McLoughlin v Randstad Pty Ltd (No 3)
[2021] FCCA 223
•19 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
McLoughlin v Randstad Pty Ltd (No 3) [2021] FCCA 223
File number(s): SYG 2985 of 2018 Judgment of: JUDGE STREET Date of judgment: 19 February 2021 Catchwords: INDUSTRIAL LAW – application alleging contraventions of ss 340 and 351 of the Fair Work Act 2009 (Cth) – application alleging the third and fourth respondents were knowingly involved in the contraventions within the meaning of s 550 of the Act – termination of the applicant’s employment was adverse action within the meaning of s 342(1) of the Act – the applicant’s mental illness or disability was not a substantial and operative reason for the adverse action in the dismissal of the applicant – the adverse action presumption under s 361 of the Act as to a proscribed reason rebutted by the respondents – no contravention of ss 340 or 351 of the Act has been made out – no contravention under s 550 of the Act is made out against the third respondent or the fourth respondent –application dismissed. Legislation: Fair Work Act 2009 (Cth), ss 4, 340, 341, 342, 351, 360, 361, 366, 545, 550, 793, 789FC Number of paragraphs: 99 Date of last submission/s: 22 December 2020 Date of hearing: 19 – 20, 22 October 2020 Place: Sydney Counsel for the Applicant: Ms K Edwards Counsel for the Applicant: Ms B Byrnes Solicitor for the Applicant: Danny King Legal Counsel for the Respondents: Mr M Seck Solicitor for the Respondents: Holding Redlich ORDERS
SYG 2985 of 2018 BETWEEN: BEVERLY MCLOUGHLIN
Applicant
AND: RANDSTAD PTY LTD
First Respondent
PAUL STEWART
Second Respondent
BROOKE O'KEEFE (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
19 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
REASONS FOR JUDGMENT
JUDGE STREET:
This is an application for relief under the Fair Work Act 2009 (Cth) (“the Act”) in respect of alleged contraventions of ss 340 and 351 of the Act in respect of the adverse action constituting the dismissal of the applicant from her employment by her employer, the first respondent. The third and fourth respondents were allegedly knowingly involved in the contraventions within the meaning of s 550 of the Act. The third respondent was the human resource manager who was involved in events leading up to the dismissal of the applicant. The fourth respondent was the person who made the ultimate dismissal decision and signed the dismissal letter. On 22 October 2020, the second respondent was removed as a party to the proceedings.
The applicant was suspended form work on 19 July 2018 by a Notice of Suspension of Employment, followed by a letter dated 23 July 2018 entitled “Notice of Suspension and concerns relating to misconduct Detail of concerns and opportunity to respond” signed by the third respondent. That letter dated 23 July 2018 made express reference to the applicant’s post on LinkedIn published on 17 July 2018, which post was attached to the letter as well as the same appearing to be contrary to the first respondent’s Social Media Email and Internet Policy which was also attached, and the failure to immediately remove the same when directed by her immediate supervisor. The letter dated 23 July 2018 referred to the applicant’s email sent at 2.48pm on 18 July 2018 and an email at 2.27am on 19 July 2018 to the second respondent. The letter also referred to an email sent to Mr Rossi by the applicant at 9.23pm on 23 July 2018, which was also attached, and the letter referred to the content of a report from an employee Ms Bui and the applicant’s email dated 3 February2016 to the alleged perpetrator, which was also attached. The letter referred to the potential for a finding of misconduct justifying summary dismissal and provided an opportunity to respond no later than 5pm on 27 July 2018.
The applicant sent an email on 18 July 2018 at 3.23pm to the fourth respondent referring to a discussion about salary and attaching a transcript of the discussion. The applicant raised concerns about the absence of action against the perpetrator in discussions with an employee of the first respondent on 13 June 2018. In an email dated 18 June 2018 the applicant raised concerns about the perpetrator returning.
The applicant was sent an email on 18 June 2018 that the first respondent was taking steps in regard to a resolution for the applicant’s grievance.
The applicant sent an email to the second respondent and another employee of the first respondent at 2.14pm on 18 June 2018 which, in addition to the applicant identifying with another complainant, relevantly asserted the perpetrator should be sacked.
The applicant was dismissed on 7 August 2018.
The applicant’s case is one in which the applicant points to her history of having been a very good employee, having been employed overall for a period of 12 years, and that it was not until early 2016 that the applicant had a manic episode, which she alleged was triggered by workplace bullying and which gave rise to two periods of hospitalisation.
Following the second period of hospitalisation in 2016, the applicant returned to work and the person who was the alleged perpetrator of the bullying was moved to another location of employment, at Sydney rather than Parramatta, by the first respondent for a period of time.
The conduct that was engaged in by the applicant by the emails sent 3 February 2016 to the alleged perpetrator and the email on 9 February 2016 included making allegations and threats against the alleged perpetrator of her bullying, which can properly be characterised as threats and bullying by the applicant. Also of concern was the disclosure by the applicant of an intent to engage in conduct seeking to take down the first respondent and the alleged perpetrator of the bullying.
The applicant gave brief oral evidence and was not the subject of any significant credit attack. The applicant was not, however, an impressive witness and the Court prefers the contemporaneous documents where in conflict with the applicant’s account of events and in particular the email report by the employee Ms Bui sent on 17 July 2018 in respect of the applicant having a meeting with Ms Bui on 16 July 2018 in which the applicant said that she has all the evidence to take down the perpetrator and the first respondent and that she is taking down the perpetrator. The Court notes that the applicant acknowledged that she told Ms Bui on 16 July 2018 “I’m going to take down Randstad”.
The alleged perpetrator has not given evidence.
The Court accepts that there was obviously some level of conflict between the applicant and the perpetrator, who both remained employed with the first respondent until the applicant’s dismissal in 2018. The first respondent did take reasonable action against the perpetrator both by way of relocation for a period as well as the final warning letter and that conflict does not warrant the drawing of any adverse inference against the respondents as to a substantial and operative reason or reasons being a proscribed reason for the termination of the applicant.
The first respondent became aware in 2016 that the applicant had been on the wrong medication and that her conduct in 2016 was identified as having been caused by that wrong medication in respect of her mental illness.
The conduct the applicant engaged in in February 2016 would itself have justified a summary dismissal of the applicant. The first respondent did not do so, but has been criticised for the failure to take steps against the perpetrator beyond the period over which the perpetrator was moved to another office. The Court finds that the first respondent took reasonable steps against the perpetrator and that no adverse inference should be drawn against the respondents because of these events.
A detailed analysis was engaged in both in cross examination of the third and fourth respondents and in submissions in relation to the first respondent’s disciplinary policy in relation to ensuring the absence of bullying in the workplace and to have a safe place of work and procedure for disciplinary investigations. The applicant engaged in a very close detailed analysis of that disciplinary policy, the investigation taken and the absence of steps that might have been able to be taken against the perpetrator in 2016 or subsequently in 2018 to invite the drawing of adverse inferences against the respondent. The Court has declined to do so, as it has found the evidence of the real and ultimate decision maker, who was called to give evidence, is credible and truthful.
The Court has accepted that the first respondent took reasonable steps in relation to the applicant’s complaints against the perpetrator between 2016 and 2018. The Court finds the applicant’s complaints about the perpetrator between 2016 and 2018 do not persuade the Court that the fourth respondent’s evidence as the ultimate decision maker is not credible and should be rejected. Having considered all the circumstances and having accepted the fourth respondent’s evidence, the Court finds that the adverse action presumption as to a proscribed reason has been rebutted by the respondents.
The fourth respondent gave evidence that he did not take steps against the perpetrator in 2016 because he was of the view that the applicant was affected by a mental illness as a result of a problem with her medication. That was a reasonable position for the first respondent and the fourth respondent to take in respect of the applicant, taking into account the threats made by the applicant in 2016 against the perpetrator. It is also an obvious explanation for the absence of any other steps taken against the perpetrator in 2016 other than the temporary relocation. This tolerance by the fourth respondent of the applicant’s conduct in 2016 corroborates the fourth respondent’s evidence that the applicant’s mental illness or disability was not a substantial and operative reason for the adverse action in the dismissal of the applicant in 2018.
Medical evidence was called from a Dr Jungfer, a psychiatrist, who was cross examined. Dr Jungfer provided reports dated 8 January 2019, 22 February 2019, 11 February 2020, 3 March 2020 and 16 June 2020, including a Whole Person Impairment Assessment. Dr Jungfer initially diagnosed the applicant in January 2018 as having a bipolar disorder with mixed affective state and post-traumatic stress symptoms. In an updated report, Dr Jungfer diagnosed the applicant’s bipolar disorder as now having a hypomanic phase with mixed emotional features. The bipolar disorder was identified by Dr Jungfer as being a constitutional disorder and that once manifested stressors can lead to recurrent episodes. Dr Jungfer identified both potential personal circumstances as well as work stressors potentially leading to a relapse. Dr Jungfer found the applicant’s whole of person impairment had significantly worsened from the time of his first report to his second report which reflected a significant deterioration during that time period. Dr Jungfer referred to the applicant’s father’s illness declining more recently. Dr Jungfer agreed that the applicant’s ability to return to full time work would be partly influenced by the stabilisation of her condition as well as referring to the applicant’s adjustment disorder. Dr Jungfer confirmed in cross examination the view expressed in his first report that the applicant’s complaint on 14 June 2018 to the Fair Work Commission and her termination was more probably than not over a reflection of her ill health. Dr Jungfer also identified in the first report the applicant will require ongoing psychiatric treatment and that her prognosis was good and that she should be capable of returning to the workforce. In the second report, Dr Jungfer opined that the termination resulted in a greater expression of the applicant’s illness and opined the applicant’s a prognosis of 3 to 6 months for recovery.
Dr Roberts, a consultant general and forensic psychiatrist, provided a report dated 22 May 2020 and a supplementary report dated 23 August 2020. The first report identified that the applicant’s condition had improved with adjustments to her treatment. It was identified that the applicant first came under the care of a psychiatrist Dr Pace in 2003 for a depressive episode and was hospitalised in 2004 or 2005 and then admitted to St John of God Hospital and remained on antidepressant medication with her general practitioner maintaining her treatment. Dr Roberts referred to the applicant’s admission to Cumberland Hospital in February 2016 with a manic episode and that during this episode the applicant sent inappropriate emails. The applicant returned to work about 4 weeks after discharge for Cumberland Hospital initially on limited hours but after 3 weeks was re admitted to hospital on 21 April 2016 following which she returned to work initially on reduced hours and reporting to a different manager.
The medial records of Dr Malaowalla were also tendered, as well as hospital records and clinical notes.
Two letters were also tendered from Dr Malik.
WorkCover NSW certificates by Dr P.M. Valente dated 21 June 2018, 17 July 2018 and 30 October 2018 were also tendered and the applicant identified these as referring to an injury being victimisation/anxiety/work related bullying/post-traumatic stress disorder commencing in 2017. Dr Valente also provided a report dated 14 June 2019.
The Court finds that the applicant had a long standing constitutional disorder by reason of being bipolar that first manifested itself in 2003. The applicant had had a mania or manic episode because of her bipolar disorder in early 2016. The Court accepts the medical evidence that the applicant had a recurrence of that manic episode or mania in or about June 2018 by reason of having a constitutional bipolar disorder which gave rise to the conduct of the applicant in respect of which the applicant was dismissed by the first respondent on 7 August 2018.
The applicant’s case is the dismissal was adverse action and that the respondent has failed to discharge the onus under s 361 of the Act. The applicant in that regard invites the Court to take into account the whole of the surrounding circumstances in evaluating a substantial and operative reason or reasons for the dismissal of the applicant, as well as in relation to determining the issue of credibility in respect of the witnesses. The only adverse action pleaded in paragraph 62 the Amended Points of Claim is the termination on 7 August 2018 and the applicant’s case under ss 340 and 351 of the Act is so confined. The alleged adverse action cannot be expanded to a course of conduct leading up to the dismissal. The Court has taken into account the whole of the surrounding circumstances in evaluating a substantial and operative reason or reasons of the respondents for that adverse action being the dismissal of the applicant.
At the core of the case is the question of the credit of the fourth respondent, who in substance maintained that he was the sole and ultimate decision maker. Detailed criticism was made of the first respondent and the credibility of the fourth respondent by reason of information that was put on in response to the claims in these proceedings, in respect of which it was alleged that the first respondent was unaware that the applicant was seeing a psychiatrist in June 2018. In that regard, it is apparent that there were communications to employees of the first respondent that did identify that the applicant was seeing a psychiatrist and was obviously the subject of a mental illness. The Court does not find these criticisms warrant rejection of the fourth respondent’s evidence either as to being the ultimate decision maker or in his evidence, which the Court accepts, as to his substantial and operative reason for the adverse action, and, which the Court finds rebuts the presumption as to a proscribed reason for the applicant’s termination.
The Amended Points of Claim dated 13 March 2020 comprised 28 pages and went beyond pleading only material facts and particulars to include evidence. The Amended Response to the Amended Points of Claim dated 20 April 2020 was signed by the respondents’ solicitor, identified it was prepared by the solicitors and settled by counsel, was not signed by the fourth respondent and criticised the adequacy of the pleading. The applicant filed a Points of Reply to the Amended Response.
Very close analysis was engaged in of surrounding circumstances in respect of the communications leading up to the termination of the applicant, through the opening, cross examination and in the oral submissions and the written submissions up to the trial and after the Court reserved its decision. This includes the Applicant’s Submissions dated 11 September 2020, the Respondents Submissions dated 9 October 2020, the Applicant’s Supplementary Closing Submissions dated 11 November 2020, the Respondents Supplementary Submissions dated 3 December 2020 and the Applicant’s Submissions in Reply dated 22 December 2020, as well as the chronologies, all of which the Court has taken into account.
There was detailed focus upon the communications that took place following the making of a bullying complaint by the applicant to the Fair Work Commission under s 789FC of the Act and the initiation of a misconduct complaint against the applicant by the first respondent by letter dated 23 July 2018. The first respondent was represented at the Fair Work Commission in respect of the bullying complaint by a solicitor, Mr Rossi, and the first respondent also engaged Mr Rossi, to the knowledge of the Fair Work Commission, in relation to the investigation of alleged misconduct by the applicant raised in the letter of the first respondent dated 23 July 2018.
The Court does not accept that the propinquity or timing of the termination of the applicant being an event after the Fair Work Commission complaint, threat of interim injunction or surrounding communications supports the drawing of any adverse inference against the respondents. The making of the Fair Work Complaint does not prevent termination of the applicant for misconduct and equally does not mean that an adverse inference must be drawn against the respondents as to there being a proscribed reason for the subsequent termination of the applicant. The applicant was given a reasonable opportunity to respond to the complaint and did not do so which is why no such adverse inference should be drawn. The evidence of the fourth respondent, which the Court accepts, is a further reason why no such adverse inference should be drawn.
The application of the applicant for a stop bullying order to the Fair Work Commission and her participation in the Fair Work Commission processes, including the conciliation on 10 July 2018, do not support the drawing of an adverse inference against the respondents as to the substantial and operative reason or reasons being a proscribed reason for the adverse action. This is because the applicant was given a fair opportunity to respond to the misconduct complaint and did not do so.
The Court rejects the applicant’s submission that the “take down” comment by the applicant was a substantial and operative reason for the adverse action and does not accept that the applicant’s complaint to and participation in the Fair Work Commission processes was a substantial and operative reason for the taking of the adverse action.
Nor does the content of the misconduct complaint letter and the reference therein to the naming of the perpetrator of the bullying application and reference to the applicant’s email sent to the perpetrator in 2016 support the drawing of an adverse inference against the respondents as to the substantial and operative reason or reasons being a proscribed reasons for the adverse action. This is because the Court accepts the fourth respondent’s evidence and that evidence is corroborated by the dismissal letter signed by the fourth respondent sent by email on 7 August 2018.
The Court does not accept that the pleading by the respondents in the Amended Response as to timing of knowledge as to the applicant being under the care or a psychiatrist and having a disability supports the applicant’s submission that the respondents’ case is based on lies and a willingness or attempt to mislead the Court. The respondents’ knowledge in 2018 of the applicant being under the care of a psychiatrist and that the applicant had a disability and feared a relapse does not support the drawing of an adverse inference as to the substantial and operative reason or reasons being a proscribed reason for the adverse conduct. This is because the applicant had a reasonable opportunity to respond to the complaint and did not do so. Nor does the pleading error in response, where there was dense pleadings of non-material facts and evidence, warrant the rejection of the credit of the fourth respondent or the drawing of such an adverse inference.
The Court does not accept that the perpetrator of the bullying was treated more favourably as the conduct was not identical with that of the applicant. The Court does not accept that the respondents knew they would have to terminate either the applicant or the perpetrator and had to lose the applicant and not the perpetrator. The evidence does not support such a finding. The investigation steps, including the extension of time and opportunity for the applicant to respond, are contrary to that contention. The existence of two different offices by the respondent, in the city and Parramatta, is also contrary to that contention. The evidence of the fourth respondent is contrary to that contention.
Part of the circumstances relied upon by the applicant as supporting a finding that the first respondent has not discharged its onus to rebut the presumption, that a substantial and operative reason that it took adverse action was because the applicant had exercised a workplace right in making and pursing the bullying complaint, to be safe at work, not to be the subject of discrimination or harassment, her right to seek an interlocutory injunction and/or because the applicant was the subject of a mental illness or disability, is the misconduct investigation by Mr Rossi. Contrary to the applicant’s submission, the investigation did give rise to real and significant steps that were taken by the first respondent against the alleged perpetrator of the bullying. This included the first respondent making certain adverse findings against the perpetrator in a first and final warning letter dated 3 August 2018. The Court finds that the respondents have rebutted the presumption that a substantial and operative reason for the taking of the adverse action was because the applicant had exercise a workplace right as pleaded or was because the applicant had a mental illness or disability.
In that investigation, there were certain allegations that were not the subject of close analysis and, on one view, were not investigated at all. The Court does not accept that the absence of close analysis or the deficiencies in the investigation supports any adverse inference as to a proscribed reason for termination of the applicant by the first respondent. This is because the applicant, despite the opportunity to do so, declined to be interviewed and did not respond to the misconduct letter. Internal disciplinary investigations of alleged misconduct are not an exhaustive analysis or perfect process beyond internal error.
The Court finds that the investigation by Mr Rossi was a reasonable and genuine endeavour to obtain information to address the alleged misconduct and sufficiently complied with the first respondent’s disciplinary policy. It is of relevance, in this regard, that the investigation by the obtaining of information into alleged misconduct by Mr Rossi was being undertaken with the knowledge of the Fair Work Commission. The applicant declined to participate in that investigation by demanding that the first respondent pay for a lawyer for her. The Court finds that was a deliberate step by the applicant not to participate in the investigation.
The Court is satisfied that the first respondent took reasonable steps to comply with its disciplinary policy by the engagement of Mr Rossi to investigate by obtaining information in respect of the misconduct allegations and the taking of disciplinary action by the first respondent against the perpetrator. The refusal of the applicant to participate or respond despite a reasonable opportunity to do so undermines the applicant’s criticism of the investigation and of Mr Rossi. Accordingly, the Court finds that no adverse inference should be drawn against the respondents from the circumstances surrounding the complaint, the communications concerning and the investigation of the alleged misconduct of the perpetrator and the applicant by Mr Rossi and the first respondent, as to a substantial and operative reason or reasons being a proscribed reason for the adverse action.
The submission was also advanced by the applicant that Mr Rossi was in a position of conflict, and want of impartiality, by reason of having been engaged in the Fair Work Commission bullying complaint. The appointment of Mr Rossi to investigate by obtaining information for the first respondent was expressly raised at the Fair Work Commission on 10 July 2018 and no objection was taken to that course at that time. Indeed, the applicant’s email dated 11 July 2018 which is lengthy and combative suggested that the applicant would cooperate with an interview with Mr Rossi. The applicant sent a further combative email complaining in particular about the second respondent on 19 July 2018 at 10.31am. The applicant did not cooperate with an interview and, albeit on notice as to potential summary dismissal, did not respond to the complaint notwithstanding a reasonable opportunity to do so.
The Court does not accept that the engagement of Mr Rossi in that role meant that there was not an impartial investigator to obtain information appointed in respect of the alleged misconduct. The reasonableness of the investigation being conducted by Mr Rossi is also supported by the disclosure of the same to the Fair Work Commission. The Court finds that the applicant did not respond to the misconduct complaint despite a reasonable opportunity to do so and the applicant did not provide objective evidence about her psychiatric condition. The Court does not accept that the aim of the misconduct investigation was to get rid of the applicant for misconduct but rather the aim was to carry out a misconduct investigation in accordance with the first respondent’s disciplinary policy.
The content of the outcome of the investigation concerning the perpetrator was communicated in a letter signed by the fourth respondent sent by email to the applicant on 6 August 2018. The letter referred to the applicant declining to participate in the investigation by Mr Rossi and that Mr Rossi had been appointed to obtain statements and records of interview of relevant witnesses.
The absence of the interview of Ms Bui who provided information in an email concerning the applicant and reference to that email does not warrant any adverse inference against the respondents.
The role of Mr Rossi, a solicitor, in the investigation by gathering information in the bullying complaint against the perpetrator and the complaint against the applicant were reasonable steps for the first respondent to take and reasonable compliance with the first respondent’s disciplinary policy. There was no conflict of position in the conduct to be investigated that meant the first respondent could not reasonably appoint Mr Rossi to conduct the investigation to gather information.
Whilst the investigation might impact on Mr Rossi as a possible witness in any future controversy, that is generally so of all disciplinary investigators who are often another employee. The bullying complaint did not concern or involve Mr Rossi. The Court finds that it was not unreasonable for the first respondent to engage Mr Rossi to carry out the disciplinary investigation by obtaining information in relation to the misconduct complaint against the perpetrator and the complaint against the applicant under the first respondent’s disciplinary policy.
The Court finds the role Mr Rossi in the investigation of the two complaints by gathering information and communications and providing an opportunity to the applicant to participate in an interview and to put on submissions are not circumstances by reason of which an adverse inference should be drawn against the respondents as to a substantial and operative reason or reasons being a proscribed reason for the adverse conduct.
A core complaint in respect of the surrounding circumstances advanced by the applicant is that the opportunity for response by the applicant was not extended a second time. The applicant’s solicitors wrote very shortly before the expiry of the first extension seeking a second extension.
It was also submitted that there had been a cherry picking or sanitising in relation to the misconduct findings and that the first respondent and those allegedly involved in the decision making had deliberately embarked on a course of conduct to prevent input by the applicant. The Court does not accept these submissions. The evidence of the fourth respondent which the Court accepts is to the contrary and it was the applicant who failed to prevent a response despite the opportunity to do so.
The applicant was initially given 7 days to respond to the misconduct complaint and was then on 25 July 2018 by email request given an extension up to close of business on Friday 3 August 2018. The extension email expressly referred to this being considered sufficient to enable the applicant’s solicitor to finalise the obtaining of instructions and the provision of a detailed response. This amounts to 11 days for the applicant to respond.
The applicant’s solicitors were also sent the letter by Mr Rossi to the Fair Work Commission identifying the steps being taken and that the applicant had declined to meet with Mr Rossi unless the first respondent agreed to pay for a solicitor. The letter explained that there was no objection to a solicitor or support person being present and the other investigation steps being taken.
An email was sent by the applicant’s solicitor’s on 2 August 2018 stating “we do not intend to respond to” the letter 23 July 2018.
Mr Rossi sent the applicant’s solicitors an email on 3 August 2018 referred to the letter on 2 August 2018 and stating that the investigation into allegations raised by the applicant in relation to the perpetrator had concluded, that the perpetrator is working in the city, referred to the extension of time and repeated the need to for the applicant to respond to the misconduct allegations by close of business today, noting that the applicant had ample opportunity to provide submissions.
Then at 4.24pm on 3 August the applicant’s solicitor’s sought extension identifying that their client will need a period of at least 10 days to respond to the allegations which was not granted.
The Court gives no real weight to the medical opinion of Dr Roberts about the time required by the applicant to respond as it is based on unidentified assumptions as to the steps taken by the applicant and her solicitor to respond, fails to take into account the applicant’s apparent ability to send lengthy and/or combative emails including at 2.48pm and 9.23pm on 18 July 2018 and 8.27am on 19 July 2018 and the questionable response timing expertise.
The Court finds 11 days was a reasonable and fair amount of time for the applicant to respond given the brevity of the issues, clear timing notice that was given and the detailed communications that the applicant’s solicitor was able to send and the applicant’s stance on 2 August 2018 of no intention to respond.
It was submitted on behalf of the applicant that the complexity of the task was compounded by the applicant’s mental illness. Whilst the Court accepts that the applicant did have mental illness and accepts the diagnosis that the applicant was at that time suffering from a mania, the Court does not accept that the further extension, up until 3 August 2018, was not a fair and reasonable opportunity for the applicant to respond. The applicant was given 11 days with the first extension to respond which was in the circumstances reasonable. It was not unreasonable in the circumstances to refuse a second further extension. The Court does not accept that the applicant had insufficient time to respond or that the applicant’s illness or disability prevented a response. The failure of the applicant to respond within the extended timeframe was of her own making and the Court finds was a deliberate decision.
The applicant’s solicitor’s sent a further email on 6 August 2018 foreshadowing the seeking of interim orders.
The dismissal letter dated 7 August 2018 sent by email to both the applicant and her lawyers expressly referred to the LinkedIn posting, the breach of the social media policy, the refusal to immediately remove the same, thereby acting inappropriately and amounting to misconduct and “I am of the view that your conduct warrants summary dismissal” signed by the fourth respondent.
The absence of agreement by the first respondent of the second extension, the communications referred to above and the ultimate decision making by the fourth respondent to dismiss the applicant in the absence of the applicant’s response do not support the drawing of an adverse inference against the respondents as to the termination of the applicant being for a proscribed reason. This is because the applicant had a reasonable opportunity to respond and the other deliberate steps that the applicant through her solicitor took instead as referred to above. This is also because the Court accepts the evidence of the fourth respondent.
The Court does not accept that there was any cherry picking or sanitising of the misconduct findings by Mr Rossi or by the first respondent. The applicant’s state of mania was not known by the first respondent or Mr Rossi and does not give rise to the first extension giving 11 days and refusal of the second extension being unreasonable. Nor does the applicant having a mental illness or disability make that refusal of a second extension of time to respond unreasonable.
The applicant’s willingness to be interviewed and the recanting of the same undermines the applicant’s contention. There was a real opportunity to respond to the misconduct complaint which the Court finds was deliberately not taken up by the applicant. The submission of denial procedural unfairness and bias in rejecting the second extension is rejected.
Moreover, to await until what was effectively less than an hour before the deadline for the response before the applicant’s lawyer requested further time by way of a second extension was not reasonable conduct on behalf of the applicant and the applicant’s lawyers. The Court does not accept that there was a real difficulty in obtaining instructions as that was not reflected in the applicant’s lawyers writing that they were obtaining instructions and is contrary to the whole to the communications sent by the applicant’s lawyers including the statement “we do not intend to respond to” the letter 23 July 2018. These circumstances support the refusal of the second extension as being reasonable and displace any adverse inference against the respondents as to a proscribed reason for the termination of the applicant.
There is no adequate explanation as to why a response was not provided by the applicant within the timeframe provided and the Court does not accept that the first respondent took steps to prevent the applicant inputting on or responding to the misconduct complaint. That submission is contrary to second extension and contrary to the evidence of the fourth respondent.
Rather, the Court finds that the applicant was given a fair and reasonable opportunity by the first respondent to respond and was given an extension of time in that regard. The Court finds it was reasonable to not provide a further extension in respect of the last minute request, unsupported by any medical evidence and unsupported by explanation as to the steps that had been taken or at least providing a partial response. The Court finds that the refusal of a second extension does not disclose circumstances by reason of which an adverse inference should be drawn against the respondents as to a substantial and operative reason or reasons being a proscribed reason for the adverse conduct.
As a result of the investigation by Mr Rossi, a disciplinary letter was sent by the first respondent giving a first and final warning to the alleged perpetrator of the bullying and made findings in relation to the complaint by the applicant against the perpetrator. Those findings were reasonably open and a sufficient compliance with the first respondent’s disciplinary policy.
As identified above, the Court does not accept the submission that there was a sanitising and cherry picking in respect of the subject matter of the misconduct investigation. Whilst it is correct that there were other matters that might have been identified for the purpose of a disciplinary investigation, the Court does not accept that the omission of the same supports a finding that the first respondent and the real ultimate decision maker, the fourth respondent, embarked on a strategy to achieve the termination of the applicant’s employment. The Court does not accept that these are circumstances by reason of which an adverse inference should be drawn against the respondents as to a substantial and operative reason or reasons being a proscribed reason for the adverse action. This is because the applicant was given a reasonable opportunity to participate in the investigation and did not do so. This is also because the Court accepts the evidence of the fourth respondent.
The Court accepts the fourth respondent’s evidence that the decision to terminate the applicant was only made on 6 August 2018 by the fourth respondent and at that stage was the subject of instructions given to the solicitor, Mr Rossi, to prepare the termination letter. The Court has taken into account s 793 of the Act and finds that it was the fourth respondent only being an officer of the first respondent who engaged in the ultimate decision making that constituted the adverse conduct of termination of the applicant. The Court has taken into account s 360 of the Act and finds that the fourth respondent was the real and ultimate decision maker in respect of the adverse conduct being the termination of the applicant.
In the circumstances of this case, the Court finds that focus of the inquiry is on the reasons of the fourth respondent as the real and ultimate decision maker. The Court does not accept that any other person than the fourth respondent was involved in the ultimate decision to terminate the applicant. This is because as a matter of credit the Court has accepted the fourth respondent’s evidence that he was the sole decision maker and finds that this is supported by the surrounding circumstances. The Court does not accept that circumstances referred to in these reasons individually or cumulatively support the drawing of an adverse inference against the respondents as to a substantial and operative reason or reasons being a proscribed reason for the adverse action. The Courts accepts the fourth respondent’s evidence and finds no other person’s involvement had a material effect on the ultimate decision to terminate the applicant. The Court rejects the submission that the fourth respondent acted as a mere rubber stamp and the Court finds that he acted independently in making the ultimate decision to dismiss the applicant.
As the fourth respondent was the real and ultimate decision maker, no adverse inference against the respondents arises by reason of the absence of evidence from Mr Rossi or Mr Stewart. The Court accepts the fourth respondent’s evidence that the reference by Mr Rossi to the applicant not returning to Parramatta was an error and does not accept that this warrants the drawing of any adverse inference against the respondents as to a substantial and operative reason or reasons being a proscribed reasons for the adverse action. This is because the applicant had two offices and also because it is contrary to the evidence of the fourth respondent which the Court accepts.
The applicant submitted that adverse inferences should be drawn because of the omission of certain alleged misconduct in the termination letter that had been identified in the initial misconduct letter. The Court does not accept that the omission of certain conduct in the termination letter supports the finding that the respondent was engaged in a strategy of justifying a termination of the applicant that had already been determined, nor does the Court accept that the omission of part of the subject matter of the misconduct allegations gives rise to an adequate basis for the Court to reject the fourth respondents evidence that the substantial and operative reason for the termination of the applicant’s employment was based on the misconduct being the LinkedIn post that was identified in the termination letter and was not for a proscribed reason.
The fourth respondent was the subject of detailed and skilled cross examination over a substantial period of time. That detailed cross examination was said to have demonstrated that the fourth respondent had exaggerated his evidence and was an unreliable witness. The Court does not accept those submissions. The Court does not accept that disciplinary policy and reference to Human Resources agreement and acknowledgment of consultation with the third respondent and Mr Rossi means that his evidence of being the real and ultimate decision maker should be rejected. The correction of the evidence of the fourth respondent in the course of cross examination does not warrant the rejection of his credibility as to being the ultimate decision maker in the taking of the adverse action to terminate the applicant. The Court accepts the fourth respondent’s evidence that he did not decide to take the adverse action for a proscribed or prohibited reason. The criticism of the fourth respondent in not setting out communications with the third respondent and Mr Rossi do not warrant any adverse finding on credibility of the fourth respondent or the drawing of any adverse inference against the respondents.
The Court rejects the submission that the fourth respondent mislead the Court or that he cherry picked facts. The Court found the fourth respondent’s evidence to be credible, frank and forthright and finds that he was an honest witness as to being the sole and ultimate decision maker and as to the want of a proscribed reason for the termination of the applicant. The Court does not accept that the fourth respondent’s evidence was rehearsed, non-responsive or exaggerated. The Court rejects the submission that there has been omission of relevant evidence by the fourth respondent warranting the drawing of any adverse inference or materially impacting on the Court’s assessment of his credibility. The Court also rejects the submission that the fourth respondent was biased against the applicant.
Having carefully observed the fourth respondent at the time of giving evidence and having reviewed the transcript, evidence and submissions, the Court finds the fourth respondent to have been a truthful and honest witness, albeit that there were identified some discrepancies in his evidence. The Court accepts the fourth respondent’s evidence as to being the sole and ultimate decision maker and as to as to his operative and immediate reason for the dismissal of the applicant. The Court has taken into account all the surrounding facts and circumstances as identified in these reasons, including the findings on the possible inferences in determining the substantial and operative reason or reasons of the first respondent through the fourth respondent in taking the adverse action of dismissing the applicant. Those discrepancies do not, however, give rise to this Court, which had the benefit of observing the demeanour of the fourth respondent over a lengthy period of time and taking into account all the answers given, concluding that the fourth respondent was not a truthful witness as to his operative and immediate reason for the dismissal and as to him being the ultimate decision maker in the dismissal of the applicant.
The Court finds this is a case where the ultimate decision of the fourth respondent was based on one incident involving the employee being the LinkedIn post. The ultimate decision maker was called to give evidence and that evidence has been accepted by the Court as rebutting the presumption of a proscribed reason for the adverse action by the first respondent. Further, the fourth respondent’s evidence on the substantial and operative reason for termination not being a proscribed reason is also corroborated by the termination letter.
It was apparent from the fourth respondent’s affidavit that the fourth respondent had focused on the absence of knowledge of the applicant having a diagnosed mental illness in respect of a bipolar condition and a depression disorder. The Court finds that the first respondent and the fourth respondent did not know at the time of termination that the applicant’s mental illness was one diagnosed as mania. The first and fourth respondents did not know the applicant had been diagnosed as having a bipolar condition or depression disorder. The Court does not accept that the respondents knew it was similar behaviour to what happened in 2016 or that there was any deliberate closing of eyes.
The Court does not accept that the respondents did not want to continue to employ the applicant because she had an ongoing mental illness or disability. No adverse inference is drawn against the respondents because of the respondents’ knowledge of the applicant having a mental illness or disability or because of her conduct in 2016 as to a substantial and operative reason or reasons being a proscribed reason for the adverse action. The respondents have rebutted the presumption and the Court finds that the applicant’s diagnosed mania, bipolar condition, depression disorder or mental illness was not a substantial and operative reason for the termination of the applicant.
Whilst the Court does accept that the fourth respondent was aware that the applicant had a mental illness in 2016, and the Court finds that the fourth respondent was aware the applicant had a mental illness in 2018, the Court does not accept that the respondents terminated the applicant’s employment because she had a mental illness. The Court having accepted the fourth respondent’s evidence means that respondents have rebutted the presumption of a proscribed reason and the Court finds that the applicant’s mental illness or disability was not a substantial and operative reason the termination of the applicant’s employment.
The Court accepts the fourth respondent’s evidence that the taking of the bullying complaint in the Fair Work Commission by the applicant and the suggestion of seeking an injunction by the applicant to prevent dismissal were not an operative and substantial reason for the applicant’s dismissal. As to these steps the Court accepts that the applicant had and/or proposed to exercise a workplace right or to prevent the exercise of workplace right within ss 341 and 340(1) (a) or (b) of the Act.
The Court finds that the presumption under s 361 of the Act has been rebutted by the evidence of the respondents and that the exercise or proposed exercise of a workplace right by the applicant as pleaded was not a substantial and operative reason for the termination of the applicant.
The Court finds that the respondents have rebutted the presumption of proscribed reason for the adverse action taken by the first respondent in the termination of the applicant and accepts the fourth respondent’s evidence in respect of the substantive and operative reason for the applicant’s dismissal being the serious misconduct in the placing of a post on LinkedIn, which effectively advertised the applicant’s job for a new protégé. Submissions were advanced seeking to characterise the post as not being an advertisement. The heading and content of the LinkedIn post clearly suggested the applicant was no longer going to be engaged as an employee of the first respondent and was seeking to obtain another person to perform her role. The conduct was completely incompatible with the performance of the core functions and duties of the applicant as an employee. The applicant admitted that she knew it was wrong to put the post up on LinkedIn and the Court finds that the applicant knew it was wrong to put the post up on LinkedIn at the time she did so. Notwithstanding a senior employee requesting the applicant to immediately take down the LinkedIn post, the applicant did not immediately do so and it was not removed until after the request was put in writing.
It was submitted on behalf of the applicant that the post was one that was not seen by anyone and was only on the applicant’s LinkedIn page, rather than on an employment site. It is apparent from the comments that were made that at least two persons saw the post and understood the applicant to be looking for employment elsewhere, consistent with the tenor of the post.
The Court accepts that, objectively, the post on LinkedIn together with the refusal to immediately remove the same was serious misconduct justifying the summary dismissal of the applicant. The post was incompatible with the applicant being willing to perform her core duties for the first respondent. The Court accepts the fourth respondent’s evidence that the applicant’s conduct in placing that post on LinkedIn was the substantial and operative reason for the dismissal of the applicant from her employment. This conduct of the applicant, which clearly involved the internet, was in breach of paragraph 1(c) of the first respondent’s Social Media Email and Internet Policy as well as being inappropriate under that policy.
The Court finds that there was no proscribed reason or reasons for the adverse action by the respondents. The Court accepts the fourth respondent’s evidence that the bullying allegations by the applicant, steps by the applicant to maintain a safe place of work, to prevent harassment and discrimination or the ability of the applicant to make complaint in that regard, pursuit of the Fair Work Commission proceedings, or ability to seek an interlocutory injunction, were not a substantial and operative reason for the dismissal of the applicant.
As referred to above, the termination letter corroborates the evidence of the fourth respondent and supports the Court’s finding that the respondent has rebutted the presumption. The Court finds that the applicant was dismissed not by reason of the existence or exercise of or to prevent the exercise of a workplace right, but because of the substantial and operative reason being her serious misconduct.
The Court also accepts the fourth respondent’s evidence that the applicant was not dismissed because she had a disability or a mental illness and that the existence of the applicant’s mental illness or disability was not a substantial and operative reason for the dismissal of the applicant. The applicant’s submissions endeavour to use the February 2016 circumstances as a comparator in respect of conduct where the applicant was identified as having a mental illness. The Court rejects this submission and the Court finds, as referred to above, that that conduct of the respondents in not dismissing the applicant in 2016 supports the finding that the applicant’s mental illness or disability was not a substantial and operative reason why the applicant was summarily dismissed on 7 August 2018.
It was also submitted on behalf of the applicant that the conduct engaged in by the applicant of putting up the LinkedIn post was at a time when the applicant was suffering from mania and was a consequence of that mania. The Court accepts that the applicant engaged in conduct that was a consequence of her disability or mental illness. That does not, however, immunise the conduct from the ability of an employer to dismiss an employee for the reason of that conduct. The Court does not accept that the removal of the post by the applicant after a formal direction to do so or want of external complaints diminishes the seriousness of the conduct. Nor does the explanation of personal blog by the applicant or absence of express reference to the first respondent or use of its logo diminish the seriousness of the conduct.
There was an initial refusal by the applicant to take the post down when instructed to do so by her immediate superior. The post was up for almost a day and was not sufficiently similar to that of the conduct of another employee in January 2016 and the Court does not accept that there was any differential treatment of employees by the fourth respondent.
The fourth respondent found the conduct in relation to the LinkedIn post including refusal to immediately remove the same to be a deliberate an serious breach of the respondent’s Social Media Email and Internet Policy and that the applicant had engaged in gross misconduct within the first respondent’s disciplinary policy. The fourth respondent decided that conduct justified summary dismissal and was the substantial and operative reason for the summary dismissal of the applicant. That finding of the fourth respondent as to gross misconduct was reasonably open for the reasons given by the fourth respondent. The Court accepts that the fourth respondent was legitimately and genuinely concerned about the impact of the applicant’s LinkedIn post on the public reputation of the first respondent. Nor does the existence of a cause of that conduct mean the cause was a substantial and operative reason for the dismissal. The Court accepts the evidence of the first respondent and that of the fourth respondent that the applicant’s disability or mental illness was not a substantial and operative reason for the dismissal of the applicant.
The Court has taken into account the nature and purpose of the legislation from the objects in ss 4 and 366 of Part 3-1 of the Act, which includes the protection of workplace rights. The Court has also taken into account the content of the Act as a whole and the context and language of the protection in s 340 of the Act and prohibition of discrimination in s 351 of the Act. It is not in dispute that the termination was adverse action within the meaning of s 342(1) of the Act.
The presumption under s 361 of the Act has been rebutted by the evidence of the fourth respondent. The Court finds that it was the conduct of the applicant in making the LinkedIn post, not her disability or mental illness, which was the substantial and operative reason for the dismissal of the applicant from her employment and as such there was no contravention of ss 340 or 351 of the Act. The respondents did not terminate the applicant “because” the applicant had or had exercised a work place right or to prevent the exercise of a workplace right. The Court finds the respondents have rebutted the presumption and proved that there was no prohibited reason within s 340 of the Act that was a substantial and operative reason for the taking of the adverse conduct. The respondents did not terminate the applicant “because” of a proscribed reason within s 351 of the Act. The Court finds the respondents have rebutted the presumption and proved that there was no proscribed reason under s 351 of the Act that was a substantial and operative reason for the taking of the adverse conduct.
The Court notes that it would not have accepted the respondent as having established a defence under ss 351(2)(a) or (b) of the Act.
The alleged contraventions of ss 340 and 351 of the Act have not been made out.
The Court notes for the benefit of the record that had the applicant succeeded in her case in respect of the alleged contraventions and in particular the submissions as to quantum, the Court would have awarded compensation under s 545 of the Act which would have included general damages in the amount of $80,000 and would have included the claim to past economic loss up to the date of this judgment and for a further six months. The Court finds that the applicant would have no ongoing economic loss after that period of time. Taking into account the medical evidence Court finds that the applicant is likely to be able return to full time work six months after the delivery of judgment by this Court and finds that the applicant would have no ongoing economic loss after that period of time with a causal connection to the alleged contraventions by the dismissal on 7 August 2018 (if the Court had made a finding of contravention which it has not). This economic loss finding is also supported by the implicit admission of the applicant in the evidence as to the calculation of the applicant’s future economic loss in the instructions and report of Mr Katehos.
The Court would have accepted the applicant’s submission that the amount of worker’s compensation already paid to the applicant is recoverable under s 151A of the Workers Compensation Act 1987(NSW) and should be deducted from the damages awarded. The Court finds that the applicant would be able to resume full time work within six months of this judgment and, accordingly, the future economic loss caused by the alleged contraventions, which the Court has not accepted, is limited to a further six month period from the date of this judgment. The Court would have also accepted the evidence led by the applicant’s accountant Mr Katehos in respect of the quantification of that economic loss, which would have been added to the general damages in respect of the compensation order under s 545 of the Act, less the received worker’s compensation, had the applicant succeeded in respect of the alleged contraventions.
The Court has, as identified above, taken into account the applicant’s submissions that the fourth respondent was not the real decision maker and that the fourth respondent has failed to call the solicitor, Mr Rossi, who, it is alleged, input on the decision making process in respect of the dismissal and who had conducted the investigation in respect of the misconduct. The Court has rejected that submission by the applicant.
As explained above, the Court does not accept that the solicitor Mr Rossi was a decision maker in respect of the dismissal because the Court accepts the evidence of the fourth respondent as to the fourth respondent being the ultimate decision maker. The Court does not accept that Mr Rossi, because of his role in the investigation, legal advice to, or following instructions of, the fourth respondent in drafting the letter of termination was a person in respect of whom his state of mind was relevant to the dismissal of the applicant by the first respondent. The fourth respondent gave detailed affidavit evidence about his considerations in his ultimate decision making to dismiss the applicant. The Court does not accept that the input of Mr Rossi had a material effect on the ultimate decision of the fourth respondent to determinate the applicant for misconduct.
The applicant also submitted that the third respondent was a decision maker. This submission is rejected. The third respondent was cross examined at length in relation to the role she played in respect of the events, both in 2016 and those leading up to the applicant’s termination on 7 August 2018. The Court does not accept that the third respondent was a decision maker in respect of the decision to terminate the applicant for misconduct. That ultimate decision was made by the fourth respondent and the Court has accepted the evidence of the fourth respondent in that regard. The Court does not accept that the third respondent assumed a role in respect of which her agreement was necessary in the decision making process in respect of the dismissal. The Court does not accept that the third respondent’s input to the fourth respondent had a material effect upon the ultimate decision making by the fourth respondent. The Court does not accept that the evidence of the third respondent supports a finding that the respondents were set on a course aimed at terminating the applicant’s employment from the date of the complaint to the Fair Work Commission. The role of the third respondent in the standing down of the applicant and the investigation does not support a finding that the third respondent was involved in or had a material effect on the ultimate decision by the fourth respondent being the termination of the applicant for misconduct. The Court does not accept that any adverse inference should be drawn against the respondents as to a substantial and operative reason being a proscribed reason for the adverse action because of the evidence of the third respondent.
Also, as identified above, the Court has taken into account the first respondent’s disciplinary policy that refers to a role by both Human Resources and the manager in respect of dismissal. The Court, however, prefers and accepts the evidence of the fourth respondent who made clear that he was the real and ultimate decision maker. The Court does not accept that the third respondent was a person in respect of whom her state of mind played a role in the ultimate decision to dismiss the applicant. Further, to the extent relevant, the Court accepts the third respondent’s evidence that the applicant’s mental illness and/or disability was not a substantial and operative reason for the dismissal of the applicant. To the extent relevant, the Court also accepts the third respondent’s evidence that the bullying complaint and the taking of proceedings in the Fair Work Commission were not a substantial and operative reason for the dismissal of the applicant. The Court does not accept that the first respondent’s disciplinary policy including the role of Human Resources or the conduct of the third respondent supports the drawing of an adverse inference as to a substantial and operative reasons of the first respondent being a proscribed reason for the taking of the adverse action. Accordingly, to the extent that the third respondent’s reasons for termination were held to be relevant, which this Court does not accept, the third respondent has rebutted any presumption that the adverse action was taken for a proscribed reason. The Court does not accept that the third respondent played a role falling within the concept of being involved in the alleged contravention under s 550 of the Act.
No contravention of ss 340 or 351 of the Act has been made out. No contravention under s 550 of the Act is made out against the third respondent or the fourth respondent.
For these reasons, the application is dismissed.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 19 February 2021
SCHEDULE OF PARTIES
SYG 2985 of 2018 Respondents
Fourth Respondent:
NICK PESCH
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