Kovacs v Citywide Service Solutions Pty Ltd
[2024] FedCFamC2G 1037
•15 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kovacs v Citywide Service Solutions Pty Ltd [2024] FedCFamC2G 1037
File number(s): MLG 1549 of 2023 Judgment of: JUDGE MANSINI Date of judgment: 15 October 2024 Catchwords: FAIR WORK – alleged contraventions of general protections provisions of the Fair Work Act 2009 (Cth) – where adverse action was taken in nominating applicant’s role for redundancy and in ending the employment by reason of redundancy – where applicant did not establish the fact or exercise of a complaint or inquiry that the applicant was able to make, in relation to the employment, but there was a workplace right to take personal leave which was exercised on two occasions – consideration of evidence of relevant decision-maker and what motivated the adverse actions – where respondent discharged the reverse onus in relation to the reasons for the established adverse actions – application dismissed. Legislation: Fair Work Act 2009 (Cth) ss. 97, 340, 341, 342, 360, 361 Cases cited: Alam v National Australia Bank Limited [2021] FCAFC 178
Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2012] HCA 32
Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd (2015) 253 IR 166
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204
Elliot v Kodak Australasia Pty Ltd (2001) 129 IR 251
Flageul v WeDrive Pty Ltd [2020] FCA 1666
Maric v Ericsson Australia Pty Ltd [2020] FCA 452
PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225
Pigozzo v Mineral Resources Ltd [2022] FCA 1166
Pilbrow v University of Melbourne [2024] FCA 1140
Qantas Airways Ltd v Transport Workers Union of Australia (2023) 412 ALR 134
Qantas Airways Ltd v Transport Workers’ Union of Australia (2022) 292 FCR 34
Shea v Tru Energy Services Pty Ltd (No 6) (2014) 314 ALR 346
Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346
Whelan v Cigarette & Gift Warehouse Pty Ltd (2017) 275 IR 285
Wong v National Australia Bank Limited [2021] FCA 671
Wong v National Australia Bank Ltd (2022) 318 IR 148
Division: Division 2 General Federal Law Number of paragraphs: 107 Date of hearing: 1 and 2 October 2024 Place: Melbourne Counsel for the Applicant: Mr White Solicitor for the Applicant: McDonald Murholme Solicitors Counsel for the Respondent: Ms Zhou Solicitor for the Respondent: Holding Redlich ORDERS
MLG 1549 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMANDA KOVACS
Applicant
AND: CITYWIDE SERVICE SOLUTIONS PTY LTD
Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
15 OCTOBER 2024
THE COURT ORDERS THAT:
1.The application filed on 7 September 2023 is 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 Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Mansini
IN SUMMARY
Before the Court is an application in respect of alleged contraventions of the general protections provisions of the Fair Work Act 2009 (Cth) (Act).
Ms Amanda Kovacs (Applicant) was employed by Citywide Service Solutions Pty Ltd (Respondent) in a governance role for some 7 years until her dismissal by reason of redundancy. She asked the Court to find that the real reasons for the selection of her role for redundancy and ultimate dismissal by way of redundancy were because she had made complaints and inquiries during the employment. Further, or in the alternative, that personal leave she had taken formed part of the reasons for the Respondent’s actions.
The Respondent contended that the Applicant had not made out the essential elements of her claim. And, in any event, the Respondent’s witnesses maintained that the selection of the Applicant’s role for redundancy was purely for operational reasons and the only reason she was dismissed was because of her own conduct in refusing to engage in the consultation process.
For the reasons that follow, the application must be dismissed.
FACTUAL CONTEXT
Except where indicated, the following facts relevant to the matters in issue were agreed and otherwise constitute findings I have made on the evidence.
On 19 May 2016, the Applicant commenced employment with the Respondent in the role of Casual Risk Advisor. In that role, the Applicant’s key areas of responsibility included: business continuity; crisis management; risk frameworks; investigations; insurance; tenders; legal; risk; privacy; FOI; and crisis management.
In 2017, the Applicant was promoted to a full time position in the role of Governance Advisor in the Assurance Risk and Governance team. In that role, the Applicant initially reported to a Mr Wayne van der Pol (the former Group Risk and Assurance Manager), then a Ms Heidi Mitchell (the former Executive of Strategy, Planning and Governance who had the role of filling Mr van der Pol’s vacancy, when it arose, for a brief time) and most recently a Mr Jeremy Gledhill (Commercial and Risk Manager). The Applicant’s responsibilities in the role included the following:
(a)participating in governance projects as required, including acting as the primary contact for agreed matters or assigned projects where required;
(b)working with line managers to design, document and implement business processes;
(c)participating in investigations under the supervision of the Group Risk and Assurance Manager or Legal Counsel;
(d)assisting with internal and external audits;
(e)implementing and performing appropriate risk identification assessments;
(f)assisting in developing strategy and/or drafting policy in areas including quality, governance and risk;
(g)reviewing and providing support on Government projects – local, state, and federal government – which may affect Citywide interests, including conducting research and drafting submissions and/or communications;
(h)under the supervision of Legal Counsel, assisting with legal documentation including litigation discovery, agreement review and negotiation of dispute settlements;
(i)providing guidance on corporate branding and style guide;
(j)researching and drafting submissions or communications on proposed changes to laws or regulations that might impact Citywide;
(k)maintaining trademark and business name registrations;
(l)maintaining key legal documents such as the Legal Documents Register, Corporate Documents Register, Personal Interests Register, Conflicts Register and Trademarks & Business Names Register;
(m)assisting with freedom of information requests;
(n)undertaking document control on Sharepoint; and
(o)assisting privacy officers to update policies and procedures and create impact notices.
Immediately prior to dismissal, the Applicant was remunerated $87,000 per annum exclusive of superannuation.
In early 2023, Mr van der Pol ceased his employment with the Respondent. After Mr van der Pol’s departure the Respondent went to the market for his replacement because, according to Ms Ryan, the focus was on attaining more capability in risk.
Clarification of the Applicant’s role
On 2 February 2023, the Applicant had a meeting with her then manager Ms Mitchell. During this meeting, the following occurred:
(a)Ms Mitchell acknowledged the extent to which the Applicant had supported the Group Risk and Assurance Manager in overseeing the Respondent’s insurance program; and
(b)the Applicant asked if she could have time to think about whether she would be willing to take on more responsibility.
On 10 March 2023, Ms Mitchell ceased employment with the Respondent and was replaced by a Ms Karla Ryan (the Executive of Assurance, Risk and Governance) who became the team leader of the Assurance Risk and Governance team and had been with the organisation for some time.
Also in March 2023, Mr Gledhill commenced employment with the Respondent in the role of Commercial and Risk Manager. In this role, he was responsible for 3 functions within the Assurance Risk and Governance team. Mr Gledhill reported to Ms Ryan and the Applicant commenced reporting to Mr Gledhill.
In April 2023, Ms Ryan directed Mr Gledhill to get clarity in relation to what the Applicant’s role was and asked him to commence reviewing the Applicant’s position description. Ms Ryan’s evidence was that she suggested this because the Applicant’s work was very ad-hoc and she wanted to provide structure and clarity about what she was doing; in cross examination Ms Ryan also said that she perceived that the Applicant had the capability to take on additional responsibilities.
In early April 2023, Mr Gledhill asked the Applicant for a copy of her position description and she sent him a copy by email. After reviewing it, Mr Gledhill asked to have a meeting with the Applicant about her position description. In cross examination, he told the Court that it was his intention to commence a performance management process (he found the Applicant had trouble in taking initiative and prioritising work) but, before he did so, he had wanted to understand exactly what the Applicant’s role was and what she was doing in her role.
On 18 April 2023, the Applicant had a private meeting with Mr Gledhill in a meeting room. Mr Gledhill said in his written evidence that this was a routine meeting he had set up with his team members when he started working for the Respondent but also said he wanted to take the opportunity to discuss the Applicant’s career aspirations and goals. During this meeting, it was agreed that at least the following occurred:
(a)Mr Gledhill and the Applicant discussed an Australian Practising Certificate as a Solicitor (Practising Certificate);
(b)the Applicant said that she had, in the past, had discussions with the General Counsel and Company Secretary about obtaining her Practising Certificate;
(c)Mr Gledhill questioned, “What else is there?”;
(d)the Applicant mentioned she was familiar with insurance and that she would like to work more in insurance;
(e)Mr Gledhill stated he had looked at the Applicant’s position description and said, “the word ‘assist’ comes up far too often”, “this is not acceptable” and “what do you do?”;
(f)the Applicant explained that her previous boss would take responsibility, but she would do the actual work;
(g)the Applicant also explained that a key element of her work was in privacy and that she had created policy templates, issued collection notices, made sure privacy policy was published on the Respondent’s website, updated documents, undertook privacy impact assessments, wrote reports and made reports to the Government;
(h)Mr Gledhill said, “If you’re already doing the work, you might as well have the responsibility, I see that as a good growth opportunity for you”;
(i)Mr Gledhill stated that he had attended a one-day training course;
(j)the Applicant said that was more training than she had received;
(k)the Applicant said that she had previously raised with Ms Ryan that a more extensive budget was needed to work on privacy. This was, in part, due to the fact that information mapping would be required under new legislation. The Applicant said she needed more resources to address this;
(l)the Applicant said that she was happy to take on the extra responsibility but wanted to be remunerated extra, stating words to the effect of, “If you’re going to change my role, my duties need to be in line with my pay” and, in response, Mr Gledhill did not make any commitment to increasing the Applicant’s remuneration;
(m)Mr Gledhill asked if the Applicant wanted to take on a “more managerial role”;
(n)the Applicant looked at Mr Gledhill’s position description, and informed Mr Gledhill that she had done almost everything on it, except for auditing;
(o)Mr Gledhill asked the Applicant “Are you bitter that you didn’t get this job?”;
(p)the Applicant responded that this was not the case and that she was not angry with Mr Gledhill or the Respondent. The Applicant said that, if anything, she was upset with herself for thinking she had a genuine opportunity for promotion, because this has happened before where a promotion was floated and then nothing came of it;
(q)Mr Gledhill said “I want you to go away and think about your career goals and aspirations for the coming year. We need to work on your PD”;
(r)Mr Gledhill asked the Applicant to revise her position description to bring it in line with her current responsibilities;
(s)the Applicant agreed to do this;
(t)throughout the meeting, Mr Gledhill repeatedly said about the Applicant’s position description, “This is not acceptable.” It was unclear to the Applicant what he was referring to; and
(u)the Applicant was visibly upset at the end of the meeting and Mr Gledhill was frustrated.
In evidence at the hearing, Mr Gledhill said that he did not understand the Applicant’s reference to needing a more extensive budget to work on privacy to be a reference to her own remuneration.
Also in evidence at the hearing, Mr Gledhill was questioned about the source of his frustration in the meeting of 18 April 2023 which he maintained was frustration at the situation – meaning the process that they were going through, and not the Applicant. He denied feeling disappointed about the Applicant’s response that she would want more remuneration for additional duties nor that he considered her response reflective of a poor attitude – rather, his evidence was that the Applicant’s response was “not surprising” but “missed the point”. He elaborated from his perspective as her manager to say that the point was first to update the Applicant’s existing position description and bring it into line with her actual role. From his perspective, the 18 April 2023 meeting had ended because he did not think it could progress when the Applicant became emotional and he concluded by instructing the Applicant to continue thinking about her career goals and aspirations and to provide him with a new position description.
Mr Gledhill clearly recalled that, later that same day on 18 April 2023, there was a very short conversation in which he briefed Ms Ryan on the fact of his earlier discussion with the Applicant. In the course of that conversation, Mr Gledhill told Ms Ryan that he was having difficulty understanding what the Applicant’s role was, that he had discussed the matter with the Applicant and was assessing the Applicant’s appetite to take on additional responsibilities which she was hesitant to do and that she became upset. He told Ms Ryan that they had not made much progress with defining the Applicant’s role. Ms Ryan recalled the discussion and that Mr Gledhill had expressed his disappointment but denied that he was annoyed or had otherwise conveyed to her how he felt about the Applicant’s hesitancy to take on additional responsibilities in her role.
On 19 April 2023, the Applicant claimed to have left a voicemail on Mr Gledhill’s mobile phone number. Mr Gledhill did not recall it. There was a contemporaneous record of a script that the Applicant had prepared and emailed to herself on that day with the subject line “Privacy officer notes to Jeremy as per VM 19/04/2023”, the script being in the following terms:
Hi Jeremy,
I cannot take on the role of Chief Privacy Officer at this stage.
I am paid as an Assistant Privacy Officer.
My pay has never been reflective of what I do, and therefore I cannot take on the responsibilities at this stage without consideration of compensation that is appropriate to any new responsibilities.
I am happy to work with you over the coming weeks to refine my current role, but suitable pay will also need to be addressed.
Thanks
Mr Gledhill did not bring up the Chief Privacy Officer role with the Applicant again. Nor did the Applicant seek or require a response or otherwise follow up with Mr Gledhill (whether orally or in writing).
On 1 May 2023, Mr Gledhill received an email from a Ms Tanya Ritson (People & Culture Business Partner) which said that it attached a “first cut” of a position description which it was accepted did not contain any additional responsibilities on top of her original position description. Mr Gledhill responded to Ms Ritson that same day to request review that day because he wanted to get a draft to the Applicant for her review as soon as possible. His evidence was that he had had a number of verbal discussions with Ms Ritson around what should be in and out of that position description.
From 2 May to 3 May 2023, the Applicant took paid personal leave (without a medical certificate) because she was unwell with flu-like symptoms. She applied for that leave and it was approved by Mr Gledhill.
On around 3 May 2023, Mr Gledhill emailed to Ms Ryan a working draft of an updated position description for the Applicant’s role.
On 4 May 2023, Mr Gledhill emailed Ms Ritson in which he said that he had a really good discussion with Ms Ryan that morning and she was on board and agreed they needed to finalise the Applicant’s position description asap. Mr Gledhill also explained his intention to discuss with another manager whom the Applicant sometimes did work for and to then “get it moving”. In the course of their exchange, Ms Ritson raised concerns about the Applicant’s level of disengagement and whether there might be bigger issues going on in the Applicant’s life which would explain statements she had made such as about feeling dead inside.
On 8 May 2023, Mr Gledhill emailed to Ms Ryan a final draft of an updated position description for the Applicant’s role. By the cover email, he sought Ms Ryan to review the attachment and let him know if she was happy for him to proceed with this. In cross-examination, Ms Ryan said that this would have been the version that she worked from to conduct her desktop review of the Applicant’s role for purposes of making selections for redundancy.
From 10 May to 12 May 2023, the Applicant again took paid personal leave (with a medical certificate) because she was still unwell – and, she said during the course of these proceedings, was suffering from stress arising from her meeting with Mr Gledhill on 18 April 2023. She applied for that leave and it was approved by Mr Gledhill.
On 10 May 2023, Ms Ryan responded to Mr Gledhill’s 8 May 2023 email regarding the draft updated position description in which she said that she was ok with this.
On 15 May 2023, the Applicant returned to work.
On 16 May 2023, Mr Gledhill provided the Applicant with an updated position description and said words to the effect that she should feel free to amend the position description to accurately reflect the work that she was undertaking. The Applicant’s evidence in these proceedings was that she had a few issues with the updated draft position description – namely, that there were some things that were not accurately reflective of her role at the time. She gave examples at the hearing which were objectively minor or insignificant.
The Respondent’s cost reduction program
In April 2023, Ms Ryan attended a meeting with the executives of the Respondent which commenced with a financial forecast presentation from the Respondent’s Chief Financial Officer (a Mr Paul Hudson). On the basis of that presentation, the executives agreed that the organisation needed to embark on a cost reduction program. It was resolved that the Respondent’s Chief Executive Officer (a Mr Chris Campbell) and Mr Hudson would present a proposal to the Board of Directors for elimination and consolidation across the organisation.
In late April 2023, Ms Ryan attended a meeting with Mr Campbell and Mr Hudson. Ms Ryan distinctly recalled that Ms Sabec was not present. The evidence of Ms Ryan was that, prior to that meeting, Mr Hudson had prepared a list of employees in Ms Ryan’s team, and their roles and functions in the team, which he presented to Mr Campbell and Ms Ryan during the meeting. According to Ms Ryan, the 3 of them went through the list, line by line, and assessed which roles in the team could reasonably be made redundant. Mr Campbell and Mr Hudson asked Ms Ryan to identify a role in her team and Ms Ryan was tasked with a review of the Applicant’s tasks and responsibilities to determine if that role could be made redundant.
Subsequently, Ms Ryan followed those instructions by undertaking a “desktop” review of the Applicant’s role for purposes of determining whether the role did not need to be performed by anyone and could be eliminated without seriously impacting the delivery of services by Ms Ryan’s team. Ultimately, Ms Ryan determined that the Applicant be “earmarked” (or nominated) for redundancy. The following evidence was before the Court about Ms Ryan’s decision-making process in this respect:
(a)Ms Ryan’s evidence was that the only document that she took into account for purposes of that review was the position description for the tasks that the Applicant was undertaking and the work that she was doing. Based on this information and also a discussion with another manager whom the Applicant did some work for at times (the General Counsel, in a different reporting line), Ms Ryan said she was unable to identify any significant tasks that the Applicant performed on an ongoing basis that could not be absorbed into another employee’s role. Ms Ryan concluded that the Applicant’s duties were mostly ad-hoc and arose only from time to time or reactively. For this reason, it was an easy decision to make.
(b)Ms Ryan did not have knowledge of the Applicant’s personal leave. Her evidence was that she did not have responsibility for approving the Applicant’s leave and that responsibility rested with Mr Gledhill.
(c)Ms Ryan expressly denied having taken into account Mr Gledhill’s opinion about the Applicant’s hesitancy to take on additional responsibilities in her role and denied any recollection of Mr Gledhill having said that he did not consider the Applicant’s role to be a requirement. Further, Ms Ryan’s written evidence was that she did not discuss the cost reduction program or her decision to propose the Applicant’s role for redundancy with Mr Gledhill. Mr Gledhill said he was not aware of the cost reduction program or the decision to earmark the Applicant’s role for redundancy until Ms Ryan told him in a conversation that took place approximately 10 minutes before company-wide email sent on 24 May 2023 (outlined below).
(d)Ms Sabec also said that she was not involved in the selection of the Applicant for redundancy and said that it was the Applicant’s executive manager, Ms Ryan, who was responsible for that decision.
In late April or early May 2023, according to the evidence of Ms Ryan, Ms Ryan informed Mr Campbell and Mr Hudson that the Applicant’s role was suitable for redundancy.
On 15 May 2023, there was a meeting of executives attended by Ms Sabec. Ms Sabec’s evidence was that this was the first she knew of the cost reduction program. No one recalled whether Ms Ryan was present but as an executive she would have been invited to join the meeting. Arising from this meeting, Ms Sabec was tasked with supporting the executive managers in collating a list of their nominations to be approved by the CEO before People & Culture could commence the consultation and redeployment process. On being recalled to give evidence, Ms Ryan’s evidence was that CEO approval of her earmarking or nomination decision was not required, although she accepted that the CEO had oversight and at least the opportunity to say that a particular nominated role would not be made redundant.
The next step in the process according to Ms Sabec was that the People & Culture team were provided the list to start the process of consultation and the process of potential redundancy. Ms Ryan then signed and issued a template letter prepared by Ms Sabec or the People & Culture team (defined below as the Consultation Letter) and the matter was then referred to People & Culture for handling the consultation process.
In total, there were approximately 45 roles identified by executive managers as suitable for redundancy across the organisation.
At 1.34pm on 24 May 2023, the Applicant received an email from Mr Campbell. The record itself was in evidence but did not disclose the recipients. The Respondent’s evidence was that this email was sent company-wide, to all employees. The CEO’s email included the following:
We are all aware of the challenging year we have had, with disappointing commercial results having been impacted by difficult marketing conditions. Those conditions include the highest inflation experienced for many years in Australia. In addition, many of you may have seen the recent announcement by the Victorian Government on increases to WorkCover Premiums and Victorian Payroll Tax, which will also have an impact going forward.
As such, and like many businesses across Australia, Citywide needs to take prudent and necessary steps to ensure that we can continue to be a viable business, providing a strong and sustainable platform to deliver our Strategy.
In this context, I wish to advise that following detailed consideration of all relevant factors, the Board of Citywide has endorsed my recommendation that Citywide undertake a Cost Reduction Program. This program will involve a number of existing Corporate and Operational Overhead roles that are proposed to become redundant, accounting for about 3% of Citywide’s full-time roles.
[…]
At 2.24pm on 24 May 2023, the Applicant received an email from Ms Sabec, as follows:
Dear Amanda,
Following the CEO’s announcement earlier today regarding Citywide’s Cost Reduction Program, I wish to advise that your role may be impacted by the Program.
Either your manager or I will be in contact with you again shortly to set up an initial consultation meeting with you. You may bring a support person to the meeting. Meanwhile, please reach out to me or your Manager if you have any questions.
I propose we have a Team’s call to discuss in 15 minutes, it would be great to please make yourself available.
If you are affected by this and wish to talk to someone, our Employment Assistance Program is available 24/7 on [phone number omitted].
Shortly after this email, also on 24 May 2023, Ms Sabec sent a meeting invitation to the Applicant.
At 2.27pm on 24 May 2023, the Applicant forwarded the CEO’s announcement email to her personal email address.
At 4.22pm on 24 May 2023, the Applicant received an email from Ms Sabec in the following terms:
Hi Amanda,
Just reaching out to see if Jeremy and I can book in a time tomorrow to connect.
Look forward to hearing from you.
Regards Tina
The Applicant did not respond to any of the email communications of 24 May 2023. She immediately commenced to take a period of personal leave and did not notify anyone of her leave because, she said, she was in no state to do so. The Applicant did not return to work again after that date.
At 4.46pm on 25 May 2023, the Applicant received an email from Ms Sabec. Ms Sabec’s email was in the following terms:
HI Amanda,
I am following up on email as Jeremy and I have attempted to contact you (via email and phone) without success.
Please see attached. I will also send a copy via registered post today too.
Citywide encourages you to contact your Manager to discuss your role and the letter attached.
Again, we do recognise that this will be a difficult time for you and your family, and wish to remind you of the Citywide Employee Assistance Program that is available through Converge International, available 24 hours a day, and that this service both free and confidential. EAP can be contacted on 1300 687 327.
Kind regards
Tina
(sic.)
Attached to Ms Ryan’s 25 May 2023 email was a letter (Consultation Letter). The Consultation Letter is extracted in full at Annexure A to these reasons. Ms Ryan was taken to the contents of this letter (specifically, the invitation to consult about exploring measures to avoid or reduce any adverse impact) and tested in cross-examination about whether it had been definitively decided that the role was redundant at the point of sending this letter - Ms Ryan said that was not the case, redundancy had not been decided and there was no more than “potential for redundancy at that point in time”. Ms Sabec disagreed and said that, by this time, it was decided that the position would be made redundant and there was no opportunity for the Applicant to challenge it because the business had assessed it could manage without that role. For her part, the Applicant told the Court that she remembered reading this letter:
---I remember reading this letter. I got to the proposal section. And it says, “It is proposed your role of governance will not be required on or and from 5 June 2023.” I read that, and that told me I was gone. I didn’t read beyond that. I just went, “I’m gone. They’re getting rid of me. That’s my dead date. I’m gone.
So I didn’t look at next steps, because what next steps are there? You’ve been told you’re gone. That’s your date. Goodbye. Thanks. Out the door.”.
After sending that letter, Ms Ryan was not involved in the consultation process which was handled by the People & Culture team in her absence (Ms Ryan took a period of personal leave).
At 11.47am on 29 May 2023, the Applicant received a text message from Ms Sabec in the following terms:
Hi Amanda, this is Tina from Citywide reaching out. I am checking in to see that you are ok as Citywide have not heard from you since last Wednesday. Could you please make contact with your manager or member from Citywide. If Citywide don’t hear back we will attempt to call your emergency contact on the system. Kind regards Tina
At 12:07pm 29 May 2023, the Applicant responded by text message in which she said she was very stressed and needed some time to process the decision.
At 12:20pm on 29 May 2023, Ms Sabec replied by text message to thank the Applicant for making contact.
On 1 June 2023, the Applicant’s solicitors sent the Respondent a letter. This was received by the Respondent.
On 5 June 2023, Ms Ryan sent the Applicant a letter prepared by Ms Sabec, terminating the Applicant’s employment effective close of business, 6 June 2023. The dismissal letter was signed by Ms Ryan and extracted in full at Annexure B to these reasons.
Applicant’s post employment efforts
Relevant to the relief sought, there was evidence of the Applicant’s efforts to find another job as follows:
(a)Between June and October 2023, the Applicant did not actively seek employment.
(b)In around October 2023, the Applicant made her first application for another job.
(c)In November 2023, the Applicant made her second application for another job.
(d)From November 2023 to July 2024, the Applicant applied for some 26 jobs.
(e)In August 2024, the Applicant applied for some 8 jobs.
When put to her in cross examination, the Applicant did not accept her job seeking efforts prior to August 2024 as fairly low. She elaborated to say that she did what she could, her previous role was extremely difficult with responsibility and remit for so many areas and she was waiting for governance roles to come up.
The Applicant described her difficulties including loss of sleep, struggling to get out of bed some days and trauma experienced over little things like rubbish collection arising from the loss of her job with the Respondent. She admitted that this was a self-diagnosis and that she had not sought a mental health plan. She told the Court that the main reason for her delay in applying for other jobs was because she felt worthless, hated herself, did not want to deal with anyone and could not even think about typing a cover letter because: “what would she say?”.
THE CASE BEFORE THIS COURT
Grounds of the application
By the conclusion of the hearing, the Applicant had confined the scope of her originating application (form F2) as to claim contraventions of s.340 of the Act which may be summarised as follows:
(a)Adverse action in selecting the Applicant’s role for redundancy taken because the Applicant had and had exercised her workplace rights to:
(i)make a complaint or inquiry in relation to her employment, under s.341(1)(c)(ii) of the Act; and
(ii)take paid personal leave in accordance with her entitlement under the National Employment Standards at s.97 of the Act, under s.341(1)(a),
(alleged contraventions of s.340(1)(c)).
(b)Adverse action in dismissing the Applicant’s employment by reason of redundancy taken because the Applicant had, had exercised or proposed to exercise workplace rights to:
(i)make a complaint or inquiry in relation to her employment, under s.341(1)(c)(ii) of the Act; and
(ii)take paid personal leave in accordance with her entitlement under the National Employment Standards at s.97 of the Act, under s.341(1)(a),
(alleged contraventions of s.340(1)(a)).
For these contraventions, the Applicant sought compensation orders for economic loss at 2 years’ pay and non-economic loss or general damages being for hurt, humiliation and distress. The Applicant also formally claimed pecuniary penalties.
Materials relied on
The Applicant relied on the following, subject to certain evidence being excluded (because it was not pressed or subject of a ruling of the Court on objections):
(a)Originating application and form F2 filed on 7 September 2024;
(b)First affidavit of Ms Amanda Kovacs affirmed on 5 July 2024;
(c)Second affidavit of Ms Amanda Kovacs affirmed on 15 August 2024;
(d)Outline of evidence in chief of Ms Amanda Kovacs adopted as evidence on 1 October 2024; and
(e)Oral evidence of Ms Amanda Kovacs at hearing on 1 October 2024.
The Respondent relied on the following, subject to certain evidence being excluded (because it was not pressed):
(a)Amended response filed on 27 May 2024;
(b)Affidavit of Ms Karla Ryan, Executive of Assurance, Risk and Governance, affirmed on 2 August 2024;
(c)Affidavit of Mr Jeremy Gledhill , Commercial and Risk Manager, affirmed on 2 August 2024;
(d)Affidavit of Ms Tina Sabec, People and Culture Manager, affirmed on 2 August 2024;
(e)Oral evidence of Ms Ryan at hearing on 1 and 2 October 2024;
(f)Oral evidence of Ms Sabec at hearing on 1 October 2024; and
(g)Oral evidence of Mr Gledhill at hearing on 1 October 2024.
Both parties filed outlines of written submissions in advance and made oral submissions in closing at the conclusion of the hearing.
Statutory framework
Part 3-1 of the Act is titled “General Protections”. Within it, “Division 3 – Workplace rights” includes provisions designed to protect certain workplace rights and industrial activities.
The Act provides a separate regime, at Part 3-2, for “Unfair Dismissal” which establishes a framework of procedures for dealing with unfair dismissal and remedies if a dismissal is found to be unfair (including a non-genuine redundancy).
The alleged contraventions in the present case arise under Part 3-1. The starting point is s.340 of the Act which relevantly provides (and, at all relevant times, provided) that a person must not take “adverse action” against another person because the other person has a workplace right or has exercised a workplace right or has at any time proposed to exercise a workplace right: s.340(1)(a).
“Adverse action” is (and was) defined at s.342(1). Relevantly, adverse action is taken by an employer against an employee if the employer dismisses the employee or alters the position of the employee to the employee’s prejudice or discriminates between the employee and other employees of the employer: items 1(a) and (c) of s.342(1) of the Act.
Sub-section 342(2) goes on to clarify that the meaning of “adverse action” includes a threat of such action: s.342(2)(a). There are then exceptions for action authorised by or under any other law of the Commonwealth or a law of the State where prescribed by the Regulations (none of which is presently applicable): s.342(3).
“Workplace right” is defined at s.341, in 3 broad categories which relevantly provides (and provided) as follows:
Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
Division 7 is titled “Ancillary Rules” and recognises that some adverse action may be taken for more than one reason. In order to be actionable under Part 3-1, it is sufficient that the relevant adverse action is taken for reasons that include a proscribed reason: s.360.
The statute also provides a rebuttable presumption concerning the proof of the reasons for which action was taken: s.361. That is – if, in an application in relation to a contravention of Part 3-1 of the Act, a person is accused of having taken action for a particular reason or with particular intent and if the taking of that action for that reason or with that intent would constitute a contravention of Part 3-1 then it is presumed that the conduct was engaged in for that reason, unless or until the person who engaged in it proves otherwise. It is for the applicant to at least make out the essential elements of their claim before the onus will shift to the respondent to prove otherwise.
The alleged workplace rights
The respective contentions
It was not disputed and I find that the Applicant’s entitlement to the benefit of paid personal leave under the National Employment Standards in the Act was a “workplace right” within the meaning of s.341(1)(a) which she had in fact exercised on 2 to 3 May 2023 (the first workplace right) and 10 to 12 May 2023 (the second workplace right).
However, it was the other claimed workplace rights that were the focus of the Applicant’s claim and were in strong dispute. Specifically, the Applicant asked the Court to find that the following were to be characterised as a complaint or inquiry that she was able to make in relation to her employment and therefore a “workplace right” within the meaning of s.341(1)(c)(ii) of the Act:
(a)On 18 April 2023, in a meeting with Mr Gledhill, the Applicant:
(i)mentioned that she was familiar with insurance and that she would like to work more in insurance;
(ii)said that she had previously raised with Ms Ryan that a more extensive budget was needed to work on privacy, this was in part due to the fact that information mapping would be required under new legislation and she needed more resources to address this;
(iii)said she was happy to take on extra responsibility but wanted to be remunerated extra, stating words to the effect of “If you’re going to change my role, my duties need to be in line with my pay”; and
(b)On 19 April 2023, the Applicant attempted to call Mr Gledhill and left a voicemail by which she read a pre-prepared script (extracted in full, below).
The source of these alleged workplace rights was said to be the right to make an inquiry or complaint pursuant to the terms of the Applicant’s employment agreement and under the general law. In these respects, the Respondent maintained that the Applicant’s claim could not succeed because it did not disclose the fact or exercise of a complaint or inquiry that the Applicant was able to make in relation to her employment.
The applicable principles
The principles to be derived from the established authorities were not in dispute.
A “complaint” in this context is an expression of discontent which seeks resolution, redress or relief: Alam v National Australia Bank Limited [2021] FCAFC 178 at [59] (White, O’Callaghan and Colvin JJ) citing Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204 at [13] (Bromberg J, with whom Mortimer J agreed); Shea v Tru Energy Services Pty Ltd (No 6) (2014) 314 ALR 346 at [579]-[581] (Dodds-Streeton J) and has to be more than a mere request for assistance and should state a particular grievance or finding of fault: Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346 (Shea) at [29].
Whereas an “inquiry” in the present context involves an investigation or examination made for the purposes of acquiring knowledge or information: Flageul v WeDrive Pty Ltd [2020] FCA 1666 at [248] (Steward J) referring to Maric v Ericsson Australia Pty Ltd [2020] FCA 452. An inquiry may include a request for information or the posing of a question by an employee in relation to their employment: Pigozzo v Mineral Resources Ltd [2022] FCA 1166 at [43] (Feutrill J) citing PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 (PIA) at [136]-[138] (Snaden J).
The “complaint” or “inquiry” under s.341(1)(c)(ii) must be one that an employee alleging to have the workplace right is “able to make” in relation to their employment. Guidance of a Full Court of the Federal Court of Australia on interpretation of this sub-provision is that it does not require a narrow interpretation. An employee’s complaint (or, by extension of the Full Court’s reasoning, an inquiry) to an employer about an alleged failure to comply with a contract of employment (or breach of a condition of the contract of employment) may fall within this sub-provision in circumstances where the source of an employee’s ability to so complain or inquire is (in such case) the general law of contract: PIA at [25]-[26] citing Whelan v Cigarette & Gift Warehouse Pty Ltd (2017) 275 IR 285. Such complaint must be made genuinely, in good faith and for a proper purpose: PIA at [26] citing Shea.
I turn now to consider each of the claimed instances of a complaint or inquiry in light of the established principles.
Can the claimed instances be properly characterised as a complaint or inquiry that the Applicant was able to make for purposes of s.341(1)(c)(ii)?
The evidence as to the events of 18 and 19 April 2023 was largely undisputed.
Relevantly, on 18 April 2023, the Applicant had a private meeting with her direct line manager, Mr Gledhill. Mr Gledhill, having commenced in the role just weeks prior, sought to learn more about the Applicant and her role. In what was a continuation of a discussion commenced by Ms Mitchell, and before commencing a process of managing the Applicant’s performance in her then existing role, Mr Gledhill sought to clarify and update the Applicant’s position description and invited a discussion about options to take on more responsibility in her role - including the prospect of a Chief Privacy Officer role. In response, the Applicant told Mr Gledhill that she wanted to progress her career with the Respondent and conveyed her view that she would want to be remunerated for taking on any higher duties.
Of the various agreed points of discussion and statements made during the meeting on 18 April 2023 (extracted above), the following were the focus of these proceedings:
(a)the Applicant mentioned she was familiar with insurance and that she would like to work more in insurance;
(b)the Applicant said that she had previously raised with Ms Ryan that a more extensive budget was needed to work on privacy. This was, in part, due to the fact that information mapping would be required under new legislation. The Applicant said she needed more resources to address this; and
(c)the Applicant said that she was happy to take on the extra responsibility but wanted to be remunerated extra, stating words to the effect of, “If you’re going to change my role, my duties need to be in line with my pay” and, in response, Mr Gledhill did not make any commitment to increasing the Applicant’s remuneration.
By the end of the 18 April 2023 meeting, the Applicant had become upset and Mr Gledhill had demonstrated his frustration at the situation meaning the process they were going through. However, it was not contentious that the outcome of that meeting was that Mr Gledhill and the Applicant agreed to work on the position description for the Applicant’s then current role.
On 19 April 2023, the Applicant claimed to have left a voicemail on Mr Gledhill’s mobile phone number. Mr Gledhill did not recall it. There was a contemporaneous record of a script that the Applicant had prepared and emailed to herself on that day with the subject line “Privacy officer notes to Jeremy as per VM 19/04/2023”. The fact of the voicemail itself being recorded on Mr Gledhill’s phone was not probatively established. For present purposes and on balance, with regard to the contemporaneously emailed script, it is accepted that the reverse onus is engaged in this respect.
By the evidence of the discussion in that meeting, the Applicant’s statements can not properly be characterised as a series of inquiries and complaints about her contracted terms and conditions of employment as they related to duties and remuneration. Addressing the evidence about each claimed inquiry in turn:
(a)In her own words, the Applicant mentioned that she was familiar with insurance and would like to work more in insurance. This is properly viewed, in its context, as an expression of what would interest the Applicant in terms of her career goals and progression. It was a legitimate consideration to mention in the course of a conversation about the prospect of exploring career opportunities, where a new role had not yet been created, offered or accepted. By her words and subsequent conduct, the Applicant did not require a response and this mention is not properly characterised as a request for information or the posing of a question as to amount to an “inquiry” within the meaning of s.341(1)(c)(ii).
(b)Also on her own account, the Applicant stated that she had previously raised with Ms Ryan that a more extensive budget was needed to work on privacy, including due to new legislation, and she stated that she would need more resources to address this. This was also a legitimate consideration to raise in the course of a discussion about the possibility of the creation of a new role, dedicated to privacy, which Mr Gledhill proposed would be a promotion to a managerial role. Against that context and again by the plain words used, this reference to requiring more resources if the organisation were to focus the Applicant’s role on privacy was an assertion rather than a request for information or the posing of a question by the Applicant and was not an “inquiry” within the meaning of s.341(1)(c)(ii).
(c)The Applicant advised Mr Gledhill that she was happy to take on extra responsibility but wanted to be remunerated accordingly – in her own words she had stated that, if her role was to change and she was to be taking on higher duties, then it would need to be in line with her pay. Again, this was a hypothetical discussion about possible terms and conditions attaching to a new role that had not been created, offered or accepted at that time. In the context of their discussion on 18 April 2023, this was a foreshadowed claim was there to be an offer of a new role but not an inquiry for purposes of s.341(1)(c)(ii) nor could it constitute a complaint about her then current terms and conditions within the meaning of s.341(1)(c)(ii).
Whether or not he received the voicemail, against the relevant context Mr Gledhill was entitled to understand the voicemail message to be the Applicant’s communication of a position, her statement of rejection of the opportunity to explore the creation of a Chief Privacy Officer role (a discussion about possible promotion to a managerial role with additional responsibilities attached, which had not yet been created or offered or accepted). The Applicant did not raise a question or ask for information about her then current duties, terms and conditions, nor could her conclusory statement be taken as such.
To the extent that the Applicant sought to say the voicemail constituted a complaint about her then current remuneration, that conclusion is also not available on the evidence. The Applicant’s evidence was that she made a reference to her pay having “never been reflective” of what she did and that therefore she was happy to work with Mr Gledhill to refine her role but suitable pay would also need to be addressed. In its proper context, the plain purpose of that voicemail was to respond to and reject the offer to explore a managerial role unless additional remuneration were attached. That the Applicant added a brief justification of her perceived value to the organisation in her then role does not, in my view, change the character of this message. That statement was linked to her future position. It was not a complaint that required redress nor was it a complaint about her then current remuneration.
Such findings are consistent with the evidence that, on the face of the Applicant’s script, she did not seek or require a response and did not follow up on that voicemail or seek a response from Mr Gledhill (whether orally or in writing) in the days and weeks that followed. Accepting that the voicemail of 19 April 2023 was left, it is not properly characterised as an inquiry or a complaint that the Applicant was able to make for purposes of s.341(1)(c)(ii).
Resolution
Having concluded that the established workplace rights, which were exercised, were the personal leave taken 2 to 3 May 2023 and 10 to 12 May 2023, I turn to consider whether any of the alleged adverse actions were taken for reason(s) that included the established workplace right(s).
The reasons for the alleged adverse actions
The adverse actions
It was not understood to be seriously disputed, and I find, that the selection of the Applicant’s role for nomination for redundancy in late April or early May 2023 communicated by letter of 25 May 2023 and the dismissal by reason of redundancy communicated by letter of 5 June 2023 were adverse actions within the meaning of s.342(1) (items (1)(c) and (a), respectively). Other references to possible adverse actions were not developed and understood not to be pressed.
It is necessary to first identify the relevant decision-maker(s) on the part of the Respondent in order to assess what was in the corporate mind of the Respondent and to ascertain the Respondent’s reason(s) for the adverse actions in this case: Qantas Airways Ltd v Transport Workers Union of Australia (2023) 412 ALR 134 at [107]; Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2012] HCA 32 at [44]; see also Wong v National Australia Bank Limited [2021] FCA 671 at [84].
The redundancy nomination decision
The Respondent sought to position Ms Ryan as the sole manager responsible for the decision to nominate the Applicant’s role for redundancy (the first adverse action decision). The Applicant initially accepted that Ms Ryan was the primary decision-maker in respect of this first adverse action decision but, by the conclusion of the trial, came to say that the evidence as to the identity of the relevant decision-maker(s) was uncertain.
The evidence was that the nomination of the Applicant’s role for redundancy was first communicated to the Applicant by Ms Ryan, who signed and sent the Consultation Letter of 25 May 2023. Consistent with this contemporaneous record and as corroborated by Ms Sabec, I accept the evidence of Ms Ryan that she was the responsible decision-maker for the first adverse action decision.
Ms Ryan’s decision-making process commenced in April 2023. The evidence of Ms Ryan’s decision-making process did not disclose a prohibited reason in the exercise of either or both of the established workplace rights. Ms Ryan articulated cogent operational reasons for her earmarking of the Applicant’s role for redundancy. I accept that Ms Ryan must have been influenced in her assessment of the Applicant’s role by the information provided to her by Mr Gledhill about the Applicant’s duties as he had prepared the draft position description that Ms Ryan took into account. Mr Gledhill had conveyed to Ms Ryan that he did not see the Applicant’s role as required. Further, Mr Gledhill had kept Ms Ryan as his manager appraised of the outcome of the 18 April 2023 meeting and, as such, Ms Ryan knew of Mr Gledhill’s view that the Applicant was hesitant to take on additional duties and that she had become upset in the 18 April 2023 meeting during a discussion about her role. Ms Ryan’s desktop review of the position description together with a likely discussion with the General Counsel about the duties performed for their team may not have constituted an extensive review nor was it necessarily best practice but the relevant question in this context is what (if any) prohibited reasons were actuating Ms Ryan’s nomination decision. Having considered Mr Gledhill’s input and on direction of Mr Campbell and Mr Hudson to nominate roles for redundancy in her team, Ms Ryan concluded that the Applicant’s role was ad hoc and arose only from time to time and was rarely subject of an ongoing requirement – and these are the factors that she took into account in deciding that the Applicant’s role was not essential to the Assurance Governance and Risk team.
Mr Gledhill’s pursuit of the closely parallel role clarification process was a continuation of a discussion commenced in February 2023 by Ms Mitchell. Regardless of whether his timing was a mere unfortunate coincidence or deliberate on Ms Ryan’s part in the knowledge that an organisational restructure was pending, I accept the evidence of Mr Gledhill corroborated by Ms Ryan - that Mr Gledhill did not know of the cost reduction program or the prospect that the Applicant’s role was nominated for redundancy until immediately prior to the CEO’s company-wide announcement on 24 May 2023. By the swift succession of communications that followed on 24 and 25 May 2023, the decision to nominate the Applicant’s role for redundancy had been made by the time Mr Gledhill was informed. Accordingly, Mr Gledhill did not knowingly contribute to the decision to nominate the Applicant’s role for redundancy.
On the evidence before the Court, I accept that Ms Ryan was not responsible for approving the Applicant’s personal leave on either occasion of 2 to 3 May or 10 to 12 May 2023 nor did she have day-to-day management or interaction with the Applicant. That does not mean that the Applicant’s exercise of workplace rights to personal leave on those occasions were not a fact within Ms Ryan’s direct knowledge by the time the first adverse action decision was sought to be communicated to the Applicant on 24 and 25 May 2023. However, the evidence of the plain sequence of events was as follows: in February 2023, following departure of the Applicant’s longer term manager (Mr Van der Pol) a new temporary manager (Ms Mitchell) had sought to discuss the Applicant’s duties and asked her to consider taking on additional duties; in April 2023, Ms Ryan directed Mr Gledhill to commence a review of the Applicant’s position description which was to be updated; and, at least by 18 April 2023, Mr Gledhill had formed a view conveyed to Ms Ryan that he did not understand what the Applicant did in her role and did not consider it to be required. It was in late April 2023 that Ms Ryan was directed to nominate a role for redundancy and commenced consideration of the Applicant’s role for nomination as part of the cost reduction program. This prior context is supportive of, and I accept, Ms Ryan’s evidence of her reasons for the first adverse action decision and her evidence that there were no other reasons (including the Applicant’s exercise of her workplace rights to take personal leave occurring after the aforementioned events, on 2 to 3 May and 10 to 12 May 2023) that formed part of her decision to nominate the Applicant for redundancy.
However, as the evidence bore out at trial, there were other actors involved in this first adverse action decision and it is necessary to identify whether there were others whose contribution to that decision rose beyond a threshold level – that is, in a way that was indispensable, material, significant, plainly important, major, substantial or essential: per Snaden J in Pilbrow v University of Melbourne [2024] FCA 1140 at [78] summarising authorities in Elliot v Kodak Australasia Pty Ltd (2001) 129 IR 251, Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd (2015) 253 IR 166, Qantas Airways Ltd v Transport Workers’ Union of Australia (2022) 292 FCR 34, and Wong v National Australia Bank Ltd (2022) 318 IR 148.
The direction to nominate a role in the Assurance Risk and Governance team for redundancy (including to give consideration to nomination of the Applicant’s role) was first floated by the Respondent’s CEO and the CFO in the context of an organisation-wide cost reduction program, at a meeting with Ms Ryan sometime in April 2023. That Mr Campbell and Mr Hudson were not called to give evidence could leave open, as an unforeclosed possibility, that any one or both of them had materially affected Ms Ryan’s redundancy nomination decision. However, the sequence of events is such that Mr Campbell and Mr Hudson could not have known of the exercise of the Applicant’s established workplace rights at the time of the April 2023 meeting - because the exercise of those workplace rights to take personal leave had not yet happened. Their involvement in the first adverse action decision bears no further scrutiny. The Applicant’s role was one of 45 roles nominated for redundancy across the organisation as part of this cost reduction program, affecting a total of 3% of the entire workforce. While Mr Campbell, by the very nature of his position, retained ultimate oversight and potential to interfere in Ms Ryan’s decision, I accept the evidence of Ms Ryan that his approval of her nomination was not required. Ms Ryan impressed as a reliable witness. Ms Ryan was candid and clear about her responsibility and the process that applied to her and the Assurance Risk and Governance team. Ms Sabec’s evidence was given from her perspective and role in the process, and was not inconsistent to the extent that her evidence was that a list of the executive nominations was collated for Mr Campbell before distribution to the People & Culture team and they were approved to commence the notification and consultation process for the 45 nominated individuals.
By the time Ms Sabec became involved in the first adverse action decision, the Applicant had exercised the established workplace rights. Given her role in the People & Culture team she could have been privy to that information. However the evidence supports a finding that Ms Sabec’s contribution to the first adverse action was transactional. It was limited to preparation of the draft Consultation Letter for Ms Ryan to sign off and send, which act was to give effect to Ms Ryan’s executive nomination and was not motivated by other reasons.
I conclude that the Respondent has discharged the onus in relation to the first adverse action decision and the exercise of the Applicant’s established workplace rights bore no more than an association by virtue of its relative proximity to her nomination for redundancy but was not any part of the reasons for this decision.
The redundancy dismissal decision
The Respondent also sought to position Ms Ryan as the sole decision-maker responsible for the decision to dismiss the Applicant by reason of redundancy, communicated to the Applicant by letter of 5 June 2023 (the second adverse action decision).
On the face of the Dismissal Letter, the letter was signed and sent by Ms Ryan who was the primary decision-maker. However, in her oral evidence to the Court, Ms Sabec also seemed to accept responsibility for (in her words) the final execution of the dismissal process following unsuccessful attempts to consult with the Applicant. Much was sought to be made of Ms Sabec’s oral evidence which was said to cast doubt on Ms Ryan’s evidence about who the decision-maker really was. Ms Sabec gave the impression of being evasive because she avoided answering (when asked directly) who made the dismissal decision. On the evidence, I accept that Ms Ryan was the primary decision-maker with substantial input from Ms Sabec.
Turning then to their motivating or actuating reasons.
The context to the first adverse action decision is relevant to the extent that the announcement of that decision set in motion the events that lead to the second adverse action decision.
The Consultation Letter of 25 May 2023 proposed the Applicant’s role for redundancy and invited the Applicant to consult with the Respondent about the proposal and avoidance of any adverse effects before the Respondent reached a decision about the proposal.
Ms Ryan’s evidence was that she was not able to be involved in the attempted consultation process that followed the issue of the Applicant’s Consultation Letter because she was on personal leave.
The contemporaneous records demonstrate 3 attempts made by Ms Sabec to meet with the Applicant by way of consultation about the redundancy proposal. The Applicant, who at that time considered her dismissal to be a fait accompli, was aware of and received those communications about requests to consult but elected not to respond. The Applicant’s level of disengagement was such that Ms Sabec sent a welfare check message on 29 May 2023.
Contrary to the plain text of the Consultation Letter, Ms Sabec’s oral evidence was that, from the time of issue of the Consultation Letter, the redundancy of the Applicant’s role was decided and the alternatives to be discussed were limited to redeployment options of which there were few. The Applicant sought to level criticism at this approach which might be warranted in pursuit of a different cause of action. Regardless of whether Ms Sabec was technically correct in this view, relevant to her state of mind in relation to the second adverse action decision, Ms Sabec’s evidence left the Court in no doubt that, at least in her mind, absent the Applicant’s participation in consultation, the organisation had no option than to confirm the redundancy.
Ms Ryan was informed by Ms Sabec that the Applicant had not engaged with the consultation process and therefore there were no alternatives to redundancy. The Dismissal Letter expressed this difficulty by confirming at the very outset that attempts had been made to consult and declined by the Applicant and that redeployment was not an option. In all of the circumstances, it is apparent that consultation with the Applicant was futile. I accept the evidence that, on that basis and in light of the information conveyed to her by Ms Sabec, Ms Ryan signed off on the Dismissal Letter that was prepared by Ms Sabec and sent it to the Applicant on 5 June 2023.
It is accepted that there were no other reasons for the dismissal and the Applicant’s personal leave taken on 2 to 3 and 10 to 12 May 2023 bore no more than an association with the circumstances leading to her dismissal.
Accordingly, the Respondent has discharged the onus in respect of the second adverse action which was not taken for a prohibited reason.
CONCLUSION
For the above reasons, the application must be dismissed. There will be no order as to costs.
I certify that the preceding one hundred and eight (107) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 15 October 2024
ANNEXURE A
STRICTLY PRIVATE AND CONFIDENTIAL
25 May 2023
Amanda Kovacs
[address omitted]Dear Amanda,
Re: Proposed Changes Which May Affect Your Role of Governance Advisor
Given your absence from work, we want to make sure you have the opportunity to participate in the consultation process that is currently taking place in relation to proposed redundancies, as you may not be able to attend meeting to discuss with us. If there is anyth1ng we can do to assist you to be involved in that process, please let me know.
This fetter sets out some more information about Citywide's decision to implement a cost reduction program and the proposals to make a number of roles redundant. The letter also outlines the potential impact of these changes on your employment.
Cost Reduction Program
You will no doubt be aware of the challenging year that Citywide has had, including our disappointing commercial results. Citywide has been impacted by difficult market conditions, including the highest inflation experienced for many years in Australia. More recently, you may also have seen the announced changes to WorkCover premiums and Payroll Tax, which will have a significant impact on our profitability going forward.
Although market conditions are moderating somewhat, we still expect trading conditions in FY24 to remain challenging. like many businesses in Australia, in such circumstances Citywide needs to take the necessary steps to ensure our ongoing sustainability for our service delivery at the high standard that our customers have come to expect and appreciate.
In this context, Citywide has decided that these difficult circumstances necessitate a prudent reduction in our cost base. As such, we need to reduce our headcount to reduce our labour costs and improve our underlying profitability. We have reviewed our corporate services and operational overhead structures, including consideration of the potential for distribution of duties and responsibilities across other roles within these areas. We also considered how we might achieve optimisation, reduce duplication of tasks, and also consider re-alignment of tasks in line with expected future service delivery.
I do understand that this situation, with the potential impact on your employment at Citywide, will be challenging to hear, and may have a significant personal impact for you. This decision has been a difficult one for the Management and Board to take, but unfortunately it is also a necessary course of action for us to take.
I would also note that consideration of your role to potentially be made redundant is based on operational considerations, and this does not reflect on your personal performance or delivery in the role.
Proposal
As a consequence of that review, it is proposed your role of Governance Advisor will be not required on and from 5th June 2023 (effective date). This is because the duties of the role can be more appropriately reallocated to other roles or alternatively not be performed.
How Does the Proposal Affect You?
If the proposed changes are adopted, your role would become redundant - absent redeployment, your employment would end on grounds of redundancy. We can discuss with you whether you would exit employment with Citywide after completion of your Notice Period, or whether some or all of your Notice Period may be paid out.
What Are Next Steps?
Before Citywide reaches a decision regarding the proposal, we will consult with you to explore the measures that might avoid or reduce any adverse impact, including your potential redeployment to another role that may be suitable, vacant and available. At this stage, we are not able to comment on the extent of potential suitable redeployment opportunities (if any) that may be applicable to you, but we will continue to monitor this and keep you informed up to your departure from Citywide employment.
To enable Citywide to address any questions you may have, and also to discuss the options or alternatives that may be available to you, a meeting will be arranged over the next few days. If you have any questions or wish to discuss any options or alternatives that may be available to you, please contact me, your manager or P&C Business Partner no later than 4pm on 2nd June 2023. Citywide intends to make a final decision on the proposal shortly after this time.
Given your circumstances you may prefer to provide your input in writing.
If, after consultation, your employment does end on the grounds of redundancy, you would be paid redundancy pay as well as your accrued entitlements up to and including that date. This may include being paid some or all of your Notice Period if you are not required to work out your notice.
You will receive an estimate of payment setting out your redundancy entitlements, as well as the details pertaining to any outplacement program which may be offered on completion of your employment.
Again, we wish to remind you of the Citywide Employee Assistance Program that is available through Converge International, available 24 hours a day, and that this service both free and confidential. EAP can be contacted on 1300 687 327.
Yours Sincerely,
[signature omitted]
Karla Ryan
Executive – Assurance, Risk & Governance
ANNEXURE B
STRICTLY PRIVATE AND CONFIDENTIAL
5 June 2023
Amanda Kovacs
C/- McDonald Murholme
By email: [email protected]
Also by post to:
Amanda Kovacs
[address omitted]Dear Amanda,
Your Employment
Since 24 May 2023 we have been attempting to consult with you about the potential impact on your employment of a recent review by Citywide of its operational requirements. You have declined several invitations to participate in that consultation process.
Citywide has now decided that your role of Governance Advisor is no longer required and is redundant from close of business, Tuesday, 6 June 2023. The duties of that role will be reallocated to other roles in the Corporate function.
We have considered options to redeploy you to other roles. These options were necessarily limited given the reason for the review is to reduce overall employee head count. Unfortunately we do not see any option to offer you redeployment.
In these circumstances, this letter is notice that your employment will end on the ground of redundancy at close of business on Tuesday, 6 June 2023. Citywide does not require you to work the notice period and will instead pay you in lieu of notice.
You are entitled to be paid a redundancy payment and accrued entitlements as per your contract of employment. Attached to this letter is a sheet setting out the estimated figures of your redundancy entitlements, including your accrued entitlements and any outstanding pay, up to and including your last day of employment. Please note that actual figures may change subject to final calculations of leave balances on termination of your employment.
You are required to return all Citywide property in your possession on ending of employment with Citywide, including any IT equipment and documents containing or recording information confidential to Citywide. We will be in touch with you shortly to organise the return of Citywide property.
To assist you in the process of finding alternative employment, Citywide have engaged an outplacement service provided by Staite Henningsen Klein (SHK) to offer you their Job Search Outplacement Program. If you wish to take up this offer, please contact Alan Simpson on (03) 8620 8018. Information in relation to this service is enclosed.
I would like to thank you for all your hard work, service and contribution and wish you all the best for your future. Please do not hesitate to call me if you have any further questions about the contents of this letter.
I would also like to remind you that the Employee Assistance Program (EAP) is a free and confidential service available to all staff and I encourage you to use this service if required. The EAP number is 1300 687 327.
Yours sincerely
[signature omitted]
Karla Ryan
Executive - Assurance, Risk and Governance
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