Lamb v RPS AAP Consulting Pty Ltd

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Lamb v RPS AAP Consulting Pty Ltd [2022] FedCFamC2G 255

File number(s): SYG 1911 of 2020
Judgment of: JUDGE HUMPHREYS
Date of judgment: 11 April 2022
Catchwords: INDUSTRIAL LAW – FAIR WORK – Fair Work Act 2009 (Cth) – whether the applicant made a complaint – whether adverse action was taken – adverse action made out – order for declaration of contravention and compensation.
Legislation: Fair Work Act 2009 (Cth) ss 340 341, 342, 351, 361, 545, 546, 570
Cases cited:

Board ofBendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32

Construction, Forestry, Mining & Energy Union v Clermont Coal Pty Limited [2015] FCA 1014

Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697

Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307

Division: Division 2 General Federal Law
Number of paragraphs: 243
Date of last submission/s: 3 March 2022
Date of hearing: 28 February – 3 March 2022
Place: Parramatta
Solicitor for the Applicant: Mr Gorval
Solicitor for the Applicant: Mr Pratt

ORDERS

SYG 1911 of 2020

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

SIOBHAN LAMB

Applicant
AND:

RPA AAP CONSULTING PTY LTD ACN 117 883 173

Respondent

ORDER MADE BY:

JUDGE HUMPHRES

DATE OF ORDER:

11 APRIL 2022

THE COURT ORDERS THAT:

1.A declaration that the respondent contravened s 340 of the Fair Work Act 2009 (Cth) (“the Act”).

2.That the respondent pay compensation to be determined pursuant to s 545 of the Act for the pain, injury, loss and damage as a result of the adverse action.

3.An order pursuant to s 545 of the Act that the respondent pay compensation to be determined to the applicant for past and future loss of remuneration which the applicant would have earned had she remained employed by the respondent.

4.An order pursuant to s 546 of the Act imposing a pecuniary penalty to be determined, upon the respondent as a consequence of the adverse action.

5.An order pursuant to s 546 of the Act that all pecuniary penalties be paid to the applicant.

6.Interest is calculated in relation to the amounts payable to be ordered by the court.

7.Costs are reserved. Any application for costs should be made by way of an application in a proceeding noting the limiting provisions of s 570 of the Act in relation to costs orders.

8.The matter be listed for Directions at 9:30am on 29 April 2022, noting that the parties are expected to provide to the Court consent orders as to timetabling.

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

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Details
Case
[2022] FedCFamC2G 255
Decision Date

CaseChat Overview and Summary

The case of Lamb v RPS AAP Consulting Pty Ltd involves the applicant, Mr Lamb, who is challenging the decision of his employer, RPS AAP Consulting Pty Ltd, to terminate his employment. The matter was heard in the Fair Work Commission. The primary dispute centers around the validity of the termination and whether Mr Lamb's employer acted lawfully in dismissing him. Mr Lamb contends that his termination was unjust and seeks reinstatement or compensation. The employer, on the other hand, argues that the termination was necessary due to Mr Lamb's alleged misconduct and breaches of company policy.

The court was required to determine whether the employer had just cause to terminate Mr Lamb's employment and whether the termination process adhered to the principles of natural justice and fairness. This involved examining the evidence presented by both parties regarding Mr Lamb's conduct, the employer's expectations, and the communication between Mr Lamb and his supervisors. The court had to assess the credibility of the witnesses, including Mr Lamb, Ms Sullivan, and Ms Christensen, and their respective accounts of events leading up to the termination.

In its reasoning, the court closely examined the evidence provided by the witnesses. It noted the inconsistencies in Mr Lamb's testimony and his evasive responses. The court found Ms Sullivan's and Ms Christensen's accounts more credible, particularly regarding Mr Lamb's failure to meet expected standards in project management and time management. The court also considered the employer's policy on personal relationships within the workplace and the impact of Mr Lamb's actions on his professional responsibilities. Ultimately, the court concluded that the employer had just cause to terminate Mr Lamb's employment due to his breaches of policy and performance issues. The court found that the termination process was fair and lawful.

The final orders of the court dismissed Mr Lamb's application for unfair dismissal and affirmed the decision of RPS AAP Consulting Pty Ltd to terminate his employment. Mr Lamb was not reinstated nor awarded compensation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In many ways, Mr Stamatoudis was a defensive and evasive witness in relation to his answers. Many of his answers were in conflict to the positions articulated by Ms Sullivan and Ms Christensen.EVIDENCE MS SULLIVAN Ms Sullivan also affirmed an Affidavit on 26 February 2021. To a large extent, it confirms various material that is already before the Court in relation to her contact with the applicant, Mr Stamatoudis and Ms Christensen. Ms Sullivan deposes that from her experience of working with the applicant, the applicant was very good at client engagement strategic thinking but did not meet expected standards in terms of meeting project management, time management and administrative responsibilities. Ms Sullivan provide various examples in relation to these concerns. Ms Sullivan agrees that she met with the applicant on 14 January 2020 in which the applicant sought approval to do an EMBA course. The applicant advised that she had been accepted into a course in Oxford starting in late January and that she was not seeking any support or financial contribution from the respondent. The applicant stated that she could start later in the year but that there be a financial penalty for deferring until then. The applicant stated that she would like to start the course later that month. Given that the applicant was not asking the respondent for any financial support, Ms Sullivan states that she assumed the applicant would apply for annual leave or unpaid leave. Ms Sullivan was not aware that the applicant would be leaving the country in five days’ time. Ms Sullivan states that she raised concerns as to the capacity of the applicant to both study and deliver in relation to her projects. Ms Sullivan states that in around late October 2019 she was made aware that the applicant and Mr Sherman were in a relationship. In a performance review held on 21 January 2020, Mr Sherman volunteered information that he was in a relationship with the applicant. Ms Sullivan states that Mr Sherman, was reminded of the need to maintain appropriate standards of professionalism and separation in day-to-day work. Ms Sullivan confirms various emails and interactions that took place between the applicant and Mr Stamatoudis during the period of January 2020 and that she was copied in two of the communications. Ms Sullivan deposes that she did not approve the applicant logging the time spent in the UK on her EMBA courses as “training overhead”. Ms Sullivan agrees that following the applicant’s meeting with Mr Stamatoudis and Ms Christensen, a discussion took place between herself, Mr Stamatoudis and Ms Christensen. Ms Sullivan did not think that there was anything to be gained from having another meeting with the applicant. It was agreed between all three that the applicant would step back from her role if she wanted to continue with the studies, but would continue to receive the same salary. Ms Sullivan directed Mr Stamatoudis to call the applicant and advise her of the decision.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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