Maxutova v Nunn Media Pty Ltd
[2017] FCCA 2336
•26 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAXUTOVA v NUNN MEDIA PTY LTD | [2017] FCCA 2336 |
| Catchwords: INDUSTRIAL LAW – Termination of employment during probationary period – whether representations made in the course of employment – whether respondent engaged in misleading or deceptive conduct – whether applicant exercised workplace right to make complaint – whether termination was due to applicant’s illness or injury or absence for work – whether respondent failed to provide final payslip – respondent’s performance concerns substantiated – applicant dismissed due to respondent’s view that the applicant’s performance in relation to three projects she was involved in was less than satisfactory – application dismissed. |
| Legislation: Competition and Consumer Act 2010, ss.18, 31 Fair Work Act 2009, ss.97, 240, 341, 361, 536 |
| Cases cited: Shea v TRUenergyServices Pty.Ltd. (No.6) [2014] FCA 271 State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 Walsh v Greater Metropolitan Cemeteries Trust (No.2) [2014] FCA 456 |
| Applicant: | ILMIRA MAXUTOVA |
| Respondent: | NUNN MEDIA PTY LTD |
| File Number: | MLG 2339 of 2016 |
| Judgment of: | Judge McNab |
| Hearing dates: | 11-12 May 2017, 15 June 2017 |
| Date of Last Submission: | 28 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 26 September 2017 |
REPRESENTATION
| The Applicant in person |
| Counsel for the Respondent: | Mr Millar |
| Solicitors for the Respondent: | Cornwall Stodart |
ORDERS
The application filed 27 October 2016 be dismissed.
Any application for costs with supporting material be filed by 16 October 2017.
Any response be filed by 23 October 2017 and the question of costs be determined on the papers.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2339 of 2016
| ILMIRA MAXUTOVA |
Applicant
And
| NUNN MEDIA PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns the questions of:
a)whether the respondent terminated the applicant’s employment because the applicant made complaints within the meaning of s.341(1)(c)(ii) of the Fair Work Act 2009 (Cth) (‘Fair Work Act’);
b)whether the respondent terminated the applicant’s employment because of illness or injury in breach of s.340(1) of the Fair Work Act;
c)whether the respondent engaged in misleading or deceptive conduct in breach of ss.18 and 31 of the Australian Consumer Law (‘ACL’); and
d)whether the respondent breached s.536 of the Fair Work Act by failing to provide the applicant with a final payslip.
By a Statement of Claim filed 5 December 2016 the applicant alleges that:
a)in March 2015 she was approached by Ms Shirleigh Donehue (‘Ms Donehue’), recruiter at Recruitment Group in relation to a potential vacancy for the position of Head of Strategy with the respondent;
b)in approximately December 2015 she was contacted by Mr Richard Scott (‘Mr Scott’), Director Asia Pacific – Digital, Media, Entertainment and Advertising with AustCorp Executive Recruitment Solutions (‘AustCorp’) in relation to a potential vacancy for the position of Head of Strategy with the respondent;
c)in December 2015 she was interviewed twice by Mr Matthew Nunn (‘Mr Nunn’), Managing Director and Owner of the respondent, and Mr Parveen Batish (‘Mr Batish’), Consultant, for the position of Head of Strategy with the respondent;
d)in January 2016 Mr Scott offered the applicant the position of Head of Strategy with the respondent and the applicant accepted this offer; and
e)on each of the above occasions, Ms Donehue, Mr Scott, Mr Nunn and Mr Batish made a number of representations about the nature of the position and the organisation and the applicant’s visa status, the substance of which is detailed below and that by doing so the respondent engaged in misleading and deceptive conduct in breach of ss.18 and 30 of the Australian Consumer Law;
The applicant alleges that in June and July 2016 she made two complaints to Mr Nunn and Mr Batish of the respondent regarding the performance of Mr Rob Francasio (‘Mr Francasio’), Implementation Director and about her workload.
The applicant alleges that her employment was terminated as a result of the workplace complaints that she made in June and July 2016 and because she took personal leave from 4 July 2016 to 8 July 2016.
The applicant also claims that she was not provided with a final payslip upon termination.
The applicant claims that as a result of the termination of her employment by the respondent and as a result of the breaches of the Australian Consumer Law and the Fair Work Act she is entitled to:
a)unpaid salary in the sum of $250,287.67;
b)unpaid annual leave in the sum of $13,865.75;
c)unpaid bonus in the sum of $21,000;
d)damages for economic loss caused by relocation in the sum of $2,615;
e)reimbursement for her legal costs associated with her migration case before the Court in the sum of $67,500;
f)reimbursement for her former residency application in the sum of $11,983.40;
g)compensation for her new residency application in the sum of $10,256;
h)reimbursement for her dependent mother’s contributory parent (temporary) (subclass 173) visa and contributory parent (subclass 143) visa in the sum of $51,420;
i)compensation for relocation in the sum of $5,000; and
j)return tickets to Russia in the sum of $4,125.
Background
From the period 25 May 2014 until 22 February 2016 the applicant was employed in the position of Director: Singtel Business Strategy at Starcom Mediavest Group (Australia) Pty Ltd (‘Starcom’) on a total remuneration package of $155,000 per annum. Whilst employed at Starcom she was subject to a 457 Visa which enabled her to live and work in Australia and for her mother to live in Australia whilst sponsored by Starcom.[1]
[1] The Applicant emigrated from Russia on a 457 visa.
In or around November 2015, Mr Nunn engaged Mr Scott of AustCorp Executive Recruitment Solutions to source a new Head of Strategy for the respondent.
In December 2015 Mr Scott sent a message to the applicant on LinkedIn asking if she would be “interested in hearing about 2 senior executive roles”, one of which was the Head of Strategy position with the respondent. Mr Scott subsequently discussed the Head of Strategy position with the applicant over the telephone.
In late December 2015 Mr Nunn and Mr Batish interviewed the applicant via Skype and face to face at the Melbourne office.
In January 2016 Mr Scott emailed the applicant confirming the respondent’s offer of employment as Head of Strategy and providing details of the remuneration package, including a base salary of $200,000 per annum. Mr Nunn subsequently sent a proposed employment contract to Mr Scott for forwarding. On 18 January 2018 the applicant emailed Mr Nunn accepting the respondent’s offer of employment, subject to specified conditions including an increased base salary of $210,000 per annum. The post-employment restraint period was subsequently amended from 12 months to 6 months at the request of the applicant and on 21 January 2017 she emailed a signed updated employment contract. The Respondent sponsored the applicant under the 457 Visa arrangements and the sponsorship transferred from Starcom to the Respondent when the applicant commenced employment with the respondent
On 22 February 2016 the applicant’s employment ended at Starcom by reason of redundancy and on 7 April 2016 she commenced employment with the respondent.
The applicant’s employment was terminated during her probationary period by Mr Batish and Ms Caruana of the Respondent on 11 July 2016. The respondent paid the applicant three weeks’ in lieu of notice in addition to accrued entitlements.
Performance concerns
The respondent cites a range of performance concerns that it had with the applicant, including that:
a)On various dates between April and June 2016, the applicant did not attend the respondent’s morning management meeting, citing a range of reasons mostly involving problems with public transport.
b)In May 2016 the applicant advised Mr Batish that the respondent’s pitch for the Samoan Tourism Authority account was “too small for me to get involved”.
c)In May 2016 Mr Nunn gave the applicant the responsibility of project managing a pitch to Bakers delight which was due to be presented on 5 July 2016. He subsequently met with the applicant on 22 June 2016 to discuss the progress of the sales pitch. The respondent alleges that the applicant did not incorporate Quantium data that had been specifically purchased for the pitch and that aspects of the project were behind schedule. On 22 June 2016 the respondent replaced the applicant as project manager of the Bakers Delight pitch. On 3 July 2016 relevant employees of the respondent attended the office to conduct a run through of the pitch. The applicant attended the office in the morning and left for personal reasons at midday. She emailed the strategy slides to Mr Francasio at approximately 2am on 4 July 2016. On 5 July 2016, the pitch was presented and was unsuccessful.
d)In May 2016 Mr Nunn also briefed the applicant on the pitch for the Local Agent Finder account which was to be presented on 8 June 2016. The respondent alleges that the applicant waited until 7 June 2016 to hold a meeting with relevant employees of the respondent for same day turn around.
e)In June 2016 the applicant was involved in preparing the respondent’s pitch for Godfrey Hirst. When asked by Ms Caruana in late June whether she had prepared strategy slides in relation the pitch, she allegedly said words to the effect “I’m not writing the strategy. I’m just giving the Roy Morgan slides.” The applicant allegedly emailed the strategy slides for the pitch to Mr Nunn 12 minutes before the pitch was due to be presented on 30 June 2016.
Statement of Issues
Four issues arise:
a)Whether the respondent engaged in misleading or deceptive conduct in relation to the applicant’s recruitment
b)Whether adverse action was taken by the respondent against the applicant by terminating her engagement;
c)Whether the respondent terminated the applicant’s employment because of illness or injury; and
d)Whether the applicant received her final payslip on termination of her employment.
The Applicant’s claims
The Australian Consumer Law (‘ACL’) claim
The applicant alleges that the respondent has breached two provisions of the ACL being:
a)section 18:
A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
b)section 31:
A person must not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead persons seeking the employment as to:
(a) the availability, nature, terms or conditions of the employment; or
(b) any other matter relating to the employment.
Representations made in the process of recruitment
It is alleged by Ms Maxutova in her statement of claim that Ms Donehue made the following representations in the process of attempting to recruit her to a position with the respondent:
On 18 March 2015, Ms Shirleigh Donehue (Ms Donehue) – Recruiter at Recruitment Group approached the Applicant as a potential candidate for the position of Head of Strategy with the Respondent and made the following representations:
i) The Respondent at the time had in place a Head of Strategy but is looking to hire someone more qualified and experienced.
ii) The Respondent is an excellent employer who invests in their staff well-being and takes price in creating work-life balance environment.[2]
[2] Statement of claim [6].
It is also alleged by Ms Maxutova in her statement of claim that Mr Scott made representations in the process of recruiting her to a position with the respondent. Those representations are set out at [31] below.
Ms Maxutova has alleged that a series of representations were made by Mr Nunn and Mr Batish in the interviews held on 22 December 2015 (by Skype) and 28 December 2015 (face to face in Melbourne):
i) The Respondent was the largest independent agency in Australia;
ii) The Respondent has a flexibility and resources as requires, ensuring that the Respondent team operates fully staffed and supported;
ii) The Respondent would be prepared to support the Applicant in building a new Strategy Team; and
iv) The Respondent prioritised the creation of a positive workplace culture, the support of people with health problems, the availability of flexible working relationships and the creation of a strong work-life balance for employees.[3]
[3] Ibid [8(b)].
The applicant also alleged during the course of her evidence that Mr Scott made certain misrepresentations to the effect that the probationary period would not be enforced against her.
Workplace complaints
The applicant has alleged that she exercised two workplace rights: the right to make a complaint or inquiry in relation to her employment, and the right to take personal leave due to illness or injury.[4]
[4] Statement of claim [49].
The applicant alleged that in mid-June and on 1 July 2016 she made complaints about Mr Francasio to Mr Batish and Mr Nunn in relation to “the competency of Mr Francasio”.[5]
[5] Ibid [16]-[17].
The evidence of the applicant suggests that the matters raised by her in mid-June also went to the question of how Mr Francasio’s competence impacted her workload, noting that she had raised “her assumption of his (Mr Francasio’s) responsibilities.[6]”
[6] Ibid [16].
On or around 21 June 2016, the applicant claims to have discussed her workload at a meeting with Mr Nunn, noting that:
..the Respondent has acknowledged (the) high workload of the Applicant and also verbally acknowledged that he was “pleased with her work and have no questions to the Applicant’s performance.”
The applicant’s claim in relation to personal leave appears to be that she was terminated on the basis of taking personal leave with a medical certificate between 4 July 2016 and 8 July 2016.[7]
[7] Ibid [20].
Payslip claim
The applicant makes reference in her statement of claim to not having received her final payslip on termination of her employment.[8]
[8] Ibid [27].
The course of evidence
The applicant gave evidence on her own behalf and evidence was also given by Dr Merryn Wild[9]. Evidence was given on behalf the respondent by Richard Scott, a Recruitment Consultant engaged by the respondent, Tara Caruana, who is employed as a Trading Director of the respondent, Parveen Batish, a Consultant to the respondent, Matthew Nunn, Managing Director of the respondent and Kim Nunn, an owner and CFO of the respondent.
The Competition and Consumer Act claim
[9] Because Dr Wild’s evidence went to remedy it is not necessary to canvass her evidence given the liability findings.
The applicant gave evidence that she had been employed in the media industry by media agencies for almost 12 years. From 2006 she has held leadership positions as Head of Strategy or Strategy Director and had held those positions in Russia from 2006 to 2012. She was approached by the Optimum Media Group in Australia to join their organisation around July 2012 and joined that group in Melbourne in 2012 as Strategy Director. In 2014 she was approached by Starcom and joined that businesses business strategy as Director for Optus and Virgin and held that position until she was employed by the respondent.
In about March 2015, the applicant gave evidence that she was approached by a recruiter by the name of Shirley Donehue, who told her that she had placed two employees with Nunn Media prior to contacting the applicant. She gave evidence that Ms Donehue had told her that Nunn Media was looking for a new Head of Strategy and that Ms Donehue mentioned to the applicant that based on feedback that she had received from two other employees that she placed with Nunn Media, it was a wonderful organisation to work for, it is a family business where everybody was treated as a family member, the people have really good working conditions and a great working/life balance and that it was a much better environment versus a big organisation.[10] In paragraph [7] of the statement of claim, the applicant stated that Ms Donehue was unable to provide enough information about the role and responsibilities of the new Head of Strategy and therefore the applicant declined her interest in a position at that time.
[10] Transcript 25 [15].
Given that the applicant did not rely on anything that was said by Ms Donehue at that time and declined to explore the option of employment further, I do not regard the statements made by the recruiter Ms Donehue as relevant to the applicant’s claims.
Paragraph [8] of the statement of claim pleads representations which were alleged to have been made by Richard Scott, a recruiter at AustCorp that were made between 8 December 2015 and 19 January 2016 after Mr Scott contacted the applicant as a potential candidate for the position of Head of Strategy with the respondent. The representation is said to be as follows:
i) The Applicant will have an opportunity to create and enforce a new vision for a strategy function in Nunn Media;
ii) The Applicant would be responsible for the creation of a new strategy department, including opportunity to hire new staff in Melbourne;
iii) The Applicant would form part of the leadership team of the Respondent, influencing not only strategy, but overall agency offering and performance;
iv) The Respondent was very particular with the people they employed and the recruitment process was very rigorous;
v) The Respondent was recruiting for a new Head of Strategy for a long-time but no one was successful to secure a second interview;
vi) The role was for an individual seeking a long-term position with the Respondent and a successful hire would constitute a long-term commitment by the Respondent;
vii) The Respondent is well-resourced and offers exceptional “work-life” balance environment.
The applicant gave evidence that representations in those terms were made by Mr Scott. I proceed on the basis that Mr Scott was authorised by the respondent to seek to find candidates for a role of Head of Strategy with the respondent and that he was authorised to speak to the applicant by the respondent.
In my view, even if it is accepted that each of the representations as pleaded were made by Mr Scott, none of those representations are of a kind that are sufficiently specific to be capable of being relied upon as statements of fact that are capable of substantiation. The representations are of a general kind, which were made in introductory telephone enquiries between a recruiter and the applicant for the purposes of determining whether the applicant would then continue further with the recruitment process. There is no evidence that even if the representations were made as pleaded, that those matters are untrue, in particular the representation at paragraph [8](vi) in relation to the role being for an individual seeking a long-term position. As a person who is used to being in senior roles, the applicant would have known that just because the respondent was seeking a person to be employed on a long-term basis, does not mean that the employee is immune from the employer’s right to terminate the contract in accordance with the terms of the contract. Further, the fact that the employment was terminated within the probationary period does not mean that the employer did not intend for the employment to continue for a longer period.
The evidence does not support a finding that the applicant relied upon the representations made by Mr Scott for the purposes of leaving her employment with Starcom and taking up employment with Nunn Media.
The applicant gave evidence that she was earning approximately $155,000 per annum with Starcom Media. In her employment with Starcom, she had been working on an account with Optus. From at least 19 January 2016, the applicant became aware that Starcom’s service agreement with Optus terminated on 31 March 2016.
On 21 January 2016, the applicant emailed a signed copy of an updated employment contract with the respondent to Mr Scott.[11]
[11] Court book 4, tab 22.
On 28 January 2016, the applicant emailed Mr Nunn and Mr Scott and advised them that she had not yet resigned from her employment with Starcom and that “right now I am working until 27th of April”.[12]
[12] Ibid tab 24.
On 22 February 2016, the applicant’s employment with Starcom ended by reason of redundancy without the need for any notice period to be worked.
When the applicant emailed Mr Nunn accepting the respondent’s offer of employment, subject to specified conditions, the applicant was aware that the Starcom-Optus service agreement was until 31 March 2016.
The evidence discloses that the applicant chose not to resign from her employment on 25 January 2016 when she signed the employment contract with the respondent but remained in employment with Starcom in order that she may obtain the benefit of a redundancy payment on the condition that she continued to be employed by Starcom until 22 February 2016. The applicant received a redundancy payment of $59,296.85, which included one month’s notice equating to $35,388.13 and a redundancy payment of $11,796.04. This resulted in a net payment of $45,407.85.[13]
[13] Exhibits R1 and R2.
The deed was entered into on 19 February 2016 and as stated earlier, entitled the applicant to end employment by reason of redundancy on 22 February 2016. The applicant had previously told the respondent, by an email dated 15 February 2016, that the company (Starcom): “found a contractor and if she will be good enough I may even leave work even earlier (one – two weeks).”
The applicant gave evidence that although she was aware that the contract between Starcom and Optus was ending, there were other options within the Starcom group that she could have moved to. No evidence was produced by her to support those statements. I find that the applicant was aware that the contract between Starcom and Optus was to terminate at the end of March 2016 when she commenced negotiations with the respondent in relation to the terms of her contract with that company. I also find that she arranged her affairs so that she may receive the benefit of a redundancy payment with Starcom prior to taking up employment with the respondent. It is not suggested that she did anything unlawful by that conduct, but she conducted herself in this way in circumstances when she was aware that the respondent was anxious for her to commence employment as soon as she was legally permitted to following the entry into the contract of employment on 25 January 2016.
The applicant did not commence employment with the respondent until 7 April 2016. It is quite apparent from her conduct in relation to her own representations to the respondent as to when she was legally able to commence work with them, and her negotiations to obtain a redundancy from Starcom, that she is a sophisticated and an obviously commercially minded person.
The court finds that the applicant accepted the position with Nunn Media on the basis that her position with Starcom was lesser paid, was coming to an end and that there was a significant financial incentive for her to take up employment, being an increase of salary from $155,000 per annum to $210,000 per annum. The applicant was not giving up a long term position to take up employment with the respondent.
Paragraph [8(b)] of the statement of claim pleads that Mr Nunn, the Owner and Managing Director of the respondent and Mr Batish, a Consultant to the respondent made the following representations:
i. The Respondent was the largest independent agency in Australia;
ii. The Respondent has a flexibility and resources as requires, ensuring that the Respondent team operates fully staffed and supported;
iii. The Respondent would be prepared to support the Applicant in building a new Strategy Team; and
iv. The Respondent prioritised the creation of a positive workplace culture, the support of people with health problems, the availability of flexible working relationships and the creation of a strong work-life balance for employees.
One of the particulars of the representations is that during the course of a four hour interview on 28 December 2016, the applicant was taken around the respondent’s office and pointed to a mission statement on the agency wall that stated: “in this family we have open and genuine conversations, we respect each other, we never let issues escalate because can do is in our blood, our professional standards is in our code and our best advocates are rewarded and recognised.”
If those representations were made, I do not accept that they were misleading or deceptive. The representation in paragraph [8(b)(i)] that the respondent was the largest independent agency in Australia has not been subject to challenge by the applicant. The representation at [8(b)(iv)] is really in the nature of an aspirational statement about how the applicant sees that it runs its business. There is no evidence of reliance upon that statement. The representations about the business being fully staffed and supporting the applicant to build a new strategy team have not been established. The applicant was in the course of seeking candidates for the strategy team when her employment was terminated.
The statement of claim goes on to make statements/allegations in relation to the recruitment process and notes that the recruitment process engaged in by the respondent which included two interviews, two psychographic questionnaires, a presentation by the applicant in response to seven questions proposed by the respondent, direct telephone conversations between Mr Nunn and two referees provided by the applicant. Such was the thoroughness that the applicant states in [8(d)] of the statement of claim that the recruitment process was the most onerous that she had encountered. She states in that paragraph that Mr Scott made a representation that the applicant’s candidacy was the best from all and the respondent was very excited to be hiring a talent of her calibre. The respondent was keen for the applicant’s employment to bring positive benefits to the business.
I do not accept that the respondent has engaged in misleading and deceptive conduct by making representations of the kind pleaded by the applicant in her statement of claim by Mr Nunn or Mr Batish. The applicant was a sophisticated, experienced executive, who as a result of her experience and skills in the interview process, was able to obtain an offer of employment of a base salary of $200,000 per annum on 13 January 2016 and then further negotiate an increase in salary to $210,000 per annum, which was the figure that she accepted as her salary on 25 January 2016. This was an increase of a salary from $155,000 per annum in the position that she held at Starcom, which position was to be made redundant on 31 March 2016.
For these reasons, none of the applicant’s claims made pursuant to the Competition and Consumer Law 2010 are made out.
The terms of the applicant’s employment
The applicant’s employment commenced on 7 April 2016 and was terminated on 13 July 2016. The applicant accepted the offer of employment from the respondent, subject to conditions, which were set out in an email of 19 January 2016. Those conditions included that the company would sponsor her 457 Visa with the applicant covering the costs for the visa subclass 186 and the legal and government fees.
The salary and benefits that she stated that she was prepared to agree to were:
a)base plus super $210,000 annually;
b)10% bonus – $21,000 annually;
c)car space worth $6,000;
d)relocation costs of $5,000;
e)phone device and all phone costs; and
f)laptop
Under working conditions she stated that she wanted: “an opportunity to work from home infrequently, to be agreed by the manager, only at the time when my presence is not required. For example, when (a) big presentation needs to be written with a sole focus on it.”
The respondent accepted those terms and a written contract of employment was entered into between the applicant and the respondent that made provision for termination on one week’s notice during a six-month probationary period, which ran from the commencement of employment. The Applicant did not seek to negotiate a variation to the probation term.
The applicant gave evidence on her first day of employment that she had a conversation with Mr Batish, who told her that although he was a consultant, he performed the role of General Manager and overlooked the operations. She said that he discussed the common practices within the organisation and that there are 5 to 10 minute morning “WIPS” (work in progress) every day for everyone to discuss their tasks. He also stated that there were weekly meetings that could be up to 15 minutes where priorities for the week were discussed. These meetings were in addition to normal management meetings. The applicant gave evidence that she asked Mr Batish whether it was mandatory to attend the 9:00am morning meetings, to which he replied that it was not and that if you could not make it, then you could send an SMS or an email and “you just need to list what your daily priorities are so everyone knows.” He made clear that WIP meetings were part of the ordinary routine of the business.
I accept without hesitation that the respondent’s employment of the applicant was less than satisfactory for the respondent. Notwithstanding that Mr Batish had told the applicant that attendance at 9:00am “WIP meetings” formed part of the ordinary day, the applicant regularly missed those meetings because she was “running late, had missed her train or because of the tram disruption.” This is in the context of the applicant living in central Melbourne in close proximity to public transport and having to travel to Brighton.
The applicant also adopted a practice of notifying her employer that she would be working from home but she did not adopt the process of consulting with management before doing so or doing so in circumstances where she was working from home in order to complete a major project, which was the condition that she stipulated in her 19 January 2016 email.
The first occasion in which she advised that she was going to miss the 9:00am meeting because of public transport disruption was on 18 April 2016, where she notified Mr Parveen at 8:34am that she was going be late because of disruption in the train schedule. Thereafter she was late for the same or similar reason on numerous occasions.
One would have thought that a person being paid $210,000 per annum with the expectation of a bonus might have been able to arrange themselves to present at work by 9:00am where the usual train travel time is about 30 minutes. The applicant did not point to any family responsibilities which might prevent her from organising herself to arrive at work at 9:00am. Further, the applicant had access to a car space as part of her entitlements.[14]
[14] It is noted that the applicant arrived at court on 12 May 2017 15 minutes late without explanation.
A further matter of concern for the respondent was the applicant’s attitude to performing work and/or performing work in a timely way. An example of this involves a business opportunity to work for the Samoa Tourism Authority. On 2 May 2016, a marketing representative from that authority sent an email to Mr Nunn and Ms Caruana of the respondent, including an invitation for the respondent to bid for 12 month media buying on behalf of Samoa Tourism. The media spend was $30,000 per month.
On 3 May 2016, Ms Caruana sent an email to Ms Maxutova, amongst others, at 7:52am. That email stated:
Please see below email from Samoa Tourism.
Can you discuss this one in in WIP and let Matt know which AM (Administrative Manager) will be working on this with Ilmira.
The applicant’s response by email of 3 May 2016 at 8:41am was:
Good morning Parveen, stranded in tram, ETA 9:10am.
My view on the Samoan Tourism – too small for me to get involved but happy to kick off some thought process with AM.
Mr Batish gave evidence that he considered that the applicant’s response as the only strategist in the company was not appropriate. He discussed this view with Mr Nunn at about the time of receiving the email from the applicant. Mr Batish gave evidence that as the only strategist within the company, it was the applicant’s role to provide strategy regardless of the size of the client and the business needed to gain clients. He also gave evidence that Samoa Tourism became an important client because of the large amount of media coverage that had been generated from the work that they did subsequently do for them.[15]
[15] Transcript 320-40.
The following day on 4 May 2016, the applicant did not attend the respondent’s morning management meeting because she had decided to work from home.
The respondent’s performance concerns
The respondent’s reasons for the termination of the applicant’s employment were that the applicant had failed to perform to the required standard, both in relation to the timeliness of the performance of work and the quality of work. There are also concerns in relation to her capacity to work cooperatively as part of a team.
The Bakers Delight pitch
The respondent focused on the applicant’s performance in relation to a pitch for work from Bakers Delight. On 26 May 2016, the applicant attended a meeting with Bakers Delight regarding pitching for that business’ work.
On 31 May 2016, a debrief meeting was held at the respondent’s offices, which meeting was attended by the applicant. During that meeting, Mr Nunn gave the applicant the responsibility of project managing the pitch for Bakers Delight which was due to be presented on 5 July 2016. Mr Nunn informed the applicant that it was unusual to be given such a long period to prepare for a pitch and he did not want preparations for the pitch to be left to the last minute. Mr Nunn gave evidence that he had a strong network with Bakers Delight, having worked with the Marketing Director from that business in the past. Mr Nunn also gave evidence that the time provided in order to prepare the pitch was the longest that he had had in 15 years with six weeks given for the preparation, whereas normally it is one to two weeks. Mr Nunn also said that he was keen to win the pitch and invested $20,000 in buying specialised research data so that the pitch could be developed in very specific terms. He gave the applicant a copy of a pitch document that had been used for a previous client using that kind of research data so she could “splice” the data into the Bakers Delight pitch document.
The applicant prepared an action plan but from the respondent’s point of view, that plan was not followed. A meeting was held on 22 June 2017, attended by the applicant and Mr Nunn and others, to discuss the status of the pitch to the Bakers Delight account. Mr Nunn gave evidence that the applicant had nothing to present at that meeting and put to her directly that he was uncomfortable about where the pitch was and said “we are nearly three weeks, four weeks into the pitch scenario we don’t have anything.” He said that she stormed out of the office crying. When she returned she spoke to Mr Nunn, reassuring him that the information was all in her office and that she would get it together.
From that point Mr Nunn spoke to Mr Parveen and asked him to step in to relieve the applicant of her project management duties on the Bakers Delight pitch. He told Mr Parveen “there’s no collaboration at all, she hasn’t spoken to anyone, she hasn’t delivered any of the elements we’ve asked her to.” He gave evidence that he asked Mr Batish to step in because of the applicant’s non-performance at her level from a strategic standpoint, as well as a project management standpoint.
On 27 June 2016 or 28 June 2016, the applicant was relieved of her role as a Project Manager. Mr Nunn gave evidence that on about that day he telephoned Mr Scott of AustCorp Executive Recruitment Solutions, to inform him that the applicant was not suitable for the role of Head of Strategy at respondent and instructed him to find a replacement for the applicant.
On 28 June 2016, Mr Batish emailed the applicant and others a Bakers Delight project plan, which set out the list of tasks to be completed by the applicant and other staff members of the respondent. The applicant did not attend a morning management meeting on that day because she had decided to attend a “news presentation”. At about that time Mr Batish spoke to the applicant about the importance of attending management meetings. A meeting was convened by Mr Batish and attended by Mr Nunn and the applicant and other people involved in the Bakers Delight pitch. It was agreed at the end of that meeting that the pitch was so far behind schedule that those involved in the pitch would need to work on the weekend and that they would meet at the respondent’s offices on the afternoon of Sunday 3 July 2016 in order to finalise the preparations.
On Sunday 3 July 2016, the applicant attended the respondent’s offices in the morning and spoke to an employee, Justine Scott, and informed her that she was distressed as she had just found out that a friend of hers in Russia had attempted to commit suicide. Ms Scott telephoned Mr Batish to inform him of the situation. Mr Batish telephoned the applicant. He gave evidence that he could hear that she was upset and they discussed what was going to happen that afternoon and he said to her that it was decision for her to make. He said that he could not help her one way or the other and it was her decision as to whether she was going to attend or not attend. Mr Batish attended the offices at about 2:00pm and gave the applicant a call and left a voicemail message for her to give him a call later that afternoon. Rob Francasio was telephoned by the applicant and she informed him that she was in Mornington with a friend and that she had completed her strategy slides for the Bakers Delight pitch but that the battery on the laptop had died and that she would send the slides once the laptop had recharged.
The staff members of the respondent who were present in the office that day decided to prepare their own strategy slides for the Bakers Delight pitch and complete the presentation without the applicant.
At 2:27am on 4 July 2016, the Bakers Delight strategy slides that the applicant advised Mr Francasio that she had on her laptop at about 2pm the previous day were transmitted to Mr Francasio.[16]
[16] Exhibit R-3.
The applicant has given evidence that she had spent the day in Mornington with a friend who drove her back to Melbourne later that night. She stated that she arrived home late at about 10:00pm or 11:00pm,[17] and that she waited to get home, to charge her phone, to take medicine to feel better and then sent it (at 2:27am).
[17] Transcript 237-40.
Later that morning the applicant attended the respondent’s office. She advised Mr Batish that she was unwell and had been certified as being unfit for work for the rest of the week. She was told that the Bakers Delight presentation was under control and she should go home if she was unwell. She left the respondent’s offices shortly thereafter and did not attend.
The applicant gave evidence in the witness box that she believed that the company were unhappy because she had not attended the meeting on the Sunday because she was ill during an important project. She gave evidence of the conversation with Mr Batish as follows:
[h]e said to me, “well, if you’re really feeling unwell and you can’t really work, then you had better go home.”
Sometimes the tonality of things says/also plays a role in your comprehension of what the message is betrayed. He did not say to me “I’m so sorry that you are feeling unwell and you shouldn’t even come down, I will call you and check on you, how you are feeling”. He said to me “well, if you’re really unwell”, which at the time, made me feel that he actually questioned the fact that I was ill, “then you go home”.
On 4 July 2016, the applicant sent an email to the management staff at the respondent stating that she was feeling unwell and heading to the doctors that morning. The email was sent at 7:16am. By an email of the same day sent at 7:38am from Matt Nunn to Mr Batish, Mr Nunn’s response was “WTF?”
The applicant’s termination and the final payslip claim
On 11 July 2016, the applicant returned to work and was advised by Mr Batish (at a meeting attended by Tara Caruana) that the respondent had decided to terminate her employment during her probationary period. The respondent paid the applicant three weeks’ pay in lieu of notice as well as accrued entitlements (rather than the one week’s notice of termination under her employment contract). The applicant was handed a letter confirming the respondent’s decision to terminate her employment at the end of the meeting.
Kim Nunn, the respondent’s CFO gave evidence that she processed the applicant’s termination pay as part of the respondent’s normal monthly pay run on 13 July 2016 and on 14 July 2016 printed the applicant’s final payslip and sent her the final payslip by post to her address. I accept the evidence of Ms Nunn that she did do these things and there was no failure to provide the applicant a payslip in accordance with s.536 of the Fair Work Act.
The Local Agent Finder and Godfrey Hirst pitch
The respondent also relied upon what it considered to be the applicant’s failure to produce work in a timely way in relation to pitches for work for a business “Local Agent Finder” and Godfrey Hirst. Mr Nunn gave evidence that he forwarded the applicant email correspondence for a brief for Local Agent Finder on the 31 May 2016. That email advised that the final presentation for the pitch for that work was to occur on 8 June 2016.
The applicant was made aware by Mr Nunn that the materials for the pitch needed to be completed by 7 June 2016. On 7 June 2016, the day before the pitch was to be delivered to Local Agent Finder, the applicant briefed other members of the respondent’s staff including Ms Caruana in relation to the brief. At 12:48pm on that day, the applicant emailed Tara Caruana and two other members of her team, attaching a template presentation for the Local Agent Finder pitch, requesting that they include (“their slides”).[18]
[18] Court book 4-53.
Tara Caruana gave evidence that she had previously sought assistance from the applicant for the preparation of the media budget for the Local Agent Finder pitch on 27 June 2016 and had been told by the applicant words the effect “oh no I don’t do that, that’s not my job.” Ms Caruana verbally informed Mr Nunn that the applicant had briefed her on the Local Agent Finder pitch only on the morning of 7 June 2016 and that the applicant had refused her request for assistance with preparing the budget for that pitch.
Ms Caruana gave evidence in her capacity as the Trading Director of the respondent, having worked in that business since May 2010. She stated in her evidence to the Court that she and her team had been only given four hours to turn the LAF pitch around in circumstances where the applicant had been provided with the briefing documents for a week.
She also gave evidence that it was the usual role of the Head of Strategy to provide guidance in relation to budget allocations for pitches; that is that the strategist will give a recommendation as to what type of media is to be used in advertising a product.[19] Ms Caruana was dissatisfied with the applicant’s performance in relation to Local Agent Finder and had told Mr Nunn of this on about 7 June 2016.
[19] Transcript 165-5-10.
A further issue arose in relation to the applicant’s performance in relation to a pitch concerning Godfrey Hirst carpets. On 9 June 2016, the applicant accepted a calendar meeting request from Mr Nunn for a meeting to be held on 16 June 2016 entitled “Nunn media campaign planning with Godfrey Hirst”. The applicant was aware that the pitch for the Godfrey Hirst work was to be delivered at a final meeting with that business due to be held on 30 June 2016, as a result of her accepting a meeting request for that meeting on 26 June 2016.[20]
[20] Court book 5-11.
Meetings were held in relation to the Godfrey Hirst brief on 16 June 2016 and 21 June 2016. On 22 June 2016, the applicant sent an email to Tara Caruana attaching some independent data and PowerPoint slides to be used in the Godfrey Hirst presentation. The email of 22 June 2016 stated that the applicant would chat with Ms Caruana. The applicant stated: “hey Tara I’ll dial you in 10 minutes to chat through the thinking”.
Ms Caruana gave evidence that the applicant did not discuss the Godfrey Hirst matter with her until Monday 27 June 2016 and stated that during that discussion, when Ms Caruana asked the applicant where the strategy slides for the presentation were, the applicant replied to Ms Caruana with words the effect: “I’m not writing the strategy. I’m just giving the Roy Morgan slides.”
Ms Caruana gave evidence that she spoke to Mr Nunn on 27 June 2016 and told him that the applicant had told her that she was not going to provide the strategy slides. Ms Caruana was adamant that Mr Nunn had spoken to the applicant regarding the applicant providing strategy slides on about three occasions.
On 29 June 2016, the applicant attended a meeting to discuss the status of the Godfrey Hirst presentation and during that meeting Mr Nunn asked the applicant about the status of the strategy slides as they had not yet been completed. On 29 June 2016, Lisa Synot, an employee of the respondent sent an email to the applicant together with Mr Nunn and Ms Caruana attaching an updated Godfrey Hirst media plan and slides, advising that the strategy slides (which were to be prepared by the applicant) were still missing.
On 12:48am on 30 June 2016, the applicant emailed strategy slides to Mr Nunn and Ms Caruana and others, 12 minutes before the meeting was scheduled to be held with Godfrey Hirst at 11:00am on that morning.
I accept that Mr Nunn was dissatisfied with the applicant’s performance as a result of her failure to provide strategy slides for the Godfrey Hirst presentation in a timely way. I accept the evidence that Ms Caruana gave in relation to the conduct of the applicant in relation to this piece of work.
I accept that Ms Caruana and Mr Nunn were genuinely concerned regarding the applicant’s performance in relation to the Local Agent Finder brief as at 7 June 2016, and certainly as at 27 and 28 June 2016. I also accept that Mr Nunn and Mr Batish were genuinely concerned regarding the applicant’s performance in relation to a role as Head of Strategy as at the date of termination of employment. I accept the evidence that Ms Caruana gave in relation to the applicant’s lack of cooperation in relation to the applicant’s conduct in relation to the Local Agent Finder and Godfrey Hirst pitch. Ms Caruana’s evidence was supported by emails from the applicant.
The applicant’s claim that she was terminated due to illness/injury or because she took personal leave
The applicant alleges by her statement of claim that the respondent has breached s.536 of the Fair Work Act by terminating the applicant's employment because the applicant was entitled to and exercised her workplace right to take personal leave due to personal illness or injury pursuant to s.97 of the Fair Work Act. It is alleged that the respondent has breached s.340 of the Fair Work Act by dismissing the applicant due to her entitlement to and because of her exercise of her workplace right to take personal leave due to illness or injury.
The applicant, in the course of the proceeding, placed great emphasis on the email from Mr Nunn to Mr Batish dated 4 July 2016 where he exclaims “WTF (what the f….)” in response to the email from the applicant advising that she was attending the doctor that morning.[21]
[21] Court book 2-104.
I accept the evidence of Mr Nunn that by 29 June 2016, Mr Nunn had decided to terminate the applicant's employment and had commenced taking steps to find a replacement for her role. In that regard I refer to the evidence of Mr Nunn regarding his phone call to Richard Scott and two emails from Richard Scott to Mr Nunn and Mr Batish on 30 June 2016 referring to enquiries that Mr Scott was making with candidates for a replacement employee.[22]
[22] Ibid 4-78.
I regard Mr Nunn’s comment as an expression of exasperation but not evidence that the illness or injury of the applicant or that she was taking leave was a reason for the termination of her employment. Mr Nunn was in a position where three projects that the applicant had been directly involved in, being Bakers Delight, Local Agent Finder and Godfrey Hirst, had shown a less than satisfactory performance by the applicant. Mr Nunn was also in a position of being aware of other staff who are experienced and long standing employees in senior positions, in particular Ms Caruana, were completely unimpressed by the applicant's attitude and performance.
The evidence establishes that the real reason and only reason for the termination of the applicant's employment was Mr Nunn's belief that that she was unable to satisfactorily perform her role within the business. The respondent has discharged its onus of establishing that the reason for the termination was not a prohibited reason and did not include a prohibited reason.
The workplace complaints claim
The applicant also alleged that her employment was terminated because she exercised a workplace right to make a complaint or enquiry in relation to her employment pursuant to s.341 of the Fair Work Act. Paragraph [16] of her statement of claim alleges “in mid-June 2016 the applicant made a complaint to the respondent regarding the competency of Rob Francasio – Implementation Director and her assumption of some of his responsibilities.” The complaint was said to have been oral and contained in discussions between the applicant and Mr Batish and the applicant and Mr Nunn.
It is also asserted by paragraph [17] of the statement of claim that on 1 July 2016, the applicant made a complaint to the respondent regarding the competency of Mr Francasio. That complaint was said to be oral and contained in a discussion between the applicant and Mr Batish. By paragraph [18] the applicant alleges that she complained multiple times about her workload as she was covering more than a strategy function and was also involved in new business and implementation.
The evidence does establish that there were discussions between the applicant and Mr Batish and Mr Nunn regarding concerns held by the applicant about Mr Francasio’s performance and the impact that she perceived that had on her workload. The applicant gave evidence that she made a “ work inquiry” regarding her job responsibilities, about structure and her workload with Mr Batish.[23] This resulted in Mr Batish convening a discussion between the applicant and Mr Francasio. Whilst the applicant gave evidence that she was not particularly satisfied by the outcome of that discussion, the applicant did not point to anything that was said or done by Mr Batish or Mr Nunn as a result of her raising those concerns.
[23] Transcript p231 -30
In my view the discussions that the applicant had with Mr Nunn and Mr Batish in relation to Mr Francasio were in the nature of conversations that are an ordinary incident of employment, where a comment is made by one employee regarding another regarding that person’s work. Having heard the applicant’s evidence regarding her discussions regarding Mr Francasio’s performance it is difficult to discern that they rose to level that the words used by the applicant conveyed “ a grievance, a finding of fault or accusation”[24] .”
[24] Shea v TRUenergyServices Pty.Ltd. ( No.6) [2014] FCA 271 ( Dodds Streeton J)
Even if it is accepted that the conversations that she was having with Mr Nunn and Mr Batish regarding Mr Francasio had “potential implications for the complainant’s employment,” [25] having heard the evidence of Mr Nunn and Mr Batish in relation to those conversations, the evidence does not support a finding that the reasons for termination included a reason based on the fact that the applicant raised issues or concerns in relation to Mr Francasio and/or her workload.
[25] Walsh v Greater Metropolitan Cemeteries Trust (No 2 ) [2014] FCA 456 [42].
In considering whether the respondent has displaced the presumption in s.361 of the Fair Work Act, I have regard to State of Victoria (Office of Public Prosecutions) v Grant,[26] where Tracey and Buchanan JJ state at [32]:
As the trial judge recognised the leading authority on the operation of ss 360 and 361 of the Fair Work Act in the context of Part 3-1 of that Act (which includes s 351) is Board of Bendigo Regional Institute of Technical and Further Education v Barclay(2012) 248 CLR 500; 220 IR 445. The principles which informed this decision were recently reaffirmed by a majority of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41. Relevantly, these authorities establish that:
·The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
·That question is to be answered having regard to all the facts established in the proceeding.
·The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
·It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
·Even if the decision-maker gives evidence that he or she acted solely for nonproscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
·If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.
[26] [2014] FCAFC 184.
I accept the evidence of Mr Nunn, the decision maker in this case, having seen him in the witness box that he was acting for non-proscribed reasons when he terminated the employment of the applicant.
For these reasons each of the applicant's claims fail, and I make orders dismissing the applicant’s application.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 26 September 2017
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