Mullan v Calold (WA) Pty Ltd trading as Harcourts Kalamanda
[2023] FedCFamC2G 404
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mullan v Calold (WA) Pty Ltd trading as Harcourts Kalamanda [2023] FedCFamC2G 404
File number: PEG 478 of 2019 Judgment of: JUDGE LADHAMS Date of judgment: 17 May 2023 Catchwords: INDUSTRIAL RELATIONS – general protections claim – whether applicant exercised or proposed to exercise workplace rights – whether adverse action was taken against applicant – whether adverse action taken because applicant exercised or proposed to exercise workplace rights – whether third respondent advised, encouraged or incited respondents to dismiss applicant – no contravention of ss 340 or 362 of Fair Work Act 2009 (Cth)
INDUSTRIAL RELATIONS – whether first respondent breached National Employment Standards by failing to give written notice of day of termination to applicant at time applicant was orally advised that her employment was terminated with immediate effect – no contravention of ss 44 and 117 of Fair Work Act
Legislation: Acts Interpretation Act 1901 (Cth) ss 28A, 29
Electronic Transactions Act 1999 (Cth) s 9
Evidence Act 1995 (Cth) ss 136, 160
1 Fair Work Act 2009 (Cth) ss 44, 61, 117, 340, 341, 342, 360, 361, 362, 550,
Occupational Safety and Health Act 1984 (WA) ss 19, 20
Workers’ Compensation and Injury Management Act 1981 (WA)
Occupational, Health, Safety and Welfare Act 1986 (SA) s 21
Occupational Health and Safety Act 2004 (Vic) s 25
Work Health and Safety Act 2011 (NSW) s 28
Cases cited: Alam v National Australia Bank Limited (2021) 288 FCR 301; [2021] FCAFC 178
Australian Rail, Tram and Bus Industry Union v Australian Western Railroad Pty Ltd [2017] FCCA 1954
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (2011) 213 1R 32; [2011] FCA 1001
Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46; [2019] FCAFC 16
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273; [2015] FCAFC 157
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; [2014] HCA 41
Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150; [2015] FCAFC 76
Flavel v Railpro Services Pty Ltd [2013] FCCA 1189
Ingersole v Castle Hill Country Club Limited [2014] FCCA 450
Kelly v Atanaskovic Hartnell Corporate Services Pty Limited (No 2) [2022] FedCFamC2G 112
Division: Division 2 General Federal Law Number of paragraphs: 183 Date of last submission: 17 December 2021 Date of hearing: 29-30 September 2021, 13 October 2021 Place: Perth Counsel for the Applicant: Mr D Kiel Solicitor for the Applicant: DPSK Lawyers Counsel for the Respondents: Ms V Bulut Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 478 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GERALDINE MULLAN
Applicant
AND: CALOLD (WA) PTY LTD T/A HARCOURTS KALAMUNDA
First Respondent
CHRISTOPHER CALPAKDJIAN
Second Respondent
CINDY EVANS
Third Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
17 May 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
Ms Geraldine Mullan, the applicant in this proceeding, was employed by the first respondent, Calold (WA) Pty Ltd t/a Harcourts Kalamanda (Harcourts) as a Property Manager from 1 July 2019. Harcourts carries on a business in the real estate industry which provides property management services. At all relevant times, the second respondent, Mr Christopher Calpakdjian, was the sole principal and licensee of Harcourts and the third respondent, Ms Cindy Evans, was another employee of Harcourts and was the Head of the Property Management team and Ms Mullan’s direct supervisor. Ms Mullan’s employment was terminated on 20 August 2019.
Ms Mullan alleges that the termination of her employment was in contravention of s 340(1) of the Fair Work Act 2009 (Cth) (Fair Work Act) because it amounted to Harcourts taking adverse action against her because she exercised or proposed to exercise one or more workplace rights. She alleges that Mr Calpakdjian was involved in that contravention, within the meaning of s 550 of the Fair Work Act.
Ms Mullan further alleges that, during the course of her employment, Ms Evans raised concerns about her performance, including in three emails sent to Mr Calpakdjian, and this injured her in her employment or altered her position to her detriment. Ms Mullan alleges that this amounted to a contravention of s 340(1) of the Fair Work Act because the raising of concerns about her performance comprised adverse action taken against Ms Mullan because she exercised or proposed to exercise a workplace right. Ms Mullan alleges that Ms Evans was involved, within the meaning of s 550 of the Fair Work Act, in that contravention. Ms Mullan also alleges that in raising the concerns about her performance, Ms Evans advised, encouraged or incited Harcourts to take the action of dismissing Ms Mullan from her employment in contravention of s 362(1) of the Fair Work Act, and that this was done because Ms Mullan had exercised her workplace right to make complaints or inquiries in relation to her employment.
To determine whether the alleged contraventions are established, the Court will need to consider:
(a)whether Ms Mullan has established that she exercised or proposed to exercise one or more workplace rights;
(b)whether Ms Mullan has established that Harcourts took adverse action against her;
(c)if so, the reasons those adverse actions were taken and, in particular, whether Harcourts took the adverse action because Ms Mullan exercised or proposed to exercise one or more workplace rights; and
(d)if the Court finds that Harcourts did contravene s 340(1) of the Fair Work Act, whether Mr Calpakdjian or Ms Evans were involved in the contravention or contraventions.
Ms Mullan claims that when her employment was terminated, she was not given written notice of the day of the termination, in contravention of ss 117(1) and 44(1) of the Fair Work Act. She alleges that Mr Calpakdjian was involved in that contravention. The resolution of this allegation will, in the circumstances of this case, turn on a finding of fact as to whether or not Ms Mullan was given a written notice of her termination on 20 August 2019, either at the same time that she was orally advised that her employment was terminated with immediate effect, or later that day. If the latter, the Court will also need to consider whether giving notice of the day of the termination later on the same day as a person is terminated with immediate effect is in compliance with s 117 of the Fair Work Act.
PROCEEDING BEFORE THE COURT
The application to this Court was filed on 4 December 2019 and Ms Mullan’s case is set out in a Further Amended Form 2 Claim dated 29 September 2021 (Further Amended Claim).
The respondents’ case is set out in their Response to the Amended Application filed on 7 June 2021 (Response).
The cases advanced by the parties are summarised in greater detail below.
Evidence before the Court
Lay evidence
Ms Mullan gave evidence in two affidavits filed on 16 June 2021 and 14 September 2021 respectively about events that occurred during the course of her employment with Harcourts and she gave oral evidence, including under cross-examination, at the hearing.
Three witnesses gave evidence on behalf of the respondents. Mr Calpakdjian, Ms Evans and Ms Kelly Taylor, who was employed by Harcourts as a Property Manager at the time of Ms Mullan’s employment, all made affidavits which were filed on 19 August 2021 and all gave oral evidence, including under cross-examination, at the hearing.
As will be seen below, some of the witnesses have given conflicting accounts of relevant events. Where it is necessary to resolve conflicting evidence about particular events, I address the reasons I have preferred one witness’s evidence over that of another witness in the discussion of the relevant event.
However, it is appropriate to make some more general comments about the credibility of the lay witnesses, particularly given the submissions that both parties made in relation to this issue in their closing submissions. In setting out my views on credibility, I have had regard to the affidavits, transcript, the documentary evidence, my impression of the witnesses at the hearing and, in circumstances where there has been a delay in delivering judgment in this matter, a fresh review of the audio recordings of the lay witness evidence given at the hearing.
Ms Mullan
I accept that Ms Mullan was open and forthcoming in relation to her evidence of events as she perceived and remembers them. I do, however, treat her evidence with some degree of caution, particularly in relation to events involving Ms Evans and in circumstances where Ms Mullan seeks to characterise events in a particular way. It appears from the evidence as a whole that in the first week of Ms Mullan’s employment at Harcourts, both she and Ms Evans formed negative views about the other’s perception of them. Ms Mullan formed the belief that Ms Evans was trying to undermine her employment and it appears to me that she perceived events in a way that reinforced that belief. For example, some of the things that Ms Mullan perceived to be bullying and harassing behaviour by Ms Evans towards her, or otherwise micromanagement, could be viewed in a very different light when not considered through the prism of Ms Mullan’s belief that Ms Evans was trying to undermine her employment.
Mr Calpakdjian
By the time of his cross-examination, there were many events that Mr Calpakdjian could not recall. The hearing of this matter took place over two years after the relevant seven week period of Ms Mullan’s employment, and it is understandable that Mr Calpakdjian’s memory was not as good as it might have been closer to the events in question. I draw no adverse inference against Mr Calpakdjian as a result of those matters that he can no longer recall, although I am hesitant to draw any inference that any particular event did not occur solely on the basis that Mr Calpakdjian cannot recall it. In relation to the matters that he could recall, I considered Mr Calpakdjian to be a credible witness.
Ms Mullan advanced various submissions about evidence of Mr Calpakdjian that, in her submission, the Court should find to be implausible. I address evidence relating to particular events insofar as they are relevant below. However, I would make the general observation that I do not consider Mr Calpakdjian’s evidence as a whole to be implausible or otherwise lacking in credibility.
Ms Mullan also submitted that the Court should have doubts about Ms Calpakdjian’s evidence in circumstances where he discussed matters arising from the course of Ms Evans’ cross-examination with her prior to his own cross-examination. This submission arises out of the following exchange in cross-examination:[1]
MR KIEL: …Now Mr Calpakdjian, have you discussed any of your intended evidence today with Ms Evans at any time? --- No.
All right. And did you have a conversation with Ms Evans immediately after the second day of the hearing on the Thursday, 30 September? --- Yes.
And did you discuss anything that Ms Evans was asked during cross-examination? --- Yes.
Okay. What did you discuss? --- How she felt with the session. She was very unwell so I just wanted to make sure that she was okay. I think the [National Tenancy Database] came up a couple of times in that conversation.
All right. So you’re saying you discussed what she was asked during her cross-examination? Was there a reason why you asked about or discussed that, sorry? --- Just out of curiosity.
[1] Transcript, 13 October 2021 p 10-11.
While it would have been preferable that there had not been any discussion between Ms Evans and Mr Caplakdjian about Ms Evan’s cross-examination prior to Mr Calpakdjian giving oral evidence at the hearing, I do not, on the basis of this exchange, draw any inference that the whole of Mr Calpakdjian’s evidence is unreliable. Mr Calpakdjian confirmed that he did not discuss his own evidence with Ms Evans, and the main evidence of any conversation related to Ms Evans’ feelings. The only possible reference to substantive evidence in the cross-examination exchange above was that the National Tenancy Database (NTD) might have come up a couple of times. I have not relied in this judgment on any oral evidence given by Mr Calpakdjian about the NTD that is not consistent with his affidavit evidence.
Ms Evans
On the whole I found Ms Evans to be an open and forthcoming witness who gave honest evidence of her recollection and perception of events. I do, however, treat her evidence with caution in the same way that I treat Ms Mullan’s evidence with caution. Ms Evans gave evidence that she found Ms Mullan to be intimidating and that Ms Mullan made her feel uncomfortable, and it appears to me that she perceived events in a way that supported that belief. For example, comments by Ms Mullan to the effect that she had done things differently in her previous employment appear to have been interpreted by Ms Evans as implied criticism or unwillingness on the part of Ms Mullan to do things in the way they were ordinarily done at Harcourts. However, such comments could also be open to a different interpretation.
Ms Taylor
On the whole, I consider Ms Taylor to be an open and credible witness. She has no direct interest in these proceedings. I do not accept Ms Mullan’s submission to the effect that Ms Taylor’s evidence is contaminated because she was provided a copy of Ms Mullan’s affidavit evidence, despite not being a party. While there might have been other ways to put Ms Mullan’s evidence to Ms Taylor for comment or response than to simply provide her with the whole affidavit, I consider that Ms Taylor has been honest in the evidence she gave to the Court.
Documentary evidence
There are a number of documents that were included in the Court Book, but which were not annexed to the affidavit of any witness. The documents relied on by the parties have been tendered as exhibits. There were also a lot of documents annexed to affidavits. I have placed weight on the documentary evidence, particularly where I have concerns about the reliability of the evidence of the lay witnesses.
Expert evidence
Two medical practitioners appeared as expert witnesses, called by Ms Mullan, to give evidence in relation to the effect of the alleged events on Ms Mullan. Dr Claudio Nick De Felice is a consultant psychiatrist who provided an expert report dated 15 July 2021 in relation to Ms Mullan and Dr Karen Brooker is a clinical psychologist and neuropsychologist who provided an expert report dated 10 August 2021. Dr De Felice and Dr Brooker both attended the hearing and gave evidence to the Court about Ms Mullan’s medical conditions, the causes of those conditions and the prognosis.
There is an outstanding objection on the basis of relevance to [200] and [201][2] and Annexures GM-26 and GM-27 of Ms Mullan’s affidavit filed on 16 June 2021, and I indicated to the parties that I would address that objection in my reasons. The evidence relates to a medico-legal assessment of Ms Mullan by Dr Gemma Edwards-Smith for the purposes of her workers’ compensation claim. I accept that the evidence is relevant, in that it could have some tendency to prove or disprove Ms Mullan’s assertions in relation to the harm she has suffered (albeit, the purpose of the medico-legal assessment was for a different proceeding to the present one). However, in circumstances where Dr Edwards-Smith was not called to give evidence in this proceeding, I would give this evidence minimal weight.
[2] The applicant only sought to read [201] insofar as it annexed Annexure GM-27.
While I have had regard to the medical evidence, particularly that of Dr De Felice and Dr Brooker, it has not been necessary to address that evidence in any detail given my findings in relation to the alleged contraventions of the Fair Work Act.
Submissions
Both parties filed written opening submissions ahead of the hearing, and written closing submissions (including reply submissions by the applicant) after the hearing. I have had regard to all of the submissions filed in this matter.
RELEVANT FACTS
The facts referred to in this section are based on the affidavit and oral evidence given by the lay witnesses, as supported by the documentary evidence. Unless otherwise indicated, I accept the evidence referred to in this section.
It is, however, relevant to note at the outset that there are a number of events that the witnesses have perceived differently, and conduct which they have characterised differently. In particular, witnesses have given evidence about the tone of voice used, the use of sarcasm, their perceptions of facial expressions, whether conduct and words were disrespectful and whether conduct amounted to bullying and harassment, which relates to their own subjective perceptions. Some, but not all, of the evidence of this nature is subject to a limitation under s 136 of the Evidence Act 1995 (Cth) (Evidence Act) and is not relied on for any purpose other than the assessment of the subjective perception of the witness. It is not necessary for me to make findings of fact about much of the underlying conduct, or its purpose, in this judgment.
The critical findings of fact in this matter relate to the asserted exercise of workplace rights, conduct that might be seen as adverse action, and the reasons for any conduct which amounts to adverse action. Evidence relating to the perceptions that the witnesses formed in relation to each other, particularly Ms Mullan and Ms Evans, is relevant to the extent that it provides context to the alleged exercise of workplace rights and the alleged reasons for adverse action. Where I have not made any finding of fact about disputed underlying conduct that led to the various perceptions, I do not consider that the fact of the underlying conduct would affect the conclusions I have reached on the determinative issues.
Ms Mullan first interviewed with Mr Calpakdjian in respect of a Property Manager role with Harcourts in or around December 2017. Ms Mullan opted to pursue other employment at that time.[3] Mr Calpakdjian then offered Ms Mullan a position as Head of Property Management in around April 2018, which Ms Mullan declined.[4] Ms Mullan contacted Mr Calpakdjian in April 2019 after she left her previous employment and in June 2019 Mr Calpakdjian offered Ms Mullan a job as a Property Manager with Harcourts.[5]
[3] Affidavit of Ms Mullan filed on 16 June 2021 at [9]-[10] (CB 151); affidavit of Mr Calpakdjian filed on 19 August 2021 at [7] (CB 498).
[4] Affidavit of Ms Mullan filed on 16 June 2021 at [12] (CB 151); affidavit of Mr Calpakdjian filed on 19 August 2021 at [8] (CB 498).
[5] Affidavit of Ms Mullan filed on 16 June 2021 at [13] and Annexure GM-1 (CB 151, 184); affidavit of Mr Calpakdjian filed on 19 August 2021 at [9]-[12] and Annexure CC-1 (CB 498-499, 516-517).
Ms Mullan commenced her employment with Harcourts on 1 July 2019, reporting to Ms Evans who was Head of Property Management.[6] Ms Mullan was employed pursuant to a written contract of employment, but this was not executed until 24 July 2019.[7] Ms Mullan’s employment was subject to a probation period of three months.
[6] Affidavit of Ms Mullan filed on 16 June 2021 at [14], [17] (CB 151-152); affidavit of Mr Calpakdjian filed on 19 August 2021 at [14] (CB 499).
[7] Affidavit of Ms Mullan filed on 16 June 2021 at [14] and Annexure GM-2 (CB 153, 187-198); affidavit of Mr Calpakdjian filed on 19 August 2021 at Annexure CC-2 (CB 520-532).
The witnesses have not referred to any significant events in the first week of Ms Mullan’s employment. However, Ms Mullan and Ms Evans both gave evidence of concerns that they developed about the other’s attitude or behaviour, and it is relevant to acknowledge the perceptions that they formed of each other in this first week because, as I have indicated above, I consider that both witnesses have perceived the events relevant to this application through the prism of the impressions that they formed of each other at an early stage of their working relationship.
(a)Ms Mullan gave evidence that she became concerned with Ms Evans’ ‘conduct, abruptness and behaviour’ towards her, including what she perceived to be ‘micromanagement’ and found Ms Evans’ interactions and tone of voice to be ‘very abrupt, dictatorial, and unfriendly’. She gave two examples in relation to her concerns. The first was that Ms Evans was disbelieving of Ms Mullan’s attendance at home opens until Ms Mullan advised that she had taken photographs of the property. The second example was that Ms Evans requested feedback or information about a home open Ms Mullan attended, saying that she needed the information to contact the owner, and then later saying that it was Ms Mullan’s job to contact the owner.[8]
(b)Ms Evans gave evidence that she felt like she was being challenged by Ms Mullan on many minor issues, such as the number of properties she was to manage and how Harcourts issues maintenance requests, and when Ms Evans explained to Ms Mullan Harcourts’ procedures, Ms Mullan said that she did it another way. Ms Evans gave evidence that Ms Mullan’s comments and behaviour towards her made her feel uncomfortable and she described Ms Mullan as ‘intimidating’. Ms Evans gave evidence of comments that Ms Mullan made that she thought were strange or disrespectful, such as ‘you bring your friends in’ and ‘[q]uite a few employees have left since you became the supervisor’. Ms Evans said that Ms Mullan also repeatedly called her ‘Wendy’ rather than Cindy.[9]
[8] Affidavit of Ms Mullan filed on 16 June 2021 at [21]-[22] (CB 152); transcript, 29 September 2021 at p 83.
[9] Affidavit of Ms Evans filed on 19 August 2021 at [8]-[16] (CB 715-718).
I acknowledge that Ms Evans and Ms Mullan both deny much of the conduct that the other asserts they engaged in and the evidence in the paragraph above is referred to only for the purposes of recording the perceptions that Ms Mullan and Ms Evans formed. I accept that Ms Mullan and Ms Evans, rightly or wrongly, both formed the impressions they asserted in the first week. I also accept that from the first week of Ms Mullan’s employment, Ms Evans made notes in a notebook about her interactions with Ms Mullan and Ms Mullan’s conduct and performance.
From 8 to 16 July 2019 inclusive Ms Mullan was absent from the workplace due to illness.[10] Ms Mullan had in her possession during her period of leave a company vehicle, iPad and mobile phone.
[10] Affidavit of Ms Mullan filed on 16 June 2021 at [24]-[32] (CB 153); affidavit of Mr Calpakdjian filed on 19 August 2021 at [18]-[27] (CB 499-500); affidavit of Ms Evans filed on 19 August 2023 at [26]-[37] (CB 719-720).
During Ms Mullan’s absence, on 16 July 2019, Ms Evans received enquiries from prospective tenants who advised that Ms Mullan had not returned their calls, and she informed Mr Calpakdjian of this.[11] Mr Calpakjdian sent Ms Mullan a text message asking whether he could send someone to Ms Mullan’s house to pick up the work phone and iPad.[12] Ms Mullan then phoned Mr Calpakdjian. Ms Mullan’s evidence is that during this telephone call, Mr Calpakdjian told her that he needed the work mobile and iPad to respond to phone calls that Ms Mullan had not attended to, and Ms Evans had informed him that they had received complaints she was not returning calls. Ms Mullan advised Mr Calpakdjian that there had been very little phone activity while she was on leave, with only three or four telephone calls and one text message. She had responded to all calls other than one from a private number and the text message was from a tenant regarding a routine inspection that the office should have already cancelled.[13] Mr Calpakdjian recalls that he spoke with Ms Mullan on the telephone, but does not recall the content of the conversation.[14] I accept Ms Mullan’s evidence in relation to the content of the telephone conversation. Mr Calpakdjian and Ms Evans both gave evidence that they did not expect Ms Mullan to be answering telephone calls while she was on leave.[15]
[11] Affidavit of Ms Evans filed on 19 August 2021 at [33]-[34] (CB 720); affidavit of Mr Calpakdjian filed on 19 August 2021 at [22]-[23] (CB 500).
[12] Affidavit of Mr Calpakdjian filed on 19 August 2021 at [24] (CB 500); affidavit of Ms Mullan filed on 16 June 2021 at [27] (CB 153).
[13] Affidavit of Ms Mullan filed on 16 June 2021 at [28]-[30] (CB 153); see also, transcript, 29 September 2021 at p 86-89.
[14] Affidavit of Mr Calpakdjian filed on 19 August 2021 at [25] (CB 500).
[15] Affidavit of Ms Evans filed on 19 August 2021 at [33] (CB 720); affidavit of Mr Calpakdjian filed on 19 August 2021 at [23] (CB 500).
Ms Mullan returned to work on 17 July 2019. Ms Mullan and Ms Evans had a handover meeting upon Ms Mullan’s return to the office.[16] Ms Mullan and Ms Evans have different perceptions and recollections of this meeting. Ms Evans’ evidence is that she provided updates of Ms Mullan’s properties consisting of what had been done and what still needed to be done, and Ms Mullan made one sarcastic comment during the meeting, but the meeting was otherwise free of issues.[17] Ms Mullan perceived Ms Evans’ tone throughout the meeting to be ‘harsh, abrupt and intimidating’.[18] Ms Mullan and Ms Evans both denied each other’s evidence in relation to this.[19] There are also different recollections of the content of some of the matters discussed at the meeting. For the most part, those issues do not need to be resolved.
[16] Affidavit of Ms Mullan filed on 16 June 2021 at [33] (CB 154); affidavit of Ms Evans filed on 19 August 2021 at [37] (CB 720-721).
[17] Affidavit of Ms Evans filed on 19 August 2021 at [37], [40] (CB 720, 721).
[18] Affidavit of Ms Mullan filed on 16 June 2021 at [34] (CB 154).
[19] Affidavit of Ms Mullan filed on 14 September 2021 at [26], [28] (CB 304); affidavit of Ms Evans filed on 19 August 2021 at [38] (CB 721)
The relevance of the evidence of the meeting for present purposes is twofold. First, it can be seen that both Ms Evans and Ms Mullan continued to perceive the other’s attitude and behaviour towards them in a negative light. Second, a couple of the matters discussed were relevant to subsequent events. In particular, Ms Mullan asserted that Ms Evans wanted access to her calendar, whereas Ms Evans said that she reminded Ms Mullan that she wanted access to her calendar and that Ms Mullan should also inform the receptionist when she leaves and returns to the office.[20] I accept that Ms Evans told Ms Mullan that she wanted access to her calendar and that she should inform reception when she leaves and returns to the office. There was also a conversation in relation to lunch breaks. Ms Mullan’s evidence is that Ms Evans told her that Mr Calpakdjian insisted that lunches were taken between 12pm and 2pm and there was to be a property manager in the office at all times, and she asked Ms Evans if she should take her lunch break before or after a home open scheduled at 1.30pm the following day to which Ms Evans did not respond.[21] Ms Evans in her affidavit evidence did not recall Ms Mullan asking her about whether she should take her lunch break before or after the home open at 1.30pm the following day, but acknowledged that she had at some point advised Ms Mullan that they take their lunch breaks between 12pm and 2pm and that they need to ensure a property manager is in the office at all times.[22]
[20] Affidavit of Ms Mullan filed on 16 June 2021 at [34] (CB 154); affidavit of Ms Evans filed on 19 August 2021 at [42] (CB 721).
[21] Affidavit of Ms Mullan filed on 16 June 2021 at [34] (CB 154).
[22] Affidavit of Ms Evans filed on 19 August 2021 at [49]-[50] (CB 722-723).
On 18 July 2019 Ms Mullan was scheduled to attend a home open at 1.30pm, which is when she would ordinarily take her lunch break. Ms Evans was out of the office and Ms Mullan asked Mr Calpakdjian whether she should take her lunch break before or after attending the home open. Ms Mullan gave evidence that Mr Calpakdjian confirmed that there can be flexibility with the lunch breaks and asked if she could take her lunch break after her appointment and let Ms Evans know that he had approved this on her return to the office.[23] Mr Calpakdjian recalls discussing lunch breaks with Ms Mullan and said that she would need to discuss it with Ms Evans.[24] Ms Evans returned to the office at about 1pm and there followed an incident regarding which the witnesses have different recollections:
[23] Affidavit of Ms Mullan filed on 16 June 2021 at [39]-[40] (CB 155).
[24] Affidavit of Mr Calpakdjian filed on 19 August 2021 at [30] (CB 501).
(a)Ms Mullan gave evidence that Ms Evans yelled to her ‘don’t forgot you have to go to lunch, Geraldine’, to which Ms Mullan replied that she had the appointment at 1.30pm and Mr Calpakdjian had ‘ok’d it for [her] to go to lunch afterwards’. Ms Mullan then said that Ms Evans jumped out of her chair and started yelling at her, ‘how dare you go behind my back?’ and ‘[y]ou had no right to go over my head’. Ms Mullan said that Ms Evans then turned and headed towards the kitchen area and yelled ‘you haven’t heard the last of this, we will have further words in regards to this’.[25]
[25] Affidavit of Ms Mullan filed on 16 June 2021 at [41]-[44] (CB 155).
(b)Ms Evans denies being intimidating or yelling and gave evidence that her recollection is the conversation was to the following effect:[26]
[26] Affidavit of Ms Evans filed on 19 August 2021 at [47] (CB 722); see also, transcript, 30 September 2021 at p 257-258.
[Ms Evans]: Don’t forget to take your lunch break.
[Ms Mullan]: I have an open home to do.
[Ms Evans]: Okay. be mindful when making times around lunchtime, so you don’t miss your break. We have to have a person in the office over the lunch period.
[Ms Mullan]: I discussed the lunch hour with Chris, and he okayed me doing what I want -working through and having the one hour at the end of day.
[Ms Evans]: That isn’t on. It sets a precedent for everyone else. You have to discuss that with me as Head of Department.
[Ms Mullan]: No, I will be discussing everything with Chris.
[Ms Evans]: This is what the problem is, you go over my head any chance you get. You have been rude and disrespectful to me since the day you started.
[Ms Mullan]: … Well, a lot of people left when you came back. You seem to have a lot to say about what goes on here and you bring people you know in the office.
[Ms Evans]: We can continue this discussion tomorrow.
[Ms Mullan]: I’ve never had a set lunchbreak and will not be told to do so now by you.
(c)Ms Taylor witnessed the conversation and gave evidence that it was to the following effect:[27]
[Ms Evans]: Remember, you need to take your lunch break.
[Ms Mullan]: Well, I spoke to Chris about it instead.
[Ms Evans]: You spoke to Chris about it?
[Ms Mullan]: Tough luck.
[27] Affidavit of Ms Taylor filed on 19 August 2021 at [10] (CB 830-831).
Again, it is unnecessary to resolve which of these three recollections (if any) is factually accurate. Rather, the perceptions formed during this interaction informed future events. I accept that Ms Mullan felt upset by the way that she perceived that Ms Evans had spoken to her and considered that Ms Evans yelled. I accept that Ms Evans perceived that Ms Mullan had disrespected her by approaching Mr Calpakdjian.
Later on 18 July 2019, after Ms Mullan returned to the office after the home open and her lunch break, Ms Mullan requested a private meeting with Mr Calpakdjian in which she claims that she raised concerns about Ms Evans’ conduct. Ms Mullan’s evidence was that she advised Mr Calpakdjian that she had concerns relating to Ms Evans’ bullying, intimidation and harassing conduct and behaviour, including that Ms Evans had yelled at her that afternoon in front of other staff members, and that Ms Evans was unnecessarily micromanaging Ms Mullan’s portfolio. Ms Mullan also gave evidence that Mr Calpakdjian responded by suggesting it was a personality clash and requested that Ms Mullan give Ms Evans another chance. [28] Mr Calpakdjian does not recall the meeting[29] and the respondents dispute that the meeting took place. I accept that such a meeting took place, notwithstanding that Mr Calpakdjian does not recall the meeting. Ms Mullan has given consistent evidence about the occurrence of this meeting and Mr Calpakdjian has not denied that the meeting occurred, but merely stated that he cannot remember it. That a meeting took place is also corroborated by Ms Evans’ evidence, including a notation in her notebook that Ms Mullan met with Mr Calpakdjian on the afternoon of 18 July 2019.[30] I also accept that Ms Mullan raised the concerns that she asserts.
[28] Affidavit of Ms Mullan filed on 16 June 2021 at [46]-[47] (CB 155-156). In her oral evidence, Ms Mullan described the conduct as ‘borderline bullying and harassment’ rather than actual bullying and harassment: see transcript, 29 September 2021 at p 98.
[29] Affidavit of Mr Calpakdjian filed on 19 August 2021 at [36] (CB 501).
[30] Affidavit of Ms Evans filed on 19 August 2021 at Annexure CE-1 (CB 744); transcript, 30 September 2021 at p 272.
On 19 July 2019 a meeting took place between Mr Calpakdjian, Ms Evans and Ms Mullan. Again, witness recollections of this meeting vary, but there are some common elements. All witnesses appear to agree, and I accept, that in the meeting, Ms Evans raised concerns about working with Ms Mullan, lost her temper, said that she did not want to work with Ms Mullan and walked out.[31] A letter of concern was placed on Ms Evans’ employee file as a result of her conduct in this meeting, which was described in the letter as ‘unprofessional and disrespectful’.[32]
[31] Affidavit of Ms Mullan filed on 16 June 2021 at [52]-[58] (CB 156-157); affidavit of Mr Calpakdjian filed on 19 August 2021 at [40] (CB 502); affidavit of Ms Evans filed on 19 August 2021 at [56]-[59] (CB 723-724).
[32] Affidavit of Ms Evans filed on 19 August 2021 at Annexure CE-3 (CB 776); affidavit of Mr Calpakdjian filed on 19 August 2021 at [58] and Annexure CC-8 (CB 503, 556).
After Ms Evans left the meeting, Ms Mullan alleges that she said to Mr Calpakdjian that ‘Cindy has just threatened me and my employment’ and asked him what he was going to do about it. Mr Calpakdjian responded that he did not know what just happened and that he would have a word with Ms Evans about it.[33] Ms Mullan asked Mr Calpakdjian who he would choose between her and Ms Evans and Mr Calpakdjian responded that he would choose Ms Evans as she had been with Harcourts for longer.[34]
[33] Affidavit of Ms Mullan filed on 16 June 2021 at [60]-[66] (CB 157-158)
[34] Affidavit of Ms Mullan filed on 16 June 2021 at [67] (CB 158); affidavit of Mr Calpakdjian filed on 19 August 2021 at [45] (CB 502), transcript, 29 September 2021 at p 101; transcript, 13 October 2021 at p 32-33.
On 20 July 2019, which was a Saturday, Ms Mullan sent an email to Mr Calpakdjian expressing the view that her employment had become untenable as a result of Ms Evans’ ‘bullying and harassing behaviour’ and Mr Calpakdjian’s comments that he would choose Ms Evans if a choice had to be made between her and Ms Mullan. Ms Mullan requested that her employment be terminated with two weeks’ notice to be taken as paid garden leave.[35] The email read:[36]
[35] Affidavit of Ms Mullen filed on 16 June 2021 at [70]-[72] and Annexure GM-8 (CB 158-159, 217-218); affidavit of Mr Calpakdjian filed on 19 August 2021 at [47]-[48], Annexure CC-5 (CB 502, 545-546).
[36] Affidavit of Ms Mullen filed on 16 June 2021 at Annexure GM-8 (CB 217-218); affidavit of Mr Calpakdjian filed on 19 August 2021 at Annexure CC-5 (CB 545-546).
While I had looked forward to my employment with your office and as discussed, had every hope that it would lead to a mutually beneficial relationship over multiple years (untill my eventual retirement) unfortunately with reference to our meeting held yesterday- Friday 19 July 2019 with Cindy Evans (Head of Property Management and my immediate manager) it became evident that there is little chance of this eventuating.
During the above-mentioned meeting Cindy’s comments confirmed that she has had an issue with my employment and that her issues commenced prior to my employment actually commencing and that they have been ongoing ever since.
While attempting to justify her actions Cindy has made several false claims and unjustified criticisms in relation to my role as Property Manager and also her perceived thoughts that I wanted her position as head of department. She also revealed that she has been compiling pages of petty grievances in which she had either discussed with or had involved multiple other members of your staff in. Therefore her actions have been coldly calculated to ensure that I had no chance of ever fitting into the team.
Cindy also forcefully stated that she would refuse to work with me in any capacity whatsoever going forward. All while appearing completely confident and safe in the knowledge that she wouldn’t have to. Following which she then stormed from the meeting and proceeded to make further derogatory comments about me to other members of your staff while she crossed the reception area.
This is not a simple case of “personalities clashing”.
Given that Cindy had openly boasted to me in my first week that it only took her three days following her return to your employment to force Alison’s resignation and that it was obvious she was instrumental in Jennifer not fitting in and/or feeling welcomed by the team - this is now three senior employees which you have lost with the one common denominator being Cindy.
I find Cindy’s actions have constituted both bullying and harassing behaviour from a senior member of staff and while in her capacity as my direct manager, particularly and more importantly, as it has been for the sole purpose of seeking and bringing about the termination of my employment.
Following Cindy’s departure from the meeting and during a discussion that you and I had, you then confirmed that if it came down to making a choice between myself and Cindy your decission would have to be with Cindy.
While I understand that you have been placed in a difficult position your comments were/are extremely hurtful as I feel completely disrespected and further victimised for no reason.
It was also difficult and disappointing to hear as indicated your willingness to accept and condone Cindy’s actions and behaviour.
Given the above it is obvious that my position of employment with Harcourts Kalamunda is no longer tangible.
I understand that under the work place laws either party can give the other notice of one week and while it was initially my intention to bow out giving my notice unfortunately on reflection this would not be in my best interest for a couple of reasons: 1. I had not budgeted for an unexpected and sudden period of un-employment; 2. I would be unable to claim or be entitled to Centrelink payments for several weeks; 3. My income (soon to be lack there of) is the only finances going into my household; 4. Given this employment outcome and how I feel right now it may be sometime before I seek further employment in property management (if ever).
Therefore and given that these circumstances and outcome are trough no fault of my own I respectively request that you terminate my employment providing a minimum of two (2) weeks notice (with pay) and that this notice is to be taken as “garden leave”.
Garden leave as per Termination of Employment Section 19.4 of your Employment contract is requested as it would be unfair for you to expect that I work notice under Cindy given her ongoing actions to date, her beleive that she can do or say whatever she likes without consequence and her obvious influence and involvement of your other staff members in her vendetta.
I also request that you provide a Separation of Employment Certificate as soon as possible.
It would be appreciated if you could acknowledge and indicate your acceptance of the above as soon as possible and prior to work commencing on Monday morning so that I know where I stand.
Once I have your response I will then make contact to arrange for the return of all work-related items - car, car and office keys, fuel card, phone, ipad, property keys, etc.
Chris, I hope you can understand that this outcome was never my intention and that under normal circumstances I would have worked whatever notice you required until a replacement was located however given the outcome of yesterday’s meeting I do not feel it is possible in this instance.
I await your response.
Mr Calpakdjian responded to Ms Mullan’s email later on 20 July 2019, indicating that he would need to seek advice and wanted to make an effort to resolve issues. He offered to give Ms Mullan a paid day off on 22 July 2019, which she accepted.[37]
[37] Affidavit of Mr Calpakdjian filed on 19 August 2021 at [50]-[51] and Annexures CC-6 (CB 502, 549-550); affidavit of Ms Mullan filed on 16 June 2021 at [75]-[76] and Annexures GM-10 and GM-11 (CB 159, 222, 224).
Mr Calpakdjian sought advice from Harcourts’ human resources advisor, Employsure Pty Ltd (Employsure), on 22 July 2019.[38] After receiving advice from Employsure, Mr Calpakdjian contacted Ms Mullan by telephone on 22 July 2019 and held a without prejudice conversation with her indicating that he was not in a position to terminate her employment, if she chose to resign he would pay her two weeks paid notice, even though he was not obligated to, and that his preference was to try to resolve the situation with Ms Mullan retaining her employment.[39] Ms Mullan gave evidence, which I accept, that she told Mr Calpakdjian that she intended to remain employed by Harcourts, but expressed concern that she did not feel safe working with her back to Ms Evans and with Ms Evans as her direct line manager.[40] I acknowledge Mr Calpakdjian’s denial that Ms Mullan said that Ms Evans was intimidating, bullying and harassing her or that she did not feel safe working under Ms Evans.[41] However, on balance I prefer Ms Mullan’s evidence about the content of this conversation, which has been detailed and consistent, in contrast to Mr Calpakdjian’s evidence about the conversation, in relation to which he acknowledged that he could not recall the precise words of that conversation,[42] and gave potentially inconsistent evidence about whether he accused Mr Mullan of refusing to work with Ms Evans.[43] Mr Calpakdjian agreed to move Ms Mullan’s desk, but said that Ms Evans would continue to be Ms Mullan’s direct line manager.[44] Mr Calpakdjian gave Ms Mullan a further day off to consider her decision.[45]
[38] Affidavit of Mr Calpakdjian filed on 19 August 2019 at [52]-[54] (CB 503).
[39] Affidavit of Mr Calpakdjian filed on 19 August 2019 at [55] and Annexure CC-7 (CB 503, 552-554); affidavit of Ms Mullan filed on 16 June 2021 at [77] (CB 159).
[40] Affidavit of Ms Mullan filed on 16 June 2021 at [78]-[80] (CB 160).
[41] Affidavit of Mr Calpakdjian filed on 19 August 2021 at [56] (CB 503); transcript, 13 October 2021 at p 35.
[42] Affidavit of Mr Calpakdjian filed in 19 August 2021 at [55] (CB 503).
[43] Compare the affidavit of Mr Calpakdjian filed in 19 August 2021 at [57] (CB 503), in which Mr Calpakdjian denied accusing Ms Mullan of refusing to work with Ms Evans, and transcript, 13 October 2021 at p 35, in which he acknowledged making such a comment, but could not recall the precise date on which the comment was made.
[44] Affidavit of Ms Mullan filed on 16 June 2021 at [79](CB 160).
[45] Affidavit of Ms Mullan filed on 16 June 2021 at [81] (CB 160); affidavit of Mr Calpakdjian filed on 19 August 2021 at [55] (CB 503).
Ms Mullan confirmed her recollection of the conversation in an email to Mr Calpakdjian sent on 23 July 2019 and again requested that she report directly to Mr Calpakdjian and not to Ms Evans.[46] The email read:
[46] Affidavit of Ms Mullan filed on 16 June 2021 at [82] and Annexure GM-12 (CB 160, 226-227); affidavit of Mr Calpakdijan filed on 19 August 2021 at Annexure CC-12 (CB568-569)..
As per our phone conversation of Monday 20th July 2019 at 5:20pm of which you advised was to be “without prejudice” I wish to confirm the following:
1.You have been advised that you are not in a position to terminate my employment.
2.Your preference would be to resolve the current situation so that my employment could continue.
3.That I could choose to resign and if I did so, you would then honour my request for two weeks “garden leave” with pay. However you were aware that legally you were only obligated to pay me for one week.
4.You advised that you had a meeting/discussion with Cindy however there was no mention that any disciplinary action (if any) had been taken to address her actions of bullying and harassment, her involvement of other staff members in her vendetta against me and her claims that there is no way she would work with me - all of which being for the sole purpose of bringing about the termination of employment.
5.You confirmed that it was your intention to have Cindy remain on as head of Property Management and continue to be my direct line manager
6.That you would provide me with another day of paid leave on Tuesday 21st July 2019 to consider my position and options.
Taking into consideration the above and as previously advised it is not my intention to resign my position nor do I wished to be placed in a position where I am forced into a resignation.
My preference is continued employment.
However, given the circumstances outlined in my email dated Saturday 20th July 2019 I have expressed serious concerns in regard to the conduct of my direct line manager Cindy Evans and her motives in relation to my employment. Of which you witnessed her outburst relating to this.
Under normal workplace relation guidelines such action would normally be handled with disciplinary action and unfortunately I have concerns that this has again gone unchecked and without consequence.
While it is not my intention to bring about Cindy’s demess or demotion as head of property management, I do believe that the following should be provided as a minimum resolution to address the situation, minimise further contact and possible unsatisfactory behaviour and provide a safer working environment and not something that I need to request.
A. That I answer directly to yourself - Cindy has no further role as my direct line manager, no further input in relation to myself, my portfolio and/or my employment.
B. That my workstation is relocated to a position were I am not sitting with my back to either Cindy or any other staff member. This could easily be resolved by moving to Kelly’s work station unless you have an alternative solution.
I do not beleive that either of the above requests are unreasonable given the current situation.
Your voiced concern that you are unable to take on any additional work with regard to Item A is somewhat unfounded given my sixteen years experience of independently managing portfolios of similar sizes without any concerns. There would be a minimum (if any) additional workload in relation to this request once given a chance to settle into my position. Any concerns could be handled and discussed at the current weekly property management meetings.
While it is apparent that Cindy still has your full support despite my advise of ongoing bullying and harassment I beleive that there is an obligation and duty of care which needs to be addressed and enforced in regards to this issue, my health, safety, ongoing employment and well being all of which are of genuine concern.
When discussing the above requirements as a minimum request to moved forward you made the comment that “I” was the one now stating that “I would not work with Cindy”. That is a really unfair comment. Cindy has brought this situation to the fore - it is not something I instigated, not something I was party to, nor was it something I even considered prior to the fall out of the meeting held on Friday 19th July 2019. However, I have been placed in a position were I need to request protection for myself and to ensure that Cindy has no further influence on my employment - that shouldn’t be seen as a “fault”.
It should have been a given.
I am respectfully requesting that you approve the conditions detailed above, that I am provided with fair and unbiased consideration and that I am not expected to continue working directly under Cindy.
Awaiting your response.
On the evening of 23 July 2019 Mr Calpakdjian phoned Ms Mullan to find out what she had decided. Ms Mullan confirmed that it remained her preference to continue employment, but that she believed Ms Evans should be removed from her position as Ms Mullan’s immediate supervisor and that Ms Mullan should report directly to Mr Calpakdjian. Mr Calpakdjian responded that they have moved her desk already, but Ms Evans would remain as Ms Mullan’s manager. Ms Mullan expressed the view that Ms Evans’ conduct towards her constituted bullying and harassment from which she needed to be protected, although Mr Calpakdjian denies that this was said.[47] I accept that during this conversation Ms Mullan conveyed to Mr Calpakdjian that she believed Ms Evans’ conduct amounted to bullying and harassment and that she needed to be protected from it. Again, Ms Mullan’s evidence has been detailed and consistent, in contrast to the less detailed evidence given by Mr Calpakdjian and his inability to recall various details.
[47] Affidavit of Ms Mullan filed on 16 June 2021 at [83]-[90] (CB 160-161); affidavit of Mr Calpakdjian filed on 19 August 2021 at [61]-[63] (CB 504); transcript, 13 October 2021 at p 35 (albeit, in cross-examination, Mr Calpakdjian’s evidence was that he could not recall Ms Mullan saying that she needed to be protected from Ms Evans, rather than denying it).
Ms Mullan recorded her recollection of this telephone conversation in an email sent on 24 July 2019, in which she said:[48]
[48] Affidavit of Ms Mullan filed on 16 June 2021 at Annexure GM-14 (CB 231); affidavit of Mr Calpakdjian filed on 19 August 2021 at Annexure CC-12 (CB 568).
With reference to our phone call 23rd July 2019 at 7.06pm in relation to an update, my return to work and steps taken to resolve the work place bullying and harassment by my immediate line manager - Cindy Evans I wish to clarify the following:
1.You have confirmed that you have now relocated my work station to a location whereby I no longer sit with my back to Cindy Evans - my immediate line manager or other staff members.
2.You have denied my request to report directly to yourself (as an alternative senior member of staff) and ensure that Cindy Evans no longer has any role, influence or control of my work load and/or employment.
3.That you will now email me a copy of a Grievance Report Form for completion and return to the office.
Item 2, above was requested as a minimum requirement to ensure that I could return to work feeling somewhat protected and secure in the knowledge that Cindy’s obvious actions and attempt to impact on my work and bring about my termination was minimised.
I had previously advised you during a meeting on Thursday 18th July 2019 that she was unnecessarily micro managing my portfolio, and had been critical of my actions in communicating with a tenant regarding the notification of the change of property managers. This criticism was without due cause or reason and only one of multiple instances which were of concern
You, yourself witnessed Cindy’s outburst (Friday 19th July 2019) and forceable claims that she had no intention of working with me. I advised you of her inappropriate criticism in relation to the booking of and attendance at routine inspections (as per her instructions) and her then intimidating response to this as per phone sms messages. You also confirmed during the same meeting on 19th July 2019 that if it came down to a decision between Cindy or myself then your decision would have to be with Cindy - detailed in my email dated 20th July 2019.
Your action in relocating my desk confirms that you consider that there is an obvious issue however apart from this small gesture there has been no apparent action by management to address my complaint of bullying and harassment by Cindy for the purpose of seeking the termination of my employment.
It is also apparent that despite Cindy actions, conduct and behaviour she still has your full support and backing.
Therefore, your decission to deny my request to have Cindy removed as my immediate manager is a serious breach of an employers duty of care to ensure that I am provided with a safe and secure working environment, free from risk to my health both mentally and psychologically, to ensure that the possibilities of further victimisation is minimised and that I am not placed in a position of suffering undue stress.
Please note that given both your voiced and apparent unwavering support of Cindy, that you witnessed her actions and behaviour for yourself and did not seem surprised by it, that there has been an apparent failure to fulfil a duty of care and provide a safe working environment, Cindy’s continued role as my direct line manager offers no assurances that a reoccurrence or attempts to undermine my employment would not be undertaken, therefore I request that the formal Grievance Report Form once completed is investigated by a mutually independent body.
Mr Calpakdjian informed Ms Mullan that she could lodge a formal grievance and she indicated that she would like to do so.[49] Mr Calpakdjian sent an email to Ms Mullan attaching a grievance form for her to complete.[50] The email attaching the grievance form included the following information:[51]
As your allegation is of a serious nature to us we wish to investigate it, and address it appropriately in accordance with the Company’s policies and procedures. However, in order to effectively and efficiently do so we will require some further information, including dates, time, statements and names of any witness’ to the incidents that took place.
In order to conduct our investigation we have attached a grievance lodgement form for you to provide further particulars and obtain your response to these issues in order to ascertain whether the issues are substantiated and, if so, whether further action may be required. If you wish to formally raise your grievances, please do so with the attached form detailing the particulars by close of business tomorrow.
[49] Affidavit of Ms Mullan filed on 16 June 2021 at [88]-[89] (CB 160-161); affidavit of Mr Calpakdjian filed on 19 August 2021 at [63]-[64] (CB 504).
[50] Affidavit of Ms Mullan filed on 16 June 2021 at [91] and Annexure GM-13 (CB 161, 229); affidavit of Mr Calpakdjian filed on 19 August 2021 at [65] and Annexure CC-11 (CB 504, 565-566)
[51] Affidavit of Ms Mullan filed on 16 June 2021 at Annexure GM-13 (CB 229); affidavit of Mr Calpakdjian filed on 19 August 2021 at Annexure CC-11 (CB 565-566)
Ms Mullan handed a completed grievance form to Mr Calpakdjian in the afternoon of 26 July 2019.[52] In this form, she described the nature of the grievance as:
Bullying and harassment
Attempts of intimidation, targeted micro management
Multiple occasions of inappropriate displiary action
Refusal to work with me – to bring about termination
Derogatory comments made to other staff members.
[52] Affidavit of Ms Mullan filed on 16 June 2021 at [98]-[99] and Annexure GM-15 (CB 162, 233-234); affidavit of Mr Calpakdjian filed on 19 August 2019 at [73] and Annexure CC-15 (CB 505, 576-577).
The date range of the incident was recorded as 1 July 2019 to 19 July 2019. The following details of the grievance were provided:
Ongoing attempt to intimidate – since employment.
Targeted micro management – since employment.
Inappropriate disciplinary action 17/7/2019 + 19/7/2019
Stated refusal to work with me in an attempt to have my employment terminated 19/7/2019.
Accusations that I wanted her position 19/7/2019.
Derogatory comments made to other staff members – 19/07/2019.
Mr Calpakdjian sent an email to Ms Mullan on the evening of 26 July 2019 confirming that he had received the grievance form. He indicated that he would be on leave the following week and would have a meeting with Ms Mullan about the grievance upon his return.[53]
[53] Affidavit of Mr Calpakdjian filed on 19 August 2021 at [75] and Annexure CC-16 (CB 505, 579); affidavit of Ms Mullan filed on 16 June 2021 at [100] and Annexure GM-16 (CB 162, 236).
Mr Calpakdjian intended that Ms Vicki Knight, the Head of Property Management WA at Harcourts’ Head Office, investigate the grievance.[54]
[54] Affidavit of Mr Calpakdjian filed on 19 August 2021 at [74] (CB 505).
While Mr Calpakdjian was on leave in the week of 29 July 2019 to 2 August 2019, Ms Evans sent to him at least two emails providing updates on varying matters that had happened in the office. Some of the updates related to Ms Mullan, including:
(a)in an email sent on 30 July 2019 at 6.45pm, Ms Evans said:[55]
[55] Affidavit of Ms Mullan filed on 14 September 2021 at Annexure GM-35 (CB 341).
Had a complaint about Geraldine today which I’m sorting out re … Jubilee St tenants that are not happy.
(b)in an email sent on 31 July 2019 at 6.02pm, Ms Evans said:[56]
… Jubilee Street matter is continuing with Geraldine – herself and the Tenants don’t get on at all – I spent 30 mins on phone with them and then with owner at home last night trying to sort out. All of a sudden [the owners] want them gone (they are vacating in 2 weeks anyway) as they believe [one of the tenants] is a bully etc. Apparently he was rude to the gardening contractor … and it escalated into lack of consideration in organising trades to house to suit them – Geraldine gave them no option, they have a small baby. When I rang [the owner] last night I suggested putting off the remainder of the work for a couple of weeks until the tenants have vacated to which he agreed. He said he would ring the Building contractor today to try and arrange this and would let us know, I asked him to advise Geraldine of this.
I emailed Geraldine early from the office to advise of the above and that [the owner] would be contacting her today.
I got a long email from [the tenants] overnight about everything. I asked Geraldine about it this morning in front of Kelly so it wasn’t one on one, she then told me about an abusive phone call she had from [the tenant] yesterday etc. I said to her that she needs to tell me all this as I had no idea of what they were talking about when I first took their call last night. She still refuses to tell me anything. I then asked her to put all notes in GD as it said nothing. I also asked Kelly to do the same as she did some work on that property whilst I was away and he also mentioned her.
Got back from Home Open at Spring Rd after 5pm and Lyn had taken a call from the Tenants complaining about Geraldine once again. I rang them, there was a scheduled Home Open at the house which they were aware of 4:30pm – 4:45pm. They told me that she arrived at the door with 4 people, didn’t introduce herself and just quickly showed the people around (excluding Garage area). She left at 4:35pm. After she drove off 2 more groups arrived knocking on the door asking to come in. He told them the PM had left already.
…
I’ve still been doing Home Opens to help out Geraldine but I have plenty of my own to worry about now so I’ll ask Aimee to do one tomorrow afternoon if that’s ok.
[56] Affidavit of Ms Mullan filed on 14 September 2021 at Annexure GM-35 (CB 342); affidavit of Ms Evan filed on 19 August 2021 at Annexure CE-9 (CB 795).
On 6 August 2019 Mr Calpakdjian and Ms Mullan had a meeting in relation to the grievance. Mr Calpakdjian and Ms Mullan both agree that in that meeting, Mr Calpakdjian advised Ms Mullan that she would need to provide more information and that Mr Calpakdjian would ask Ms Knight to conduct the investigation.[57] Ms Mullan gave evidence that she told Mr Calpakdjian that he already had all of the relevant information, based on what she had told him previously, what he had witnessed in the meeting on 19 July 2019 and the emails she had sent to him, and she felt that Ms Evans was becoming more underhanded in her attempts to undermine and discredit Ms Mullan’s employment.[58] Ms Mullan also gave evidence to the effect that she raised concerns about Ms Knight’s impartiality, given that Ms Knight held a long private meeting with Ms Evans the previous week. She further said that Mr Calpakdjian said to her that to proceed further with the grievance would only result in further inciting the situation and it would be her word against his and four of his staff members.[59] Mr Calpakdjian denies saying this latter comment. Mr Calpakdjian cannot recall the precise details of the conversation, but recalls that when he asked Ms Mullan for more documents she said words to the effect of ‘I am probably not going to pursue it’, which Ms Mullan denies.[60] It is unnecessary to make findings about precisely what was said at this meeting. I accept that Mr Calpakdjian requested further information, Ms Mullan believed at the meeting that Mr Calpakdjian had all of the information that he required, and Ms Mullan did not want Ms Knight to investigate her complaint. I accept that Mr Calpakdjian believed that Ms Mullan indicated she was unlikely to pursue the complaint and that this in part informed his later belief that the grievance was not being pursued.
[57] Affidavit of Ms Mullan filed on 16 June 2021 at [107]-[108] and [112] (CB 163-164); affidavit of Mr Calpakdjian filed on 19 August 2021 at [81] and [84] (CB 506).
[58] Affidavit of Ms Mullan filed on 16 June 2021 at [108]-[111] (CB 163-164).
[59] Affidavit of Ms Mullan filed on 16 June 2021 at [112]-[113] (CB 164).
[60] Affidavit of Mr Calpakdjian filed on 19 August 2021 at [81]-[82] (CB 506); affidavit of Ms Mullan filed on 14 September 2021 at [77] (CB 312); transcript, 29 September 2021 at p 112.
Following the meeting Mr Calpakdjian sent to Ms Mullan an email which referred to the further information required and relevantly said:[61]
… to ensure your grievance is investigated correctly the following is required.
More detail of the complaints made in your grievance report.
Please include any written evidence you may have such as text messages or emails you may have received from the other person involved.
Name of any person that may have witnessed any of the alleged actions or that were recipients of the “derogatory comments” you mentioned.
Upon receipt of this information your grievance report will be promptly and thoroughly investigated.
[61] Affidavit of Mr Calpakdjian filed on 19 August 2021 at [84] and Annexure CC-18 (CB 506, 583).
Ms Mullan never provided any further information in response to the email or more generally in relation to the grievance while she was employed at Harcourts.[62]
[62] Affidavit of Mr Calpakdjian filed on 19 August 2021 at [84]-[85] (CB 506); transcript, 29 September 2021 at p 112.
On 12 August 2019 Ms Mullan approached Mr Calpakdjian to express concerns that Ms Evans was continuing to undermine her employment, that another property had been withdrawn from her portfolio with no reason provided and that Ms Evans was issuing work orders on properties managed by Ms Mullan without her knowledge or authorisation. Ms Mullan was particularly concerned about the issuing of work orders on her properties because it had the potential to directly impact her employment and the performance of her duties. Mr Calpakdjian told Ms Mullan to speak with Ms Evans about this.[63] Mr Calpakdijan recalled talking to Ms Mullan about a work order and informing Ms Mullan that she needed to address the issue with Ms Evans, but was otherwise unable to recall the exact conversation.[64]
[63] Affidavit of Ms Mullan filed on 16 June 2021 at [118]-[119] (CB 165).
[64] Affidavit of Mr Calpakdijan filed on 19 August 2021 at [86]-[89] (CB 507), transcript, 13 October 2021 at p 48-49.
Ms Mullan then asked Ms Evans if they could chat in private. Ms Evans agreed and asked Ms Taylor to come with her to the meeting and Ms Mullan asked Mr Phil Calpakdjian to attend as a witness.[65]
[65] Affidavit of Ms Mullan filed on 16 June 2021 at [121]-[123] (CB 165-166); affidavit of Ms Evans filed on 19 August 2021 at [105] (CB 731-732); affidavit of Ms Taylor filed on 19 August 2021 at [15] (CB 831).
Ms Mullan’s evidence was that at the meeting she indicated that she wished to discuss a couple of issues, including an invoice that she had received which related to a work order for a property on her portfolio which she knew nothing about and which, upon checking the corresponding work order, she learned had been issued by Ms Evans without Ms Evans informing her. Ms Mullan explained that it was making it difficult for her to get a handle on her portfolio and did not know why she had not been advised of the work order and was concerned with the implications it could have on her. Ms Evans responded that the notes are in GeeDee (which is a software program used by Harcourts). Ms Mullan said that putting notes in GeeDee was not helpful and she did not have time to read the notes, and that Ms Evans was also contacting owners after-hours in relation to properties in Ms Mullan’s portfolio. Ms Taylor attempted to interrupt, Ms Mullan asked her not to speak and Ms Evans did not engage with Ms Mullan.[66] The meeting ended soon afterwards.[67]
[66] Affidavit of Ms Mullan filed on 16 June 2021 at [124]-[130] (CB 166); transcript, 29 September 2021 at p 113-114.
[67] Affidavit of Ms Mullan filed on 16 June 2021 at [131] (CB 166).
Ms Evans’ evidence was that Ms Mullan said that Ms Evans was micromanaging her and interfering with her portfolio. Ms Evans responded that it was her (Ms Evans’) job to supervise the files, she was trying to assist and there were notes in the system, to which Ms Mullan responded that she did not have time to read the notes.[68]
[68] Affidavit of Ms Evans filed on 19 August 2019 at [106](CB 732)
Ms Mullan and Ms Taylor both subsequently sent emails in relation to the meeting.[69] Ms Mullan’s email was sent to Ms Evans and Mr Calpakdjian and read:[70]
With reference to our discussion of this morning following the discovery I made that you have had ongoing communications with some of the owners and tenants within my portfolio, most of which seems to be happening out of office hours and that you have also been issuing work orders regarding a number of properties without bringing any of this to my attention. Some of which has then resulted in you then advising me that you are removing the property from my management.
As discussed I find your actions to be unfair and that it is making it extremely difficult for me to get a handle on what is occurring within my own portfolio and/or to build up a relationship with the owners and tenants alike especially as you are failing to make me aware of any of the communications you are having and/or what actions you are putting in place without my knowledge. This also disrespects my position.
While I understand that at times we all have the need to cover for each other when of sick or on leave however it is another matter when these actions are occurring when I am in the office and fully capable of attending to the issues at hand.
Going forward I request that you refer all owners and tenants under my management to myself so that I can deal with them direct or forward any emails received. If at any time you have the occasion to handle this differently then please ensure that you bring your communications and actions to my attention and not just by putting notes in the GD. As you are aware we all have a lot to do and as such we do not go into each and every property/owner/tenant card every day to see if there has been any update made by another party that we are all unaware off.
Hope to have your co-operation on the above going forward. Thanks
[69] Affidavit of Ms Mullan filed on 16 June 2021 at [132] and Annexure GM-17 (CB 166, 238); affidavit of Ms Taylor filed on 19 August 2021 at [17] and Annexure KT-1 (CB 832, 837).
[70] Affidavit of Ms Mullan filed on 16 June 2021 at [132] and Annexure GM-17 (CB 166, 238); affidavit of Mr Calpakdijan filed on 19 August 2021 at Annexure CC-20 (CB 588); Affidavit of Ms Evans filed on 19 August 2021 at Annexure CE-12 (CB 818).
Ms Evans acknowledged the email without commenting on its substance.[71]
[71] Affidavit of Ms Mullan filed on 16 June 2021 at [132] and Annexure GM-17 (CB 166, 239); affidavit of Ms Evans filed on 19 August 2021 at Annexure CE-13 (CB 821).
Ms Taylor’s email regarding the meeting was sent to Mr Calpakdjian and provided her summary of the meeting. Ms Taylor indicated that during the meeting Ms Mullan accused Ms Evans of interfering with her portfolio without her permission, asked for the reason Ms Evans had taken back two properties without asking her first and why Ms Evans had made a work order in her folio on 27 July 2019. Ms Taylor records that Ms Evans explained that the reasons for changing the properties was that the owner had asked her to do so due to her prior relationship with them and also, one management was finishing up soon and the other was due for complicated maintenance which Ms Evans was already familiar with. Ms Taylor recorded that Ms Mullan accused Ms Evans of interfering with her portfolio without permission or notification and Ms Evans explained that there were notes in the system and it wasn’t her intention to make waves. Ms Mullan responded that she didn’t have time to read the notes. In the email, Ms Taylor expressed her own opinion that calling the meeting without notice was a poor choice and it was inappropriate for Ms Mullan to reprimand her superior in this way. Ms Evans dealt well with the pressure Ms Mullan was applying and accepted the criticism without retaliating.[72] In her evidence to the Court, Ms Taylor indicated that she could not recall the exact words used in the conversation, but her email accords with her memory of what happened in that conversation.[73]
[72] Affidavit of Ms Taylor filed on 19 August 2021 at [17]-[18] and Annexure KT-1 (CB 832, 837-838).
[73] Affidavit of Ms Taylor filed on 19 August 2021 at [17]-[18] (CB 832).
On 20 August 2019 while many of Ms Mullan’s colleagues were attending a CPD course away from Harcourts’ office, Ms Mullan responded to a workplace survey emailed to her by Harcourts Head Office. Ms Mullan gave evidence that, in her responses, she said that she was suffering from workplace stress with the cause related to her work colleagues.[74] I note that there is no detail of those responses in evidence before the Court. The survey was anonymous and there is no evidence that Mr Calpakdjian or Ms Evans saw the answers to the survey prior to Ms Mullan’s dismissal.
[74] Affidavit of Ms Mullan filed on 16 June 2021 at [142]-[144] (CB 168).
On 20 August 2019 Ms Mullan was dismissed from her employment at Harcourts. The circumstances of the dismissal and the reasons for dismissal are more conveniently discussed below.
ALLEGATIONS OF UNLAWFUL ADVERSE ACTION
Relevant legislation
Section 340(1) of the Fair Work Act provides:
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.
The terms ‘adverse action’ and ‘workplace right’ are defined in the Fair Work Act.
The term ‘workplace right’ is defined in s 341(1), which provides:
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.
Pursuant to s 342(1), an employer takes adverse action against an employee if 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.
In determining whether an employer has taken adverse action against an employee because of a particular reason, it is necessary to have regard to ss 360 and 361 of the Fair Work Act.
Section 360 addresses the determination of whether action was taken because of a particular reason where there are multiple reasons for taking the action. The section provides:
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Section 361 puts the onus of proof on the employer to establish that an action was not taken for a reason that contravenes a provision in Part 3-1 of the Fair Work Act. Subsection 361(1) provides:
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.
The principles that inform the Court’s approach to its task under ss 360 and 361 are well-established. They are conveniently summarised in Alam v National Australia Bank Limited (2021) 288 FCR 301; [2021] FCAFC 178 (Alam) at [14]:
Several matters bearing upon the application of s 361 in relation to s 340 are settled:
(a)in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute “adverse action” and the particular reason or particular intent with which it is said the action was taken: Short v Ambulance Victoria (2015) 249 IR 217 (Dowsett, Bromberg and Murphy JJ) at [55];
(b)the party making the allegation that adverse action was taken “because” of a particular circumstance must establish the existence of that circumstance as an objective fact: Tattsbet Ltd v Morrow (2015) 233 FCR 46 at [119]. That is, it is for the applicant to establish all the elements of the alleged contravention other than the reasons of the respondent for taking the adverse action: Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 (ABCC v Hall) at [100];
(c)an employer takes adverse action in contravention of s 340 if a proscribed reason is a “substantial and operative” reason for the action or if the reasons for the action include the proscribed reason: [Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 (Bendigo v Barclay)] at [104] (Gummow and Hayne JJ);
(d)the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision-makers to give direct evidence of their reasons for taking the adverse action: Bendigo v Barclay at [43]-[44];
(e)the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding: Bendigo v Barclay at [41], [45] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 (CFMEU v BHP Coal) at [7] (French CJ and Kiefel J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 (CFMEU v Anglo Coal) at [27]; ABCC v Hall at [19];
(f)while the evidence of the decision-maker as to the reasons for the taking of the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre-condition: CFMEU v BHP Coal at [192]; Australian Red Cross Society v Queensland Nurses’ Union of Employees (2019) 273 FCR 332 at [72];
(g)the Court’s rejection of the evidence of the decision-maker as to the reasons for the adverse action will ordinarily be “a weighty consideration and often a determinative consideration” in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action (Cummins South Pacific Pty Ltd v Keenan (2020) 281 FCR 421 at [116]), but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated: ibid; CFMEU v Anglo Coal at [27]; Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 at [272]. When there is evidence of a broad range of facts and circumstances, which are not dependent on acceptance of the decision-maker’s evidence about his or her asserted reason for the dismissal, such evidence must be taken into account in assessing whether the reasons asserted by an applicant were a substantial and operative reason for the action; ibid at [113]; TechnologyOne Ltd v Roohizadegan (2021) 309 IR 262 at [105]-[106];
(h)even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption: National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139 at [20]; PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 at [154] (Snaden J);
(i)the decision-maker’s knowledge of the circumstance asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance: Bendigo v Barclay at [62]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) (2012) 228 IR 195 at [80] (Jessup J); Shea v TRUenergy Services Pty Ltd (No 6) (2014) 242 IR 1 at [777]. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason: CFMEU v BHP Coal at [20], [87]-[88]; Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 at [32], [47]-[48] (Jessup J); and
(j)adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition: CFMEU v BHP Coal; Endeavour Coal at [52] (Perram J).
Ms Mullan asserts that Mr Calpakdjian and Ms Evans were involved in the contraventions by Harcourts, pursuant to s 550 of the Fair Work Act, which provides:
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a)has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d)has conspired with others to effect the contravention.
In relation to the claim that Ms Evans advised, encouraged or incited Harcourts to dismiss Ms Mullan from her employment, the relevant legislation is s 362 of the Fair Work Act, which provides:
(1) If:
(a)for a particular reason (the first person’s reason), a person advises, encourages or incites, or takes any action with intent to coerce, a second person to take action; and
(b)the action, if taken by the second person for the first person’s reason, would contravene a provision of this Part;
the first person is taken to have contravened the provision.
(2) Subsection (1) does not limit section 550.
Did Ms Mullan exercise a workplace right?
Workplace rights
Ms Mullan claims that at all material times she had the following workplace rights:
(a)a right to make a complaint or inquiry in relation to her employment pursuant to s 341(1)(c)(ii) of the Fair Work Act and the Award (Complaint and Inquiry Workplace Right), including in respect of her working conditions and arrangements and ensuring compliance with the terms of the Award, the Occupational Safety and Health Act 1984 (WA) (OSH Act)[75] and the Fair Work Act;[76]
(b)a right within the meaning of s 341(1) of the Fair Work Act as she was entitled to the benefit of a workplace law in respect of her benefit under s 19 of the OSH Act which required that Harcourts, so far as was practicable, provide and maintain a working environment in which the employees of Harcourts were not exposed to hazards (Safe Workplace Right), including through workplace bullying and harassment;[77]
(c)a right within the meaning of s 341(1) of the Fair Work Act as a result of having a role or responsibility under s 20 of the OSH Act to ensure she took reasonable care for her own safety and health while at work (Health and Safety Workplace Right);[78]
(d)a right within the meaning of s 341(1) of the Fair Work Act as she was entitled to the benefit of a workplace law and able to initiate or participate in a process or proceedings under a workplace law or workplace instrument and as such had an entitlement and ability to make a claim for workers’ compensation and/or receive benefits for compensation under the Workers’ Compensation and Injury Management Act 1981 (WA) (Workers Compensation Workplace Right) in respect of any injuries suffered at work;[79] and
(e)a right within the meaning of s 341(1) of the Fair Work Act as she was entitled to the benefit of a workplace law and able to initiate or participate in a process or proceedings under a workplace law or workplace instrument, in respect of her entitlement and ability to make an application to the Fair Work Commission seeking orders to stop workplace bullying under Part 6-4B of the Fair Work Act (Anti-Bullying Workplace Right).[80]
[75] This Act was repealed on 31 March 2022 but was in effect at all relevant times relevant to this proceeding.
[76] Further Amended Claim at [12].
[77] Further Amended Claim at [13].
[78] Further Amended Claim at [14].
[79] Further Amended Claim at [15].
[80] Further Amended Claim at [16].
The evidence of Mr Calpakdjian and Ms Mullan suggests that these were also the reasons given orally at a meeting that took place on 20 August 2019 at which Mr Calpakdjian advised Ms Mullan that her employment was terminated.[112]
[112] Affidavit of Mr Calpakdjian filed on 19 August 2021 at [115] (CB 511); affidavit of Ms Mullan filed on 16 June 2021 at [151] (CB 169); transcript, 29 September 2021, p 117-118; transcript, 13 October 2021, p 62.
Mr Calpakdjian elaborated on some of the reasons for dismissal in his affidavit filed on 19 August 2019, where he deposed:[113]
[113] Affidavit of Mr Calpakdjian filed on 19 August 2019 at [102], [109] (CB 509, 510). This evidence was admitted only for the purpose of evidencing Mr Calpakdjian’s state of mind, and not for the truth of the underlying assertions.
102.Her negativity was having a real impact on the team in the office. The atmosphere was unpleasant as Geraldine’s nature is quite imposing. It is hard for me to describe what I mean by this, but Kelly’s email sums up some of the factors, for example, Geraldine ‘hushing’ Kelly, calling the meeting with her supervisor without notice and applying pressure on Cindy. Her performance was not where I thought it would be, she had missed NTD checks, not returned calls and not following our procedures. There had been complaints from tenants and owners (in the space of only 6 or so weeks).
…
109.…the disagreements with tenants, Geraldine’s performance and the atmosphere in the office were at the forefront of my mind, including:
(a)Geraldine’s conduct at the meeting recounted by Kelly on Monday.
(b)Geraldine’s repeated mistakes and failure to follow company procedures by not completing GeeDee notes on her files and failing to conduct NTD checks (not adhering to the checklist at all times).
(c)Repeated complaints and issues with tenants. Most recently, Geraldine’s refusal to see a tenant at reception the day before.
(d)Failing to follow reasonable management direction. For example, she processed an application for … Gray Road for a tenant who was previously bankrupt. We had previously rejected these tenants on that basis, but Geraldine processed the tenant’s application, nonetheless.
(e)There was also what I considered to be a reasonable request by telephone from Cindy to Geraldine asking her to pick up a sign board on her way to work as the property had been leased. The request was made to Geraldine as it was close to her residential home. The signs are not large or heavy and she would have had no issues transporting it in our company vehicles. Geraldine refused this request on the basis that she had never had to do it in the past. This request was routine and consistent with the duties of a property manager at Harcourts.
Ms Mullan disputes the reasons given by Mr Calpakdjian. This can first be seen in her email responding to the written notice of termination that she sent on 20 August 2019, where she said:[114]
Please note that I dispute your reasons for termination as per the following:
1.NTD checks - these were completed following direction that these were required as per company policy including on the two most recent lease applications received, screened, discussed with and confirmed with the applicable owners. This can be proved.
2.Failing to collect the “for lease” sign from 3 Lomond Way. I had requested confirmation from Cindy if this would fit in my small car prior to collection - confirmation which she never provided. This is also not a normal task which Property Managers undertake and in sixteen years of property management experience something which I have never previously been requested to do. I was also advised that this is a duty Nadia would normally arrange the collection of.
3.Refusal to see tenants at reception - this occurred once on 15th August 2019 when the tenants of … Jubilee Street where returning the property keys. These tenants have been abusive to me on multiple occasions (again something which can be backed up and proved). I had not refused to meet with them as such but politely request if Lyn minded telling them I was not in the office. Note: I am also fully aware of other occasions when your staff have refused to take phone calls or request another member of staff attend to someone in reception on their behalf. The occasion in question was a simple key return from vacating tenants and something which the receptionist would normally do anyway and then leave the key return pack on the property manager’s desk.
4.Written and phone complaints - given that the only complaints I am aware of came from either ex tenants of Cindy’s or tenants who even owners admitted were difficult to work I despute the validity of this claim. Again something I am happy to prove as being invalid.
5.Failing to follow reasonable management direction - is open for dispute given the previously reported and ongoing complaint lodged with regard to my immediate manager - Cindy Evans. Her claims that she refused to work with me and your voiced an obvious ongoing support, lack of disciplinary action following my initial complaints regarding the same and my further advise to you that Cindy had now become more devious in her attempts to undermine my employment. Which now seems that you have been fully supporting. I was/am fully aware that Jo had been engaged to check up on me and was reporting back to you.
[114] Affidavit of Ms Mullan filed on 16 June 2021 at Annexure GM-20 (CB 245).
Ms Mullan offered further explanation about some of these matters in her evidence to the Court:
(a)In relation to the failure to perform NTD checks, Ms Mullan said that she had been unable to perform the NTD checks as she had not been provided with log in details until 13 August 2019, after which all NTD checks were performed.[115]
(b)In relation to the failure to collect the ‘for lease’ sign, Ms Mullan said that she did not ‘refuse’ to collect it and she did not fail to follow reasonable management directions. She had not been advised that it was company policy for Property Managers to collect signs, and she had not previously been requested to do this in her time in the property management industry. She did not refuse to collect the sign but rather asked if it would fit in the boot of her car. The request then slipped her mind until her final day of employment.[116]
(c)The explanation Ms Mullan gave for refusing to see outgoing tenants at reception is summarised above at [114] to [115].
[115] Affidavit of Ms Mullan filed on 16 June 2021 at [170] (CB 171).
[116] Affidavit of Ms Mullan filed on 16 June 2021 at [178]-[180] (CB.172).
In considering whether Mr Calpakdjian’s reasons for dismissing Ms Mullan from her employment included a prohibited reason, it is not necessary to decide whether Mr Calpakdjian’s reasons for terminating Ms Mullan’s employment were based on the correct facts. Dismissing an employee based on a mistaken belief will not necessarily amount to a contravention of s 340(1): see, for example, Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273; [2015] FCAFC 157 at [37] (per Jessup J) [133]-[135] (per Rangiah J), where the majority found that the employee had not contravened s 340(1) by dismissing an employee because they believed he had dishonestly taken sick leave, when in fact he was genuinely unwell. The reason for dismissal was not the fact that the employee had taken sick leave, but rather the (mistaken) belief that the employee was dishonest.
I accept that Mr Calpakdjian’s reasons for terminating Ms Mullan’s employment were those set out in the termination letter and did not include a prohibited reason.
I acknowledge that Ms Mullan has offered a different interpretation of the events that give rise to some of the reasons for dismissal, and that Mr Calpakdjian may not have had all of the information which is now said to be relevant at the time he made his decision to terminate Ms Mullan’s employment. However, I do not accept that the reasons offered by Mr Capakdjian were contrived or that they were not the immediate and operative reasons for terminating Ms Mullan’s employment. On the evidence before the Court, there was a reasonable basis for him or, where informed of a matter by Ms Evans, Ms Evans to believe the substance of the conduct alleged to have been engaged in by Ms Mullan. For example:
(a)While there is a dispute between the parties as to when Ms Mullan was able to access the REIWA database to conduct NTD checks, there is no dispute that prior to 13 August 2019, Ms Mullan did not conduct NTD checks.[117]
(b)It is not disputed that Ms Evans asked Ms Mullan to collect the for lease sign and, irrespective of her reasons, she did not do so.[118]
(c)Ms Mullan has acknowledged that she did not see the outgoing tenants of the Jubilee Street property when they were at reception, and asked the receptionist to advise them that Ms Mullan was not there.[119]
(d)There is evidence before the Court of complaints made in relation to Ms Mullan. In addition to the tenants at the Jubilee Street property, there is also a clear complaint in relation to Ms Mullan leaving a different property in a state that was not in accordance with the request of the tenant.[120] It is unnecessary to determine whether the complaints were justified or not (and indeed, it would not be possible to meaningfully express a view on this given the lack of evidence from the complainants).
[117] Affidavit of Ms Mullan filed on 16 June 2021 at [170] (CB 171); Affidavit of Ms Mullan filed on 14 September 2021 at [170] (CB 326).
[118] Affidavit of Ms Mullan filed on 16 June 2021 at [180] (CB 172).
[119] Affidavit of Ms Mullan filed on 16 June 2021 at [182] and Annexure GM-20 (CB 173, 245).
[120] Affidavit of Mr Calpakdjian filed on 19 August 2021 at [71]-[72] and Annexure CC-14 (CB 505, 573).
I do not accept that there was any strategy or intention on the part of Mr Calpakdjian to dismiss Ms Mullan from her employment from around 22 July 2019 and that Mr Calpakdjian was simply seeking to close out her grievance against Ms Evans so that he could dismiss Ms Mullan from her employment. This submission advanced on behalf of Ms Mullan appears to be based on notes of telephone conversations made by Employsure in relation to the advice given to Mr Calpakdjian.[121] I make no adverse inference against Mr Calpakdjian as a result of him raising the possibility of terminating Ms Mullan’s employment on or around 22 July 2019, or from any advice that may have been given about the risk of a general protections claim if he terminated Ms Mullan’s employment at that time or without closing out the grievance. It is perfectly understandable that Mr Calpakdjian raised the possibility of terminating Ms Mullan’s employment with Employsure because that was precisely what she requested that he do and it is equally understandable that, upon Mr Calpakdjian discussing Ms Mullan’s request, in which she also raised her concerns about Ms Evans’ conduct, with Employsure, Employsure would make him aware of the risk of a general protections claim. Mr Calpakdjian was genuine in his evidence that he wanted to try and work things out and have Ms Mullan remain in her employment after she made her complaint against Ms Evans on 20 July 2019. He expressed this view in an email to her before he sought any advice, and his actions in the following days were not inconsistent with his expressed view.[122] To this end, I draw no adverse inference against Mr Calpakjian’s refusal to have Ms Mullan report directly to him, taking into account the evidence that he did not generally involve himself with the day-to-day running of the office, and taking into account the size of the property management team, which comprised only three people: Ms Evans, Ms Taylor and Ms Mullan.
[121] Exhibit 1 (CB 1032).
[122] Affidavit of Mr Calpakdjian filed on 19 August 2021 at Annexure CC-6 (CB 549).
I then turn to consider whether any of the prohibited reasons alleged by Ms Mullan comprised a reason for dismissal.
I do not accept Ms Mullan’s assertion that she was dismissed because she exercised a workplace right by making one or more of the complaints and inquiries identified above. The most significant of the complaints and inquiries made by Ms Mullan was the grievance against Ms Evans. I accept Mr Calpakdjian’s evidence that he believed that the grievance was not being pursued by Ms Mullan. There is a dispute in the evidence as to whether, in the meeting that took place on 6 August 2019, Ms Mullan asserted that she was probably not going to pursue the grievance.[123] However, irrespective of whether that comment was or was not made, the email that Mr Calpakdjian sent to Ms Mullan on 6 August 2019 made clear that further information was required, gave Ms Mullan an opportunity to provide that further information and clearly indicated that once the further information was received, the grievance would be investigated.[124] Mullan did not at any stage provide further information in response to this email.[125] Mr Calpakdjian gave clear evidence in both his affidavit and his oral evidence to the Court that the grievance and complaints did not weigh on his mind at the time he made the decision to terminate Ms Mullan’s employment.[126]
[123] Affidavit of Ms Mullan filed on 14 September 2021 at [77] (CB 312); Affidavit of Mr Calpakdjian filed on 19 August 2021 at [85] (CB 506).
[124] Affidavit of Ms Mullan filed on 16 June 2021 at [108] (CB163); Affidavit of Mr Calpakdjian filed on 19 August 2021 at [84] (CB 506).
[125] Affidavit of Mr Calpakdjian filed on 19 August 2021 at [85] (CB 506); transcript, 29 September 2021 at p 112; transcript, 30 September 2021 at p 204.
[126] Affidavit of Mr Calpakdjian filed on 19 August 2021 at [108] (CB 510); transcript, 13 October 2021 at p 67, 78.
I also do not accept that Ms Mullan was dismissed because she exercised her Health and Safety Workplace Right. It will be recalled that the basis on which Ms Mullan asserted that she exercised this right was in refusing to see one of the outgoing tenants of the Jubilee Street property due to concerns for her health and safety. It will also be recalled that one of the reasons for termination was because Ms Mullan refused to see these tenants at reception. Some employees of Harcourts, including Ms Taylor and Ms Evans, were aware that the tenants of the Jubilee Street property had been rude or abusive to Ms Mullan during a telephone conversation, and the email that Ms Evans sent to Mr Calpakdjian on 31 July 2019, set out at [52] above, referred to Ms Mullan saying that she had received an abusive phone call from the tenants. In cross-examination, Mr Calpakdjian indicated that he was not aware that the tenants had been abusive to Ms Mullan and did not recall seeing any email from Ms Evans indicating that the tenants had been abusive.[127] I accept that Mr Calpakdjian did not know the tenants had been abusive to Ms Mullan, notwithstanding that he received the email from Ms Evans.
[127] Transcript, 13 October 2021 at p 69.
However, there is no evidence to suggest that Mr Calpakdjian was aware or had any reason to believe that Ms Mullan considered that she was exercising her Workplace Health and Safety Right or otherwise refusing to see the tenants because of any concerns for her health and safety. There is no evidence before the Court that Ms Mullan, or any other person, expressed to Mr Calpakdjian that she felt unsafe dealing with these tenants and there is no evidence that she communicated to anyone at Harcourts, at the time she refused to see the tenants, that her reason for doing so was because she had concerns for her health and safety. I accept that one of the reasons for terminating Ms Mullan’s employment was her refusal to see these tenants, but I do not accept that this amounts to dismissal for reason of the exercise of her Health and Safety Right in circumstances where she did not disclose to Mr Calpakdjian or any other person at Harcourts that she refused to see the tenants because of concerns for her health and safety.
There is no evidence from which I draw any inference that Mr Calpakdjian decided to terminate Ms Mullan’s employment because she had or proposed to exercise her Safe Workplace Right or her Workers’ Compensation Workplace Right or to prevent her from exercising her Workers’ Compensation Workplace Right or her Anti-Bullying Workplace Right.
Conclusion in relation to the alleged contraventions of ss 340(1) and 362 of the Fair Work Act
The adverse action claims are not established. Although I accepted that adverse action was taken against Ms Mullan, both during her employment and in dismissing her, the reasons of Harcourts (through Ms Evans in relation to the adverse action during employment and Mr Calpakdjian in relation to dismissal) for taking adverse action against Ms Mullan did not include any prohibited reason.
ALLEGATION OF CONTRAVENTION OF NATIONAL EMPLOYMENT STANDARDS
Relevant legislation
Section 44(1) of the Fair Work Act provides that ‘[a]n employer must not contravene a provision of the National Employment Standards’.
The National Employment Standards are set out in Divisions 3 to 12 of Part 2.2 of the Fair Work Act and comprise the ‘minimum standards that apply to the employment of employees which cannot be displaced, even if an enterprise agreement includes terms of the kind referred to in subsection 55(5)’: s 61(1) and (3) of the Fair Work Act.
Section 117 of the Fair Work Act falls within Division 11 of Part 2.2. Subsection 117 provides:
Notice specifying day of termination
(1)An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).
Note 1: Section 123 describes situations in which this section does not apply.
Note 2:Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:
(a) delivering it personally; or
(b) leaving it at the employee’s last known address; or
(c) sending it by pre‑paid post to the employee’s last known address.
Amount of notice or payment in lieu of notice
(2) The employer must not terminate the employee’s employment unless:
(a)the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or
(b)the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.
(3) Work out the minimum period of notice as follows:
(a) first, work out the period using the following table:
Period Employee’s period of continuous service with the employer at the end of the day the notice is given Period 1 Not more than 1 year 1 week 2 More than 1 year but not more than 3 years 2 weeks 3 More than 3 years but not more than 5 years 3 weeks 4 More than 5 years 4 weeks
(b)then increase the period by 1 week if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer at the end of the day the notice is given.
(4)A reference in this section to continuous service with the employer does not include periods of employment as a casual employee of the employer.
As can be seen, note 2 under s 117(1), directs attention to ss 28A and 29 of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act) in relation to the giving of documents to a person. Section 28A of the Acts Interpretation Act provides:
(1)For the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then the document may be served:
(a) on a natural person:
(i) by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
(b) on a body corporate—by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate.
Note:The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication.
(2) Nothing in subsection (1):
(a) affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorises the service of a document otherwise than as provided in that subsection; or
(b) affects the power of a court to authorise service of a document otherwise than as provided in that subsection.
Section 29 of the Acts Interpretation Act addresses service by post and relevantly provides that service by post ‘shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post’.
The Electronic Transactions Act 1999 (Cth) (Electronic Transactions Act) is also relevant in this matter. Section 9(1) of that Act relevantly provides:
Requirement to give information in writing
(1)If, under a law of the Commonwealth, a person is required to give information in writing, that requirement is taken to have been met if the person gives the information by means of an electronic communication, where:
(a)in all cases—at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and
…
(d)if the information is required to be given to a person who is neither a Commonwealth entity nor a person acting on behalf of a Commonwealth entity—the person to whom the information is required to be given consents to the information being given by way of electronic communication.
Relevant evidence, submissions and findings
The issue for the Court’s determination in relation to the alleged contravention of ss 44(1) and 117(1) of the Fair Work Act is whether Mr Calpakdjian, acting on behalf of Harcourts, gave to Ms Mullan a written notice of the day of her termination, being a day that was not before the day the notice was given.
Ms Mullan gave evidence that she was not provided with written notice of her dismissal at the time of a meeting she had with Mr Calpakdjian on 20 August 2019 at which he informed her of her dismissal, effective immediately. Ms Mullan’s evidence is that she did not receive the termination letter until it was emailed to her at 4.58pm on 20 August 2019.[128] She submits that, irrespective of the operation of the ss 28A and 29 of the Acts Interpretation Act and s 9 of the Electronic Transactions Act, Harcourts contravened ss 44(1) and 117 of the Fair Work Act because it did not give her written notice of her dismissal until after her employment had been terminated with immediate effect. On the other hand, Mr Calpakdjian gave evidence that he handed the written notice to Ms Mullan at their meeting on 20 August 2019, but she left the notice on her desk at Harcourts. Harcourts subsequently emailed and posted the letter to Ms Mullan.[129] The respondents submit that even if the Court does not find that Mr Calpakdjian gave the written notice to Ms Mullan at the meeting, Harcourts still complied with its obligations under s 117 of the Fair Work Act by emailing and posting the written notice to Ms Mullan on 20 August 2019.
[128] Affidavit of Ms Mullan filed on 16 June 2021 at [158]-[159] and Annexure GM-18 and GM-19 (CB 170, 241, 243)
[129] Affidavit of Mr Calpakdjian filed on 19 August 2021 at [117] (CB 512); transcript, 13 October 2021, p 84.
It is therefore necessary first to resolve the conflict between Ms Mullan’s evidence and Mr Calpakdjian’s evidence as to whether Ms Mullan was handed the written notice at the meeting on 20 August 2019 and, if I am not satisfied that the written notice was handed to Ms Mullan, to then consider whether Harcourts complied with its obligations under s 117 in emailing and/or posting the written notice to Ms Mullan later on 20 August 2019.
Mr Calpakdjian and Ms Mullan both gave evidence that Mr Calpakdjian advised Ms Mullan that her employment had been terminated during her probationary period at a meeting on 20 August 2019 and that Harcourt’s Sales Administrator, Ms Aimee Heller, was present at that meeting as a witness. While there is some dispute as to precisely what was said at the meeting, both Mr Calpakdjian and Ms Mullan gave evidence, which I accept, to the effect that:
(a)Mr Calpakdjian advised Ms Mullan that her employment was being terminated during the probationary period, effective immediately;
(b)Mr Calpakdjian gave reasons for dismissal that included some or all of the reasons set out in the written notice;
(c)Ms Mullan disputed those reasons and Mr Calpakdjian declined to enter into any discussion or negotiation about those reasons; and
(d)Ms Mullan was told that an Uber had been called to take her home, and she had a short time to collect her belongings and return Harcourts’ property.[130]
[130] Affidavit of Ms Mullan filed on 16 June 2021 at [147]-[152] (CB168-169); affidavit of Mr Calpakdjian filed on 19 August 2021 at [115]-[116] (CB 511-512).
Ms Mullan’s evidence in chief was that she only received the written notice of her dismissal by email, when she was home later that afternoon and when her employment had already been terminated with immediate effect. She deposed that she was not provided with any letter of termination or written notice of termination prior to or during the meeting on 20 August 2019.[131] She also gave evidence about how she felt during and immediately after this meeting, including that during the meeting she was ‘struggling to comprehend what was happening’, that after the meeting she was ‘humiliated and upset and finding it difficult to hold it together’, that she went to her car to collect her things but ‘must have mentally blacked out at that stage’, and that when she returned to her office to collect her handbag, she saw Mr Calpakjdian and felt ‘terror and panic’ and does not remember what happened after that.[132]
[131] Affidavit of Ms Mullan filed on 16 June 2021 at [158]-[159] (CB 170).
[132] Affidavit of Ms Mullan filed on 16 June 2021 at [150], [154], [156], [157] (CB 169).
In cross-examination, Ms Mullan was challenged on her evidence that she was not given any written notice at the meeting and denied being given the notice at the meeting. When asked about her evidence as to her mental state, Ms Mullan said:[133]
I had the meeting with Mr Calpakdjian. He told me that my probationary period was terminated, I had five minutes to leave the office and drop all the things on his desk. And then I left that meeting. I had nothing in my hand … I was not given a letter during the meeting. I walked from there into my office, got my car keys, and went out to the office car, and that’s when I blacked out. I could not think what I was there to collect from the car. I stood there for a while, and all I wanted to do was leave, but I realised that my handbag and everything was still in the office, and I needed to go back and get that and drop the car keys and the office keys with Mr Calpakdjian … which I did. At no time did I have a letter - was I provided with a letter, and if I had been, I would have read that letter to find out why he was terminating me.
[133] Transcript, 29 September 2021, p 116-117
Ms Mullan denied that in her shock, she might have forgotten that she had put the letter on her desk.[134]
[134] Transcript, 29 September 2021, p 119.
Mr Calpakdjian in his evidence in chief gave evidence that at the meeting on 20 August 2019, after telling Ms Mullan that he did not intend to go into more detail about reasons for dismissal, that an Uber car was coming to take her home and that she had time to collect her things and return Harcourt keys mobile phone to his desk, he said to her ‘here is a termination letter’.[135] In cross-examination, when it was put to Mr Calpakdjian that he never gave Ms Mullan any letter during that meeting, he responded ‘you’re very wrong’.[136] When it was suggested to Mr Calpakdjian that if there had been a letter, he would have given Ms Mullan a chance to read that letter, Mr Calpakdjian said that he had a copy of the letter in front of his desk at the meeting and that he read to Ms Mullan the reasons for her dismissal and then handed her the envelope.[137]
[135] Affidavit of Mr Calpakdjian filed on 19 August 2021 at [115] (CB512).
[136] Transcript, 13 October 2021, p 61.
[137] Transcript, 13 October 2021, p 62.
While Ms Hellier was a witness to the meeting, neither party called her to give evidence. I do not draw any adverse inference against either party as a result of Ms Hellier not being called.
It is not in dispute that a copy of the written notice of dismissal was emailed and posted to Ms Mullan later that afternoon.
The emailed copy was sent from Mr Calpakdjian’s Harcourt’s email to Ms Mullan’s personal email address at 4.58pm on 20 August 2019.[138] The text of that email read:
Please see attached a copy of the termination letter that was left on your desk. The original is in the mail. The employment separation certificate will be forwarded shortly.
Once again we thank you for your efforts to date, and wish you success in your future.
[138] Affidavit of Ms Mullan filed on 16 June 2021 at Annexure GM-18 (CB 241).
It is clear that Ms Mullan received this email because she replied to the email and the reasons given in the written notice at 6.50pm on 20 August 2019.[139] There is nothing in her email which disputes the assertion that a copy of the termination letter had been left on her desk.
[139] Affidavit of Ms Mullan filed on 16 June 2021 at Annexure GM-20 (CB245).
On balance, I prefer the evidence of Mr Calpakdjian to the effect that he gave a copy of the written notice of dismissal to Ms Mullan at the meeting to that of Ms Mullan. Both witnesses were adamant in their respective evidence as to whether or not a written notice of the termination was handed to Ms Mullan during the meeting and I do not believe that either witness was untruthful as to their recollection of events. Rather, I consider it likely that Ms Mullan inadvertently left the letter on her desk without realising that she did so given the range of emotions that she quite understandably felt at the time of and immediately after her dismissal. The contemporaneous evidence is the email to Ms Mullan later that afternoon which states that the written notice had been left on her desk. While I acknowledge the submission made on behalf of Ms Mullan that the email does not say who left the written notice on her desk and is not inconsistent with her evidence that she was not given the written notice, I consider that this email supports Mr Calpakdjian’s evidence that he provided the written notice of dismissal to Ms Mullan at the meeting.
(a)
I therefore find on the balance of probabilities that Mr Calpakdjian handed to Ms Mullan at the meeting on 20 August 2019 a copy of the written notice of dismissal. Handing the written notice to Ms Mullan in person is consistent with one of the methods by which a document can be given to a natural person as set out in s 28A of the Acts Interpretation Act. Harcourts therefore did not contravene s 117 of the Fair Work Act.
Even if I am wrong in this finding of fact, I would not find that Harcourts contravened s 117 of the Fair Work Act. That is because I accept that in giving Ms Mullan a copy of the written notice by email, Harcourt’s complied with its obligation under s 117 irrespective of whether or not Mr Calpakdjian handed a copy of the written notice to Ms Mullan during the meeting.
Ms Mullan’s submission is that ‘regardless of the operation’ of the Acts Interpretation Act and the Electronic Transactions Act, Harcourts did not give Ms Mullan written notice of the dismissal until after her employment had already been terminated with immediate effect. It is implicit in this submission that Ms Mullan’s assertion is that Harcourts could not terminate her employment in a meeting with immediate effect and then not provide her with the written notice of the termination until later the same day. It is implicit in the submission advanced on behalf Harcourts that giving the written notice of dismissal at any time on the day of the dismissal is sufficient. While both parties have referred to the provisions extracted above of the Fair Work Act, the Acts Interpretation Act and the Electronic Transactions Act, neither party has referred to any case law on this point or provided detailed submissions on the operation of s 117(1) of the Fair Work Act.
In my view, it is relevant that s 117(1) of the Fair Work Act refers to the day of the termination and not the time of the termination. The written notice of the day of the termination cannot be before the day the notice is given, but there is nothing on the face of s 117 which makes it a contravention to give a written notice of termination after, but on the same day as, oral notice of termination is given, even if that termination is said to be effective immediately. It is the day of termination and not the time of termination that is relevant to working out the minimum period of notice, or the amount of payment in lieu of notice in s 117(2) and (3).
There is a clear documentary record showing that the email attaching the termination notice was sent to Ms Mullan at 4:58pm at an email address that she had previously used on multiple occasions to communicate with Harcourts. There is no dispute that Ms Mullan received and was able to access the email and its attachment on 20 August 2019 and this is also evident from Ms Mullan’s reply to that email at 6:50pm on 20 August 2019. Ms Mullan was given and received a copy of the written notice of termination by email on 20 August 2019, being the day of termination. I therefore find that by providing the written notice of termination by email, Harcourt’s complied with its obligation under s 117(1) of the Fair Work Act, even if, contrary to my finding above, Mr Calpakdjian did not give Ms Mullan a copy of the letter at the meeting.
I do not, however, accept that the written notice of termination that was posted to Ms Mullan was given to her on 20 August 2019. Pursuant to s 29 of the Acts Interpretation Act, unless otherwise proven, Ms Mullan is taken to have been given or to have received the written notice in the ordinary course of post. Section 29 does not displace the operation of s 160 of the Evidence Act which establishes a presumption that a document sent by prepaid post to an address in Australia is deemed to have been received at that address on the seventh working day after it has been posted. Whether one has regard to s 29 of the Acts Interpretation Act or s 160 of the Evidence Act, Ms Mullan could not have received, or be deemed to have received, the written notice of termination that was posted to her on 20 August 2019. This conclusion is consistent with the findings made by Judge Barnes in Ingersole v Castle Hill Country Club Limited [2014] FCCA 450: see [372]-[383].
Even though the written notice of termination that was posted to Ms Mullan was given to her on a day later than the day of her termination, this does not amount to a contravention of s 117(1) of the Fair Work Act given the findings that I have made above in relation to the notice been given to her by hand and emailed to her on 20 August 2019.
Conclusion in relation to alleged contravention of ss 44(1) and 117(1) of the Fair Work Act
For the reasons explained, I find that Harcourts did not contravene ss 44(1) and 117(1) of the Fair Work Act because:
(a)I accept on the balance of probabilities that Mr Calpakdjian gave Ms Mullan written notice of day of termination at their meeting on 20 August 2019; and
(b)even if I am wrong in that finding, Harcourts fulfilled the obligation in s 117(1) when Mr Calpakdjian emailed a copy of the termination letter setting out written notice of the day of termination to Ms Mullan later in the afternoon of 20 August 2019.
MEDICAL EVIDENCE AND COMPENSATION
I have not addressed above the harm and loss that Ms Mullan claims to have suffered as a result of the adverse action, or the medical evidence provided by the expert witnesses. This evidence is relevant to the question of the compensation to which Ms Mullan would be entitled in the event that I found any of the respondents had contravened the provisions of the Fair Work Act.
Given that I have found that the respondents did not contravene relevant provisions of the Fair Work Act, Ms Mullan is not entitled to compensation and it is not necessary for me to make findings about the loss and damage she has suffered as a result of the adverse action. In these circumstances, and given the sensitive nature of that evidence, I have opted not to summarise it in this judgment.
CONCLUSION
For the reasons above, the application to the Court is dismissed.
I certify that the preceding one hundred and eighty-three (183) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 17 May 2023
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