearly relevant information. Indeed, it was potentially relevant information that would have assisted the Applicant in his own case. For example, if his current employment contract was, in fact, at a Level 2, one could conceive of a submission that this fact was consistent with his employment with the Respondent at Level 2.
Of course, the alternative scenario was that the Applicant was not employed at Level 2, but at some other level, perhaps Level 1. Different inferences might be drawn from this. The other relevant factor that could have easily been established by the production of his current employment contract was to the precise period in respect of which the Applicant claims that he was unemployed as a result of his termination from the Respondent.
In cross-examination the Applicant also ultimately conceded that whilst he had calculated his claim on the basis of working 38 hours per week, he in fact worked 37.5 hours per week, thus affecting the quantum of his claim. In addition, he further conceded that his calculations about the number of weeks that he was unpaid was incorrect by one week.
It was put to the Applicant that there were daily morning coffee meeting when the Applicant and the two Directors met. He accepted this. It was put to the Applicant that he never expressed any concerns about workplace rights at any of the meetings. He agreed. He explained that he thought this was a confidential matter. The Court does not accept this explanation. It is plainly implausible. The most likely scenario is that the issue of potential non-payment in accordance with the Award was not raised until, at the earliest, October 2017.
Mr Tuccillo was cross-examined by the Applicant. He agreed that when he was at work, he used the F-word, and that the Applicant was present at the time. Mr Tuccillo also agreed that he did shout at work.
However, Mr Tuccillo was insistent that he neither used the F-word, nor shouted at, the Applicant. Mr Tuccillo agreed that there were communication issues between the Applicant and himself. Mr Tuccillo was also quite insistent in cross-examination about giving instructions to the Applicant to do certain tasks, which were ignored, even though the tasks were eventually undertaken. Mr Tuccillo was also insistent that the communication issues between the Applicant and himself, did not form part of the reasons for the Applicant’s termination.
The Applicant cross-examined Mr Craig Colnan. Mr Colnan agreed that the job had been offered to someone other than the Applicant at $65,000, but that person had dropped out. He explained that the offer was based on market rates which was above Award, and that it was in fact a Level 2 offer to that person. He explained that the other person had greater skills than the Applicant, hence the greater salary.
Mr Colnan agreed with the Applicant in cross-examination that his salary approximated to the classification being Level 1, Pay Point 1.3. He did not agree, however, that the Applicant was employed at Level 2 and insisted that the Applicant was never asked to undertake work, and had never demonstrated the ability to do work, at a Level 2.
The Applicant put to Mr Colnan that during the time of his employment he had never been given warnings. Mr Colnan insisted that this was indeed the case, in October 2017. It is interesting, the Court observes, that the Applicant would put this given his own records which suggested that warning has been given.
The Applicant cross-examined Mr Colnan about the qualifications of the person who was employed to replace the Applicant. Mr Colnan agreed that the latter person was engaged at a Level 1 and a position advertised as having a salary of $45,000-50,000 including super, but emphasised that there was a difference in positions, and that the Respondent in fact hired a trainee, not a graduate.
What is significant about the Applicant’s cross-examination of the Directors of the Respondent was the absence of any questioning about their real motives for the termination. It was never put to either of them, for example, that the real reason why the Applicant was terminated was either because he had expressed concerns about bullying, or that he was not being paid in accordance with the award.
The bullying complaint
Early in cross-examination, the Applicant was asked about the nature of his adverse action claim. He responded to the effect that it was bullying behaviour, and that he was terminated ‘when I stood up to them’. This was the first contention contained in any evidence, or material, filed by the Applicant that he had been bullied, and that he was terminated because he stood up to his former employers. The Applicant’s case about bullying goes no further in the evidence.
The Applicant was further cross-examined about his purported bullying claim. He said that he raised it “maybe in July 2017 verbally”, but certainly in his letter of 24 October 2017. When asked to explain what he considered bullying, he said words to the effect: “… abusive behaviour, trying to make me humiliated, degrading me…I felt bullied.”
When asked about specific incidents that he believe constituted bullying, he said words to the effect: “…the use of the F-word, yelling at me, and lying about my performance at work…” Nonetheless, in cross-examination he agreed that the behaviour in question had improved. Be this evidence as it is, the Court cannot allow an Applicant to particularise a claim for bullying in cross-examination. Again, the Court states this matter goes no further. It may have been best, indeed, not to cross-examine at all.
The Applicant was cross-examined about his record of the meeting on 24 October 2017. He accepted that, even on his record, there is no reference to bullying.
The only definition of bullying in the Act is found in s.789FD in the context of “bullied at work”. The core of this definition is that there is unreasonable behaviour towards a worker that creates a risk to that worker’s health and safety. As s.789FD(2) explains, reasonable management actions carried out in a reasonable manner does not constitute bulling.
The problems in this part of the Applicant’s claim are insurmountable. Firstly, the Court prefers the evidence of Mr Tuccillo to that of the Applicant, to the effect that any swearing may have occurred in the presence or hearing of the Applicant but was not addressed at him. For the same reasons the Court does not accept that anyone “lied” about the Applicant’s performance at work. The second issue, moreover, is that the Respondent through its Directors was reasonably conducting management action, i.e. performance appraisal and management, in a reasonable manner. The bullying claim fails.
Was the Applicant dismissed in contravention of a general protection?
Whilst the Court is satisfied that the Applicant exercised a workplace right by complaining about the correctness of his rate of pay pursuant to the relevant Award, shortly prior to his termination of employment with the Respondent, the Court is not satisfied that the Respondent took adverse action against the Applicant for this reason. The Court finds that the Respondent was terminated because of the performance issues that were raised on 21 November 2017 in what has become known as the show cause letter.
The evidence satisfies the Court that there were, indeed, several complaints from the Respondent’s clients about the level of service provided by the Applicant, and his proficiency. The Court accepts that he failed to follow reasonable direction from his managers. In this regard, the Court prefers the evidence of the Directors of the Respondent, over that of the Applicant. The Court finds that it is highly likely that the Respondent indeed did become aggressive and argumentative in response to feedback regarding his performance. The Applicant manifested some of these behaviours in Court.
He was, for example, argumentative and aggressive during cross-examination by the Solicitor for the Respondent. He was argumentative and aggressive during his cross-examination of Mr Colnan. It is entirely plausible, therefore, that the aggression and argumentativeness that the Respondent asserts in fact took place in the workplace. The Court accepts, moreover, that the evidence paints a picture of the Applicant’s general lack of initiative to adapt, learn and contribute to workplace improvement efforts. Again, the Court prefers the evidence of the Respondent’s witnesses, over that of the Applicant.
Thus, whilst the Court says nothing about the circumstances of the Applicant’s termination, the Court does accept that, on the balance of probability, the matters raised by the Applicant in relation to whether he was being correctly paid, and indeed even the nebulous issue of bullying, had nothing to do with their decision to terminate him. The Applicant’s claim in this regard therefore fails and should be dismissed.
What is the Applicant’s classification?
The classification structure and definitions under the Professional Employees Award 2010 is set out in Schedule B to that document.
The professional responsibility levels are set out in clause B at point 1.1-B.1.6:
Schedule B—Classification Structure and Definitions
…
For employment involving the performance of professional duties except professional medical research duties,the following classification definitions apply:
B.1 Professional responsibility levels
B.1.1 Level 1—Graduate professional engineer,Professional scientist and Information technology employee
(a) An employee at this level undertakes initial professional tasks of limited scope and complexity,such as minor phases of broader assignments,in office,plant,field or laboratory work.
(b) Under supervision from higher level Professional engineers,Professional scientists or Professional information technology employees as to method of approach and requirements,the employee performs normal professional work and exercises individual judgment and initiative in the application of principles,techniques and methods.
(c) In assisting more senior Professional engineers,Professional scientists or Professional information technology employees by carrying out tasks requiring accuracy and adherence to prescribed methods of professional engineering or professional scientific/information technology analysis,design or computation,the employee draws upon advanced techniques and methods learned during and after the undergraduate course.
(d) Training,development and experience using a variety of standard procedures,enable the employee to develop increasing professional judgment and apply it progressively to more difficult tasks at Level 2.
(e) Decisions are related to tasks performed,relying upon precedent or defined procedures for guidance. Recommendations are related to solution of problems in connection to the tasks performed.
(f) Work is reviewed by higher level Professional engineers,Professional scientists or Professional information technology employees for validity,adequacy,methods and procedures. With professional development and experience,work receives less review,and the employee progressively exercises more individual judgment until the level of competence at Level 2 is achieved.
(g) The employee may assign and check work of technical staff assigned to work on a common project.
B.1.2 Graduate professional—appointment and progression
(a) Pay Point 1.1
Means the pay point to which a graduate will be appointed where they possess and may be required to utilise a level of professional skill and knowledge based on either the completion of an accredited three or four year tertiary professional technology based qualification in Australia or equivalent.
(b) Pay Point 1.2
Means the pay point to which a graduate will be appointed or will progress from Pay Point 1.1 having been assessed as being competent at Pay Point 1.1,where the graduate possesses and may be required to utilise a level of professional skill and knowledge based on:
(i) Training and experience
In addition to the experience,skill and knowledge requirements for Pay Point 1.1 not more than one further year of practical professional experience,with supervision as appropriate,and the undertaking of in-service training,subject to its provision by the employer.
(ii) Core competency standards
The development of core competency standards in the practice setting/s undertaken since being assessed as competent at Pay Point 1.1 measured against the prescribed performance criteria.
(c) Pay Point 1.3
Means the pay point to which a graduate will be appointed or will progress from Pay Point 1.2 having been assessed as being competent at this Pay Point,where the graduate possesses and may be required to utilise a level of professional skill and knowledge based on:
(i) Training and experience
In addition to the experience,skill and knowledge requirements for Pay Point 1.2,not more than one further year of practical professional experience,with supervision as appropriate,and the undertaking of in-service training,subject to its provision by the employer.
(ii) Core competency standards
In addition to the core competency standards developed at Pay Point 1.2,the further development of core competency standards in the practice setting/s undertaken since being assessed as competent at Pay Point 1.2 measured against the prescribed performance criteria.
(d) Pay Point 1.4
Means the pay point to which a graduate will be appointed or will progress from Pay Point 1.3 having been assessed as being competent at this Pay Point,where the graduate possesses and may be required to utilise a level of professional skill and knowledge based on:
(i) Training and experience
In addition to the experience,skill and knowledge requirements for Pay Point 1.3,not more than one further year of practical professional experience,with supervision as appropriate,and the undertaking of in-service training,subject to its provision by the employer.
(ii) Core competency standards
In addition to the core competency standards developed at Pay Point 1.3,the further development of core competency standards in the practice setting/s undertaken since being assessed as competent at Pay Point 1.3 measured against the prescribed performance criteria.
B.1.3 Annual review
Subject to the requirements of each Pay Point,each graduate will progress on their annual anniversary date from one Pay Point to the next,having regard to the acquisition and utilisation of core competencies through experience in their practice setting/s over such period. Confirmation of the employee’s progression to the next Pay Point will be provided by the employer in writing.
B.1.4 Deferral
Progression from one Pay Point to the next may be deferred or refused by the employer. Such deferral or refusal of progression will not be unreasonably or arbitrarily imposed by the employer. Any decision to defer or refuse progression to the next pay point will be confirmed in writing.
B.1.5 Appeal and review
An employee may appeal a deferral,provided that where any such appeal results in a revocation of the employer’s decision,Pay Point progression will be deemed to operate and be payable from the employee’s anniversary date for such progression. An appeal or review,for the purpose of this clause,will be undertaken and resolved in accordance with clause 10—Dispute resolution of this award.
B.1.6 Accelerated advancement
Progression from one Pay Point to the next may be advanced by the employer to occur prior to the annual anniversary date provided that any such advancement is referable to the requirements for each Pay Point.
The professional responsibility for level 2 is set out at B.1.7:
B.1.7 Level 2—Experienced professional
Following development, the Experienced professional plans and conducts professional work without detailed supervision but with guidance on unusual features and is usually engaged on more responsible assignments requiring substantial professional experience.
It is clear that not all of the descriptors are relevant to the IT industry. B.1.1(a) resonates on the facts of this case. The Applicant undertook initial professional tasks of limited scope and complexity. He may, at times, have done more complex tasks, but the complaints received, and the seeming need for the Directors to step in, confirms that the Applicant’s skills were limited. B.1.1(f) is insightful. The Applicant’s work was reviewed by higher level information technology employees, for validity, adequacy, methods and procedures. Whilst it is clear that the Applicant did have the opportunity to exercise individual judgment, the overall impression formed from the evidence that this was in the context of the limited scope and complexity of the tasks that he was delegated. The Applicant’s pernickety approach in cross-examination in seeking to distinguish between “guidance” and “supervision” does not change the reality of the situation, i.e. that his work was reviewed by the Directors. It is also useful to review the descriptors of the various pay points (pay point 1.1, 1.2, 1.3 and 1.4). It is by no means implausible that the Applicant’s notional designation at pay point 1.3 is inapplicable. He may well have been a graduate with quite a few years’ experience, but his technical qualifications and knowledge does appear to have been dated.
B.1.3 confirms the progression from each pay point would take place on the annual anniversary, and that is inconsistent with the conduct of the Applicant’s own case.
By contrast, a Level 2 plans and conducts professional work without detailed supervision but with guidance on unusual features and is usually engaged on responsible assignments requiring substantial professional experience. This clause may well have been the source of the Applicant’s differentiation between guidance and supervision but it ultimately does not assist him. It must be remembered that the evidence of the complaints received go beyond mere personality and communication, but plainly raise the question of his competence to do the work. Moreover, the Applicant’s own evidence of the work undertaken, in the form of the various tickets for jobs completed, hardly engenders confidence in the Court that he was undertaking professional tasks of more than limited scope and complexity. At paragraph 28 of the Affidavit of Mr Colnan, he sets out some of the typical major support tasks undertaken by the Applicant. At paragraph 29, he characterises these tasks as:
…all typically simple IT support tasks and are all level 1 tasks.
There was no challenge by the Applicant to Mr Colnan’s evidence in this regard.
The Court is satisfied, therefore, that the Applicant was engaged at Level 1, and this was an appropriate level. If he contended that at some stage he proceeded to Level 2, he adduced no evidence of this.
It must follow, therefore, that the balance of the Applicant’s claim should be dismissed. He was, at all relevant times, paid at the appropriate level, indeed in excess of this.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 6 August 2019
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