Morley v Monza Imports Australia Pty Ltd

[2018] FCCA 622

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORLEY v MONZA IMPORTS AUSTRALIA PTY LTD [2018] FCCA 622

Catchwords:
INDUSTRIAL LAW – Allegation of adverse action – reverse onus – no adverse action – finding that the prohibited reason alleged was not the substantial or operative reason for acting – application dismissed.

Legislation:

Fair Work Act 2009, s.341

Cases cited:

Shea v TRUenergy Services Pty Ltd (No.6) [2014] FCA 271

Shea v Energy Australia Services Pty Ltd [2014] FCAFC 167
Gannon v Gannon [1971] HCA 76; (1971) 125 CLR 629

Applicant: LAURA MORLEY

Respondent: MONZA IMPORTS AUSTRALIA PTY LTD (ACN 117 355 423)

File Number: MLG 710 of 2016

Judgment of: Judge Riethmuller

Hearing date: 20, 21, 22 & 23 November 2017

Date of Last Submission: 23 November 2017

Delivered at: Melbourne

Delivered on: 14 March 2018

REPRESENTATION

Counsel for the Applicant: Ms S Fitzgerald

Solicitors for the Applicant: McDonald Murholme Solicitors

Counsel for the Respondent: Ms S Bingham

Solicitors for the Respondent: Davies Lawyers Pty Ltd

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 710 of 2016

LAURA MORLEY

Applicant

And

MONZA IMPORTS AUSTRALIA PTY LTD (ACN 117 355 423)

Respondent

REASONS FOR JUDGMENT

1. The applicant claims that the respondent took adverse action against her as an employee that was prohibited by the Fair Work Act 2009 (“the Act”).  The applicant was employed by the respondent as an inventory controller on 9 March 2010.  In May 2012, she was appointed as warehouse supervisor.  In the same year, Mr Wilkinson was also appointed to the position of national warehouse manager by the respondent.  The applicant reported to Mr Wilkinson.  Mr Munro was the director of the respondent.

2. As a result of the applicant having responsibilities for occupational health and safety within the warehouse, there were complaints or reports to management concerning a range of incidents during the course of her employment.  Nine separate employment complaints and two periods of personal leave are pleaded as the bases on which it is alleged that the respondent took prohibited adverse action.

3. The first complaint was abandoned as a basis for adverse action, as a result of it becoming apparent that the director who terminated the applicant’s employment was unaware of this first workplace complaint.  However, the circumstances of the first workplace complaint and the incident that led to it remained relevant in determining the outcome in this case.

4. The second and third complaint related to one or more employees driving or operating machinery inappropriately in the warehouse in 2013.  The complaints were appropriate and dealt with by the employer (who also imposed some sanctions on those involved).

5. The fourth complaint concerned an altercation between the applicant and Mr F, who was a warehouse storeman.  The applicant complained that, in February 2015, an altercation had occurred between her and Mr F, which resulted in Mr F leaving the workplace.  Mr F also made a complaint against the applicant, which is set out in Exhibit ‘R2’. 

6. The result of this incident was that action was taken against Mr F and the applicant was counselled with respect to her management style, which she said was described as “might come off a little bit strong – that my passion for my job might come off a big strong”.  Mr Wilkinson did not have a clear recollection of what was said to the applicant, although recalled that it was a heated discussion where she was asked to work upon techniques to try and improve how she handled such situations.  Mr Munro’s evidence was that the applicant was counselled because she was screaming at Mr F and that that was not appropriate conduct for supervisors.  Mr Munro said she was told that her passion for the job sometimes can be taken as arrogant or rude, and the ways in which managers may have handled things 10 years ago is not necessarily appropriate anymore.  Mr Munro thought that the applicant had taken on board these issues and that the matter had been dealt with and ended.

7. The fifth and sixth complaints concerned the applicant raising the possibility of a gas leak with Mr Wilkinson and expressing concern that Mr Wilkinson had not responded to her emails, during a time in which it transpired he was on leave.  On the evidence, nothing turns on either of these matters, which appear to be relatively mundane workplace interactions.

8. As became apparent during the course of the trial, nothing turned on a number of these workplace complaints, which were appropriately made and actioned by the employer.  In this regard, it was accepted that employment complaints 2 to 6 were not considered a basis for the employer having taken prohibited adverse action against the employee.

9. The seventh employment complaint was made by email on 19 January 2016, where the applicant alleged that at the 2015 work Christmas party, Mr P had “put his hands on [Ms G].  Rubbing her side/bottom area”.  The email went on to recount other allegations from the past and to note that “[Ms G] had said to me when I asked her regarding the incident that it was nothing and she didn’t want to get [Mr P] into trouble.  But if it was nothing, why did she tell everyone?  And that other females were avoiding him that night.”  The applicant went on to say that Mr P intimidates everyone, and that if the issue is not dealt with appropriately she would have no option other than to call in WorkSafe. 

10. Twenty minutes later, Mr Wilkinson responded, advising that he would be contacting the managing director with respect to the complaint.

11. The complaint was investigated by Mr Wilkinson, who advised the applicant at 4.58 pm on 20 January 2016 that her allegations had been taken seriously and an investigation had been undertaken.  The applicant was advised that Ms G had strongly denied her allegations, and accordingly the allegations had “not been substantiated, and the matter is now closed”.

12. The applicant was not satisfied with this, and responded two hours later saying that she was shocked “to say the least” and assured Mr Wilkinson that what she had advised him was what she had been told by Ms G.  Around 45 minutes later, she emailed Mr Wilkinson again to advise that she had contacted Ms G, and confirmed that Ms G had advised her of the allegations and that Ms G would speak to Mr Wilkinson the following day to corroborate the allegations made by the applicant.

13. Importantly, this complaint must be seen in the context of an earlier incident alleged by the applicant.  In 2012, at the work Christmas party, the applicant says that she was inappropriately touched by Mr P (“the 2012 allegations”).

14. The following morning, the applicant commenced personal leave and advised Mr Wilkinson by telephone that she was on leave because of workplace stress, but was intending to return the following Wednesday.  On 21 January, Mr Munro, having been informed that the applicant did not accept the outcome of the investigation and having said that Ms G would verify the allegations, decided to instruct Ms Innes, the Human Resource Manager from another group company, to investigate the issues.  Mr Munro also asked Mr Wilkinson to arrange for the applicant to meet with him at 9am the next day, 22 January, to discuss any matters.

15. Mr Munro sent the diary appointments electronically to the applicant and Mr Wilkinson for a 9am meeting, which the applicant accepted.  Mr Wilkinson also telephoned the applicant to advise her of the meeting arrangements, which she accepted.

16. At 3pm on 21 January 2016, Ms Innes interviewed Ms G and three other women from the workplace.  Her sole role was to attend and interview the four women and report back to Mr Munro.  Ms Innes made handwritten notes which she typed, and the typed notes were provided to Mr Munro and placed in evidence.

17. When Ms Innes interviewed the women, she said that she advised them that she was checking if they were “okay, as they came to work upset this morning, and I have a duty of care” and asked them if they had any “unresolved issued that hadn’t been addressed”.  Ms Innes also advised them that in the future, they could contact her or Mr Wilkinson.  None of the women advised that they had any past issues, and all were happy to continue working at the company.

18. Importantly, Ms G said that she was approached by the applicant on 19 January 2016 at work, and the applicant had said that she had “heard [Mr P] tapped you on the arse”.  Ms G told Ms Innes that the applicant “was making a big deal and interrogating her with questions, and told her ‘not to take this’ and advised her that ‘this was wrong’”.  Ms G told Ms Innes that she was a friend of Mr P, they got on well together, that she did not need “this drama”, and that she simply wanted to attend at work, do her work, and go home.

19. Ms N, who was next interviewed, was aware that the applicant had claimed to have been touched inappropriately some years before at a work Christmas party, but could not recall having been told about it at the time.  Ms N said the applicant had brought this up a few times in the last year because she had been unhappy, but was not sure whether her present unhappiness was personal or work related. 

20. Ms N also wanted no part of the matter, and alleged that the applicant had “tried to vilify the rumours with her”, and that she had never had an issue with Mr P, although she had heard rumours regarding him but was unsure whether they were true or false.  Ms N did not want to be involved, and said that the applicant was “a good person, but is stuck in a hard place at the moment”.

21. Ms S explained that she had blocked the applicant on Facebook some years ago, as she found the applicant to be a “drama queen” and advised that she “does not want to be dragged into [the applicant’s] ‘crusade’ or whatever she’s got going on”.  Ms S was forthright in saying that she did not get on with the applicant and found the applicant to be “very rude and very blunt and makes people uncomfortable”.  She said that she was unable to speak with the applicant, and if she had difficulties she would see Mr Wilkinson rather than speaking to the applicant.

22. The fourth woman, Ms V, simply said she had heard about what she described as “she said, he said” but had not been approached about it and did not wish to add anything to “fuel [the applicant]”.  She also advised that if she had any issues, she would see Mr Wilkinson, as she found the applicant unapproachable and, in her view, the applicant needed some help “in that department”.  She expressed the view that the applicant was upsetting everyone.

23. The eighth employment complaint was the complaint raised by the applicant with Mr Munro during her dismissal meeting concerning her 2012 allegations against Mr P. 

24. The ninth employment complaint was that she complained she was unsupported in her role as the Occupational Health and Safety officer by her immediate manager, Mr Wilkinson.  This complaint was said to be made in the meeting with Mr Munro. 

25. The first period of personal leave from 13 to 15 January 2016 that was relied upon by the applicant appeared to have little relevance, given that Mr Munro was unaware that she had taken this personal leave. 

26. The second period of personal leave commenced on 21 January 2016, the day before the applicant’s termination meeting.  This leave was supported by a medical certificate until the following Wednesday and based upon workplace stress.

27. Prior to the meeting on 22 January 2016, the director, Mr Munro, drafted a termination letter containing the following:

    Summary Dismissal

    I am writing to confirm that as a direct consequence of your recent actions in engaging with various staff on their personal affairs and where they have responded to you that they are not matters that they consider need further investigation or action upon by the company have been determined as harassment and intimidation by you toward them.

    You have been advised that your most recent complaints have been properly investigated by the company and found to be unsubstantiated.  Notwithstanding the advice you have continued to try and assert undue pressure and influence upon staff.

    The business has determined that you have engaged in a form of serious misconduct which is inconsistent with the continuation of your employment.

    You are hereby notified that as of today you are dismissed from your position without notice, however in recognition of your period of service we will pay to you 5 weeks pay in lieu of notice.  All applicable statutory entitlements will be released to you as part of your final pay.

28. Mr Munro explained that this was done in preparation of the meeting, should it not go well and he decided that he would terminate the applicant’s employment.

29. On 22 January 2016, the meeting was held with Mr Munro, Mr Wilkinson, the applicant, and the applicant’s partner who attended as her support person.  Whilst each of the participants in the meeting gives a slightly different version of events, it is quite clear that the meeting did not go well, that the applicant became quite emotive, and ultimately she was terminated.  The respondent dismissed the applicant for misconduct and paid her five weeks pay in lieu of notice of termination.  Prior to being handed her termination letter, the applicant had provided Mr Munro with a certificate of capacity, indicating that she would require a period of leave ("the second period of leave").

30. The issues that arise in this case relate to whether or not the adverse action taken against the applicant (terminating her employment) was for a prohibited reason.  Under the legislation, the onus of proof is on the respondent, on the balance of probabilities, to establish the substantial or operative reasons for the termination of the applicant’s employment, and most importantly that none of those substantive or operative reasons were prohibited reasons.

31. The applicant identifies (in substance) three potential prohibited reasons for her termination, namely: that she had made workplace complaints; that she was suffering mental illness at the time; and that she intended to take leave.  If any of these matters were substantive or operative reasons for the termination, the respondent is in breach of the legislative provisions.

32. It is important to note that as a result of the reverse onus provisions, there is no onus upon the applicant to establish the substantive or operative reasons for the decision to terminate her employment. If the respondent is unable to establish on the balance of probabilities that the substantive or operative reasons were reasons that were not prohibited under the Act, then the applicant must succeed in the proceedings.

Witnesses

1. The applicant gave evidence firmly.  She was quite forthright, if not dogmatic, in her evidence.  Unfortunately, she also responded on many occasions with answers that were important to her but not a proper response to the question.

2. During the course of her evidence, when she recounted the 2012 incident, she became particularly emotional.  A short time later, when I asked for details of the specific actions during the 2012 incident, she regained a remarkable level of composure.  I formed the impression that, whilst the applicant was an honest witness, she presented a dogmatic approach, exhibited considerable black and white thinking, and did not easily accept other points of view.  For example, she was firm in her view that the men racing the wave machines in the warehouse (which can only travel at a very slow speed at their maximum) ought to have all been sacked for that incident.  On any view, such an outcome would have been extreme.

3. I am not satisfied that she clearly remembers all of the meeting with Mr Munro, and I am persuaded that she was quite upset and agitated that the complaint against Mr P with respect to the 2015 allegations was not substantiated.  Whilst I found her a generally honest witness I did not find her reliable on issues of detail.

4. The applicant called her partner, Mr Salahor, to give evidence.  He appeared to me to be a truthful witness who is likely a calming influence upon the applicant.  He said that he made notes at the meeting which he later transcribed.  He did not suggest that the notes were a record of everything that was said at the meeting. 

5. He too gave evidence that the meeting became emotive and ended badly.  He said that at one point, he intervened as the arguments were becoming heated, although it is clear he did not in any way inappropriately interfere with the general flow of the meeting.  I accept his notes were accurate and that he appropriately fulfilled his role as a support person for the applicant in the meeting. 

6. The respondent called three witnesses, Mr Munro, Mr Wilkinson, Ms Innes, and the respondent’s solicitor, Ms Davies.

7. Mr Munro presented as a calm and relatively softly-spoken person at the commencement of his evidence.  Like most witnesses, he displayed a small amount of nervousness, but not such as to lead one to doubt his evidence.  He was considered in the evidence that he gave, though often giving answers that were overly inclusive.

8. During cross-examination, he became agitated by questioning, which resulted in him responding in a condescending way to counsel.  However, I also bear in mind that the nature of the questioning at that point was such as to have been frustrating for him as a witness.  I formed the view that he is a person who would be relatively quick to become frustrated, resulting in very forthright (if not overly forthright) exchanges.  However, I am not persuaded that this leads to the conclusion that his evidence was not genuine or truthful.

9. Mr Wilkinson presented as a pleasant witness, who was not eager to have been involved in this dispute.  He did not claim to have a clear recollection of many of the events.  This is not surprising, given his role as the warehouse supervisor which would involve him receiving and dealing with many complaints and incidents each day in his workplace.  He was not responsible for managing the dispute with the applicant once she had disputed the outcome of his investigation.

10. It was submitted that he was overly vague to avoid contradicting Mr Munro.  Whilst this is possible, I prefer the view that he had not wanted to become embroiled in the difficult situation between Mr Munro and the applicant and did not take any active role in it.  It is apparent that in the past, he had been able to manage the applicant as an employee in a way that generally maintained mutual respect between them.  He also appears to be well-respected by the other employees that were interviewed by Ms Innes. 

11. I accept his evidence that he does not recall allegations that he had not supported the applicant.  In the context of the evidence generally at the hearing before me, one would have expected him to feel that such an allegation was quite unreasonable.  I am persuaded that, had such an allegation been made at the meeting with Mr Munro, Mr Wilkinson would have recalled such an allegation, as it would have been directed at him. 

12. Ms Innes, the Human Resources Manager from a related company, gave evidence of her inquiries of the four women referred to with respect to the 2015 work Christmas party incident.  She was clearly a nervous witness and uncomfortable about having to give evidence.  On the enquiries she made, a strong sense of the applicant having harassed the other employees came through, as is apparent on the face of her notes and oral evidence. 

13. I have no hesitation in accepting that her typewritten notes were the ones provided to Mr Munro, nor do I have any hesitation in accepting that they were a reasonable account of what she was told when she undertook her interviews.  I accept that she took care to avoid leading the people she interviewed, and ensured that they were provided with an appropriate environment within which to make disclosures or complaints, should there be issues that needed to be dealt with.  I accept her evidence. 

1. Ms Innes’ evidence goes to the dispute as to whether or not the seventh complaint of the applicant amounted to a compliant that would be protected by the applicable provisions of the legislation.  I accept the definition of complaint set out in Shea v TRUenergy Services Pty Ltd (No.6) [2014] FCA 271 at [626] where Dodds-Streeton J said that no complaint has been made if the:

   …relevant communication, whatever its precise form, would be reasonably understood in context as an expression of grievance or a finding of fault which seeks, whether expressly or implicitly, that the employer or other relevant party at least take notice of and consider the complaint.

2. Section 341 of the Act sets out the definition of ‘workplace right’, which includes the right to make complaint or inquiry in the following terms:

   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:

   (a) a conference conducted or hearing held by FWA;

   (b) court proceedings under a workplace law or workplace instrument;

   (c) protected industrial action;

   (d) a protected action ballot;

   (e) making, varying or terminating an enterprise agreement;

   (f) appointing, or terminating the appointment of, a bargaining representative;

   (g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;

   (h) agreeing to cash out paid annual leave or paid personal/carer's leave;

   (i) making a request under Division 4 of Part 2‑2 (which deals with requests for flexible working arrangements);

   (j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;

   (k) any other process or proceedings under a workplace law or workplace instrument.

   Prospective employees taken to have workplace rights

   (3) A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.

   Note: Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.

   Exceptions relating to prospective employees

   (4) Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings.

   (5) Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2‑8 (which deals with transfer of business).

3. Counsel for the respondent argued that the applicant, when raising the issues relating to the 2015 work Christmas party, was not making a complaint with respect to her employer as defined in s.341(2)(c)(ii) of the Act, as she was neither the alleged victim, or present at the time of the incident. However, given her role as Occupational Health and Safety Officer of the company, it appears to me that it was within her duties to make complaints with respect to such conduct. In these circumstances, raising the issue with respect to Ms G did, in my view, fall within the definition of a complaint as defined in s.341 of the Act.

4. An argument was also addressed as to whether or not a complaint needs to be genuinely held or otherwise made in good faith, as discussed in Shea at [29] where her Honour said:

   29. I concluded, for reasons set out below, that in the context of s.341(1)(c)(ii) of the Act:

   (a) a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;

   (b) the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;

   (c) the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose;

   (d) the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii);

   (e) a complaint may be made not only to an external authority or party with the power to enforce or require compliance or redress, but may be made to persons including an employer, or to an investigator appointed by the employer;

   (f) a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise; and

   (g) a complaint is limited to a grievance, finding of fault or accusation that satisfies the criteria in s 341(1)(c)(ii)and does not extend to other grievances merely because they are communicated contemporaneously or in association with the complaint. Nor does a complaint comprehend contemporaneous or associated conduct which is beyond what is reasonable for the communication of the grievance or accusation.

5. On appeal in Shea v EnergyAustralia Services Pty Ltd [2014] FCAFC 167, the Full Court said:

   12. Considerable care needs to be exercised before implying into s.341 any constraint that would inhibit an employee’s ability to freely exercise the important statutory right to make a “complaint”. To too readily imply into the language of ss.340 and 341 the necessity for a complaint to be a “genuine” complaint, necessarily would be productive of argument about whether a “complaint” is bona fide and may serve to discourage those who may well have mixed motives for making a complaint. The expression or drafting of a “complaint” should not require the sophistication or knowledge of an experienced industrial lawyer or legal advice regarding whether it should in fact be made. Care should also be taken before construing the term “right” in s.341 in a manner which may have more far-reaching implications for the meaning of that term when it is employed elsewhere in the Fair Work Act. When considering the construction of these provisions, there is an obvious need to balance the legitimate interests of both employees and employers in a manner consistent with the objects of the Act as a whole and the objects of Part 3-1.

6. The difficulty of this issue is apparent from the reality that not all complaints would be substantiated.  Clearly, the mere fact that a complaint is not substantiated could not make it a complaint that was not genuinely held or otherwise not made in good faith.  To place any significant restriction upon the types of complaints that are not protected by the statutory provisions would have the potential to significantly undermine the protections provided by those sections.

7. However, it is easy to imagine some complaints being so frivolous or vexatious, or simply made for ulterior motives that the conduct of the employee could not be intended to be protected by the provisions of the statute.  For example, if a series of groundless complaints were made against another employee as part of a course of conduct designed to bully and harass the other employee, it cannot be thought that the provision was intended to protect the perpetrator of such conduct simply because part of the bullying or harassing conduct manifested itself by way of making complaints. 

8. The insidious nature of sexual harassment in the workplace is such that, often, victims feel unable to complain or unsupported, even if employers have good quality systems in place, making it important that such matters be raised by employees when they become aware of them, so that they can be appropriately investigated.  Whatever might be the outer limit of the definition of a complaint protected by the section, I am satisfied that the complaint by the applicant with respect to the alleged incident at the 2015 work Christmas party was within the definition of a complaint protected under the provisions.

9. In this case, the initial investigation by Mr Wilkinson was appropriate and timely.

10. The conduct by the applicant in contacting at least one of the women after the investigation and challenging the outcome of the investigation led to the more detailed investigation by Ms Innes.  This more detailed investigation confirmed the findings of Mr Wilkinson and brought to light claims that the applicant was harassing the women.  It is obvious that the evidence gathered by Ms Innes was the foundation for the letter drawn by Mr Munro, the terms of which are set out above.  The history of the applicant’s employment indicates that this was not an isolated incident, for example, the dispute that she had with Mr F and the bullying complaints made against her, and the fact that she had previously been counselled about her behaviour. 

11. I am persuaded that, prior to the meeting, Mr Munro drew the termination letter for its potential use if the meeting did not go well, and that the letter did set out all of the substantive and operative reasons for the applicant’s potential termination. 

12. He was cross-examined about whether a substantive reason was that she had continued to press the complaint, but said clearly:

    COUNSEL: And what she had done wrong was continue to press the complaint she had made, didn’t she?

    MR MUNRO: No.  It was the fact that she didn’t accept that we had done an appropriate process, two investigations with the same outcomes; that she was pressuring staff to make further complaints in – in that respect.  So it wasn’t the fact that she was making complaints.  We – we – it had nothing to do with the complaint.  It had to do with the manner in which she was unwilling to accept the process and resolution of those complaints and, more importantly, her pressure on other employees to continue, not just with that complaint, but to bring up other complaints.

    COUNSEL: And ---?

    MR MUNRO: And that went to the heart of my decision, not the complaint itself. 

13. Mr Munro was also pressed about the fact that he would have been aware that Mr P was to be made redundant later that day and that the applicant was pressing for a workplace without Mr P present as being a solution.  Quite appropriately, Mr Munro pointed out that he could not discuss what was to happen with Mr P with the applicant as it would breach his obligations of confidentiality with respect to another employee, nor could he appropriately agree to her proposition as it would create a situation where one employee who had taken an adverse view of another employee was effectively demanding a dismissal. 

14. In any event, as his evidence made clear, Mr Munro’s focus remained upon his central concern that the applicant did not accept the outcome of an investigation by the company.  This was the subject of cross-examination where the following exchange took place:

    COUNSEL: Do you remember in the meeting you said, “What do you want?” And she says, “What do you mean?  Do you remember her saying, “What do you mean”?

    MR MUNRO: No.  She told me she wanted – she wanted her job without [Mr P].

    COUNSEL: Yes. And then her evidence is you don’t respond to that.  You just say, again, “What do you want”?

    MR MUNRO:  No.  I said I responded with, “That – that I can’t unilaterally sack employees at the request of other employees.  That there needs to be a process that needs to – to be gone through, as we are going through a process here.”

    COUNSEL: Now, you’ve given evidence – I think you gave evidence that you were hoping to resolve the matter amicably; is that right?

    MR MUNRO: That’s correct.

    COUNSEL: Now, you also accept that Ms Morley told you she said she wanted her job without [Mr P]; you accept that that’s what she wanted?

    MR MUNRO: Yes.

    COUNSEL: Now, if you genuinely wanted to resolve that meeting amicably, she has given you something – she will accept something that’s going to cost you nothing to give her.  I’m putting to you that you didn’t want to resolve it amicably, because you could have done that quite easily?

    MR MUNRO: How?

    COUNSEL: Well, all she wants is her job without [Mr P].  Now, you know that very soon after this point she’s going to have her job without [Mr P]?

    MR MUNRO:  I couldn’t breach confidentialities as to staff redundancies.  It would have been inappropriate.

    COUNSEL: I accept that, but you have this knowledge.  You know that, in fact, very soon it’s going to be quite easy for her to have exactly what she wants?

    MR MUNRO: But that for what she wants she needed to accept the – the [Mr P] issue is a separate issue.  She needed to accept the fact that she wasn’t accepting of the outcomes of investigations that were undertaken by the company that she was putting undue pressure on staff in that respect, so they’re totally separate. You know, certainly had Ms Morley said to me at that meeting, “Yes, I accept that the company went through the appropriate processes,  Yes, I accept that I may have pushed it too hard.  Yes, I have done something incorrect in – in these circumstances,” my decision would have been totally different, but that was the core of what we were looking for or that I was looking for.  I was looking for her acceptance of what she had done wrong.  It had nothing to do with [Mr P].

15. It is clear that at the meeting, the applicant also raised the incident with respect to Mr P alleged to have occurred at the 2012 work Christmas party.  On the evidence, Mr Munro was aware from the applicant’s earlier email that something was alleged, though the details were not clear from the email, in that the applicant had simply said:

    I felt partly responsible due to not pursuing the sexual assault done to me.

16. At the meeting, the applicant said that she had raised the sexual assault allegation with the respondent’s then manager, Ms Kubiak (who has since retired and passed away, so was not available as a witness).  However, the company has no record of any complaint being made to Ms Kubiak.  The lack of a record led Mr Munro to doubt that a complaint had been lodged with Ms Kubiak as he had considerable respect for her in her role in the company.  When giving evidence about the discussion she had with Ms Kubiak, the applicant said that she had not put the complaint in writing as she felt unable to do so, and when she had attended upon Ms Kubiak in an office to discuss it with her, she could hear a person outside the office and did not believe that the office was sufficiently private and, therefore, did not discuss the complaint with Ms Kubiak.  Why she would not have raised this with Ms Kubiak is unclear.

17. Considering the applicant’s evidence, coupled with her statement in the email, I am led to the conclusion that the steps she had taken with Ms Kubiak in the past were not sufficient to result in a complaint within the meaning of the Act, nor a complaint that called for investigation by the employer. It is unsurprising that Mr Munro formed a similar view.

18. At the meeting with the applicant, during an exchange that had become heated, the applicant made allegations with respect to Mr P at the 2012 work Christmas party.  The evidence provided was less than compelling.  It was alleged that Mr P had touched the applicant on the vagina at a time when a photograph was being taken of the applicant, Mr P and another person.  The photograph was produced, but shows the people in the photograph only from waist height and above.  The photograph was taken by the applicant’s partner.  The applicant is in the centre of the photo and appears as though she is leaning back slightly against Mr P.  The applicant looks very happy in the photograph with a large smile.  She says that Mr P reached through between her legs to “grab her on the vagina”.  It is not easy to see how he was able to reach through between her legs to grab her on the vagina from the position in which he was standing, unlike an allegation of touching or fondling her backside or the rear of the tops of her legs.  After the alleged incident, the applicant and her partner, the three of them had a drink together at a table before the applicant and her partner left.  It is not suggested that anything was said or done to make Mr Munro aware of the allegations at that time.

19. All who were present at the meeting said that the exchanges between the applicant and Mr Munro became heated after discussing this incident.  It is not difficult to see that this would have ensued having regard to the way in which each gave their evidence: the applicant was often unfocused in her answers but forthright in expressing matters that were important to her, and Mr Munro often lengthy in his answers, again focused on matters important to him.

20. In this case, a difficult issue arises as a result of the conduct of the solicitor for the respondent who, when drawing the response of the employer in the Fair Work Commission, concluded with the following statement (at p.5):

    Mr Darren Munro was the decision maker, and his decision to terminate the Applicant did not relate to any events in 2012, 2013, 2014.  Rather Mr Munro chose to dismiss the Applicant given her serious disruptive manner towards other staff members, her harassment and intimidation of those staff members and the making of complaints which were clearly unsubstantiated.

21. This appears to extend a passage at para.39 on p.4 of the statement where the following is said:

    39.  The Respondent made the decision to terminate the Applicant’s employment given the fact that she was intimidating other staff.  Such staff felt so intimidated by the Applicant that they made complaints which, when interviewed, they confirmed they did not believe were justified.  The Applicant indicated a personal vendetta against [Mr P] and this personal vendetta was impacting detrimentally on the workplace.

22. The respondent’s solicitor gave evidence that the claim with respect to the making of complaints which were clearly unsubstantiated was added by her and not on specific instructions.  The initial instructions (not the entirety thereof) were produced, which were in a form of a written document as a draft response to the applicant’s claims to the Fair Work Commission.  This draft response by the respondent did not contain the allegation. 

23. Whilst the solicitor claimed to take responsibility for the insertion of the comment, her evidence had the implication that it was not her error but the way in which the solicitors for the other party were “reading” the comment.  I cannot see any reasonable reading other than the one consistent with the way in which the solicitors for the applicant have read the comment. 

24. The version with the relevant phrase was forwarded to Mr Munro by the solicitor for approval, and Mr Munro approved the formal version that the solicitor had produced.

25. It is, effectively, an admission in the documents as prepared by the solicitor of a prohibited reason for taking adverse action. 

26. The difficulty of solicitors making admissions in pleadings or other documents, when acting as agents for their clients, is not unknown.  In Gannon v Gannon [1971] HCA 76; (1971) 125 CLR 629 Menzies J discussed the effect of admissions in pleadings and interrogatories, saying:

    21. Answers to interrogatories are no more than admissions of fact and I have found no sound basis for excluding evidence by a witness called for a party because the evidence to be given would be at variance with answers to interrogatories made by that party which have been put in evidence. … That an admission does not, of itself, prevent the bringing of evidence to the contrary is plain enough but it is said (1) that the rule is different as to "formal admissions", and (2) that answers to interrogatories fall into this special category. … For my part I am not prepared to put an admission in an answer to interrogatories on the same footing as an admission in a pleading. A pleading may be amended, but an answer to an interrogatory, once delivered, cannot be withdrawn, although, in a proper case, it may perhaps be possible to obtain leave to answer further. Furthermore, however, and more fundamentally, pleadings determine what is in issue; answers to interrogatories do not. An answer could not do so at the time of its delivery and, in my opinion, it does not do so when it is put in evidence. It is no more than evidence of a fact in issue; that is why it is admitted. I see no reason why it should be regarded as exclusive and exhaustive evidence of that fact. It would, I think, be contrary to principle to permit the plaintiff to call witnesses to prove that the plant was dangerous and deny the defendant the right to call evidence that the plant was not dangerous on the ground that the defendant had, in answers to interrogatories, made admissions supporting the contention that the plant was dangerous. (at p640)

1. The statement to the Fair Work Commission is neither a pleading nor an answer to an interrogatory.  On its face it serves as a summary of the case – yet does not necessarily limit the issues as the pleadings in this court would.  The reality is that it is simply a statement made on behalf of a defendant, although not in such formal terms as a sworn statement (such as appears in an answer to an interrogatory or an affidavit).  To the extent that it contains an admission, it must be weighed like any other statement against interest in the fact finding process having regard to its terms, the circumstances in which it was made, and the other evidence. 

2. I accept that the version filed was that edited and added to by the solicitor.  It is most unfortunate that a solicitor would add to the instructions – although ironically in this case, what was added did not aid the client but harmed the client’s case.  However, I also bear in mind that the solicitor’s version was formally approved by Mr Munro.

3. In this case it is also important to bear in mind that this evidence is in the context of a case where the onus of proof remains with the employer throughout. It is not the obligation of the employee to provide evidence of an alternative basis for decision-making, but rather the obligation of the employer to prove that the only substantive or operative reasons for the termination were ones that were not prohibited under the Act. In this context, this particular part of the evidence should not be considered from the perspective of whether or not it establishes an alternative, operative reason (which would impliedly shift the onus of proof to the applicant), but be taken into account in determining whether or not the employer has discharged its onus of showing that no prohibited reasons were substantive or operative reasons.

4. I have no difficulty accepting that from Mr Munro’s perspective, by the end of the meeting, he formed the view that he was unable to engage reasonably with the applicant with respect to her conduct in not accepting the outcome of the first investigation by Mr Wilkinson and contacting other employees.  Her own complaint with respect to Mr P, which had never been made in writing, and even on her own evidence had never effectively been pursued by her, provides a context that highlights the concern of Mr Munro with respect to her conduct directed at other staff.

5. I am persuaded on the evidence that the matters pleaded, namely, the harassment and intimidation of staff associated with the complaint by the applicant after it had been investigated by the employer, is the predominant reason for Mr Munro’s decision to dismiss the applicant.  The secondary reason, which appears apparent on the evidence, is the inability of the applicant to reasonably engage with Mr Munro in the meeting in order to discuss these issues.  I am satisfied that had the applicant engaged reasonably with Mr Munro in the meeting the termination may not have occurred.  Whilst the personalities and the underlying issues may have meant that this was not realistically going to occur, that doesn’t alter the fact that it was a substantial and operative reason motivating the dismissal.  Whether it was realistic to expect a more reasonable discussion would be relevant in an unfair dismissal case.

6. I am persuaded that the making of the complaints per se was not a substantial or operative reason, nor was the applicant’s health or claims for sick leave.  As Mr Munro expressed quite firmly, an employer is unable to contract out of WorkCover claims and, as such, it played no part in his decision as, rightly or wrongly from his perspective, the decision he was to make had no real impact on the WorkCover liability of the employer.

7. Ultimately, I am persuaded that the document prepared by the solicitor represented her interpretation of the instructions from Mr Munro, as embellished by her in order to present what she thought was the best case for the respondent.  It is not for this court to deal with the professional issues that may arise, as a result of the solicitors conduct.  Whilst the document was approved by Mr Munro I am satisfied that he was effectively taking the solicitor’s advice as to a document.  I place far more weight upon the terms of the evidence given by those present at the meeting and their presentation in the witness box.  I therefore accept Mr Munro’s oral evidence and reject the statements inserted by the solicitor.

Conclusions

1. As I am ultimately persuaded that the substantive or operative reasons for the applicant’s dismissal were not prohibited reasons under the Act I must dismiss the adverse action application.

2. As this is not the appropriate forum for claims for unfair dismissal it is not appropriate for me to analyse the claims on such a basis.

3. I therefore dismiss the application.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 14 March 2018