Martin v Telstra Corporation Ltd (No 2) - [2024] FedCFamC2G 1174

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Martin v Telstra Corporation Ltd (No 2) [2024] FedCFamC2G 1174

File number(s): SYG 339 of 2020

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 8 November 2024

Catchwords: INDUSTRIAL LAW – where applicant employee had been a long serving employee of respondent employer in the role of “Emergency Customer Service Operator” (ECSO) – where for almost two years employer considered employee was underperforming and had placed the employee under performance management plans and had issued letters of warning – where employer suspended the employee from her work without paying wages on the basis of what employer understood medical reports to have conveyed about the employee’s capacity to perform the roles of an ECSO – whether by not paying the employee wages while employee was suspended the employer contravened provisions of the enterprise bargaining agreement that applied to the employment – whether by suspending the employee without paying wages the employer breached the contract of employment or unlawfully discriminated against the employee on the grounds of her disability – whether as a consequence of the employer’s suspension of the employee the employee suffered psychiatric injury – by suspending employee without pay the employer repudiated the employment contract but did not discriminate or unlawfully discriminate against the employee – by reasons of the breach of the employment contract the employee suffered psychiatric injury which incapacitated her from being able to work – damages for breach of contract awarded.

Legislation:
Disability Discrimination Act 1992 (Cth) ss 5(1), 15(2)(d)

Fair Work Act 2009 (Cth) ss 50, 323(1)

Telecommunications Act 1997 (Cth) ss 7, 19(1), 56, 466

Telecommunications (Consumer Protection And Service Standards) Act 1999 (Cth) ss 6, 147(1), (11)

Telecommunications (Emergency Call Service) Determination 2019 (Cth) ss 6, 19, 20, 21(2), 40, 41, 42(1), 43, 45, 48

Cases cited:
Addis v Gramophone Co Ltd [1901] AC 488

Annovazzi v State of New South Wales - Sydney Trains [2023] FedCFamC2G 542

Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435

Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859

Browning v Crumlin Valley Collieries Ltd [1926] 1 KB 522

Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184

Elisha v Vision Australia Limited [2024] HCATrans 71

Goldman Sachs JB Were Services Pty Limited v Nikolich [2007] FCAFC 120

Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145

Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 8) [2024] FedCFamC2G 779

Hanley v Pease & Partners Limited [1915] 1 KB 698

Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638

Morton v Lamb (1797) 7 TR 125; 101 ER 890

Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784

On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366

Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199

Parker v Comptroller-General of Customs [2009] HCA 7

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Martin v Telstra Corporation Ltd (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] FedCFamC2G 1174
Decision Date: 8 November 2024

CaseChat Overview and Summary

In the matter of Martin v Telstra Corporation Ltd, the applicant, Ms Martin, sought relief in the Federal Court of Australia against her employer, Telstra Corporation Ltd, regarding allegations of underperformance, suspension without pay, and resultant psychiatric injury. The case focused on whether Telstra breached an enterprise bargaining agreement (EBA) and the employment contract by suspending Ms Martin without pay, and whether this action constituted unlawful discrimination under the Disability Discrimination Act 1992 (Cth). Additionally, the case examined whether Ms Martin's psychiatric injury was a direct result of Telstra's actions.

The primary legal issues before the court were whether Telstra's decision to suspend Ms Martin without pay breached the EBA and the employment contract, and if such actions constituted unlawful discrimination. Furthermore, the court needed to determine if Ms Martin's psychiatric injury was a result of the employer's actions, and if so, whether the injury was a direct consequence of the alleged breaches.

The court found that Telstra did not breach the EBA or discriminate against Ms Martin under the Disability Discrimination Act. However, it did find that Telstra breached the employment contract by suspending Ms Martin without pay. This breach led to Ms Martin suffering a psychiatric injury, which incapacitated her from working. As a result, the court awarded Ms Martin damages for the breach of contract, comprising lost wages and general damages. The court calculated the lost wages based on the assumption that Telstra would have continued to employ Ms Martin until a certain date or alternatively, until an earlier termination date. The total damages awarded included both lost wages and general damages.

In conclusion, the court ruled in favour of Ms Martin on the breach of contract claim, awarding her $11,994.41 in lost wages and $30,000 in general damages. The claims regarding unlawful discrimination and breach of the EBA were dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Finally, the E000 Guidelines state the person carrying out the assessment “should explain the hearing assessment results to the applicant at the conclusion of the assessment”.Dr Milecki’s evidence about the E000 Guidelines It would be convenient at this point to refer to the evidence Dr Milecki gave under cross-examination about the E000 Guidelines. Dr Milecki is a medical practitioner, and an employee of a practice that trades under the name “InjuryNET”, and is the author of a number of reports to which I refer later in these reasons. Dr Milecki practises in the area of occupational health, and has done so for the last 35 years. Dr Milecki developed an interest and a specialty in dealing with the concept of fitness for duty at work, particularly in the emergency services sector. He gives advice on fitness for duty, and in developing medical standards relevant to the fitness of a person to perform a particular duty. He works for InjuryNET that is “contracted by Telstra to provide occupational medical services, and that includes undertaking the . . . screening of workers . . . in different sort of scenarios, and one of those scenarios is the E000 call centre in Sydney, whereby we sort of organise the … audiometry every couple of years, and then organise follow-up, and then . . . give advice on any cases”.[25][25] T256.35-T257.5 Dr Milecki gave the following evidence about the steps that are involved in giving effect to the E000 Guidelines.[26](a)The first step is to perform an audiometry. An audiometry measures, not speech reception, but “hearing thresholds”, that is, the ability “to hear sounds . . . through the … machine, through the audiometrist”.[27] The hearing/air conduction thresholds are measured at particular frequencies;[28] and the E000 Guidelines stipulate a particular measure as to the level of hearing between specified frequencies.[29] (b)The second step is to perform audiological testing, and this is required if the person being tested does not meet the hearing threshold under the audiometry (these being the E000 Threshold requirements I identified earlier in these reasons). Audiological testing consists of “bone conduction”, and “speech discrimination” (together with a repeated audiometry).[30] An “audiology” is different from an audiometry “in that it’s a more extensive test, with other things being tested, and also the expertise and the training of the person who’s undertaking the test is consistent with being a qualified audiologist, and also they’re able to give advice and opinions . . . based on their findings”.[31] An audiology is “more detailed and thorough” than a pure audiometry test, involving clinical judgment because the person conducting the audiology must interpret the results.[32] Further:[33]So the audiologist really is – has to undertake all the tests that an audiologist usually does, so it’s an audiological review, and that includes repeating the audiology with [functional] audiometry, and then also undertaking with the test specifically a bone conduction and speech discrimination. Sometimes they perform other tests as well, and they look at the impedance in the ear – that sort of thing as well, so they may do that. But really, the things that we’re looking for, in the end, the – the things that are important – the bone conduction test is really to identify the source of the problem, not the severity of it. The speech discrimination tells about their ability to discriminate speech, which is pretty – which is very central to understanding their capacity, and – but they also repeat the [functional] audiometry so we get a more – a repeat and perhaps more accurate view of their actual hearing in pure tone.(c)The third step in conducting a hearing assessment pursuant to the E000 Guidelines is the making of an assessment whether, in the assessor’s opinion, the person undergoing the assessment will or will not be able to carry out the inherent requirement of headset work.[34] (d)The fourth step arises if in step 3 the assessor forms the view that the person being assessed could not carry out the inherent requirements of headset work; and the step requires the offering of an opinion on whether any adjustments could be made by use, for example, of an alternative headset.[35](e)A fifth step, although not a required step, is to explain the hearing assessment results to the person being assessed.[36][26] T261.5[27] T261.40[28] T261.20[29] T261.35[30] T262.15[31] T262.35[32] T262.40 – T262.45[33] T263.30[34] T264.30- T264.40[35] T266.10[36] T265.10- T265.25 Ms Martin’s employment and EBA coverage

Decision

Reasons for decision

For these reasons, Ms Martin’s claims based on the DD Act fail.CONCLUSIONS AND DISPOSITION Ms Martin has failed on all of her claims other than her claim based on Telstra’s breach of Ms Martin’s employment contract. I have found that, but for Telstra’s breach of contract, there was a 15% chance that Telstra would have continued to employ Ms Martin until 18 May 2023. Assuming Ms Martin is correct that she would have earned $330,064.07 gross, had she remained employed by Telstra until 18 May 2023,[385] Ms Martin would be entitled to damages equal to 15% of this amount, being $49,509.61, less the $37,516.20 that Telstra paid to Ms Martin on 26 June 2020. Thus, Ms Martin would be entitled to damages for loss of wages in the sum of $11,994.41. Alternatively, on the assumption that Telstra would have terminated Ms Martin’s employment by no later than 1 April 2020, Ms Martin would be entitled to damages equal to the wages (including shift allowances and penalties) she would have received from 8 November 2019 to 1 April 2020, less the $37,516.20 Telstra paid her. I have also concluded that Ms Martin is entitled to general damages, assessed in the amount of $30,000. [385] Applicant’s Outline of Closing Submissions, [117]-[119]

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYG 339 of 2020
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	8 November 2024
Catchwords:	INDUSTRIAL LAW – where applicant employee had been a long serving employee of respondent employer in the role of “Emergency Customer Service Operator” (ECSO) – where for almost two years employer considered employee was underperforming and had placed the employee under performance management plans and had issued letters of warning – where employer suspended the employee from her work without paying wages on the basis of what employer understood medical reports to have conveyed about the employee’s capacity to perform the roles of an ECSO – whether by not paying the employee wages while employee was suspended the employer contravened provisions of the enterprise bargaining agreement that applied to the employment – whether by suspending the employee without paying wages the employer breached the contract of employment or unlawfully discriminated against the employee on the grounds of her disability – whether as a consequence of the employer’s suspension of the employee the employee suffered psychiatric injury – by suspending employee without pay the employer repudiated the employment contract but did not discriminate or unlawfully discriminate against the employee – by reasons of the breach of the employment contract the employee suffered psychiatric injury which incapacitated her from being able to work – damages for breach of contract awarded.
Legislation:	Disability Discrimination Act 1992 (Cth) ss 5(1), 15(2)(d) Fair Work Act 2009 (Cth) ss 50, 323(1) Telecommunications Act 1997 (Cth) ss 7, 19(1), 56, 466 Telecommunications (Consumer Protection And Service Standards) Act 1999 (Cth) ss 6, 147(1), (11) Telecommunications (Emergency Call Service) Determination 2019 (Cth) ss 6, 19, 20, 21(2), 40, 41, 42(1), 43, 45, 48
Cases cited:	Addis v Gramophone Co Ltd [1901] AC 488 Annovazzi v State of New South Wales - Sydney Trains [2023] FedCFamC2G 542 Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435 Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859 Browning v Crumlin Valley Collieries Ltd [1926] 1 KB 522 Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 Elisha v Vision Australia Limited [2024] HCATrans 71 Goldman Sachs JB Were Services Pty Limited v Nikolich [2007] FCAFC 120 Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145 Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 8) [2024] FedCFamC2G 779 Hanley v Pease & Partners Limited [1915] 1 KB 698 Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638 Morton v Lamb (1797) 7 TR 125; 101 ER 890 Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784 On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366 Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199 Parker v Comptroller-General of Customs [2009] HCA 7