Mikulic v Ecolab Pty Ltd
[2017] FCCA 146
•1 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MIKULIC v ECOLAB PTY LTD | [2017] FCCA 146 |
| Catchwords: INDUSTRIAL LAW – WORDS & PHRASES – “Complaint”. INDUSTRIAL LAW – Interaction of Fair Work Act 2009 and Disability Discrimination Act 1992. |
| Legislation: Fair Work Act 2009, ss.340, 341, 342, 351, 360, 361, 539, 545 Evidence Act 1995, ss.97, 102 |
| Cases cited: Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (1999) 140 IR 131 Rojas v Esselte Australia Pty Ltd (No.2) (2008) 177 IR 306 Shea v TRUenergy Services Pty Ltd (No.6) (2014) 242 IR 1 Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19 Henry v Leighton Admin Services Pty Ltd (2015) 299 FLR 342 Harrison v In Control Pty Ltd (2013) 273 FLR 190 Dowling v Fairfax Media Publications Pty Ltd (2008) 172 FCR 96 Hodkinson v Commonwealth (2011) 248 FLR 409 RailPro Services Pty Ltd v Flavel (2015) 242 FCR 424 Cicciarelli v Qantas Airways Ltd [2012] FCA 56 Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740 Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500 Klein v Metropolitan Fire & Emergency Services Board (2012) 208 FCR 178 Construction, Forestry,Mining & Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 |
| Applicant: | IVONA KURAN MIKULIC |
| Respondent: | ECOLAB PTY LTD |
| File Number: | SYG 2484 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing dates: | 28 July, 29 July, 24 August, 5 November and 6 November 2015 |
| Date of Last Submission: | 6 November 2015 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Ms E. Raper |
| Solicitors for the Respondents: | Baker & McKenzie |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2484 of 2014
| IVONA KURAN MIKULIC |
Applicant
And
| ECOLAB PTY LTD |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION................................................................................................. [1]
ALLEGATIONS..................................................................................................... [2]
Alleged Facts
Workplace injury......................................................................................... [3]
Bullying........................................................................................................ [5]
Termination.................................................................................................. [9]Alleged contraventions.................................................................................. [11]
RESPONSE......................................................................................................... [14]
RELEVANT LEGISLATION.............................................................................. [15]
Penalties and compensation.......................................................................... [19]
APPLICANT’S EVIDENCE............................................................................... [20]
Ivona Mikulic
First bullying complaint........................................................................... [25]
Warning letter............................................................................................ [29]
2011/2012 bullying.................................................................................. [32]
Workplace injuries.................................................................................... [36]
1 April 2014 meeting and return to work on 3 June 2014.................... [40]
Second bullying complaint and investigation......................................... [44]
Termination of employment..................................................................... [52]Frank Mikulic................................................................................................. [56]
Complaints................................................................................................. [57]
Independent investigation......................................................................... [59]
Termination meeting................................................................................. [60]
RESPONDENTS’ EVIDENCE.......................................................................... [61]
Lisa Atherton.................................................................................................. [62]
Mrs Mikulic’s interview process............................................................. [63]
Performance issues – March to June 2010............................................ [67]
First bullying complaint – June 2010..................................................... [73]
Leave periods............................................................................................ [75]
First workers’ compensation claim......................................................... [77]
Events of April 2014................................................................................. [79]
External investigation............................................................................... [93]
Mrs Mikulic’s return to work in June 2014............................................ [94]
Generally................................................................................................... [97]Smanatha Fraser........................................................................................... [100]
Early performance issues – March to May 2010................................ [102]
Mrs Mikulic’s complaint about laboratory practices........................... [110]
June 2010 events – warning letter and bullying complaint................. [112]
Mrs Mikulic’s 2010 performance review............................................. [117]
First workers’ compensation claim....................................................... [120]
Events of April 2014.............................................................................. [121]
Leave........................................................................................................ [123]Gina McFarlane........................................................................................... [125]
Mrs Mikulic’s return to work in May 2012 – feedback
from other staff and retraining.............................................................. [126]
2012 performance review...................................................................... [133]
Mrs Mikulic’s complaint of neck pain – April 2013........................... [138]
Workers’ compensation claim – August 2013..................................... [139]
2013 performance review...................................................................... [140]
Mrs Mikulic’s return to work plan........................................................ [142]
Events of 1 April 2014........................................................................... [145]
Mrs Mikulic’s return to work after 1 April 2014................................. [156]
Other matters.......................................................................................... [160]Zena Habib................................................................................................... [162]
Events of April 2014.............................................................................. [163]
Internal investigation.............................................................................. [169]
External investigation and termination................................................. [172]
Further complaints.................................................................................. [176]
Generally................................................................................................. [177]Peter Rich
Internal investigation and second workers’ compensation claim....... [179]
External investigation............................................................................. [187]
Mrs Mikulic’s return to work process.................................................. [190]
Further complaints of bullying.............................................................. [196]
Outcome of external investigation and termination............................ [198]
Generally................................................................................................. [205]
CONSIDERATION........................................................................................... [206]
Credibility of witnesses.............................................................................. [207]
Discussion.................................................................................................... [223]
RELIEF SOUGHT - REINSTATEMENT........................................................ [245]
CONCLUSION................................................................................................. [247]
INTRODUCTION
On 8 March 2010 the applicant, Mrs Mikulic, commenced work as a microbiologist in the microbiology laboratory of Nalco Australia Pty Limited (“Nalco”). In 2011 Nalco merged with the respondent (“Ecolab”) and on 1 December 2013 Mrs Mikulic’s employment was transferred to Ecolab. On 18 July 2014 Mrs Mikulic was dismissed from her employment. On 5 September 2014 she commenced this proceeding alleging that her dismissal was adverse action under the Fair Work Act 2009 (“FW Act”) and, in breach of ss.340 and 351 of the FW Act, had been taken because of her exercise of workplace rights, her proposal to exercise her workplace rights and a disability from which she suffered. She also alleged that Ecolab had taken adverse action against her by failing to make reasonable accommodations for her disability which arose out of a work-related injury.
ALLEGATIONS
Mrs Mikulic’s allegations were contained in her Form 2 form filed with her application.
Alleged facts
Workplace injury
Mrs Mikulic alleged that on 2 April 2013 she injured her neck at work while carrying out a task which required her to keep her neck in a bent position. She alleged that her injury was exacerbated in June and July 2013 because of a heavy workload following a legionella outbreak. Mrs Mikulic alleged that she made a workers compensation claim in relation to that injury which was accepted by Ecolab’s insurer, Allianz.
As a result of her neck injury, Mrs Mikulic was absent from work from 26 September 2013 to 10 February 2014. When she returned to work, she was placed on light administrative duties at the Ecolab head office and then returned to the microbiology laboratory on 1 April 2014. Mrs Mikulic alleged that prior to her return to work, her rehabilitation therapist recommended that certain changes be made to the laboratory for her benefit and that of other staff members. Mrs Mikulic alleged that Ecolab was unhappy with those recommendations because of the costs associated with implementing them and so changed her rehabilitation therapist. She alleged that she had also personally made unsuccessful requests for changes to be made to some of the equipment in the laboratory in order to assist her return to work and to avoid further neck injuries.
Bullying
Mrs Mikulic alleged that shortly after she commenced work with Nalco she raised with her then-manager, Samantha Fraser, and the OH&S Manager, Phil Garvin, certain unsafe work practices she observed. She alleged that as a result, she came into conflict with the microbiology laboratory supervisor, Lisa Atherton, who, throughout her employment, bullied her by:
a)being rude and abrupt in conversation;
b)constantly staring at and watching her whilst she was working;
c)being overly critical of her work;
d)changing her shifts to reduce her ability to earn more income and disrupting her ability to collect her children from child care;
e)not including her in group discussions and excluding her from conversations;
f)assigning her menial tasks while allocating junior and unqualified technicians advanced microbiological testing tasks; and
g)unexpectedly assigning her new work to disrupt her already allocated tasks.
Mrs Mikulic alleged that on 17 May 2010 she made a verbal complaint about Ms Atherton’s conduct to the then-human resources manager. She alleged that on 1 June 2010 Ms Fraser issued her with a warning letter containing false allegations regarding her performance. Mrs Mikulic alleged that she provided a response to that letter and also made a formal complaint against Ms Atherton, after which the warning letter was unconditionally withdrawn.
Mrs Mikulic alleged that on 1 April 2014, when she returned to work following her absence due to her injury, she attended a meeting with Ms Atherton and her then-manager, Gina McFarlane, during which Ms Atherton:
a)made untrue allegations that she had made offending remarks about another colleague;
b)accused her of discussing her injury with others when it was a confidential matter;
c)belittled her performance in the laboratory on that morning; and
d)accused her of not following her rehabilitation therapist’s instructions.
Mrs Mikulic alleged that she was intimidated and threatened by Ms Atherton’s behaviour at the meeting and so she made a second complaint to Ecolab about Ms Atherton’s bullying conduct. She alleged that following a flawed investigation her complaint was found to be unsubstantiated. Mrs Mikulic also submitted a workers’ compensation claim for a psychiatric injury arising out of that meeting which was ultimately rejected by Allianz.
Termination
Mrs Mikulic alleged that her employment was terminated at a meeting on 18 July 2014. Her termination letter stated that she was being terminated because of:
a)a breakdown in her relationship of trust and confidence with Ecolab, particularly Ecolab’s loss of trust and confidence in her ability to serve it faithfully; and
b)her inability to perform the inherent requirements of her role because of her inability to work with Ms Atherton.
Mrs Mikulic alleged that in circumstances where Ecolab had not adequately explained why it had lost trust and confidence in her, the only reasonable explanation for her termination was that she had made a bullying complaint and/or that she had suffered a workplace injury and Ecolab had not wished to accommodate that injury.
Alleged contraventions
Mrs Mikulic alleged that she had had:
a)a workplace right to make a complaint or inquiry to Ecolab or the Fair Work Commission in relation to Ms Atherton’s bullying in accordance with s.341(1)(c)(ii) of the FW Act; and
b)a workplace right to a safe system of work under a relevant workplace law, namely the Work Health and Safety Act 2011.
She alleged that Ecolab had contravened:
a)sub-ss.340(1) and (2) of the FW Act by terminating her employment:
i)because she had exercised her workplace right to make a complaint or inquiry in relation to Ms Atherton’s bullying;
ii)to prevent her from exercising her workplace right to make a complaint or inquiry in relation to the bullying; and
iii)to prevent the implementation of reasonably practicable accommodations to her workspace, pursuant to its obligations under the Work Health and Safety Act, in order to prevent further injury to her neck; and
b)s.351 of the FW Act by terminating her employment on the basis of a disability, namely her neck injury, and by its failure to make reasonable accommodation for that disability.
Mrs Mikulic sought to be reinstated to her job.
RESPONSE
Ecolab contested Mrs Mikulic’s claims and alleged that she had been dismissed for the reasons set out in her termination letter.
RELEVANT LEGISLATION
Part 3-1 of ch.3 of the FW Act provides for employees’ general protections. Division 3 of pt.3-1 provides for the protection of workplace rights and for the exercise of those rights. Sections 340 to 342 of the FW Act are found in div.3 of pt.3-1 and relevantly provide:
340 Protection
(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)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.
341 Meaning of workplace right
Meaning of workplace right
(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.
Meaning of process or proceedings under a workplace law or workplace instrument
(2) Each of the following is a process or proceedings under a workplace law or workplace instrument:
…
(b) court proceedings under a workplace law or workplace instrument;
…
(k) any other process or proceedings under a workplace law or workplace instrument.
…
342 Meaning of adverse action
(1)The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...
Column 2
if ...
1 an employer against an employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
…
Section 351 relevantly provides:
351 Discrimination
(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
…
Section 361 of the FW Act is concerned with proof of the reason for action alleged to be contrary to a provision of pt.3-1 of the FW Act. At all relevant times it provided:
361 Reason for action to be presumed unless proved otherwise
(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 that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
…
Section 360 provides:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Penalties and compensation
Section 539 of the FW Act provides that ss.340 and 351(1) are civil remedy provisions. Section 545(2)(c) provides that the Court may order the reinstatement of a person dismissed in contravention of a FW Act civil remedy provisions.
APPLICANT’S EVIDENCE
Ecolab objected to the applicant’s affidavits saying, amongst other things, that they contained irrelevant information and were argumentative. Many of those objections concerned Mrs Mikulic’s complaints of bullying by Ms Atherton, on the basis that such allegations could have no relevance to whether Mrs Mikulic had been dismissed for a prohibited reason.
Contrary to Ecolab’s submission, evidence concerning Mrs Mikulic’s complaints of bullying was relevant because it related to a foundation of her claim to have been dismissed for making complaints which were protected under ss.340 and 341 as workplace rights. In this connection, although a represented party would probably have framed their case more narrowly than Mrs Mikulic did, Mrs Mikulic was not represented. She sought to demonstrate that her dismissal was the ultimate conclusion of a course of conduct on the part of Ecolab employees which had its origins in the very fact of her employment in March 2010. Consequently, issues which might not have been given credence or significance by a legal practitioner, and for that reason not pressed upon the Court, were central to Mrs Mikulic’s case.
Further on such matters, much of Mrs Mikulic’s cross-examination of witnesses was directed to issues other than the ones the Court had to decide. Her obvious feelings of grievance led to many historical matters of no real relevance to the reason or reasons for her dismissal being pursued at some length, and certainly at a greater length than would have been permitted had she been represented.
I consider evidence concerning the genuineness of Ecolab’s investigations of Mrs Mikulic’s complaints of bullying also to be relevant and admissible on the basis that such evidence would reflect on whether Ecolab respected Mrs Mikulic’s right to make complaints (or inquiries) or whether it did not. Were the latter situation to be the case, it might add weight to Mrs Mikulic’s allegation that she was dismissed because she complained.
Nonetheless, evidence given by two former Ecolab employees, Mr Galvin and Ms Howard, will be rejected as irrelevant, for offending s.97 of the Evidence Act 1995, having little to no probative value, and for offending s.102 of the Evidence Act.
Ivona Mikulic
First bullying complaint
Mrs Mikulic commenced work as a microbiologist with Nalco on 8 March 2010. She deposed that when she commenced work she noticed some unsafe and unhygienic practices in the microbiology laboratory and reported them to her manager, Ms Fraser, and to the OH&S Manager, Mr Garvin. Mrs Mikulic deposed that her actions in highlighting the inadequate and below standard procedures used by the laboratory supervisor, Ms Atherton, had led to the latter’s bullying and harassing conduct. She also deposed that during her initial interview she had been told that she would act in the supervisor role when Ms Atherton went on maternity leave and Ms Atherton had feared that she would take over her role.Ms Mikulic deposed that Ms Atherton had been trying to engineer her dismissal since 2010.
Mrs Mikulic deposed that on 17 May 2010 she made a verbal complaint about Ms Atherton’s bullying, harassing and unprofessional behaviour to Marie Carty, the Human Resource Management Partner. She deposed that on 25 May 2010 she had a further conversation with Ms Carty during which she said that she was going to submit a formal complaint against Ms Atherton. Mrs Mikulic submitted a written formal complaint to Ms Carty on 3 June 2010. In that complaint she described Ms Atherton’s conduct in the following manner:
Lisa has displayed harassing, badgering, provocative and unfair behaviour towards me. The behaviour demonstrated to me has not been fair and is not displayed towards other members of the laboratory. The comments she has made about me during my weekly reviews is [sic] imaginative, fictitious, false and lies. She has made false statements about my performance in the laboratory towards my manager Samantha Fraser.
She in unfairly belittling my performance in the microlab. She endeavours to seek and highlight insignificant test methodology as being faults and of significance to the test method, which is untrue. The minute analysis and over criticism of my performance and unfair treatment she does not demonstrate to other colleagues but has prejudicially singled me out.
Mrs Mikulic deposed that Ms Atherton’s bullying conduct had also included:
a)changing her working hours, which made it difficult for her to pick up her children from day care, in an attempt to get her to resign;
b)failing to arrange for her to be trained on certain aspects of the laboratory. She deposed that Ms Atherton would become angry if she sought informal training from other staff members and had kept her training record blank and refused to give her access to it;
c)affecting her ability to take lunch breaks by giving her too much work and complaining if she did not complete it; and
d)making false allegations regarding her performance.
Mrs Mikulic deposed that on 23 June 2010 she met with Ms Fraser and Melissa Zieba, the Human Resources Manager, and the latter praised her for her complaint, saying it was “valid”, and advised her that Ms Atherton would undergo special management training to correct her behaviour and would be required to sign Nalco’s harassment policy. Mrs Mikulic denied that she too had been required to read Nalco’s bullying and harassment policy.
Warning letter
Mrs Mikulic deposed that between March and April 2010 she attended six counselling sessions with Ms Fraser and Ms Atherton. She deposed that during those meetings she had explained to Ms Fraser that Ms Atherton’s allegations of underperformance were insignificant or untrue but she had never been rude, disruptive or raised her voice.
On 3 June 2010 Mrs Mikulic was issued with a warning letter alleging inadequate performance. Mrs Mikulic deposed that the warning letter was prepared by Ms Fraser, on the advice of Ms Atherton, and contained lies, false accusations and inaccuracies. However, in her response to the warning letter Mrs Mikulic accepted that she had made some errors with test results. In her oral evidence she said that the errors were technical ones and that she had provided a sufficient explanation for why they had occurred. Mrs Mikulic said that she had not been properly trained on Ecolab’s system and that other staff members also made the same errors but that only her errors were brought to Ms Fraser’s attention because Ms Atherton had disliked her. She said it was not legitimate of Ms Fraser to raise these issues with her because Ms Fraser did not work with her in the laboratory or observe her work.
Mrs Mikulic deposed that on 16 June 2010 Ms Zieba verbally advised her in Ms Fraser’s presence that the warning letter had been unconditionally withdrawn and would not appear in her employee file. Mrs Mikulic deposed that although the warning letter was withdrawn, she was ultimately not appointed supervisor when Ms Atherton went on leave because Ms Fraser viewed her in a negative light as a result of Ms Atherton’s false accusations.
2011/2012 bullying
From February 2011 to May 2012 Mrs Mikulic was absent from work, initially on sick leave and then on maternity leave. She deposed that for a period of nine months following her return, Ms Atherton only assigned her menial tasks such as cleaning eskies and dispatching satchels. Mrs Mikulic said that during that period she was not given an opportunity to receive more training, despite the fact that, contrary to Ms McFarlane’s evidence, she worked three successive days each week and could have undertaken the necessary training. She deposed that she was only returned to microbiological tasks when Ms Fraser was replaced by Ms McFarlane as the laboratory manager.
Mrs Mikulic deposed that in an annual performance review form dated 26 February 2013, Ms McFarlane noted that she had had an atypical year, which was a reference to the nine month period she spent undertaking menial cleaning tasks, not a reference to her period of maternity leave. She deposed that at the review meeting Ms McFarlane had apologised for Ms Atherton and Ms Fraser’s actions in only allocating her menial tasks.
Mrs Mikulic accepted that in March, April and July 2013 she had a number of counselling sessions with Ms McFarlane during which issues about her performance were raised. She also attended weekly review meetings with Ms McFarlane during which performance concerns were raised. In addition, during her performance review in 2014 Ms McFarlane raised concerns about her techniques and practices. Mrs Mikulic said that Ms McFarlane, like Ms Fraser before her, had made the mistake of assessing her performance based on Ms Atherton’s opinions without actually observing her work.
Mrs Mikulic denied having made allegations against Ms Atherton as a means of deflecting attention from her own performance issues.
Workplace injuries
Mrs Mikulic deposed that on 2 April 2013 she worked with two other laboratory staff members, Susanna Huang and Richard Au-Yeung. She deposed that due to a backlog created by the Easter break, they had had a heavy workload and all three of them were supposed to read plates and count colonies. Mrs Mikulic deposed that contrary to instructions, Ms Huang, whose attitude mirrored Ms Atherton’s, made her read the majority of the plates by herself. She deposed that she also stayed back until 6pm while Ms Huang and Mr Au-Yeung left at 4pm. Mrs Mikulic deposed that as a result of the work she did on that day she suffered a neck injury. She deposed that an increase in the laboratory workload between January and August 2013 as a result of the amalgamation of the Nalco and Ecolab laboratories and the resignation of four staff members had also contributed to her neck injury.
Mrs Mikulic deposed that on 3 April 2013 she attended work for an hour, advised Ms McFarlane that she was in pain and then left to visit her doctor. She deposed that her doctor diagnosed her with an injured disc in her neck, advised her that her injury was work-related and said that she should make a WorkCover claim. Mrs Mikulic deposed that she decided to not make such a claim and instead used her private health cover to pay for physiotherapy treatment because WorkCover was a “taboo” topic at Nalco. She deposed that on 10 April 2013 she advised Ms McFarlane of her injury and provided her with medical certificates to account for her absences from work on 3, 4 and 5 April 2013. Mrs Mikulic deposed that Ms McFarlane was concerned that she would make a WorkCover claim and appeared relieved when she said that she would not.
Mrs Mikulic deposed that in June and July 2013 her workload tripled because of a legionella outbreak. She deposed that she sustained another injury to a neck disc which had previously been intact and reported it to Ms Fraser on 26 September 2013. Mrs Mikulic stopped attending work on 26 September 2013 and made a WorkCover claim which was accepted by Allianz on 5 November 2013.
Mrs Mikulic deposed that following a visit to Ecolab with her occupational therapist, Jerome Copeman, on 22 November 2011 she had a case conference with Mr Copeman and her doctor during which they concluded that she could not return to work until modifications were made to her workspace. In a report dated 18 November 2013 Mr Copeman made recommendations about adjustments which needed to be made to Mrs Mikulic’s workspace, including a raised and angled desk and mounted cameras with head high monitors. On 13 January 2014 Christine Roche, Ecolab’s Environment, Health and Safety Specialist, advised Mrs Mikulic by email that Mr Copeman was to be replaced by another occupational therapist. Mrs Mikulic deposed that on the same day Ms Roche told her by telephone that Ecolab was unhappy with Mr Copeman’s assessment as he was taking too long to approve her return to work. She deposed that she also spoke to Mr Copeman who advised her that Ecolab was seeking to replace him because it was unhappy with his report. Mrs Mikulic deposed that Ecolab had replaced Mr Copeman because it had not wanted to make the changes recommended in his report.She deposed that Ecolab ultimately only made one change to accommodate her by adding a portable bench top which raised the desk height by 30cm.
1 April 2014 meeting and return to work on 3 June 2014
Mrs Mikulic deposed that after a six-month absence she returned to work in the laboratory on 1 April 2014. She deposed that during the morning of that day Annette Chamberlain, the replacement occupational therapist, visited her at work and gave her some recommendations about her posture and seating. Mrs Mikulic deposed that at around 11.15am she moved to another work area and, with Ms Atherton’s assistance, made some adjustments to the work area, including raising the tube racks to prevent her bending excessively. She deposed that when Ms Atherton returned to check on her later the following occurred:
… Lisa Atherton enquired if I felt any pain. I replied that I felt some pain in my neck but it is manageable. Lisa Atherton then became agitated and in an intimidating, abrupt manner raised her voice and advanced towards me, this made me feel uncomfortable and I was asked in a hostile manner;
Lisa Atherton said: “Be honest with me”
I said: “I do feel a little bit uncomfortable and in pain but I can cope”
Lisa Atherton then became more agitated and behaved very pushy towards me and hurriedly in a raised voice abruptly said;
Lisa Atherton said: “Gina needs to know about this immediately”
Lisa hurriedly departed the media room and returned after a minute or two and said;
Lisa Atherton said: “That’s it! Let’s go! We are having a meeting!” (emphasis included)
The meeting was also attended by Ms McFarlane. Mrs Mikulic deposed that Ms Atherton opened the meeting by accusing her of having made some insulting comments about another staff member, Avinesh Naidu. She deposed that Ms Atherton also accused her of not following the directions given to her by Ms Chamberlain regarding the positioning of her chair, said that she had breached Ecolab’s privacy policy by discussing her injuries with her colleagues, said that she had had to help her write and laughed and ridiculed her for only having completed one rack of samples that morning. Mrs Mikulic deposed that she had tried to defend herself and admitted that in that process she had raised her voice at Ms Atherton and had been abrupt towards her. However, she denied that she had used any obscene language or insulted Ms Atherton and deposed that Ms Atherton’s voice had also been raised. She deposed that she had remained seated throughout the meeting and had only stood up when she left the meeting.Mrs Mikulic deposed that Ms McFarlane did not address the matters she raised in her defence and was more concerned with her raised voice and manner of speaking. She deposed that when she asked to speak to Ms McFarlane in private, the latter did not respond. Mrs Mikulic deposed that she then said she wanted to leave the meeting and see her doctor. She deposed that Ms Atherton and Ms McFarlane became worried that she would report the meeting to human resources and Ms McFarlane asked her not to leave. Nevertheless, Mrs Mikulic left the meeting and visited her doctor.
Mrs Mikulic said that the meeting had been called by Ms Atherton in order to attack her on her first day back at work, to send her home and to deliver a message that she was not welcome after having been absent for six months.
Mrs Mikulic deposed that her doctor recommended that she not return to work and she did not do so until 3 June 2014. She deposed that when she did return to work she no longer had a work station. This indicated to her that Ecolab had already decided to terminate her employment.
Second bullying complaint and investigation
Mrs Mikulic deposed that on the advice of her doctor and her occupational therapist, she lodged a claim with Allianz for stress and psychological strain as a result of Ms Atherton’s bullying.
Mrs Mikulic deposed that on 7 April 2014, accompanied by her husband as her support person, she attended a meeting with Zena Habib (from human resources) and Ms Fraser. She deposed that Ms Habib had not told her beforehand that the meeting was about her 1 April 2014 meeting with Ms McFarlane and Ms Atherton. She deposed that she had believed that the meeting was to discuss Ms Atherton’s bullying conduct. Mrs Mikulic deposed that Ms Habib had not, during the meeting or at any later stage, put to her any allegations of wrongdoing or misconduct, told her that a complaint of inappropriate behaviour had been made against her by Ms McFarlane or said that she was investigating any such allegations. At the meeting Mrs Mikulic handed to Ms Habib a formal complaint regarding bullying conduct by Ms Atherton at the 1 April 2014 meeting.
On 8 May 2014 Allianz declined Mrs Mikulic’s claim for stress and psychological pain because it could not substantiate the bullying claim on the information provided. Mrs Mikulic deposed that on 11 April 2014 Ms Habib also concluded that her 7 April 2014 bullying complaint could not be substantiated but did not advise her of that outcome until Ecolab received the outcome of Allianz’s investigation into her stress claim on 9 May 2014.
Mrs Mikulic deposed that she had provided to Ms Habib a list of witnesses who could substantiate her claims of Ms Atherton’s bullying behaviour but Ms Habib had not spoken to any of those witnesses.
Mrs Mikulic deposed that because she was dissatisfied with Ms Habib’s investigation, she complained to Ecolab’s Vice President, Sean Toohey, and he arranged for a further meeting between her and Ms Habib. That meeting was held on 26 May 2014 and was also attended by Peter Rich, Ecolab’s Technical Manager, and Mrs Mikulic’s husband as her support person. Mrs Mikulic deposed that at that meeting she attempted to submit a statement by Mr Garvin, who had been Ms Atherton’s manager in the past, but Ms Habib and Mr Rich rejected it as Mr Garvin no longer worked at Ecolab. She deposed that Mr Rich said that he and Ms Habib would not investigate any matters which had occurred before 1 April 2014, including alleged bullying conduct by Ms Atherton in 2010. They also refused to accept evidence which had formed part of Allianz’s investigation into her psychological injury claim.
Mrs Mikulic deposed that on 3 June 2014 her physiotherapist, Monique Rahme, informed her that Iain Hall, her occupational therapist, had said that Ms Atherton had made negative comments about her which indicated that she did not want her back in the laboratory. On 4 June 2014 Mrs Mikulic sent an email to Ms Habib complaining about Ms Atherton’s discussions with Mr Hall. Mrs Mikulic deposed that she had provided Ms Habib with Mr Hall and Ms Rahme’s contact numbers but Ms Habib had failed to investigate the matter further.
Mrs Mikulic deposed that on 10 June 2014 she was advised that Ecolab had appointed an independent investigator to investigate her bullying claims. She deposed that on 11 June 2014 she met with the investigator from People + Culture Strategies (“PCS”), who told her that she had been instructed by Ecolab to not accept any statements from previous employees or evidence provided by Allianz. Mrs Mikulic deposed that PCS also failed to speak to two of her witnesses, Sharyn Gaspari and Judy Corpuz, who were still employed by Ecolab. She deposed that the investigation was flawed and only conducted for the sake of appearances.
On 16 July 2014 Mrs Mikulic was advised that PCS had concluded that her claims could not be substantiated.
Termination of employment
Mrs Mikulic deposed that on 18 July 2014 she was dismissed because of the bullying complaint she had made against Ms Atherton on 7 April 2014, her neck injury and Ecolab’s unwillingness to make recommended changes to her workspace. Mrs Mikulic deposed that following her meeting with Mr Rich and Ms Habib on 26 May 2014 she completed a (Fair Work Commission) bullying complaint form which she had intended to submit after the outcome of the independent investigation. She deposed that Ecolab had been aware that she wished to take her complaint further and had terminated her employment before she could lodge the complaint.
Mrs Mikulic deposed that as the 2010 warning letter had been withdrawn and removed from her file she had never been given any warning, indication or direction that she had performance issues which she needed to address. She deposed that she had received favourable performance reviews from Ms Fraser when Ms Atherton was absent on maternity leave, being rated as “good” in her 23 November 2010 review and as “successfully meets” in her review of 18 February 2011. Mrs Mikulic further deposed that in 2013 she had received an “adequate” review from Ms McFarlane and had constantly passed her proficiency tests in 2010. She deposed that her performance had never been an issue raised with her by Ecolab.
Mrs Mikulic deposed that she was always receptive to criticism, contrary to Mr Rich’s evidence, but went on to state that the “allegations by Ms Atherton were not criticisms but unwarranted, unjustified attacks of false allegations and lies, which had been confirmed by other laboratory staff members”. She deposed that she was “always unfairly attacked by Ms Atherton”.
Mrs Mikulic deposed that she had never stated that she could not work with any of Ecolab’s employees, and specifically Ms Atherton. She deposed that she had always claimed to be able to work with Ms Atherton.
Frank Mikulic
Mr Mikulic’s evidence was contained in three statements made on 20 July 2014, 25 July 2014 and 6 December 2014 which were annexed to his affidavit dated 18 March 2015.
Complaints
Mr Mikulic stated that in April 2010 his wife told him that Ms Atherton had begun to bully and harass her two weeks after she commenced work. On 3 June 2010 Mrs Mikulic lodged a formal complaint against Ms Atherton. Mr Mikulic stated that his wife later told him that Ms Zieba concluded that her complaint was justified and that Ms Atherton was required to undergo management training and sign an acknowledgement of Nalco’s harassment policy. In June 2010 Mrs Mikulic also received a warning letter from Nalco alleging poor performance on her part. Mr Mikulic stated that his wife told him that the allegations in the warning letter were false and that it had been drafted by Ms Fraser on advice and information given by Ms Atherton. He stated that she later told him that the warning letter had been withdrawn and would not appear on her file.
Mr Mikulic stated that on 26 May 2014 he attended a meeting between his wife, Ms Habib and Mr Rich where Ms Habib confirmed that the warning letter issued to his wife in 2010 had been withdrawn but said that the 2010 bullying allegations against Ms Atherton had not been substantiated. Mr Mikulic stated that Ms Habib and Mr Rich advised his wife that they had investigated her second complaint against Ms Atherton but had been unable to substantiate it. He stated that his wife handed to Ms Habib and Mr Rich a letter outlining further evidence of Ms Atherton’s bullying and a statement from Mr Garvin but they refused to take those documents into account.
Independent investigation
Mr Mikulic stated that as Mrs Mikulic’s support person he attended the 11 June 2014 meeting between her and PCS. He stated that during the meeting his wife repeatedly attempted to provide PCS with a witness statement made by Ms Atherton during Allianz’s investigation into his wife’s psychological injury. However, PCS refused to accept the statement, stating that it had been instructed by Ecolab’s human resource management team to not accept any statements related to the Allianz investigation. Mr Mikulic stated that despite repeated requests from him and his wife, PCS also said that it would not take into account statements made by persons who no longer worked for Ecolab, specifically Mr Garvin, and that, on Ecolab’s instructions, it would not speak to those people or investigate events they might have witnessed. He stated that PCS also refused to speak to Ms Gaspari, who was still employed by Ecolab, because Ms Gaspari did not work in the laboratory. Mr Mikulic stated that PCS did not object to one of Mrs Mikulic’s witnesses, Ms Corpuz, but did not confirm that she would speak to her and appeared not to have done so.
Termination meeting
Mr Mikulic stated that he attended the termination meeting between his wife, Mr Rich and Richard Blandford, Ecolab’s learning and development leader, on 18 July 2014. Mr Rich advised Mrs Mikulic that the Ecolab and PCS investigations had failed to substantiate her bullying claims against Ms Atherton, that she had a history of making unsubstantiated complaints against other employees and that Ecolab had concluded that that she had fabricated and exaggerated her complaints. Mr Mikulic stated that Mr Rich went on to say:
Due to your complaint against Lisa, ECOLAB has formed a view that there has been a breakdown in trust and loss of confidence in you.
Due to your inability to work with Lisa Atherton and perform your inherent role as a microbiologist ECOLAB has formed the view that it is in ECOLAB’s and your best interest that you and ECOLAB separate.
RESPONDENT’S EVIDENCE
Binders of documents were exhibited to the deponents of Ecolab’s affidavits. In examination in chief those documents were generally referred to as annexures to those affidavits. I have treated them as such.
Lisa Atherton
Ms Atherton was the senior microbiologist at Ecolab (formerly Nalco) from 2005 to 2014 and was Mrs Mikulic’s direct supervisor in the microbiology laboratory. In March 2014 she was appointed to the position of lead microbiologist and is in charge of Ecolab’s microbiology department.
Mrs Mikulic’s interview process
Ms Atherton deposed that Mrs Mikulic’s Microbiologist 1 position was a senior position with duties which included the following:
a)performing routine and non-routine testing of environmental samples;
b)managing workflow of routine daily operations, including management of the media and quality control sections of the laboratory, management of calibration and maintenance of equipment and management of staff conducting analysis of samples;
c)ensuring operations adhered to quality procedures and standard methods, namely, that the laboratory adhered to their accreditation with the National Association of Testing Authorities, Australia (“NATA”), which was the authority that provided assessment, accreditation and training services to laboratories and technical facilities throughout Australia and internationally;
d)co-ordinating proficiency testing;
e)answering customer enquiries;
f)providing technical assistance to customers regarding a range of microbiological enquiries; and
g)trouble shooting of analytical and field applications.
Ms Atherton deposed that it was a prerequisite of the position that the successful candidate have previous experience in a NATA accredited facility. Further, at the time that the Microbiologist 1 position was being advertised in February 2010, Ms Atherton had NATA “signatory status” (i.e she had been accredited by NATA and was able to issue customer reports endorsed by them and containing their accreditation emblem) but was due to commence maternity leave in three months’ time. She deposed that, in light of her impending leave, it was crucial for the successful candidate to be able to obtain NATA signatory status in a short period of time.
Ms Atherton deposed that prior to Mrs Mikulic’s employment, she and Ms Fraser sat down with Mrs Mikulic and advised her that:
a)experience working in a NATA accredited laboratory was an inherent requirement of the position;
b)the successful candidate had to possess transferrable skills in Australian Standard methods in order to gain NATA signatory status within a short period of time;
c)the company was hiring a senior microbiologist because Ms Atherton was going on maternity leave and the successful candidate would be required to temporarily cover that role, including supervising and leading the microbiology team; and
d)the successful candidate would be required to work on rostered Saturdays and be flexible in their working hours.
Ms Atherton deposed that Mrs Mikulic indicated that she had the skills required for the position and was comfortable working flexible hours, including on Saturdays.
Performance issues – March to June 2010
Mrs Mikulic commenced employment with Nalco in early March 2010 and Ms Atherton was her direct supervisor and trainer. Ms Atherton deposed that she prepared a training plan for Mrs Mikulic which set out a list of competencies she was required to achieve within a set timeframe. She deposed that the goal of the training plan was for Mrs Mikulic to achieve NATA signatory status in a short period of time and that Mrs Mikulic had confirmed that she was comfortable with the plan.
Ms Atherton deposed that early in Mrs Mikulic’s employment, she began to have concerns regarding her performance. These concerns were based on her direct observations of Mrs Mikulic’s work in the laboratory and included the following:
a)lack of attention to detail. Ms Atherton deposed that Mrs Mikulic’s general lack of attention to detail led to her making errors which were repetitive in nature;
b)lack of ability to lead the team effectively and to work within a team environment. Ms Atherton deposed that by early April 2010 it had become apparent to her that Mrs Mikulic had, on more than one occasion, created conflict between herself and fellow team members. She deposed that although part of Mrs Mikulic’s role was to lead junior staff, junior staff were approaching her about errors allegedly made by Mrs Mikulic in the laboratory;
c)lack of technical and NATA knowledge. Ms Atherton deposed that by April 2010 it had become apparent to her that Mrs Mikulic lacked the necessary level of technical knowledge, including knowledge regarding NATA accreditation, expected of an employee in the Microbiologist 1 position;
d)lack of transferrable skills. Ms Atherton deposed that during her early weeks of employment, Mrs Mikulic made various errors in identifying the presence of legionella bacteria;
e)blaming other colleagues and not taking responsibility for errors; and
f)lack of ability to take instructions.
Ms Atherton deposed that during the period 26 March 2010 to early May 2010 she and Ms Fraser conducted seven counselling sessions with Mrs Mikulic. Although her performance issues were discussed during those sessions, Mrs Mikulic’s technical and leadership skills did not improve and Ms Atherton formed the view that Mrs Mikulic was not performing at the level expected of a person in the Microbiologist 1 position.
Ms Atherton deposed that Mrs Mikulic did not respond positively to the feedback and counselling which she and Ms Fraser provided. She deposed that during the last counselling session in early May 2010, there was a discussion to the following effect:
MS ATHERTON: Ivona, during the last 2 months, we have discussed the same issues involving lack of technical capability and conflict with staff. You were brought here as a leader and I feel that I cannot leave and commence maternity leave as you have not shown the transferrable skills you claimed to have during your interview.
MRS MIKULIC: [in a raised voice] Lisa, you are setting me up to fail. I am a leader, I can lead this lab tomorrow it’s you who does not want me to! I can’t take this anymore; you always find error in my work. You do this because you are afraid I will take your job!
MS FRASER: Ivona, please calm down. This was neither mine nor Lisa’s intent and there is no need to get personal or aggressive. The purpose of this meeting is to provide constructive feedback on our performance, not to upset you. We do need however to investigate why we are not seeing any improvement on a weekly basis.
MS ATHERTON: Ivona, I am not threatened that you are going to take my job, I was the one who asked Samantha for a senior person to join the team and help me lead. I did not anticipate that I would have to train you as I would a junior or that you have no knowledge of NATA. You did not indicate this to us in the interview.
MRS MIKULIC: [in a raised voice] I am not putting up with this, you are a liar! You always over check my work and not train me enough! I’m leaving.
Ms Atherton deposed that after Mrs Mikulic walked out of the office she told Ms Fraser that she did not think that Mrs Mikulic was suited for the role and Ms Fraser agreed. She deposed that Ms Fraser indicated that she would appoint another staff member (i.e. Susanna Huang) to take on Ms Atherton’s leadership role while she was on leave.
On 3 June 2010 Ms Fraser advised Ms Atherton that a formal warning letter had been issued to Mrs Mikulic concerning her lack of performance. Ms Atherton deposed that she was not involved in the drafting or issuing of the letter.
First bullying complaint – June 2010
Ms Atherton deposed that in mid-June 2010 she was informed by the human resources manager, Ms Zieba, that Mrs Mikulic had made a formal complaint of bullying against her and that an internal investigation would be conducted.
Ms Atherton deposed that on 18 June 2010 she was informed by Ms Zieba that human resources had determined that Mrs Mikulic’s complaint had not been substantiated. She deposed that Ms Zieba asked her to read the company’s policy on workplace behaviour, which she did. She said that Ms Fraser also spoke to her about how she should approach Mrs Mikulic in light of the latter’s bullying claims but she was not otherwise (or at any time during her employment) required to undergo “special management training to correct her behaviour” (as has been asserted by Mrs Mikulic) or told to modify her manner or approach. Ms Atherton also said that she had been attending leadership courses every year since 2009 in order to improve her leadership skills generally and not as a specific response to any one employee.
Leave periods
On 26 June 2010 Ms Atherton commenced a period of maternity leave. She deposed that she returned to work on 1 February 2011 and that she and Mrs Mikulic worked well together and without incident in the following month.
From 28 February 2011 to 11 May 2012 Mrs Mikulic was absent from work due to a combination of personal leave and maternity leave. Upon her return to work on 14 May 2012 and in light of her extended absence, Mrs Mikulic was required to undergo refresher training in all laboratory methods. Ms Atherton deposed that despite her refresher training in 2012 (which was conducted by Ms Huang), issues relating to Mrs Mikulic’s performance continued. Ms Atherton deposed that she and Mrs Mikulic otherwise continued to work well together and without incident until August 2013 when Mrs Mikulic went on annual leave.
First workers’ compensation claim
Mrs Mikulic returned from annual leave on 26 September 2013. Ms Atherton deposed that later that morning Mrs Mikulic informed her that she was experiencing unbearable pain in her arm and could not continue working. Ms Atherton asked Mrs Mikulic to leave work early and see a doctor.
Ms Atherton deposed that Mrs Mikulic did not return to work after 26 September 2013. She later became aware that Mrs Mikulic had filed a workers’ compensation claim for a neck injury she had allegedly suffered in the laboratory on 2 April 2013 after the Easter break.
Events of April 2014
Mrs Mikulic returned to work on 10 February 2014, performing light duties at Ecolab’s Macquarie Park office. She was scheduled to return to the laboratory on restricted hours on 1 April 2014.
Ms Atherton deposed that during March 2014 Ms McFarlane kept her apprised of discussions taking place between her, Ms Roche (Ecolab’s Environment, Health and Safety Specialist) and Ms Chamberlain (Mrs Mikulic’s occupational therapist and Return to Work Coordinator) regarding Mrs Mikulic’s return to work plan. Relevantly, as a result of those discussions, Ms Atherton had a portable bench constructed for Mrs Mikulic which was completed by 26 March 2014.
Ms Atherton deposed that on 31 March 2014 she prepared Mrs Mikulic’s workspace to ensure that it was ready.
Mrs Mikulic returned to work on 1 April 2014 under Ms Atherton’s direct supervision. As part of her return to work plan, Mrs Mikulic’s tasks included logging in legionella samples and media preparation (which involved dispensing acid in tubes using an auto dispensing unit). Ms Atherton deposed that as Mrs Mikulic was logging in samples she observed her bending her neck upwards and, because she was aware from the return to work plan that Mrs Mikulic should not be bending her neck unnecessarily, said to her:
Ivona, you are bending your neck upwards. I think you chair is too low. Do you want to adjust the chair height to make you look level to the monitor?
She deposed that Mrs Mikulic responded “no, I am okay”.
Ms Atherton deposed that although Mrs Mikulic was slow in pace she considered her to be progressing well with the samples. She deposed that at one point she helped Mrs Mikulic complete a form as she could not bend her neck to write and also located a foot rest for Mrs Mikulic at her request. Later, during the logging in process, she asked Mrs Mikulic how she was feeling and Mrs Mikulic said:
I am in such pain, I am not ready to come back to work in the lab, my neck and arm are so sore. Annette [Chamberlain] doesn’t know the background to my case. She is supposed to be working for me, but she has been paid and wants to push me back to work so that she can close her case.
She deposed that she responded:
Ivona, I don’t know anything about Annette or your case. Let’s just focus on logging in.
Ms Atherton deposed that Ms Chamberlain arrived at the laboratory shortly afterwards and that she and Mrs Mikulic had the following conversation in her presence:
MS CHAMBERLAIN: Ivona, I can see you are bending your neck upwards, it looks like the chair is too high [sic]. It’s best if you adjust the height so that you are level to the monitor. That way your posture will be straighter.
MRS MIKULIC: I am okay.
MS CHAMBERLAIN: No, I think you need to adjust your chair height, you need to be level to the monitor.
Ms Atherton deposed that Mrs Mikulic adjusted her chair height according to Ms Chamberlain’s instructions.
Ms Atherton said that because Ms Chamberlain was present and because Mrs Mikulic had told Ms Chamberlain that she was alright, even though Mrs Mikulic had told her that she was “in such pain”, she had not stopped her working. However, once Ms Chamberlain left, Ms Atherton and others assumed the responsibility of monitoring Mrs Mikulic’s pain levels.
Ms Atherton deposed that after Ms Chamberlain left the laboratory Mr Naidu started labelling legionella plates nearby. She deposed that she and Mrs Mikulic then had the following conversation:
MRS MIKULIC: Avi [Mr Naidu] will have an injury in 5 years’ time as he is bending incorrectly. The neck is not made to bend too much. My previous Case Manager before Annette observed Avi in the lab and told me that.
MS ATHERTON: Don’t worry about Avi, a lot of safety measures have been implemented during your absence.
MRS MIKULIC: It doesn’t show now, it shows later in life.
MS ATHERTON: Let’s focus on finishing the logging of samples as the team is waiting for them.
Ms Atherton deposed that upon completion of the logging in process, she and Mrs Mikulic walked over to the media section of the laboratory so that Ms Atherton could train her in how to use the acid dispenser. She deposed that she saw Mrs Mikulic wince as if in pain and offered to make adjustments to the equipment so that Mrs Mikulic did not have to bend her neck but Mrs Mikulic told her that she was “okay”. Ms Atherton deposed that when she saw Mrs Mikulic wince again, she retrieved a chair for her and lowered the height of the platform where the tubes were being placed which Mrs Mikulic admitted was more comfortable. Ms Atherton deposed that she then went to see Ms McFarlane to update her on Mrs Mikulic’s progress and they had a conversation to the following effect:
MS ATHERTON: Hi Gina, as requested, I wanted to let you know how Ivona was going. She is doing well with logging in, a little slow, however is getting the hang of it. I did want to discuss something I heard. Ivona was talking negatively about Annette and discussing her case with me. She also made a comment about [Mr Naidu] having an injury to his neck in 5 years because he is labelling Legionella plates.
MS MCFARLANE: Thanks for letting me know. During our update meeting with Ivona later today, we will need to remind her of confidentiality and the lab environment. Once you have completed her media training, please come and see me.
Finally, I found Mr Mikulic’s evidence to be of very little assistance. His accounts of what his wife had said to him can be given no more weight than Mrs Mikulic’s evidence on those matters. I reject his evidence concerning what he alleged had been said at meetings in 2014 concerning the 2010 warning letter and the outcome of the 2010 complaint concerning Ms Atherton as improbable and contrary to the evidence of witnesses whom I accept. The remainder of his evidence was largely concerned with the conspiracy theory propounded by his wife which I consider fanciful. Ecolab’s witnesses, whose evidence I accept, rejected or did not corroborate the contention that PCS had been constrained by them. I reject Mr Mikulic’s evidence on that question.
Discussion
In proceedings under s.340 or s.351 of the FW Act, if an allegation of adverse action for a prohibited reason is made, it is presumed by virtue of s.361 of the FW Act that the action was taken for that reason, or with that intent, unless the employer proves to the contrary: Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at 501 [109] per Wilcox and Cooper JJ. An allegation that a respondent’s conduct was for a prohibited reason enables that allegation to stand as sufficient proof of the fact unless the respondent proves otherwise but it does not relieve an applicant from ensuring that each of the ingredients of the contravention is made out, namely, for present purposes, that Ecolab took adverse action against Mrs Mikulic for a prohibited reason: Davids Distribution at 501 [109]; Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (1999) 140 IR 131 at 167 [161]-[162]; Rojas v Esselte Australia Pty Ltd (No.2) (2008) 177 IR 306 at 321-322 [49].
If Mrs Mikulic proves that she had protected workplace rights and a disability, or either of them, and that adverse action was taken against her, Ecolab must displace a rebuttable presumption found in s.361 of the FW Act that it took the adverse action for the prohibited reasons which Mrs Mikulic alleges motivated it.
First, there is no doubt that Ecolab’s dismissal of Mrs Mikulic was adverse action for the purposes of the FW Act.
Secondly, based on the 30 October 2013 report of Dr Breit which was annexed to Mrs Mikulic’s affidavit of 26 February 2015, I accept that in 2013 Mrs Mikulic suffered a work-related aggravation of pre-existing cervical spondylosis and that that injury was brought about by her posture at work.
In that connection I am willing to accept, without deciding, that Ecolab’s statutory primary duty of care under the Work Health and Safety Act 2011 obliged it to provide a work environment which would not aggravate or cause a recurrence of Mrs Mikulic’s neck injury and that that amounted to a workplace right for the purposes of s.341(1)(a) of the FW Act which Mrs Mikulic enjoyed.
Thirdly, I am also willing to accept, again without deciding, that each of the complaints which Mrs Mikulic made concerning Ms Atherton was a “complaint” as that term is understood for the purposes of s.341(1)(c)(ii) of the FW Act. Although those complaints were ostensibly about bullying, which did not attract any rights under the FW Act until 2014, they also arguably concerned Mrs Mikulic’s work environment and whether Ecolab was meeting its obligations under the Work Health and Safety Act. Although the meaning of “complaint” is not finally settled, (see Shea v TRUenergy Services Pty Ltd (No.6) (2014) 242 IR 1 at 99 [625], 100 [631] and Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19 at [64]-[69], contra: Henry v Leighton Admin Services Pty Ltd (2015) 299 FLR 342 at 359 [63]ff) it does at least include complaints which concern matters that would “invite the intervention of bodies having the capacity to enforce compliance”: Harrison v In Control Pty Ltd (2013) 273 FLR 190 at 203 [72] or raise an issue with potential implications for the complainant’s employment: Milardovic v Vemco Services at [68], [69]. A breach of a health and safety duty under the Work Health and Safety Act would be such a complaint.
A workers’ compensation claim is also a complaint for the purposes of s.341(1)(c)(i): Dowling v Fairfax Media Publications Pty Ltd (2008) 172 FCR 96 at 121-122 [81]-[83].
Fourthly, I accept that Mrs Mikulic’s neck injury affected her capacity to work and should be considered a disability. However, the existence of that disability did not have the effect of making any obligations which Ecolab might have had under the Disability Discrimination Act 1992 (“DDA”) enforceable under the FW Act: Hodkinson v Commonwealth (2011) 248 FLR 409 at 442-443 [138]-[143], approved in RailPro Services Pty Ltd v Flavel (2015) 242 FCR 424 at 456 [114]. Consequently, Mrs Mikulic’s allegation that Ecolab breached s.351 of the FWA because it did not make “reasonable accommodation” for that disability, which I take to be a reference to the right to reasonable adjustments under the DDA, is misconceived. Such an allegation does not, in its terms, engage any rights associated with s.351 and so that allegation will be dismissed. Rather, the question posed by Mrs Mikulic’s reliance on s.351 is whether the reason or one of the reasons Ecolab dismissed her was because she had a disability.
Mrs Mikulic’s remaining allegations are that she was dismissed:
a)because she had exercised her workplace right to make a complaint or enquiry in relation to Ms Atherton’s bullying;
b)to prevent her from exercising her workplace right to make a complaint or enquiry in relation to Ms Atherton’s bullying;
c)because of her neck injury; and
d)to prevent the implementation of reasonably practicable accommodations to her workspace in order to prevent further injury to her neck pursuant to Ecolab’s obligations under the Work Health and Safety Act.
The question is whether any of those alleged considerations motivated Ecolab to dismiss Mrs Mikulic and, specifically, whether Ecolab has discharged its onus under s.361 of the FW Act of disproving that they did.
As Mrs Mikulic’s submissions implied, although Mr Rich might have been the person who signed the dismissal letter and orally advised her of her dismissal, if it was not his decision, or not entirely his decision, then his views on the reasons for the dismissal would, respectively, not be relevant or not be the only relevant views for the purposes of s.361 of the FW Act: Cicciarelli v Qantas Airways Ltd [2012] FCA 56 at [258]-[259]; Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740 at [122]-[127].
The operation of s.361 of the FW Act has been explained authoritatively in Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500 where the High Court considered the proper approach to determining whether adverse action has been taken for a prohibited reason. In Klein v Metropolitan Fire & Emergency Services Board (2012) 208 FCR 178 at 205 [100] Gordon J summarised in the following terms that part of the ratio of Barclay’s case relevant to this proceeding:
1.the test of whether action was because of a proscribed reason was neither a subjective nor an objective test … ;
2.direct evidence of the decision-maker as to state of mind, intent or purpose, will bear upon the question of why adverse action was taken … ;
3.direct evidence from the decision-maker which is accepted as reliable is capable of discharging the burden on the employer … ;
4.it is wrong to inquire into the “unconscious” state of mind of the decision-maker … ; and
5.the question is whether the asserted proscribed reason is a “substantial and operative” reason for taking the adverse action … .
Ecolab submitted that Mrs Mikulic’s complaints were not made in good faith, in that they were tactical devices employed to respond to supervision and management of her performance, and for that reason were not “complaints” as that term has been explained in authorities such as Shea v TRUenergy (No.6). Exhibit A, which was Mrs Mikulic’s email of 1 July 2014 to a friend, would support that interpretation. In it she said:
Having a lot of issues with HR department at the moment. Still holding microbiologist position. They are trying to get rid of me but I am giving them a hard time. YOU KNOW HOW DIFFICULT I CAN BE ESPECIALLY WHEN I THINK THAT I AM RIGHT. (Emphasis included).
However, as will become apparent, to reach a judgment in this case, it is not necessary to determine whether Mrs Mikulic believed in her complaints when she made them or whether they were only devices. In that connection, the existence of rights, complaints and disability in an industrial context does not lead inexorably to a conclusion that those matters motivated particular adverse action: Construction, Forestry,Mining & Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 at 252-253 [22] per French CJ and Kiefel J.
In this case I find that they did not.
As a general observation, I find that Ecolab attempted to accommodate Mrs Mikulic’s complaints regarding Ms Atherton, by separating the two women after the former’s return to work on 3 June 2014, and to accommodate Mrs Mikulic’s disability, by making adjustments to her work environment, even if they were not the ones Mr Copeman advised. The suggestion that Ecolab adjust the heights of all the work benches in its laboratory from an Australian Standard height to something else to suit Mrs Mikulic was impractical and unrealistic. The fact that Mrs Mikulic thought that Ecolab should have undertaken that work points to unreasonableness on her part. At no point did Mrs Mikulic adduce any evidence to suggest that the special arrangements Ecolab made just for her were ineffective and I am not prepared to find that they were. However, more relevantly, Mrs Mikulic failed to demonstrate that Ecolab believed that it had to make the major adjustments for which she contended. The fact that her return to work on 1 April 2014 was accompanied by pain and discomfort did not go so far as to demonstrate that further adjustments were required or that Ecolab feared or believed that they were. Further, the fact that two rehabilitation consultants recommended a particular course of action does not prove that that was the only solution to the problem being considered.
I have accepted Mr Rich’s evidence that Ecolab made a concerted effort to comply with the return to work obligations it owed Mrs Mikulic. This conduct is inconsistent with what Mrs Mikulic contends were the motivations for her dismissal.
More specifically, I accept Mr Rich’s evidence that it was he who made the decision to dismiss Mrs Mikulic and reject as fanciful conjecture the idea of a “Decision Making Circle”. Mrs Mikulic’s assertion that Mr Rich fulfilled a technical role only does not bear scrutiny in light of his involvement in her case and his own evidence on the subject.
Further, Mr Rich’s conduct in retaining external investigators because Mrs Mikulic was suspicious of Ecolab’s internal processes indicates his open-mindedness regarding her concerns. I appreciate that Mrs Mikulic did not trust that second inquiry either but I conclude that that reflects her own prejudices rather than the facts. Although Mrs Mikulic sought to impugn the credibility of that report, and of Ms Habib’s earlier report, she could offer no more than suspicion that they were not genuine and conscientious attempts to investigate and report on the matters which had been the subject of complaint. When Ecolab’s witnesses rejected the various contrary propositions put to them by Mrs Mikulic, she failed to adduce any persuasive evidence which might suggest that those denials ought to be disbelieved. I do not accept the contention that the PCS inquiry was not a real and genuine one.
I am also not persuaded that Mr Rich was aware that Mrs Mikulic intended to approach the Fair Work Commission in connection with what she said was Ms Atherton’s bullying. There seems to be no basis for that assertion.
I find Mr Rich’s explanation for the decision he took to be logical and persuasive. In substance, it was that although Mrs Mikulic was free to make complaints, those complaints evidenced two fundamental problems - an inability to work harmoniously with her immediate superior, Ms Atherton, and thus to function effectively as a member of Ecolab’s laboratory team, and a propensity to make allegations against Ms Atherton which were not, upon inquiry, made out. In relation to the latter issue, it was not unreasonable in the circumstances for Mr Rich to conclude, as I accept he did, that Mrs Mikulic was not being truthful and accurate in her complaints. That being so, I accept that Mrs Mikulic had lost Mr Rich’s, and therefore Ecolab’s, trust and confidence.
I conclude that those were the reasons why Ecolab dismissed Mrs Mikulic and so find that Ecolab has proved that it did not dismiss Mrs Mikulic for any of the prohibited reasons she alleged.
RELIEF SOUGHT – REINSTATEMENT
Finally, it is to be recalled that the only relief Mrs Mikulic sought was reinstatement, which would be reinstatement to the position she held at the time she was dismissed. The Court will not grant such relief if the working relationship between the parties has quite broken down: Shea v TRUenergy at 139-141 [850]-[861]. I find that it has in this case and that Mrs Mikulic’s assertions to the contrary, in particular her claim to be able to work with Ms Atherton, are quite contrary to the evidence, even her own if only she could see it. Mrs Mikulic’s statement at the end of the third day of the trial, that “Your Honour, Ms Atherton needs to take responsibility” clearly indicates to me that Mrs Mikulic cannot work with Ms Atherton, who is now the person in charge of Ecolab’s microbiology department.
Even if I had been satisfied that Mrs Mikulic had been dismissed for a reason prohibited by the FW Act, I would not have ordered she be reinstated.
CONCLUSION
The allegation that Mrs Mikulic was dismissed by Ecolab for a reason prohibited by the FW Act has not been made out.
Consequently, the application will be dismissed.
I certify that the preceding two hundred and forty-eight (248) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 1 February 2017
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