LHMU v Cuddles Management Pty Ltd
[2009] FMCA 463
•26 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LHMU & ANOR v CUDDLES MANAGEMENT PTY LTD | [2009] FMCA 463 |
| INDUSTRIAL LAW – Application alleging injury and termination of employment for prohibited reason – employee claimed entitlement to return to work after maternity leave – referral of matter to union – commencing conciliation proceedings against employer – employer alleges poor performance by employee – damages for breach of contract. INDUSTRIAL LAW – Award entitlement – maternity leave – whether Award applied – whether employer receiving recurrent funding from State or Federal Government. INDUSTRIAL LAW – Contract of employment – notice of termination – statutory guarantee of maternity leave – whether notice of termination can run concurrent with maternity leave. CONTRACT – Breach – Contract of employment – notice of termination – damages – mitigation. |
| Children’s Services (Private) Award 2006, cll.3, 4, 19, 22 and 24 and Sch.C Constitution Corporations Act 2001 Industrial Relations Act 1979 (WA), s.85 Workplace Relations Act 1996 (Cth), ss.4, 6, 265(1)(b), 279(1) and (2), 280, 698, 699, 719(1), 791(1)(a), 792(1), 793(1), 807(1)(a), 807(1)(c), 809, 824(2), 841(b), 854(10)(a), sch.2 cll.2 and 3, sch.8 cl.8 |
| Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No. 2) (2008) 178 IR 168; [2008] WASCA 254 Hayward v Rohd Four Pty Ltd T/As CM Testing Service & Ors 177 IR 212; [2008] FMCA 1490 |
| First Applicant: | LIQUOR HOSPITALITY AND MISCELLANEOUS UNION |
| Second Applicant: | NICOLE POPPAS |
| Respondent: | CUDDLES MANAGEMENT PTY LTD |
| File Number: | PEG 93 of 2008 |
| Judgment of: | Lucev FM |
| Hearing date: | 14 October 2008 |
| Date of Last Submission: | 14 October 2008 |
| Delivered at: | Perth |
| Delivered on: | 26 May 2009 |
REPRESENTATION
| Counsel for the First and Second Applicants: | Mr. M. Aulfrey |
| Solicitor for the First and Second Applicants: | Mr. M. Aulfrey |
| Respondent: | Mr. J Carver (as an officer of the company pursuant to s.854(10)(a) of the Workplace Relations Act 1996 (Cth)) |
DECLARATIONS AND ORDERS
The Court declares:
a)the respondent’s conduct in relation to the second applicant, namely:
(i)her dismissal; and
(ii)the threats to:
A. injure her in her employment; and
B. alter her position to her prejudice,
was conduct for a prohibited reason under s.793(1)(i) and (j)(i) of the WR Act, and conduct in breach of s.792(1) of the WR Act;
b)there was no conduct by the respondent in relation to the second applicant for a prohibited reason under s.793(1)(j)(ii) of the WR Act;
c)there was no breach of cl.19 of the Award by the respondent.
ORDERS
The respondent pay the second applicant damages of $3,906.52 for breach of the second applicant’s contract of employment by 4.00pm on 12 June 2009.
In relation to penalty for the breach of s.792(1) of the WR Act the matter will be adjourned to a directions hearing at 9.45am on 15 June 2009.
With respect to costs, if any, the Court reserves costs for determination following any penalty hearing.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 93 of 2008
| LIQUOR HOSPITALITY AND MISCELLANEOUS UNION |
First Applicant
| NICOLE POPPAS |
Second Applicant
And
| CUDDLES MANAGEMENT PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The Liquor Hospitality and Miscellaneous Union[1] and Nicole Poppas[2] seek remedies for alleged breaches of the Workplace Relations Act 1996 (Cth),[3] the Children’s Services (Private) Award 2006[4] and Ms Poppas’ Contract of Employment.
[1] “Union”.
[2] “Ms Poppas”.
[3] “WR Act”.
[4] “Award”.
The Union claims that the respondent, Cuddles Management Pty Ltd,[5] a child care provider, and the employer of Ms Poppas did, or threatened to do, for a prohibited reason or reasons, the following:
a)alter Ms Poppas’ position to her prejudice by reducing her position from Centre Manager to Second in Charge;
b)injure Ms Poppas in her employment by unilaterally removing benefits, namely:
i)the exclusive use of a car and a mobile phone; and
ii)the title of Centre Manager; and
c)dismiss Ms Poppas from her employment because she asserted her intention to return to work after maternity leave without prejudice to her entitlement to return to the position of Centre Manager which she held immediately prior to taking maternity leave.
[5] “Cuddles Management”.
The prohibited reasons alleged are prohibited reasons under s.793(1)(i), (j) and (k) of the WR Act, namely, that Ms Poppas:
a)was entitled to the benefit of an industrial instrument, being cl.19 of the Award,[6] entitling her to return to work in the position she held immediately prior to taking maternity leave;
b)had referred a grievance relating to her return to work following maternity leave to the Union, being an industrial body capable of taking action on her behalf; and
c)had participated in proceedings against Cuddles Management, namely a compulsory conciliation conference (in the Australian Industrial Relations Commission) initiated by the Union, with a view to resolving a grievance relating to her return to work in the position she held immediately prior to taking maternity leave. This prohibited reason relates only to the alleged dismissal, or threat of dismissal, of Ms Poppas.
[6] The Award is a National Agreement Preserving a State Award (“NAPSA”) under the WR Act.
Cuddles Management denies all liability and resists all declarations and orders sought by the Union and Ms Poppas. Cuddles Management says Ms Poppas was not returned to her former position because she was not managing the Ballajura Child Care Centre[7] properly and needed more training and supervision.
[7] “Ballajura Centre”.
Facts
Evidence was adduced from the following witnesses in these proceedings:
a)for the Union and Ms Poppas:
i)Lisa Jooste, a membership Team Leader with the Union’s WA branch;
ii)Claire Rachel Pullen, an Industrial Officer with the Union;
iii)Ms Poppas; and
iv)Deborah Ann Mashford, the Centre Director of the Gateway Childcare Centre; and
b)Mr Carver for Cuddles Management.
Ms Poppas was very briefly cross-examined by Mr Carver. None of the other witnesses for the Union or Ms Poppas were cross-examined. Mr Carver was told of the consequences of any failure to put relevant matters or matters to be relied upon to these witnesses.[8]
[8] Transcript at pages 11 and 32.
There was a lengthier cross-examination of Mr Carver by Counsel for the Union and Ms Poppas.
The net result of the evidence lead is that most of the facts are largely undisputed, and are set out below. Where the facts are disputed the Court has reached a conclusion with respect to the issues in dispute and also set that out below. To a large extent the outcome of the case depends on inferences drawn from the established facts.
The Union is an “industrial association” as defined in s.779(1)(a) being a registered association of employees under the WR Act.[9]
[9] Exhibit A2, duplicate Certificate of Registration and registered rules of the association. See also the Affidavit of Claire Rachel Pullen, sworn 5 September 2008 at para.4 (“Ms Pullen’s Affidavit”).
Ms Poppas has been a member of the Union since 27 February 2006.[10]
[10] Exhibit A1, Affidavit of Lisa Jooste, sworn 4 September 2008 at paras.4-9, and exhibits A3 and A4.
Ms Poppas commenced employment as the Centre Manager at the Ballajura Centre on 19 February 2007.[11]
[11] Affidavit of Nicole Poppas sworn 5 September 2008 at para.7 (“Ms Poppas’ First Affidavit”).
A written contract of employment was entered into between Ms Poppas and Cuddles Management.[12] The Contract of Employment contained the following relevant terms:
[12] Ms Poppas’ First Affidavit at para.6; exhibit A16 (“the Contract of Employment”).
Salary: $51,063.99
Vehicle: A fully serviced and maintained vehicle will be provided.
Mobile Phone: A fully paid mobile phone will be provided for your use as a business phone.
…
PROBATION PERIOD
Employment will commence with a three month probationary period, over which time the employee’s performance and abilities will be assessed. At the end of this time a written assessment will be provided to confirm the status of employment.
…
TERMINATION
Should either party wish to terminate the employment agreement, a four week notice shall be required in writing.
…
COMPANY VEHICLE
A fully maintained company vehicle is provided with the position of Centre Manager. It is required that the Centre Manager uses the vehicle to travel to and from work…
…
MOBILE PHONE
A mobile phone shall be provided to the Centre Manager with all expenses being incurred by the company according to the regularly revised budget.[13]
[13] Contract of Employment. See also Ms Poppas’ First Affidavit at para.10. The terms of the contract, and notably the termination, are not in dispute: Transcript at 39.
The role of a Centre Manager and 2IC at Cuddles Management is set out in Ms Poppas’ First Affidavit as follows:
8.At Cuddles, the job of a Centre Manager is to be the manager of an entire child care centre. Both the role and the pay level involved are meant to be that of a Director Step 9 as defined under the Children’s Services (Private) Award 2006.
9.The duties include, but aren’t limited to, banking, arranging maintenance for the centre, taking fees, issuance and storage of receipts, drawing up rosters and employees’ pays, staffing, providing programs for toddlers and kindergarten children, and cleaning. At Cuddles Ballajura it also included for me a fair amount of cooking since Cuddles would not allow me to employ one at Ballajura, along with pickups from and dropoffs to schools.
…
11.A “2IC”, which means a Second in Charge at one of the Cuddles centres, is the position below that of the Centre Manager. Under the award the role equates to that of an Assistant Director. In essence the 2IC’s role is to assist the Centre Manager in a variety of ways. It does not include doing the centre accounts, organization, rosters, or pays for employees. The 2IC has a lower rate of pay than the Centre Manager, and does not have use of a Cuddles car and does not have a mobile phone provided. It is not the same job as the Centre Manager by a long shot.[14]
[14] Ms Poppas’ First Affidavit at paras.8, 9 and 11.
The Contract of Employment contains no reference to the Award. As Ms Poppas asserts that the Award applied to her employment it is relevant to note that cl.22(1)(f) provided for a category of Children Services Employee Level 6, the duties of which are set out at cl.24(6) of the Award together with the requirements for holding the position of a director, as follows:
(6) Children’s Services Employee Level 6 – Director
(a)A Director is an employee:
(i)who holds:
· a relevant Degree, or
· an AQF Advanced Diploma, or
· a Diploma in Children’s Services, or
· a Diploma in Out of Hours Care, or
· is a person possessing such experience, or holding such qualifications deemed by the employer to be appropriate to the position, and
(ii)is appointed as the Director of a Service and is responsible for the overall management and administration of the service with the following additional indicative duties:
· supervise the implementation of developmentally appropriate programs for children;
· recruit staff in accordance with relevant regulations;
· maintain day-to-day accounts and handle all administrative matters;
· ensure that the centre or service adheres to all relevant regulations and statutory requirements;
· ensure that the centre or service meets or exceeds quality assurance requirements;
· liaise with families and outside agencies;
· formulate and evaluate annual budgets;
· liaise with management committees or proprietors as appropriate;
· provide professional leadership and development to staff;
· develop and maintain policies and practices for the centre or service, or
(iii)is appointed to act as the Supervising Officer pursuant to the Community Services (Child Care) Regulations 1988 as amended.
(b) Director Level 1
A Director Level 1 is an employee appointed as the Director of a service licensed for up to 39 children and paid at the Level 6.1 to 6.3 salary range.
(c)Director Level 2
A Director Level 2 is an employee appointed as the Director of a service licensed for between 40 and 59 children and is paid at the Level 6.4 to 6.6 salary range.
(d)Director Level 3
A Director Level 3 is an employee appointed as the Director of a service licensed for 60 or more children and paid at the Level 6.7 to 6.9 salary range
(e)Qualifications Allowance: A Director who holds a graduate qualification in child care management or other relevant qualification is entitled to an all-purpose allowance equivalent to 5 per cent of the rate of pay for specified Level 5.3 (see Note 3 after subclause (1)(f) of Clause 22. – Wages of this award).
The Award provides for a Director Step IX (or Level 9).[15]
[15] Award, Schedule C.
It is also relevant to note, assuming that the Award applies, that the Contract of Service clause of the Award provides as follows:
Except in the case of a casual employee the contract of service may be terminated by either party by the giving of two weeks notice on any day to the other party, or by the forfeiture or payment as the case may be of two weeks pay in lieu of such notice. Provided that by mutual consent, this notice period may be waived. This should not affect the right of the employer to dismiss an employee for misconduct, in which case salary shall be paid up to the time of dismissal only.
Clause 22(1)(e) of the Award sets out the pay rates for a Children Services Employee Level 5 and cl.24(5) sets out the duties of a Children Services Employee Level 5 as follows:
(5) Children’s Services Employee Level 5
(a)This is an employee who has completed a [AQF 5] Diploma in Children’s Services or equivalent, and/or is appointed as either an Assistant Director of a service, or a Children’s Services Coordinator:
(b)An Assistant Director appointed at this level will take on the same duties and perform the same tasks as a CSE Level 4 and be responsible for the following additional indicative duties:
· Coordinate and direct the activities of employees engaged in the implementation and evaluation of developmentally appropriate programs;
· Contribute, through the Director, to the development of the centre or service’s policies;
· Coordinate centre operations including Occupational Health and Safety, program planning, staff training;
· Take responsibility for the day-to-day management of the centre or service in the temporary absence of the Director and for management and compliance with licensing and all statutory and quality assurance issues; and
· Generally supervise all employees within the service.
(c)A Children’s Services Coordinator undertakes additional responsibilities including coordinating the activities of more than one group, supervising staff, trainees and students on placement, and assisting in administrative functions.
(d)An Assistant Director who holds an Advanced Diploma (AQF 6) must be paid no less than CSE Level 5.4. Pay Level 5.4 has a 145 relativity to the Pay Level 3.1 [C10] rate.
(e)Qualification Allowance: An Assistant Director who holds a graduate qualification in child care management or other relevant qualification is entitled to an all purpose allowance equivalent to 5 per cent of the rate of pay for specified for Level 5.3 (see Note 3 after subclause (1)(f) of Clause 22. – Wages of this award).[16]
[16] Award, cl.24(5).
In relation to work performance the Contract of Service clause of the Award provides as follows:
(2) (a) If an employee’s work or conduct falls to an unsatisfactory level, to a point where the employee’s contract of service is in jeopardy the employer shall notify the employee in writing, detailing the areas of dissatisfaction.
(b)The employee has the right to appeal against the allegations of dissatisfaction specified in paragraph (a) of the subclause and shall have the right to speak on their own behalf, or to union representation before the employer.[17]
[17] Award, cl.7(2).
Cuddles Management admits that:
a)Mr Carver, as Chief Executive Officer, was authorised to act on its behalf; [18]
b)it is a corporation incorporated under the Corporations Act 2001;[19]
[18] Cuddles Management’s Defence to First Applicant’s Statement of Claim, para.3 (“Cuddles Management’s First Defence”).
[19] Cuddles Management’s First Defence, para.3; exhibit A6.
Cuddles Management does not admit that it is:
a)a constitutional corporation; or
b)bound by the provisions of the Award.[20]
[20] Cuddles Management’s First Defence at para.2. Mr Carver was cross-examined on the Award and whether it was binding, but the question was a vague one, asserting that “you” (Mr Carver) were bound by the Award, to which Mr Carver responded “I wasn’t bound at all by the award”: Transcript at 45. It was not put to Mr Carver that Cuddles Management was bound by the Award.
The evidence of the activities of Cuddles Management was limited. It shows that it:
a)is a proprietary company;[21]
b)is a child care provider operating a number of centres,[22] including centres in Ballajura and Lockridge referred to in these proceedings; and
c)requires a centre manager to, amongst other things, do the banking, arrange maintenance, take fees, issue and store receipts, and draw up rosters and employees’ pays.[23]
[21] Exhibit A6.
[22] Ms Poppas’ First Affidavit at paras.4 and 7.
[23] Ms Poppas’ First Affidavit at para.9.
The evidence also indicates that it was undertaking an accreditation process, which was not needed for continuity of operation, but because “otherwise it can’t get Commonwealth child care funding.”[24]
[24] Ms Poppas’ First Affidavit at paras.34-35 (the quote is from para.35).
On 23 April 2007 Ms Poppas told Mr Carver that she was pregnant and seeking maternity leave.[25] On 7 May 2007 Ms Poppas advised Mr Carver by email that she was pregnant and the expected delivery date for the child was 30 November 2007.[26] On 2 July 2007 Ms Poppas advised Mr Carver in a letter that she would be going on maternity leave after 19 October 2007.[27]
[25] Ms Poppas’ First Affidavit at para.13.
[26] Ms Poppas’ First Affidavit at para.14, exhibit A18 (“the 7 May 2007 Email”).
[27] Ms Poppas’ First Affidavit at para.14, exhibit A17.
Mr Carver says that he ‘agreed’ with Ms Poppas taking maternity leave, even though she was not strictly entitled to it because she did not have 12 months service with Cuddles Management.[28] Mr Carver says that Ms Poppas told him she would be taking four months maternity leave.[29] Ms Poppas denies specifically requesting exactly four months maternity leave and says that, in any event, no fixed date for her return to work was made.[30] In the 7 May 2007 Email Ms Poppas advised Mr Carver that “I have not yet decided what dates I will be starting maternity leave but do know that I will be having about 4 months off after preganancy [sic]. I will let you know when I know the exact dates.”[31]
[28] Affidavit of Cliff Carver sworn 19 September 2008 at para.4 (“Mr Carver’s Affidavit”), Transcript at 39-40 and 43.
[29] Mr Carver’s Affidavit at para.5.
[30] Ms Poppas’ First Affidavit at para.l5; Ms Poppas’ Affidavit sworn 3 October 2008 at para.2 (“Ms Poppas’ Second Affidavit).
[31] 7 May 2007 Email.
Mr Carver signed and returned a standard leave form (in which Ms Poppas sought maternity leave from 19 October 2007) to Ms Poppas by facsimile and Ms Poppas says that this indicates approval of the maternity leave.[32]
[32] Ms Poppas’ First Affidavit at paras.17 and 18.
Ms Poppas signed a form in which she indicated that she sought annual leave from 8 to 19 October 2007.[33] The reason she gave for her annual leave was:
To go on holidays before my maternity leave which is dated to start 20/10/07. This way I can have maternity leave earlier.[34]
[33] Ms Poppas’ First Affidavit at para.17; exhibit A19.
[34] Exhibit A19. The reference to “hav[ing] maternity leave earlier” can only be read as if Ms Poppas was treating the initial period of annual leave as an early commencement of maternity leave.
Ms Poppas asterisked both “Annual” and “Maternity” as types of leave required, and the form was marked and signed as approved by Mr Carver.[35]
[35] Ms Poppas’ First Affidavit at para.18; exhibit A19 (“Maternity Leave Approval”).
Ms Poppas sent Mr Carver an email on 28 February 2008 advising that she was going to return to work at the Ballajura Centre as Centre Manager on 28 April 2008.[36] Ms Poppas requested to initially work for four days a week, and said that in the near future work that she would work five days a week.[37] In an email reply sent on 4 March 2008 Mr Carver wrote:
Unfortunately we do not have a Centre Manager position for you to come back to. We would love to have you back at Ballajura as the 2IC [Second in Charge] though. It will have to be on a full time basis right from the start. Your performance as Manager left a lot to be desired. You left our Centre very disorganized and as a direct result of your inefficiency we failed our Accreditation. We feel that you need a lot further training to be a Centre Manager with our group.
Please advise if you are happy to resume employment with us as above. Should you not contact me by close of business Friday I will consider the matter closed.[38]
[36] Ms Poppas’ First Affidavit at para.48, exhibit A20.
[37] Ms Poppas’ First Affidavit at para.48, exhibit A20.
[38] Ms Poppas’ First Affidavit at para.50, exhibit A21.
On 13 March 2008 Ms Poppas emailed a reply to Mr Carver asking how her performance was sub-standard and asked whether Mr Carver was terminating her employment.[39] On 14 March 2008 Mr Carver replied as follows:
My previous email to you explained why I cannot have you back as Manager. As you know the position attracts a salary package suited to a level 9 Co-ordinator. It requires you perform a number of tasks. Amongst which are
· Ensure that a consistently high quality of child care is maintained, through the planning, organization and implementation of a program that will adequately meet the intellectual, physical, emotional and social needs of the children.
· Select and train staff
· Ensure that your service adheres to all Accreditation
· Ensure that your service adheres to all Licensing regulations
· Ensure that your service adheres to all budgets requirements
You did not perform any of these tasks to the expected level of a Step 9 and therefore in my opinion need more training. I am not terminating your employment but offering an alternative position. I am confident that you will then make a great manager.[40]
[39] Ms Poppas’ First Affidavit at para.51, exhibit A22.
[40] Ms Poppas’ First Affidavit at para.52, exhibit A23. Transcribed from the original without amendment.
Ms Poppas says she got worried and contacted the Union after receiving the above email from Mr Carver dated 14 March 2008.[41]
[41] Ms Poppas’ First Affidavit at para.53.
On 18 March 2008 Ms Poppas discovered a message from a staff member of Cuddles Management on her home phone which said that Cuddles Management had no Centre Manager position at the Ballajura Centre but had one available at its Lockridge Child Care Centre.[42] Ms Poppas telephoned Cuddles Management and Mr Carver answered the phone. Mr Carver told Ms Poppas that a position was available for her as Centre Manager at the Lockridge Centre.[43] Ms Poppas confirmed in cross-examination that there was an offer for the Centre Manager position at the Lockridge Centre.[44] When Ms Poppas asked why she could not be at the Ballajura Centre, Mr Carver said that his brother would be the Centre Manager at Lockridge and would provide training.[45] Ms Poppas said that she told Mr Carver she would get back to him, and that she needed to talk to the Union about it.[46] Mr Carver told her “you don’t have to talk to the LHMU about it”.[47] Under cross-examination Ms Poppas described this incident as “unpleasant”.[48] Ms Poppas then phoned the Union and spoke to an officer of the Union, Ms Pullen.[49]
[42] “Lockridge Centre”; Ms Poppas’ First Affidavit at para.54.
[43] Transcript at 44.
[44] Transcript at 33.
[45] Ms Poppas’ First Affidavit at para.55; Ms Poppas’ Second Affidavit at para.18.
[46] Ms Poppas’ First Affidavit at para.56.
[47] Ms Poppas’ First Affidavit at para.57.
[48] Transcript at 33.
[49] Ms Poppas’ First Affidavit at para.57.
On 20 March 2008 Ms Pullen sent a letter by facsimile advising Cuddles Management that the Union was acting on Ms Poppas’ behalf in relation to the correspondence about Ms Poppas’ return to work, and in particular Mr Carver’s emails of 4 and 14 March 2008.[50] Ms Pullen said that the Union believed that Mr Carver’s claims about Ms Poppas’ underperformance were unsubstantiated and were made because Ms Poppas was seeking to retrieve unpaid entitlements for her and Cuddles Management staff.[51] Ms Pullen asked Cuddles Management to provide to the Union details of how Ms Poppas failed in her duties by 27 March 2008. The Union also specifically pointed out that it was acting on Ms Poppas’ behalf and at her instruction and advised that “[a]ny attempt to resolve these issues should be directed to the Union, as you have been informed numerous times in previous correspondence.”[52] The Union did not receive a response to the 20 March 2008 Letter.[53]
[50] Ms Pullen’s Affidavit at para.9, exhibit A7 (“the 20 March 2008 Letter”).
[51] This is the first mention of this other unpaid entitlements recovery issue, and it does not form part of any claim, or particulars of any claim, by the Union (or Ms Poppas) in this matter.
[52] Exhibit A7. See the comment in fn. 51 about these earlier or other unpaid entitlements issues not forming part of the claim, or being particulars of claim in this matter.
[53] Ms Pullen’s Affidavit at para.10.
On 7 April 2008 Ms Pullen sent a follow up letter to the 20 March 2008 letter, in which she enclosed a copy of the 20 March 2008 Letter and also alerted Cuddles Management to the provisions relating to return to work after maternity leave in s.280 of the WR Act, as follows:
I further direct you to the Workplace Relations Act 1996 [section] 280, ‘Return to work guarantee – maternity leave’ with the reference to the above matter. Your actions towards Ms Poppas may constitute a breach of the Australian Fair Pay and Conditions Standard and may be subject to civil remedy provisions (financial penalty).[54]
No response was received to the 7 April 2008 Letter.[55]
[54] Ms Pullen’s Affidavit at para.11, exhibit A8 (“the 7 April 2008 Letter”).
[55] Ms Pullen’s Affidavit at para.12.
A further letter was sent by facsimile to Cuddles Management on 14 April 2008 by another officer of the Union following up the requests for information about Ms Poppas’ alleged poor performance.[56] The 14 April 2008 Letter expressly referred to the following matters:
a)the 7 April 2008 Letter and the provisions of s.280(4) of the WR Act providing for the entitlement of an employee to return from maternity leave to the same position occupied immediately prior to the taking of maternity leave, and asserted that that entitlement was independent of any alleged training issues raised by Cuddles Management;
b)that Ms Poppas was due to return to work on 28 April 2008 and proposed to do so, and that the Union expected her to resume employment in the same position and the same pay as that which she received immediately prior to taking maternity leave, and that she had a right at law to do so;
c)the Union said that if Ms Poppas was not returned to the same position at the same pay at which she received immediately prior to taking maternity leave it would consider its options in relation to the prosecution of Cuddles Management for breach of the WR Act; and
d)expressed concern that the alleged performance issues in relation to Ms Poppas had only been raised after she had raised queries with the Union regarding underpayment of her wages and superannuation by Cuddles Management, and after she had taken maternity leave, and further indicated that if she was removed from her position and/or had her pay reduced on the basis of the alleged performance issues that the Union would give consideration to prosecution of Cuddles Management for breach of s.792(1) of the WR Act for altering an employee’s position to the employee’s prejudice for reasons including that the employee made a complaint to a body having the capacity to seek observance of the employee’s rights under the WR Act.[57] No response was received to the 14 April 2008 Letter.[58] There is no evidence as to the nature or content of alleged underpayment and superannuation queries referred to in the 14 April 2008 Letter.
[56] Ms Pullen’s Affidavit at para.13 and 14, exhibit A10 (“the 14 April 2008 Letter”). The letter was dated 19 December 2007 which Ms Pullen states was presumably an error because she provided the facsimile transmission receipt which shows that the letter was dispatched on 14 April 2008: exhibit A9.
[57] 14 April 2008 Letter.
[58] Ms Pullen’s Affidavit at para.15.
On 16 April 2008 Ms Poppas emailed Mr Carver again and informed him that she would be returning to work on 28 April 2008 and asked where she could obtain the company car and mobile phone.[59] Mr Carver replied the same day and stated that the Second in Charge position was available at the Ballajura Centre but not the Manager position.[60]
[59] Ms Poppas’ First Affidavit at para.58, exhibit A24.
[60] Ms Poppas’ First Affidavit at para.59.
Ms Poppas emailed Mr Carver on 17 April 2008 and her email included the following:
I would like to bring to your attention the Workplace Relations Act which entitles me to return to my Centre Managers Position, as you have been reminded on many occasions. Should you employ me as 2IC, I will consider no choice but to accept the arbitrary imposition of this position on me. I would like to let you know that I will be referring the matter to the union as you are breaking the Act. Since I am forced to take this position, I would like to know what time I will be starting on Monday 28/04/2008 and also my payrate. I would also like to remind you of the conversation I had with you where you agreed I could return to work for 4 days per week. Could you please inform me if you are going to keep this agreement or not?...[61]
[61] Ms Poppas’ First Affidavit at para.60, exhibit A26. Transcribed from the original without amendment.
Mr Carver replied by email the same day stating:
Would love to have u back Nicole. Please call Kayla at Head Office to make an appointment to seme next week before Wednesday. You will be told of your shift then after I have confirmed this with the Centre Manager. 4 days will be fine. your pay rate will remain the same. please remember that as a 2IC earning a Level 9 Director wage you will be expected to perform as one. At the very 1st sign of any negativity or disturbance within my centre or staff I will dismiss you immediately. The same will happen should there be any breach of confidentiality. I am not forcing you to take this job and will not tolerate any unpleasantness but I do look forward to you return.[62]
[62] Ms Poppas’ First Affidavit at para.61, exhibit A27. Transcribed from the original without amendment.
Ms Poppas sought clarification of the emails on 18 April 2008 and 22 April 2008, but no response was received.[63] In both the 18 and 22 April 2008 emails Ms Poppas stated that she intended to bring a Union representative to the proposed meeting.[64]
[63] Ms Poppas’ First Affidavit at paras.63-66, exhibits A27 and A28.
[64] Exhibits A27 and A28
In cross-examination Mr Carver initially denied that there was any threat in this email.[65] He then agreed that it was a threat, to dismiss, if there was “any negativity or disturbance”. The transcript then records the following:
[65] Transcript at 41-42.
Does negativity mean referring the matter to the union, Mr Carver?---Amongst other things, the union cause a lot of problems, yes, between the---
Are you saying, then, that the first ---?---I am saying that---
---at the very first sign---?-----the union did cause a lot of problems between Ms Poppas and me, correct.
I asked you if negativity included referring her matter to the union---?---And I said amongst other things, correct.
---and I believe you said, “Yes”. Please, Mr Carver---
MR AULFREY: Mr Carver, I asked you whether negativity includes referring her matter to the union, to which you said, “Yes”?---I said, “Yes, amongst other things”.
So referral of her matter to a union is grounds for dismissal?---No, it isn’t.
At the very first sign of any negativity or disturbance within my centre or staff, I will dismiss you immediately.
Those are your words?---They are my words, Mr Aulfrey, yes.
You just told me that referring her matter to a union amounts to negativity, amongst other things?---Mr Aulfrey---
Did you or did you not just say that, Mr Carver?---Yes, I did say that, but I did not say that I would dismiss her if she referred the matter to the union.
Can I put it to you, Mr Carver, that you’re very, very negative towards union involvement on your workplaces generally?---Is this relevant to this case, is it, Mr Aulfrey?
It entirely is, Mr Carver, and please answer the question?---Not all the time.
Not all the time? You say unions cause a lot of trouble in your workplaces?---They do.
You encouraged Ms Poppas not to contact the union over this matter?---I encouraged Ms Poppas to make a decision. We were talking about it and I said – she said to me, “Look, I need to talk to the union before making a decision”. I said, “No, you don’t, Nicole. Make a decision”. It wasn’t a threat. It was nothing more than that.
Why did you want to stop her talking to the union?
… Because it was escalating to something that was going to be out of control. So I thought that we could resolve the issue between us.
You accept you didn’t respond to any of the three letters that the union sent you over this matter?---I accept.
Do you accept that you didn’t attend on an Industrial Relations Commission conference convened---?---Yes, I do.
--- to settle this dispute?---Yes, I---
You accept that?-----I accept that I did not attend, yes.[66]
[66] Transcript at 42-43.
On 18 April 2008 the Union, on Ms Poppas’ behalf, sought Cuddles Management’s agreement to the referral of the dispute to the Australian Industrial Relations Commission[67] for resolution, and sent a letter by facsimile to Mr Carver to start that process.[68] No response was received to the 18 April 2008 letter.[69]
[67] “AIRC”.
[68] Ms Pullen’s Affidavit at para.16, exhibit A11 (“18 April 2008 Letter”).
[69] Ms Pullen’s Affidavit at para.17.
On 23 April 2008 the Union wrote to Mr Carver on Ms Poppas’ instructions in relation to her dispute, and to advise of the withdrawal of Ms Poppas’ notice of intent to return from maternity leave as follows:
On 28 February 2008, in accordance with clause 19(10)(a) of the Award, Ms Poppas advised you of her intention to return to work on 28 April 2008 in the position she enjoyed prior to beginning maternity leave as Centre Manager to the days and hours of work she had previously enjoyed.
In response to Ms Poppas’s correspondence of her intention to return to work, you advised her that she was not entitled to return to the position of Director. Ms Poppas was informed that she was able to return to work only to be employed as the Second In Charge. You informed Ms Poppas that if she did not accept the position as Second In Charge, then she would not be able to return to her employment at all.
In addition to the issues regarding her classification on her return to work, Ms Poppas has requested a response from you in relation to whether you approve of her request to breastfeed her child who will be enrolled at the Centre during her allocated breaks.
She has also asked you to confirm a time that she can arrive prior to her return to work to pick up her work vehicle and mobile phone. Again, she has received no response to this request and as it has been made known to you, she is unable to get to work with her child without a car.
Further, despite Ms Poppas requesting, on numerous occasions, a meeting with you and the Union to resolve the outstanding matters, she has not yet received a response.
It is evident that you have refused to engage in discussions with either Ms Poppas or the Union to resolve these issues and, to this date, have failed to facilitate Ms Poppas’s return to work.
Your inactions in resolving these matters have made it practically impossible for Ms Poppas to return to work.
In light of the matters raised to you since the 28 February 2008 and again outlined in this letter, we advise you that Ms Poppas intends to remain on maternity leave at this stage. Therefore, Ms Poppas will not be arriving at work on 28 April 2008. As you know, Ms Poppas is entitled to 52 weeks maternity leave and has, at this date, used 7 months of that entitled leave. She therefore is entitled to, and intends to use, another 5 months maternity leave.
We again request a meeting with you to attempt to resolve these matters immediately.[70]
Again, no response was received from Cuddles Management.[71]
[70] Ms Pullen’s Affidavit at para.20, exhibit A12 (“the 23 April 2008 Letter”).
[71] Ms Pullen’s Affidavit at para.21.
A request that Cuddles Management agree to a conciliation conference in the AIRC was sent by post to Cuddles Management on 28 April 2008, but again no response was received.[72]
[72] Ms Pullen’s Affidavit at paras.18-19, exhibit A13.
The matter was then listed for a dispute resolution conference on 22 May 2008 at the AIRC, but no-one from Cuddles Management attended.[73]
[73] Ms Poppas’ First Affidavit para. 69, exhibit A29.
Acting on Union advice,[74] at 3.19pm on 22 May 2008, Ms Poppas sent an email to Mr Carver, as follows:
[74] Ms Poppas’ First Affidavit para. 70.
As you have been made aware by the commission we were listed for a conference today.
Unfortuanatly, you did not attend and as such this matter remains unresolved.
As such I would like to return as soon as possible.
I understand I have to give four weeks notice of my return, however, if you are willing to waive this four weeks notice I can return as soon as possible.
Failing your agreement to waive this period, please consider this my four weeks notice.
Please E-mail me regarding if the agreement still stands that I can enrol my daughter and also breast feed her.
Please indicate what time I will start on Monday the 23rd of June 2008 or an earlier date as agreed upon.[75]
[75] Ms Poppas’ First Affidavit at para.70, exhibit A29. Transcribed from the original without amendment.
At 4.33pm on 22 May 2008 Mr Carver sent an email to Ms Poppas as follows:
This is really getting to the point of boredom for me so why don’t we resolve it and get on with our lives.
I am NOT going to employ you as a Manager. That’s final for now. You are not ready. I will however gladly employ you as a 2IC and when the opportunity presents itself and that I feel you are ready to manage you will be offered that opportunity. I have a position in Lockridge and you can start on Monday. Yes you can enrol your child at our centre and you will enjoy Free Child Care. Yes you can breast feed your child. I will pay you the same rate as you earned as Manager. That is $26.18/hr. No Car or phone. I would prefer that you worked full time but if you can only do 4 days per week, your Manager will tell you what days she will prefer you to do.
This is a great compromise but I must put you on notice that I am interviewing TODAY at 5 and 5:30pm. I will consider these applicants if you do not respond to me before then.
If not I will consider the matter closed and see you in court, very reluctantly. I will add that even with what has happened between you and Cuddles there is no ill feelings on our side Allan who looks after Lockridge is really looking forward for you to say yes to this. So please Nicole, let’s move on. One way or another.[76]
[76] Ms Poppas’ First Affidavit at para.71, exhibit A30.
Ms Poppas sent an email to Mr Carver at 6:41pm on 22 May 2008 in which she maintained her right to work as the Centre Manager and expressed her wish to remain at the Ballajura centre. She stated that if Lockridge was the only available centre she was forced to accept the position of 2IC at Lockridge.[77] Ms Poppas said that her acceptance was:
a)“without prejudice” to her “rights under the [WR] Act to return as Centre Manager” and that she “still assert[ed] … [her] rights to return to the position … held prior to going on maternity leave”;
b)“made under for[e]bearance and compulsion” as she could “not afford not to return to work”,
and reiterated that she wished to stay at the Ballajura Centre, but that if the Lockridge Centre was the only available centre she would go there as she had “no choice but to go there”.[78]
At 8.12pm on 22 May 2008 Mr Carver replied as follows:
Thank you for your interest Nicole. Under the circumstances and the conditions you insist on we have offered the position of 2IC at Lockridge to another applicant. we do not have any other positions open at the moment.
We will no doubt see you soon at the Commission hearing.[79]
[77] Ms Poppas’ First Affidavit at para.72, exhibit A31.
[78] Ms Poppas’ First Affidavit at para.72, exhibit A31.
[79] Ms Poppas’ First Affidavit at para.73, exhibit A32.
Subsequent to Ms Poppas’ employment with Cuddles Management ending she applied for other child care employment. She experienced some difficulty obtaining employment which she attributes to:
a)her being out of the workforce on maternity leave;
b)telling one interviewer that she thought Cuddles Management did not want her back because she had got the Union involved;
c)her referees from her previous employment having moved on.[80]
[80] Ms Poppas’ Second Affidavit at paras.21-22.
Ms Poppas says that in addition to loss of direct income (wages), she also lost other benefits including the car, fuel, mobile phone and free child care.[81] Ms Poppas assesses her financial losses (of being out of work and the lower pay in her new employment) to be $3,946 as at the end of the 2006-2007 financial year.[82]
[81] Ms Poppas’ Second Affidavit at para. 23.
[82] Ms Poppas’ First Affidavit at para.75.
Cuddles Management denies that it terminated Ms Poppas’ employment.[83]
[83] Transcript at 44 and 45.
Cuddles Management accepts that Ms Poppas was not allowed to return to the position of Centre Manager at the Ballajura Centre. Instead Cuddles Management offered Ms Poppas three different positions at various times during the relevant period, including the positions of:
a)Second in Charge at the Ballajura Centre;
b)Second in Charge at the Lockridge Centre; and
c)Centre Manager at the Lockridge Centre.
Cuddles Management admits that Ms Poppas would not have the use of a car and mobile phone in the position of Second in Charge at the Ballajura Centre[84] nor as Second in Charge in any centre.[85] It is not clear whether Ms Poppas would have been entitled to a phone and car as Centre Manager at the Lockridge Centre.
[84] Respondent’s response filed 15 August 2008 at para.11.
[85] Transcript at 41.
Cuddles Management admits that the position of Second in Charge is a position lower than that of Centre Manager, and that it has less responsibility.[86]
[86] Cuddles Management’s First Defence para.7; Transcript at 41.
Cuddles Management admits that the position of Centre Manager at the Ballajura Centre was not abolished.[87]
[87] Cuddles Management’s First Defence para.8.
Mr Carver says that there is “huge demand” in Western Australia for persons with Ms Poppas’ qualifications “with similar or better pay rates” and that she “could have been employed the very next day.”[88] No further detail or particulars were provided.
[88] Mr Carver’s Affidavit, para.11.
Further facts – performance issue
Cuddles Management says that Ms Poppas was not offered the position of Centre Manager at the Ballajura Centre because she failed to perform her duties satisfactorily leading to that Centre not receiving accreditation. Because this allegation relates to a reason, other than a prohibited reason, it can, if proved, defeat the presumption under s.809 of the WR Act that conduct alleged to contravene s.792(1) of the WR Act was carried out. The Court will therefore examine it separately.
The Union and Ms Poppas’ evidence
Ms Poppas says that she was never disciplined and her performance was never questioned at any time prior to her going on maternity leave.[89]
[89] Ms Poppas’ First Affidavit at paras.28 and 33.
Ms Poppas says that she had been involved with the obtaining of accreditation at her previous job before being employed by Cuddles Management.[90] It is, she says, a two stage process, with the first stage being a written self-evaluation done by the child care centre itself, and the second stage involving assessment by a validator accredited by the National Childcare Accreditation Council,[91] who visits a centre to observe its operation, and assesses the centre against seven quality areas and 33 principles.[92]
[90] Ms Poppas’ First Affidavit at para.36.
[91] “NCAC”.
[92] Ms Poppas’ First Affidavit at paras.36-38.
Ms Poppas says that she, together with her staff at the Ballajura Centre, prepared the necessary documents for the written self-evaluation, and that many hours were involved, discussing accreditation issues with staff and improving standards.[93] Ms Poppas says that she lobbied to obtain funds ($1700) from Cuddles management to obtain toys which were necessary for accreditation.[94] Ms Poppas says that she:
a)had a busy but organized filing system;
b)worked efficiently at all times;
c)provided training as required; and
d)had staffing ratios in place appropriate to achieve accreditation.[95]
[93] Ms Poppas’ First Affidavit at paras.39-40.
[94] Ms Poppas’ First Affidavit at para.41.
[95] Ms Poppas’ First Affidavit at para.42.
Ms Poppas sums her position up by saying that:
In short, I had put the centre in the best possible position I could to make sure it reached accreditation.[96]
[96] Ms Poppas’ First Affidavit at para.43.
Ms Poppas was not present at the second stage of the accreditation when an NCAC accredited validator visited the Ballajura Centre.[97] It is not entirely clear when the validator visited, but it appears to have been sometime in November or December 2007 (so at least three weeks after Ms poppas went on leave) and the decision not to accredit was not made until February 2008.[98]
[97] Ms Poppas’ First Affidavit at para.44.
[98] Exhibit A36.
Ms Poppas says that a review of the accreditation report indicates that the Ballajura Centre failed its accreditation primarily because of the behaviour of the staff present on the day and the apparent absence of program materials which she had completed and which the staff then present (including her maternity leave replacement) could not find.[99] Ms Poppas observes that the accreditation report indicates that Ms Poppas’ replacement had implemented a new programming style and file set up.[100]
[99] Ms Poppas’ Second Affidavit at para.14.
[100] Ms Poppas’ Second Affidavit at para.11.
Ms Poppas also provided evidence that indicated that she was a qualified and reasonably experienced child care worker who had undertaken ongoing professional development.[101]
[101] Ms Poppas’ Second Affidavit at paras.16-17.
Ms Poppas was not cross-examined in relation to her evidence about performance.
Evidence was also given for the Union and Ms Poppas by Ms Mashford. Ms Mashford was employed as the Director of an NCAC accredited ABC Learning Child Care Centre at Edgewater,[102] a position equivalent to a Level 9 Director under the Award, which she had held for four years. Ms Mashford had worked in the child care industry for 12 years. Ms Mashford had worked with Ms Poppas, as Ms Poppas’ assistant at the Edgewater Centre.[103]
[102] “Edgewater Centre”.
[103] Affidavit of Ms Debbie Mashford, sworn 1 October 2008, at paras.2-5; exhibit A37 (“Ms Mashford’s Affidavit”).
Ms Mashford gave evidence that:
a)Ms Poppas did programming work at the Edgewater Centre;[104]
b)programming work in the child care industry was “a straightforward task’ and most qualified child care workers with more than 12 months experience are able to complete it satisfactorily;[105]
c)she saw nothing “out of the ordinary, disorganised, or lacking in” Ms Poppas’ programming work at the Edgewater Centre;[106]
d)Ms Poppas programmed and applied the relevant programs in accordance with programming policies, and that there was nothing unusual about her method of keeping the programming records;[107]
e)Ms Poppas’ programming skills were “entirely up to the required standard”,[108] and that she was an experienced child care worker both generally and in relation to programming;[109] and
f)based on Ms Mashford’s experience of Ms Poppas, together with Ms Mashford’s experience as Director of the Edgewater Centre, a job of the same type as the Cuddles Management Centre Manager, Ms Mashford was of the view that Ms Poppas was “well-qualified” for the position of Centre Manager with Cuddles Management.[110]
[104] Ms Mashford’s Affidavit, para.6.
[105] Ms Mashford’s Affidavit, para.6.
[106] Ms Mashford’s Affidavit, para.7.
[107] Ms Mashford’s Affidavit, para.8.
[108] Ms Mashford’s Affidavit, para.8.
[109] Ms Mashford’s Affidavit, para.9.
[110] Ms Mashford’s Affidavit, para.10.
Ms Mashford was not cross-examined.
Cuddles Management’s evidence
Mr Carver says that he granted Ms Poppas maternity leave even though she had not completed 12 months service with Cuddles Management and was therefore not entitled to maternity leave.[111] Mr Carver says he trusted Ms Poppas and wanted her to return to work after maternity leave.[112]
[111] Mr Carver’s Affidavit, sworn 19 September 2008 at para.4; exhibit R1 (“Mr Carver’s Affidavit”).
[112] Mr Carver’s Affidavit, paras.4-5.
Mr Carver says that shortly after Ms Poppas left on maternity leave it “became apparent through the relief manager that a lot of the paperwork relating to matters of accreditation was not up to date.”[113] No further detail or particulars were provided.
[113] Mr Carver’s Affidavit, para.6.
Mr Carver asserts that the Ballajura Centre “failed its validation due to the incomplete work of Ms Poppas due mainly to her inexperience and lack of knowledge in that area.”[114] Under cross-examination Mr Carver agreed that:
a)Ms Poppas was not present on the two days of the inspection of the Ballajura Centre for the accreditation process;[115]
b)the accreditation inspection was carried out “quite some time” after Ms Poppas had gone on maternity leave;[116]
c)the relief manager had imposed her style on the Ballajura Centre by the time of the accreditation inspection;[117]
d)he had no day-to-day or general knowledge of the program records and he had to rely upon his Centre Manager to tell him about these records;[118]
e)the NCAC report did not identify Ms Poppas as being responsible for not keeping the Ballajura Centre records up to date;[119] and
f)the section in the NCAC report which addresses deficiencies in the paperwork includes a comment from the relief manager that a new filing system was implemented.[120] Mr Carver says that the relief manager started a new filing system because she believed that the old programs were not filed properly.[121] That relief manager was not called by Mr Carver to support that claim.
[114] Mr Carver’s Affidavit, para.8.
[115] Transcript at 40.
[116] Transcript at 40.
[117] Transcript at 41.
[118] Transcript at 46.
[119] Transcript at 46.
[120] Transcript at 46.
[121] Transcript at 46.
Mr Carver said that he could not allow Ms Poppas to return to work without further training.[122] Consequently, he “offered” her “a position at the same centre as a second in charge with the same pay rate but without a car or phone”, plus additional training.[123]
[122] Mr Carver’s Affidavit, para.9.
[123] Mr Carver’s Affidavit, para.10.
Other than the evidence from Mr Carver, Cuddles Management did not file any affidavits or call any witnesses to support the allegations concerning Ms Poppas’ performance.[124]
Alleged Breaches of WR Act
[124] In Rizkalla v GBC Fordigraph Pty Ltd [2008] FMCA 1600 at para.15 per Burchardt FM the Court noted in the respondent employer’s favour that the applicant’s former co-employees gave evidence against him, supporting the assertion that the applicant was not a satisfactory employee, which was unusual in employment law cases.
Legislation and law
Section 792(1)(a) – (c) of the WR Act provides that:
(1)An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:
(a) dismiss an employee;
(b) injure an employee in his or her employment;
(c)alter the position of an employee to the employee’s prejudice;
…
Section 792(4) of the WR Act provides that:
An employer does not contravene subsection (1) because of paragraph 793(1)(i) unless the entitlement described in that paragraph is the sole or dominant reason for the employer doing any of the things described in paragraphs (1)(a), (b), (c), (d) and (e) of this section.
A prohibited reason is defined under s.793(1) of the WR Act and the relevant provisions relating to this matter are as follows:
(1) Conduct referred to in subsection 792(1) or (5) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:
…
(i) is entitled to the benefit of an industrial instrument, an order of an industrial body or the Australian Fair Pay and Conditions Standard; or
(j) has made or proposes to make any inquiry or complaint to a person or body having the capacity under an industrial law to seek:
(i) compliance with that law; or
(ii) the observance of a person’s rights under an industrial instrument; or
(k) has participated in, proposes to participate in or has at any time proposed to participate in a proceeding under an industrial law;…
Section 779 of the WR Act provides the following definitions:
"industrial instrument" means an award or agreement, however designated, that:
(a) is made under or recognised by an industrial law; and
(b) concerns the relationship between an employer and the employer's employees, or provides for the prevention or settlement of a dispute between an employer and the employer's employees.
"industrial law" means this Act, the Registration and Accountability of Organisations Schedule or a law, however designated, of the Commonwealth or of a State or Territory that regulates the relationships between employers and employees or provides for the prevention or settlement of disputes between employers and employees.
Section 809 relates to the burden of proof in relation to alleged breached of the WR Act:
Proof not required of the reason for, or the intention of, conduct
(1) If:
(a) in an application under section 807 relating to a person's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and
(b) for the person to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person proves otherwise.
(2) This section does not apply in relation to the granting of an interim injunction.
Section 807 of the WR Act relates to penalties for breaches of civil remedy provisions in the WR Act.
In Hayward v ROHD Four Pty Ltd t/as CM Testing & Ors[125] this Court dealt with the onus of proof in cases such as this one, and said as follows:
[125] (2008) 177 IR 212; [2008] FMCA 1490 (“Hayward”).
11.In my view, in proceedings under either Part 12 or Part 16 of the Act the applicant bears the legal onus of proving his or her case to the requisite civil standard. As will shortly be discussed, the respondent bears the evidential onus of proving a negative, regarding the reason or reasons for termination of employment. That is, in the absence of the employer proving that the reason for termination of employment was not for a proscribed reason, under either s.659(2) or 793(1) of the Act, it is not necessary for the employee to prove such facts; they are presumed in his favour.
12.What then does the applicant have to prove, before the evidential onus shifts to the respondent? In my view, quite clearly an applicant will have to prove that:
(a)He or she is an employee; and
(b)His or her employment has been terminated.
13.Is it then sufficient for the employee to simply allege that the employment was terminated for one or more of the proscribed reasons in s.659(2) or s.793(1) of the Act or is something more required.
14.Common sense dictates that, at the least, the applicant must identify those reasons under either s.659(2) or 793(1) that are alleged to have formed the contravening conduct. In a case with pleadings, such particulars would be ordered as a matter of course. Otherwise a respondent would have to devote resources to proving a negative that could never arise on the facts.
15.In Galvin v Renito Pty Ltd [1999] FCA 1005 Ryan JR applied the reasoning of Mason J in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 concerning an earlier statutory incarnation of ss.659(2) and 664. At [28] Ryan JR said:
“At 617 Mason J referred to the onus on the employer of establishing affirmatively that it was not actuated by the reason alleged in that case in the charge laid under s. 5. He held that the consequence was that the employee, in order to succeed, was not bound to adduce evidence that the employer was actuated by that reason, a matter peculiarly within the knowledge of the employer. He found the employee was entitled to succeed if the evidence was consistent with the hypothesis that the employer was so actuated and that hypothesis was not displaced by the employer. He said:
“To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge.””
16.However, this says nothing of whether it is a requirement for the applicant to prove, by evidence, as opposed to assertion, facts such as:
(a)The fact of a temporary absence from work because of illness or injury;
(b)The fact of the filing of a complaint or having recourse to competent administrative authorities;
(c)The fact of having a disability;
(d)The fact of being entitled to the benefit of an industrial instrument;
(e)The fact that he had made or proposed to make an inquiry or complaint to a capable body;
(f)The fact that he proposed to participate in proceedings under an industrial law.
17.In Bahonko v Sterjov [2007] FCA 1244 Jessup J said:
“95 The applicant relies upon s 170CQ of the WR Act. At the relevant time, it provided:
In any proceeding under section 170CP relating to a termination of employment in contravention of section 170CK for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section:
(a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but
(b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 170CK(3) or (4) applies).
Although it is well-established that the effect of this provision is to reverse the onus of proof on the matter of reason under s 170CK(2), there is an aspect of the operation of s 170CQ of the WR Act which has been little discussed in the cases, but which is of some importance in the present matter, largely because there is no evidence as to the applicant’s political opinion, social origin or physical or mental disability. Notwithstanding that she has not proved those matters, is the applicant entitled to rely upon s 170CQ merely by alleging that she was dismissed because of those reasons, or one or more of them?
96 There were two distinct groups of provisions of the WR Act which used "reverse onus" sections in circumstances where the reason for which an act was done was part of the legislative prohibition. One group was that with which this proceeding is concerned, s 170CK(2)(f). For the sake of convenience, I shall call that paragraph the anti-discrimination provision. The other group was to be found in Part XA of the WR Act, which I shall call the anti-victimisation provisions. The latter group had its origins in s 5 of the Conciliation and Arbitration Act 1904 (Cth). That section created a prohibition, as part of the criminal law, upon employers taking specified action against their employees for the reason that the employees were union members or officers, or in other specified respects involved in union activities. Under s 5(4) of the 1904 Act,
... if all the facts and circumstances constituting the offence, other than the reason for the defendant’s action, are proved, it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge.
Under that provision, it lay upon the prosecutor to prove the existence of the factual circumstance alleged to provide the basis of the defendant’s reasons for dismissal. For example, if it were alleged that an employee had been dismissed because of his or her union membership, it was for the prosecutor to prove that the employee was a union member; by s 5(4) it then lay upon the defendant to prove that that circumstance was not the reason why the employee had been dismissed. Examples of informations which were dismissed because the prosecution had failed to prove the existence of the circumstance said to provide the basis of the defendant’s reason may be seen in Heidt v Chrysler Australia Limited (1976) 26 FLR 257, 270-271 and Leontiades v F T Manfield Pty Ltd (1980) 43 FLR 193, 198-199.
97 Section 5 of the 1904 Act was replaced by s 334 of the IndustrialRelations Act 1988 (Cth). The provision setting up a reverse onus of proof was subs (6), as follows:
In a prosecution for an offence against subsection (1), (2), (3), (4) or (5), it is not necessary for the prosecutor to prove the defendant’s reasons for the action charged nor the intent with which the defendant took the action charged, but it is a defence to the prosecution if the defendant proves that the action was not motivated (whether in whole or in part) by the reason, nor taken with the intent (whether alone or with another intent), specified in the charge.
In Lawrence v Hobart Coaches Pty Ltd (1994) 57 IR 218, 219, Northrop J held that the legal effect of the new s 334(6) was the same as the effect of the previous s 5(4).
98 The anti-discrimination provision was first introduced by an amendment made to the 1988 Act in 1993 (with effect from 30 March 1994). The new provision, s 170DF(1), was supported by a reverse onus section, s 170EDA(2), in the following terms:
If an application lodged under section 170EA alleges that a termination of employment of an employee contravened subsection 170DF(1) on the ground that the termination:
(a) was for a particular reason or reasons referred to in that subsection that were stated in the application; or
(b) was for reasons stated in the application that included a particular reason or reasons referred to in that subsection;
the termination is taken to have contravened subsection 170DF(1) unless the employer proves, in any consent arbitration arising from the application or in any proceedings arising on the referral of the application to the Court, that:
(c) the employment was not terminated for the particular reason or reasons or for reasons that included the particular reason or reasons; or
(d) the particular reason was a reason, or the particular reasons were reasons, to which subsection 170DF(2) or (3) applied.
One difference between s 170EDA(2) and the pre-existing s 334(6) was that the new provision operated in a civil, whereas the other provision operated in a criminal, context. That difference does not, however, explain why the legislature chose different terminology by which to give effect to its reverse onus policy in the context of the new anti-discrimination provision.
99 The 1988 Act was substantially amended, and renamed as the WR Act, in 1996. What was s 334(6) – reverse onus in the context of the anti-victimisation provisions – became s 298V, and what was s 170EDA(2) – reverse onus in the context of the anti-discrimination provision – became s 170CQ. In the course of these amendments, a transposition occurred. The terminology of the new s 298V followed the general terms of what had been s 170EDA(2), and the terminology of the new 170CQ followed the general terms of what had been s 334(6). That is to say, the now anti-victimisation reverse onus section looked more like the previous anti-discrimination reserve onus section; and vice-versa. The Parliamentary materials accompanying the amendments of 1996 do not explain this transposition. The circumstance that, at the same time, the anti-victimisation provisions were broadened and de-criminalised does not, of itself, provide an obvious explanation.
100 Whatever be the reason for the legislative changes of 1996 to which I have referred, the result was that s 170CQ came to be expressed as s 334(6) had been. As held by Northrop J in Lawrence, that provision was of the same legal effect as s 5(4) of the 1904 Act. It follows that s 170CQ was likewise of that legal effect, and that the established jurisprudence, to which I have referred in par 95 above, applied to the construction and operation of s 170CQ. The jurisprudence to which I refer, of course, is that which made it part of the prosecutor’s (or applicant’s) case to prove as an objective fact the circumstances alleged to constitute the basis of the "reason" to which the reverse onus section applied. Indeed, one of the three grounds in Lawrence itself was determined in favour of the respondent employer for the very reason that the prosecutor had called no evidence to establish that the union in question was seeking better industrial conditions: see 57 IR at 220. The same approach, in my view, should be taken under s 170CQ.
18.In Buckingham v KSN Engineering Pty Ltd & Anor [2008] FMCA 546 at [93] Lucev FM said:
“A consideration of s.809(1) makes it immediately apparent that any application (here the Amended Statement of Claim) must allege conduct (and more than merely a breach reciting the relevant provisions of the WR Act). The onus of proof in relation to the conduct alleged is what is reversed, as was explained in Geraldton Port Authority as follows:
“If the applicant proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for the respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason: s 298V; Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 266-271 per Northrop J. The reversal of the onus in respect of proof of the reasons for the conduct is a recognition that "the circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly with the knowledge of the employer": Heidt v Chrysler Australia Ltd at 267.””
19.In Rojas v Esselte Australia Pty Limited [2008] FCA 1585 at [46] – [50] Moore J held that the applicant must prove the existence of objective facts which are said to be a basis for the respondent’s conduct.
20.I respectfully adopt the reasoning of Jessup J, Moore J and Lucev FM and conclude that the applicant must prove the preliminary facts necessary to enliven the need for a respondent to embark upon attempting to discharge its evidential onus of proof.
21.The next question that arises is what the respondent must establish to discharge its onus of proof under either s.664 or s.809 of the Act.[126]
34.From the above review of the authorities I conclude that the determination of this proceeding requires the following:
(a)The applicant proving the fact of employment and its termination;
(b)The applicant proving such of the facts as he intends to rely upon to invoke one or more of the provisions in ss.659(2) and 793(1) of the Act;
(c)The respondents proving that such identified reasons were not the reason, or one of the reasons, for the termination of the applicant’s employment;
(d)In discharging that onus the respondents do not have to prove that the applicant’s employment was terminated for a valid reason, as long as it was not terminated for a proscribed reason.[127]
Consideration
[126] Hayward IR at 218-221 per Wilson FM; FMCA at paras.11-21 per Wilson FM.
[127] Hayward IR 223-224 per Wilson FM; FMCA at para.34 per Wilson FM.
Union
The Union is able to seek remedies under the WR Act as the Union is an association of employees registered under the WR Act.[128]
Conduct
[128] See para.9 above.
Employee, employer and constitutional corporation
Ms Poppas was an employee under the Contract of Employment. Subject to what is said below in relation to the definition of “employer”,[129] Ms Poppas is an “employee” for the purposes of s.5(1) and (3) of the WR Act. For the purposes of s.5(1) of the WR Act an employee must be employed, or usually employed, by an employer as defined under s.6(1) of the WR Act. Section 6 of the WR Act provides as follows:
[129] WR Act, s.6.
6 Employer
Basic definition
(1) In this Act, unless the contrary intention appears:
employer means:
(a)a constitutional corporation, so far as it employs, or usually employs, an individual; or
(b)the Commonwealth, so far as it employs, or usually employs, an individual; or
(c)a Commonwealth authority, so far as it employs, or usually employs, an individual; or
(d)a person or entity (which may be an unincorporated club) so far as the person or entity, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:
(i) a flight crew officer; or
(ii) a maritime employee; or
(iii) a waterside worker; or
(e)a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or
(f)a person or entity (which may be an unincorporated club) that carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person or entity employs, or usually employs, an individual in connection with the activity carried on in the Territory.
Note 1: In this context, Australia includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands. See paragraph 17(a) of the Acts Interpretation Act 1901.
Note 2: See also Part 21 (employees and employers in Victoria).
References to employer with ordinary meaning
(2)However, a reference to employer has its ordinary meaning (subject to subsection (3)) if the reference is listed in clause 3 of Schedule 2. This does not limit the circumstances in which a contrary intention may appear for the purposes of subsection (1).
Note: The regulations may amend clause 3 of Schedule 2. See clause 5 of Schedule 2.
(3)In this Act, unless the contrary intention appears, a reference to employer with its ordinary meaning includes a reference to a person or entity that is usually an employer with that meaning.
The definition of employer in s.6(2) of the WR Act appears to mean that a reference to “employer” has its ordinary meaning if the reference is listed in cl.3 of Schedule 2 of the WR Act. Part 16, the freedom of association provisions, of the WR Act are listed in cl.3 of Schedule 2.[130]
[130] They are also listed in cl.2 of Schedule 2 which provides that references to employee has its ordinary meaning if the reference is listed in cl.2 of Schedule 2.
Cuddles Management was an employer in the ordinary meaning of that word. In the Court’s view by reason of the provision of s.6(2) of the WR Act Cuddles Management was not required to be a constitutional corporation, but if it was, then it was a constitutional corporation, for the reasons which follow.
Cuddles Management did not admit that it was a constitutional corporation. The non-admission constitutes a traverse and operates as a denial of the claim, putting the Union to proof.[131]
[131] Federal Court Rules, O.11 r.13; Warner v Sampson & Anor [1959] 1 QB 297 at 319 per Hodson LJ (“there is no effective line to be drawn between non-admission … and denial”) and 324 per Ormerod LJ (the two forms – denial and non-admission – have “a similar effect”); In re R.G.P Constructions Pty Ltd (In Liquidation) (1982) 31 SASR 170 at 171 per Walters J (“there is no difference in effect between denying and not admitting an allegation”).
The definition of “constitutional corporation” under the WR Act is “a corporation to which paragraph 51(xx) of the Constitution applies.”[132]
[132] WR Act, s.4(1).
Cuddles Management is clearly not a foreign or financial corporation as those terms have been defined by the courts. The question for present purposes is whether it is a trading corporation. The principles in determining whether a corporation is a trading corporation have been succinctly and elegantly set out by Steytler P in Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No. 2) as follows:
68.The more relevant (for present purposes) principles that might be drawn from these and other cases are as follows:
(1) A corporation may be a trading corporation even though trading is not its predominant activity: Adamson (239); State Superannuation Board (303-304); Tasmanian Dam case (156, 240, 293); Quickenden [49]-[51], [101]; Hardeman [18].
(2) However, trading must be a substantial and not merely a peripheral activity: Adamson (208, 234, 239); State Superannuation Board (303-304); Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10 at 20; Fencott (622); Tasmanian Dam case (156,240, 293); Mid Density (584); Hardeman [22].
(3) In this context, “trading” is not given a narrow construction. It extends beyond buying and selling to business activities carried on with a view to earning revenue and includes trade in services: Ku-ring-gai (139,159-160); Adamson (235); Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169 at 184-185, 203; 1 IR 397; Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325 at 330; Quickenden [101].
(4) The making of a profit is not an essential prerequisite to trade, but it is a usual concomitant: St George County Council (539, 563, 569); Ku-ring-gai (140, 167); Adamson (219); E (343, 345); Pellow [28].
(5) The ends which a corporation seeks to serve by trading are irrelevant to its description: St George County Council (543, 569); Ku-ring-gai (160); State Superannuation Board (304-306); E (343). Consequently, the fact that the trading activities are conducted is (sic) the public interest or for a public purpose will not necessarily exclude the categorisation of those activities as “trade”: St George County Council (543) (Barwick CJ); Tasmanian Dam case (156) (Mason J).
(6) Whether the trading activities of an incorporated body are sufficient to justify its categorisations as a “trading corporation” is a question of fact and degree: Adamson (234) (Mason J); State Superannuation Board (304); Fencott (589); Quickenden [52], [101]; Mid Density (584).
(7) The current activities of the corporation, while an important criterion for determining its characterisation, are not the only criterion. Regard must also be had to the intended purpose of the corporation, although a corporation that carries on trading activities can be found to be a trading corporation even if it was not originally established to trade: State Superannuation Board (294-295, 304-305); Fencott (588-589, 602, 611, 622-624); Hughes (20); Quickenden [101]; E (344); Hardeman [18].
(8) The commercial nature of an activity is an element in deciding whether the activity is in trade or trading: Adamson (209, 211); Ku-ring-gai (139, 142, 160, 167); Bevanere (330); Hughes (19-20); E (343); Fowler; Hardeman [26].[133]
[133] (2008) 178 IR 168 at 186 per Steytler P; [2008] WASCA 254 at para.68 per Steytler P.
Although the nature of the evidence in relation to whether Cuddles Management was a constitutional corporation leaves a lot to be desired, there is sufficient evidence in the Court’s view, to establish that Cuddles Management was a trading corporation. It can be reasonably inferred from the circumstances of the case that trading in child care services was the predominant activity of Cuddles Management. Likewise, it was clearly a substantial and not merely a peripheral activity. The child care centres at Ballajura and Lockridge which were expressly referred to in the evidence were significant ongoing concerns, and there were a number of other seemingly similar centres run by Cuddles Management. Cuddles Management clearly traded in child care services, charged fees and banked revenue for those services. There is no evidence of the profits made by Cuddles Management, but there is evidence that there was an endeavour to cut costs, and from that it can be inferred that the purpose of doing so was either to increase profits or to reduce losses, the latter not being inconsistent with trading activities. There is no evidence that the ends sought to be achieved by Cuddles Management as a corporation were for any purpose other than the provision of child care services, the making of a profit (or at least the derivation of revenue), or that the current child care activities of the corporation were not its intended purpose. The provision of child care services by Cuddles Management was a trading activity commercial in nature, and sufficiently significant, in the Court’s view, to warrant the finding that Cuddles Management was a constitutional corporation.
In the circumstances, Ms Poppas was an employee of Cuddles Management, and Cuddles Management was her employer, both within the ordinary meaning of that word for the purposes of s.6(2) of the WR Act, and as a constitutional corporation for the purposes of s.6(1) of the WR Act.
Dismissed employee
The question arises as to whether Ms Poppas was dismissed from her employment by Cuddles Management.
Ms Poppas was entitled to return to her position as Centre Manager at the Ballajura Centre on the termination of her maternity leave, and she expressly sought to do so.[134]
[134] WR Act, s.280; see paras.28 and 44 above.
On 22 May 2008 Cuddles Management told her that it was “NOT going to employ …[her] as a Manager”, but that it would “gladly employ” her as a Second in Charge.[135] In the Court’s view when Ms Poppas was told that she was not going to be employed as a Manager, let alone return to the statutorily guaranteed position of Centre Manager at the Ballajura Centre (which on the evidence had not been abolished) that was a dismissal. At the very least it was a dismissal from Ms Poppas’ position as Centre Manager, and if it was not a termination of the employment relationship then termination of the employment relationship came when the offer of employment as a Second in Charge was withdrawn, less than four hours after it was made, on the same day, 22 May 2008. At that point, Ms Poppas no longer had a position as Centre Manager at the Ballajura Centre, no longer had an offer of employment as a Second in Charge, and Cuddles Management did not have any other positions open. The only conclusion open is that Ms Poppas had been dismissed from employment by Cuddles Management.
[135] See para.45 above.
In relation to the earlier conduct of Cuddles Management, whilst that conduct indicated that it could not have Ms Poppas back as a Manager, that conduct did not evince an intention to dismiss her from employment, but rather to have an ongoing employment relationship. In those circumstances, the conduct prior to 22 May 2008 did not, in the Court’s view, constitute a threat to dismiss.[136]
[136] See for example para.29 above: “I am not terminating your employment but offering an alternative position.”
Injured employee in employment
Even though Ms Poppas was offered the same salary in the new positions, Cuddles Management accepts that the position of Second in Charge is hierarchically lower and lesser paid than that of Centre Manager and that the position of Centre Manager at the Ballajura Centre was not abolished.[137] Cuddles Management agrees that there were fewer duties and less responsibility as Second in Charge and Ms Poppas would have been supervised if she took the role as Centre Manager at the Lockridge Centre. Ms Poppas would not have been entitled to a car or phone upon her return from maternity leave in the position of Second in Charge.[138]
[137] See paras.52-53 above.
[138] See para.51 above.
Injury in employment includes deprivation of an immediate practical incident of employment, such as loss of pay or entitlement, or reduction in rank.[139]
[139] Maritime Union of Australia v Geraldton Port Authority (1993) 93 FCR 34 at 69-71 per RD Nicholson J; [1999] FCA 89 at paras.225-233.
Taking the position as Second in Charge would not, on the evidence, have reduced Ms Poppas’ salary, however, it would have:
a)reduced her rank; and
b)resulted in a loss of her entitlement to a car and phone, and seemingly fuel.
In those circumstances, there is no doubt that had she taken a position as Second in Charge she would have been injured in her employment. The question which arises, given that she did not take up a position as Second in Charge, because she was ultimately dismissed, was whether there was a threat to injure her in her employment.
A threat need not be menacing, but may be constituted by a warning beforehand of an intention to inflict harm, which is communicated to an employee.[140]
[140] Community & Public Sector Union v Telstra Corporation Ltd (2000) 99 IR 238 at 243-246 per Finkelstein J; [2000] FCA 844 at paras.19-26 per Finkelstein J; and on appeal Community & Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93 at 98 and 101 per Black CJ, Ryan and Merkel JJ; [2001] FCA 267 at paras.5 and 22 per Black CJ, Ryan and Merkel JJ.
In the circumstances, Ms Poppas was warned beforehand of an intention to inflict harm, that is she was threatened, with injury in her employment, by reason of those emails which indicated that she would be reduced in rank and suffer a loss of entitlement to a car, phone and fuel.[141]
[141] See paras.28, 29 and 37 above.
Altered position of employee to employee’s prejudice
The “offer” of employment as Second in Charge at the Ballajura Centre ultimately became an offer to employ Ms Poppas at the Lockridge Centre as Second in Charge. Employment as Second in Charge at the Lockridge Centre would have not included an entitlement to a car, phone or fuel. There is evidence from Ms Poppas that she would have incurred additional expense, even though that expense is not quantified. Thus, even if she had taken the position as Second in Charge at the Lockridge Centre, there would have been a prejudicial alteration to her employment in the sense that an advantage that she enjoyed previously would have been adversely affected or deteriorated because of the additional expense incurred in getting to and from the Lockridge Centre.[142]
[142] In Patrick Stevedores Operations No 2 Pty Ltd & Ors v Maritime Union of Australia & Ors (1998) 195 CLR at 18 the majority of the High Court held that prejudice covers “not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”: per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ.
To the extent, if any, that this did not constitute a threat to injure her in her employment, the offer of employment at the Lockridge Centre as Second in Charge constituted a threat (as defined above)[143] to alter her position as an employee to her prejudice.
Prohibited Reasons
[143] See para.96 above.
Respondent’s reasons
Cuddles Management asserts that its conduct was a consequence of its assessment of Ms Poppas’ performance, and that that performance was not satisfactory, and that in particular it resulted in the non-accreditation of the Ballajura Centre by the NCAC.
The Court notes that there was no expression of dissatisfaction with the performance of Ms Poppas prior to her going on maternity. Further, the Court finds that there was no basis for the employer concluding that the performance of Ms Poppas resulted in the non-accreditation of the Ballajura Centre because:
a)Mr Carver, reached that conclusion on behalf of Cuddles Management, had no direct, alternatively day-to-day, knowledge of the requirements with respect to accreditation, and in particular of the programme records;
b)the primary reason for the non-accreditation of the Ballajura Centre was the conduct of the employees on the day of the accreditation, which was several weeks after Ms Poppas had left on maternity leave and which was under the supervision of a new relief Manager;
c)the documentation criticised in the NCAC accreditation report, and which was used as a basis for asserting that Ms Poppas ought to be terminated, was documentation prepared by the relief Manager as a consequence of a new filing system having been implemented after Ms Poppas had gone on maternity leave;
d)the relief Manager had imposed her own style on the Ballajura Centre by the time of the accreditation inspection; and
e)the NCAC report did not identify Ms Poppas as being responsible for not keeping the Ballajura Centre records up to date.
Ms Poppas’ evidence constituted a comprehensive rebuttal of the criticisms levelled at her by Cuddles Management. Having regard to the findings made by the Court above, the Court considers that the reasons advanced by Cuddles Management for its treatment of Ms Poppas (that is the injury in employment, prejudicial alteration of position and dismissal) were entirely spurious, and were not the reason for Cuddles Management’s conduct in relation to Ms Poppas. Therefore, Cuddles Management has not established that the conduct was for a non-prohibited reason, and has failed to satisfy the Court that it has fulfilled the evidentiary onus imposed on it by s.809 of the WR Act.
Industrial instrument
For Cuddles Management to have dismissed Ms Poppas for the prohibited reason of entitlement to the benefit of an industrial instrument,[144] the Award must be binding on Cuddles Management. Cuddles Management do not admit that it is binding.[145] The non-admission constitutes a traverse and operates as a denial of the claim, putting the Union to proof.[146] The Union must therefore prove that the Award is binding on Cuddles Management.
[144] WR Act, s.793(1)(i).
[145] Cuddles Management’s First Defence, para.2.
[146] See footnote 131 above.
Clause 19 of the Award provides as follows:
19 – Maternity Leave
(1) Eligibility for Maternity Leave
An employee who becomes pregnant shall, upon production to her employer of a certificate from a duly qualified medical practitioner stating the presumed date of her confinement, be entitled to maternity leave provided that she has had not less than 12 months’ continuous service with that employer immediately preceding the date upon which she proceeds upon such leave.
…
(9) Termination of Employment
…
(b) An employer shall not terminate the employment of an employee on the ground of her pregnancy or of her absence on maternity leave, but otherwise the rights of an employer in relation to termination of employment are not hereby affected.
(10) Return to Work After Maternity Leave
(a) An employee shall confirm her intention of returning to work by notice in writing to the employer given not less than four weeks prior to the expiration of her period of maternity leave.
(b) An employee, upon the expiration of the notice required by paragraph (a) hereof, shall be entitled to the position which she held immediately before proceeding on maternity leave or, in the case of an employee who was transferred to a safe job pursuant to subclause (3), to the position which she held immediately before such transfer. Where such position no longer exists but there are other positions available for which the employee is qualified and the duties of which she is capable of performing, she shall be entitled to a position as nearly comparable in status and salary or wage to that of her former employer.
Clause 3 – Area of the Award provides that it applies throughout Western Australia while cl.4 – Scope provides that:
This award shall apply to all employees in the classifications set out in clause 22. – Wages of this award, in private nurseries, private child care or private day care facilities which provide care for children and which do not receive recurrent funding from State or Federal governments.
For Cuddles Management to be bound by the Award the Union must prove that:
a)Cuddles Management employed Ms Poppas in a classification set out in clause 22 of the Award;
b)Ms Poppas was employed in, relevantly, private child care or private day care facilities which provide care for children; and
c)those facilities are ones which do not receive recurrent funding from State or Federal governments.
There is sufficient evidence to establish, or from which it can be inferred that:
a)Ms Poppas was employed in a classification set out in cl.22 of the Award, namely a Children Services Employee – Level 6, that being a Director’s position,[147] and a Director Step (or Level) IX;[148]
b)Cuddles Management, and specifically the Ballajura Centre, was a private child care or private day care facility which provided care for children.[149]
[147] Award, cl.24(6).
[148] Award, Sch.C.
[149] See generally paras.21-69 above.
The only evidence in relation to child care funding was Ms Poppas’ evidence that accreditation was being undertaken because otherwise Cuddles Management could not get Commonwealth child care funding.[150] Nothing was said as to the nature of the Commonwealth funding Cuddles Management could not get, and whether it was recurrent or otherwise. There is no evidence at all in relation to what funding, if any, is received from the State Government or the nature of any such funding and in particular whether Cuddles Management’s centres are facilities or centres “which do not receive recurrent funding from State or Federal governments”.[151] These were matters for the Union to prove if it was to prove the Award applied to Ms Poppas’ employment, or bound Cuddles Management, as claimed. The Union has not proved these matters, and it follows that the alleged claims of conduct for a prohibited reason namely, entitlement to the benefit of an industrial instrument, must fail.
[150] See para.23 above.
[151] Award, cl.4.
Inquiry or complaint to a person having capacity and participation in a proceeding
The issues of whether the conduct was for a prohibited reason by virtue of Ms Poppas making an inquiry or complaint to the Union, or participating in a proceeding can be considered together.
For reasons set out above the inquiry or complaint to the Union by Ms Poppas cannot be considered to be an inquiry or complaint in relation to the observance of her rights under an industrial instrument, namely the Award, for the purposes of s.793(1)(j)(ii) of the WR Act, because the Award did not apply to her employment. However, it can be considered to be an inquiry or complaint with respect to compliance with an industrial law, and in particular the statutory guarantee of return to work following maternity leave under s.280 of the WR Act. Furthermore, it is clear that the conciliation conference proceedings in the AIRC were proceedings under an industrial law.[152]
[152] WR Act, sch.8 cl.8 and ss.698-699.
In the absence of a proven non-prohibited reason for the conduct the Court considers (or, at the very least considers it can be inferred) that the conduct, namely the dismissal, injury in employment and prejudicial alteration to position in employment, was conduct for a prohibited reason, namely an inquiry or complaint to a person having capacity under an industrial law to seek compliance with that law, namely s.280 of the WR Act, because:
a)the email of 8.12pm on 22 May 2008, which dismissed Ms Poppas from employment, refers to the circumstances, which clearly included the complaint that had been made to the Union, and “the conditions you insist on” which included a return to work at the Ballajura Centre in Ms Poppas’ previous position;
b)the express reference to seeing Ms Poppas at “the Commission hearing” in the email of 8.12pm on 22 May 2008, which indicates a clear awareness of a complaint made to the Union and which might result in participation in a proceeding under an industrial law;
c)Cuddles Management’s refusal to participate in the conference before the AIRC being a proceeding under an industrial law, and being a proceeding as a consequence of a complaint by Ms Poppas to the Union which sought compliance with the law, namely s.280 of the WR Act;
d)Cuddles Management’s refusal to deal with the Union in relation to the complaint concerning return to work following maternity leave made to it by Ms Poppas; and
e)Cuddles Management’s advice to Ms Poppas that she did not need to deal with the Union in relation to the complaint concerning return to work following maternity leave.
The conduct of Cuddles Management, including the above conduct, is sufficient to infer that the conduct was for prohibited reasons, namely the prohibited reasons in s.793(1)(i) and (j)(i) of the WR Act, and therefore in breach of s.792(1) of the WR Act.
Order to pay compensation
The Union sought an order that compensation be paid to Ms Poppas in relation to any proven breach of s.792(1). However, there is no evidence of any additional non-economic loss warranting compensation in a sum greater than that payable as damages for any breach of the Contract of Employment.[153]
[153] CEPU v ACI Operations Pty Ltd (2006) 150 IR 179; [2006] FCA 122.
Breach of Contract of Employment
Ms Poppas alleges that her Contract of Employment was breached by her not receiving four weeks notice of termination of employment.
For reasons set out above, the Court has found that Ms Poppas was dismissed from her employment on 22 May 2008. Ms Poppas was entitled under her Contract of Employment to four weeks notice.
An employer cannot give notice of termination of employment to an employee on approved leave, or, at least, the notice cannot run concurrently with the approved leave because to do so is to deprive the employee of their right to paid leave. The principle has been established in cases concerning the interpretation of Awards and employees’ entitlements on termination. In the The Chief Secretary v The Hospital Employees Industrial Union of Workers of WA (Coastal Branch)[154] the Court of Arbitration in Western Australia held that a government department cannot give notice of dismissal so as to have any portion of the month prescribed for the notice of dismissal running concurrently with the annual holidays of the employee concerned.[155] In McSharer v Hospital Employees Industrial Union of Workers, WA[156] Burt J held that the right to terminate employment on one weeks notice was subject to an entitlement to leave and therefore an employer cannot give notice which in its terms would terminate employment within a period of annual leave.[157] In AMWSU v Multicon Engineering (WA) Pty Ltd[158] each of the Justices of the Industrial Appeal Court held that notice of termination was not able to run concurrently with a period of annual leave because to do so would be to deny the employee the benefit of the annual leave to the extent of the notice of termination.[159] In Swingler v Methodist Ladies College Smith C (as she then was) applied the same principle to find that notice could not operate at law whilst the employee was on long service leave.[160]
[154] (1931) 11 WAIG 105 (“The Chief Secretary”).
[155] The Chief Secretary at 106 per Dwyer J.
[156] (1974) 54 WAIG 1545 (“McSharer”).
[157] McSharer at 1546 per Burt J (with whom Wickham J agreed).
[158] (1980) 60 WAIG 1055 (“Multicon Engineering”).
[159] Multicon Engineering: see Wallace J at 1056 (with whom Smith J agreed at 1057) and Brinsden J at 1057. The judgments in McSharer and Multicon Engineering are judgments of the Industrial Appeal Court, a court composed of three Western Australian Supreme Court Justices to sit on appeals from the Full Bench of the Western Australian Industrial Relations Commission: see Industrial Relations Act 1979 (WA) s.85.
[160] (2002) 82 WAIG 861 at 867 per Smith C; [2002] WAIRComm 5170 at para.42 per Smith C.
In this case the provisions of the WR Act reinforce the proposition that an employee on approved leave, and specifically maternity leave, cannot have that leave interfered with by a period of notice. In this case, even though the prerequisite period of service for entitlement to maternity leave had not been met by Ms Poppas, Cuddles Management granted her maternity leave. Section 265 of the WR Act relevantly provides that maternity leave is “a single, unbroken period of unpaid leave (ordinary maternity leave)”.[161] Section 279(1) of the WR Act entitles an employee to terminate employment during maternity leave “subject to any notice required to be given by the employee”.[162] There is no co-related right given to an employer to terminate an employee’s service during maternity leave. Section 280 of the WR Act guarantees an employee who has taken maternity leave the right to return to the position held immediately before the start of the maternity related leave period. In the Court’s view those provisions make it clear that an employer is not entitled to terminate an employee’s service whilst the employee is on maternity leave. Furthermore, and in any event, to do so would entitle an employer to give notice during a period during which the employee is not being paid. If notice were to run during this period the employee’s entitlement to a paid notice period, or pay in lieu of notice, would be vitiated. Having regard to the provisions of ss.265, 279 and 280 of the WR Act the Court’s view is that that cannot have been the intention of the Parliament. Furthermore, it is contrary to the law as established in the Chief Secretary, McSharer and Multicon Engineering.[163]
[161] WR Act, s.265(1)(b).
[162] WR Act, s.279(1) and (2).
[163] See also AIMPE v Australian Coastal Shipping Commission (1972) 146 CAR 468 at 470 per Ludeke J where the Commonwealth Conciliation and Arbitration Commission held that it was not open to reduce the payment prescribed as an alternative to notice.
In the circumstances Cuddles Management breached the Contract of Employment by failing to give four weeks notice of termination of employment, and is liable for damages equivalent to four weeks remuneration for Ms Poppas, subject to mitigation. An employer who alleges that an employee has failed to mitigate their loss bears the onus of proof in that regard.[164] Other than an assertion of the most general kind as to the availability of child care employment in Western Australia (made by Mr Carver),[165] there was no evidence led by the employer which indicated a failure to mitigate loss by Ms Poppas. Ms Poppas gave evidence of her endeavours to obtain employment, and that they were for some time unsuccessful, perhaps in part because of the circumstances of her departure from Cuddles Management. The Court considers that there has been no failure by Ms Poppas to mitigate her loss.
[164] McDonald v State of South Australia (2008) 172 IR 256 at 339 per Anderson J; [2008] SASC 134 at para.488 per Anderson J.
[165] See para.54 above.
The question then arises as to what is the quantum of damages. Evidence was led of Ms Poppas’ annual salary of $51,063.99. There was evidence that she was entitled to a motor vehicle, telephone, and seemingly fuel, all paid for by her employer. There is however no evidence of the value of the entitlements to motor vehicle, telephone and fuel. Therefore, the most that the Court can do is to award her a sum equal to four weeks salary, that sum being $3,906.52.[166]
[166] Calculated as follows:
(a)formula: annual salary divided by 52.286 (to give a weekly amount for a leap year (ie 366 days divided by 7)) x 4;
(b)calculation: $51,063.99 / 52.286 = $976.63 x 4 = $3,906.52.
Alleged Breach of Award
Ms Poppas submits that Cuddles Management’s failure to return her to Centre Manager at the Ballajura Centre, and ultimately to any position at all, was a breach of cl.19 of the Award.
For the reasons set out above, it was not proved, in these proceedings, that the Award applied to Ms Poppas’ employment. That was a matter Ms Poppas had to prove if she was to prove her claim of a breach of cl.19 of the Award. She did not prove it, and it follows that her claim for breach of the Award must fail.
Conclusions
For the reasons set out above the Court therefore concludes that:
a)Cuddles Management’s conduct in relation to Ms Poppas, namely her dismissal, and the threats to injure her in her employment or alter her position to her prejudice, was conduct for a prohibited reason under s.793(1)(i) and (j)(i) of the WR Act and in breach of s.792(1) of the WR Act;
b)there was no conduct by Cuddles Management in relation to Ms Poppas for a prohibited reason under s.793(1)(j)(ii) of the WR Act;
c)Ms Poppas is entitled to damages of $3,906.52 for breach of her Contract of Employment by Cuddles Management; and
d)there was no breach of cl.19 of the Award by Cuddles Management.
In the circumstances there will be declarations in relation to the conduct for prohibited reasons under s.793(1)(i) and (j)(i) of the WR Act and in breach of s.792(1) of the WR Act, and an order in relation to Ms Poppas’ entitlement to damages for breach of her Contract of Employment by Cuddles Management.
In relation to a hearing in relation to any penalty for breach of s.792(1) the matter will adjourned to a directions hearing.[167]
[167] As to the evidentiary requirements with respect to a penalty hearing, see Olsen v Sterling Crown Pty Ltd (2008) 177 IR 337 at 343-344 per Lucev FM; [2008] FMCA 1392 at para.25 per Lucev FM.
With respect to costs, if any, the Court will reserve that issue for determination following any penalty hearing.
I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S. Gough
Date: 26 May 2009
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