MH v Australian Capital Territory
[2016] FCCA 563
•14 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MH v AUSTRALIAN CAPITAL TERRITORY & ORS | [2016] FCCA 563 |
| Catchwords: INDUSTRIAL LAW – Application for alleged contravention arising out of dismissal of worker employed as a health professional in care and protection services – evidence of employer accepted in preference to the evidence of Applicant worker – poorly pleaded claims by the Applicant that hampered the Respondents (and the Court) properly or reasonably understanding the nature and details of all the claims – failure of Applicant to cross examine Third Respondent thereby formally leaving the Third Respondent’s evidence unchallenged – consideration of claim under s.362 Fair Work Act 2009 regarding “advising, encouraging, inciting or coercing action” in the light of High Court decision in Yorke v Lucas – contravention not established. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 342, 361, 362, 545, 546, 550, 570(1) & (2) Workplace Relations Act 1996 (Cth), ss.298L, 298K, 298P |
| Allied Pastoral Holdings Pty Limited v Federal Commissioner of Taxation [1983] 1 NSWLR 1 Australian Securities and Investments Commission v Rich (2009) 236 FLR 1 Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No.3) [2013] FCA 525 Banque Commerciale SA (en liq) v Akhil Holdings Limited (1990) 169 CLR 279 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Browne v Dunn (1893) 6 R 67 Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 Construction, Forestry, Mining and Energy Union v Coal Alliance Operations Pty Ltd (1999) 140 IR 131 Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 Dahler v Australian Capital Territory [2014] FCA 946 Employment Advocate v Williamson (2001) 111 FCR 20; 185 ALR 590; 108 IR 71 Reid v Kerr (1974) SASR 367 R v Beckett (2015) 90 ALJR 1 State of Victoria (Office of the Director of Public Prosecutions) v Grant (2014) 246 IR 441 Stevenson v Murdoch Community Services Inc (2010) 202 IR 266 Unsworth v Tristar Steering and Suspension Australia Ltd (2008) 216 FCR 122; 175 IR 320 Yorke v Lucas (1985) 158 CLR 661 |
| Applicant: | MH |
| First Respondent: | AUSTRALIAN CAPITAL TERRITORY |
| Second Respondent: | MINISTER FOR COMMUNITY SERVICES AND CHILDREN & YOUNG PEOPLE (ACT) |
| Third Respondent: | AS |
| Fourth Respondent: | JANSCI |
| File Number: | CAG 69 of 2014 |
| Judgment of: | Judge Neville |
| Hearing date: | 28, 29 & 30 October 2015 |
| Date of Last Submission: | 6 November 2015 |
| Delivered at: | Canberra |
| Delivered on: | 14 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Keys |
| Solicitors for the Applicant: | n/a |
| Counsel for the First, Second & Third Respondents: | Ms H Robinson |
| Solicitors for the First, Second & Third Respondents: Solicitors for the Fourth Respondent: | ACT Government Solicitor Self represented |
ORDERS
The Application, filed 20th October 2014, be dismissed.
There be no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 69 of 2014
| MH |
Applicant
And
| AUSTRALIAN CAPITAL TERRITORY |
First Respondent
| MINISTER FOR COMMUNITY SERVICES AND CHILDREN & YOUNG PEOPLE (ACT) |
Second Respondent
| AS |
Third Respondent
| JANSCI |
Fourth Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant was a case-worker with Care and Protection Services in the Australian Capital Territory (“the ACT”).[1]
[1] In the ACT, Care and Protection Services (“CPS”) comes under the Community Services and Children and Young People Directorate.
By definition and in practice, such work regularly (and often necessarily) involves intense and involved interaction with families that are in some form of crisis or distress. It may therefore, to some degree at least, be assumed that such workers can become emotionally and intellectually “invested” in the lives of those for whom they care. Emotional and intellectual “self-regulation”, it would seem, would be an important component of the skills of such workers.
The emotional and intellectual self-regulation of the Applicant, or rather the [apparent or sometime] lack of it, is not formally the foundation of her claims against the Respondents under the Fair Work Act 2009 (Cth) (“the Act”). They are drawn more disparately in relation to the dismissal from her employment for reasons related to her conduct over a period of time – as set out below.
Following an exhaustive process (described later in these reasons) the Applicant was dismissed from her position with Care and Protection Services in August 2014 (again, details are set out later in these reasons). She claims, as against the First and Second Respondents, that this action (and other matters noted below) constitutes “adverse action” under ss.340 and 342(1)(a) of the Act. Section 340 prohibits the taking of “adverse action” in relation to the exercise of “workplace rights”; s.342 defines what constitutes “adverse action”. In this case, the “adverse action” pleaded was the dismissal of the Applicant.
She also claims, as against the Third and Fourth Respondents, that action by them offended certain other sections of the Act, most particularly s.362, which in effect prohibits (by making it grounds for contravention under the Act) a person advising, encouraging, inciting or coercing action. The Applicant contends that the Third and Fourth Respondents (summarily stated) “advised and encouraged” the First and Second Respondents to terminate her employment.
For the reasons set out below, neither the basal claim of adverse action against the First and Second Respondents, nor the claim against the Third and Fourth Respondents under s.362, has been made out. Moreover, the evidence clearly establishes that the conduct of the First and Second Respondents did not provide any basis for an adverse action claim. Likewise, the evidence also clearly established that the conduct of the Third and Fourth Respondents did not provide any basis for the claim against them under s.362 of the Act. Accordingly, the Application filed on 20th October 2014, must be dismissed.
Background
On 14th August 2014, the then Deputy Director-General of the Community Services Directorate (now Director-General), Ms Sue Chapman, wrote to the Applicant to inform her that, following an investigation into her behaviour,[2]
[2] A copy of Ms Chapman’s letter to the Applicant dated 14th August 2014 is attached to the Applicant’s Form 2, filed 20th October 2014. Here I have simply summarised the primary matters from that letter.
(a) four of six allegations of misconduct had been found to be not substantiated,
(b) two allegations of misconduct, in breach of the Applicant’s obligations as a public employee as set out in s.9(a), (d) and (f) of the Public Sector Management Act 1994 (ACT), and in breach of the requirements set out in clause H4.5 of the ACT Public Service Community Services Directorate Enterprise Agreement, had been established, and
(c) in consequence, the Applicant’s employment with the Australian Capital Territory Government Community Services Directorate was to be terminated.
On 20th October 2014, the Applicant filed an Application in this Court seeking relief under the Act. In particular, as already noted, she alleged certain contraventions of ss.340, 362 and 550 of the Act.[3] By way of relief, she sought compensation and a pecuniary penalty.
[3] At the trial, the claim pursuant to s.550 of the Act was not pressed. See Transcript (29th October 2015) pp.44, 46, 52, 63, 70 and 71. Hereafter, any references to the transcript will simply be “T” followed by the page number.
All Respondents denied the Applicant’s claims and opposed the relief sought.
For the reasons that follow, not only has the Applicant not made out the claims alleged in her Application, but the Respondents (collectively and individually), whose evidence I accept, have established, in my view, that the Applicant’s claims have no evidentiary base.
The following chronology provides context and something of an evidentiary overview for the discussion that follows. It is taken from a chronology filed by the First, Second and Third Respondents; it differs slightly in some dates from a more detailed chronology that was filed on behalf of the Applicant. Thus:
| Date | Event |
| 16/11/12 | Case meeting Applicant and Fourth Respondent and other family members to discuss young person moving to Dubai |
| 27/11/12 | Second meeting between the Applicant and the Fourth Respondent - Accident/Incident Report |
| 4/12/12 | Third respondent becomes aware of complaints Case consultation between Applicant and Third Respondent (AS) re concerns raised by Jansci |
| 5/12/12 | Third Respondent contacts Fourth Respondent and asks for meeting |
| 7/12/12 | Applicant raises complaint about Third Respondent (AS’s) conduct |
| 11/12/12 | Meeting with Fourth Respondent (Jansci), Ms Rose, the Third Respondent (AS) and Ms Dunne. Date of ‘complaint’ |
| 12/12/2012 | AS sends summary of complaint to manager |
| 12/12/2013 | Meeting of CYP staff determined to refer matter to delegate for investigation |
| 17/12/12 | Nik Manikis writes letter advising applicant of the disciplinary process and transferred to other duties |
| 23/09/13 | CPM Reviews Report published |
| 10/12/13 | Letter from Sue Chapman setting out proposed discipline action of transfer, statement of reasons and copy of CPM report |
| 6/1/14 | Letter from Applicant responding to proposed discipline action |
| 8/4/14 | Response from Ms Chapman, providing attachments to the CPM Report and providing a further 5 days to reply |
| 24/4/14 | Applicant’s response |
| 17/7/14 | Further letter from Ms Chapman providing advising Applicant that she is now considering termination of the Applicant’s employment and providing a further 10 days to respond. |
| 1/8/2014 | Applicant lodges application for anti-bullying order |
| 14/8/2014 | Termination decision |
The Contraventions Alleged
As set out in the Form 2 (Part G; par 24), filed 20th October 2014, the Applicant alleged that:
The First and Second Respondents dismissed the Applicant on 14 August 2014 for reasons including –
(1) the Applicant’s complaint (‘Accident/Incident Report’) submitted to the Third Respondent on 27 November 2014 in relation to the conduct of the Fourth Respondent toward the Applicant during the performance of her duties that day; and/or
(2) the Applicant’s role or responsibilities under the ‘workplace behaviours’ process proscribed by the Community Services Directorate Enterprise Agreement 2011-2013; and/or
(3) the Applicant’s Application for an Order to stop bullying lodged with the Fair Work Commission on 1 August 2014;
in contravention of Section 340 of the Fair Work Act 2009
The Third and Fourth Respondents conspired with each other on 11 December 2012 following and as a result of the Applicant’s complaint about the Fourth Respondent’s conduct on 27 November 2012, and thereafter advised, encouraged and counselled the employer (and their agents) in the context of the disciplinary investigation conducted about the Applicant’s alleged conduct toward the Fourth Respondent, to effect the termination of the Applicant’s employment [refer Sections 362 and 550 of the Fair Work Act]
By orders made on 1st December 2014, the matter proceeded by way of pleadings. Orders on that date also provided for a timetable for the filing of affidavit evidence.
The Applicant’s Statement of Claim was filed on 12th January 2015; the Defence of the 1st – 3rd Respondents was filed on 30th January 2015. The Fourth Respondent filed a “Response” to the Statement of Claim, also on 30th January 2015.
Summarily stated, and as is plain from the Application, filed 20th October 2014, the Applicant claims relief against the Respondents for contraventions of s.340 of the Act (‘protection against adverse action in relation to a workplace right’), and s.362 of the Act (‘advising, encouraging, inciting or coercing action’).[4] The Applicant pleaded that a claim under s.340 was made out because (she said) she filed a complaint with the Fair Work Commission on 1st August 2014 and was terminated on 14th August 2014. Section 340 provides:
(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.
[4] Again I note that, although initially pleaded, the claim under s.550 was not pressed at trial.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
The Applicant also pleaded that the Third and Fourth Respondents contravened s.362 of the Act because they conspired with the First and Second Respondents in relation to her termination. Section 362 of the Act provides:
(1) If:
(a) for a particular reason (the first person’s reason), a person advises, encourages or incites, or takes any action with intent to coerce, a second person to take action; and
(b) the action, if taken by the second person for the first person’s reason, would contravene a provision of this Part;
the first person is taken to have contravened the provision.
(2) Subsection (1) does not limit section 550.
Outline of Principle
All parties agreed that the High Court decision in Board of Bendigo Regional Institute of Technical and Further Education v Barclay,[5] (“Bendigo”) was the relevant jurisprudential point of reference for the determination of the adverse action part of the Applicant’s claim. It will assist the later discussion of the evidence if relevant principle from that decision was outlined here.
[5] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500. See also the comments by French CJ and Kiefel J in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 at [6] – [10] & [19], and by Gageler J at [85]. For a very recent discussion regarding the application of principle from Bendigo, see the Full Court decisions in Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150; and Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157.
In Bendigo, French CJ and Crennan J said, at [5]:
The task of a court in a proceeding alleging a contravention of s 346 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.
At [41] in Bendigo (emphasis added), their Honours confirmed that the question of “why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act”, and that (at [43]):
Clearly a defendant employer interested in rebutting the statutory presumption in s 361 can be expected to rely in its defence on direct testimony of the decision-maker's reason for taking the adverse action.
At [44], French CJ and Crennan J said (internal citations omitted; emphasis added):
There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”
At [127] in Bendigo, Gummow and Hayne JJ said (emphasis added):
In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
Finally, at [141], Heydon J said of the decision-maker in Bendigo and the findings made at trial (after commenting on the fact-finding process of a trial court) (internal citations omitted; emphasis added):
The assessment of a witness's mental processes is an assessment of that witness's state of mind. It is pre-eminently a matter in which a trial judge has a considerable advantage over an appellate court. In the course of his great speech in Nocton v Lord Ashburton, Viscount Haldane LC said:
“it is only in exceptional circumstances that judges of appeal, who have not seen the witness in the box, ought to differ from the finding of fact of the judge who tried the case as to the state of mind of the witness.”
The trial judge possesses great learning in the present field. He has considerable experience of oral hearings. He said that Dr Harvey “provided convincing and credible explanations of why it was that she took the steps she did.” He said that she “maintained her denials of having acted against Mr Barclay for any reason associated with his union membership, office or activities.” He concluded: “I accept her evidence. I am satisfied that she did not act for any proscribed reason. Rather, she acted for the reasons which she gave.” Of course, “mere declarations” by a witness as to his or her “mental state” may not be sufficient to discharge the appellant's burden of proof under s 361. External circumstances could put into question the reliability or credibility of those declarations. But Dr Harvey's evidence did not consist only of “mere declarations.” There was nothing to suggest that her evidence was incorrect.
Just so here: to quote again the trial Justice in Bendigo (Tracey J) as cited by Heydon J (at [141]) but this time in relation to my assessment of the decision-maker’s evidence (Ms Chapman) in the present matter: “I accept her evidence. I am satisfied that she did not act for any proscribed reason. Rather, she acted for the reasons which she gave.” Those reasons were set out in her letter to the Applicant dated 14th August 2014. In my view, from any of her evidence – affidavit and oral – there “was nothing to suggest that her evidence was incorrect.”
As is examined and explained in these reasons, I accept Ms Chapman’s evidence that her decision to terminate the Applicant’s employment was made (a) well before 1st August 2014 (when the Applicant’s bullying claim was lodged with the Fair Work Commission), and (b) without consideration or reference to any prohibited reason as set out in the Act. In my view, it is clear that the Applicant’s bullying claim played no part in Ms Chapman’s decision to terminate the Applicant’s employment.
Accordingly, as I have earlier indicated, in the light of my acceptance of Ms Chapman’s evidence, and for the further reasons that follow, the claims set out in the Application, filed 20th October 2014, are not made out and must be dismissed. In my view, the evidence plainly and cogently (a) does not support the claims made by the Applicant, and conversely, (b) supports the contentions advanced by the Respondents.
The Statement of Claim
The Statement of Claim pleads as follows.[6]
[6] The Applicant provided a bundle of documents styled “Applicant’s Documentary Evidence.” It will be referred to in these reasons as the “Tender Bundle.” See the discussion in the very early part of the trial about the tender bundle being admitted into evidence; it was taken to be so admitted. T 28.
The Applicant was employed as a Health Professional Level 3 Case Worker in the provision of Care and Protection Services (“CPS”) under the Children & Young People Act 2008 (ACT).
The Third Respondent was the Applicant’s Team Leader.
The Fourth Respondent, a gentleman who goes solely by the name “Jansci”, was the carer and Attorney of a lady, Nancy Rose, whose 14 year old daughter (“the young person”) was the subject of a report of alleged abuse/neglect on 4th November 2012, when the young person was refusing to return to her Mother’s home.
The Applicant convened a meeting on 16th November 2012 when the young person’s family agreed that the young person would travel to, and reside with her Aunt and Uncle in, Dubai for 12 months.
The Applicant attended the home of Nancy Rose and her carer (the Fourth Respondent) on 27th November 2012 (“the home visit”) with correspondence from the young person.
From the Applicant’s evidence I simply note here that the Applicant’s intention was to give a letter from the young person to Nancy Rose, the young person’s Mother.
During the home visit, the Applicant contended that the Fourth Respondent behaved in an aggressive and intimidating manner toward her, causing her to depart the residence hastily and in a distressed state.
There is brief CCTV footage of this home visit by the Applicant which was viewed. In my view, the CCTV footage was inconclusive – at best.
On the occasion of the home visit, the Applicant immediately telephoned the Third Respondent about the incident at the Fourth Respondent’s residence; when she returned to the office, she submitted an Accident/Incident Report to the Third Respondent.
On 11th December 2012, the Applicant again attended the home of the Fourth Respondent to obtain information from him, and from Nancy Rose, regarding the Applicant’s conduct on 27th November 2012.
The Statement of Claim here (par.4) refers to the Applicant’s Tender Bundle, Tab 11. Behind that Tab is (a) a redacted email from AS (the Third Respondent) to Vicki Jelfs, dated 12th December 2012; and (b) a collection of typed notes under the heading “Case Notes in respect of Mtg on the 11/12/2012.” The Notes were typed/signed by Bronach Dunne.
Nothing relevantly turns on the dissonance between the Statement of Claim referring to the collection of material on 11th December 2012 and the email referred to in the Tender Bundle but which bears the date of the following day.
At par.5 the Statement of Claim pleads that as a consequence of the action just described (“the gathering of information on 11th December 2012”), the Applicant was transferred to alternative duties while an investigation was conducted by Mr G Henderson from CPM Reviews Pty Limited.
The transfer to other duties, and the Notification of Disciplinary Investigation, were issued by Mr N Manikis on 17th December 2012. This material is at Tab 12 of the Tender Bundle.
Mr Manikis filed an affidavit on 30th January 2015. It had annexed to it his letter to the Applicant, dated 17th December 2012, which set out the allegations against the Applicant.
In his affidavit he deposed (par.5) to being briefed in the week commencing 10th December 2012 by Ms Mannion, a senior manager with the Policy and Organisational Services section of the Community Services Directorate, in relation to a series of allegations where it was said that the Applicant had displayed a series of poor behaviours in her interactions with relatives of a client. At par.6 of his affidavit, he outlined what the allegations were against the Applicant, which he set out in a letter to the Applicant, dated 17th December 2012 (annexure NM1 to his affidavit).
Mr Manikis confirmed (par.8) that he decided to commence an investigation because he considered the allegations were sufficiently serious to do so, and because he did not believe that the matter could be resolved informally.
On 13th March 2013 he ceased being the delegate, at which time Ms Chapman became the delegate.
I observe here that, causally, as a matter of fact and otherwise, it would be extremely difficult to attribute any formal responsibility to Ms Chapman for any action or decisions made prior to her becoming the delegate for the Director-General of the Community Services Directorate prior to 12th March 2013, when Mr Manikis was the delegate.
He confirmed (par.12) that at no time did he speak with or otherwise communicate with either the Third or Fourth Respondents.
After being sworn in, barely any questions were asked of him. The following was the extent of his cross examination:[7]
[7] T 72 – 73. The “Annexure O” referred to in the cross-examination of Mr Manikis is a document headed “[MH] 14/12/2012 Breach Document”.
MS KEYS: Could Mr Manikis be shown this document. It's actually annexure O of the affidavit of AS [sic]. It's bigger .....
HIS HONOUR: Thank you.
MS KEYS: Mr Manikis, was that document - have you ever seen that document before?‑‑‑I cannot recall this document.
So that wasn't provided to you when - for the purposes of you issuing the notice to the applicant in December 2012?‑‑‑I cannot recall seeing this document.
Do you know who prepared - well, you haven't seen it - you have never seen it before?‑‑‑No.
Thank you. That's all?‑‑‑Sorry, I - I can't recall seeing it.
Do you know about that document?‑‑‑I don't know. This is the first - first time that I'm looking at it.
Okay. Thank you. I have no further questions.
Given the extremely limited cross examination of Mr Manikis, and that there was otherwise no other challenge to his evidence, the Court will accept his evidence as set out in his affidavit as unchallenged.
CPM Reviews Pty Limited provided an Investigation Report to the employer on 23rd September 2013. A copy of that Report is found in many places, including Tab 25B of the Applicant’s tender bundle. It is also annexed to Ms Chapman’s affidavit, filed 14th November 2014, annexure SC2. It became Exhibit A.
At par.5(c) of the Statement of Claim, it was pleaded that disciplinary decisions and actions were notified to the Applicant by Ms Chapman on 10th February [sic: “December”] 2013, 8th April 2014 and 17th April 2014. Relevant documents for each of these notifications are at Tabs 25, 27 and 29 of the Applicant’s tender bundle.
On 1st August 2014, the Applicant filed an Application with the Fair Work Commission in which she alleged that the disciplinary process commenced on 17th December 2012 “amounted to bullying”. The Applicant sought orders to stop this bullying (Tab 30 Applicant’s tender bundle).
On 15th August 2014, the Applicant’s bullying application to the Fair Work Commission was discontinued because her employment was terminated on 14th August and she was, thereby, not an “employee.” (Tabs 32 & 33 Applicant’s tender bundle.)
In par.8 of the Statement of Claim, the Applicant claimed that she was dismissed by the First and Second Respondents on 14th August 2014 with effect from 15th August 2014 for reasons including:
a) The Applicant’s complaint (“Accident/Incident Report”) submitted to the Third Respondent on 27th November 2012 in relation to the conduct of the Fourth Respondent toward the Applicant during the performance of her duties that day; and/or
b) The Applicant’s role or responsibilities under the “workplace behaviours” process proscribed by the Community Services Directorate Enterprise Agreement 2011-2013; and/or
c) The Applicant’s Application for an order to stop bullying lodged with the Fair Work Commission on 1st August 2014
In contravention of s.340 of the Fair Work Act 2009
In par.9 of the Statement of Claim, the Applicant pleaded that
the Third and Fourth Respondents conspired with each other on 11th December 2012 following and as a result of the Applicant’s complaint about the Fourth Respondent’s conduct on 27th November 2012, and thereafter advised, encouraged and counselled the employer and their agents (CPM Reviews per Graeme Henderson) in the context of the disciplinary investigation conducted about the Applicant’s alleged conduct toward the Fourth Respondent, to effect the termination of the Applicant’s employment [refer ss.362 & 550 of the Fair Work Act].
Finally, the Applicant claimed against “the Respondents for damages for loss of income, distress and damage to reputation in addition to penalties under sections 545 and 546 of the Fair Work Act.”
The Applicant’s Affidavit Evidence – Browne v Dunn
Putting to one side affidavits filed by the Applicant on 13th April and 15th October 2015 in support of procedural applications which have no relevance to the substantive matters before the Court, the only affidavit evidence from the Applicant was an affidavit, filed 27th October 2015 (“the Applicant’s trial affidavit”). Part of that affidavit (see especially pars.1 – 4) was a refutation of and commentary on matters set out in an affidavit from the Third Respondent, AS, filed 30th January 2015.
However, a singular difficulty with such a refutation, and the Court’s ability to have regard to it, was simply that the Third Respondent, AS, was not required for cross examination by the Applicant in which she could put to the Third Respondent her commentary on AS’s affidavit of 30th January 2015.[8] Accordingly, both as to matters in issue, and as to issues of “credit”, other than by the relatively brief comments in her affidavit filed 27th October 2015, the Applicant did not otherwise challenge AS’s account of events and documents annexed to her January 2015 affidavit.
[8] Cf. s.551 of the Act which provides that: “A court must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention, or proposed contravention, of a civil remedy provision.”
In the light of standard principles of evidence, I note the following procedural and evidentiary problem for the Applicant (and the Court) as a result of the course adopted by her in relation to the Third Respondent’s evidence. The primary principle in view is the rule in Browne v Dunn.[9]
[9] Browne v Dunn (1893) 6 R 67 (HL).
First, a succinct statement of the rule in Browne v Dunn is set out in Hunt J’s decision in Allied Pastoral Holdings Pty Limited v Federal Commissioner of Taxation:[10]
… unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.
[10] Allied Pastoral Holdings Pty Limited v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at p.16 (“Allied Pastoral Holdings”).
Secondly, in the same case, his Honour commented further:[11]
At some stage during the course of the evidence, the witness must be given a proper opportunity to deal with the material to be relied upon for the challenge.
[11] Allied Pastoral Holdings at p.23.
Thirdly, in Allied Pastoral Holdings, Hunt J referred to an earlier decision of Wells J in Reid v Kerr, where his Honour said:[12]
… a judge … is entitled to have presented to him … issues of facts that are well and truly joined on the evidence; there is nothing more frustrating to a tribunal of fact than to be presented with two important bodies of evidence which are inherently opposed in substance but which, because of Browne v Dunn has not been observed, have not been brought into direct opposition, and serenely pass one another by like two trains in the night.
[12] Reid v Kerr (1974) SASR 367 at pp.373-74. More recently, see the general comments of Murphy J in Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No.3) [2013] FCA 525.
The Applicant’s decision not to cross examine the Third Respondent, and having regard to the principles to which I have just referred, lead me to the conclusion that AS’s evidence should be accepted in its entirety. The Applicant’s decision not to cross examine the Third Respondent meant that she was never given the opportunity to deal with the material relied upon by the Applicant in her October 2015 affidavit.
I return to the Applicant’s evidence and note the following matters from what I will call her trial affidavit. I do so notwithstanding that some of the matters set out in it are clearly “conclusions” and are, in the circumstances, thereby formally inadmissible.
At par.2 of her trial affidavit, the Applicant stated (emphasis added):
Although the Fourth Respondent’s intimidating conduct toward me during the home visit on 27 November 2012, and the related Incident Report form that I provided to AS [sic] later that day, was the impetus for AS’s intervention and her attendance at the Fourth Respondent’s home on 11 December 2012, it is now apparent that she attended the Fourth Respondent’s home on 11 December 2012 for the sole purpose of formulating his and the Mother’s complaints about me, and then referring the complaint for investigation and disciplinary action …
How this conclusion became “apparent” to the Applicant is not addressed or otherwise explained. I assume that it was this “apparent” conclusion, drawn by the Applicant, which is the basis (to some unspecified degree) of her claim pursuant to s.362 of the Act.
At par.3 of her trial affidavit, the Applicant deposed:
At the same time as AS [sic] was documenting and encouraging the Fourth Respondent’s complaint about me, she was signing-off my Assessment Report [refer pages 14-19 of Tab 2 of the Applicant’s Documentary Evidence] and co-signing a letter co-signed with Vick Jelfs … This letter, which AS [sic] describes as “a case closure letter … providing parties with a summary of the appraisal”, is inconsistent with the complaints and breaches of discipline as documented by AS.
As previously noted, much of the material in the Applicant’s trial affidavit goes to refuting, or otherwise challenging, the account of various events by AS. She also challenges various matters set out in the affidavit material from Ms Chapman, and in material filed by the Fourth Respondent. Among these matters, I need to note in particular the Applicant’s contention, at par.11 of her trial affidavit, that (again I note that, in my view, the comments set out are, as a matter of evidence, both a submission and a conclusion):
Contrary to the Fourth Respondent’s submission that my “dismissal for serious misconduct … was lawful”, it is apparent from the decision-maker’s own evidence that she terminated my employment on 14 August –
a) Because of my role or responsibilities in the “workplace behaviours” / investigation and discipline process under the Enterprise Agreement, in contravention of section 340(1)(a) of the FW Act; and
b) To prevent my Application to the FW Commission made on 1 August 2015 [sic - 2014] (which was my final response during the discipline process), from proceeding to a conference or hearing, in contravention of section 341(1)(b) of the FW Act.
Again, it is not clear to me how this conclusion either was reached by the Applicant or how it necessarily follows from the evidence.
I note the following brief and rather preliminary matters from the evidence (and related comments) at trial.
After quoting from the Applicant’s trial affidavit, the following exchange took place with the Applicant’s Counsel:[13]
HIS HONOUR: I see. Because she says – this is in paragraph 7.6 on paragraph 8. Sorry, page 8. And she says:
My concerns and complaint about the events on 27 November 2012, including the fourth respondent recording my visit and then behaving in an intimidating manner, have never been addressed due to the involvement of AS [sic]. Now that the fourth respondent has produced the recording of my home visit on 27 November 2012 to this court in these proceedings, I can see him activating the recording and placing the recorder mobile inconspicuously on the sideboard before I entered the front door. It is now apparent to me from the fact that the home visit on 27 November 2012 was recorded and the fourth respondent behaved in an intimidating manner and kept repeating assertions that he “had power of attorney” that it was all staged to elicit a reaction from me and a ruse was likely planned after I called earlier in the day to advise I would be making the home visit.
[13] T 4-5.
Are you suggesting that this is some form of entrapment or something?
MS KEYS: Yes.
HIS HONOUR: And what follows from that?
MS KEYS: The events on 27 November constitute some significant findings of misconduct.
HIS HONOUR: Against whom? The fourth respondent?
MS KEYS: Against the applicant.
In my view, the evidentiary basis for this claim or assertion was, at best, opaque, if not simply untenable.
Further exchanges with Counsel for the Applicant attempted to elicit further detail regarding how the Applicant claimed the relief sought, notably not for wrongful or unfair dismissal, but for contravention of ss.340 and 362 of the Act. In answer to further questions, Counsel put the matter this way:[14]
HIS HONOUR: But what flows, if anything, from what – these are my words, of course, but what your client describes as some form of entrapment?
MS KEYS: What follows is that the allegations that the fourth respondent subsequently made were based on an entrapment and that is – that fits into where we say the liability exists under section 362 of the Act. The – section 362 refers to:
If for a particular reason (the first person's reason), a person advises, encourages or incites, or takes any action with intent to coerce, a second person to take action; and the action, if taken by the second person for the first person's reason, would contravene a provision of this Part; the first person is taken to have contravened the provision.
We say that the allegations that were made by the fourth respondent through the third respondent were actions that were encouraging or inciting the employer to take action – to conduct an investigation and take disciplinary action or disciplinary or adverse action against the applicant.
[14] T 5 – 6.
Among other things, given the evidence of Ms Chapman (noted below) that (a) she set out in her letter of 14th August 2014 to the Applicant the [actual] reasons for her decision to terminate the Applicant’s employment, and (b) she did not know and had never met the Fourth Respondent, and would not know the Third Respondent if she “literally fell over her in the hallway” (and otherwise the actions of the Third Respondent had no bearing on the Director-General’s decision), the Applicant’s claim in relation to some sort of conspiracy or something that would attract the terms of s.362 of the Act, is impossible to sustain.[15]
[15] Ms Chapman’s evidence in relation to the Third and Fourth Respondent is at T 73 – 74.
In the light of authorities discussed later in these reasons, at its highest, the Applicant’s attempt (and submission – which I confess to have found rather opaque) to link Ms Chapman’s decision to terminate the Applicant’s employment with the action(s) of the Third and Fourth Respondent, requires actual (and not constructive or implied) knowledge in order to attract the operation of s.362 – whereby they “advised, encouraged or incited, or took any action with intent to coerce” Ms Chapman (or either of the First or Second Respondents) to take adverse action against the Applicant. As explained below, the evidence to support such a claim is simply not available. Further, it is contradicted clearly by the evidence of Ms Chapman – whose evidence I accept unequivocally. It is also contradicted by the evidence of the Third and Fourth Respondents. At its highest, causally their action(s) were only relevant to the investigation undertaken by CPM Reviews.
Indeed, the requirement and relevance of “knowledge” in relation to the claim under s.362 – actual rather than implied or constructive – is drawn from the High Court’s comments in Yorke v Lucas, which are set out in detail later in these reasons.[16] Unfortunately, the Applicant referred to no authority in relation to the claim under s.362.
[16] Yorke v Lucas (1985) 158 CLR 661.
The Applicant’s Oral Evidence
The first part of the Applicant’s cross examination focussed on the detail of the visits she made in November 2012 to the home of the Fourth Respondent, who she said had ‘verbally abused and intimidated her’, and her actions in relation to them, such as the filing of an ‘incident report’, which she forwarded to AS, the Third Respondent. The Applicant confirmed that in forwarding documentation to AS she made no criticism of her.[17]
[17] T 22.
In relation to the events in November 2012, and subsequently, the Applicant said that she felt that she had not been properly or adequately supported by AS. Ultimately, the Applicant made a formal complaint about AS in relation to her lack of support for the Applicant.[18]
[18] T 24 – 25.
On 1st February 2013, CPM Reviews wrote to the Applicant to advise of the investigation which that company was engaged to perform. A copy of this letter became Exhibit A. It is at Tab 15 of the Applicant’s tender bundle. The Applicant responded to this letter, by letter dated 15th February 2013. This reply also became part of Exhibit A. The response by the Applicant was more about matters of procedure, including asking CPM Reviews to provide certain information in relation to the “general/jumbled allegations” against the Applicant.
Somewhat summarily, and therefore without going into the detail of them, the Applicant was taken through a range of documents found at Tabs 17 – 23 of the tender bundle. Of these documents, it is sufficient to note that:
(a)On 6th June 2013, Mr Henderson from CPM Reviews wrote to the Applicant in which he set out in some detail the specific allegations levelled against her;
(b)By email dated 19th June 2013, the Applicant responded to Mr Henderson; in particular, she outlined her response to each of the allegations made against her (I need not detail these here);
(c)At Tab 19 is a copy of the transcript of an interview (dated 9th July 2013) conducted by Mr Henderson with the Fourth Respondent and Ms Rose (who is the person cared for by the Fourth Respondent);
(d)By email dated 5th August 2013, Mr Henderson provided the Applicant with a copy of the transcript just referred to, and invited her to respond to any of the allegations made, including any of those referred to in the transcript record;
(e)By email dated 28th August 2013, the Applicant responded to Mr Henderson (see Tab 22);
(f)By email dated 29th August 2013, Mr Henderson invited the Applicant to participate in a recorded interview with him. This email was discussed in the course of the Applicant’s oral evidence, thus:[19]
And Mr Henderson says in that email at the second sentence:
The other thing that I would like to perhaps consider, in terms of putting your version again, is whether you would participate in a recorded interview with me. You’ve had the opportunity to read through the transcript of the interview with Jancsi and Nancy, so you know the format ..... discussions and interrogation. If you would participate in an interview with me, then I would make myself available at a time of your choosing. You could obviously have representative .....
[19] T 30.
So you received that email ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ on the 23rd. And you declined an interview?‑‑‑Yes. I did.
Instead you provided a further – if we turn to tab 24 ‑ ‑ ‑?‑‑‑Yes.
You provided a further written response to the investigation dated 6 September, 2013?‑‑‑Yes.
Yes. Correct?
The Applicant confirmed that she sent an email to Mr Henderson saying that she would not undertake such an interview with him; unfortunately she did not have a copy of this email for the Court.
The Applicant sent Mr Henderson further comments by email on 6th September 2013.
Then in her oral evidence there followed a discussion with the Applicant in relation to Ms Chapman’s letter to her, dated 10th December 2013, which enclosed a copy of the CPM Reviews Report (dated 23rd September 2013). Two things should be noted at this juncture.
First, the recommendations of CPM Reviews were (at p.38 of that Report), so far as is relevant to the current proceeding:
(a)That [the Applicant] be provided with a copy of this report and afforded the opportunity to respond; [and]
(b)That the Community Services Directorate consider what (if any) sanction/s should be applied to [the Applicant] given the findings of this report;
Secondly, the letter of Ms Chapman of 10th December (a copy is at Tab 25) –
(a)set out the findings from the CPM Reviews Report,
(b)advised the Applicant that she (Ms Chapman) had reached the decision that misconduct had occurred,
(c)provided her with the reasons for arriving at her decision, and
(d)stated (at p.3) that she proposed to provide the Applicant with “formal counselling” and “a transfer permanently to another position.” She invited the Applicant to reply to this letter.
The Applicant replied to Ms Chapman by email dated 6th January 2014 (Tab 26). She raised a number of procedural matters, and also sought further time within which to reply to what might be described as substantive matters.
Ms Chapman replied to the Applicant by letter dated 8th April 2014 (Tab 27) in which she allowed the Applicant a further 5 days to reply to the original findings and decision of Ms Chapman. That further time was to run from the date of the letter – 8th April 2014. The Applicant replied on 23rd April (updated on 24th April) (Tab 28). Some matters from that detailed reply of the Applicant were the subject of her cross examination.
For example, the following exchange took place (emphasis added):[20]
… at tab 27, on 8 April 2014 Ms Chapman responded to you?‑‑‑Yes.
And gave you an additional five working days to provide a response?‑‑‑Yes.
Turning to tab 28, you – at – 28 is the response you provided on 23 April 2014; is that correct?‑‑‑Yes, and updated on the 24th.
Yes. At paragraph 3 you say:
Your findings of misconduct are based entirely on CPM Reviews investigation report which in turn is based on vexatious complaint by Nancy Rose and her live-in carer, Jancsi, with encouragement and misinformation about me and the appraisal process given by former supervisor AS [sic].
[20] T 32 & 34.
?‑‑‑Yes.
Would you accept that this is the first occasion upon which you’ve raised that allegation?
HIS HONOUR: Sorry, which allegation?
MS ROBINSON: The allegation that the investigation is based entirely upon encouragement and misinformation given by AS [sic]?‑‑‑Given that I haven’t read through the information and it was a long time ago, any – they would have been – I raised my concerns about the process to the operations manager, probably not to the review.
Did you raise your concerns with CPM Investigations?‑‑‑It was never asked.
And you never volunteered that assertion?‑‑‑Because I thought it was being dealt with by operations manager.
…
Was this letter – this response of 23 April, and updated on 24 April, the first time you had raised, in the context of this investigation, an allegation that AS had, effectively, constructed the allegations against you?‑‑‑Based on the information I had been given, yes.
There was then a discussion about the letter of termination from Ms Chapman, dated 17th July 2014 (Tab 29), to the Applicant which attached to it a document entitled “Statement of Reasons for Misconduct Decision and Proposed Disciplinary Action against [the Applicant].” That discussion was as follows:[21]
[21] T 34.
… We turn to then tab 29?‑‑‑Yes.
This is a letter from Sue Chapman dated 17 July 2014?‑‑‑Yes. It is.
Yes. And would you agree that the proposed action in that letter is to terminate your employment with five weeks’ notice?‑‑‑Yes. That’s what it says.
Yes. And would you agree that that letter has attached to it a statement of reasons?‑‑‑Yes. It does.
And would you agree that in that statement of reasons Ms Chapman accepts that some of the previous allegations, having regard to your submission, are no longer substantiated?‑‑‑She changed ‑ ‑ ‑
Yes?‑‑‑ ‑ ‑ ‑ her mind on a number of things.
She changed her mind. That's correct. But that she had also changed her mind on the penalty – on the disciplinary action to be taken?‑‑‑Yes. She did.
I pause here to note two matters.
First, this letter of Ms Chapman (of 17th July 2014) and the Statement of Reasons relevantly advised the Applicant that allegations 1, 2, 3, and 6 were not substantiated. However allegation 4 (b) and (c) (as set out in the Statement of Reasons) (being disrespectful and unprofessional), and allegation 5 (not providing the appraisal consent form the client had signed and have not provided a copy of the minutes of the case meeting), were found to be substantiated. As such, the actions of the Applicant were determined by Ms Chapman to be in breach of her duties as a public employee, which are set out in s.9 of the Public Sector Management Act (ACT) 1994, and also in breach of clause H4.5 of the Enterprise Agreement.
Secondly, the Statement of Reasons also set out the previous employment history of the Applicant and recorded that previous action had been taken against the Applicant in relation to her [mis-]conduct, in March 2010, June 2010, and April 2012. In relation to these previous incidents, Ms Chapman stated to the Applicant:
You were advised in writing of each of these incidents and the action taken. The fact that, in your response of 23 April 2014 (updated 24 April) you state that you would ‘welcome an opportunity to respond to these instances specifically, and request that I am provided with further details in order to do this’ is an indication of the lack of effect that sanctions have had on your behaviour towards other people and your compliance with relevant legislation.
The Statement of Reasons concluded (bold emphasis in original; underlined emphasis added):
For the above reasons I am satisfied you have breached subsections 9(a) and 9(f) of the PSM Act and I have determined your actions constitute misconduct under clause H4.5(a) and H4.5(b) of the Enterprise Agreement. This is the fourth time in less than three years that complaints have been made against you and substantiated, and previous sanctions have not resulted in a change in your behaviour.
I propose to terminate your employment with five weeks’ notice under clause H8.2(f) of the Enterprise Agreement in respect of this misconduct. You will be paid in lieu of notice.
The Applicant confirmed that her Application to the Fair Work Commission, filed 1st August 2014, seeking orders “to stop bullying”, was her response to Ms Chapman’s letter of 17th July 2014.[22]
[22] See T 35.
The letter terminating the Applicant’s employment is dated 14th August 2014. It was sent under the hand of Ms Chapman.[23]
[23] See Tab 32.
The proceedings in the Fair Work Commission (“the Commission”) were terminated on 15th August 2014, on the basis that the Applicant was no longer an employee. The letter from the Commission of that date confirmed that the Applicant had discontinued the proceedings before it.
The Fourth Respondent asked a series of questions of the Applicant, which he confirmed were more for context, concerning the relevant meeting in late November 2012 between him, the person he cares for (Ms Rose), and the Applicant. He also asked some questions in relation to an enduring power of attorney to which he was a party. In my view, none of these matters are directly relevant to any questions or issues that are before the Court.
In re-examination, the Applicant commented on why she had filed the Application in the Fair Work Commission. She said:[24]
MS KEYS: I know it’s on advice, but why?‑‑‑I was just sick and tired of all the run-around and I was feeling that it just had to stop, and I thought that would be a way of putting a finite end to the situation and having all facts on the table.
And was that the first time that it had been in your mind that you would want to file a bullying application?‑‑‑I thought the investigation process would be – give a sensible outcome and it – and I just needed to find another way of making sure that, you know, all parties acted responsibly because I did not believe they were.
And had you made allegations about the third respondent bullying you in the past?‑‑‑Yes, I have.
And those matters were included in your application to the Fair Work Commission?‑‑‑Yes.
[24] T 47.
Ms Chapman’s Affidavit Evidence
I have already noted on a number of occasions in these reasons already that Ms Chapman is currently the Director-General of the Community Services Directorate in the ACT. At all relevant times for the purposes of the current proceeding, she was the Deputy Director-General and relevantly the delegate of the Director-General in formal correspondence with the Applicant, dated 13th December 2013, 8th April 2014, 17th July 2014, and 14th August 2014.
She affirmed three affidavits in the proceeding, filed 14th November 2014, 30th January 2015, and a very brief affidavit filed during the hearing to correct a factual matter set out in her original affidavit.
In her first (November 2014) affidavit, Ms Chapman confirmed that in her then role she was the delegate of the Head of Services for the purposes of Section H (Behaviours) of the Community Services Directorate Enterprise Agreement 2001-2013 in relation to employees of the Directorate.
She deposed that on 11th December 2012 a complaint was received from a client of the Directorate in relation to alleged misconduct by the Applicant.
On 17th December 2012, Mr Manikis, the Executive Director of the Community Services Directorate, advised the Applicant of a disciplinary investigation that was to commence to examine the allegations of misconduct. A copy of that letter to the Applicant, dated 17th December 2012, is annexure SC1 to this affidavit of Ms Chapman.
After recounting the steps then taken, such as the engagement of CPM Reviews to conduct the investigation, and various correspondence with the Applicant to which reference has already been made earlier in these reasons (in relation to which there is little or no dispute), Ms Chapman deposed (pars.14 & 15) as follows:
[14] On 17 July 2014 I wrote to the Applicant, setting out my proposed findings that she had engaged in misconduct and my proposal to take disciplinary action by terminating her employment for misconduct. A copy of that letter is annexed to this affidavit and marked SC3 (preliminary decision).
[15] In reaching my decision, I
a) had regard to the factual findings in the [CPM Reviews] Report;
b) had regard to previous behaviour and corrective action, including two written warnings (one final), provided to the Applicant;
c) did not consult with the Second Respondent; and
d) did consider the witness statement of the Third Respondent, which was included in the Report, but did not discuss the matter with her or receive any other submission from her.
In her second affidavit, filed 30th January 2015, Ms Chapman deposed as follows.
First, she confirmed that her letter to the Applicant, dated 10th December 2013, had initially proposed disciplinary action in the form of counselling and a transfer to another position.
Secondly, again after noting various correspondence with the Applicant in January and April 2014 (which is annexed to her affidavit), at par.8 Ms Chapman said:
In reading the Applicant’s response of 24th April 2014, I became concerned that she did not appreciate the seriousness of the allegations and failed to show any insight into her actions. She did not address the substantive matters I had raised but, rather, gave lengthy comment on other matters. She made no acknowledgment of the importance of professional behaviour in her role and how she demonstrated the ACT Public Service behaviours.
Ms Chapman next deposed that she then became aware of earlier warnings having been given to the Applicant. Copies of those formal warnings are at annexures SC5, SC6, and SC7 to her affidavit. She continued, at par.9: “Accordingly, I reconsidered my previous decision, and formed the view that termination was an appropriate disciplinary action.”
At par.10 of this affidavit, Ms Chapman said:
I formed this view on the basis of:
a) The factual findings of the investigator as set out in the Investigation Report;
b) The Applicant’s prior employment record; and
c) The responses provided by the Applicant during the disciplinary process.
She further deposed (at par.11) that “the Applicant’s employment was not sustainable.”
Ms Chapman confirmed that she sent a further letter to the Applicant on 17th July 2014, together with a Statement of Reasons (which is annexure SC8 to the affidavit). She invited the Applicant to respond to the findings and the proposed course of action. The Applicant declined to respond.
At par.14 of her January 2015 affidavit, Ms Chapman noted, therefore, that she “had no substantive submissions from the Applicant” and accordingly she “had no reason to reconsider my preliminary decision, and I confirmed my decision to terminate the Applicant’s employment on 14 August 2014.” A copy of the letter of termination was annexed to this affidavit – SC9.
At pars.16 and 17 of this affidavit, Ms Chapman deposed:
I did not seek the views of the Second Respondent, or any member of the Second Respondent’s staff, in relation to this matter, and I did not brief the Second Respondent on the matter prior to making the decision to terminate the Applicant’s employment on 14 August 2014. I did not speak to the Third Respondent about this matter or seek her views as to the allegations or appropriate disciplinary action. The Third Respondent did not encourage, coerce or counsel me to terminate the Applicant’s employment.
I have never spoken to or met the Fourth Respondent. The Fourth Respondent did not encourage, coerce or counsel me to terminate the Applicant’s employment.
Accepting that the point was not taken, for the sake of completeness I simply observe that Ms Chapman’s letter of 17th July 2014 to the Applicant that advised of the proposed termination also advised that the Applicant may provide a written response within 10 working days. It may be inferred from this letter that absent any response within the time prescribed, the decision to terminate would become final. Ten working days from 17th July 2014 concluded on 31st July; this is the day prior to the Applicant lodging the Application with the Fair Work Commission. Accordingly, the Application to that Commission could not, in any relevant respect, have impacted on the decision of Ms Chapman, which was already made and the practical steps to implement it were underway. I do not rely on or have regard to these observations.
Finally, at pars.18 and 19 of this affidavit, Ms Chapman said:
While the matters the subject of the Fourth Respondent’s complaint were serious, and in my view warranted the investigation by CPM Review, the Applicant’s responses to that process and prior history of the same kinds of behaviours were the determining factors in my decision to terminate her employment.
I formed the view that the Applicant’s employment should be terminated well before I learned that she had lodged an application for an anti-bullying order, as the Applicant provided no further submissions on this application.
In her last affidavit, filed 28th October 2015, Ms Chapman confirmed that she had in fact received notification at some time prior to 15th August 2014 that the Applicant had lodged an Application with the Fair Work Commission. Her knowledge of this Application to the Commission was also prior to Ms Chapman sending the letter of termination to the Applicant on 14th August 2014.
I accept the Third Respondent’s submission which was to the effect that, at its highest, the Third and Fourth Respondents might be taken to have discussed (but not necessarily with any relevant intent) the course of referring the Applicant’s conduct for investigation. And in any event, Ms Chapman’s clear evidence was that she did not even know either of the said Respondents, which begs the question as to how they could relevantly advise, encourage, incite or coerce her in her decision regarding the Applicant’s employment. The converse proposition must also apply, and may be put rhetorically: how could either of the said Respondents know about Ms Chapman’s decision regarding termination in any way (if at all) that would attract the operation of s.362?
Seventhly, generally and otherwise, I accept the submissions on behalf of the First, Second and Third Respondents.
Eighthly, it also follows from (i) the accepted evidence of the Third Respondent, (ii) the clear and cogent evidence of Ms Chapman (the Court also accepts the evidence of the Fourth Respondent), and (iii) having regard to the principles outlined by the High Court in Yorke v Lucas regarding the requisite state of knowledge of the Respondents to be satisfied to attract liability, that the Applicant’s claims against the Third and Fourth Respondents, pursuant to s.362 of the Act, (a) have not been made out, and (b) have otherwise been refuted by the evidence to which I have referred. Accordingly, the Applicant’s claims against the Third and Fourth Respondents must also be dismissed.
Having regard to the terms of s.570(1) and (2) of the Act, there should be no order as to costs.
Accordingly, the orders of the Court are that the Application filed 20th October 2014 be dismissed with no order as to costs.
I certify that the preceding two hundred and thirteen (213) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 14 April 2016
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