Leung v Omnia Inclusive Employment Solutions (No 3)
[2024] FedCFamC2G 1094
•25 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Leung v Omnia Inclusive Employment Solutions (No 3) [2024] FedCFamC2G 1094
File number(s): SYG 235 of 2023 Judgment of: JUDGE STREET Date of judgment: 25 October 2024 Catchwords: FAIR WORK – alleged adverse action - dismissal –probationary review – withholding of termination payments- presumption of adverse action rebutted by the respondent - no contravention of s 340, s 352 of the Fair Work Act 2009 (Cth) – applicant withheld company property –– contravention of s44 in two ways in relation to s117 - whether it is appropriate to make declarations order an apology - compensation order in the amount of $10,000- no civil penalty hearing considered appropriate – amended application otherwise dismissed Legislation: Acts Interpretation Act 1901(Cth)
Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Fair Work Regulations 2009 (Cth)
Cases cited: Australia Building and Construction Commission v Pattinson [2022] HCA 13; 274 CLR 450
Australian Securities and Investments Commission v Hochtief Aktiengesellschaft [2016] FCA 1489
FairWork Ombudsman v Commonwealth Bank of Australia [2024] FCA 81
Fair Work Ombudsman v Doll House Training Pty Ltd (No 2) [2024] FCA 811
Forster v Jododex Australia Pty Limited [1972] HCA 61; (1972) 127 CLR 421
Harper v AF Maple Services Pty Ltd (No 2) [2023] FedCFamC2G 1067
Heal v Sydney Flames Basketball Pty Ltd [2024] FCA 401
Qantas Airways Limited v Transport Workers Union of Australia (2023) HCA 27
RussianCommercial and Industrial Bank v British Bank for Foreign Trade Limited [1921] 2 AC 438
Serpanos v Commonwealth of Australia [2022] FCA 1226
Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271
The Environmental Group Ltd v Bowd [2019] FCA 951
Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) [1993] FCA 83; (1993) 41 FCR 89
Wotton v State of Queensland (No 5) [2016] FCA 1457
Division: Division 2 General Federal Law Number of paragraphs: 206 Date of hearing: 3 – 4 October 2024 Place: Sydney Applicant: Self-represented Counsel for the Respondent: Mr L Meagher Solicitor for the Respondent: Hall & Wilcox ORDERS
SYG 235 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHING YEE LEUNG
Applicant
AND: OMNIA INCLUSIVE EMPLOYMENT SOLUTIONS
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
25 OCTOBER 2024
THE COURT DECLARES THAT:
1.The respondent contravened section 44 of the Fair Work Act 2009 (Cth) by failing to comply with section 117 of the Fair Work Act 2009 (Cth) by inserting a termination date earlier than the termination notice.
2.The respondent contravened section 44 of the Fair Work Act 2009 (Cth) by failing to comply with section 117 of the Fair Work Act 2009 (Cth) by not making payment in lieu of notice at the same time as giving the notice of termination.
THE COURT ORDERS THAT:
3.The respondent to pay the applicant compensation under section 545 of the Fair Work Act 2009 (Cth) for the loss the applicant has suffered because of the said two contraventions in the amount of $10,000 within 28 days of these orders.
4.The amended application of the applicant is otherwise dismissed.
5.The Court, as a matter of discretion, considers it is not appropriate within section 546 of the Fair Work Act 2009 (Cth) to hold any civil penalty hearing.
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 STREET
INTRODUCTION
These fair work proceedings were commenced on 14 February 2023 by the applicant alleging a contravention of s 340 of the Fair Work Act 2009 (Cth) (“the Act”), in relation to her dismissal, in relation to her probation review and the withholding of termination payments, as well as an alleged contravention of s 352. The applicant alleges two contraventions of s 44 in respect of s 117 of the Act, first, in respect of a termination date earlier than the day notice is given and secondly, in relation to belated payment in lieu of notice.
In summary, the applicant was employed by Omnia Inclusive Employment Solutions (“the respondent”) as an Area Manager for North Sydney under an agreement dated 17 May 2022, commencing on 23 May 2022. The applicant underwent a three month performance review on 16 August 2022, following which there were two further meetings with the applicant and Ms Fraser on 18 August 2022,the first with Ms Robertson and the second with Ms Turecek, then a meeting alone with Ms Fraser and the applicant, following which there was a meeting with Ms Fraser, Ms Simic and the CEO Ms Lambourne who decided terminate the employment of the applicant who was still on probation. The termination letter was postponed due to the applicant not returning to work after 18 August 2022.
The applicant initially went on leave after 18 August 2022, and then made an application for workers' compensation. Ms Lambourne was informed on 17 November 2022, the applicant’s workers' compensation claim had been rejected, and the decision made in August to terminate the applicant's employment then proceeded with the letter terminating the applicant's employment, being sent on 21 November 2022, recording a date of termination as being 17 November 2022. The applicant's payment in lieu of notice of approximately $1600 was not made until January 2023.
It is apparent on the face of the termination letter dated 21 November 2022 that it purports to identify an earlier date of termination than the actual letter, dated 21 November 2022, by four days. It is apparent that following the termination, the respondent withheld the final payments until January 2023 because the applicant had failed to return property of the company to the respondent which included keys to a company vehicle, and keys to filing cabinets which needed to be accessed by staff of the respondent.
ISSUES
The amended application filed on 9 February 2024 seeks relief in accordance with the amended Statement of Claim to which a defence was filed on 24 May 2024. The applicant alleged the exercise of workplace rights under s 341(1)(c)(ii) by making five numbered complaints. The adverse action alleged being the probationary assessment not being in accordance with standard key performance indicators, by dismissing the applicant and by withholding termination payments being alleged contraventions of s 340 and s 352 all of which were put in issue by the defence.
The defence admitted contravention of s 44 and s 117 by providing notice that purported to terminate the applicant’s employment on 17 November 2022, when in fact the employment terminated on 21 November 2022. In respect of the failure to pay a week in lieu of notice the respondent alleged the applicant received the same pay if her employment were treated as terminating on 21 November 2022. The defence contended as a matter of discretion no declaration should be made in relation to the admitted contravention of s 44 and s 117(1). The applicant’s alleged case against a second and third defendant were struck out on 16 February 2024 and no steps were taken pursue the joinder in accordance with orders 2 and 3 made on 16 February 2024.
Accordingly, the issues are whether the applicant is entitled to declarations as to the alleged contraventions, whether the applicant is entitled to compensation under s 545 and if so the quantum thereof, whether there should be any public apology and whether there should be a penalty hearing.
In respect of these issues for the reasons set out below the Court finds that the respondent did not contravene s 340 or s 352. The Court has found that the respondent contravened s 44 by failing to comply with s 117 in two ways, first that admitted by the respondent and secondly in failing to make payment of one week with the notice of termination. The Court finds that the applicant is entitled to declarations for the two contraventions made out. The Court finds the applicant is entitled to nominal damages to vindicate her rights as compensation for the loss she has suffered because of the two contraventions of s44 in the combined sum of $10,000. The Court declines to order any apology and declines to hold a penalty hearing.
CHRONOLOGY
Date Event 23 May 2022 The applicant commences full-time employment with Omnia Inclusive Employment Solutions (the respondent) as an Area Manager in North Sydney. 1 July 2022 Complaint by prospective client about the applicant 15 July 2022 Ms Robertson shows the applicant how to submit a request to Centrelink-
The applicant alleges that Ms Robertson forcefully banged the table – denied by Ms Roberson
Date of alleged accident by the applicant- alleging constant and persistent intimidation and harassment22 July 2022 A meeting between the applicant, Ms Robertson and Fraser is held.
9 August 2022 The applicant has a meeting with Ms Wang, Ms Turecek and Ms Fraser. The applicant becomes aggressive during the meeting. 10 August 2022 The applicant verbally reported to Ms Fraser that Ms Turecek was rude, disrespectful and aggressive. 10 August 2022 The applicant sends an email to Ms Fraser titled “Issues with Sanja”. 16 August 2022 The applicant undertakes three month Probationary Employee Performance Evaluation. 18 August 2022 A meeting with the applicant, Ms Fraser and Ms Robertson
A meeting with the applicant, Ms Fraser and Ms Turecek is held.
A meeting with the applicant and Ms Fraser with the applicant leaving suddenly
A meeting with Ms Fraser, Ms Simic and Ms Lambourne- decision made to terminate applicant’s probationary employment18 August 2022 The applicant has a conversation with Ms Sakell after work. 19 August 2022 The applicant takes temporary leave from work. 20 August 2022 The applicant visits Dr Ho and alleges persistent workplace bullying and receives a Certificate of Capacity as having an acute stress disorder and fully incapacitated. 21 August 2022 The applicant sends an email to the respondent’s CEO, Ms Lambourne and Ms Simic which purports to identify reports of workplace bullying and harassment. 22 August 2022 The applicant makes a report to NSW Workers’ Compensation. 23 September 2022 The applicant is diagnosed as suffering post-traumatic stress disorder. 17 November 2022 The applicant Workers’ Compensation claim is denied. 21 November 2022 Letter of Termination of Employment is issued to the applicant.
The termination letter identifies that the applicant’s contract of employment was terminated on 17 November 2022 and does not make payment in lieu of notice.14 February 2023 The applicant files an application for dismissal from employment in contravention of general protections. 4 May 2023 icare reviewed and accepted the applicant’s claim. 3 October 2024 Day 1 of final hearing. 4 October 2024 Day 2 of final hearing. EVIDENCE
The Court received into evidence, an affidavit of the applicant dated 21 June 2024 and affidavits on behalf of the respondent from Ms Lambourne dated 2 August 2024, Ms Harris dated 2 August 2024, Ms Robertson dated 1 August 2024, Ms Sakell dated 1 August 2024, Ms Simic and Ms Fraser dated 1 August 2024. The applicant was the subject of cross-examination, as were the each of the respondent's witnesses, other than Ms Harris.
The Court also received into evidence the Respondent’s Court Book which was marked Exhibit A subject to the rulings on objections.
SUMMARY OF THE APPLICANT’S EVIDENCE
The applicant in her affidavit said that she is on worker compensation and that she commenced employment on 23 May 2022 as a full time area manager lower north shore with the respondent. The applicant attached her contract of employment which provided in clause 3 an initial 6 month probationary period, during which her employment may be terminated on one week’s notice. On 15 July 2022 the applicant was shown how to submit a request to Centrelink by Ms Robertson. The applicant stated that after the demonstration Ms Robertson forcefully banded the table without any apparent cause and the applicant alleged that made her feel uneasy and vulnerable and that she remained motionless out of fear that she might resort to physical aggression.
On 22 July 2022 the applicant said to Ms Fraser that Ms Roberston undermined her training by withholding necessary material and claimed non-reporting when stationed in her area stating she reported to Ms Fraser not the applicant. The applicant asserted that Ms Robertson reported to her in her area and alleged this was confirmed with Ms Fraser. The applicant alleged she was confronted by Ms Robertson who said she would seek clarification from Ms Fraser and left the meeting room. The applicant said this was perceived by her as a deprivation of resources, deliberately hindering her job and which she found was disrespectful. The applicant said she reported the incident to Ms Fraser on 22 July 2022. The applicant stated that the promotion of Ms Robertson led her to believe that the alleged misconduct by Ms Robertson was tolerated and that her safety was not prioritized.
On 10 August 2022 the applicant verbally reported to Ms Fraser that Ms Sanja Turecek (Ms Turecek) was rude, disrespectful and aggressive. The applicant asserted that Ms Fraser insisted that the applicant work with Ms Turecek without addressing the issues. The applicant alleged that she reported she was in fear at work and feeling anxious and has stress, low levels of concentration and sadness. The applicant said she requested escalation to Ms Anne Simic for support and that she emailed Ms Fraser. The applicant sent an email on 10 August 2022 to Ms Fraser entitled “Issues with Sanja” identifying occasions that Sanja “presents her disrespect and ignorance to my instructions as her direct report”.
The applicant identified receiving notification of a probation review for 16 August 2022 two days after her communications with Ms Fraser even though she has only completed 3 months of her probationary period. The meeting for the applicant’s probationary review was to be with Ms Simic and Ms Fraser. The applicant annexed to her affidavit a Probationary Employee Performance Evaluation for the review conducted on 16 August 2022, with comments and areas for improvement beside the 16 Key Accountabilities and ratings. Five were the lowest rating and 8 were the second lowest and 3 were satisfactory. Of the 11 critical capabilities 4 were the lowest category, six were the second lowest category and only one was satisfactory.
The review form then set out areas requiring improvement and manager’s suggestions. Those notations identified the need for the applicant to better understand all key accountabilities of her role, that she struggles with the development of her interpersonal skills and feels frustrated and impatient with her team, needs support to improve her interpersonal skill to appropriately interact with other people effectively, help her communicate appropriately and build stronger more meaningful relationships with her teams. There was a comment about the requirement for strong emotional intelligence, to manage emotions and create supportive and effective communication. The overall probation recommendation was the applicant should develop an action plan based on the areas requiring improvement for further discussion prior to signing off on the 3 month review.
The applicant alleged she had reported harassment, intimidation and bullying to managers along with her own workplace health and safety concerns and that she had reported the steps she had taken to Ms Simic.
On 18 August 2022 the applicant had a meeting with Ms Fraser and Ms Turecek. The applicant said that Ms Turecek expressed her dissatisfaction by shouting and referred to Ms Fraser giving Ms Turecek encouragement through a high five. Ms Fraser made derogatory comments about the applicant’s communication skills and managerial capabilities. The applicant had a conversation with Ms Julia Sakell after work on 18 August 2022.
On 20 August 2022 the applicant visited Dr Jamie Ho alleged persistent workplace bullying and certified as having an acute stress disorder and was fully incapacitated. On 21 August 2022 the applicant sent an email to Ms Lambourne the CEO and Ms Simic alleging bullying and harassment. The applicant made a report to NSW Worker Compensation on 22 August 2022 and took temporary leave from 19 August 2022. It is apparent from the certificate of incapacity that the applicant alleged a date of accident being 15 July 2022 and alleged “constant and persistent intimidation and harassment from several colleagues in the workplace”.
On 23 September 2022, the applicant was diagnosed as suffering post traumatic stress disorder. The applicant alleged she was certified able to work one day per week from 31 October 2022 until 1 December 2022 and that there were not suitable duties.
The applicant’s workers compensation was denied on 17 November 2022 and on 21 November 2022 the applicant was notified her employment contract was terminated as of 17 November 2022. Icare reviewed and accepted the applicant’s claim on 4 May 2023.
In cross examination the applicant confirmed that Ms Robertson was a team leader and gave an unresponsive answer to the question as to the assignment of Ms Robertson to give her some training and support. When asked to confirm Ms Robertson was from another area to give her training and support the applicant was evasive answering not 100% correct or 100% wrong. The applicant then confirmed that Ms Robertson gave her training.
The applicant asked for a hard copy of the candidate examples after the training and was told no by Ms Robertson as they contained personal information. The applicant asserted that she needed the documents and reported the refusal to her supervisor Ms Fraser. The applicant denied that she told Ms Fraser that she could resolve the issue. The applicant agreed she did not tell Ms Fraser any allegation on 22 July of Ms Robertson slamming the table and that she did not mention the work bullying. The applicant unresponsively then attempted to advocate her case.
The applicant attended a meeting with Ms Turecek, Ms Fraser and Ms Wang on 9 August 2022 and denied that she clapped her hands at Ms Turecek saying “I am your manager and you must do as I say”. The applicant denied that Ms Fraser told her that her behaviour in the meeting was not acceptable. The applicant asked about the email 10 August 2022 reporting to Ms Fraser on the behaviour of Ms Turecek. The applicant confirmed that Ms Sanja Turecek reported directly to her and that the email was sent just for the record. The applicant did not recall a meeting with Ms Fraser later that day. The applicant disagreed with Ms Fraser and that Ms Fraser said she thought Ms Turecek needed to know you were the manager and to follow your instructions. The applicant maintained that she did say bullying and harassment in that meeting and maintained that said that she was in fear and feeling anxious. The applicant maintained that she requested an escalation to Ms Simic and agreed that such a request was not in her email.
The applicant agreed she attended a three month probationary review and denied that Ms Fraser had told her to improve her communication with staff. The applicant agreed she was shown the review form during the meeting and was told the scores and the applicant disagreed with the performance indicators, but acknowledged there were areas for improvement. The applicant agreed that she raised in the review the allegation of Ms Roberston slamming her hand on the table at the meeting on 22 July 2022. The applicant was told by Ms Fraser that if she felt unsafe she could be removed from the project which she was working on with Ms Robertson. The applicant maintained that she used the words bullying and harassment at the meeting. It was put that at no point in the review meeting did the applicant refer specifically to the behaviour of Ms Turecek.
The applicant was asked about the meeting on 18 August 2022 with Ms Turecek and Ms Fraser at which Ms Turecek complained about the management of the applicant. The applicant was taken to her own email dated 10 August 2022 “She said she wanted my acknowledgement such as a Hifive. Kate then gave her a Hifive”. The applicant denied that Ms Kate Fraser told her she needed to give Ms Turecek support such as a high five. The applicant was then taken to her affidavit and her version of encouragement of Ms Turecek in the meeting and denied that Ms Turecek had said she wanted more encouragement but admitted that she said what she needs and alleged Ms Turecek was yelling. The applicant disagreed that Ms Fraser explained how to give encouragement with a display of a high five. The applicant then gave different evidence that Ms Turecek did want the applicant to come to her and give her a high five. The applicant maintained that Ms Fraser encouraged Ms Turecek to shout at her and displayed satisfaction with Ms Turecek. The applicant denied that Ms Fraser told Ms Turecek not to speak in a disrespectful manner to the applicant.
After that meeting the applicant asked to speak to Ms Fraser privately and was told she needs to overcome the behaviour and build a relationship with staff and that the applicant was responsible for working through conflict with the team members. The applicant said she was unhappy with Ms Turecek’s insubordination. The applicant became frustrated and left the meeting suddenly without warning to Ms Fraser.
The applicant confirmed she had a cup of coffee with Ms Sakell after work on 18 August 2022 and that the applicant was her supervisor. The applicant denied that she told Ms Sakell she was frustrated after the meeting with Ms Fraser and Ms Turecek. The applicant maintained that she asserted she was bullied and harassed and that she referred to having a health and safety concern. The applicant asserted after 18 August 2022 she was unfit for work and applied for workers compensation.
SUMMARY OF MS LAMBOURNE’S EVIDENCE
Ms Lambourne identified that she was the CEO of the respondent, and that the respondent operates a staffing and recruiting agency in the disability sector. The respondent is a registered charity. Ms Lambourne identified her managerial duties and reported to the board of the respondent and that at the time of the employment of the applicant, the respondent had a regional area in north New South Wales, a regional area in southern New South Wales and a regional area on the Gold Coast. Ms Lambourne ceased her employment with the respondent on 6 July 2023.
Ms Lambourne identified a conversation in mid-2022 with Ms Fraser to hire the applicant as the Area Manager North Sydney to work in the Chatswood office. At the time of employment of the applicant, it was apparent that she had had some experience in managerial roles, but not in the disability sector. Ms Lambourne identified the unique nature of the disability sector, being highly regulated and subject to onus regulatory requirements.
According to Ms Lambourne’s affidavit dated 2 August 2024, Ms Fraser was responsible for arranging additional support and training to develop the skills of the applicant. Ms Lambourne identified that in June 2022, Ms Fraser had informed her that the applicant was managing her direct reporting people by sending emails to them instead of speaking with them, even when they were in the same office. Ms Lambourne identified this was not consistent with the culture of the respondent and the applicant and Ms Fraser was told to direct the applicant to engage directly with the members of her team by having conversations with them, rather than sending emails.
In late June 2022, Ms Fraser told Ms Lambourne of her concerns about the applicant's behaviour at work because of her emails to staff being short and snappy and the applicant not being willing to take advice from team members and that the applicant expressed herself in a way as if she knew everything and did not seem open to receiving feedback.
Ms Lambourne identified that she had been a subject of communication from an employee, Ms Turecek, who raised concerns about the applicant's behaviour, including that she acted in an unprofessional and commanding manner towards Ms Turecek.
Ms Lambourne deposed that it was the respondent's practice for all new employees to attend a probation review to review their performance and ensure that they are the right fit for the organisation. Ms Lambourne referred to having a meeting with Ms Simic on 16 August 2022 in relation to the arranging of a three-month probation review for the applicant and also, that Ms Fraser had reported the applicant was not performing to her standard expected of her, particularly in relation to communication and leadership skills. Ms Lambourne identified the opportunity presented by the three-month probation and for the applicant to be informed that she was not meeting the respondent's expectations and that she wanted to be informed as the outcome of the meeting and how the applicant reacted during the meeting. Ms Lambourne was told that the applicant had accepted most of the feedback and that Ms Fraser would work with the applicant to try and address the areas for improvement.
Ms Lambourne identified that she made the decision to terminate the applicant's employment on 18 August 2022, at a meeting with Ms Fraser and Ms Simic, because she had formed the view that the applicant's behaviour, demonstrated the applicant was not suitable for her role as an Area Manager of North Sydney. Ms Lambourne identified the behaviour reported to her by Ms Fraser. According to Ms Lambourne’s affidavit, Ms Lambourne formed the view that the applicant did not have the communication, leadership or interpersonal skills required to fulfil the role.
On 18 August 2022, Ms Lambourne recorded being informed by Ms Fraser that there had been an attempt to mediate the working relationship between the applicant and her direct reporting employee, Ms Turecek, and that Ms Turecek had raised concerns about the applicant's behaviour before her and that she felt the applicant treated her differently to other staff members.
It was reported the applicant had become very agitated and aggressive towards Ms Turecek and denied all the concerns raised by Ms Turecek. It was reported to Ms Lambourne that Ms Fraser had to stop the meeting because of that behaviour, and it did not appear to be the subject of resolution. Ms Lambourne identified that Ms Fraser felt like there was nothing else they could do to help the applicant move forward in her role if she cannot take feedback from direct reports or otherwise reach a compromise.
Ms Lambourne identified that it was inappropriate for a manager to behave that way towards another staff member, especially someone they are supposed to manage, and that she was of the view that the respondent could not continue to tolerate the applicant's behaviour because it is not consistent with the respondent's expectations that staff members behave in a manner that is respectful and collaborative. Ms Lambourne was informed that there had not been a feedback or comments from the applicant in relation to her three-month probation, however, Ms Lambourne identified that the conduct or the behaviour in the meeting demonstrated that the applicant did not take on any feedback that had been provided to her and concluded that the applicant was not suitable for her position as an Area manager in North Sydney.
According to Ms Lambourne’s affidavit, she was of the view that the applicant's behaviour demonstrated the applicant did not have the communication, leadership or interpersonal skills to fulfil the role of an Area Manager in North Sydney. Ms Lambourne was of the view the applicant had not taken on feedback in the three-month probation meeting and had been aggressive towards her direct reporting employee, Ms Turecek.
Ms Lambourne was of the view that the applicant had demonstrated that she does not have the skills necessary for the Area Manager North Sydney role with the respondent. Ms Lambourne identified that she told Ms Simic and Ms Fraser that she believed the respondent had no alternative other than to terminate the applicant's appointment because of her behaviour. Ms Lambourne noted that she understood Ms Fraser and Ms Simic agreed with her assessment. At the end of the meeting, Ms Lambourne discussed the next steps for preparing to terminate the applicant's employment and that her decision to terminate the applicant's employment should be communicated to the applicant when she was next at work and that this would be undertaken by Ms Simic and Ms Fraser.
Ms Lambourne wanted the applicant to be advised of her termination in a professional manner and had assumed the applicant would be back in the office the following day on 19 August 2022. Ms Lambourne records that on 19 August 2022, she was informed by Ms Fraser that Ms Fraser had been told by the applicant that she was taking sick leave. Ms Lambourne recorded the instruction to Ms Fraser to notify the applicant of her decision to terminate the employment following the applicant's return from sick leave and that no action should be taken in the meantime.
Ms Lambourne referred to receiving communication from the applicant on 22 August 2022 alleging workplace harassment. Ms Lambourne indicated that she was not aware of any complaints from the applicant at the time that she made the decision to terminate the applicant's employment. Ms Lambourne said she was not aware at the time of the termination that the applicant claimed to have suffered bullying, harassment and intimidation.
Ms Lambourne noted that had the applicant made a complaint to the HR team regarding this bullying and harassment, she would have been told of the complaint in her role of CEO. Ms Lambourne confirmed that she was not aware of any bullying or harassing toward the applicant, when she made the decision to terminate the applicant's employment. Ms Lambourne noted that on 26 August 2022, she was informed the applicant made a workers' compensation claim, alleging she had suffered an acute stress disorder on 18 August 2022 and that it was unlikely she would return to work any time soon. Ms Lambourne identified that she decided to wait to terminate the applicant's employment until after the workers' compensation claim had been resolved. Ms Lambourne noted the applicant remained away from work after 18 August 2022. According to Ms Lambourne’s affidavit, she became aware that the applicant had taken some of the company's property when she had left, including keys to the respondent's company car and keys to a filing cabinet at the Chatswood office.
Ms Lambourne identified having conversations in attempts for Ms Simic and Ms Fraser to obtain the return of that property from the applicant and the applicant's failure or refusal to do so. Ms Lambourne deposed that the applicant did not return her work laptop, mobile phone, car keys, office entry pass until February 2023.
Ms Lambourne identified that on 17 November 2022, she was told the applicant’s workers' compensation claim had been rejected by Ms Simic and that Ms Simic said they could now implement the decision that had been made to terminate the applicant. Ms Lambourne directed Ms Simic to prepare the applicant's termination letter and that she saw the same before it was signed by Ms Simic and agreed with its contents. Ms Lambourne identified that she approved the termination letter on the assumption that the 17 November 2022 was the final day of the applicant's employment and erroneously thought that the respondent could lawfully withhold the termination payments until the applicant returned all of the respondent's property.
Ms Lambourne identified that she did not approve the termination letter for any proscribed reason or because the applicant had made any complaint or that the fact that she was temporarily absent from work. Ms Lambourne maintained that the termination letter, although signed by Ms Simic, was her decision, based on her reasons in respect of the applicant's unsuitability to perform and lack of skills to perform the managerial role. Ms Lambourne expressly said that she did not terminate the applicant's employment for any of the reasons alleged in respect of the lodging of a workers' compensation claim, complaints about bullying and or harassment, or because she was temporarily absent from work because of illness or injury, or because of alleging the suffering of illness or injury. Ms Lambourne also pointed out she was not aware of the making of any workers' compensation claim until after she had made the decision to terminate the applicant.
SUMMARY OF MS SIMIC’S EVIDENCE
Ms Simic was a human resources consultant to the respondent from around January 2021 to July 2023. Ms Simic has over 40 years’ experience in human resources and operations and reported to the CEO Ms Lambourne. The applicant primarily worked at the Chatswood office and had casual interactions with Ms Simic and was aware Ms Fraser believed the applicant would require additional support and training beyond the usual induction training.
In a further conversation with Ms Fraser Ms Simic was informed that the applicant required additional support which was to be provided by Ms Robertson who was team leader, Lower Hunter at the office in Hamilton NSW.
On 29 July 2022 Ms Simic was copied in on an email from Ms Sanja Turecek raising concerns about the applicant’s behaviour at work and complained about the applicant in relation to commanding instructions to close applications and tabs and having a very unpleasant and unprofessional behaviour and demeanour. The email referred to the applicant’s difficult answering questions and referred to the applicant’s questionable experience and competence. The email identified the unprofessional and unacceptable tone of the applicant on 12 July 2022. The email also complained about the applicant’s failure to recognise the work by Ms Turecek, failure to notice her efforts, and would not say a word of praise. The email was the subject of an acknowledgement by Ms Fraser dated 1 August 2022 thanking Ms Turecek for her feedback, and copying in Ms Lambourne and Ms Simic.
Shortly after the email was received Ms Simic had a conversation with Ms Fraser in which it was agreed Ms Fraser would speak with the applicant regarding the concerns raised by Ms Turecek.
The three month probationary review meeting on 16 August 2022 used a standard template of the respondent for all employees and was tailored to reflect duties in the employee’s position description. On 15 August 2022 Ms Simic met with Ms Fraser to prepare the 3 month review document for the meeting, in which Ms Fraser had completed the form and ratings. Generally Ms Simic does not attend probation review meetings but was asked to do so by Ms Fraser.
Ms Simic took notes of the probation review meeting mid afternoon on 16 August 2022. Those notes show the applicant was taken through the review and that the applicant continued to argue that Ms Fraser should make the team listen to her. The note recorded the applicant did not seem to want to grasp the fundamentals of people management. The notes record the applicant wanted to justify why she couldn’t manage her staff, that she hasn’t taken time to understand her team and her reticence to accept any constructive criticism. The notes record the applicant seemed completely closed to feedback. The notes record that the applicant was given until Thursday to come back with a response, prior to signing off on the 3 month review. The applicant did not do so.
Ms Simic said that during the meeting Ms Fraser told the applicant her communication style was aggressive and condescending and that it required improvement. The applicant became defensive and challenged the feedback. The applicant continually interjected as Ms Fraser spoke about the importance of the applicant working on her people management skills.
In response to the applicant raising Ms Robertson slapping a table with her hand the applicant said she had not raised it with Ms Robertson at the time. The applicant asserted at the meeting that the way her staff spoke to her was inappropriate but did not accept any responsibility for this and did not appreciate that this could be related to the way she spoke to her staff.
Ms Simic said that the applicant did not raise that she had been bullied, harassed or victimised at work or that she had any work health and safety issues at the meeting on 16 August 2022. Ms Simic said that she did not say the applicant could not be a manager at the meeting.
Ms Fraser came to see Ms Simic after the meeting she had with the applicant and Ms Turecek on 18 August 2022 at around 3pm. Ms Simic was told by Ms Fraser that at that meeting the applicant became aggressive, did not accept anything said by Ms Turecek, and that the applicant and Ms Turecek were not able to resolve their issues with each other. Ms Simic and Ms Fraser then decided to go to Ms Lambourne’s office to discuss what occurred.
Ms Simic said that Ms Fraser told Ms Lambourne what occurred at the meeting that day with the applicant and that she didn’t think the applicant has the ability or desire to compromise or improve the situation with Ms Turecek, that she couldn’t see how the applicant could move forward in her role if she couldn’t come to some sort of agreement with her direct reporting staff including Ms Turecek. Ms Lambourne said she didn’t think the respondent could tolerate the applicant’s behaviour in the meeting that had occurred that day and decided that the applicant’s response to the probation review would not make a difference. Ms Lambourne said the only option was to terminate the applicant and Ms Fraser said I agree. Ms Simic said given the probation period there were sufficient grounds to terminate the applicant’s employment.
Ms Simic was asked to draft the termination letter for MS Lambourne to sign and Ms Simic understood the decision had been made to terminate the applicant’s employment.
Ms Simic referred to receiving an email at 11pm on 21 August 2022 by the applicant alleging repetitive workplace harassment that had affected her mental health and that she was in fear of returning to work and would provide a medical certificate. The applicant appeared to have used her work account email at 8:30pm on 19 August 2022 setting out alleged incidents. Ms Simic said this was the first complaint that she had received from the applicant claiming she had suffered bullying and/or harassment at work. Ms Simic believed the termination should not proceed until the applicant returned from leave did not draft the termination letter at this time.
On 26 August 2022, Ms Simic became aware the applicant had lodged a workers compensation claim with respect to her employment. Ms Simic identified the steps taken to try and obtain the return of the respondent’s property from the applicant that included keys to a company car and a set of keys to filing cabinets which other employees needed to access.
On 17 November 2022 Ms Simic was informed that icare had declined liability for the applicant’s claim for workers compensation and was instructed to prepare the termination letter by Ms Lambourne. The letter included wording by Ms Simic for the applicant to be paid upon return of all the respondent’s property. Ms Simic then signed and sent the termination email at 2:34pm on 21 November 2022. As soon as Ms Simic appreciated in mid January 2023 a statutory requirement to pay despite the failure to return property the applicant’s termination pay was processed on 19 January 2023. The termination payment made on 19 January 2023 totalled $1609.30 and on that day super entitlement was processed and with other entitlement as payment of $3477.28 was made to the applicant. Ms Simic said the withholding of the pay was not because the applicant had made a complaint or because of the fact she was temporarily absent from work.
Ms Simic denied that the decision to terminate the applicant was because she had made a workers compensation claim, complaints about bullying or harassment at work, was absent from work or because she suffered any illness or injury. Ms Simic said the decision to terminate the applicant’s employment was made by Ms Lambourne during the meeting with Ms Fraser and Ms Simic on 18 August 2022 and was a decision made before the applicant’s email on 21 August 2022. Ms Simic said the delay in processing the final payment was not because the applicant had made a complaint about bullying and/or harassment or because she was temporarily absent, but was a decision made because the applicant had not returned the respondent’s property.
In cross examination Ms Simic said she did undertake an investigation in relation to the applicant’s complaint and found that there were no grounds for the complaint. MS Simic said she was not aware of any complaint by the applicant to Ms Fraser in relation to bullying or harassment. Ms Simic said the applicant did not return the respondent’s property until February 2023. Ms Simic said she was not the decision maker as the applicant’s termination and that the CEO Ms Lambourne made that decision. Ms Simic said she and Ms Fraser supported the decision made by Ms Lambourne. Ms Simic said there was an investigation of the applicant’s complaint that was taken over by iCare. Ms Simic said that Ms Fraser’s complaint on 18 August 2022 informed the decision to terminate the applicant. Ms Simic said there was not pre-determined decision to terminate the applicant at the time of the probation review. Ms Simic referred to communications around the applicant’s refusal to return the respondent’s property.
SUMMARY OF MS HARRIS’ EVIDENCE
Ms Harris identified that she is employed as the General Manager, People & Customer for the respondent. According to Ms Harris’ affidavit dated 2 August 2024, she is a senior executive with more than 17 years’ experience in corporate human resource roles in Australia. Ms Harris’ experience includes organisational development (leadership programs), employee retention strategies, employee engagement, remuneration and benefits, employee relations, enterprise agreement negations and performance management.
Ms Harris is employed by the respondent on a part-time basis, and generally works on Mondays, Tuesdays, Wednesdays and Fridays each week, between 8:30am to 5:00pm. Ms Harris identified that she reports to Matt Little, the Chief Executive Officer of the respondent.
Ms Harris was born in Australia and identified she began her career in Human Resources in 1996. Ms Harris deposed to holding a Masters of Organisational Development and Human Resources from Southern Cross University, which was award in 2018, along with a Certificate IV in Workplace Coaching from Open Door Coaching, which was awarded in 2014, and a Bachelor of Arts (Honours) degree from the University of Melbourne, which was awarded in 1995.
Ms Harris moved to the United Kingdom in 1998 with her husband and held several Human Resource roles in the United Kingdom. Ms Harris asserts that following a period of maternity leave in both the United Kingdom and Australia, she recommenced her career in Australia from early 2007.
Ms Harris deposed that has held several HR roles from six different business entities from about 2007 to 2024.
According to Ms Harris’ affidavit, she has held the position of General Manager, People & Customer since April 2024. Ms Harris identified that her duties with the respondent include leading the respondent’s Human Resources, Learning and Development and Marketing functions; ensuring that the respondent’s HR systems, processes and procedures are efficient and effective to ensure statutory compliance, attraction, development and retention of talent, which in turn helps to ensure exceptional outcomes for the respondent’s participants; and providing governance oversight of the respondent’s Human Resources and Marketing functions and reporting to the Board of the respondent.
Ms Harris identified that respondent provides Youth NDIS services supporting school leavers and young adults living with a disability to develop employment, social and independence skills. Ms Harris identified that the respondent also provides Disability Employment Services for those living with a disability, injury or illness (including mental health conditions) to find and maintain suitable employment.
According to Ms Harris’ affidavit, the respondent has around 130 employees across 25 sites within New South Wales and Queensland.
Ms Harris deposed that based on her inquires with the respondent, reviewing the respondent’s business records and speaking with Ms Pryce-Jones, who is the People & Capability Advisor, Ms Harris believes that there has not been any major change to the size and functions of the respondent since 2022.
Ms Harris identified that she is assisted in her role by Ms Pryce-Jones and Vanessa Gearie, Capability Development Advisor.
Ms Harris identified that the respondent previously engaged with Ms Simic as a contractor in the role of General Manager – People & Culture via her company, Hartsim Pty Ltd. Ms Harris also identified through discussions with Mr Little and reviewing the respondent’s records, Ms Simic’s engagement with the respondent ceased in July 2023.
According to Ms Harris’ affidavit, she acknowledged that it was wrong for the respondent to delay processing the payment of the applicant’s outstanding termination payments to the applicant, following the termination of the applicant’s employment. Ms Harris also acknowledged that was wrong for the respondent to provide notice that purported to terminate the applicant’s employment on 17 November 2022, when the employment in fact terminated on 21 November 2022.
Ms Harris also apologised for the delay in processing of the payment of the applicant’s outstanding termination payments to the applicant following the termination of the applicant’s employment and also for the respondent’s conduct in providing notice that purported to terminate the applicant’s employment on 17 November 2022, when the employment in fact terminated on 21 November 2022. Ms Harris further apologised for the impact that this has had on the applicant.
Ms identified that based on her review of the respondent’s business records, the respondent processed the applicant’s outstanding termination payments on or around 19 January 2023, including paying the applicant’s one weeks’ pay in lieu of notice.
Ms Harris deposed that since January 2023, the respondent has implemented a workflow that ensures all terminations are advised to payroll as soon as the respondent’s HR team has received confirmation from line managers. Ms Harris identified that it would enable payroll to process outstanding payments in the next fortnightly pay cycle. Ms Harris further identified that that when the fortnightly pay cycle has been completed in the preceding 48 hours, Ms Pryce-Jones or Ms Gearie will instruct payroll to complete an out of cycle termination payment the following day.
Ms Harris identified that since she commenced employment with the respondent, she has increased the focus on compliance, including by introducing mandatory workplace training for all new and existing staff covering topics such as workplace bullying and sexual harassment.
Ms Harris deposed that based on her inquires with the respondent, including reviewing the respondent’s business records, she believes that the respondent has not previously been prosecuted or fined in respect of any breach of the Fair Work Act 2009 (Cth).
SUMMARY OF MS SAKELL’S EVIDENCE
Ms Sakell identified that she is the Customer Experience Consultant and has been employed by the respondent since 30 April 2024. According to Ms Sakell’s affidavit dated 1 August 2024, she has been a Customer Experience Consultant since June 2022.
Ms Sakell is employed by the respondent on a part-time basis and works between the hours of 8:30am to 5:00pm on Wednesdays and Thursdays each week. Ms Sakell identified that she primarily works in the respondent’s Chatswood office and from time to time in the respondent’s office in Dee Why.
From around May 2022 to June 2022, whilst Ms Sakell was an Administrative Assistant for the respondent, Ms Sakell identified that she had daily interactions with the applicant both in person, at the Chatswood office, and via telephone or email regarding various administrative matters.
From around June 2022 to August 2022, in her now current role, Ms Sakell identified that she reported directly to the applicant. From August 2022 when the applicant was on leave, Ms Sakell identified that she reported to Anthony Workman (Mr Workman).
Ms Sakell deposed that in around early August 2022, the applicant approached Ms Turecek and asked Ms Turecek for her coffee order, and Ms Sakell asserted that Ms Turecek did not respond to the applicant. Following this incident, Ms Sakell made reference to a conversation between her and the applicant in which Ms Sakell told the applicant that she did not think it was unusual behaviour for Ms Turecek because she had observed Ms Turecek being abrasive and rude to other staff members, including herself. Ms Sakell identified that the applicant was upset with Ms Turecek.
On 18 August 2022, Ms Sakell and the applicant went to a café in Chatswood after work. Ms Sakell recalled the conversation with the applicant in which the applicant told Ms Sakell that she had a meeting with Ms Fraser and Ms Fraser, and that the applicant was frustrated because she felt her concerns had been dismissed.
Ms Sakell also identified that the applicant told her that she felt that she was struggling at work and felt incapable of performing her role. According to Ms Sakell’s affidavit, the applicant also told her that she felt Ms Turecek behaved rudely towards her and believed that Ms Turecek was difficult to work with.
During the meeting at the café, Ms Sakell denied that the applicant told her that the applicant that felt she was being bullied or harassed by anyone at work. Ms Sakell also denied that the applicant expressed any concerns about her health or safety at work. Ms Sakell recalled that the applicant told her that she felt Ms Turecek behaved rudely towards her and believed she was difficult to work with.
SUMMARY OF MS FRASER’S EVIDENCE
Ms Fraser identified that she is the general manager of operations for the respondent and at the time of the applicant’s employment was regional manager NSW North reporting at that time to Ms Lambourne and the Chief Operating Officer Ms White. Ms Fraser explained that area manager North Sydney was one of 3 direct reports. The applicant was interviewed by Ms Fraser and the General Manger of Client Management Mr Fitzgerald and commenced employment on 23 May 2023. Ms Fraser identified the applicant’s responsibilities and a copy of the position description role of area manager. The applicant had six direct reports. The applicant underwent a two week induction and a record of the meetings, support and training of the applicant.
Ms Fraser travelled to the Chatswood office three to four days a week to assist with the applicant’s training and had one on one weekly catch up’s which were recorded in a calendar.
On 16 June 2022 Ms Fraser met with Ms Robertson to discuss providing additional support and training to the applicant. Ms Fraser observed that the applicant during the first month continued to have difficulties with her interpersonal skills and communicating with her direct reports. The applicant sent emails rather than talking with her team members, to which Ms Fraser was copied. Ms Fraser received feedback from colleagues that the applicant was unable to communicate effectively and build rapport, and her communication was blunt and aggressive.
Ms Fraser referred to feedback from Ms Dugdale in June 2022, Ms Robertson on 22 July 2022 and Ms Turecek on 29 July 2022 and 18 August 2022. Ms Fraser referred to a job candidate complaint about the applicant received on 1 July 2022. That complaint identified the applicant ranting at a candidate and making him feel worthless and engaging in what was said to be veral abuse. Ms Fraser referred to a meeting with the mother of the complainant and the applicant at which the applicant raised her voice and used an aggressive tone as she was struggling with the negative feedback. Ms Fraser texted the applicant requesting she stay calm. After the meeting Ms Fraser reminded the applicant of the importance of building her interpersonal skills and the applicant conveyed she understood what Ms Fraser was talking about and did not challenge the feedback.
On 12 July 2022 the applicant telephoned Ms Fraser and said that Sanja is being dismissive of her and not following her directions. In response Ms Fraser arranged a meeting with the applicant and Ms Turecek on 12 July 2022 and told Ms Turecek her behaviour was not acceptable and reminded both about behavioural expectations in the workplace. Ms Turecek disagreed that she had been behaving poorly and told them both there may have been a miscommunication as a contributing factor to feedback. Both were told that all staff should be supportive of colleagues. Both agreed they understood the need to be respectful and open in communications moving forward. After the meeting the applicant approached Ms Fraser and said she was unhappy with the outcome of the meeting and believed Ms Turecek should have been further reprimanded or dismissed and was told the outcome of the meeting was sufficient and that Ms Fraser would monitor the situation herself. Ms Fraser checked in with the applicant on a number of occasions to monitor the situation with Ms Turecek and the applicant did not raise any further concerns regarding her working relationship with Ms Turecek.
On 22 July 2022 Ms Fraser received a call from the applicant that she had just had an argument with Ms Robertson and that Ms Roberston wasn’t reporting to her and listening to her instructions. Ms Fraser asked the applicant if she needed to get involved and the applicant said she could resolve the issue directly without her intervention. On the same day after that conversation Ms Robertson called Ms Fraser referred to an argument with the applicant and that the applicant didn’t understand she was trying to assist and that she did not report to the applicant but to Ms Fraser and Mr Workman. Ms Robertson thought she could resolve the issue directly without intervention.
On 25 July 2022 Ms Fraser scheduled a meeting to assist the applicant addressing competing priorities for 26 July 2022. On 26 July 2022 Ms Fraser discussed with the applicant how to priorities different responsibilities. During this meeting the applicant was engaged and responded appropriately to the feedback and strategies.
On 29 July 2022 Ms Fraser received an email copied to Ms Lambourne from Ms Turecek denying the concerns expressed by the applicant and making allegations about the applicant behaving inappropriately towards her at work. Ms Fraser then had a discussion with Ms Simic and was asked to speak to the applicant about the concerns raised by Ms Turecek. After speaking with the applicant about administering profile assessments Ms Fraser said she would attend meeting with the applicant and Ms Turecek to provide additional support and if applicable mediate any issues.
At a meeting with applicant and a new staff member Michelle Wang on 9 August Ms Turecek raised a query about another consultant Ms Shultz and the applicant learned forward and clapped her hands aggressively and told Ms Turecek that she had already spoken with her about this issue and that she was not to look after that candidate and said “I am the manager and you must do what I say. Ms Fraser told the applicant that it wasn’t appropriate to have discussion at that time and can be discussed later. Following the meeting Ms Fraser told the applicant her behaviour during the meeting was not acceptable particularly in the way she spoke to Ms Turecek and that in tone and body language she had been aggressive towards Ms Turecek. The applicant disagreed and believed her behaviours were justified and said she could no longer work with Sanja and so you will have to choose between terminating her or me. Ms Fraser told the applicant to take a walk and that they could discuss the matter later once she had collected her thoughts and the applicant left the meeting.
On 10 August 2022Ms Fraser met with the applicant in the Chatswood office and told the applicant that the way she delivered her message to Ms Turecek was not acceptable. The applicant disagreed and said Ms Turecek needed to know she’s the manager and to follow her directions. Ms Fraser told the applicant she was there to support and mentor her and that she should meet with the HR team to try and understand her role as a manager and what behaviours are appropriate. The applicant said she didn’t feel supported and that in the early days of her work she was told she was too young to be a manager and should be doing administrative duties. The applicant also told Ms Fraser that at a meeting on 22 July 2022 Ms Roberston had slammed her hands on the table during a meeting and made her feel anxious and that she would speak to HR as suggested. Ms Fraser was surprised by the allegation concerning Ms Robertson and asked why it wasn’t raised before and that it was the first time Ms Fraser had heard about the issue. The applicant said she wanted to deal with it herself. Ms Fraser email at 6.39pm on 10 August form the applicant setting out issues with Ms Turecek raised in the meeting on 10 August 2022.
On 11 August 2022 Ms Fraser arranged a meeting with Ms Robertson and raised the alleged by the applicant as to slamming hands on the table in a meeting with the applicant and was told that want’s true, didn’t slam her hands on the table would never do so and was upset at the applicant’s claim, and felt the applicant was dismissive and frustrated during their meeting. Ms Fraser scheduled a meeting with both the applicant and Ms Robertson for 18 August 2022.
Ms Fraser explained the 3 month probation process, put in train on 6 July 2022 and the sending of calendar invite to the applicant on 22 July 2022 for a review on 23 August 2022. On 12 August 2022 because of increasing concern as to the applicant’s behaviour and conduct the review was rescheduled to 16 August 2022 and Ms Simic was to attend.
Ms Fraser completed the probationary form on 15 August 2022 and had a discussion with Ms Simic about concerns as to the applicant’s suitability for her position and that these concerns should be raised in the probationary review meeting. The probationary review meeting took place on 16 August 2022. Ms Fraser identified it was a standard form used for the three month probationary review as standard key performance indicators. Ms Fraser said there was usually be a 3 month probation review and denied the performance review was conducted because of the applicant’s alleged complaints on 22 July 2022 and 10 August 2022. Ms Fraser said the review form feedback, scheduling of the three month review, form used were not because of any complaints by the applicant.
Ms Fraser explained the presence of Ms Simic and talked through the scores and comments with respect to the key performance indicators by reference to the form Ms Fraser had completed and gave the applicant feedback and how to improve her leadership and personality skills. The applicant didn’t agree with performance indicators but acknowledged there were areas for improvement and that she would like to continue learning and developing her role. The applicant was invited to provide responses and comments by Thursday 18 August 2022 and the applicant agreed to do so.
At the end of the meeting the applicant raised Ms Roberston slamming her hands on the table and that she felt unsafe around Ms Robertson. Ms Fraser raised moving the applicant from the Back2 Work project. The applicant said she was happy to resolve her differences with Ms Robertson. On 17 August 2022 Ms Fraser told the applicant, in response to a suggestion she may not be able to provide her response by the next day, that the response did not need to be lengthy and that she could provide whatever comments or feedback on the following day.
Ms Fraser met with the applicant and Ms Robertson on 18 August 2022 and was told that there would be no issues with them working together. Ms Fraser understood both were willing to continue working together on a professional basis and wanted to improve their relationship.
After that meeting, at about 2:20pm Ms Fraser had a meeting with the applicant and Ms Turecek out of concern for their working relationship. Ms Turecek was unhappy working with the applicant and could see she was being treated differently and the applicant said Ms Tureck ignored her emails and dismissed her. Ms Turecek said the applicant was a bad manager and this is why to other staff left the respondent. Ms Fraser intervened and said the conversation was becoming unhealthy and told Ms Turecek not to be disrespectful to the applicant and told the applicant to provide positive feedback when Ms Turecek does good work in the future. Ms Turecek said she would be more respectful but that she would like some acknowledgment when she does good work. Ms Fraser told the applicant she can give verbal praise and a small gesture like a high five, which she then demonstrated. The applicant asked Ms Turecek to send her an email with the support and training needed and Ms Fraser told the applicant she could work on making changes.
The applicant then asked to speak to Ms Fraser privately after the meeting and then said Ms Turecek was lying and manipulative. The applicant didn’t think her behaviour contributed to the negative relationship. Ms Fraser told the applicant she needed to find ways to overcome the behaviour and build a relationship with Ms Turecek and other staff, and that she is the manager, is responsible for working through conflict with her team members and that Ms Fraser could provide assistance. The applicant appeared agitated and frustrated and said she was unhappy with Ms Turecek’s insubordination, then appeared exasperated and left the room suddenly without warning.
Ms Fraser was concerned at the applicant’s behaviour and as a manager was expected to work collaboratively with her team and try to improve her working relationships. Ms Fraser then went to see Ms Simic and reported what had happened and then Ms Fraser and Ms Simic went to see Ms Lambourne. Ms Fraser told Ms Lambourne and Ms Simic what had occurred and that the applicant denied Ms Turecek’s concerns and was not willing to accept feedback or try to speak about her concerns constructively. Ms Lambourne said the respondent cannot tolerate such behaviour decided the applicant was not suitable for her role as Area Manager and Ms Fraser agreed it was appropriate to end the applicant’s employment. Ms Lambourne was informed that no response to the review had been provided by the applicant but she said it wouldn’t make a difference as the respondent needed a manager who could communicate with their team and accept feedback.
Ms Fraser said none of her comments to Ms Lambourne were motivated by the fact the applicant had made complaints or inquiries about her employment, or issues raised on 22 July 2022, or during the meeting on 10 August 2022, in the email dated 10 August 2022 or in the three month probation meeting.
Ms Fraser received a telephone call from the applicant in the morning on 19 August 2022 saying she was feeling unwell, would not be at work, and would provide a medical certificate. Ms Fraser told the applicant to look after herself and that she would let her team know she would not be in. Ms Fraser had no further communications with the applicant.
On 25 August 2022 MS Fraser received a complaint from Ms Dugdale about the applicant’s behaviour at work, which included she did not follow instructions, struggled with concepts of leaders/managers tailoring communications, had a tendency to be aggressive, struggled with basic features in the Outlook calendar, looked and sounded abrupt and angry, and her tone was very loud.
Ms Fraser was copied in on the termination letter dated 21 November 2022. Ms Fraser denied engaging in workplace harassment, intimidation or bullying towards the applicant, denied endorsing Ms Turecek’s actions, denied organising meeting with Ms Turecek and the applicant to threaten or bully the applicant, denied during the meeting that the applicant experienced aggressive actions, undermining remarks, instances of humiliation or verbal abuse. Ms Fraser denied the applicant raised the incident with Ms Robertson as bullying incidents. Ms Fraser denied the applicant raised persistent workplace harassment, intimidation and bullying or work health and safety concerns and denied that Ms Simic told the applicant she could not be a manager as she did not confront Ms Robertson. Ms Fraser denied that the applicant at the meeting on 10 August 2022 raised any unresolved workplace bullying and harassment concerns or that she was in fear at work. Ms Fraser denied that she did not address and act upon feedback provided by the applicant and said she addressed and actioned all feedback in a timely and an appropriate manner.
SUMMARY OF MS ROBERTSON’S EVIDENCE
Ms Robertson identified that she is employed by the respondent. According to Ms Robertson’s affidavit dated 1 August 2024, Ms Robertson identified to having been Team Leader with the respondent in Northern Sydney since February 2023.
Ms Robertson was based at the respondent’s office in Hamiliton, NSW and would travel and from other offices, including the respondent's office at Chatswood. Ms Robertson identified that if she needed to train new staff members and assist with their onboarding, she would travel and work from office where the staff member is based.
Ms Robertson identified that in her role as Team Leader in the Lower Hunter, she reported to both Anthony Workman (Mr Workman), Area Manager in the Lower Hunter and Ms Fraser, Regional Manager in North NSW. Ms Robertson denied that the applicant was her manager or that she reported to the applicant. Ms Robertson asserted that the applicant was employed under a different region in the organisation.
Ms Robertson identified that she was asked by Ms Fraser to assist the applicant and other staff with training over various matters, including in relation to compliance.
Ms Robertson identified that she was also responsible for managing team members’ workload as well as providing training and support.
On 16 June 2022, Ms Robertson identified that she met with Ms Fraser via Microsoft Teams. Ms Robertson asserted that during this meeting Ms Fraser told her that the applicant would require assistance transitioning to the Disability Employment Service contract and asked if she would agree to travel to the Chatswood Office for a few days at a time every few weeks in order to provide additional training and support to the applicant. Ms Robertson identified that the purpose of providing the applicant with additional training and support was to help integrate the applicant into her team, ensure that program reviews for candidates were completed in a timely manner, provide the applicable staff with training about their roles and duties involved, provide the applicant with coaching on the respondent’s disability employment service contract and train the applicant in identifying and complying with the respondent’s obligations, including those relating to risk and auditing.
Ms Robertson identified that would travel to work more frequently at the Chatswood Office and assist by providing the additional training and support to the applicant and the region.
On 30 June 2022 at around 2:00pm, Ms Robertson deposed to meeting with the applicant, Ms Fraser and Ms Sakell, Customer Experience Consultant via Microsoft Teams. Ms Robertson deposed that was the first moment she had been introduced to the applicant. Ms Robertson identified that the purpose of the meeting was to gauge the caseload of Employment Consultants within the Northern Sydney region and to assess where the job candidates were at and identify any additional support that they may need.
On 11 July 2022, Ms Robertson referred to receiving a message from the applicant via Microsoft Teams, requesting assistance with completing a Disability Employment Service Program Review for a candidate. Ms Robertson exchanged a number of messages with the applicant via Microsoft Teams. Ms Robertson identified that it was apparent to her that the applicant was unfamiliar with the process for completing the Disability Employment Service Program Reviews and required training. According to Ms Robertson’s affidavit, she stated that she was not surprised by this given that the applicant had previously told her during conversations that she had previously worked with a Workforce provider, which is a job search agency rather than a disability employment service provider.
Ms Robertson identified that Ms Fraser had previously asked her to provide the applicant with coaching on the respondent’s Disability Employment Service contract during her meeting with Ms Fraser on 16 June 2022.
On 12 to 15 July 2022 and 21 to July 2022, Ms Robertson identified to travelling to and working from the Chatswood office during those periods to provide training and support to the applicant in relation to the Disability Employment Service Program Reviews, the exist process and the transfer process. During this period, Ms Robertson identified that she assisted with interviews for a new Employment Consultant, assisted with training another staff member, provided intake of candidates, assisted with staff integration and worked on a project that involved the Northern Syndey region.
On 15 July 2022, Ms Robertson deposed to having an in-person training session with Ms Turecek, who is the Employment Consultant at the Chatswood Office. Ms Robertson recalled that during the training session with Ms Turecek, she took Ms Turecek through the process of booking an appointment for an Employment Services Assessment which allows the respondent to test whether a prospective candidate is eligible to access the respondent’s services. Ms Robertson identified that Ms Turecek required the training session to understand the respondent’s process in relation to job plans, case notes, exists and the Disability Employment Services Program Reviews and Summaries.
Ms Robertson identified to that she invited the applicant to the training session. However, the applicant did not attend. According to Ms Robertson’s affidavit, the applicant told her that she had to focus on placements for the month and did not have time to attend the session.
After the training session with Ms Turecek finished, Ms Robertson recalled seeing the applicant at her desk at the Chatswood Office, to which Ms Robertson walked to her. Ms Robertson referred to a conversation with the applicant and the applicant told Ms Robertson that she had received an email from Services Australia regarding an appointment for a job candidate and showed her a copy of the email. Ms Robertson deposed that the email was sent early in the morning and the applicant told Ms Robertson that she had not responded to the email from Services Australia.
Ms Robertson told the applicant that she had to respondent to the email from Services Australia to book the appoint for the job candidate. Ms Robertson identified to watching the applicant book the appoint to ensure the booking was correctly processed. Ms Robertson further identified that when the applicant attempted to book the appointment, it was already booked by another organisation. Ms Robertson deposed to telling the applicant that bookings are tentative and that it is important to respond to the email as soon as possible otherwise they would be booked by other organisations, if they are not accepted quickly.
Ms Robertson denied that she slammed or banged the table in the presence of the applicant or acted inappropriately to the applicant on 15 July 2022.
Ms Robertson made reference to incident with an applicant that occurred on 19 July 2022. Ms Robertson sent an email on 19 July 2022 to the applicant which advised the applicant that there were outstanding Disability Employment Services Program Reviews for eight candidates which had not been submitted by the required due date in the Northen Sydney Region, which is the region that the applicant was responsible for. Ms Robertson’s email outlined what action she had taken to address this issue and what actions would need to be completed.
Ms Robertson recalled to receiving an email during the day on 19 July 2022 from the applicant to which the applicant stated “I hope you can show Sanja regarding the DES Program Reviews so she can do this for her candidates”. Ms Robertson replied to the email in which she explained that Ms Turecek had completed two of the Disability Employment Services Program Reviews and she appeared to pick it up quickly, but she had not completed the other Disability Employment Services Program Reviews as Ms Turecek was away on leave. The applicant did not respond to the email.
Ms Robertson referred to receiving an Outlook calendar invitation on 21 July 2022 from the applicant to meet with her on 22 July 2022 at the Chatswood office to train the applicant in respect of the process for undertaking a Disability Employment Services Program Review, exit and transfer.
Ms Robertson identified that she attempted to guide the applicant through Employment Services System to show how to complete Disability Employment Services Reviews. Ms Robertson observed that after five to ten minutes, the applicant was having difficulty following her instructions navigating the system. Ms Robertson observed that the applicant repeatedly clicked the wrong places rather than where she had instructed the applicant to click. Ms Robertson deposed to asking the applicant to unplug her computer from the TV in which the training was being conducted, and Ms Robertson asked use to her computer to conduct the training to which the applicant appeared frustrated, crossed her arms, gave limited responses when directly asked questions by Ms Robertson, and remained silent during the training session.
At the end of the training session, the applicant asked Ms Robertson to provide her with a hard copy of the candidate examples which was used throughout the training session. Ms Robertson identified that she could not provide those documents as they contained the candidate’s personal information.
Ms Robertson identified that the applicant told her that she needed these documents to include in her training folder. Ms Roberston deposed to telling the applicant the candidate examples used in the training session contained personal information and that the applicant could not keep candidate information in a hard copy format because it was the respondent’s policy that any hard copy files must be stored securely in a locked filing cabinet at the Chatswood office.
Ms Robertson told the applicant she could keep a hard copy of the candidate examples if she used her compute to redact the candidate’s personal information before printing them. Ms Robertson identified that the applicant became frustrated, argumentative, pointed her hands at her and raised her voice.
Ms Robertson asserted that the applicant told her to give her a hard copy of the candidate examples because the applicant was her boss, and she reported directly to the applicant.
Ms Robertson referred to a conversation with Ms Fraser in which she told Ms Fraser that she had an argument with the applicant and that the applicant misunderstood that she was receiving assistance to help with her development as an Area Manager. Ms Robertson identified that the applicant told her that she reported to the applicant but that she reported to Mr Workman and Ms Fraser. Ms Robertson also told Ms Fraser that she was upset about how the applicant spoke to her during the training session and that it made her feel uncomfortable.
On 11 August 2022, Ms Robertson identified to having a meeting with Ms Fraser in which Ms Robertson was advised by Ms Fraser that the applicant told her that Ms Robertson slammed her hands during the meeting on 22 July 2022. Ms Robertson deposes that she told Ms Fraser that it was not true. Ms Robertson was also told by Ms Fraser that the applicant did not want her to plug her laptop into the TV in the training room and the applicant appeared upset and frustrated with Ms Robertson.
On 18 August 2022, Ms Robertson, Ms Fraser and the applicant attended a meeting at the Chatswood office. Ms Robertson deposed that Ms Fraser explained that the meeting was to promote a health discussion between the applicant and herself and resolve any issues. Ms Roberston identified that she told the applicant that she travelled to the Chatswood office to provide additional support and training to the applicant. Ms Roberston identified that the applicant agreed to discuss and address any issues to move forward.
Ms Robertson referred to receiving an email on 21 August 2022 from the applicant which accused her of slamming a table and failing to provide her a program summary. Ms Robertson replied to the email and denied slamming a table, stated she was disappointed that the applicant made this accusation and reinstated the respondent’s policy in respect of keeping hard copy files in a secured locked cabinet at the Chatswood office.
Ms Robertson denied in engaging in workplace harassment, intimidation and bullying towards the applicant. Ms Robertson identified that given she was based in Hamilton and the applicant was based in the Chatswood office and she had limited interactions with the applicant.
APPLICANT’S SUBMISSIONS
The applicant maintained that she had been the subject of adverse action as alleged in her Statement of Claim, dated 9 September 2024, and that the respondent had contravened s 340 and s 352 of the Act.
The applicant also made reference to the contravention of s 44 in relation to the two requirements of s 117 of the Act. The applicant maintained that the respondent had not discharged its onus in relation to the adverse action in respect of her termination or in relation to the withholding of her payment entitlements. The applicant maintained that even if her evidence in respect of particular incidents was not accepted, that she was still the subject of adverse action by her termination for a proscribed reason.
The applicant asked for substantial compensation as well as declarations in respect of the contraventions, an apology and a penalty hearing.
RESPONDENT’S SUBMISSIONS
The respondent’s case outline carefully addressed the pleaded case, the supporting evidence of the respondent, the rebuttal of the presumption and that the respondent had established no substantial operative proscribed reason by the respondent and the relevant law. Mr Meagher of counsel submitted that the Court should accept the respondent's witnesses over the applicant in relation to the events that occurred. Mr Meagher submitted that the Court should find that there was no substantial and operative subjective proscribed reason for the alleged adverse action and that objectively assessed, there was no operative proscribed reason for the alleged adverse action, and that the respondent had discharged its burden.
Under s 361 of the Act, Mr Meagher submitted that in respect of the first, second, third and fourth complaint, did not constitute the exercise of a workplace right by the applicant. Mr Meagher further submitted that in any event, even if the applicant were found to have exercised a workplace right in relation to the fifth complaint, or the other found complaints, that exercise by the applicant was not a substantial and operative proscribed reason, either subjectively or objectively, for the termination of the applicant and/or for the withholding of payment entitlements and/or the three month probation review, key performance indicators, form or content. The Court accepts the above submissions. Mr Meagher submitted that any damages under s 345 in respect of the contraventions of s 44 should be nominal and in the order of $1,000.
The Court does not accept that the applicant went on leave on 19 August 2022 because of any alleged exercise of workplace right, in the meeting on 18 August 2022. Whilst the respondent accepted that the applicant suffered a workplace injury for the purpose of a workers' compensation law there was not concession as to the cause. The Court does not accept that the conduct identified by the applicant as to alleged harassment, bullying, intimidation or unsafe workplace occurred or caused any of the alleged symptoms asserted by the applicant during the applicant’s employment. The Court finds that the only cause of the applicant’s workplace injury was the misconduct of the applicant herself, and was not caused by any misconduct, misbehaviour or failure by the respondent or its staff. The icare review is an administrative process, capable of being further reviewed, lacking finality and that does not give rise to any issue estoppel in these proceedings. The Court does not accept the applicant informed the Ms Fraser that she would take personal leave following the meeting on 18 August 2022, as alleged in paragraph 20 of the statement of claim. The Court accepts the applicant was absent from work until her termination of employment on 21 November 2022, purportedly backdated to 17 November 2022. The Court does not accept that the applicant suffered any work-related psychological injury due to any alleged contravention of the Fair Work Act 2009 (Cth) by the respondent or due to any of the alleged conduct by the staff of the respondent in respect of which the Court finds the applicant's assertions to the contrary are not credible. Nonetheless, the email sent on 21 August 2022, albeit after the decision made to dismiss the applicant, described as the fifth complaint was, the Court finds, the exercise of a workplace right.
The exercise of that workplace right was not the cause of the applicant's temporary absence from work and the Court does not accept the truth of content of the email of 21 August 2022 by the applicant because the Court finds the applicant not to be a credible witness and the Court prefers the evidence of the respondents to that of the applicant, and does not accept that the applicant suffered a work-related psychological injury due to bullying, harassment or intimidation by the respondent’s staff. For the reasons that follow the Court does not accept that the respondent took adverse action due to the exercise of the alleged workplace rights by the applicant, even if all the complaints were each accepted as exercise of workplace rights. The Court accepts the respondent’s evidence and that the respondent has discharged the onus to show that in all the circumstances neither subjectively nor objectively was the applicant the subject of adverse action due to her exercise of any workplace right or because she was temporarily absent from work.
In relation to the contraventions of s 44 of the Act, in which the termination letter, dated 21 November 2022, was purported to reflect a termination four days earlier and failed to provide payment to the applicant in lieu of notice pursuant to s 117. The Court finds there was a contravention of s 44 by a reason of the failure to comply with s 117 of the Act by the respondent as alleged by the applicant after taking into account the terms of the termination letter dated 21 November 2022, which purported to identify the applicant was entitled to payment in lieu of notice. The Court rejects the respondent's submission that there were not two infringements of s 117 in respect of the contraventions of s 44. Accordingly, there were two contraventions of s 44 of the Act in relation to the letter dated 21 November 2022.
In relation to s 342 of the Act, the applicant alleges that there was adverse action taken against her by reason of her performance review in her probationary meeting not being in accordance with the standard key performance indicators. The Court finds the applicant's contention in that regard is not correct. The Court finds the performance review form and key performance indicators were standard forms for the probationary review and rejects the applicant’s evidence to the contrary and prefers the respondent’s evidence as to the standard form, key indicators and holding of a three month probationary review. The Court does not accept that the three month probationary review, form or key performance indicators or content was caused by any exercise of a workplace right by the applicant. Further the Court does not accept that there was any adverse action taken by the respondent in relation to the probationary performance assessment of the applicant, and the Court finds that that probationary meeting and assessment does not reflect the taking of any adverse action against the applicant within the meaning of s 342(1) item (1)(b). The Court does not accept the applicant was injured in her employment by the three month probationary review, the use of the form, key performance indicators or content. Accordingly the Court finds that ere was no adverse action taken as alleged in respect of the performance review. Further the Court accepts the respondent’s evidence that the performance review, key performance indicators and content was not undertaken because the applicant exercised any of the alleged workplace rights. The Court finds in all the circumstances that the respondent has rebutted the presumption and that neither subjectively nor objectively was the exercise of any workplace right by the applicant a substantial or operative reason of the performance review, the use of the key performance indicators, the form, or its content.
In relation to the termination of the applicant, the applicant alleges that termination was adverse action within the meaning of s 342(1) item (1)(a) of the Act by reason of dismissing the applicant because she had made one or more of the complaints referred to in the pleading. As indicated above, the Court finds the respondent has rebutted the presumption that the respondent took adverse action against the applicant for a proscribed reason in respect of the alleged exercise of workplace rights by the applicant.
The Court also finds that the respondent has rebutted the presumption in relation to the alleged taking of action against the applicant within the meaning of s 352 of the Act because she was temporarily absent from work, either on 19 August 2022 or following 19 August 2022 or during her period of absence up until the sending of the letter on 21 November 2022.
The Court also finds that the respondent has rebutted the presumption of taking adverse action against the applicant within the meaning of s 342(1) item (1)(b) of the Act by withholding her termination payments either because of the one or more of the complaints alleged by the applicant in the pleading or because she was temporarily absent from work between 19 August 2022 and 17 November 2022. The Court finds the respondent has rebutted the presumption to prove that the withholding of the termination payments was not for a proscribed reason but rather, was because of the applicant's failure to return the property of the company, in particular, keys to a company vehicle, keys to a filing cabinet to which employees of the respondent required access and a company computer.
The conduct of the respondent in that regard, while misconceived in respect of obligations under s 117, understandable, given the importance of the property being withheld by the applicant and the erroneous belief that it was lawful to do so. The applicant's assertion is that she withheld the property because she was scared to return it to the respondent. The Court finds the applicant’s explanation to be not credible. The applicant's assertion that she made genuine effort to return the keys, however the Court rejects this explanation.
It was entirely unreasonable for the applicant to be dictating that the keys had to be returned to the respondent at a police station. The applicant's conduct in withholding the property of the respondent was appalling behaviour by the applicant and reflected a complete disregard of her obligation to return the property of the respondent. The Court finds the applicant's explanations for the failure to return the property are contrived and not credible. The Court does not accept that the applicant was fearful of the respondent or fearful of her safety and finds that there was no proper reason for the applicant to continue to retain the property of the respondent and no proper reason for her not having returned it to the premises of the respondent. The Court does not accept that the applicant's alleged workplace injury, which was not proved before this Court, in any way prevented her from returning the property of the respondent to the respondent either on 18 August, 19 August or thereafter.
In all the circumstances the Court accepts that the respondent has rebutted the presumption to prove that none of the alleged adverse action in respect of the exercise of alleged workplace rights advanced by the applicant, even if characterised properly as an exercise of a workplace right, was a substantive or operative reason for the alleged adverse action being the termination of the applicant or the withholding of the applicant's termination payments.
The Court finds that Ms Fraser was a credible and impressive witness, as was Ms Lambourne. The Court finds the evidence of Ms Fraser was compelling, logical and rational, and the Court finds that there was no subjective proscribed reason by Ms Fraser in relation to the role she played in respect of the termination of the application, or in relation to the withholding of employee entitlements. The Court also finds that Ms Simic was a credible and impressive witness and accepts her evidence in preference to that of the applicant.
The Court finds that Ms Lambourne was a careful and impressive witness who gave logical and rational evidence which the Court accepts. The Court finds, both subjectively and objectively, that Ms Lambourne had no substantial or operative proscribed reason in respect of the termination of the applicant's employment or in relation to the withholding of employment entitlements or in respect of the performance review.
The Court finds that the applicant was a most unimpressive witness and lacks credibility. The applicant was unresponsive in answering questions, evasive and was seeking to advocate her case. The applicant’s evidence as to events concerning the meeting with Ms Fraser and Ms Turecek was inconsistent with and was contradicted by her own email. The applicant’s sworn denial of Ms Turecek saying that she wanted encouragement was contradicted by her own sworn evidence. The applicant was not a witness of truth. Whilst the Court has taken it into account that she was unrepresented at the hearing, the applicant displayed a level of belligerence consistent with the criticisms that were advanced of her behaviour in a probationary workplace review. The Court does not accept the applicant's evidence where in conflict with those of the witnesses of the respondent and does not accept the denials by the applicant of the version of events put to the applicant during her cross examination.
The Court finds the applicant's behaviour in leaving work on 18 August 2022 occurred without proper notification that she was going on leave and was unreasonable behaviour consistent only with the applicant realising she was unable to competently perform her role for which she had been employed and that she was unlikely to pass her 3 month probationary review. The Court finds the applicant's behaviour in not returning to work after 18 August 2022 was not the subject of persuasive explanation by the applicant. The Court does not accept that the applicant suffered any bullying or harassment by staff of the respondent as alleged in the email dated 21 August 2022 or at all. The Court does not accept that the applicant suffered any PTSD due to any other employee conduct during her probationary employment. It was apparent from the unsatisfactory probationary performance review that the applicant’s employment was at imminent risk of being terminated at the 3 month review mark. Indeed the applicant’s behaviour in leaving the meeting with Ms Faser on 18 August 2022 is consistent with, and the Court finds that, the applicant appreciated that she was about to be fired. The applicant’s evidence as to being the subject of alleged bullying and harassment, lacks credibility and was clearly intended to postpone the inevitable problem with the applicant’s poor performance, not having yet passed the 3 month probationary review. In the course of submissions, the applicant contended that she was still on workers’ compensation, quite why this was re-instated or why it has continued is not an issue this Court has to determine. The Court will however record that there is no bullying, harassment, intimidation or unsafe workplace evidence alleged by the applicant that is accepted by this Court due to the applicant’s want of credibility. Further the Court finds that the workplace injury that was caused to the applicant by her own misconduct during her probationary employment had ceased to prevent the applicant’s return to full time work by 17 November 2023. Because of the adverse credibility of the applicant the Court does not accept the applicant’s evidence that she continued to suffer any workplace injury that prevented her return to full time work on or after 17 November 2023 and that she was fit to do so thereafter.
The applicant, in her performance review, demonstrated abilities well below those of the managerial role which she was required to fulfill. The applicant's alleged explanation, because of alleged staffage issues, the Court finds, was entirely without substance. The Court finds the applicant was, in fact, provided with assistance to try and help her perform the role that she was employed to undertake. The Court accepts the evidence of Ms Fraser that the applicant lacked the skills to perform her managerial role and that there were work opportunities being lost by the respondent due to the lack of competence of the applicant.
The Court finds that the applicant lacked the managerial communication and team skills, to perform the role for which she was employed. The Court finds that the respondent correctly identified the performance deficiencies of the applicant and her lack of managerial skills and inability to work co-operatively with a team and objectively were reasonable and proper grounds to terminate the probationary employee.
The Court also accepts the evidence of Ms Simic and Ms Fraser, who made an indispensable contribution to the decision making of Ms Lambourne, finds, both subjectively and objectively, that neither Ms Simic nor Ms Fraser had a proscribed reason that was a substantial or operative reason in relation to her recommendations and involvement in the termination of the applicant, in relation the probation review using standard key performance indicators or in the withholding of employee entitlements upon termination.
The Court is required to evaluate whether the respondent has discharged its onus, not just from a subjective fact-finding exercise, but also on an objective standard, taking into account all the evidence. Given the lack of managerial skill, inability to work co-operatively with a team demonstrated by the applicant and her inability to perform the role for which she was engaged, the Court finds that the respondent has objectively rebutted the presumption and finds that there was not that was a substantial or operative proscribed reason in relation to the dismissal of the applicant, in the conduct of the probation review, use of the standard key performance indicators, or in relation to the withholding of her payment entitlements. The Court finds that the respondent did not dismiss the applicant because of illness, injury or her leave. The Court finds the respondent has rebutted the presumption that the applicant’s illness, injury or leave was a substantial or operative reason for her dismissal.
The Court finds that the applicant's case of alleged contravention of s 340 and alleged contravention of s 352 of the Act must be dismissed.
In relation to the contravention of s 44 in the two respects in which the notice of termination failed to comply with the requirements of s 117 of the Act, the Court is satisfied that it is appropriate to award some nominal amount in respect of the vindication of the applicant's rights under s 44 and s 117. The Court accepts the submissions of Mr Meagher that the erroneous four-day early purported termination date on the notice did not, of itself, cause any real loss or damage to the applicant. The Court has also taken into account Mr Meagher's submissions that the late payment of the applicant's entitlements reflected a period of approximately only two months and was in the context of the applicant's entirely inexcusable behaviour in withholding the property of the respondent.
While the Court fully understands the dismay of the respondent in having important property withheld by the respondent, it is not, of itself, an excuse for the contravention of s 44, which is a general protections provision. The general protection provisions are of importance in the application of the Fair Work Act 2009 (Cth).
Whilst the Court accepts that the belated termination payments following the notice on November 2022 until January 2023 would have caused the applicant a small level of distress, the Court does not accept that the withholding of the termination payment of that period caused the applicant any psychiatric or psychological injury or any other loss and damage beyond the very short period of lost interest, which the Court would not, of itself, find warranted the making of any order under s 545 of the Act. The Court does, however, find that the withholding of the payment reflected a contravention in respect of which the applicant is entitled to compensation in respect of the vindication of her right to have been paid at the time of the termination in accordance with s 117 and s 44 of the Act. The Court has taken into account the objects of the Act and that the National Employment Standards are rights that the applicant was entitled to have complied with.
Accordingly, the Court finds that the applicant is entitled to a nominal amount of compensation to reflect the vindication of her rights for loss suffered because of the two contraventions of s 44 by the two non-compliances of the respondent with s 117.
Mr Meagher submitted that the appropriate compensation should be in the order of $1,000, given that the payments themselves were not substantial and appear to be below $2,000. Whilst there is no punitive element in the compensatory power under s 545 of the Act, the Court does regard the vindication of the applicant's rights in the circumstances of this case to be ones that warrant the making of a compensation order, for the loss the applicant suffered because of the two contraventions in the nominal amount of $5,000 for each of the contraventions of s 44, making a total compensation order in the amount of $10,000.
The applicant asked for an apology order. Given the applicant's behaviour and the withholding of the property of the respondent, the Court is not persuaded, as a matter of discretion, that this would be an appropriate case for the making of any order for apology by the respondent to the applicant. The Court has taken into account the applicant's unacceptable behaviour and lack of managerial skills of the applicant which justified the dismissal and the applicant failed in the case of any contravention of s 340 and s 352. Further Ms Harris in fact apologised in her affidavit for the conduct the subject of the s 44 contraventions. Accordingly as a matter of discretion the Court considers that the making of any order is not appropriate in respect of the two contraventions of s44.
The Court, notwithstanding the application by the applicant, as a matter of discretion considers it is not appropriate in this case to exercise its power under s546(1) to conduct a penalty hearing. The conduct of the applicant in withholding the property of the respondent was the sole substantial and operative cause of the delay in payment of termination entitlements and given that the applicant had left on 18 August 2022, on the Court's findings, it was wholly unreasonable for the applicant to continue to retain the property of the respondent and not to return the same to the respondent. The applicant in fact was receiving workers compensation up to 17 November 2022 and that was reinstated on 4 May 2023, and the relatively small amount that was then paid in January 2023, whilst the respondent’s property was still withheld by the applicant. The Court has rejected the applicant's explanations for the retaining of the respondent's property, found the alleged contraventions of s 340 and s 352 have not been made out and as a matter of discretion finds that this is not a case where the Court should exercise its power to hold any penalty hearing. The Court has taken into account the objects of the Act, the public interest in compliance as the purpose of the civil penalty provision by the means of deterrence and that the applicant has received the benefit of declarations as to the two contraventions made out and a compensation order for the loss suffered in a nominal amount. The Court has also taken into account the respondent’s explanations for the two contraventions, which the Court accepts, the Court also accepts the two contraventions were not deliberate, the affidavit apology by Ms Harris for those two contraventions, and the preliminary view that in all the circumstances it is unlikely any penalty would be imposed and the overarching purpose in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
Accordingly, the Court makes the above orders.
I certify that the preceding two hundred and six (206) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 25 October 2024
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