Li v Star Track Express Pty Limited
[2024] FedCFamC2G 430
•15 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Li v Star Track Express Pty Limited [2024] FedCFamC2G 430
File number: MLG 3248 of 2021 Judgment of: JUDGE SYMONS Date of judgment: 15 May 2024 Catchwords: INDUSTRIAL LAW – general protections – where applicant alleges adverse action taken against him because he exercised workplace rights and had protected attributes – both dismissal and non-dismissal forms of adverse action alleged – finding that no non-dismissal adverse action within the meaning of s 342 of the Fair Work Act 2009 (Cth) – where applicant absent from work for extended period without provision of medical certificates - identification of decision maker - whether employer’s stated reasons for dismissal determinative – whether presumption of prohibited reasons rebutted – reverse onus discharged by employer – application dismissed Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 342, 351, 352, 360, 361, 545, 546, 793
Fair Work Regulations 2009 (Cth) r 3.01(5).
Occupational Health and Safety Act 2004 (Vic) ss 23, 25
Cases cited: Alam v National Australia Bank Limited (2021) 288 FCR 629; [2021] FCAFC 178.
Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46; [2019] FCAFC 16.
Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697.
Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162.
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22.
Han v St Basil’s Homes (2023) 325 IR 190; [2023] FCA 1010.
Maric v Ericsson Australia Pty Ltd (2020) 293 IR 442; [2020] FCA 452.
Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754.
National Tertiary Education Industry Union v University of Sydney (2020) 302 IR 272; [2020] FCA 1709.
Sabapathy v Jetstar Airways (2021) 283 FCR 348; [2021] FCAFC 25.
Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346; [2014] FCAFC 167.
Whelan v Cigarette & Gift Warehouse Ltd (2017) 275 IR 285; [2017] FCA 1534.
Wong v National Australia Bank Limited (2022) 318 IR 14; [2022] FCAFC 155.
Division: Division 2 General Federal Law Number of paragraphs: 233 Date of last submissions: 9 August 2023 Date of hearing: 7-9 August 2023 Place: Melbourne The applicant: In person Counsel for the respondent: Ms N Campbell Solicitor for the respondent: Ashurst ORDERS
MLG 3248 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HANG LI
ApplicantAND: STAR TRACK EXPRESS PTY LIMITED
Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
15 MAY 2024
THE COURT ORDERS THAT:
1.The applicant’s Originating Application filed on 15 December 2021 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
The applicant, Mr Hang Li (Mr Li), alleges that the respondent, StarTrack Express Pty Ltd (StarTrack) contravened s 340(1) of the Fair Work Act 2009 (Cth) (FW Act) by taking adverse action against him because he exercised one or more workplace rights. Mr Li alleges the adverse action took various forms, most significantly his dismissal on 23 September 2021.
Mr Li also alleges that StarTrack contravened s 351 and s 352 of the FW Act by discriminating against him because of his race and by dismissing him because he was temporarily absent from work because of illness or injury.
Mr Li seeks orders for compensation for loss of income, pain and suffering and for the imposition of penalties under ss 545(1) and 546(1) of the FW Act. Mr Li seeks that these penalties be paid to him pursuant to s 546(3)(c) of the FW Act.
StarTrack denies that Mr Li has any cause of action against it. While it admits that it dismissed Mr Li from employment in September 2021 and that its action in doing so constituted adverse action, it says the decision to dismiss Mr Li was made lawfully and reflected his inability to perform the inherent requirements of his role and his failure to comply with StarTrack’s policies, procedures, and directions around the production of medical evidence.
MATERIAL RELIED UPON BY THE PARTIES
The trial of this matter took place on 7, 8 and 9 August 2023, following a significant level of case management that was largely responsive to Mr Li’s status (by the time of hearing) as a self-represented litigant. Mr Li appeared for himself and was assisted by an interpreter in the English and Mandarin languages.
At trial, Mr Li relied on:
·his affidavit affirmed and filed on 22 June 2022 (Li affidavit);
·the affidavit of psychologist Ms Jenny Liao affirmed on 17 June 2022 and filed on 22 June 2022 (the report of Ms Liao was directed at the question of compensation only);
·his written submissions filed on 31 July 2023.
Mr Li and Ms Liao were both required for cross-examination. Mr Li was also given permission to take evidence in chief from former StarTrack employee, Mr Hayden McMullan, including to ask questions of him concerning his witness statement filed in the Fair Work Commission dated 6 July 2021 which he subsequently tendered.[1]
[1] Exhibit R-2.
At trial, StarTrack relied on:
·its further amended response filed on 3 August 2023;
·the affidavit of Mr Jason Ellem filed on 15 August 2022[2] (Ellem affidavit);
·the affidavit of Mr Darren Cassar affirmed and filed on 15 August 2022 (Cassar affidavit);
·the affidavit of Mr Adam Moulton affirmed on 10 August and filed on 15 August 2022 (Moulton affidavit);
·the affidavit of Mr Ivan Pucci affirmed and filed on 15 August 2022 (Pucci affidavit);
·its written submissions filed on 1 August 2023.
[2] An affirmed version was filed on 4 August 2023.
All of StarTrack’s witnesses were required by Mr Li for cross-examination.
Mr Li’s case was also articulated in his originating application filed with Form 2 on 15 December 2021 and his statement of claim filed on 15 December 2021 which had been prepared by Mr Li’s first lawyer.[3] Although Mr Li did not entirely embrace this document in the ultimate presentation of his case, choosing instead to raise matters that either did not appear in the statement of claim or which took on a different complexion in his hands, the pleading is nonetheless an important document because it contains the clearest articulation of the causes of action relied upon by Mr Li and because it is the document that StarTrack responded to and relied upon in the preparation of its case. In the context of a proceeding in which civil penalties are sought by Mr Li, this is significant.[4]
[3] Mr Li had the assistance of two different lawyers over the period December 2021 up to 31 May 2023.
[4] Sabapathy v Jetstar Airways [2021] FCAFC 25 at [39]-[41].
AGREED OR UNCONTROVERSIAL MATTERS
The following matters were either agreed or not in controversy.
Mr Li was born in China and is a member of the Asian race.
StarTrack is a transport and logistics company that is a subsidiary of the Australia Post Corporation (APC) and part of the Australia Post Group (APG).
Mr Li was employed by StarTrack on a permanent part-time (32.5 hours per week) basis as a freight handler from May 2017 to 23 September 2021. Mr Li worked at StarTrack’s Tullamarine site, located at 45-55 Armadale Road, Tullamarine, where multiple sheds, including the “Main Shed” and the “Southern Shed” were located.
Mr Li worked a shift that commenced at 4 pm and ended at 10.30 pm. One of his main duties was to unload pallets onto conveyor belts and to unload boxes onto lines.
Mr Li’s supervisor was Mr Ivan Pucci, who was employed, at relevant times, in the role of Induction Supervisor at StarTrack’s Tullamarine facility.
The last day that Mr Li attended for work was 11 January 2021.
On 23 September 2021, StarTrack terminated Mr Li’s employment with immediate effect, citing his inability to safely perform the inherent requirements of his role and his failure to provide medical certificates over parts of the period of his absence.
FLESHING OUT THE NARRATIVE AND TIMELINE
Of course, one rarely gets from point A to point B without the interposition of a series of events the significance of which are open to interpretation and/or contested by the parties.
Mr Li alleges in this proceeding that he exercised workplace rights on 14 occasions and that StarTrack took 12 species of adverse action against him because he had done so, culminating in his dismissal. Mr Li’s statement of claim proceeds on the basis that the various adverse actions were a response to the collection of workplace rights that had by the relevant point in time at which the alleged adverse action occurred, been exercised. In other words, there is little attempt to divine relationships between the alleged workplace rights and adverse actions, beyond the temporal and circumstantial.
StarTrack largely admits the factual underpinning of the pleaded workplace rights and, except in three cases, admits that they involved the exercise of a workplace right as defined in s 340(1) of the FW Act; most often in the nature of an ability to make a complaint or inquiry in relation to employment. StarTrack joins issue with Mr Li that it engaged in any of the forms of adverse action identified (save for the dismissal) and/or that they possess this character. Its response falls broadly into one of the following four categories:
(a)The alleged conduct did not occur.
(b)The alleged conduct did occur, but it was not engaged in by StarTrack because the conduct was not authorised by StarTrack.
(c)The alleged conduct occurred, but it did not constitute adverse action within the meaning of s 342 of the FW Act.
(d)The alleged conduct did occur, and it does constitute adverse action, but the conduct was not taken because of any prohibited reason.
FINDINGS REGARDING THE CLAIMED WORKPLACE RIGHTS AND FORMS OF ADVERSE ACTION
A persistent theme of Mr Li’s case is that when he raised a grievance in the workplace, the response provided by StarTrack was inadequate. The making of the complaint is identified as the exercise of a workplace right and the response (considered by Mr Li to be inadequate or flawed or entirely absent) is identified as a form of “adverse action”.
While not all of Mr Li’s case submits to this analysis, it does however explain the approach I have taken to fact finding which is to deal together and chronologically with the claimed workplace rights and adverse actions, rather than to discuss them under separate headings, at the risk of losing sight of the context in which they both are said to have occurred.
At the outset I note that the facts relating both to the pleaded workplace rights and adverse actions were not substantially in dispute and that I have been able to make the following findings without the necessity for impugning the character or credibility of any witness. Where I have been required to choose between the evidence of one witness over another, I have done so, as far as possible, “on the basis of contemporary materials, objectively established facts and the apparent logic of events”,[5] rather than a view taken that a particular witness was deliberately untruthful.
[5] Fox v Percy (2003) 214 CLR 118, 129 [31] (Gleeson CJ, Gummow and Kirby JJ).
I consider that each of the respondent witnesses gave their evidence in a straightforward manner and did their best to assist the Court. Mr Li impressed me as a thoughtful, respectful, and careful witness who made appropriate and ready concessions when matters were put to him in cross-examination. On the occasions that he became animated, I consider that his response reflected his genuine frustration with conduct that he attributed to StarTrack (institutionally, rather than to individual actors), and which, according to his view of the world, fell short of what was fair, reasonable, and in some instances, lawful.
Pleaded workplace rights and adverse actions relating to events occurring while Mr Li was attending for work
August 2019 – first employment complaint - first workplace right
In August 2019, Mr Li attended a meeting with Mr Cassar, who at the time was employed by StarTrack in the role of Senior Program Implementation Manager and Mr Darren Bott (previously StarTrack’s State Operations Manager) during which he reiterated previously raised concerns that other StarTrack employees were smoking in the bathrooms in the Main Shed. Mr Li asked Mr Cassar to address the issue by preventing smoking from occurring in the future. Mr Li made some suggestions of his own, including: the installation of video surveillance; the installation of smoke detectors; removing the entry doors to the toilet; and/or placing a time limit on the use of the toilets.
In responding to the suggestion that StarTrack should install video surveillance in the toilets, Mr Cassar told Mr Li that he had concerns this measure would violate personal privacy. Mr Cassar did not say during the meeting that “nothing could be done” to address the smoking issue. I consider that a communication to that effect was inconsistent with the attitude of StarTrack to Mr Li’s concerns and the steps that it took to consider means to redress them.
August 2019 and following – the response to the first employment complaint - first adverse action
During cross examination Mr Li agreed that after he had raised the issue of smoking in the toilets with Mr Cassar and Mr Bott, shift supervisors at the Tullamarine site had reminded employees of their obligation not to smoke in toilets at toolbox meetings.
Mr Li also agreed that Mr Cassar had given consideration to each of his suggestions (referred to at [26] above) although he had ultimately decided to reject each of them. Mr Li also accepted that responsibility for the issue of smoking resided with Mr Cassar rather than himself.
Mr Li accepted that his complaint about smoking had not been ignored by StarTrack. However, he remained of the view that the response was unsatisfactory.
Mr Moulton, who at relevant times was employed by StarTrack as Head of Workplace Relations and based in Queensland, gave evidence that was not challenged by Mr Li and which sheds further light on the steps taken and reasoning employed by StarTrack in responding to the complaint about smoking. Mr Moulton explained that Mr Li’s suggestions could not be implemented because:
(a)It is illegal to use CCTV or listening devices to record or observe a private activity (including using toilet facilities);
(b)Installing smoke detectors that cut power would be a contravention of StarTrack’s safety obligations, given the need to maintain lighting and visibility in the event of a fire; and
(c)It would not be practicable to assign a staff member to monitor entries and exits of workplace bathroom, including because employees who use toilet facilities legitimately would feel uncomfortable with such monitoring.
An expansive explanation for each of these responses was set out in correspondence sent by Mr Moulton by email to Mr Li on 12 June 2020.[6]
[6] Annexure “AM-7” to the Moulton affidavit.
September 2019 – transfer to the Southern Shed - second adverse action
In September 2019, StarTrack unilaterally decided to transfer Mr Li from the Main Shed to the Southern Shed at the Tullamarine site. The transfer did not impact on Mr Li’s hours of work or his remuneration. Mr Li continued to work productively from this site.
The transfer occurred in the context of a roster alignment initiative that involved offering part-time employees additional work hours. The transfer affected approximately 30 workers.
Mr Li was given the opportunity to work full time hours in the Main Shed, but he turned the opportunity down for his own (unspecified) reasons. I accept the sworn (and largely unchallenged) evidence of Mr Cassar that when he offered Mr Li additional work hours, he explained the roster alignment initiative to him (Mr Li) and that there might be a change to his work area if he chose to continue with his current (part-time) schedule. I find that while there was no formal consultation about the roster alignment initiative and the shed transfer, Mr Li was warned that there was a potential for his work area to change.
Mr Li disagreed with the proposition put to him in cross-examination that he was not disadvantaged by the transfer to the Southern Shed. When asked to explain what he meant by this, Mr Li told the Court that when he moved to the Southern Shed, the level of danger in the workplace increased. The example cited by Mr Li to illustrate this was that when StarTrack received very high pallets from customers, it purposely moved those pallets from the Main Shed to the Southern Shed, which resulted in injuries to workers.
Mr McMullan, who at relevant times was employed by StarTrack as Duty Manager at the Tullamarine facility and was in charge of processing on the Main and Southern Sheds, was asked whether there was any difference between the way in which pallets were handled as between these two locations. Mr McMullan told the Court that there was no difference between the two sheds and that customers could go to either shed such that “it [the pallet] wasn’t specifically taken anywhere for any reason”.
I have no reason to doubt Mr McMullan’s evidence; certainly, Mr Li did not suggest that he was lying on this point. I prefer it to the extent that it operates in tension with the evidence of Mr Li on this topic. Mr McMullan had a global view of operations at StarTrack Tullamarine, while Mr Li’s view was, necessarily, myopic.
2 February 2020 – Mr Li referred to as “Chinese spy”- third adverse action
On 2 February 2020, Mr Li was referred to as a “Chinese spy” by a co-worker (Mr Farrell). The comment was made as part of an exchange of words between Mr Li and Mr Farrell.
3 February 2020 – second employment complaint - second workplace right
On 3 February 2020, Mr Li made a verbal complaint to Mr Pucci about the comment attributed to his co-worker (Mr Farrell), whose identity Mr Li did not know at the time, but which was ascertained when Mr Pucci took Mr Li to the loading area of the Southern Shed and asked Mr Li to identify his co-worker. Mr Li agreed in cross-examination that Mr Pucci, through his response, considered the matter raised by Mr Li to be serious.
Mr Li asked Mr Pucci to investigate the making of the comment and Mr Pucci told Mr Li that he would. The nature of that investigation is discussed later in these reasons.
13 February 2020 and following – third employment complaint - third workplace right
On 13 February 2020 and following, Mr Li made complaints regarding smoking in the bathrooms, that he had been targeted since making a complaint about Mr Farrell’s behaviour and that the action taken by StarTrack in response to his smoking complaint and complaint about Mr Farrell, was inadequate. The complaints were made in the following forums:
First, in an email sent by Mr Li to the APC [email protected] email address (whistleblower email address) on 13 February 2020.
Second, in an email sent by Mr Li to StarTrack’s [email protected] email address and to Dean Hose, employee relations, APC (Queensland) on 14 February 2020.
Third, at a meeting with Adam Hill, Human Resources Business Partner, APC (Tullamarine Site) as his office at Tullamarine on 2 March 2020.
Fourth, in an email sent by Mr Li to the whistleblower email address on 3 March 2020.
8 April 2020 – Mr Li referred to as “Mr Corona” - fourth adverse action
Mr Li gave sworn evidence that on 8 April 2020, a co-worker by the name of ##, referred to him as “Mr Corona”. For reasons that I will shortly explain, I find that this event occurred.
9 April 2020 – complaint about the “Mr Corona” comment (fourth employment complaint) - fourth workplace right
Mr Li described the encounter in an email that he sent the next day (9 April 2020) to recipients that included the (then) Premier of Victoria, Dan Andrews and the whistleblower email address. Mr Li also referred to the encounter in an email that he sent later that same day to the drivers’ supervisor, Peter Wutthiwai, in which he said:[7]
Hi Peter,
Yesterday afternoon, when I was working at Southern depot and helping Carlos unload his truck, a tall Australian driver parked his truck just next to me. He called me Mr Corona and used his uniform to cover his face to show he wanted to stay away from me. He did this in front of another driver who came with him in the same truck. The truck registration number is ###. I didn’t see this driver at southern for at least couple of weeks, he came back this week. Every time he came back, he came with another Startrack driver.
I felt his behavior was hurting my dignity as a Chinese. I wrote a letter to Mr Daniel Andrews to express my feelings. I attached the letter for your information. I hope Australia Post and Startrack could put a stop to any discrimination against Chinese in the workplace.
Thank you for your time.
Regards,
Hang
[7] Annexure “AM-2” of the Moulton affidavit.
Mr Moulton gave evidence that StarTrack later investigated Mr Li’s report that he had been called “Mr Corona”. His evidence reflected his review of notes and records made in connection with the investigation. He said:[8]
I read in the documents that the employee accused of making the remark, ##, denied the allegation, and stated that he said words to the effect “Watch out for Corona”. Another employee who was identified as a potential witness to the comments could not recall any such comments being made.
As a result, I was unable to determine on the balance of probabilities that the alleged remark was made.
Based on my review of the investigation materials, I did not have any concerns with the way the matter was handled.
[8] Moulton affidavit at [27]-[29].
I am not bound by the finding recorded in the StarTrack report and neither did I understand StarTrack to suggest that I was, or to urge a finding on me consistent with its own conclusion although it did formally deny Mr Li’s allegation in its amended response. Indeed, it was not suggested to Mr Li in cross-examination that his account was false or unreliable. I consider, having regard to the detail contained in Mr Li’s account, the fact that it was reported almost immediately by him, the strength of his reaction and the social milieu operating at the time, that the version of events described by Mr Li more likely than not occurred.
28 May 2020 – giving of “verbal warning” - fifth adverse action
The parties agree that on 28 May 2020, Mr Li attended a meeting with Mr McMullan and Mr Cassar during which Mr Li was informed about the outcome of StarTrack’s investigation of the second and third employment complaints. The parties also agree that the outcome of the investigation into the second employment complaint (involving the “Chinese spy” comment) was that StarTrack told Mr Li that he should refrain from making comments about race in the workplace. It appears that Mr Li came away from this meeting under the impression that he had been issued with a verbal “warning”. StarTrack’s position is that the discussion had a more benign character and was more in the nature of verbal counselling. Certainly, the investigation report (referred to below) supports this characterisation.
The rationale behind this communication was that when StarTrack carried out an investigation into the second employment complaint it found, through an interview process that involved both Mr Li and Mr Farrell, as well as several witnesses, that while Mr Farrell had called Mr Li a “Chinese spy”, Mr Li had also made a race-based comment to Mr Farrell when he asked him whether he was Brazilian and remarked that he looked like a Brazilian soccer player. Mr Li acknowledged having asked Mr Farrell if he was from Brazil but maintained throughout the proceeding that his comment had been made second in time (responsive to Mr Farrell’s comment) and was therefore less objectionable. Be that as it may, StarTrack concluded that both employees had made comments that were contrary to “Our Ethics” (a policy document) and determined that the appropriate response, in both cases, was the issue of a verbal counselling file note. The results and methodology of the investigation were recorded in an investigation report that was prepared by Mr Cassar and dated 17 March 2020.[9]
[9] Annexure “DC-1” to the Cassar affidavit.
It was Mr Li’s evidence, which he did not resile from during cross-examination, that it was communicated to him by Mr Cassar that the verbal warning or counselling was also a response to Mr Li “making trouble for the depot managers as a whistle blower”.
Mr Cassar’s affidavit contained a denial of this statement which was not interrogated by Mr Li in cross-examination. Mr Cassar’s affidavit also contained his evidence that he had taken Mr Li’s “Chinese spy” allegation seriously including because he understood that racial discrimination or harassment was a breach of the Australia Post Group “Our Ethics Policy” and was not tolerated in any circumstances.
Mr McMullan was questioned by Ms Campbell about what occurred during the meeting on 28 May 2020. He told the Court that he had not heard Mr Cassar make a statement of the kind attributed to him by Mr Li and explained that had he heard such a statement, he would have acted on it given its serious nature.
It strikes me as inherently implausible that Mr Cassar, who had taken the time to undertake an investigation into the “Chinese spy” complaint, had documented that investigation and had determined an outcome connected with the investigation would, in the context of a meeting convened to explain the outcome of the investigation, make a comment that connected the outcome of the investigation to a matter of an entirely different character. The evidence of Mr McMullan fortifies me in this conclusion. I find that Mr Cassar did not make the comment referred to at [53].
31 May 2020 – complaint about “verbal warning” – fifth employment complaint - fifth workplace right
On 31 May 2020, Mr Li sent an email about the “verbal warning” and the reasons for which it was given to the whistleblower email address. The email was lengthy but insofar as it referenced the “verbal warning” it read:[10]
Dear Sir/Madame,
I am writing to Australia Post Whilst blower (sic) to express my concerns about the integrity and objectivity of a case investigation conducted by Startrack management at Tullamarine Depot and monitored by Startrack HR office in Queensland (case ###).
The incident happened on February 12th 2020 when one of my co-workers from a different group at Tullamarine Startrack Dept called me a Chinese spy in the workplace toilet. I lodged my complaints via my supervisor to the management team on the following day and later StarTrack HR was assigned to handle this case. After more than 3 months, on 28/05/2020, I was informed by the management team of the final results of the investigation.
During a meeting, the management team informed me that both that co-worker in question and I should be given a verbal warning based on the fact that my co-worker called me a Chinese spy and I responded by asking whether is from Brazil. I strongly object to this decision due to the totally different nature of our remarks. Firstly, I don’t know that co-worker who is from the loading section. After he labelled me as a Chinese spy, I told my supervisor Ivan Pucci, and based on my descriptions of the co-worker’s look, Pucci took me to the loading section and successfully identified that person among other workers. At the time, Pucci told me that guy had a bad reputation for slandering his colleagues. This worker’s manner and remarks on the night of incident came as a shock to me and I intended to find out who he was by asking him whether he was from Brazil. I don’t understand why my responses should be viewed as offensive and what is the justification for a verbal warning. I expect to get detailed and reasonable explanations from Australia Post based upon the Australia Post Group’s regulations.
…
[10] Annexure “HL-4” to the Li affidavit.
Mr Li identifies what he describes as the failure, refusal or neglect to act in response to the fifth employment complaint in accordance with APC policies and procedures as a form of adverse action (sixth adverse action).
16 July 2020 – complaint about adherence to COVID protocol – sixth employment complaint - sixth workplace right
On 16 July 2020, Mr Li sent an email to Mr Pucci and copied to Mr Hill which, in relevant part, read:[11]
Hi, Pucci,
I have two matters to report to you and Startrack HR regarding the breach of company safety procedures and regulations.
After Startrack reported confirmed cases at Tullamarine Depot, the company set up temperature screening procedures to make sure that every employee should go through the temperature check and answer some personal health questions before he/she enters the workplace. However, yesterday when some employees started their work at 5 PM at Southern Shed, they came to the entrance and found that there was no security guard to check their temperatures and ask questions.
This morning, Startrack manager made it very clear to every driver that they need to wear face masks at work. Today when the drivers returned to Southern shed, most of contractors did not wear mask. Even some of Startrack drivers refused to wear masks after I reminded them of the necessity of complying with company regulations and protecting the safety of everyone at depot. I asked some drivers for the reasons, I was told that some drivers though the manager was talking about nonsense and some thought it was not convenient to wear the masks, one contractor driver (Registration Number ###) told me that he threw his mask into garbage bin when I asked him why he didn’t wear his mask. The confrontation between the drivers and management is quite intense and evident on the issue of wearing masks.
…
[11] Annexure “HL-6” to the Li affidavit.
On 19 July 2020, Mr Li sent the following email to Mr Pucci:[12]
Hi, Pucci,
I have one thing I need to bring to the attention of you and management of Startrack Tullamarine Depot.
Around 10.30 pm on Friday night, I finished my work at Line 11 at Southern Shed and started walking towards the security shed where I need to clock out. When I was approaching the security shed, I saw the security guard on duty was leaving the shed and walking towards Main Shed. When I came to the shed, I found the door was locked. Around this time, one of my co-workers who worked as a forklift driver also came to the shed. I shouted to the security guard and tried to ask him to come back, but he didn’t hear me and continued to walk on the trailer park towards main shed. I attempted to catch up with him before I found it was too late. For the sake of avoiding any possible contact with main shed staff members, I stopped in the middle of the trailer park until he came back. When the security guard eventually returned to the security shed at Southern shed, it was past 10.30 pm and there were already five employees who were locked outside and waiting for his return.
There are two reasons why I wanted to report the guard’s absence from his post. It is known that a lot of employees normally finish their work at 10.30 pm every day and staff members who work at Southern shed and wish bone section need to past the security shed in order to lock and leave the workplace. The guard should have known this and his absence during this time of period, which can be interpreted as being negligent, has directly caused inconvenience for Startrack employees. As a matter of fact, the forklift driver (he received a $100 voucher after being nominated as a model worker several months ago) was very angry with the guard for his actions. What I am more concerned with is that the security guard’s visit to main shed and any possible contact with main shed staff members who were not going home at the time unnecessarily increased the risk of infection for us. According to the Covid-19 regulations at Startrack, all employees are not allowed to travel across different work zones in order to minimize the possibility of the spread of infection unless they obtain permission. I am not sure whether the security guards at Southern Shed are allowed to visit main shed at a time when employees are exiting the workplace.
[12] Annexure “IP-1” to the Pucci affidavit.
July 2020 and following – the response to the sixth employment complaint - seventh adverse action
Mr Li, in his statement of claim, characterised the response by StarTrack to the sixth employment complaint as involving a failure, refusal or neglect to take appropriate action to address the issues in accordance with occupational health and safety obligations.
In cross examination, Mr Li acknowledged that Mr Pucci had addressed the issue of staff not wearing face masks directly with workers at the Tullamarine facility. He also acknowledged that Mr Pucci was the appropriate person within StarTrack to handle this issue.
Mr Pucci elaborated on the action he had taken in response to Mr Li’s concerns in his affidavit. He was not challenged on this evidence, and I have no reason to reject it.
Mr Pucci explained that he took Mr Li’s complaint about mask wearing on board because he took the mask-wearing rules seriously. For example, Mr Pucci would direct external staff to leave the facility if they did not wear a mask when required. He would often call the organisations who supplied external staff and refuse to continue to engage certain staff members because they were not complying with StarTrack’s mask wearing policy.
Mr Pucci explained that in around June 2020, StarTrack had trialled an initiative where security guards were stationed at the entries to facility centres to conduct COVID-19 screening which involved temperature checking. In accordance with StarTrack policy, they were required to stay at this post until 5 pm. After this time, there were security guards stationed at a hub at the back of the site.
It was Mr Pucci’s evidence that when he received the email identified at [60] above, which concerned the conduct of a security guard, he had forwarded it within half an hour of its receipt to Mr Cassar.[13]
[13] Annexure “IP-1” to the Pucci affidavit.
Mr Li accepted, in cross examination, that Mr Cassar was the appropriate person to handle this issue.
August to September 2020 – return truck direction - eighth adverse action
Around August 2020 to September 2020, Mr Li was directed by StarTrack (Mr Pucci) to unload return trucks alone (i.e. by working on a line without any other worker) on a number of occasions. The work involved unloading packages and pallets of varying weight from trucks and placing them on to conveyer belts or shelving heavy and bulky items into adjacent cages.
The direction was given in circumstances where because of the COVID-19 pandemic, StarTrack was required to take safety precautions that included changes to the way that workers interacted on shifts.
It was Mr Li’s evidence (which he maintained under cross-examination) that load volumes were not adjusted in any way to reflect that he was unloading return trucks without any support and that he recalled, on two or three occasions, being directed to unload up to eight pallets alone in circumstances where two workers in the adjacent line were assigned to unload five pallets together.
In cross-examination, Mr Li agreed that there were policies and instructions in place at StarTrack to the effect that drivers were directed to assist freight handlers with the especially bulky items. He agreed that such policies were designed to protect the health and safety of workers. However, Mr Li maintained that he had been unable to avail himself of these measures because on the occasions he had been handling a line on his own, there was no driver on site from whom to seek assistance. Mr Li also disagreed with the proposition put to him that in order to facilitate the solo work, Mr Pucci had reduced his load (number of parcels) by 50%.
Mr Pucci gave evidence about the unloading of return trucks. He said staff would often work independently on a particular line for a period of the day, generally responsive to a diminished volume of work or where two people were allocated to the same line but with staggered start times. He deposed that when Mr Li was required to work on a line on his own the workload was not more (and was often less) than what the workload would have been if a freight handler had been working in a pair or trio. It was his evidence that at the time that the COVID-19 directions were given, Mr Li’s workload was approximately 50% of standard levels.[14]
[14] Pucci affidavit at [20].
Mr Li cross-examined Mr Pucci on this topic. This produced the following exchange:[15]
Do you remember in the year 2020, I think, from August until October, that period, I was instructed to work on line 1 on my own to accommodate all the trucks coming back from the depot?---Correct.
So the pattern is from 5 pm until maybe 5.30, the truck was not coming back, maybe not so many, but after 5.30 until 7, all the trucks keep on coming. And for the line 1, there were, I think, six or seven doors, so six or seven trucks can come at the same time during the rush hours for the person to unload all the….from the truck onto the conveyor belt; is that right?---There’s a lot of inaccuracies in that.
…
So specifically from August until October?--- All right. So in that seven-week period it was determined that the number of vehicles coming in would be greatly diminished, and the volumes that those vehicles carried would also be greatly diminished. At the time, it was suggested that no one actually worked that line, and they could unload themselves, but I placed you on there more so to ensure that the correct freight was put up. The volume was so low that, effectively, a personnel only needed to be there for half that period of time to do that role. So yes, you were alone, but the workload you were doing at the time was far less than that of when you had two people there. And the number of vehicles on that line at the time – a maximum capability of four can be on there at any given time, and generally, during that time when you’re by yourself, more often than not, there was not a vehicle to unload.
I don’t know where – when you say the number of the vehicle coming back to depot diminished, generally speaking, yes. But after 5.30 – before 5.30, there were very, very few because – we around that time, StarTrack tried to get less customers. But the main customer still remained with StarTrack. After 5.30 until 7 o'clock, that time period, most of the trucks still coming back because StarTrack still maintains its business. When those trucks coming back, I was the only person handle those trucks.
…
Well, Mr Pucci, you’ve heard what Mr Li had to say about that. Do you agree with the way in which Mr Li has described the operations during that period, particularly between 5.30 and 7?---I would say it was incorrect, it that he had any additional workload. It was greatly reduced.
[15] See transcript of proceedings dated 8 August 2023 at p 122 line 6 – p 123 line 12.
While Mr Li and Mr Pucci gave different accounts of the experience of the freight handler during the period when COVID-19 measures were in place, those accounts are not necessarily irreconcilable. I accept the evidence of Mr Li that on two or three occasions he observed that while he was performing work on a line on his own, there were two workers assigned to a different line and that they were handling a different quantity of pallets to him. However, I also accept the evidence of Mr Pucci that throughout this period the volume of work coming through the Tullamarine site had diminished significantly so that by and large, workers assigned to the lines (and this included Mr Li specifically) were performing work that was no more physically demanding then was the case before the direction was issued.
October 2020 – complaint about height of pallets – seventh employment complaint - seventh workplace right
In October 2020, Mr Li raised concerns about the height of a particular stack of pallets with Mr McMullan.
October 2020 and following – the response to the seventh employment complaint - ninth adverse action
Mr Li, in his statement of claim, characterised the response by StarTrack to the seventh employment complaint as involving a failure, refusal or neglect to take appropriate action to address the issues in accordance with occupational health and safety obligations.
However, he accepted that following his complaint, StarTrack had taken the following steps:
First, Mr McMullan had taken a photo of Mr Li and a co-worker standing next to the offending pallets.[16]
[16] Annexure “IP-2” to the Pucci affidavit.
Second, Mr McMullan had escalated the issue to Raymond Steer (Service Quality Lead VIC/TAS – Operations), so that it could be raised with the relevant customers for rectification. The same day, Mr Steer sent an email to the relevant account manager which read:[17]
Hi Natalie
Please see below pictures raised as a safety concern due to the excessive height Leader Computers are building their pallets. Can you please reach out to them and have all mixed pallets built to no higher than 1800mm (1.8 metres). Please advise if any issues.
Hayden please have team report back if no change to presentation of freight.
[17] Annexure “IP-2” to the Pucci affidavit.
Mr Li did not agree that by taking these steps StarTrack had necessarily solved the problem he had identified.
October 2020 – unreasonable work direction - tenth adverse action
It was Mr Li’s evidence that on a date in October 2020 and in circumstances where he had supplied a medical certificate from his general practitioner that requested that he be able to take his dinner break at 7 pm to ameliorate gastritis symptoms that Mr Pucci had instead directed him to take a dinner break at 9 pm.
Mr Pucci deposed to these events as follows:[18]
Mr Li says I required him to take his meal break unreasonably late. I deny this. Mr Li’s shift was rostered to begin at 17.00 and end at 22.30. Mr Li’s shift was during the evening peak period at the facility. As a result of the high volumes during that shift, employees are required to take staggered breaks to minimise the disruption to the facility’s operations and to meet StarTrack’s operational requirements. Mr Li’s break was scheduled for 20.30 to 21.00.
Mr Li contacted me at approximately 19.00 hours (two hours into his shift) advising that he needed to take his break at 19.30. I advised Mr Li that there was a break available at 20.00 if he wished to take his break at that time. However, Mr Li insisted that he take his break at 19.30. Due to the complexity of the evening peak period and the short period of notice provided by Mr Li, I was unable to grant Mr Li’s late request to take his break at 19.30. In the end, Mr Li took his break at 20.00.
I explained to Mr Li that part of the reason I was not able to grant his late request for a break at 19.30 was because I had to schedule the breaks so that the earlier breaks times were available to the staff who started their shift earlier in order to meet operational and legal requirements….
[18] Pucci affidavit at [26]-[28]
While it would be unfair to Mr Li to characterise his answers during cross-examination as involving a wholesale adoption of the evidence of Mr Pucci set out above, it is the case that he largely agreed with the substance of this account, save for insisting that his request for a 7.30 pm break had come earlier in the shift.
I find that the events unfolded in the manner described by Mr Pucci.
October 2020 – complaint about co-worker’s operation of forklift – eighth employment complaint - eighth workplace right
In his statement of claim, Mr Li alleged that he had made a verbal complaint to supervisor, Matthew Rees, regarding the unsafe use of the forklift by a colleague. However, Mr Li did not depose to any complaint in his affidavit. Instead, he annexed the following chain of emails beginning with his email sent on 29 October 2020 to Frank Castrucci (Safety Advisor VIC/TAS) raising concerns about an incident involving unsafe use of forklifts by a colleague the prior evening. The email read, as to the relevant part:[19]
Hi, Frank,
…
Last night, when I was unloading several pallets, my colleague, who is a forklift driver, lost her patience and kept on honking the horn of her forklift to me, demanding I finish one pallet first. As a matter of fact, one contractor worker from Zoom was doing that pallet, because that pallet had a lot of heavy cartons, that contractor walked away from that pallet and left the pallet unfinished for quite a while. My forklift driver colleague should know I am not responsible for other people’s mistakes. Once she finds a contractor deliberately avoid doing hard work, she should report to the company directly rather than venting her anger to someone else. The reason she picked on me, I think, is due to the our different opions about the work safety regulations. And before that accident, my colleague and I raised our safety concerns with forklift drivers including her about the height of pallets and danger the falling carton can pose to our freight handlers. She might think our complaints made her work more difficult.
As forklift driver and freight handlers, we have a common goal to achieve at Startrack; to finish our work as efficiently as possible and deliver the best customer services. However, the different opinions about how to work safely might separate us and erode the solidarity among our workers. If you can come and help us address the work safety and occupational health issue by giving a clear guidance, that would be great.
Regards,
Hang
[19] Annexure “HL-9” to the Li affidavit.
Mr Castrucci then responded to Mr Li with an email sent later the same day that read:[20]
[20] Annexure “HL-9” to the Li affidavit.
Hi Hang,
Thank you for raising such concerns and issues.
We are and have been in peak circumstances for a while and the business has a commitment to ensure that they are doing everything possible to remain safe which includes toolboxes, safety alerts etc.
I will be able to come over Thursday 5/11 and meet with you and encourage you to do the following until our meeting:
If there are issues such as you have outlined below, are you:
•Reporting the incidents to the supervisor and ensure they are entered into onesafe
•Trying to resolve the issues at ground level with HSR and supervisor
•Discuss and offer any recommendations to increase the safety
•I look forward to discuss the above next Thursday
Cheers
The evidence of StarTrack then essentially closed the loop. It revealed that Mr Cassar had forwarded Mr Li’s email to Mr McMullan on 29 October 2020 and that Mr McMullan had met with Mr Li that same day to go through his concerns. In his email to Mr Cassar and Mr Castrucci, Mr McMullan observed about Mr Li that “at this stage he is happy not to have an official meeting next week as he thought the conversation we had tonight was adequate.”[21]
[21] Annexure “DC-2” to the Cassar affidavit.
In cross examination, Mr Li accepted that events had unfolded in the manner described by StarTrack, including that at the time of his meeting with Mr McMullan, Mr Li had considered the response of StarTrack to be adequate. Mr Li nonetheless alleges that the response (or lack thereof) by StarTrack to the eight-employment complaint was a form of adverse action in that it failed to address Mr Li’s concerns in accordance with occupational health and safety obligations (eleventh adverse action).
Pleaded workplace rights relating to events occurring after Mr Li ceased attending work
As noted earlier, the last day that Mr Li attended for work was 11 January 2021 and his employment was terminated on 23 September 2021.
By reason of these facts, StarTrack invited the Court to view the chronology as essentially operating across two separate tracks or timelines, with the implication (as I understood it) that events that occurred during the first period (while Mr Li was present in the workplace) were unlikely to have infected the second period (when Mr Li was absent from work) and which culminated in Mr Li’s dismissal.
While I accept that there is a logical case for distinguishing between these periods of time, the workplace rights alleged by Mr Li were not pleaded in a way that confined their operation to adverse actions that occurred co-extensively with their exercise. Instead, it was Mr Li’s case that he was dismissed for reasons that included his exercise of a succession of workplace rights across a period that transcended his active and inactive relationship with the workplace. It is necessary therefore to identify these alleged workplace rights along the same continuum.
24 March 2021 – complaint to Comcare – ninth employment complaint (ninth workplace right)
On 24 March 2021, Mr Li sent an email to Jeanette Sdrinis of Comcare which bore the subject: Comcare: report breach of Covid-2019 safety procedures at Startrack Tullamarine Depot (Hang LI whistleblower). The email forwarded a copy of the sixth employment complaint (refer [60] above) and said:[22]
Hi, Jeanette,
This is the letter I talked about, because our managers at the time didn’t come to office to work after two employees were confirmed positive for covid 19 on site, therefore they didn’t show too much interests in stopping the virus in the workplace and protecting the health of workers. As you can see I reported this breach to startrack and senior HR manager on site, but didn’t get any feedback from startrack HR after that.
I am convinced that the whole system at Startrack is not working although there are regulations and rules to address the work safe issue. That is the reason I chose to contact Federal agency to address this issue. If necessary, I can stand out as a witness to talk in front of media, I believe with the supervision of your agency and influence of media, we can make australia post a safe workplace for all its employees.
[22] Annexure “HL-17” to the Li affidavit.
It is the case that between March and July 2021, Comcare investigated Mr Li’s complaint, which over time had expanded to comprehend each of the matters raised by Mr Li with StarTrack and referred to in the preceding paragraphs. Comcare produced a comprehensive report which on a reductive analysis, largely exonerated StarTrack as far as complaints (and mechanisms for handling complaints) of discrimination, bullying, harassment, reprisals, victimisation (including protections for whistleblowers) were concerned but identified areas of non-compliance and multiple corrective actions around StarTrack’s management of risks associated with unloading pallets/freight at the workplace.[23]These last findings and recommendations were of particular interest to Mr Li.
[23] Annexure “AM-8” to the Moulton affidavit
7 April 2021 – complaint to the Australian Human Rights Commission – tenth workplace right
On 7 April 2021 Mr Li made a complaint to the AHRC in which he made allegations of discrimination in his employment with StarTrack on the basis of race. Mr Li later discontinued this application.
18 April 2021 – tenth employment complaint – eleventh workplace right
From 18 April 2021 and following, Mr Li made complaints in relation to StarTrack and APC regarding: (i) the fairness and objectivity of the procedures that APC used to handle complaints by whistleblowers; and (ii) that he had been punished by StarTrack for having made complaints. The complaints were made in the following forums:
First, in an email sent by Mr Li to the APC [email protected] email address on 18 April 2021.
Second, in an email sent by Mr Li to Mr Dean Hose (Employee Relations, APC) on 29 April 2021, attaching a letter dated 1 June 2020.
Third, in an email sent by Mr Li to, among others, Susan Davies, the Executive General Manager, People and Culture, APC.
Fourth, in an email sent by Mr Li to, among others, Ms Davies and Mr Hose on 8 May 2021.
23 April 2021 – stop bullying application – twelfth workplace right
On 23 April 2021 Mr Li lodged a form F72 – application for an order to stop bullying – in the Fair Work Commission in which he made allegations that he had been bullied in his employment with StarTrack (Stop Bullying Application).
10 May 2021 – application to VCAT – thirteenth workplace right
On 10 May 2021, Mr Li made an application to the Victorian Civil and Administrative Tribunal in which he alleged, amongst other things, discrimination in his employment with StarTrack (VCAT Application).
9 or 10 June 2021 – correspondence sent to Mr Moulton – employment complaint – fourteenth workplace right
Mr Li alleges in his statement of claim that on around 10 June 2021, he sent an email to Mr Moulton which, among other things:
(a)attached a letter dated 10 June 2021 from his treating physiotherapist, Mr Andrew Seng, confirming he was suffering from neck pain and advising he remain absent from work for a further three months; and
(b)making an inquiry as to the legality of the demand for medical certificates by the Tullamarine Site managers, particularly Mr Cassar, in circumstances where the Stop Bullying Application and VCAT Application were ongoing, and that it was more appropriate for those documents to be requested by APC or head office.
StarTrack, in its amended response, admits that Mr Li sent an email on 9 June 2021 in which he inquired about the appropriateness of requests for medical evidence by Mr Cassar but otherwise denies the allegation, including that Mr Li supplied a medical certificate from his physiotherapist or that his correspondence was sent to Mr Moulton. On this last point, it was the evidence of Mr Moulton that he did not recall ever seeing a copy of this email and had he done so (because it purported to attach a letter from Mr Li’s treating physiotherapist) he would have immediately forwarded it on to Human Resources. Mr Moulton deposed to having conducted a search for the email but that this had not proved fruitful.[24]
[24][47] of the Moulton affidavit.
Mr Li deposed in his affidavit that he had been unable to locate a copy of his email to Mr Moulton. This position had not altered at the time of trial. However, when given the opportunity to explain why this might be so, Mr Li gave the following evidence:[25]
I sent this email, this letter, to other people including the media, but at Fair Work Commission – but at that time, Adam Moulton said I cannot send emails to people who are not related to this matter. He asked me, through Fair Work, that I should delete all those emails that are not relevant to this case – sorry, I need to correct myself. I was told to delete the emails sent to those people who are not related to this matter. It was after I sent this email that he raised his objection in Fair Work. After, Fair Work instructed me to delete it, and I did delete it.
[25] See transcript of proceedings dated 7 August 2023 at p 55 lines 1 – 7.
I do not accept the explanation offered belatedly by Mr Li as to why he could not locate the email he had allegedly sent to Mr Moulton. Apart from having an air of unreality about it, this was an explanation that should have been given when Mr Li first gave sworn evidence on the topic. I find instead that while Mr Li most likely planned on sending an email and attached letter from his physiotherapist to Mr Moulton, whether through inadvertence or oversight, this did not occur.
Additional events prior to the termination of Mr Li’s employment
The reference in the preceding paragraphs to medical certificates is a reminder that from 11 January 2021 to 23 September 2021, Mr Li was absent from the workplace due to health issues.
It is agreed or was not controversial that across this period the following events (related to Mr Li’s absence) occurred.
On 6 February 2021, Mr Li sent Mr Moulton an email informing him (Mr Moulton) that he was suffering vision loss and was taking leave.
Between February 2021 to March 2021, Mr Li and Mr Moulton exchanged the following emails.[26]
[26] Annexure “AM-9” to the Moulton affidavit.
On 6 March 2021, an email from Mr Li to Mr Moulton that read:
Dear Adam Moulton,
Thank you for all the support Startrack Employee Relations has given to me during my absence of duty resulting from my medical conditions.
After investigations by St Vincent and Royal Victoria Eye and Ear Hospital (RVEEH), I was told that I didn’t have stroke or mini stroke risks and can go back to work. The eye doctors at RVEEH believe that my conditions could be either intermittent closed-angle glaucoma or ocular migraine. Please refer to the attached letter for your information. When my GP gave me a clearance on the 4 March, he didn’t receive this letter at his clinic. The plan is that I will receive an eye surgery in two week’s time in order to address the issue of high eye pressure. If the symptoms persist, neurologists will give me some treatments for capillaries in the brain. The triggers for my above conditions are some kinds of food such as cheese, and stress. Currently, I work as a fright handler at Tullamarine Southern Depot. During my normal 6.5 hour shift, I have been engaged in heavy lifting (up to 35-40 kg) and from time to time have been hit by the falling boxes when I unloaded high pallets. I have been working very hard and earned positive responses from co-workers and supervisors. However, I already reached my 50s and I need to avoid the triggers such as stress to keep myself fit. Since last year, I have been actively looking for a chance to be transferred to a new position like one at international freight division to reduce the level of stress I have to handle in day-to-day work. I learned from the supervisor at sharps road that they need new recruiters in March 2021. I am very happy to work in a new environment which doesn’t require too much physical exertion, even I have to take a casual position with Startrack. Because at this stage, my major concern is my health. If Startrack can help me to make work arrangements, I will be very grateful and will make more efforts to the company in the new role.
Thank you for your time.
Yours sincerely,
Hang LI
On 8 March 2021, an email was sent from Mr Moulton to Mr Li that read:
Dear Hang,
Thank you for your email.
You will need to provide this information to your manager in accordance with the usual process for managing absences from work.
In terms of your request for consideration for other roles, given the medical issues you have raised below it is likely that we would need to obtain an independent assess regarding your capacity to perform the requirements of any such role and whether there are any risks to your health and safety (or to the health and safety of others). We will also need this information if you are seeking to return to your current role.
This process would be managed by your manager in conjunction with MyHR.
Regards,
Adam
Then, later the same day, the following email from Mr Li to Mr Moulton:
Dear Adam,
Thank you for your response.
In your letter, you mention that I need to get an independent assessment regarding my capacity to perform the inherent requirements of the role at Startrack. I will have an assessment done at St Vincent Hospital on March 16 and my eye surgery is scheduled on 18 March, does that mean I need to get official assessment by St Vincent and Eye surgeon clinic? Please keep me informed.
Regards,
Hang
On 9 March 2021 the following email from Mr Moulton to Mr Li:
Dear Hang,
We will need to write to your treating specialists and ask them a range of questions about your ability to safely perform the inherent requirements of your position, any restrictions and likely recovery time. I will ask MyHR to commence this process. Can you please provide me with the contact details for your treating professionals?
Thanks,
Adam
It would appear then that on the same day, Mr Li provided, by email, precisely the information required by Mr Moulton.
There is a lacuna in the evidence as to what exactly occurred after this exchange of emails between Mr Li and Mr Moulton. It would appear that on 10 March 2021, Mr Moulton requested that a MyHR case be opened in relation to Mr Li and he received advice that this had already occurred and that a letter had been sent to Mr Li’s manager requesting information from Mr Li’s treating practitioners around his capacity to return to work.[27]
[27] Moulton affidavit at [46] and annexure “AM-10”.
While there is no evidence of such a letter being sent, it would appear that the manager referred to was Mr Cassar and that he assumed responsibility for managing Mr Li’s absence, in consultation with Craig Palmer from Human Resources (MyHR) and Mr Moulton.
It is agreed and/or was resolved by my earlier finding at [105], that Mr Li provided evidence to support his absence on medical grounds that comprehended the period 11 January 2021 up to and including 21 April 2021. The last document provided was a certificate of capacity signed by Dr Steven Qinqwu Liu dated 23 March 2021 for the period of 23 March 2021 to 21 April 2021 and which identified Mr Li as suffering a “work related injury/condition (VWA claim)” described as “right knee pain due to injury at work”.[28]
[28] Annexure “HL-14” to the Li affidavit.
Thereafter, StarTrack sent the following correspondence to Mr Li.
On 2 June 2021, Mr Li’s supervisor, Adam Larter, sent an email asking him to provide medical evidence in the form of a medical certificate to explain his absence from work.[29]
[29] Annexure “DC-4” to the Cassar affidavit.
On 7 June 2021, Mr Cassar sent Mr Li an email requesting copies of all medical certificates from 22 April 2021 onwards supporting his absences from work and noting that without supporting evidence, Mr Li’s absence would be deemed as unauthorised leave.[30]
[30] Annexure “DC-5” to the Cassar affidavit.
On 10 August 2021, Mr Cassar sent a letter to Mr Li which, curiously, was addressed to him c/- Star Track Tullamarine 45-55 Annandale Rd, Tullamarine, despite Mr Li at this time having been absent from the workplace for almost seven months.[31] Mr Li disclaimed any knowledge of the letter and questioned, quite reasonably, why it had been sent to this corporate address rather than to his home address. StarTrack, in my opinion, did not provide a satisfactory explanation as to why this had occurred.
[31] Annexure “DC-6” to the Cassar affidavit.
Although StarTrack belatedly produced evidence that the same correspondence had been sent to Mr Li by email on 10 August 2021,[32] Mr Li said that he had no recollection of the letter having been sent and observed that the person who sent the letter (Mr Cassar) was not from the HR department and that on the day in question he had been attending a Fair Work hearing. I accept that although the email was most likely sent, it escaped Mr Li’s attention for the reasons he mentioned.
[32] Exhibit R1.
The letter, amongst other things, contained a request to Mr Li that he obtain a response from his treating practitioner to a set of questions designed to address the capacity of Mr Li to perform the inherent requirements of the role of freight handler. The letter invited a response within 21 business days.
On 16 September 2021, Mr Ellem, State Manager, Operations (Victoria and Tasmania) who by this stage had assumed responsibility for the management of Mr Li’s absence from work, arranged for a letter to be sent to Mr Li which, after restating matters referred to in the letter of 10 August 2021, continued:[33]
[33] Annexure “JE-5” to the Ellem affidavit.
As of 16 September 2021, you have not contacted your manager or provided the information requested to your Manager.
As noted above, you are currently unable to perform the inherent requirements of your employment and have been unable to do so for an extended period of time. As such, if you do not provide the information requested in this letter within 21 business days from the date of this letter, StarTrack will make a decision about your continued employment based on the information currently available to it.
Hang, the latest medical information that we have available indicates that you cannot perform the inherent requirements of your employment as a Freight Handler. As such, StarTrack is now considering terminating your employment due to your inability to perform those requirements over an extended period of time, and the fact there is no evidence to indicate that you will be able to safely perform those requirements in the foreseeable future.
Additionally, I also note that you have failed to provide any medical evidence to support your absence since 22 April 2021. This conduct is in direct violation of company policies and procedures and has failed to meet the appropriate standards of workplace behaviour. Specifically, I have formed a preliminary view that you have breached the following clauses from Our Ethics:
It is your responsibility to:
•comply with all our policies and procedures – along with all of the laws, industrial awards and agreements that apply to your work [refer Our Ethics, page 10, Work practices and performance, General requirements, ethical standard 3.1.1 a)]
If you’re an employee of the Australia Post Group, you must also:
•attend work reliably – and work the hours outlined for your role [refer Our Ethics, page 10, Work practices and performance, General requirements, ethical standard 3.1.2 a)]
•use the correct procedures to let us know if you can’t attend work, or if you’ll be absent for any period of time during work [refer Our Ethics, page 10, Work practices and performance, General requirements, ethical standard 3.1.2 b)]
•follow all reasonable and lawful directions from authorised persons [refer Our Ethics, page 10, Work practices and performance, General requirements, ethical standard 3.1.2 c)]
However, before making a final decision on your continued employment you shall be afforded an opportunity to provide StarTrack with any additional information as to why your employment should not be terminated. You are invited to attend a meeting with me on Tuesday 21st September at 10 am, in the front office building of Startrack 45-66 Annandale Rd, Tullamarine. Alternatively, if it is not possible to attend in person due to Covid-19 Restrictions this meeting may be held via telephone at the same time as indicated above. Details for telephone are ###.
You may bring a support person with you who may be a family member, friend, co-worker or union representative. It is essential that they act in an appropriate manner and are not disruptive or obstruct the process and must not respond to questions on your behalf. You may also provide a written response if you wish.
If you do not attend this meeting, StarTrack will make a decision on your continued employment based on the information it currently has available, which may include a decision to terminate your employment.
Counselling support is also available to you through the Employee Assistance Program (EAP) by contacting ###.
Yours sincerely,
Jason Ellem
State Operations Manager VIC/TAS
StarTrack Express Pty Limited.
Mr Li acknowledged having received this letter, including because it had been sent to his home address. It is common ground that Mr Li did not attend a meeting on 21 September 2021 or otherwise contact Mr Ellem concerning this communication.
On 23 September 2021, Mr Ellem arranged for the following letter to be sent to Mr Li to his residential address:[34]
[34] Annexure “JE-6” to the Ellem affidavit.
Dear Hang
RE: Confirmation of Dismissal
I refer to the show cause letter issued to you on 16 September 2021 and to the subsequent meeting you were invited to attend on 21 September 2021 to discuss your response. The meeting was scheduled to provide you with an opportunity to respond to the proposed termination of your employment for the reasons set out in the show cause letter. In summary the letter referred to the following.
On 10 August 2021 Darren Cassar sent you a letter requesting you to provide additional medical information in relation to your current medical condition and your inability to perform the inherent requirements of your role as Freight Handler since 12 January 2021. This letter also asked you to provide valid medical evidence to support your absence since 22 April 2021.
You were asked to provide the letter to your Treating Practitioner to complete and return to your Manager within 21 business days of the date of the letter, therefore by 8 September 2021. You were informed that if you did not provide this information within the required time, StarTrack would make a decision about your continued employment based on the information currently available.
As of 16 September 2021, you had not contacted your manager or provided the information requested to your Manager.
Hang, the latest medical information that we have available indicates that you cannot perform the inherent requirements of your employment as a Freight Handler, and we do not have any evidence as to when or if you will be able to safely perform those inherent requirements.
Additionally, I also note that you have failed to provide any medical evidence to support your absence since 22 April 2021.
Before making a final decision on your continued employment you were given the opportunity, as part of the show cause letter, to provide StarTrack with any additional information as to why your employment should not be terminated.
As of 23 September 2021, you have not contacted me or anyone within the business in any form to address this matter. You chose not to attend the scheduled meeting in person or by phone and did not notify me of your inability to attend the meeting at the scheduled time.
As such, I have proceeded to make a decision about your ongoing employment based on the information available to me. After considering the available information, I have concluded that you are unable to safely perform the inherent requirements of your role.
Additionally, I note that your conduct in failing to provide medical certificates to support your ongoing absence (including your failure to provide those after being requested to do so) is in direct violation of company policies and procedures and has failed to meet the appropriate standards of workplace behaviour. Specifically, I have formed a preliminary view that you have breached the following clauses from Our Ethics:
It is your responsibility to:
•comply with all our policies and procedures – along with all of the laws, industrial awards and agreements that apply to your work [refer Our Ethics, page 10, Work practices and performance, General requirements, ethical standard 3.1.1 a)]
If you’re an employee of the Australia Post Group, you must also:
•attend work reliably – and work the hours outlined for your role [refer Our Ethics, page 10, Work practices and performance, General requirements, ethical standard 3.1.2 a)]
•use the correct procedures to let us know if you can’t attend work, or if you’ll be absent for any period of time during work [refer Our Ethics, page 10, Work practices and performance, General requirements, ethical standard 3.1.2 b)]
•follow all reasonable and lawful directions from authorised persons [refer Our Ethics, page 10, Work practices and performance, General requirements, ethical standard 3.1.2 c)]
As you have chosen not to provide the business with any further information as to why your employment should not be terminated I have made the decision to terminate your employment with StarTrack due to your inability to safely perform the inherent requirements of your role. The termination of your employment is effective from the date of this letter.
Furthermore, I separately consider that your conduct in failing to provide medical certificates as described above after being asked to do so also warrants the termination of your employment.
You will receive a payment in lieu of your notice period, which along with any outstanding entitlements will be processed and paid at the earliest opportunity.
Any questions or queries regarding this matter are to be directed to myself. Please return all company issued equipment and uniform immediately.
Regards
Jason Ellem
State Manager Operations VIC/TAS
StarTrack Express Pty Limited
Mr Li, quite reasonably, agreed in cross-examination with the proposition put to him that he had been off work for an extended period and that for part of that period, he had not produced any evidence that he had reasons to be off work. He also accepted that he had produced no evidence about his capacity to return to work or to perform the inherent requirements of his position.[35]
[35] Transcript of proceedings dated 7 August 2023 p 52 line 35 – p 53 line 2.
While it is difficult to understand why Mr Li did not take these steps, and it is not a matter that I am required to resolve in this proceeding, his evidence in cross-examination did suggest that part of the explanation resides in the fact that for at least part of the period that Mr Li was absent from work he was prosecuting and therefore focused on, his Stop Bullying application and that he maintained a belief that this proceeding was the forum through which all issues (including his absence) could and should be ventilated.
THE LEGISLATIVE SCHEME
Chapter 3, Part 3-1 of the FW Act contains what are referred to as “General Protections” provisions. This proceeding is concerned with a category of General Protections that appear in Division 3 (Workplace Rights) and a category of “Other Protections” that appear in Division 5.
Relevant to the first category are the following:
340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).
341 Meaning of workplace right
(1)A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee – in relation to his or her employment.
342 Adverse action
The table in s 342(1) sets out “circumstances in which a person takes adverse action against another person” (original emphasis). Item 1 in that table provides that adverse action is taken by an employer against an employee if the employer dismisses him or her, injures him or her in his or her employment, alters his or her position to his or her prejudice or discriminates between him or her and other employees.
Relevant to the “other protections” category are the following:
351 Discrimination
(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family violence, pregnancy, religion, political opinion, national extraction or social origin.
Note: this subsection is a civil remedy provision (see Part 4-1).
352 Temporary absence – illness or injury
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Note: this subsection is a civil remedy provision (see Part 4-1).
Then, in Division 7 are what are described as a set of “ancillary rules” that operate (as applicable) on the substantive provisions appearing in Part 3-1. Relevant to these proceedings are:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
361 Reason for action to be presumed unless proved otherwise
(1)If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason, or with that intent, unless the person proves otherwise.
LEGAL PRINCIPLES
In Han v St Basil’s Homes [2023] FCA 1010 at [14] to [23], Rares J provided a cogent synthesis of the legal principles that have application to cases of this kind and which I respectfully adopt:
14. In order to engage the presumption in s 361(1), an applicant must plead in the originating application, statement of claim or some other document the particular reason or intention for which he or she alleges that the respondent took the adverse action complained of in the proceeding. That pleading must make clear what the case is about and include the identification of that particular proscribed reason or intention: Australian Federation of Air Pilots v Regional Express Holdings Ltd [2021] FCAFC 226; (2021) 290 FCR 239 at 282 [140] per Bromberg, Kerr and Wheelahan JJ.
15.In order to be a workplace right within the meaning of s 341(1)(c), an employee must have the ability, founded on a source of entitlement (whether instrumental or otherwise), to make a complaint or inquiry in relation to his or her employment: Alam v National Australia Bank Ltd [2021] FCAFC 178; (2021) 288 FCR 301 at 331-332 [97] per White, O’Callaghan and Colvin JJ applying (at 288 FCR 325 [74]-[76]) Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534; (2017) 275 IR 285 at 298 [33] per Collier J as approved in Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16; (2019) 268 FCR 46 at 56 [28] per Greenwood, Logan and Derrington JJ.
16. The central issue under Pt 3-1 of the Fair Work Act in the determination of a claim that a person has taken adverse action against another person in contravention of ss 340(1) or 351(1) is a factual one that must be evaluated in the matrix that the Parliament created through ss 360 and 361. The factual question requires the Court to ascertain, having regard to the rebuttable presumptions created by ss 360 and 361, what was the decision-maker’s substantial and operative reason for taking or engaging in the action alleged to be adverse: see Rumble v The Partnership (t/as HWL Ebsworth Lawyers) [2020] FCAFC 37; (2020) 275 FCR 423 at 430-432 [30]-[39] per Rares and Katzmann JJ and their analysis of Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 23 CLR 243; see also Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; (2014) 246 IR 441 at 447-448 [32] per Tracey and Buchanan JJ. In other words, the factual enquiry must answer the question “why was the adverse action taken?”. If the Court’s answer is a finding that the decision-maker’s reasons for taking that adverse action included a reason proscribed by ss 340(1)(a) or 351(1), then the applicant will have established that the other person, in taking the adverse action, contravened the relevant provision.
17.The effect of ss 360 and 361 is that the person alleged to have taken adverse action under Pt 3-1 of the Act has the onus of proving that the pleaded proscribed reason or intention for taking the action did not form the, or a, substantial and operative reason or intention of each of the decision-maker(s) or other individual(s) involved in the decision-maker(s) coming to have the relevant impugned state of mind in doing so: Qantas Airways Ltd v Transport Workers’ Union of Australia (2022) 292 FCR 34 at 86-87 [174], [177] per Bromberg, Rangiah and Bromwich JJ. Their Honours also held, in the context of considering the position where there is more than one decision-maker or individual involved whose reasons for taking the adverse action must be evaluated (at 101 [230]):
It must be kept steadily in mind that what is required is a causal and thus factual inquiry into all of the substantial and operative reasons for a decision being made. It is necessarily fact and circumstance specific, potentially with a multitude of such reasons being in play. In the field of causation, the question of fact as to whether something is a cause (or may have been a cause so as to trigger the presumption in s 361(1)), is required to be ascertained “by reference to common sense and experience and one into which considerations of policy and value judgments necessarily enter”: see Minister for the Environment v Sharma (2022) 291 FCR 311 per Allsop CJ at [305], citing March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 per Mason CJ (with whom Toohey J and Gaudron J agreed).
18. Where more than one person is involved in the taking of action, including the making of a decision, it is necessary to consider and evaluate the role that each played in that action or decision and whether that individual had the, or a substantial and operative reason for the taking of the adverse action that, by force of s 739(2), would be the, or a, proscribed reason because of which that person or another person involved took that action.
19. The reason or intention for which a person takes adverse action for the purpose of ss 360 and 361 of the Act need not involve the person having an accurate appreciation of the legal nature of the action: Esso Australia Pty Ltd v Australian Workers’ Union [2017] HCA 54; (2017) 263 CLR 551 at 585-586 [61] per Kiefel CJ, Keane, Nettle and Edelman JJ. They explained (relying on what Gleeson CJ had said in Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; (2004) 221 CLR 309 at 330-331 [26] that it is sufficient to establish the person’s intention or purpose by showing that he or she intended to take the particular action ….with actual knowledge of the circumstances that, and engaged in that conduct because, relevantly, the employee had exercised the workplace right in issue or the conduct discriminated against him or her because of his or her race (or one or more other reasons or characterisations proscribed in s 351). But it is not relevant to establish liability that a person acts under a mistake of law as to whether an adverse action is lawful.
20.A person involved in a process that leads to the adverse action may be a decision-maker, or person whose state of mind suffices, pursuant to s 793(2), for the purpose of determining whether adverse action was taken for a proscribed reason, even though the ultimate act, such as termination, is taken or conveyed by another decision-maker: see Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215; (2019) 273 FCR 332 at 347-348 [90]-[91] per Greenwood, Besanko and Rangiah JJ. That is because, as Lee, Madgwick and Gyles JJ held in Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251 at 260 [37], where a decision-maker takes adverse action in reliance on another individual’s input, such as his or her report or assessment of a matter that the ultimate decision-maker took into account, and the individual was influenced in making the report or assessment for a reason, or with an intention, proscribed in Pt 3-1 of the Act, such as one in ss 340(1) or 351(1), whether disclosed or undisclosed, the participation in the decision-making of that individual, while he or she acts with the impugned state of mind, will amount to a reason or intention for the taking of the adverse action within the meaning of s 360, even if the decision-maker is not aware that the individual acted because of that proscribed reason.
21.Thus in Kodak 129 IR 251, an employee, Mr Lay, gave a ranking of employees to assist his superiors in determining whether to make particular ranked employees redundant. Mr Lay’s rankings played an indispensable part in the assessment process that his superiors undertook in arriving at the adverse action against Mr Elliot. Lee, Madgwick and Gyles JJ explained that, if Mr Lay was influenced in giving a low assessment for a proscribed reason, first, it was likely that he would have given a different assessment were he not so influenced, secondly, this inevitably would have affected the ranking process for employees based on the assessment, whatever the view of appropriate ranking by others, including one of the company’s directors, involved in the decision to take adverse action, and that, therefore, it “would have been a different assessment process” Their Honours explained (at 260 [37]):
Furthermore, whatever debate there might be about the extent of [the director’s] power or involvement in the decision, his evidence was that he took the Lay/Shannon assessment and worked from there. It follows that if the Lay/Shannon assessment is affected (or infected) by either Lay or Shannon having held an undisclosed prohibited reason, then he [scil: the director] would have, in effect, inadvertently adopted it so that its force continued regardless of the lack of any express prohibited reason in the mind of [the director].
22. In Wong v National Australia Bank Ltd [2022] FCAFC 155; (2022) 318 1R 148 at 159 [37], 167-168 [78]-[83], Katzmann, Charlesworth and O’Sullivan JJ applied Kodak 129 IR 251. In that case, an individual provided information to the decision-maker on which the latter proceeded without investigating its reasonableness, truth or accuracy (at 167 [79]). Their Honours said that, first, it is necessary to enquire into whether an individual contributed to the decision-making process culminating in the adverse action to a degree sufficient to warrant an evaluation as to whether he or she acted for a proscribed reason or with a proscribed intent (at 167 [78]). Secondly, where the decision-maker acts on the basis of such information, the state of mind of the individual who supplied it is relevant. They said (at 167 [80]):
an inquiry into the reasons of a corporate entity may require an examination of the states of mind of human actors other than the single individual having the authority to bind the corporation in the relevant act.
23. Depending on the nature and degree of the involvement of the other individual (or individuals) in the decision-maker’s process in arriving at the decision, it may be necessary to assess whether each individual relevantly had a proscribed state of mind, within the meaning of s 793(2), that affected the reason or intention why the decision-maker took the adverse action (at 167-168 [81]-[82]). Their Honours said (at 168 [83]):
it was necessary to inquire into Mr Arnott’s reasons for making the contribution that he did, whether it be described as “significant”, “plainly important”, “major”, “substantial” or “essential”. It is enough to identify that Ms MacLeod proceeded from factual assumptions that were detrimental to Ms Wong and that were principally (although not solely) based on an assumption that Mr Arnott’s assertions were true. Mr Arnott’s motivations were relevant and as such his actions and accompanying state of mind may be attributed to NAB in accordance with s 793 of the [Fair Work Act].
NON-DISMISSAL ADVERSE ACTION
The response did not constitute adverse action.
Eighth, Mr Li characterises the return truck direction as involving an injury to him in his employment and/or an alteration to his position to his prejudice. Mr Li claims that by accepting the direction, he performed increased physical manual labour that would normally be performed by two or three employees and that this compromised his right to a safe working environment.
I have previously found that the net effect of the return truck direction did not result in workers (including Mr Li) being required to perform work that was more physically demanding then was the case before the direction was issued.
In these circumstances, and notwithstanding I have accepted Mr Li’s evidence that on two or three occasions he was handling a larger number of pallets then his colleagues on a different line, the evidence does not support a conclusion that the return work direction had a material adverse effect on his workload above and beyond what would ordinarily have been the position. I am not satisfied therefore that the direction was adverse action of a kind recognised in the FW Act.
Ninth, Mr Li characterises the response by StarTrack to his complaint about oversized pallets as involving an injury to him in his employment and/or an alteration to his position to his prejudice on the basis that it failed to address serious occupational health and safety risks involving falling boxes from high pallets resulting in a deterioration of advantages otherwise enjoyed in his employment.
However, I have earlier made findings that in my view lead to the conclusion that StarTrack took Mr Li’s complaint about oversized pallets seriously and raised the specific incident that had been singled out for attention by Mr Li, with the relevant customer for rectification.
Paradoxically perhaps, the fact that deficiencies in the approach adopted by StarTrack to the management of risks associated with unloading of pallets and freight at the workplace had been identified by Comcare in its report, serves to undermine the contention that the response by StarTrack to Mr Li’s complaint resulted in a deterioration of the advantages he otherwise enjoyed in his employment. To the contrary, it would appear that StarTrack gave Mr Li’s complaint a level of attention that was perhaps absent when it came to the systemic approach to risk management around this issue. This produces the result that its response (which I do not consider is aptly characterised as a “failure”) did not constitute adverse action.
Tenth, Mr Li characterises what has been described as the unreasonable work direction as involving injury to him in his employment, alteration to his position to his prejudice and/or discrimination between him and other employees, on the premise that he was required to perform additional hours outside his contractual hours resulting in a deterioration of advantages otherwise enjoyed in his employment.
However, the case prosecuted at trial did not reflect the above narrative. Instead, reflecting the facts recorded above at [82] to [83], the evidence did not disclose that Mr Li was required to perform additional hours but rather, that on the one occasion he requested to bring forward the time of his meal break, Mr Pucci tried, within the exigencies of the business that Mr Li accepted, to accommodate his request. There was no adverse action within the meaning of the FW Act.
Eleventh, Mr Li characterises the response by StarTrack to his complaint about the operation of a forklift by a work colleague as involving an injury to him in his employment and/or an alteration to his position to his prejudice on the basis that it failed to address serious occupational health and safety risks involving the risk of injury from forklift driving resulting in a deterioration of the advantages otherwise enjoyed in his employment.
At [86] to [88], I recorded findings concerning the steps taken by StarTrack to respond to Mr Li’s specific concerns. I am satisfied and do find that the response provided by StarTrack was appropriate, respectful, and ultimately accepted by Mr Li as adequate. Mr Li has not persuaded me that the response involved any injury to him in his employment or that it materially (or at all) altered his position to his prejudice. It did not constitute adverse action.
Consequence of finding that no non-dismissal adverse action
I have found that none of the eleven non-dismissal actions alleged by Mr Li were “adverse actions” within the meaning of s 342(1) of the FW Act. The consequence of this finding is that:
(a)StarTrack cannot be liable under s 340(1) of the FW Act and the reverse onus under s 361 of the FW Act is not engaged. It is not necessary to determine whether StarTrack engaged in any of the alleged action because of prohibited reasons, namely the exercise of workplace rights;
(b)StarTrack cannot be liable under s 351(1) of the FW Act and the reverse onus under s 361 of the FW Act is not engaged. It is not necessary to determine whether StarTrack engaged in any of the alleged action because of Mr Li’s race and/or national extraction.
I have however turned my mind to the prospect that I am wrong about the characterisation of any of the alleged non-dismissal adverse actions and whether, on that eventuality, Mr Li might have enjoyed success in establishing that any of these actions were taken by StarTrack for prohibited reasons.
As noted earlier, Mr Li pleaded in a rolled-up way that each of the non-dismissal adverse actions were actuated by the combination of workplace rights that had preceded them in time. However, some themes emerged from Mr Li’s affidavit material. In particular, Mr Li was especially animated about a connection between his complaint about smoking in workplace bathrooms and the alleged adverse action that followed. At [17] of his affidavit, for example, he deposed to the strong belief that “the issues that followed in my employment stemmed from my complaints about smoking in the workplace bathrooms. Following my complaints, I believe I was shunned, targeted and belittled by my colleagues and management”.[41]
[41] Mr Li expressed a similar sentiment at [44] and [89]-[90] of his affidavit.
Mr Li also expressed a strong view that he had been victimised because of his “whistle-blower” status. This was a persistent theme throughout his evidence and his communications sent to StarTrack that he relied upon in this proceeding.
As I have alluded to previously, the task of identifying a decision-maker is complicated in relation to those “adverse actions” that essentially allege a failure or refusal to act on the part of StarTrack. However, to the extent that StarTrack did act positively to respond to matters raised by Mr Li or took actions or decisions in respect of which a cognisable decision-maker can be identified, I am unable to discern from those responses or actions anything that would connect them to the workplace rights said by Mr Li to have been exercised across the relevant period (of which there are eight).
Beyond the fact that all of the identifiable decision makers gave sworn evidence that they were not actuated by prohibited reasons when they made decisions or took action that concerned Mr Li, the objective circumstances discernible from the lengthy written responses provided to Mr Li by StarTrack satisfy me that StarTrack would have discharged its onus under s 361 of the FW Act to disprove that any actions or decisions taken were because Mr Li had exercised workplace rights or because of his race or national extraction.
The communications exchanged by StarTrack with Mr Li over the relevant period were uniformly responsive, restrained, and respectful and did not raise even the spectre of unlawful animus.
DISMISSAL AND ADVERSE ACTION
StarTrack accepts that the termination of Mr Li’s employment constitutes adverse action within the meaning of the FW Act.
Accordingly, the question is whether StarTrack has established on the balance of probabilities that the dismissal decision was not taken for a reason, or for reasons, which included the alleged proscribed reasons. This question is to be answered by reference to all the evidence.
As far as the proscribed reasons are concerned, Mr Li asserts a link between each of the 14 workplace rights identified in his pleading and his dismissal.
Identification of the workplace rights
The position of StarTrack with respect to these alleged workplace rights was as follows, noting that in some cases StarTrack’s admission did not indicate complete agreement with the manner in which Mr Li alleged that s 341(1) had been engaged:[42]
[42] For example, StarTrack denied that Mr Li had a role or responsibility to take care for his own health and safety under s 25(1)(a) of the Occupational Health and Safety Act 2004 (Cth) which alleged right was said to be engaged by the First Employment Complaint, the Third Employment Complaint, the Sixth, Seventh, Eighth and Ninth Employment Complaints.
(a)First Employment Complaint – admits;
(b)Second Employment Complaint – admits;
(c)Third Employment Complaint – admits;
(d)Fourth Employment Complaint – admits;
(e)Fifth Employment Complaint – denies;
(f)Sixth Employment Complaint – admits;
(g)Seventh Employment Complaint – admits;
(h)Eight Employment Complaint – denies;
(i)Ninth Employment Complaint – admits;
(j)AHRC Complaint – admits;
(k)Tenth Employment Complaint – admits;
(l)Stop Bullying Application – admits;
(m)VCAT Application – admits;
(n)Employment Inquiry – denies.
It is necessary therefore to determine whether any of the Fifth Employment Complaint, the Eighth Employment Complaint or the Employment Inquiry constituted a workplace right of the kind pleaded by Mr Li, namely, that in all cases they involved the exercise of the right to make a complaint or inquiry in relation to his employment under s 341(1)(c)(ii) of the FW Act.
StarTrack makes submissions directed at the meaning of s 341(1)(c)(ii) that are not controversial. It says that a complaint within the meaning of this provision is a substantive communication which expressly or implicitly conveys a grievance, a finding of fault, or accusation made for the purpose of notifying an employer of the grievance and, where appropriate, enabling the employer to investigate and redress it (referring to Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346 at [29(a) & (d)], [579]-[581] and [624] (Dodds-Streeton J)). Criticism, alone, does not constitute a complaint (referring to National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709 at [189] (Thawley J).
An inquiry within the meaning of s 341(1)(c)(ii) of the FW Act is a communication directed towards an investigation or examination made for the purpose of acquiring knowledge or information (referring to Maric v Ericsson Australia Pty Ltd (2020) 293 IR 442 at [45]). Evaluation of the asserted complaint or inquiry is a matter of substance, not form, determined in light of all the circumstances (Shea at [29(a)], [626]-[627] (Dodds-Streeton J)).
An application of these principles to the disputed workplace rights yields to the following analysis.
As far as the Fifth Employment Complaint is concerned it was constituted by an email sent by Mr Li on 31 May 2020 to the whistleblower email address. I consider that, as a matter of substance, it conveyed a grievance and a finding of fault, about the integrity of the investigation performed by StarTrack management into the Chinese spy comment. However, I am not satisfied that the complaint, so described, was one that Mr Li was able to make in relation to his employment.
Adopting the reasoning of Collier J in Whelan v Cigarette & Gift Warehouse Ltd (2017) 275 IR 285 at [33]-[35] and endorsed by a Full Court in Whelan appeal[43] and more recently upheld by a different Full Court in Alam v National Australia Bank Limited (2021) 288 FCR 629 at [97], I am not persuaded that the complaint communicated by Mr Li was founded on a source of entitlement (such as, for example, Mr Li’s contract of employment), whether instrumental or otherwise. The Fifth Employment Complaint did not involve the exercise of a workplace right.
[43] Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46 at [28].
As far at the Eighth Employment Complaint is concerned, to the extent that it was said to be constituted by the email sent by Mr Li to Mr Castrucci on 29 October 2020, I do not consider it possessed the character of a complaint (or inquiry for that matter). The email contained a request for guidance, falling short of an expression of fault or grievance. It did not involve the exercise of a workplace right.
The Employment Inquiry was not in evidence. Although I accept, based on the description of the email supplied by StarTrack that it involved the communication of an inquiry, absent the identification by Mr Li of a source of entitlement (and none obviously arising) I am not persuaded that this involved the exercise of a workplace right.
Other proscribed reasons
In addition to the eleven extant workplace rights identified at [184] above, Mr Li also alleges that the dismissal adverse action was taken because he possessed the attribute of Asian race and Chinese national extraction and because he had physical disabilities pleaded as the loss of right eyesight; the knee injury and/or the neck injury and mental disabilities pleaded as the insomnia and/or the anxiety.
StarTrack admits Mr Li’s race and national extraction.
StarTrack’s position with respect to each of the physical disabilities is one of non-admission based on a lack of knowledge.
StarTrack denies that Mr Li had either of the pleaded mental disabilities.
StarTrack did not cross-examine Mr Li about his possession of any of the physical or mental disabilities.
Mr Li produced evidence as follows that satisfies me that at different points prior to his dismissal, he had each of the pleaded disabilities:
(a)Loss of right eyesight – the report of the Northern Health Emergency Department dated 12 January 2021;[44] the letter of Dr Daniel Chiu dated 3 March 2021;[45]
(b)The knee injury – the letter of Dr James Chiu dated 25 April 2021;[46] Certificate of Capacity signed by Dr Steven Qingwu Liu dated 23 March 2021; [47]
(c)The neck injury – the letter of physiotherapist Mr Andrew Song dated 10 June 2021;[48]
(d)The insomnia and anxiety– the Centrelink Medical Certificate signed by Dr Judy Chen dated 3 August 2021[49].
[44] Annexure “HL-11” to the Li affidavit.
[45] Annexure “HL-16” to the Li affidavit.
[46] Annexure “HL-7” to the Li affidavit.
[47] Annexure “HL-14” to the Li affidavit.
[48] Annexure “HL-8” to the Li affidavit.
[49] Annexure “HL-15” to the Li affidavit.
Identification of the decision maker
Both ss 341(1) and 351(1) require a causal link between the adverse action and the exercise of the workplace right and the adverse action and the possession of a protected attribute, respectively.
A threshold matter that shapes this inquiry is the identification of the decision-maker or decision-makers.
Bodies corporate, such as StarTrack, by their nature act only via the agency of their human officers. They have no conscience or mind within which a reason or reasons for acting might form. In some cases, corporate conduct is the product of collective decision-making – for example, decisions made at the level of the company’s board of directors or through some other committee of management, formal or otherwise. In others, corporate conduct arises from decisions of single officers exercising powers that are theirs alone to exercise.
In this case, StarTrack submits that Mr Ellem, State Operations Manager, was the relevant (and ultimate) decision-maker for the dismissal decision. StarTrack does not go so far as to proclaim Mr Ellem as the sole decision maker however, insofar as it acknowledges that Mr Moulton provided human resources advice to Mr Ellem, especially in connection with the decision to proceed to a show-cause process.
I did not understand Mr Li to dispute, as a matter of fact, that Mr Ellem made the decision to terminate his employment. Instead, it was his contention – disclosed through cross-examination of Mr Ellem – that he was not authorised to make the decision and/or that the decision was one that should have been made by human resource management.
Mr Ellem however gave forthright, cogent, and plausible evidence that, in his senior role of State Operations Manager, he was the person (or officeholder) charged with responsibility to make the final decision concerning Mr Li’s employment. I accept the submission of StarTrack that he was both authorised to and did, in fact, make the ultimate decision to terminate Mr Li’s employment.
As far as Mr Moulton is concerned, the unchallenged evidence before the Court is that, in around September 2021, Mr Ellem approached him for advice on whether it was appropriate to proceed with a show cause process in respect of Mr Li. Mr Moulton understood from previous discussions with Mr Li’s management team, that Mr Li had been absent from work for an extended period and that attempts to obtain further information from him about his capacity to perform the inherent requirements of his role had been unsuccessful.[50]
[50] Moulton affidavit at [50].
Mr Moulton advised Mr Ellem that he could validly commence a show cause process on the basis that:
(a)Mr Li had been on unauthorised leave since 22 April 2021;
(b)Mr Li had not provided medical evidence to demonstrate that he was fit for work; and
(c)Mr Li had ignored multiple requests and directions to provide such evidence.
While it could arguably be said that the show cause process might not have been commenced “but for” the advice provided by Mr Moulton and in turn, the termination would not have then followed, this does not mean, necessarily, that Mr Moulton was a participant in the decision ultimately taken by Mr Ellem to dismiss Mr Li. The search in cases of this kind is not for the action that causatively precipitated the dismissal but instead directs attention to the reason (or reasons) that the decision ultimately was taken.
While the show cause hearing was a step antecedent to the termination of Mr Li’s employment, the unchallenged evidence of Mr Ellem was that in circumstances where, as at 8 September 2021, Mr Li had been absent from work for more than six months continuously and had not provided any medical evidence covering the period 22 April 2021 onward, despite numerous requests from StarTrack and where the available medical evidence indicated that Mr Li could not safely perform the inherent requirements of his role, he considered it appropriate to commence a show cause process. It was against this background that Mr Ellem sought advice from Mr Moulton as to whether it was appropriate to give effect to this proposal. Mr Moulton told Mr Ellem that he did not see any issues with proceeding with the show cause process.[51]
[51] Ellem affidavit at [17]
In these circumstances, I do not consider that the contribution of Mr Moulton was “significant”, “plainly important”, “major”, “substantial” or “essential”[52]. I am satisfied that the search for StarTrack’s reasons for dismissing Mr Li, insofar as they involve the interrogation of a person’s state of mind, should be limited to that of Mr Ellem.
[52] See Wong v National Australia Bank Limited (2022) 318 IR 14 at [83].
StarTrack’s asserted reasons
The evidence of Mr Ellem was that the reasons for his decision to terminate Mr Li’s employment were:[53]
(a)Mr Li’s failure to attend work as required by his employment contract without providing a satisfactory explanation;
(b)Mr Li’s failure to comply with applicable policies and procedures;
(c)Mr Li’s failure to respond to the show cause letter or attend a meeting to discuss StarTrack’s proposal to terminate his employment; and
(d)The fact that Mr Ellem was not satisfied, on the evidence available, that Mr Li could perform the inherent requirements of his role.
[53] Ellem affidavit at [23]
Although Mr Li did not challenge these reasons directly or put to Mr Ellem that his decision was actuated by one or more of the proscribed reasons, he did suggest to Mr Ellem that StarTrack had maliciously pursued a termination process to prevent or frustrate him from submitting and/or having assessed a Comcare (workcover) claim. Although this was not part of Mr Li’s pleaded case, Mr Ellem denied that this was a matter that informed his decision-making.
Mr Li also pursued a line of questioning to the effect that StarTrack had not followed proper process in the management of his absence and termination. However, Mr Ellem was unmovable in his evidence that the approach taken in Mr Li’s case was orthodox, in that Mr Li’s line manager (Mr Cassar) was initially involved in sending him communications (guided by MyHR) and that Mr Ellem had stepped in towards the end of the process although with a general appreciation as to the efforts made to date to communicate with and obtain information from Mr Li.
Has StarTrack rebutted the statutory presumption?
For the reasons which follow, I accept that StarTrack has discharged its onus under s 361 of the FW Act in proving that the decision to terminate Mr Li’s employment was not for any of the proscribed reasons (workplace rights and protected attributes).
The reasons identified by Mr Ellem for his decision to dismiss Mr Li found corroboration in the letter of termination sent to Mr Li on 23 September 2021 and partial corroboration (in the sense that the show cause meeting could not yet inform part of the reasoning) in the letter sent by Mr Ellem to Mr Li on 16 September 2021.
Although this is not an unfair dismissal proceeding and I am not required to adjudicate on the substantive merits of the reasons offered by StarTrack for Mr Li’s dismissal I nonetheless accept that they were soundly based and reflected matters that were objectively ascertainable and about which Mr Li essentially agreed. By this I mean that there was no doubt that Mr Li did not produce medical certificates for a period during his absence, he had failed to attend (or communicate about) the show cause hearing and had failed to produce evidence that he could perform the inherent requirements of his role.
Further, Mr Ellem explicitly disavowed being influenced in his decision by any complains or claims made by Mr Li, or any attributes possessed by him. It was Mr Ellem’s unchallenged evidence that he was not aware at the time that he made his decision that Mr Li suffered from anxiety or insomnia.[54]
[54] Ellem affidavit at [24]-[25].
Mr Li made no submission as to how, in the face of Mr Ellem’s denials, the onus was not discharged.
Accordingly, the evidence supports the conclusion that the real reason for termination of Mr Li’s employment was as described in the letter of termination and (in part) foreshadowed in the letter inviting him to participate in a show cause meeting.
I have considered whether, in the event that I am wrong about the contribution made by Mr Moulton to the dismissal decision, StarTrack would still have been in a position to discharge its onus under s 361 of the FW Act. I am satisfied that this would have been the case.
Without question, Mr Moulton was more intimately involved than Mr Ellem in the matters constituting the workplace rights relied upon by Mr Li and he acknowledged as such in his evidence, where he identified his awareness of “various complaints or grievances that Mr Li had made during his employment, the fact that he had commenced proceedings in the Fair Work Commission, and made an application to the Australian Human Rights Commission and VCAT and Mr Li’s medical condition (although not insomnia).”[55]
[55] Moulton affidavit at [53].
However, it was Mr Moulton’s evidence that none of these matters formed any part of the reasons for his advice to Mr Ellem.[56] Those reasons are set out at [206] above.
[56] Moulton affidavit at [54].
It was put to Mr Moulton (as it was to Mr Ellem) that he was motivated in his actions and decisions by a desire to prevent Mr Li from making and progressing a Comcare claim for a work-related injury. Although Mr Moulton was not obliged to answer this question given rulings on relevance, he nonetheless told the Court that he recalled that in some time around August 2021, he had provided Mr Li and the lawyer representing him at the time, with detailed information on how to submit a worker’s compensation claim and had done so on two occasions. He did not recall a claim being made by Mr Li within the few weeks after providing that information.[57]
[57] Transcript of proceedings dated 8 August 2023 p 105 lines 38 – 43.
As is the case with Mr Ellem, I have been offered no sound reason, either in the submissions made by Mr Li or arising from the circumstances disclosed by the evidence, to go behind the reasons offered by Mr Moulton for the advice he provided to Mr Ellem.
Mr Moulton impressed as a dispassionate professional who could compartmentalise the different processes for which he had responsibility and in his dealings with Mr Li was consistently courteous and thorough.
I am reminded that in Alam at [14](i), the Full Court cautioned that “a decision-maker’s knowledge of the circumstances asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance”. This caution applies here to the evidence of Mr Moulton.
For these reasons, I find that StarTrack has discharged its evidentiary onus under s 361 of the FW Act of disproving that the decision to terminate Mr Li’s employment was actuated (in whole or substantial or operative part) by the exercise by Mr Li of workplace rights or his possession of protected attributes.
I dismiss the claim that StarTrack contravened ss 340(1) or 351(1) of the FW Act when it terminated Mr Li’s employment.
Section 352
I will turn briefly to deal with Mr Li’s claim that StarTrack contravened s 352 of the FW Act.
This provision is set out at [132] above.
The meaning of s 352 is given further context by regulation 3.01 of the Fair Work Regulations 2009 (Cth) (Regulations) which relevantly provides (at 3.01(5)) that:
Temporary absence – illness or injury
…
(5) An illness or injury is not a prescribed kind of illness or injury if:
(a) either:
(i) the employee’s absence extends for more than 3 months; or
(ii) the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illness or injuries); and
(b) the employee is not on paid personal/carer’s leave (however described) for a purpose mention in paragraph 97(a) of the Act for the duration of the absence.
I accept the submission of StarTrack that because Mr Li’s absence from work exceeded nine months over a 12-month period, and therefore engaged both limbs of sub-regulation 3.01(5)(a) and was not leave of a kind referred to in sub-regulation 3.01(5)(b), it was not a prescribed kind of illness or injury and therefore s 352 was not a viable cause of action in the circumstances of Mr Li’s case.
I dismiss the claim that StarTrack contravened s 352 of the FW Act when it dismissed Mr Li.
CONCLUSION
In circumstances where Mr Li has not been successful in any of his claims against StarTrack, it must follow that his application filed on 15 December 2021 be dismissed.
I certify that the preceding two hundred and thirty-three (233) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Judge Symons . Associate:
Dated: 15 May 2024
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