Mercer v Belgravia Health and Leisure Group Pty Ltd Trading as Loftus Recreation Centre

[2019] FCCA 2112

FEDERAL CIRCUIT COURT OF AUSTRALIA

MERCER v BELGRAVIA HEALTH & LEISURE GROUP PTY LTD TRADING AS LOFTUS RECREATION CENTRE [2019] FCCA 2112

Catchwords:
INDUSTRIAL LAW – Alleged dismissal from employment in contravention of a general protection.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 341, 342, 343, 345, 346, 351, 360, 361, 365, 570

Federal Circuit Court of Australia Act 1999 (Cth), s.75
Federal Circuit Court Rules 2001 (Cth), rr.13.10, 21.02

Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526; (2011) 205 IR 392; (2011) 63 AILR 101-330
Board of Bendigo Regional Institute of Technical & Further Education v Barclay & Anor [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647; (2012) 64 AILR 101-722
Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306; (2017) 274 IR 420
Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243; (2014) 88 ALJR 980; (2014) 245 IR 354; (2014) 314 ALR 1; (2014) 66 AILR 102-268
Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 231 FCR 150; (2015) 250 IR 422
Construction, Forestry, Mining & Energy Union & Ors v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245
Evans v Trilab Pty Ltd [2014] FCCA 2464; (2014) 66 AILR 102-287
General Motors-Holdens Pty Ltd v Bowling (1976) 51 ALJR 235; (1976) 12 ALR 605
Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; (1999) 94 IR 244; (1999) 165 ALR 67; (1999) 47 AILR 4-239
Maslen v Core Drilling Services Pty Ltd & Anor [2013] FCCA 460
Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908; (2013) 238 IR 307
Russell v Institution of Engineers Australia t/a Engineers Australia [2013] FCA 1250
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; (2014) 246 IR 441; (2014) 67 AILR 102-322
Storey v The Monitoring Centre Pty Ltd & Ors [2015] FCCA 3310
Tattsbet Limited v Morrow [2015] FCAFC 62; (2015) 233 FCR 46; (2015) 249 IR 440; (2015) 321 ALR 305
WZASX v Minister for Immigration & Border Protection [2017] FCA 1415

Applicant: JULIE MERCER

Respondent: BELGRAVIA HEALTH & LEISURE GROUP PTY LTD T/AS LOFTUS RECREATION CENTRE

File Number: PEG 70 of 2014

Judgment of: Judge Antoni Lucev

Hearing date: 5 and 6 March 2015

Date of Last Submission: 6 March 2015

Delivered at: Perth

Delivered on: 2 August 2019 (by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))

REPRESENTATION

For the Applicant: In person

Counsel for the Respondent: Mr RJS French

Solicitors for the Respondent: MST Lawyers

ORDERS

1. The respondent’s application in a case filed 5 August 2014 be dismissed.

2. That the application filed 18 March 2014 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 70 of 2014

JULIE MERCER

Applicant

And

BELGRAVIA HEALTH & LEISURE GROUP PTY LTD T/AS LOFTUS RECREATION CENTRE

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, Julie Mercer (“Ms Mercer”) has filed an application alleging dismissal from her employment for a prohibited reason, by the respondent, Belgravia Health & Leisure Group Pty Ltd T/As Loftus Recreation Centre (“Belgravia Health”), in contravention of s.340(1) of the Fair Work Act 2009 (Cth) (“FW Act”). Ms Mercer seeks compensation for loss alleged to arise from the alleged contravention.

2. It is unnecessary, for present purposes, to set out the lengthy detail contained in the “Form 2 Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection” (“Form 2”) (including 109 pages of attachments marked A to W inclusive) filed by Ms Mercer. The factual details alleged by Ms Mercer and the claims made by her are sufficiently identified in the extracts from Ms Mercer’s affidavit affirmed 23 October 2014 (“Mercer Hearing Affidavit”) set out at [10] below.

3. Ms Mercer contends that:

   a)pursuant to section 341(1)(a) of the FW Act Ms Mercer says that her dismissal was to prevent her raising concerns about the actions of a management employee said to be inconsistent with a “workplace instrument”;

   b)pursuant to s.341(1)(c)(i) of the FW Act, the dismissal was to prevent her from making a complaint or inquiry in relation to compliance with policies and legislation;

   c)pursuant to s.341(1)(b) of the FW Act, the dismissal was to prevent her from initiating the Dispute Resolution Process (“DRP”) under the Belgravia Leisure Certified Agreement No 1 2003, AG2003/2677 (“Certified Agreement”); and

   d)the dismissal was to prevent her taking the matter to the next level of the organisation contrary to s.341(c)(i) and (ii) of the FW Act.

4. Belgravia Health opposes the orders sought by Ms Mercer, and denies that it:

   a)dismissed Ms Mercer in contravention of s.340 of the FW Act;

   b)gave Ms Mercer any unlawful instructions;

   c)dismissed Ms Mercer from employment because Ms Mercer exercised, or proposed to exercise, a workplace right; or

   d)took any adverse action against Ms Mercer in contravention of the FW Act.

5. Belgravia Health further says that it dismissed Ms Mercer because she was found to have engaged in serious misconduct.

6. The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, as recently as November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers including:

   a)the transcript of the hearing from 5 and 6 March 2015 (“Transcript”), and in relation to which the Court notes that the Transcript with which it has been provided runs from pages 1 to 98 and then has a further set of pages numbered 71 to 97 (which is the end of the Transcript), and therefore where the second set of pages numbered 71 to 97 are referred to the Court refers to these by number but as the “second page” of that number; and

   b)the various Court documents, including:

   i)the application and Form 2 filed on 18 March 2014;

   ii)the Response filed on 31 March 2014;

   iii)the various orders made by the Court on 11 April, 7 August and 11 September 2014;

   iv)Belgravia Health’s outline of submissions filed on 9 December 2014; and

   v)the affidavits of Ms Mercer, and the witness statements of Mr McIntosh and Mr Webb referred to in these Reasons for Judgment.

7. In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment.

Evidence

Ms Mercer’s evidence

1. Ms Mercer filed an affidavit affirmed on 9 April 2014 (“Ms Mercer’s April 2014 Affidavit”) in respect of a Centrelink Review of her eligibility for financial support. For present purposes it is unnecessary to refer further to this affidavit.

2. At hearing Ms Mercer confirmed that the evidence she proposed to rely upon was that in the Mercer Hearing Affidavit at [2] and [6]-[48]: Transcript, 5 March 2015, page 17. The relevant parts of that evidence are as follows:

   a)Ms Mercer was employed by Belgravia Health on a fixed term contract commencing 14 October 2013 with an end date of 14 April 2014, and was engaged fulltime for that period (“Contract”);

   b)the Contract was for a Level 6, Administration Coordinator under the Certified Agreement;

   c)Ms Mercer was summarily dismissed at approximately 8.00am on 23 January 2014, without a reason being provided;

   d)Ms Mercer had had no prior notice of concerns with her performance or behaviour, and the dismissal was unexpected;

   e)during her employment Ms Mercer had never received written or verbal notification of any concerns regarding her performance or behavioural concerns;

   f)in the late afternoon of 22 January 2014, Ms Mercer was filing documents on staff files that were stored in an unlocked cabinet in the office of Mr Webb, who was the Centre Manager of the Loftus Recreation Centre, a business unit of Belgravia Health;

   g)Ms Mercer had requested an incident report from Mr Webb regarding a workplace injury incurred by a staff member, Ms Wong, who had reported the injury to Mr Webb earlier in the day;

   h)the incident report request was made in an informal discussion in Mr Webb’s office, but in accordance with Belgravia Health’s published Occupation Health and Safety Policy and Manual (“OHS Policy and Manual”);

   i)Ms Mercer made the request in accordance with her duties as defined in the Job Description Form ­ Bookkeeper/Administrative Services Officer that specifies the role and responsibilities of the position she was employed to undertake (“Job Description”);

   j)Ms Mercer had a role and responsibility in accordance with the “workplace instrument” known as the OHS Policy and Manual;

   k)in response to Ms Mercer’s inquiry, Mr Webb advised that he had not written an incident report, and further instructed that Ms Mercer was not to take any further action;

   l)Ms Mercer discussed (it can be inferred with Mr Webb) her perception of Belgravia Health’s duty of care and legal obligations to provide a safe work environment and the potential for a workers compensation claim;

   m)Ms Mercer then considered the severity of the intent of the action, and the legal implications and requested that Mr Webb forward his instructions in writing;

   n)the informal discussion then became heated, and Ms Mercer exercised her professional skills in attempting to defuse the situation and requested that the discussion be terminated;

   o)Mr Webb instructed that Ms Mercer sit down, and said that the meeting was to continue;

   p)the tenor of the meeting escalated and Ms Mercer requested the attendance of a third party, and nominated Ash Forster (“Mr Forster”), the Assistant Manager, Loftus Recreation Centre to attend;

   q)the meeting ended when Ms Mercer advised Mr Webb that she would be raising her concerns with a more senior officer;

   r)Ms Mercer left the building on the termination of the meeting which was late afternoon, she thinks around 4.30 to 5.00pm;

   s)Ms Mercer sent an email to Mr Barber, a senior staff member of Belgravia Health based in WA at 7.39pm on 22 January 2014 seeking intervention;

   t)Ms Mercer was dismissed on arrival at work the following morning by Mr Webb, and says she was dismissed to prevent her raising her concerns at a higher level;

   u)on the day of Ms Mercer’s dismissal she contacted Mr Farkas, the Human Resource Manager for Belgravia Health to discuss the issues and seek an opportunity to appeal the dismissal;

   v)Ms Mercer was not advised as to the reason for the dismissal, other than it was for gross misconduct, which was subsequently altered to misconduct;

   w)Ms Mercer was not provided with an opportunity to respond to the allegations nor the reasons for the decision to dismiss her;

   x)Belgravia Health has published policies and procedures for handling disciplinary matters, which were not observed in relation to Ms Mercer’s dismissal;

   y)on 4 February 2014 Ms Mercer received an email from Belgravia Health with page one of an Employment Separation Certificate attached, but which did not have attached page 2 of the Employment Separation Certificate that sets out “Important Information for the Employer and Employee”;

   z)Belgravia Health made payment of one week’s pay, less withholding tax, by direct debit into Ms Mercer’s bank account on 28 January 2014, a payment which Ms Mercer says she first became aware of on Sunday 9 February 2014 when she logged into her bank account to do personal banking;

   aa)on 7 February 2014, Ms Mercer advised Belgravia Health of this payment, noting that this “offer” was declined and that she had not been provided with any documentation to reflect this payment, and requested the monetary “offer” be retracted;

   bb)on 11 February 2014 Ms Mercer made an application to the Fair Work Commission pursuant to s.365 of the FW Act in relation to her dismissal by Belgravia Health;

   cc)on 16 February 2014 a further email was sent by Ms Mercer to Belgravia Health to address the issues in relation to the Employment Separation Certificate, the financial payment and setting out the hardship she was experiencing;

   dd)Ms Mercer’s job description incorporates responsibilities related to human resources, occupational health and safety, administration, staff training, operations, customer service and management support;

   ee)Ms Mercer says she was carrying out her duties in a proper and professional manner and exercising her professional expertise and due diligence by raising her concerns in the first instance with Mr Webb, who was her direct line of report; and

   ff)since the dismissal Ms Mercer has continued to liaise with Belgravia Health about the status and applicability of the Centrelink Employment Separation Certificate, and the implications and the social, financial and importantly professional impact on Ms Mercer, noting that the “Reason for Termination” on the Separation Certificate was recorded as “Misconduct”.

3. At hearing an email chain between Ms Mercer and Mr Barber dated 22 January 2014 at 7.39pm and the response dated 23 January 2014 at 6.49am were tendered, and were marked as Exhibit 1. The two emails referred to above are as follows:

   a)Ms Mercer’s email to Mr Barber at 7.39pm on 22 January 2014 was as follows (transcribed verbatim):

   I am currently acting in the administration coordinators role covering Bonnie’s maternity leave.

   For the past two weeks I have both witnessed and experienced several issues with Daniel.

   Today Daniel in a private meeting I raised a concern at anoth episode of mishandling a situation Daniel out right lied and made accusations and gave unethical instructions in which I advised the I will have to take the matter up with hr at head office. The meeting got out if hand and I requested a third party attend. Ash attended and was acting as a scribe... The meeting ended with dan making accusations and suggesting that I could not work there. I advised him that they were his words... Not mine I am happy to honour the contact which has a clause that either party may terminate the contact with seven days notice... I advised that I do not intend to terminate the contract I will be addressing the issues and concerns at the next level... Daniel asked me to leave the office immediately... I was not given a copy if the notes nor signed that they reflect the meeting.

   Can you please contact me. To discuss the issues as they relate first to loftus and belgravia and secondly the personal grievance I have with dan from his repeated actions over the past week.

   b)Mr Barber’s email to Ms Mercer at 6.49am on 23 January 2014 was as follows (transcribed verbatim):

   Daniel contacted me last night to advise me of the situation from his point of view. He has also advised HR at Head Office and we’ll aim to work through the issues and attempt to find a solution that suits everyone.

   I’ll be in touch later today to try and get a better understanding of the issues.

Belgravia Health’s evidence

Mr McIntosh

1. Belgravia Health filed the Witness Statement of Mr McIntosh, the General Manager of Belgravia Health, signed on 3 December 2014 (“McIntosh Witness Statement”), in which Mr McIntosh says that:

   a)it is his responsibility to oversee the contract for the Loftus Recreational Centre to ensure delivery of the contract to the City of Vincent, and to ensure that all operational and financial targets for Belgravia Health are met: McIntosh Witness Statement at [4];

   b)his primary contact at the Loftus Recreation Centre is Mr Webb: McIntosh Witness Statement at [5];

   c)in around early January 2014 Mr Webb had called him to discuss some issues concerning Ms Mercer, and her refusal to follow directions given by Mr Webb, and also that in endeavouring to resolve issues Ms Mercer would become either anxious, angry or attempt to close down the meeting or would simply refuse to meet, and that that was a concern from a process point of view for Mr McIntosh: McIntosh Witness Statement at [7];

   d)in the morning of 23 January 2014 read an email from Mr Webb which had been sent to Mr McIntosh on 22 January 2014: Annexure 1 to the McIntosh Witness Statement (and which is set out in full at [12(g)] below);

   e)Mr McIntosh telephoned Mr Webb to discuss what had happened: McIntosh Witness Statement at [9];

   f)in the telephone conversation with Mr Webb, he was told by Mr Webb that Ms Mercer had:

   i)refused to follow reasonable directions again;

   ii)verbally abused Mr Webb; and

   iii)stood in the corner of his office and yelled that this was the way he treated his wife: McIntosh Witness Statement at [9];

   g)made the decision to dismiss Ms Mercer: McIntosh Witness Statement at [10], and did so based upon information provided by Daniel Webb alleging that Ms Mercer had engaged in “incidents of insubordination and misconduct”: McIntosh Witness Statement at [11], and, in particular, that she had:

   i)refused to follow reasonable directions again;

   ii)encouraged co-workers not to comply with directions; and

   iii)abused Daniel Webb: McIntosh Witness Statement at [10] and [11]; and

   h)did not authorise Ms Mercer’s dismissal for any reason other than those identified in (g) above: McIntosh Witness Statement at [11].

Mr Webb

1. Belgravia Health filed the Witness Statement of Mr Webb, the Centre Manager of Belgravia Health (Loftus Recreation Centre), signed on 2 December 2014 (“Webb Witness Statement”), in which Mr Webb says that:

   a)in a telephone conversation with Mr McIntosh at about 6.30am on 23 January 2014 he recommended to Mr McIntosh that Ms Mercer be terminated: Webb Witness Statement at [61]-[62] and Annexure 5, for the following reasons:

   i)repeatedly failing to follow reasonable directions; and

   ii)directing abuse towards and intimidating Mr Webb and other staff on a number of occasions;

   b)Mr Webb had emailed Mr Farkas at 7.00pm on 22 January 2014, the day prior to the dismissal: Webb Witness Statement at Annexure 4 (“the Webb-Farkas Email”);

   c)the Webb-Farkas Email says as follows (transcribed verbatim):

   Good Evening Michael,

   I will follow this up with a phone call tomorrow morning however I need to bring to your attention a HR issue that has occurred at Loftus tonight regarding Julie Mercer who is currently in the Administration Coordinator role for 2 more months until Bonnie Mercer (Cameron) returns from Maternity Leave. She has been in the role for 3 months and 1 week thus far.

   I am deeply concerned for the business now having her in the position and the access files and confidential information that she has access to after what was displayed tonight and has been building up for some time.

   Over the past 2 months it has been noted by staff inconsistencies within the team from her. The Sports Manager, Childcare supervisor, bookings officer and childcare coordinator have brought items to my attention all of which have generally been managed by myself. Items such as yelling at reception in front of staff and customers through to advising staff to work against my requests have been brought to my attention throughout this time.

   This evening however this has come to ahead after a brief discussion occurred regarding OHS processes.

   Please read the word document attached to go through the conversations that happened tonight, please be aware my assistant manager will be providing further notes on the discussion in the meeting.

   If you could please call me on […..] after you read this.

   Michael, please be aware she is a legal mediator. We employed her under a “Contract of Employment-Full Time­Limited Tenure" with a commencement date of 14/10/2013

   I am very concerned with her continuing working here. The business cannot support an Individual behaving like this, yelling at her manager and not following clear and reasonable direction. I have concerns that she will be at her desk tomorrow at 7:30am and essentially making matters worse for our administration here.

   Michael, I have redeveloped the team here and we have such an amazing workplace. An individual like this is poison and has caused staff dissatisfaction within the team, and now personally myself.

   If I could please ask her to leave the facility and give her 1 week notice paid would be much appreciated. On the ground of:

   1. not following clear and reasonable direction.

   2. Yelling at staff (Harrasment) to myself personally on 3 separate occasions

   3. Threatening to go to National HR on regular matters

   4. Advising me that “our processes are bullShit”

   5, Asking me with her face in the corner with her head against the wall "Is this how you treat your wife"

   I have attempted to formalise meetings prior to this however she had noted she was too busy and wanted it next Wednesday, however this blew up prior to that.

   I truly am hoping there is some assistance as Loftus will have difficulties operating with this Individual in place.

   d)the Webb-Farkas Email attaches a note (“Mr Webb’s Note”) that sets out Mr Webb’s account of the 22 January 2014 meeting with Ms Mercer: Webb Witness Statement at Annexure 4;

   e)Mr Webb’s Note is set out in full as follows (transcribed verbatim):

   File notes - Daniel Webb

   Re: Julie Mercer - Employee Incident 22 Jan 5pm

   Julie came into my office to conduct updating staff records and looking through staff files for uniform agreement signoffs etc which I said great to hear this is happening.

   Julie had let me know that an employee had identified an OSH issue to which she advised the employee look through the worksafe regulations regarding standing at a counter and commence writing a memo as Julie believe she could be entitled to compensation for a 'Crick" in her neck. She asked "What report has been raised from the employee reporting this to you" I let her know I had already met with the staff member this morning on the issue and that no "crick" in the neck had been identified but her and I are meeting halfway by raising the keyboard and monitor along with providing a soft mat for her to stand on for which the employee agreed. I requested to Julie that should an individual come to you regarding any issues such as this that you recommend they speak to their manager or try and assist were practicable resolving the issue rather than directing them to worksafe regulations, should it not be resolved then a memo can take place. Julie disputed this saying but I will memo everything I discuss, I then asked her "going forward, I would like you to assist were possible resolving the issue rather than directing the employee to worksafe and writing memo's as a lot of these situations can be resolved by meeting half way as I have done with the employee.

   Julie said, well going forward any conversation between you and I must now be in Memo and in writing. I advised Julie that it is not practicable as I have an entire facility to manage.

   Julie then said that she is not happy with that and she will take this up with National HR which I said she is entitled to however I would like you to follow "clear and reasonable direction" she then started yelling "THE PROCESSES HERE ARE BULLSHIT" What you are asking me to do all the time is not helping.

   I asked her to sit down as at the time she was in staff members files updating personal details which I did not feel comfortable her doing as she was yelling.

   I then let her know that we will go through her position description so we can both understand her role a bit more. I open up her file and found the PD where it states that I am her immediate manager. I then advised her, that as her immediate manager if I give clear and reasonable direction it is not out of the question for me to ask you to follow. I then advised her that it came to my attention when I asked for our childcare services to put through the $30k worth of money outstanding this week as the eftpos machine had been down she told the employee not to do it and to do it next week instead because the employee was busy.

   This came to my attention because she was advising the staff member to go against my clear directions in front of the sports manager who told her to take the conversation elsewhere, he reported it to me straight afterwards.

   She disputed this saying "because of how stressed the employee was at the time with childcare I said she could do it next month as you were causing her stress.

   I asked "Did you, or did you not advise the employee against my clear and reasonable direction to place the payment in the system the following week"

   She then yelled “DO NOT PUT WORDS IN MY MOUTH, DON'T DO IT!, I then said calmly "its just a question did you ask the employee to place the payment through the following week. She then yelled again “YOU ARE PUTTING WORDS IN MY MOUTH, I WANT ASH IN HERE”

   Ash then joined myself and Julie in the meeting and began taking notes. Ash will send the notes through were Julie brought up two individual circumstances which I tried to clarify with her.

   Ash had to leave the room mid way through the meeting for approx 30 seconds to assist a customer. When he left Julie stood up approx 1 metre next to me and started going through the staff files. I felt intimidated after being yelled and in a heated discussion having her stand so close next to me and I didn't feel comfortable her accessing files at this point in time, so I asked her to please put the files down, she then grabbed the second draw that the files were in, again I asked her to please put the files down and sit down with me.

   Julie then stormed into the corner of my office facing the wall and yelled "IS THIS WHAT YOU WANT ME TO DO? DOES IT MAKE YOU FEEL POWERFUL, IS THIS HOW YOU TREAT YOUR WIFE?" I let her know that talking and yelling to me like that is not acceptable in a professional environment she then said again "IS THIS HOW YOU TREAT YOUR WIFE?"

   Ash came back in and I advised Julie and Ash that under the circumstances I would like the meeting to finish, Julie said to Ash, Julie continued talking to Ash and I advised her that I request the meeting to finish.

   She then said to me "Im under a casual contract, either parties can give 7 days notice, you need to do it because Im sure I wont be doing it" She said this twice. I asked her to leave my office as we cannot continue. She then left

   I am very concerned with her continuing working here. The business cannot support an individual behaving like this, yelling at her manager and not following clear and reasonable direction. I have concerns that she will be at her desk tomorrow at 7:30am and essentially making matters worse for our administration here.

   Michael, I have redeveloped the team here and we have such an amazing workplace. An individual like this is poison and has caused staff dissatisfaction within the team, and now personally myself.

   If I could please ask her to leave the facility and give her 1 week would be much appreciated. On the ground of:

   1.  not following clear and reasonable direction.

   2.  Yelling at staff (Harrasment) to myself personally on 3 separate occasions

   3.  Threatening to go to National HR on regular matters

   4.  Advising me that "our processes are bull$hit"

   5.  Asking me with her face in the corner with her head against the wall "Is this how you treat your wife"

   I truly am hoping there is some assistance as Loftus will have difficulties operating with this individual in place.

   f)Mr Webb then sent an email to Mr McIntosh at 9.56pm on 22 January 2014, attaching Mr Webb’s Note: Webb Witness Statement at [60] and at Annexure 5; McIntosh Witness Statement at [8] and at Annexure 1 (“Webb-McIntosh Email”);

   g)the Webb-McIntosh Email is as follows:

   Good Evening Anthony,

   Please be aware that an issue has occurred today involving an employee, Julie Mercer (who has met with me on various occasions during her short term of employment) over the way she has handled herself within the team at Loftus. Some of these meetings have been at staff members request which you may recall me discussing with you in our last phone call.

   I have serious concerns for the business in regards to how she handled herself during todays meeting and the repercussions that may follow due to the access of information she has; including payroll and financial data. She is currently acting in a fixed term tenure in the Administration Coordinator role.

   She has been employed in the role for 3 months and 2 weeks - her contract ends in April, however, after the way she conducted herself today coupled with constant complaints from staff in regards to her performance along with my personal dealings with Julie I believe it's in the best interest of the staff and members for her contract to cease immediately.

   I have had concerns about her conduct prior to today and have attempted to schedule formal meetings with her this week to discuss this after previous one on one meetings have failed, however when I've attempted to schedule the meeting I have been told in writing that she is too busy and she will not be able to attend until next week. The attached document (please excuse the length of I just wanted to ensure I had every detail completed whilst fresh in my mind) shows the events that happened today which ended in her yelling at me and personally insulting my family members whilst standing with her head in the corner of a wall.

   Ash Forster - Assistant Manager, took notes as Julie requested he be a witness during the meeting (after yelling at me), these notes will also be sent through tomorrow. Both Ash and I now have concerns for the business tomorrow due to the level of access she has.

   I have forward a detailed e-mail onto Michael Farkas with the document attached for HR assistance and briefly spoke with Dan Barber to ensure immediate processes were followed correctly.

   Please feel free to call or e-mail as I will head in early as the employee normally commences work at 7:30am and I hope to minimise any further risk or impact to the business.

   Thanks for your time and assistance.

   Daniel

Consideration

1. Ms Mercer alleges that Belgravia Health, in terminating her employment, contravened s.340(1) of the FW Act which provides as follows:

   (1)  A person must not take adverse action against another person:

   (a)  because the other person:

   (i)  has a workplace right; or

   (ii)  has, or has not, exercised a workplace right; or

   (iii)  proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

   (b)  to prevent the exercise of a workplace right by the other person.

2. Section 341(1) of the FW Act defines a “workplace right”, and provides as follows:

   (1)  A person has a workplace right if the person:

   (a)  is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

   (b)  is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

   (c)  is able to make a complaint or inquiry:

   (i)  to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

   (ii)  if the person is an employee--in relation to his or her employment.

3. Section 342 of the FW Act defines the meaning of “adverse action”. Relevantly, s.342(1), item 1, column 2(a) of the FW Act provides that adverse action is taken by an employer against an employee when an employer “dismisses” the employee. There is no dispute in the present circumstances that the dismissal of Ms Mercer constitutes adverse action as defined, and the real question is whether or not the adverse action was taken because of any workplace right that Ms Mercer had under s.340(1) of the FW Act, that is, whether the adverse action was taken for a prohibited reason.

4. The word “because” in s.340 of the FW Act requires a causal link between the applicant’s workplace right and the adverse action: Russell v Institution of Engineers Australia t/a Engineers Australia [2013] FCA 1250 at [60] per Foster J. The meaning of “because” is not defined in the FW Act. Its meaning, albeit in relation to s.346 of the FW Act (which is similar terms to s.340), was discussed in Board of Bendigo Regional Institute of Technical & Further Education v Barclay & Anor [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647; (2012) 64 AILR 101-722 (“Barclay”) at [100] to [104] per Gummow and Hayne JJ as follows:

   100.The application of s 346 turns on the term “because.” This term is not defined. The term is not unique to s 346. It appears in s 340 (regarding workplace rights), s 351 (regarding discrimination), s 352 (regarding temporary absence in relation to illness or injury) and s 354 (regarding coverage by particular instruments, including provisions of the National Employment Standards).

   101.The use in s 346(b) of the term “because” in the expression “because the other person engages ... in industrial activity”, invites attention to the reasons why the decision-maker so acted. Section 360 stipulates that, for the purposes of provisions including s 346, whilst there may be multiple reasons for a particular action “a person takes action for a particular reason if the reasons for the action include that reason”. These provisions presented an issue of fact for decision by the primary judge.

   102.Reference was made in argument to Purvis v New South Wales. That litigation concerned the application of the Disability Discrimination Act 1992 (Cth) to the suspension and expulsion of a disabled student from a State school. Section 5(1) used the expression “because of the disability”. Gummow, Hayne and Heydon JJ emphasised that s 10 of the statute stated that if an act is done for two or more reasons, one of which is the disability of a person, even if it not be the dominant or a substantial reason for doing the act, the act is taken to be done for that reason. This provision may be compared with s 360 of the Act just described.

   103.With respect to what became s 346 of the Act, paragraph 1458 of the Explanatory Memorandum to the Fair Work Bill 2008 stated:

   “Clause 360 provides that for the purposes of Part 3-1, a person takes action for a particular reason if the reasons for the action include that reason. The formulation of this clause embodies the language in existing section 792 which appears in Part 16 of the WR Act (Freedom of Association) and includes the related jurisprudence. This phrase has been interpreted to mean that the reason must be an operative or immediate reason for the action (see Maritime Union of Australia v CSL Australia Pty Limited). The 'sole or dominant' reason test which applied to some protections in the WR Act does not apply in Part 3- 1.”(emphasis added)

   The phrase “operative or immediate reason” used in CSL is relevantly indistinguishable from the phrase “a substantial and operative factor” used by Mason J in Bowling.

   104. In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised “a substantial and operative” reason, or reasons including the reason, for the employer’s action and that this action constitutes an “adverse action” within the meaning of s 342.”

5. Ms Mercer must establish that any alleged adverse action was taken “because” of the circumstances alleged and needs to “establish the existence of the circumstances as an objective fact…”: Tattsbet Limited v Morrow [2015] FCAFC 62; (2015) 233 FCR 46; (2015) 249 IR 440; (2015) 321 ALR 305 at [119] per Jessup J.

6. If Ms Mercer can establish, on the balance of probabilities, that:

   a)the conduct alleged occurred;

   b)she has a “workplace right”; and

   c)Belgravia Health took “adverse action”,

   the onus then shifts to the employer to prove that the adverse action was not motivated by an impermissible reason, but rather was taken for a reason unrelated to any workplace right held or exercised by Ms Mercer: Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; (1999) 94 IR 244; (1999) 165 ALR 67; (1999) 47 AILR 4-239 at [221] per RD Nicholson J; Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526; (2011) 205 IR 392; (2011) 63 AILR 101-330 at [368]-[369] per Barker J.

7. The reverse onus is created by operation of s.361(1) of the FW Act which provides as follows:

   (1)     If:

   (a)     in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

   (b)     taking that action for that reason or with that intent would constitute a contravention of this Part;

   it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

8. The principles, in determining whether an employer has proven otherwise were established in Barclay, and can be summarised as follows:

   a)the central question to be determined: “why was the adverse action taken?” is one of fact;

   b)the central question is to be answered having regard to all the facts established in the proceeding;

   c)the Court is concerned to determine the actual reason or reasons which motivated the decision-maker, but is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker, and nor should such an inquiry be made;

   d)it will be extremely difficult to displace the statutory presumption in s.361 of the FW Act if no direct testimony is given by the decision-maker acting on behalf of the employer;

   e)even if the decision-maker gives evidence that they acted solely for non-proscribed reasons, other evidence, including contradictory evidence given by the decision-maker, may render such assertions unreliable; and

   f)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 of the FW Act.

   See State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; (2014) 246 IR 441; (2014) 67 AILR 102-322 at [32] per Tracey and Buchanan JJ.

9. In Barclay the High Court also observed that the purpose of s.361 of the FW Act was to place on the defendant employer the onus of proving that which lies peculiarly within the employer’s own knowledge: Barclay at [50] per French CJ and Crennan J, at [86] per Gummow and Hayne JJ, and at [149] per Heydon J, all adopting what was said in General Motors-Holdens Pty Ltd v Bowling (1976) 51 ALJR 235; (1976) 12 ALR 605 at 617 per Mason J.

10. In Barclay the High Court also said:

    a)the task of a court in a proceeding alleging a contravention by reason of adverse action “… is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason …”: Barclay at [5] per French CJ and Crennan J;

    b)adverse action will have been found to have been taken if the prohibited reason, or reasons including the prohibited reason, for the action was a “substantial and operative reason” for the employer taking adverse action against the employee: Barclay at [104] per Gummow and Hayne JJ;

    c)the test is whether adverse action has been taken because of a prohibited reason: Barclay at [129] per Gummow and Hayne JJ; and

    d)“[e]xamining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action”: Barclay at [140] per Heydon J.

11. This Court in Maslen v Core Drilling Services Pty Ltd & Anor [2013] FCCA 460 at [17] per Judge Lucev in relation to the approach adopted in Barclay said that it suggested that:

    … the decision-maker’s subjective intention, if accepted by the primary judge in the context of relevant objective facts, will provide a defence to an adverse action claim. Mere assertion is not enough, however, and whether an employer took adverse action for a prohibited reason is a question of fact for a primary judge to determine on the evidence, bearing in mind the employer bears an onus to show that it did not take adverse action for a prohibited reason.

12. It follows therefore that mere declarations of innocent reason or intent in taking adverse action may not satisfy the onus upon an employer if contrary inferences are available on the facts: Barclay at [54] per French CJ and Crennan J. The question is whether the proscribed reason was a substantial and operative factor such as to constitute a proscribed reason, or whether it was an operative and immediate reason for the adverse action: Barclay at [127] per Gummow and Hayne JJ; Storey v The Monitoring Centre Pty Ltd & Ors [2015] FCCA 3310 at [128] per Judge Manousaridis. The proscribed reason does not have to be the sole reason for taking the adverse action, and a person is regarded as having taken adverse action for a particular reason if the reasons for the action include that reason: FW Act, s.360.

13. As has been observed by both the High Court and the Federal Court it is not a breach of s.340 of the FW Act if adverse action is taken for a reason whose underlying facts coincide with the existence or exercise of a workplace right so long as the adverse action is not taken because of the existence or exercise of the workplace right: Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243; (2014) 88 ALJR 980; (2014) 245 IR 354; (2014) 314 ALR 1; (2014) 66 AILR 102-268 at [20] per French CJ and Kiefel J; Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 231 FCR 150; (2015) 250 IR 422 at [32] per Jessup J.

14. The Court observes that:

    a)Ms Mercer alleges that she was dismissed for a prohibited reason in contravention of s.340(1) of the FW Act;

    b)specifically Ms Mercer alleges she was dismissed because she:

    i)raised concerns about the occupational, health and safety of a colleague (“Safety Issue”): Mercer Hearing Affidavit at [8]-[13] and [25(a)]; and

    ii)sought to engage the dispute resolution procedure (“DRP”) set out at cl.25 of the Belgravia Leisure Certified Agreement (“BLCA”): see paragraphs 6 and 7 of Part G of the Form 2 Claim;

    c)it is not in dispute that Belgravia Health dismissed Ms Mercer from her employment;

    d)it is for Belgravia Health to prove that the dismissal was not for a prohibited reason: s.361 of the FW Act;

    e)the prohibited reason must be a substantial or operative factor influencing the dismissal or, alternatively, an “operative or immediate reason” for the action: Barclay at [104] per Gummow and Hayne JJ, and [140] per Heydon J; and

    f)if the decision-maker gives direct evidence that:

    i)the decision-maker did not act for a prohibited reason; and

    ii)that evidence is accepted as reliable,

    then the burden of proof imposed by s.361 of the FW Act will be discharged: Barclay at [45] per French CJ and Crennan J.

15. The Court has to determine who the decision-maker is in order to determine whether or not the decision-maker, or decision-makers, reason or reasons for dismissing Ms Mercer included a prohibited reason.

16. Mr McIntosh asserts that the decision to dismiss Ms Mercer was his and his alone, and that he was thus the sole decision-maker: McIntosh Witness Statement at [10].

17. Ms Mercer cross-examined Mr McIntosh in relation to this issue, and Mr McIntosh maintained that he made the decision to dismiss Ms Mercer: Transcript at second page 76 and second page 80.

18. There is no doubt that Mr McIntosh spoke to both Mr Webb and Mr Farkas prior to making the decision to dismiss Ms Mercer, and that he had regard to the material in the Webb-McIntosh Email, but that the “ultimate decision” (to adopt the words in one of Ms Mercer’s questions in cross-examination: Transcript at second page 76) was his decision. Actual notification of the dismissal to Ms Mercer was made by Mr Webb as Mr McIntosh considered this to be appropriate as Mr Webb was Belgravia Health’s Centre Manager for the Loftus Recreation Centre: McIntosh Witness Statement at [12]. The Court notes that Mr Barber, to whom Ms Mercer sent an email on the evening of 22 January 2014, played no part in Mr McIntosh’s decision-making process.

19. In all the above circumstances, the Court concludes that Mr McIntosh was the decision-maker with respect to the decision to dismiss Ms Mercer.

20. The issue then arises as to whether or not the decision-maker, Mr McIntosh, made the decision to dismiss Ms Mercer for a prohibited reason.

21. Mr McIntosh set his reasons out in the McIntosh Witness Statement at [10] and [11] as follows: (and see [11(g)] above) as follows:

    a)that Ms Mercer refused to follow reasonable directions;

    b)that Ms Mercer encouraged co-workers not to comply with directions; and

    c)that Ms Mercer abused Daniel Webb.

22. Ms Mercer cross-examined Mr McIntosh in relation to the reasons that he gave as set out above. Much of the cross-examination related to the fairness of the reasons, whether Ms Mercer was given warnings, whether the DRP under the Certified Agreement had been invoked relative to what Ms Mercer characterised as a dispute between her and Mr Webb, and whether the reasons relied upon were in fact correct. Broadly speaking, much of the cross-examination was irrelevant, and elicited, quite properly, numerous objections from Counsel for Belgravia Health: see Transcript at second page 79, second page 80, second page 83 and second page 84.

23. The evidence concerning the reasons for Mr McIntosh’s decision to dismiss Ms Mercer is within a very limited compass, and occurred within a period of approximately 16 to 17 hours on the mid to late afternoon of 22 January 2014 and the early morning of 23 January 2014, and reduced to its essence, comprised the following events:

    a)the meeting which took place between Ms Mercer and Mr Webb, and in which Mr Forster was also invited to participate, on the late afternoon of 22 January 2014;

    b)the sending of the Webb-Farkas Email on the evening of 22 January 2014, which does not appear to have been read by Mr McIntosh;

    c)the sending of the Webb-Mr McIntosh Email (with the Webb Note attached) later in the evening of 22 January 2014;

    d)conversations between Mr McIntosh and Mr Farkas, and Mr McIntosh and Mr Webb, early in the morning on 23 January 2014;

    e)Mr McIntosh’s decision to dismiss Ms Mercer being made;

    f)Mr McIntosh authorising Mr Webb to dismiss Ms Mercer; and

    g)Mr Webb advising Ms Mercer of her dismissal on the morning of 23 January 2014.

24. Based on the evidence in the documents before Mr McIntosh, and the account of the conversations had by Mr McIntosh with Mr Farkas and Mr Webb, it is apparent that the evidence does not substantiate any of the alleged contraventions of a general protection made by Ms Mercer. There is no basis in the evidence for the allegation that Ms Mercer’s dismissal was based on a desire by Belgravia Health, or any of its officers, to prevent Ms Mercer from making, or pursuing, any workplace right that she may have had, including:

    a)any right to exercise dispute resolution procedures under the Certified Agreement, Mr McIntosh having not had any regard to the provisions of the Certified Agreement in making the decision to dismiss Ms Mercer: Transcript at second page 85 (Mr McIntosh’s evidence) and at second pages 93-94 (final submissions); or

    b)any alleged safety issue Ms Mercer might have been said to have raised with Mr Webb in the 22 January 2014 meeting.

25. The closest the documentary evidence gets to indicating that the decision to dismiss Ms Mercer might have been based on a workplace right to make a complaint or inquiry is in that part of the Webb Note which was attached to the Webb-McIntosh Email, where Mr Webb says that he wants to ask Ms Mercer to “leave the facility and give her one week” on grounds including:

    3. Threatening to go to National HR on regular matters

    4. Advising me that “our processes are bull$hit”

26. Even taking a very broad view of what might constitute a complaint or inquiry in the course of employment: see, for example, Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908; (2013) 238 IR 307 and Evans v Trilab Pty Ltd [2014] FCCA 2464; (2014) 66 AILR 102-287, it is not apparent that what is being referred to in the part of the Webb Note set out above is a complaint or inquiry in relation to Ms Mercer’s employment. Rather, the matters referred to by Mr Webb in the Webb Note have the appearance of angry outbursts or expressions of annoyance or threats as opposed to complaints or inquiries for the purposes of s.341(1)(c)(ii) of the FW Act, and for that reason they could not be considered to be the exercise, or proposed exercise of a workplace right. Secondly, and more fundamentally, it is plain that Mr McIntosh did not base his decision to dismiss Ms Mercer on these matters, but rather on a more limited sub-set of conduct and performance related matters, as set out at [11(g)] and [33] above. And, even though the factual matrix underpinning the matters referred to by Mr Webb in the Webb Note, and the conduct and performance issues referred to by Mr McIntosh may be in part the same, Mr McIntosh’s rationale was plainly based upon the manner in which Ms Mercer conducted herself in her “discussions” with Mr Webb, rather than any possible exercise of a workplace right (assuming that it is a workplace right, which for reasons set out above, the Court does not consider it to be).

1. In no sense does the Court consider that the reasons for Mr McIntosh’s decision, or, indeed to the extent that it is relevant, the recommendations of Mr Webb, were made to camouflage other reasons, and in particular prohibited reasons. Both Mr McIntosh and Mr Webb were steady, moderate and plausible witnesses, and entirely believable as to their evidence as to why, in Mr Webb’s case the recommendation to dismiss was made, and why in Mr McIntosh’s case, he and he alone, made the decision to dismiss Ms Mercer.

2. It also needs to be borne in mind that the issue is not whether the reasons are right or unfair. Ultimately, even if the reasons for dismissal are wrong or unfair (and in this case the Court does not consider them to be so), and provided that they were not designed or intended to camouflage prohibited reasons (which in the Court’s view they were not in this case), the fact that the reasoning might be wrong or unfair does not alter the basis for the reasons not being prohibited reasons.

3. One of the significant difficulties in this case was that it was apparent throughout that Ms Mercer did not appreciate that the focus of the Court’s inquiry is upon the issue of whether or not her dismissal was for a prohibited reason, despite the Court endeavouring on a number of occasions to make this plain to her: see for example Transcript at pages 18, 42, 46, 48 and second pages 80 and 95. This was not an unfair dismissal case, but Ms Mercer, particularly in her cross-examination of Mr Webb and Mr McIntosh, dealt with the evidence as if it were an unfair dismissal case, notwithstanding the Court’s advice that she needed to focus upon whether or not the dismissal was for a prohibited reason or reasons. General protections claims are quite specific and technical, and for the reasons set out above, it has not been established that there was a contravention of a general protection in this case. The proceedings demonstrate, and not for the first time, the dangers for self-represented litigants in pursuing proceedings in relation to their dismissal from employment without the benefit of proper advice as to the initiation and conduct of those proceedings.

4. In all of the above circumstances, the Court finds that there was no contravention of a general protection by Belgravia Health in dismissing Ms Mercer from her employment.

Conclusion and orders

1. The Court has concluded that Ms Mercer’s allegation of a contravention of a general protection by Belgravia Health in dismissing her from employment on 23 January 2014 has not been made out, and her application must therefore be dismissed. There will be an order accordingly.

2. The Court notes that Belgravia Health filed an application in a case seeking dismissal of Ms Mercer’s application under r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), but that this application in a case was not pursued. It is appropriate in those circumstances to formally dismiss that application in a case.

3. On the face of it this is a no costs matter: FW Act, s.570(1). If, however, Belgravia Health considers that it might be entitled to costs: see FW Act, s.570(2), an application for costs might be made under r.21.02(1) of the FCC Rules. The Court observes, however, that awards of costs in FW Act proceedings are the subject of not inconsiderable constraints, with costs being the exception rather than the norm: Construction, Forestry, Mining & Energy Union & Ors v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245 at [28]-[30] per Tamberlin, Gyles and Gilmour JJ; and see also the observations in Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306; (2017) 274 IR 420 at [70]-[74] and [89] per Logan J and [161]-[164] per Bromberg J.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate:

Date: 2 August 2019