FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nolan v Grace Worldwide (Australia) Pty Ltd [2023] FedCFamC2G 623
File number: SYG 2149 of 2019 Judgment of: JUDGE BAIRD Date of judgment: 20 July 2023 Catchwords: INDUSTRIAL LAW – General protections – respondent employer altering applicant employee’s position to their prejudice – workplace health and safety issues –performance improvement plan – formal and informal meetings – workplace bullying – denial of sick leave - whether the employee has made complaints or inquiries amounting to the exercise of workplace rights pursuant to s 341 of the Fair Work Act 2009 (Cth) (FW Act) – whether the employee has been subject to an adverse action in contravention of s 340 of the FW Act – identification of the person or people who decided to engage in adverse action - whether the statutory onus in s 361 of the FW Act has been discharged in relation to the decision maker – application dismissed. Legislation: Fair Work Act 2011 (Cth) ss 97, 340, 341, 342, 545, 550 Cases cited: Alam v National Australia Bank Limited [2021] FCAFC 178; (2021) 288 FCR 301
Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215; (2019) 273 FCR 332
Board of Bendigo Regional Institute of TAFE v Barclay [2012] HCA 32; (2012) 248 CLR 500
Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC16; (2019) 268 FCR 46
El-Hajje v Rissalah College Limited [2022] FedCFamC2G 260
Elliot v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251
Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17
Khiani v Australian Bureau of Statistics [2011] FCAFC 109
PIA Mortgagev King [2020] FCAFC 15; (2020) 274 FCR 225
Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534; (2017) 275 IR 285
Wong v National Australia Bank Limited [2022] FCAFC 155; (2022) 318 IR 148
Division: Division 2 General Federal Law Number of paragraphs: 435 Date of last submissions: 3 December 2021 Date of hearing: 18-20 October 2021, 3 December 2021 Place: Sydney Applicant: Mr Kenneth Nolan appeared for himself Counsel for the Respondents: Mr B Rauf Solicitor for the Respondents: Mr P Doughman, Matthews Folbigg Lawyers ORDERS
SYG 2149 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KENNETH NOLAN
Applicant
AND: GRACE WORLDWIDE AUSTRALIA PTY LTD
First Respondent
PHIL BATTEN
Second Respondent
order made by:
JUDGE BAIRD
DATE OF ORDER:
20 jULY 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
A. INTRODUCTION
[1]
The parties
[6]
Mr Nolan
[6]
Grace Worldwide
[8]
Mr Batten
[9]
B. OVERVIEW OF THE PARTIES’ PRINCIPAL CONTENTIONS
[11]
The exercising of workplace rights
[13]
The adverse actions alleged
[14]
Respondents’ denials and contentions
[16]
Summary of the Court’s conclusion
[21]
C. THE PROCEEDING
[22]
‘Recovery’ proceeding
[23]
Witnesses at hearing
[27]
The credit and reliability of the witnesses
[30]
D. LEGISLATIVE PROVISIONS AND RELEVANT PRINCIPLES
[37]
Workplace rights
[43]
Adverse action
[51]
The decision-maker
[55]
E. EVIDENCE
[60]
Overview of principal events
[61]
Grace Worldwide senior management and HR model
[62]
(a) Mr Guyer
[62]
(b) Ms Gilroy
[67]
Grace Group’s HR model
[68]
Ms Gilroy’s interactions with Mr Nolan and Mr Batten
[70]
Mr Nolan’s employment and performance obligations
[74]
Mr Nolan’s sales results and work performance
[83]
28 June 2018 Disciplinary meeting
[84]
October 2017 complaint involving alleged racist remarks
[88]
November 2018 WHS incident involving unsafe act
[95]
December 2018 work relating to WHS manuals and procedures
[102]
Mr Nolan’s general complaints about WHS issues
[115]
Mr Nolan’s 2018 sales results
[120]
Mr Nolan’s January 2019 performance review
[128]
18 January 2019 sales meeting and email
[133]
Events of January 2019 – February 2019
[152]
13 February 2019 meeting and imposition of the PIP
[155]
13 February PIP
[163]
14 February 2019 complaint - Mr Nolan’s email of 14 February 2019
[181]
Conclusion – 14 February 2019 email is the exercise of a workplace right
[188]
15 February 2019 – discovery of denial of January 2019 sales commission
[189]
January 2019 sales revenue
[194]
Denial of January 2019 sales commission
[210]
21 February 2019 complaint - meeting and email to Mr Batten of 21 February 2019
[215]
25 and 26 February 2019 meetings and compromise on January 2019 commission payment
[221]
Failure to pay the compromise amount
[224]
Conclusion – non-payment of compromise amount
[229]
March 2019 WHS incident - Parramatta City Council relocation job
[231]
March 2019 and April 2019 disciplinary meetings and written warnings
[241]
Disciplinary meetings documentary material
[244]
Documents are unreliable
[248]
27 March 2019 disciplinary meeting and first written warning
[256]
27 March 2019 - First written warning
[264]
March 2019 updated PIP
[267]
18 April 2019 disciplinary meeting and second written warning
[276]
First meeting on 18 April 2019
[281]
18 April 2019 - Second disciplinary meeting
[285]
April 2019 - Second written warning
[292]
Mr Batten’s 18 April 2019 email
[309]
Events following Easter 2019
[317]
29 April 2019 show cause letter and show cause meeting
[325]
Show cause letter
[330]
Mr Nolan’s written response
[336]
Termination
[345]
Mr Guyer’s stated reasons for termination
[350]
Denial of sick leave contention
[354]
Differential treatment
[385]
F. CONCLUSIONS ON FACTUAL FINDINGS AND CONSIDERATION
[389]
Did Mr Nolan exercise, or was he prevented from exercising, the workplace rights claimed
[391]
Conclusion on workplace rights exercised
[397]
The Adverse Actions taken
[398]
(ii)Denial of January 2019 sales commission and withholding of the commission amount properly due
[402]
(iv) On 18 April 2019, setting an unrealistic 14-day timeframe for improvement of his work performance
[407]
(v) Denial of sick leave in early April 2019
[409]
The decision-maker and their reasons for the adverse actions
[411]
(1) Adverse actions taken by Mr Batten
[411]
Reasons for adverse actions taken
[413]
Conclusion on reasons for adverse actions taken up to Easter 2019
[422]
(2) Adverse Actions taken by Mr Guyer - show cause and termination actions
[425]
Reasons for adverse actions taken
[432]
G. CONCLUSION AND DISPOSITION
[437]
JUDGE BAIRD
A. INTRODUCTION
This is an application pursuant to the general protections and other provisions of the Fair Work Act 2009 (Cth) (FW Act) brought by the applicant, Mr Kenneth Nolan, for orders in relation to his former employment by the first respondent, Grace Worldwide (Australia) Pty Ltd, and the second respondent, Mr Philip Batten (collectively, the respondents).
Mr Nolan claims Grace Worldwide has contravened s 340 of the FW Act by taking various adverse actions against him - treating him differentially, and ultimately dismissing him, for substantive and operative reasons being, or including:
(a)his exercise of his workplace right to make complaints and inquiries into workplace health and safety (WHS) issues;
(b)his exercise of his workplace right to make complaints and inquiries in relation to his performance management and commission; and
(c)his attempt to exercise his workplace right to take personal leave pursuant to s 97 of the FW Act.
Mr Nolan alleges he made a number of WHS and other complaints, and alleges various instances of adverse action.
Mr Nolan commenced full‑time employment with Grace Worldwide as a ‘project manager – commercial division’ - in the Grace Business Services division (GBS) on 18 August 2017. On 13 February 2019, Mr Batten placed Mr Nolan on a performance management plan, also referred to as a performance improvement plan (PIP) alleging work performance issues. Mr Batten issued Mr Nolan with written warnings on 27 March 2019, and on 18 April 2019, the latter being Maundy Thursday (the day before the Easter long weekend that year), and the day before Mr Nolan went on pre-approved personal leave. Mr Nolan returned from personal leave on 29 April 2019, and the same day was issued with a show cause letter. The next day, 30 April 2019, Grace Worldwide held a show cause meeting, and then dismissed Mr Nolan from his employment by termination letter served on him and effective that day.
Mr Nolan seeks compensation for economic loss pursuant to s 545 of the FW Act in the amount of $41,360.15 exclusive of tax and superannuation. Whilst Mr Nolan has not specifically claimed orders for pecuniary penalties (whether in his originating application, Form 2 or in the concise statement he filed pursuant to directions), he submits that this relief is left to the discretion of the Court. To similar effect, Mr Nolan has noted that his quantum claim excludes loss of a car allowance paid at $1,416.67/month (tax exempt), does not specify losses due to psychological distress and humiliation, prior, during and after dismissal, nor economic losses due to subsequent employment on reduced salary and future lost earnings, each of which relief he submits he leaves to the discretion of the Court. The respondents object to the Court considering any remedies or amount other than the sum of $41,360.15 expressly set out in Mr Nolan’s Form 2 claim.
Mr Nolan has represented himself throughout the proceeding, including at hearing. The respondents have been legally represented at all times, including by counsel at the hearing.
The parties
Mr Nolan
Mr Nolan was employed pursuant to the written contract of employment signed 16 August 2017 (below at [75]). As I have said above, he commenced employment as a project manager in GBS on 18 August 2017. In substance, the role was a sales position. Until early March 2018, Mr Nolan reported to Mr Steve Barnett, the then Sydney branch manager of Grace Worldwide. In March 2018, Mr Barnett was promoted to national sales manager, and Mr Batten was appointed to the role of Sydney branch manager. Thereafter, until he was dismissed, Mr Nolan reported directly to Mr Batten.
At the date of dismissal, Mr Nolan had nearly 2 years of continuous service with Grace Worldwide, and was over 45 years old. A fortnight after termination, Mr Nolan was paid one months’ base salary in lieu of notice, and a further week’s base salary stated to be on account of his age and period of service.
Grace Worldwide
Grace Worldwide is a removalist, storage and information management company servicing both individuals and businesses, and is part of the ‘Grace Group’. The Grace Group (and thus Grace Worldwide) is headquartered at Seven Hills, in Sydney, which is also the premises of the Sydney branch office. The Grace Group employs about 1000 - 1500 staff across Australia.
Mr Batten
Mr Batten commenced his employment with Grace Worldwide in November 2015 as a project manager in the Sydney sales and operational team - the same role type held by Mr Nolan. As I adverted to above, in March 2018, Mr Batten was promoted to Sydney branch manager of Grace Worldwide where he managed the sales and operational team consisting of approximately 15 employees, including Mr Nolan.
From March 2018, Mr Batten reported to Mr Derryk Guyer, the regional group manager, who had recently moved to Sydney. Mr Batten was appointed commercial sales manager of Grace Worldwide in April 2020.
B. OVERVIEW OF THE PARTIES’ PRINCIPAL CONTENTIONS
Mr Nolan claims that Grace Worldwide engaged in multiple adverse actions against him because he made workplace complaints and inquiries, including regarding WHS issues. The workplace complaints and inquiries he alleges he made commenced with a complaint about a racist incident in October 2017, and principally occurred in the period December 2018, up to and including his dismissal on 30 April 2019.
Mr Nolan claims that after Mr Batten became branch manager in March 2018, Mr Nolan experienced issues with Mr Batten, which escalated as a result of Mr Nolan’s reporting of WHS related matters. The issues he experienced included being made subject to unreasonable and unrealistic work expectations, rudeness, bullying and harassment, denial of sales commission, being subjected to false or misleading statements regarding safety incidents, and the respondents failing to provide Mr Nolan with necessary support. Mr Nolan suspects that his complaints and inquiries and the issues he had with Mr Batten formed a substantial and operative part of the decision to terminate his employment.
The exercising of workplace rights
In substance Mr Nolan particularises in his pleadings and his affidavit his making of complaints and inquiries concerning each of the following WHS incidents and matters, which in each case he says is his exercise of a workplace right within s 341(1)(ii)(c) of the FW Act, and were substantive and operative reasons for the adverse actions he alleges were taken by the respondents (noting that a number of other incidents alleged by Mr Nolan in his Form 2 claim were not pursued by him to the conclusion of the hearing):
(1)an October 2017 incident involving racist remarks;
(2)a November 2018 incident involving an alleged unsafe act;
(3)his December 2018 work activities relating to WHS manuals and procedures;
(4)his making general complaints about WHS issues;
(5)his 14 February 2019 email following the PIP;
(6)his 21 February 2019 email to Mr Batten raising concerns;
(7)a March 2019 incident relating to the ‘Parramatta City Council relocation job’ (Mr Nolan initially stated this incident occurred in January 2019, which was corrected at hearing), and
(8)his attempt to apply for sick leave in early April 2019.
The adverse actions alleged
In substance, Mr Nolan alleges the following adverse actions:
(i)placing him on the PIP on 13 February 2019;
(ii)denial of commission on his January 2019 gross sales revenue, and withholding of the commission amount properly due;
(iii)issuing of written warnings on 27 March 2019, and on 18 April 2019;
(iv)on 18 April 2019 setting an unrealistic 14-day timeframe for improvement of his work performance (which encompassed the Easter long weekend holiday and a period of pre‑approved personal leave);
(v)denial of sick leave in April 2019;
(vi)a show cause meeting on 29 April 2019, and the raising of new claims of insubordination and public criticism of Mr Batten at that meeting without notice;
(vii)differential treatment including being berated, bullied, and harassed by Mr Batten, and
(viii)dismissing him from Grace Worldwide on 30 April 2019, including then treating him in an unnecessarily harsh and humiliating manner.
I have identified the above from the parties’ pleadings and their written submissions. I proceed on the basis that each of the above is an adverse action alleged by Mr Nolan, being either identified as adverse actions by Mr Nolan expressly, or contained within Mr Nolan’s narration of the other actions in his pleadings and affidavit and characterised by the respondents as allegations of adverse action raised by Mr Nolan.
Mr Nolan submits that due to the raising of his concerns the respondents’ adverse actions ‘led to differential treatment which had adverse impacts, having made [his] employment less secure, altering [his] position as an employee, and ultimatel[y] leading to [his] dismissal as an employee’. He submits he has suffered professional and reputational damage as a result, and was unable to regain employment in the same industry.
Respondents’ denials and contentions
The respondents deny they took adverse action against Mr Nolan due to any workplace complaints and inquiries he made about WHS matters. They submit that to the extent that Mr Nolan raised WHS issues, he did so in the ordinary course of performing his work.
In their closing submissions, the respondents concede they did subject Mr Nolan to a PIP, subsequently issued formal written warnings about what they alleged was his ongoing poor work performance on 27 March 2019 and on 18 April 2019, and terminated his employment on 30 April 2019, and that these actions constituted ‘adverse actions’ within the meaning of s 342(1) of the FW Act. They do not concede that any of the other actions alleged were adverse actions. For the reasons that follow I do not accept that the respondents’ adverse actions were so limited.
Expanding on the above denials, the respondents submit that Mr Nolan did not make any complaints or inquiries in relation to WHS matters of relevance. They say that other than general employee obligations to work in a safe manner and comply with applicable policies and procedures, Mr Nolan did not have any responsibilities relating to safety and therefore did not have a relevant workplace right to exercise. They submit Mr Nolan has not established that he exercised any relevant workplace rights for the purposes of s 341 of the FW Act, and accordingly, the reverse onus in s 361 of the FW Act is not enlivened.
If, however, the onus is enlivened, as to the various non‑dismissal adverse actions pleaded – specifically, being placed on a PIP, and the issue of written warnings, they say these were for the substantive and operative reason of Mr Nolan’s poor work performance and behaviour in late 2018 and throughout 2019. The respondents submit Mr Batten sought to manage Mr Nolan’s performance by the PIP and written warnings to address the work performance issues, and not for any substantive and operative reason, or reasons including, that Mr Nolan had exercised any workplace rights.
The respondents further submit the decision to dismiss Mr Nolan was not made by Mr Batten, but by Mr Batten’s manager, Mr Guyer. They submit that termination of Mr Nolan’s employment was based on Mr Nolan’s ongoing poor work performance and ‘inappropriate and insubordinate workplace behaviour on 18 April 2019’, and not for any substantive and operative reason, or reasons including, that Mr Nolan had exercised any of his workplace rights.
Summary of the Court’s conclusion
For the reasons that follow, Mr Nolan was not subject to any of the adverse actions for a proscribed reason in contravention of s 340 of the FW Act. It follows that, contrary to Mr Nolan’s contentions, Grace Worldwide has not engaged in a contravention of the FW Act. Accordingly, whilst Mr Nolan did not plead accessional liability on the part of Mr Batten, it further follows that Mr Batten was not knowingly concerned in, or party to, a contravention by Grace Worldwide of the FW Act, and so not involved in a contravention under s 550 of the FW Act. Mr Nolan’s application therefore must be dismissed.
C. THE PROCEEDING
Mr Nolan commenced the proceeding on 13 August 2019 by application and accompanying Form 2 claim. Further to orders I made on 13 September 2019, Mr Nolan filed and served his Concise Statement dated 10 October 2019, in which he summarised his contentions. The respondents rely on their Concise Statement in Defence, dated and filed 25 October 2019.
‘Recovery’ proceeding
Shortly before the final hearing, the respondents’ solicitors drew the Court’s attention to the commencement by Grace Worldwide of bankruptcy proceedings against Mr Nolan with the filing of a creditor’s petition by another firm of solicitors than those representing the respondents in this proceeding. During the hearing of this proceeding, on 20 October 2021 by consent I made orders vacating the hearing of the creditor’s petition, and staying that proceeding until 10 days after the date orders are made upon final determination of the present proceeding. Subsequently, by consent on 8 August 2022, I made orders extending the lapsing date of the creditor’s petition to 12 September 2023.
I heard the evidence at hearing over 3 days between 18 October 2021 and 20 October 2021 via Microsoft Teams, during a period of Covid-19 lockdown restrictions. The parties read their affidavit evidence, subject to rulings, tendered documents, and all witnesses were cross‑examined.
The parties provided written opening outlines of submissions, a chronology (incorporating Mr Nolan’s chronology, and the respondents’ ‘reply’), and a statement of agreed and disputed facts (filed by the respondents on 11 September 2020 and included in the court book at hearing, but which did not include Mr Nolan’s comments, which was separately filed). In addition, the respondents prepared a statement of issues in dispute and a response to the schedule of remedies to those sought by Mr Nolan. I have had regard to these materials, noting that much of what was provided by both parties is submission or argument.
On 3 December 2021, I heard oral closing submissions in person at the Court in Sydney. The parties also provided written outlines of closing submissions. Mr Nolan provided 4 ‘annexures’ (comprising a ‘revised’ applicant’s chronology, a reply to the respondents’ remedies schedule, some confidential emails and medical certificates, and material related to his subsequent employment), which I treat as submission. The respondents handed up a further submission headed ‘summary of workplace rights and adverse action’. I obtained full transcript of the hearing.
Witnesses at hearing
At hearing Mr Nolan relied on his affidavit in chief sworn 20 March 2020, and the affidavit of Ms Madeleine Goldsmith, affirmed 18 March 2019. Mr Nolan did not file any evidence in reply.
Ms Goldsmith was employed as a project manager at Grace Worldwide in the GBS division between 8 April 2019 and October 2019. Ms Goldsmith’s employment with Grace Worldwide effectively overlapped with Mr Nolan’s presence in the office for 10 days, from 8 April 2019 until 18 April 2019.
At hearing the respondents relied on the evidence of:
(a)Mr Batten, who swore one affidavit dated 10 June 2020;
(b)Ms Susan Gilroy, group human resources (HR) manager of the Grace Group, who swore one affidavit dated 5 June 2020; and
(c)Mr Guyer who swore one affidavit dated 5 June 2020. As I have adverted to above, Mr Guyer was regional general manager, Mr Batten’s manager at Grace Worldwide from March 2018, and the person the respondents submit was the decision‑maker for Mr Nolan’s dismissal.
Of the respondents’ witnesses, as at the date of the hearing only Mr Guyer remained employed by Grace Worldwide / the Grace Group.
The credit and reliability of the witnesses
The witnesses’ affidavits all contain passages of submission, and content which is expressed at a high level of generality, lacking in specificity and particularisation. I accord those parts of their evidence less weight accordingly.
I generally consider that Mr Nolan made a genuine attempt to assist the Court by giving evidence honestly and that he frankly answered questions of him in cross‑examination to the best of his recollection. The exceptions to these general findings are identified in these reasons. I consider Ms Goldsmith did likewise. Her evidence was, however, of limited compass and by its timing, limited relevance.
Regrettably, Mr Batten’s written evidence was replete with self‑serving statements and justification, and also personal attack, unsupported and unsubstantiated by objective verification or corroboration by primary documents or other business records that reasonably should have been available. It was coloured by expressions of grievance at and about Mr Nolan. To a lesser but still apparent extent, Mr Guyer and Ms Gilroy’s written evidence was also self‑serving and partisan.
In some instances documentary material annexed to the respondents’ affidavits, in particular email correspondence, has been ‘cut and pasted’ so that email chains are incomplete, and attachments to emails missing, whilst some header descriptors and dates are added. I have identified where relevant documents bear annotations and amendments that it is apparent on their face are later additions, or in other respects are unreliable.
The above matters adversely impact upon the credibility and reliability of the respondents’ written evidence, and critically infected their oral evidence.
I consider however, that Mr Batten displayed a greater measure of objectivity in his oral evidence, than his affidavit, and he generally made a genuine attempt to assist the Court by honestly answering questions put to him to the best of his recollection. However, on several key issues I identify in the course of these reasons I consider that Mr Batten was not a credible and reliable witness. Whilst in most instances I consider Mr Guyer and Ms Gilroy each generally made a genuine attempt to assist the Court by honestly and frankly answering questions asked of them, in some instances I was not so persuaded. Where I consider this is so and relevant, I have said in these reasons.
After carefully considering their written evidence, the documents they annex, the transcript, and my contemporaneous notes taken during the hearing, I have concluded that the accounts of each of Mr Batten, Ms Guyer, and Mr Gilroy in writing, and in oral evidence, cannot be accepted in all respects as credible and reliable.
D. LEGISLATIVE PROVISIONS AND RELEVANT PRINCIPLES
Section 340(1) of the FW Act precludes (relevantly) an employer from taking ‘adverse action’ against an employee because the employee has exercised, or purported to exercise a workplace right, or to prevent the exercise of a workplace right. It provides (relevantly):
340 Protection
(1)A person must not take adverse action against another person:
(a)because the other person:
(i)has a workplace right; or
(ii)has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1)
Section 341(1) defines the circumstances in which a person has a workplace right as follows:
(1) A person has a workplace right if the person:
…
(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.
By s 342(1), relevantly, 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.
The applicant must prove that they exercised ‘workplace rights’ within the meaning of s 341 of the FW Act, and was subject to ‘adverse action’ within the meaning of s 342 of the FW Act. The applicant bears the onus of satisfying the Court of these matters.
Sections 360 and s 361(1) facilitate proof by an applicant of a claim of adverse action. Section 360 of the FW Act provides that, for the purposes of Pt 3‑1 of s 340 the FW Act, ‘a person takes action for a particular reason if the reasons for the action include that reason’. Section 361(1) creates a rebuttable presumption. It provides:
Reason for action to be presumed unless proved otherwise
(1) if:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention 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 purpose of s 361(1) is to throw onto respondents – employers - the onus of proving that which is peculiarly within their knowledge: Board of Bendigo Regional Institute of TAFE v Barclay [2012] HCA 32; (2012) 248 CLR 500 at [50]; Alam v National Australia Bank Limited [2021] FCAFC 178; (2021) 288 FCR 301 at [12].
Workplace rights
The Full Court of the Federal Court of Australia in Alam summarised the principles relating to workplace rights under the FW Act. The Full Court at [14] observed that several matters bearing upon the application of s 361 in relation to s 340 are settled, and stated (citations omitted):
(a)in order to attract the application of s 361 the 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;
(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. 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;
(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;
(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;
(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;
(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;
(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, 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. 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;
(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;
(i)further, 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. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason;
(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.
As to the meaning of meaning of ‘complaint’ and ‘inquiry’ in the context of s 341(1)(c), the Full Court in Alam said, at [59]-[60] (citations omitted):
·the term connotes an expression of discontent, which seeks consideration, redress or relief from the matter about which the complainant is aggrieved;
·a complaint is more than a mere request for assistance and should state a particular grievance or finding of fault;
·it is possible that some requests for assistance may be able to be characterised as ‘inquiries’ for the purposes of s 341(1)(c)(ii) (for example, an inquiry as to whether the recipient is able to provide the requested assistance);
·it is unnecessary for the employee to identify expressly the communication as a complaint or grievance, or to use any particular form of words. Instead, what is required is a communication which, whatever its precise form, is reasonably understood in context as an expression of grievance and which seeks, whether or expressly or implicitly, that the recipient at least take notice of, and consider it; and,
·the characterisation of a communication as a complaint (or, I infer, an inquiry) is to be determined as a matter of substance, and not of form.
I note that in Alam at [62] the Full Court considered that an assertion by the employee that she was acquainting the recipient with concerns she had about the conduct of another employee where the employee also told the recipient she did not need to make a complaint ‘could not reasonably be characterised as a complaint or inquiry of the requisite kind’.
In Alam, the Full Court, having earlier observed that the proper construction of s 341(1)(c)(ii), and specifically, the meaning of the phrase ‘is able to make a complaint or inquiry’ in relation to the employment, has been the subject of divergent judicial views, and having discussed the case law (see Alam [65]-[96]), proceeded at [97] on the understanding that Collier J’s statement of principle in Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534; (2017) 275 IR 285 at [33]-[34] at first instance was ‘unremarkable and correct’ (as it was described by the Court on appeal in Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC16; (2019) 268 FCR 46 at [28]).
The following principles may be discerned from their Honours’ understanding stated in Alam at [97] and their earlier discussion at [74]-[76] concerning Whelan:
(a)the requirement in s 341(1)(c)(ii) that a complaint or inquiry by the employee be ‘in relation to’ their employment means that there must be a relationship between the subject matter of the complaint and the complainant’s employment;
(b)a complaint that an employee is able to make in relation to their employment is not at large, it must be founded on a source of entitlement, whether instrumental or otherwise;
(c)in Whelan, Collier J did not proceed on the basis that the right or entitlement to make a complaint of inquiry be itself found in the contract of employment: it is sufficient if the complaint or inquiry relates to a subject matter for which the contract of employment makes provision;
(d)Collier J did not purport to state exhaustively the kinds of complaints or inquiries which would be within, and without, s 341(1)(c).
Relevantly, complaints and inquiries include complaints or inquiries made to the employer itself in relation to the person’s employment, they are not confined to those which can be made to an external authority or to persons with the capacity to seek compliance with a legal obligation: Alam at [65] (citations omitted).
The Full Court in Alam also referred to the judgment of Rangiah and Charlesworth JJ in PIA Mortgagev King [2020] FCAFC 15; (2020) 274 FCR 225 where the majority held that it was sufficient to found the exercise of a workplace right that the employee’s complaints made in that case were ones the employee was able to make under the general law (alleged misrepresentations made before entry into the employment, and anticipatory breach of contract): Alam at [77]. The Full Court observed that there is some difference between the principles in Whelan and the approach of the majority in PIA Mortgage, but that any difference in the application of those two approaches is unlikely to be significant: Alam at [95], [97].
In accordance with the above principles I proceed on the understanding that there must be a relationship between the subject matter of the complaint/inquiry and the complainant’s employment, and the workplace right to make a complaint or inquiry in relation to their employment must be founded on a source of entitlement, whether instrumental – such as contractual, legislative, regulatory, or an Award instrument – or otherwise, such as under the general law. As to the latter, see in this Court, Judge Manousaridis’ discussion in El - Hajje v Rissalah College Limited [2022] FedCFamC2G 260, at [15]:
…as is the case under a legal system based on the common law, such as in Australia, a person is free to do anything, subject only to the provisions of the law, that freedom would include a person’s being able to make a complaint or inquiry in relation to his or her employment, subject only to any provisions of the law that prevent or restrict the person from making such complaint or inquiry.
Adverse action
It is well‑settled that the exercise of a workplace right must be a substantive, operative or immediate reason for the taking of the alleged adverse action (Alam at [14(a)], see above reasons, Section D [43].
As the Full Court stated in Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31] to which the respondents’ counsel drew my attention:
… The crucial issue is the causal relationship between adverse action and one of or more of the factors mentioned in [relevantly, s 341(1)(c)] The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts. In the present case, the question is whether the respondent has taken adverse action against the appellant [employee] because she had a workplace right to be on sick leave, or because she had exercised that right.
In Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 at [48] (applying Khiani) in a passage to which the respondents drew my attention, Bromberg J explained (at [48]):
In a general protections claim brought pursuant to s 340 of the FW Act, success depends upon the Court being satisfied that the applicant has been subjected to adverse action for one or more specific reasons identified by the FW Act as an impermissible basis upon which action adverse to the applicant may be taken. A general protections proceeding is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome…
The respondents urged the above observations as directly apposite to any issues whether the performance concerns of Mr Batten were properly substantiated or based, or other procedural issues and criticisms which may be made of the process. The Court’s focus is not whether the outcome was procedurally or substantially unfair, it is whether the reason for taking the adverse action was, or included, the proscribed reason.
The decision-maker
It is the reasons of the decision‑maker at the time of the taking of the alleged adverse action which is the focus of the Court’s inquiry. This requires an identification of the decision‑maker.
Whether a reason was an operative or immediate reason for taking the adverse action calls for a subjective inquiry into the mental processes of the person responsible for that action: Bendigo at [127], [140].
Mere awareness or consideration of the existence of the proscribed reason will not elevate it to an operative reason for the adverse action. The decision‑maker may consider the proscribed reason in order to discount it.
Recently, in Wong v National Australia Bank Limited [2022] FCAFC 155; (2022) 318 IR 148, at [25]-[28], the Full Court confirmed the principles concerning the decision‑maker and their decision‑making process. The applicable principles may be summarised as follows (in addition to those set out in Alam, above):
(a)the word ‘because’ as it appears in s 340 of the FW Act directs attention to the reason for an action, which is to be found in the state of mind of the person alleged to have taken the adverse action;
(b)it may be convenient to refer to the person whose conduct directly visited the adverse action on the employee as the ‘decision‑maker’ but his or her decision-making process may incorporate the state of mind of other people, including by adopting facts or opinions asserted by them;
(c)in asking whether an adverse action was taken by a corporate entity, the Court should remain alert to the possibility that the answer may reside in the mind of more than one natural person;
(d)a corporate employer’s reasons for dismissing an employee may reside not only in the mind of the person who made the decision, but in the mind of a person who had made an ‘indispensable contribution’ to the reasons they relied on: Wong at [37], [28] following the reasoning in Elliot v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251 at [37], where the Court found the reasons of the supervisor had been ‘inadvertently adopted’ by the manager without independent thought or analysis;
(e)to found a contravention, it is not necessary for the decision‑maker to have had conscious awareness that the contributor’s assessment was affected, motivated or explained by a reason prohibited by the FW Act, and;
(f)a person who is involved in the process leading to the decision may be a decision‑maker: Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215; (2019) 273 FCR 332 at [91]; Wong at [37, [28].
There is a distinction between a person’s reasons for doing something and the contextual influences that might bear in some way on those reasons. In Wong at [32] the Full Court agreed that it was necessary for the primary judge to consider whether the role of the applicant’s supervisor in the decision-making process amounted to more than a mere contextual influence.
E. EVIDENCE
The following comprises my consideration and findings of fact, and includes both facts agreed by the parties, and the additional findings I make, unless I state otherwise.
Overview of principal events
Inter alia, the parties’ evidence was directed to the following matters and incidents, which as the subject matter identifies, includes Mr Nolan’s claimed workplace complaints and alleged adverse actions:
(a)an October 2017 incident involving alleged racist remarks;
(b)a November 2018 incident involving an alleged unsafe act;
(c)December 2018 work by Mr Nolan relating to WHS manuals and procedures;
(d)Mr Nolan’s sales results and work performance;
(e)Mr Nolan’s general complaints about WHS issues;
(f)the 18 January 2019 team sales meeting;
(g)the 13 February 2019 meeting between Mr Batten and Mr Nolan, and his placement on the PIP;
(h)the withholding of Mr Nolan’s January 2019 sales commission;
(i)Mr Nolan’s 21 February 2019 email to Mr Batten;
(j)the March 2019 incident relating to a Parramatta City Council relocation job;
(k)events during March 2019 and April 2019 preceding Mr Nolan’s dismissal (including the issue of two warning letters);
(l)Mr Nolan’s requests for, and denial of personal leave for medical issues, and
(m)Mr Nolan’s dismissal from Grace Worldwide, including issue of the show cause letter, the show cause meeting, and issue of the termination letter.
Grace Worldwide senior management and HR model
(a) Mr Guyer
Mr Guyer was appointed to the role of regional general manager in January 2018. Although he had worked for Grace Worldwide for about 18 years, he only arrived in the Sydney branch around that time. Mr Guyer states that he had only intermittent dealings with Mr Nolan prior to February 2019, limited to interactions during branch sales meetings, and the occasional exchange of pleasantries.
Somewhat inconsistently, Mr Guyer also says he observed that shortly after Mr Batten's promotion to branch manager, Mr Nolan and Mr Batten did not have a good working relationship and that Mr Nolan did not like being managed by Mr Batten. He says he often observed Mr Nolan acting ‘very defensively’ towards Mr Batten and refusing to take Mr Batten's constructive feedback or follow his directions, particularly during sales meetings. Mr Guyer does not give any details.
As I have adverted to above, the respondents contend that Mr Guyer was the sole decision‑maker in the decision to dismiss Mr Nolan. Mr Guyer’s evidence is principally directed to his actions in February 2019 in resolving the issue escalated by Mr Batten and Mr Nolan further to the former’s decision not to approve payment of commission for Mr Nolan’s January 2019 sales results, and to Mr Guyer’s actions in administering the show cause letter to Mr Nolan on 29 April 2019, and dismissing him on 30 April 2019.
I have referred above to my concerns about the apparent partisan nature of aspects of Mr Guyer’s written evidence. By way of attempted exculpation of Mr Batten’s behaviour towards Mr Nolan, Mr Guyer swears that Mr Batten’s appointment in March 2018 was the first time Mr Batten had occupied a managerial position with Grace Worldwide, and in his view Mr Batten was “somewhat ‘green’ when it came to managerial duties”. Mr Guyer says that he never observed Mr Batten acting unreasonably or aggressively towards any member of his team, “although I have observed Mr Batten get frustrated or raise his voice, [I] have never observed Mr Batten ‘yell’ at Mr Nolan or any other member of his team”.
Having regard to his affidavit evidence and transcript of his oral evidence, and based on my observations of the witnesses under cross‑examination, I formed the distinct impression that Mr Guyer was primarily concerned to protect Mr Batten, and Grace Worldwide, and expressed his views accordingly. Accordingly, I do not place great weight on Mr Guyer’s distinction in his affidavit between frustration and aggression, and between raising of the voice and yelling. It suffices to observe that one person’s characterisation of a person’s behaviour as expressing frustration or raising their voice, is another person’s apprehension of the person behaving aggressively, or yelling.
(b) Ms Gilroy
Ms Gilroy was employed by the Grace Group from July 2018, and also at the date of her affidavit. She left that employment in September 2020. During her employment, Ms Gilroy’s office was located in Grace Group’s head office, in the executive offices on the upper level of the two storey Grace Worldwide offices. The staff in the Sydney branch office were located on the ‘downstairs’ level.
Grace Group’s HR model
Grace Group operates on a ‘decentralised’ model of HR. HR are there to provide advice and guidance to managers. They provide managers with a list of precedent, template and pro forma forms including for performance improvement plans, meeting file notes and warning notices. Grace Group’s policy and practice was that performance management and disciplinary action is handled by an employee’s direct manager at first instance, and not HR. HR do not get involved in the processes.
In cross‑examination Ms Gilroy explained that HR – and thus Ms Gilroy - do not provide any oversight. They do not confirm whether there is ‘buy in’ from the individual employee subject to any performance management or warning process or that the individual feels part of the process and possibly in control. Ms Gilroy said that there was no employee assistance program (EAP) in place at Grace Group. She introduced an EAP in about May 2020, during COVID - 19 lockdowns.
Ms Gilroy’s interactions with Mr Nolan and Mr Batten
Ms Gilroy had minimal interaction with Mr Nolan. Ms Gilroy did not interact with or see Mr Nolan save for the occasional polite greeting whenever they passed each other downstairs, in the car park, or at the rear entrance of the building. She never had any meeting with Mr Nolan during their employment.
Ms Gilroy said that shortly after she commenced with Grace Group, Ms Gilroy received emails from Mr Batten in which he said he had tried disciplinary meetings with Mr Nolan, but would now try a less formal approach and would set up some training. In support she annexes part of an email exchange with Mr Batten on 8 August 2018 which is to the above effect. In her affidavit, Ms Gilroy recounts a conversation with Mr Batten around this time which she says was about his ongoing management issues with Mr Nolan. She states Mr Batten said he sought her help about how to deal with Mr Nolan not listening to him or accepting that there was an issue. Ms Gilroy proposed to Mr Batten he have regular discussions with Mr Nolan about his sales and targets, and consider offering him more training.
Ms Gilroy had access to Grace Worldwide’s HR records, including Mr Nolan’s personnel file. She did not annex any records of notification of disciplinary meetings, notes of disciplinary meetings, or warning notices pertaining to Mr Nolan.
Ms Gilroy swears that she was not involved in preparing the March 2019 and April 2019 warning letters and did not attend the disciplinary meetings. I accept this evidence. She says she had discussions with Mr Batten before each of the meetings on 27 March 2019 and 18 April 2019 about ‘the best practice to follow’. She advised him that he just needed to follow the process. I set out Ms Gilroy’s evidence of those conversations chronologically in their context below.
Mr Nolan’s employment and performance obligations
As a project manager in GBS, Mr Nolan’s role was principally to develop existing business, secure new business opportunities, and generate sales revenue for Grace Worldwide from both individual and business customers, and prepare quotes, costings and tender documents.
Mr Nolan’s employment contract is in evidence through Ms Gilroy. It is signed and initialled by Mr Nolan and dated 16 August 2017. In the body of the contract, inter alia, Mr Nolan’s remuneration package and the position in which he was employed is stated to be set out in Schedule 1 in the contract, however the relevant 2 internally numbered pages of that schedule are missing from the contract (and it is also apparent from the page numbering of Ms Gilroy’s affidavit and annexures, were missing from the affidavit when filed). Except for the signature page to Schedule 1, there is no evidence of that schedule. I consider the contract and the schedules further in Section F in the course of determining what adverse actions are established.
Mr Nolan’s position description is non‑exhaustively set out in Schedule 2 in the contract. It is subject to change by the employer. The position description lists duties under headings ‘Principle objectives’ (sic), ‘Business Development’, ‘Sales/Administrative objectives’, ‘Personal Duties’, ‘Workplace Health and Safety’, ‘General Duties’ (these are ‘Other duties as directed by Senior Management’), ‘Scope of Position’, and ‘Measurement of Performance’ ‘Metrics’, and ‘General Targets’, and lists as ‘Relevant Documents’ a letter of engagement and contract of employment.
The ‘Principle’ objectives, Business development and Sales/administrative objectives are broadly encapsulated in the role I have set out above. They are not in dispute. Sales/administrative objectives also include working cooperatively and productively with the branch sales teams to foster generation of new leads, participating in weekly branch sales meetings, managing projects end to end, and the like.
Under the position description heading ‘Workplace Health & Safety’ Mr Nolan was tasked to:
Ensure that you work in a manner that is not harmful to your own health and safety and the health and safety of others
Cooperate and comply with all Grace Policies and Procedures including but not limited to Workplace Health and Safety, Security, Environment and Quality.
Mr Nolan received a base salary, superannuation contributions, and additionally could earn a monthly commission for meeting both specific revenue and activity targets, calculated by reference to defined categories of gross sales revenue. The terms under which commission was earnt and would be paid are set out in Schedule 3 of the contract entitled ‘Grace Removals Group Project Managers - Commission Structure and Rules’ (the Commission policy).
Further to the above Schedule 2 and the Commission policy (Schedule 3), Mr Nolan’s work performance was measured using key performance indicators and metrics (KPIs), particularly monthly sales and activity targets. As set out in the Commission policy (and initialled by Mr Nolan), and as Mr Batten swears to in his affidavit, Mr Nolan’s KPIs included within the same month to:
(i)bill at least $85,000 in ‘Type 35’ gross revenue;
(ii)have 25 face-to-face prospect meetings; and
(iii)submit 20 quotes, proposals or tenders,
and within that month that he fully record these prospect meetings and quotes, proposals and tenders in Grace Worldwide’s customer relationship management (CRM) system.
In the section headed ‘Commission Qualification and Performance Standard’ the Commission policy describes the above items (i)-(iii) as necessary hurdles to qualify for commission in each month: (i) as the ‘Commissionable Revenue Hurdle’; and (ii) and (iii) as the ‘Commissionable Monthly Activity Hurdles’. For convenience in these reasons I will also refer to them as the sales revenue target and the sales activity targets, respectively.
I note that Mr Guyer annexes to his affidavit ‘a copy of Grace’s Commission policy / plan (which also formed part of Mr Nolan’s employment agreement)’, stated to be for the period from 1 January 2019 to 31 December 2019. It sets out the same sales revenue target of $85,000 as the Commission policy, however the sales activity targets are much more detailed, comprising 6 different types and a total of 90 activity points. As neither party referred to or relied on this document in submissions I have not had further regard to it.
Mr Nolan’s sales results and work performance
Mr Nolan’s work performance is central to the respondents’ case. Mr Nolan claims the respondents’ treatment of him was unfair and unwarranted given he was a top sales performer in 2018. It is not in dispute, however, that Mr Nolan’s work performance declined in February 2019 and March 2019. He says that it did so because of stress and anxiety he was suffering from the job, as well as Mr Batten’s treatment of him, which he described as ‘disabling’. In the course of the hearing, the documentary evidence including contemporaneous correspondence from Mr Nolan establishes that external issues were at play at least from December 2018 through to March 2019.
28 June 2018 Disciplinary meeting
The only performance (non‑revenue and non‑activity target) disciplinary meeting notification or warning notice that any of the respondents’ witnesses detail in their evidence is an account given by Mr Batten of an instance when Mr Nolan was absent without notification or medical evidence in June 2018. Mr Batten states he held a disciplinary meeting with Mr Nolan on 28 June 2018 and gave him a verbal caution to the effect that if he was going to be absent ill, Mr Nolan was to call or email Mr Batten, and cancel any appointments he had with clients.
Mr Batten annexes an unsigned disciplinary meeting notification dated 27 June 2018 relating to that meeting (June 2018 Notification). It states the purpose of the meeting to be held on 28 June 2018 is to discuss the following poor work performance:
Failure to attend a meeting that was confirmed
Failure to communicate to Manager that you would not be able to attend the confirmed meeting
Whilst Mr Nolan disputes that he was absent without a medical certificate on that occasion in June 2018, he does not dispute the meeting or caution.
The above instance is the sole instance of any claim of poor work performance (non-revenue or activity related) by Mr Batten that was substantiated by any documentary record from Grace Worldwide’s records in the respondents’ evidence.
October 2017 complaint involving alleged racist remarks
Mr Nolan says he made a complaint in October 2017 about racist remarks, which was one of the reasons he was subsequently dealt with adversely. In cross‑examination Mr Nolan accepted that Mr Batten did not himself make the remarks attributed to the incident.
Mr Nolan says that in October 2017 racist remarks were made at a meeting he attended with other colleagues including a Mr Peter Ford, customer service manager, a Mr Harry Pindoria, operations scheduler, and Mr Batten. Neither Mr Ford nor Mr Pindoria was a witness. Mr Nolan says that Mr Ford directed a racist comment to Mr Pindoria. Mr Nolan set out what was said. The remarks are extremely offensive both racially and sexually, whether judged objectively by contemporary Australian standards, or by earlier Twentieth century standards. It is unnecessary to repeat the remarks in these reasons. In cross-examination, Mr Nolan said he asked Mr Ford to apologise because he thought it was the right thing to do.
Mr Nolan claims the voicing of racist remarks within the Sydney GBS team was not an isolated occurrence, so he made an informal report by phone about the above racist remarks incident to the then HR manager Ms Lyn Wallace. Mr Batten says Mr Nolan never lodged a formal complaint about it. Ms Gilroy confirmed there were no HR records of the incident. Mr Nolan accepts that he did not make a formal complaint.
Mr Batten states that he was aware that racist comments had been made by clients, and in response in about March 2018 he decided to conduct an investigation into workplace racism to increase the professionalism of staff and minimise the risk of discrimination claims, made available the company’s policies and procedures on notice boards and posted information about workplace harassment and discrimination. Whilst Mr Batten explains his actions to educate Grace Worldwide’s workforce as prompted by reports of customers’ racism, his actions are not logically responsive to the third party behaviour he describes.
I accept that Mr Nolan gave an honest account to the best of his recollection of the racist remarks incident he witnessed in October 2017, that he was concerned about that incident, and such racist incidents more generally, and that he made an informal report to HR of the racist remarks incident. I am satisfied on the evidence, and I find, that the racist remarks incident described by Mr Nolan happened as he describes, that he witnessed it, and that he reported it by phone to Ms Wallace.
It is clear from Mr Batten’s subsequent actions to educate Grace Worldwide’s workforce that the respondents accepted that a work environment in which racist remarks are made is not a safe and respectful work environment. I consider that Mr Nolan had a workplace right to complain about, and so seek to have restrained or eliminated, incidents of racism and the making of racist remarks by fellow employees against other employees that he witnessed or otherwise was privy to in the course of his employment.
I am satisfied that the making of his informal report to Ms Wallace about the October 2017 racist remarks incident constituted the exercise by Mr Nolan of his workplace right to make a complaint or inquiry relating to his employment. It follows that I reject the respondents’ submissions that first, Mr Nolan had no workplace right to complain about racist incidents at his place of employment because he was not himself subjected to the racist remarks and/or as his role was a sales role, and secondly, that only ‘formal’ complaints registered in the Grace Group’s incident management system (IMS) can be the proper exercise of a workplace right to complain or inquire if employed by Grace Worldwide.
November 2018 WHS incident involving unsafe act
Mr Nolan says that in November 2018 he witnessed a WHS incident involving an unsafe act which he subsequently flagged with Mr Batten, who berated him. Mr Nolan says his flagging of this November 2018 WHS incident was a workplace complaint or inquiry that he made that lead to adverse action against him by Mr Batten.
In his written evidence, Mr Nolan states that in November 2018 his colleague Mr Ford attempted to climb warehouse shelving in an ‘unsafe manner’ to retrieve box cartons for Mr Nolan and a colleague Mr Scott Jacka, instead of following WHS protocol. Mr Nolan says that he and his colleague stopped Mr Ford from proceeding, and obtained the cartons from a different location. Mr Nolan attributed Mr Ford’s ‘momentary lapse in judgment’ to fatigue, combined with Mr Ford’s best intentions to offer speedy assistance. Mr Nolan considered this November 2018 WHS incident to be a ‘near miss and reportable under the WHS compliance standards’. Mr Nolan says he and his colleague flagged the incident at the next branch operations meeting, in response to which Mr Batten berated Mr Nolan, called him ‘disruptive’ and accused him of creating ‘something out of nothing’.
In cross‑examination, Mr Nolan said that he also reported the incident immediately to Mr Batten, who was dismissive of the matter. Mr Nolan accepted he did not make a formal report.
In his written evidence Mr Batten denies that he berated Mr Nolan. He does not otherwise respond about the November 2018 WHS incident. Ms Gilroy says no formal report about the matter was made, nor does Grace Worldwide have any records of complaints or reports from Mr Nolan or any other person who may have witnessed incidents of Mr Batten’s angry outbursts. I apprehend that Mr Nolan’s contention is that Mr Batten’s reactions – both when he was first informed of the November 2018 WHS incident, and in the branch operations meeting – were instances of his hostile and other inappropriate behaviour in response to Mr Nolan’s attempts to report WHS risks, near misses and other related issues.
I am satisfied on the evidence that the November 2018 WHS incident occurred as Mr Nolan describes, that he was concerned it involved unsafe practice and was reportable as a ‘near miss’ under WHS compliance standards, and that he raised his concerns about the incident with Mr Batten very soon thereafter, and again in the next branch operations meeting. I am also satisfied that he considered Mr Batten’s response, both immediately, and during the meeting as dismissive, and on the second occasion as hostile.
I reject the respondents’ submission that the reporting of WHS incidents that he was involved in or privy to was not part of Mr Nolan’s role, and therefore cannot be a workplace right in respect of which Mr Nolan could make a complaint or inquiry. To so limit the identification and reporting of WHS incidents or incidents that may reasonably be considered to involve WHS issues only to persons whose contracts expressly stated their role was to so report would have a chilling effect in ensuring safe and healthy workplace environments. It is difficult to envisage how such limitations could be consistent with employers’ obligations to provide safe and healthy workplaces.
On balance, I am satisfied that the November 2018 ‘near miss’ was a reportable WHS incident and that Mr Nolan’s communications to Mr Batten rose to the level of a complaint or inquiry relating to the work environment in which Mr Nolan was employed, and thus was in relation to his employment. I am further satisfied on the evidence that by so reporting the November 2018 WHS incident to Mr Batten, and by raising it at the branch operations meeting thereafter, Mr Nolan exercised his workplace right to make a complaint or inquiry concerning WHS issues. Whatever Mr Batten’s responses, Mr Nolan did not claim that he was prevented by Mr Batten from also formally reporting the incident to HR, or lodging a report about the incident in the IMS system, both of which avenues of report were at least technically available at Grace Worldwide. It follows I find that Mr Nolan did exercise his workplace right and was not prevented from exercising a workplace right he had.
December 2018 work relating to WHS manuals and procedures
Mr Nolan describes work he did in December 2018 relating to a WHS training and development program (WHS program) he had been involved in since September 2017, and says that in late 2018 Mr Batten removed him from further involvement in the WHS program. It is not clear from Mr Nolan’s claim whether he asserts that Mr Batten’s action in directing he not continue in that WHS program constituted prevention of Mr Nolan’s exercise of a workplace right, however I proceed on the basis that he asserts that it is.
In September 2017, Mr Nolan was tasked by his then manager, Mr Barnett, to lead an initiative to produce a WHS program for the GBS team, to review team training tools and resources, identify risks and gaps, run training sessions then manage the implementation of a training plan Mr Nolan attests it seemed ‘a natural fit’ since he is a qualified trainer/assessor with extensive high-risk work experience. Mr Nolan describes the WHS program in some detail, and identifies colleagues with whom he worked on the program, specifically a Mr Michael Buck, and Mr Brooke Mackie. He states that copies of the training material and overall program were later emailed to Mr Gideon Gouws, national operations manager based in Queensland, at his request. Mr Nolan says the WHS program’s roll out started positively but lost momentum once Mr Batten was appointed as the new branch manager, due to lack of support and resource allocation.
Mr Nolan says that during November and December 2018, he and Mr Gouws discussed WHS training plans, and an induction process review was conducted. The labour‑hire provider offered to register him in their system so he could examine the on‑boarding process for casual staff. Mr Nolan says Mr Gouws emailed him the draft plan he had been working on, and Mr Nolan left printed and bound copies of the manual on the desks of Mr Batten and Mr Brunetta (another manager). I consider it is probable that the email and provision of manuals occurred in January 2019, further to the below email.
On 30 November 2018 Mr Nolan contacted Mr Gouws about training by email. Mr Nolan copied Mr Batten into his email. On 20 December 2018, further to a discussion they had, Mr Gouws emailed Mr Nolan (copying in Mr Batten) saying:
Based on our discussion I agree there is a need to have business processes in place for GBS. It’s part of our business plan but got neglected due to circumstances outside our control.
Another important component is training which will be one of our key focus areas for 2019.
As a starting point for GBS please review the attached documents for FF&E, this can be used as a framework for something similar for GBS. … [screenshot]
Let’s touch base once you worked through the above.
Mr Gouws followed up his email with a further email to Mr Nolan on 19 January 2019 suggesting they catch up to discuss. They arranged to meet on 24 January 2019. Mr Nolan’s evidence is that Mr Batten cancelled the meeting when he found out about it.
In his written evidence Mr Batten says that throughout 2018 Mr Nolan kept trying to get involved in the WHS program, and Mr Batten repeatedly told Mr Nolan it was not part of Mr Nolan’s job, and that he should concentrate on his sales role. He states that Mr Nolan eventually discontinued his work on the WHS program.
Under cross-examination, inconsistently with his affidavit evidence, Mr Batten said that when he was appointed branch manager he did not have any knowledge about the WHS program. He said when he later found out about the program, he made enquiries, and suggested Mr Ford as the appropriate person to become involved because it fell under Mr Ford’s portfolio, while Mr Nolan focused on his sales tasks. He does not state any timeframe in which he effected this change in Mr Nolan’s responsibilities. In oral evidence, Mr Batten said that he did not have a proper handover from Mr Barnett when he became branch manager. Given that Mr Batten was a project manager in the same team as Mr Nolan as at September 2017, and a peer until March 2018, however, and both then reported to Mr Barnett, I do not accept Mr Batten’s denial of any prior knowledge at all of the WHS program and Mr Nolan’s general involvement in the period.
Mr Batten annexes the 30 November 2018 email from Mr Nolan to Mr Gouws sent at 5:12pm and copied to Mr Batten (above at [105]), Mr Batten’s email directly to Mr Nolan in response, and Mr Nolan’s reply. He did not include Mr Gouws. 30 November 2018 was a Friday. Mr Batten sent his email at 8:34pm, after hours. Their exchange was as follows:
Hi Ken,
Any particular reason you went above myself to Gideon, and then above Gideon to Nicki?
I understand these issues, but why not let your manager deal with them rather than escalate well above my manager as well as myself.
To which Mr Nolan replied shortly thereafter:
No issues escalated above anyone
Only enquiry to establish a baseline
Take personalities out of the equationBe glad there is engagement
If you have all info, copy all and say “thanks, I will cover these”
Or,Show your unconditional support
Because we both wanna grow GBS
Your call ole son …
In his written evidence, Mr Batten says Mr Nolan’s response was ‘inappropriate and dismissive’, and emphasised Mr Nolan’s reference to him as ‘ole son’. He perceived their relationship as having broken down. He states that nonetheless, he did not take any action. Mr Nolan says that Mr Batten never asked him to stop using the term ‘ole son’. For his part, Mr Nolan did not lodge any complaint with HR, or anyone else about Mr Batten’s email and its late hour.
It is evident from the above exchange that Mr Batten was quick to perceive challenges to his authority, and quick to take offence. He perceived Mr Nolan’s initiatives as undermining his managerial control. Mr Batten’s email was inappropriate and petty. It invited the response it received.
The only documentary record supporting Mr Batten’s evidence that he directed Mr Nolan not to continue his involvement in the WHS program is Mr Batten’s late night email on 30 November 2018. Mr Nolan accepts that prior to his annual performance review (which was underway in January 2019), Mr Batten had directed Mr Nolan to cease involvement in the WHS program.
I am satisfied on the above evidence that at least by the end of 2018 or early 2019 Mr Batten had directed Mr Nolan to cease work on the WHS program, and to focus on his sales tasks. Further to the duties listed in the position description in Mr Nolan’s contract (above at [76]) Mr Batten as his manager, had the authority to direct what general duties Mr Nolan perform. It was reasonable that Mr Batten direct Mr Nolan to focus on his sales role. I conclude that upon Mr Batten’s direction, it was not thereafter part of Mr Nolan’s work role and responsibilities to continue to participate in the WHS program.
Accordingly, I accept the respondents’ submission that at least as at December 2018, Mr Nolan did not have a relevant workplace right – to continue to work on the WHS program - to exercise. This aspect of Mr Nolan’s claim fails, and need not be considered further.
Mr Nolan’s general complaints about WHS issues
Mr Nolan’s written evidence is that during December 2018 and January 2019 he attempted to report risks and WHS issues numerous times to Mr Batten, who rebuffed him. Mr Nolan claims his complaints about WHS issues lead to Mr Batten taking adverse action against him.
Mr Nolan says that at his annual performance review (below at [128]) Mr Batten emphasised that ‘L&D’ (learning and development) was not part of Mr Nolan’s role and he should focus on his job. Mr Nolan says he acknowledged the WHS program had ceased, but stated that reporting WHS incidents remained one of his responsibilities as an employee. Mr Nolan does not otherwise specify any WHS incident or issue he reported at this time.
Mr Nolan makes generalised and imprecise assertions of attempts to report risks and WHS issues in December 2018 and January 2019, which such risks and WHS issues he does not particularise. Mr Nolan submits every employee should be alert to WHS risks and issues and refers to general WHS compliance obligations. It may be accepted that this is so, however, it does not follow that by non‑specific claims of attempts to report WHS risks and issues to Mr Batten that Mr Nolan has particularised any complaint or inquiry he made at this time (save for those addressed already addressed in these reasons).
Ms Gilroy’s evidence is that Grace Worldwide never received any formal reports about WHS issues from Mr Nolan.
In these circumstances, I am not satisfied that in relation to his generalised assertions of attempts to report risks and WHS issues in December 2018 and January 2019 Mr Nolan has identified any workplace right that he exercised, or that he was prevented from exercising, within the meaning of s 341(1)(c)(ii) of the FW Act. This aspect of Mr Nolan’s claim fails.
Mr Nolan’s 2018 sales results
The 2018 calendar year sales results establish that Mr Nolan obtained total sales of $1,496,175, and he was ranked third overall of the 15 Grace Worldwide sales and operational team members. Mr Nolan was the top ranked project manager in 2018.
Whilst the respondents ultimately do not dispute these results, Mr Batten claims they were achieved with his assistance, and in large part due to Mr Batten’s transfer of ‘almost all’ of his existing client base built before he became branch manager.
Mr Batten says throughout 2018 he and Mr Barnett also attempted to assist Mr Nolan with his sales figures by passing jobs to him, which helped boost his sales. Mr Batten says once the practice stopped, Mr Nolan’s sales results dropped. Mr Batten attests he tried to motivate Mr Nolan instead of formally performance managing him, and at the end of each month he would review Mr Nolan’s sales figures to see if he could get him ‘over the line’. Mr Batten claims he also ‘repeatedly’ reminded Mr Nolan to update his CRM to ensure his activity targets were being met.
As I have said above, Mr Barnett was Mr Batten’s predecessor as the Sydney branch manager (until March 2018, when he was promoted to national sales manager), and the person who employed Mr Nolan. Mr Barnett was not called as a witness.
Mr Nolan disputes the degree of assistance provided.
Contrary to the criticisms Mr Batten makes in his affidavit about Mr Nolan’s 2018 sales figures, in his 13 February 2019 email (subject line ‘RE: Sales plan draft’) Mr Batten sent to Mr Nolan after their meeting that day (the PIP meeting I consider below), and to which he attached a draft PIP, Mr Batten commences by acknowledging Mr Nolan’s 2018 sales results, saying ‘As discussed, 2018 was a great year …’.
Given the broad generality of Mr Batten’s above criticisms of the 2018 sales results and his lack of specificity and substantiation – for example, as to dates, as to actions, as to the respects in which he provided the claimed assistance, whilst I accept that assistance was provided, I do not place great weight on the degree and effect of the assistance asserted. In cross‑examination, both Mr Batten and Mr Guyer accepted that Mr Nolan was the top performing project manager in 2018.
The evidence establishes, and I find, Mr Nolan achieved the 2018 sales results he evidenced.
Mr Nolan’s January 2019 performance review
Mr Nolan asserts that his performance review in early 2019 was never completed, but he and Mr Batten held ‘differing views on the purpose and objective of this annual process’ (below at [217]).
Mr Batten says he had ‘informal meetings’ with Mr Nolan on 7 and 9 January 2019 to discuss his ‘ongoing concerns with his performance’. There are no underlying documents in evidence recording any such meetings, whether ‘informal’ or part of an annual performance review.
Ms Gilroy, however, annexes an email to her from Mr Nolan dated 16 January 2019, which establishes that by 9 January 2019 by an auto‑generated email to Mr Nolan from ‘Kronos’, Mr Batten had electronically re‑issued an annual performance review. The ‘Kronos’ email states as follows: ‘Following your recent Annual Review meeting your manager has re-issued the review form to you for acknowledgment …’, and was available through a login. In his 16 January 2019 email, Mr Nolan asks Ms Gilroy for her assistance as follows:
Once the review meeting has been held, are we able to insert further comments into the document before signing off?
Hope all is well and all the best for 2019!
In reply Ms Gilroy advised where additional comments could be inserted in the document.
Ms Gilroy states that the above was the only email correspondence she ever received from Mr Nolan.
I am satisfied on the evidence of the above email chain that Mr Nolan’s annual performance review was in progress in around the first part of January 2019. It is also reasonable to infer from the above, and I find, that the respondents had available to them to adduce as evidence in the proceeding the performance review form issued by Mr Batten referred to in the above email chain.
18 January 2019 sales meeting and email
Mr Nolan claims that conflict at the 18 January 2019 sales meeting and an email with the subject line ‘cash sale usage’ sent by Mr Batten and copied to Mr Guyer immediately following Mr Batten’s exit from the meeting are examples of his differential treatment by Mr Batten and his general adverse action against him. Mr Nolan submits Mr Batten acted unreasonably and aggressively towards him during this incident (meeting and email). Mr Batten concedes that there was conflict, but states he was frustrated, not angry.
It is not in dispute that there was conflict between them at the January 2019 team sales meeting that both they and Mr Barnett and other project managers attended, that Mr Batten left the meeting before it concluded – the sales meeting continued in his absence - and sent Mr Nolan the email entitled ‘cash sale usage’, copied to Mr Guyer.
Mr Nolan attests that at the team sales meeting held on 18 January 2019 he was subjected to an ‘angry outburst’ from Mr Batten. Mr Nolan says when he agreed with Mr Barnett’s frustrated comments in relation to outstanding debtors as part of an open discussion, Mr Batten ‘lashed out’ at him and leapt out of his chair to open the meeting room door and yelled at Mr Nolan to ‘get in his office’. Mr Nolan says he did not move and suggested to Mr Batten they catch up later once Mr Batten had ‘calmed down’.
Mr Batten swears that during the 18 January 2019 meeting, Mr Batten discussed generally the issue of improper use of cash sales resulting in outstanding debtors. Mr Batten says during the discussion, Mr Nolan was engaging in a separate conversation and talking over him, before the following exchange took place:
Mr Batten:Ken what is so important that you need to talk over me? This issue is directly caused by yourself and I do not appreciate you talking over me. How about we continue this conversation in my office. I need jobs paid up front, or correctly put onto account, no more excuses.
Mr Nolan:I think you need to calm down. I did not mean to talk over you. I am not going to meet with you until you are calm. I am not meeting with you until I am ready.
I have concluded that Mr Nolan has established the following constitute workplace rights that Mr Nolan exercised within the meaning of s 341 of the FW Act:
·the October 2017 complaint;
·the November 2018 WHS complaint;
·the 14 February 2019 complaint;
·the 21 February 2019 complaint.
Mr Nolan has not otherwise established that he had, exercised or was prevented from exercising the other of the workplace rights he claimed.
The Adverse Actions taken
As recorded earlier in these reasons at Section B, [14]‑[17], Mr Nolan alleged, and the respondents have admitted or conceded that they took, the following actions against Mr Nolan, and that they are adverse actions within the meaning of s 342(1) of the FW Act (adopting the itemisation at [14]):
(i)placing him on the 13 February PIP;
(iii)issuing of written warning on 27 March 2019, and issuing of a second written warning on 18 April 2019;
(vi)holding a show cause meeting on 29 April 2019;
(viii)dismissing him from Grace Worldwide on 30 April 2019,
in respect of each of the above adverse actions, the respondents dispute that they were taken ‘because’ Mr Nolan exercised or threatened to exercise any of the workplace rights he claimed.
As I also there recorded, Mr Nolan alleged the following adverse actions were taken against him, which the respondents deny taking, and / or deny were adverse actions within the meaning of s 342(1) of the FW Act (again adopting the itemisation earlier in these reasons at [14]):
(ii)denial of January 2019 sales commission, and withholding of the commission amount ‘properly’ due;
(iv)on 18 April 2019, setting an unrealistic 14-day timeframe for improvement of his work performance;
(v)denial of sick leave in April 2019;
(vi)raising of new claims of insubordination and public criticism of Mr Batten at the show cause meeting on 29 April 2019 without notice;
(vii)subjecting Mr Nolan to differential treatment including being berated, bullied, and harassed by Mr Batten.
It is convenient first to address whether Mr Nolan has established that any of the above denied actions were adverse actions within the meaning of s 342(1) of the FW Act, before turning to determine the decision‑maker for each adverse action, and thence, whether the respondents have discharged their onus under s 361 of the FW Act.
(ii)Denial of January 2019 sales commission and withholding of the commission amount properly due
The respondents do not concede that the denial of January 2019 sales commission and withholding payment of commission constitutes adverse action, arguing that ‘the withholding arose as a necessary contractual consequence of Mr Nolan failing to discharge all of the prescribed conditions set out in the [Commission policy]’, and further that the decision to withhold payment did not amount to adverse action within s 342(1) of the FW Act, as:
(a)it was not dismissal;
(b)it did not amount to injury to Mr Nolan in his employment, as commission it was an inherently ‘at risk’ component of an employee’s remuneration and Mr Nolan had no guarantee of receiving it;
(c)it was not any alteration of Mr Nolan’s position to his prejudice as it was consistent with his contract of which the Commission policy formed part;
(d)it was not discrimination between Mr Nolan and other employees, of which there was no evidence anyway.
The contract states that Mr Nolan’s annual remuneration package comprises a base salary provided at item 5 of Schedule 1, and superannuation contributions, and that in addition to the base salary specified, ‘the only guaranteed remuneration benefits available to [you] under this contract are as specified in Item 9 of Schedule 1’. There is no Schedule 1 to the contract in evidence (above at [75]). It may be inferred that Item 9 references the Commission policy, however there is no obvious cross‑reference from the body of the contract to the Commission policy. The internal page numbering is continuous across the body of the contract and through the schedules (noting that 2 pages of Schedule 1 are missing). The Commission policy in substance provides that Mr Nolan’s remuneration also comprised a commission component, dependent upon certain qualifying criteria. I consider it reasonable to infer from the contract and the Commission policy that commission formed part of his remuneration, if earned. Contrary to the respondents’ submission, it is not apparent that Mr Nolan had ‘no guarantee of receiving it’.
I considered and made findings on Mr Nolan’s claim to commission for January 2019, Mr Batten’s actions in denying commission based on certain ‘invalid sales’, and the dispute relating to those actions at [189]-[214] above. Based on Grace Worldwide’s sales results for the month of January 2019, and on the gross sales revenue that Mr Nolan calculated, I found that Mr Nolan’s gross sales revenue for January 2019 exceeded his sales revenue target. He lodged his claim for commission accordingly. The denial of Mr Nolan’s claim to commission was a matter determined by Mr Batten, and was subject to dispute, which I concluded was not disclosed before Mr Nolan received his monthly pay in mid‑February 2019. In the absence of substantiation of Mr Batten’s claims that gross sales revenue was overstated, I was not satisfied on the evidence that the respondents had established that all the overstatements Mr Batten claimed were made out.
In these circumstances, I am satisfied on the evidence that the denial of commission injured Mr Nolan in his employment amounting to adverse action within s 342(1) of the FW Act. The respondents’ submission that denial of commission was an automatic consequence of Mr Nolan failing to meet the qualifying criteria under the Commission policy ignores the effect of the action, and does not have regard to the evidence that whether particular sales did or did not qualify for commission was not automatic but – on the evidence - subject to managerial determination. The submission confuses the action with the reason the action was taken. I find that by its denial of commission and consequential non-payment of the commission amount claimed, Grace Worldwide took adverse action.
Whether the denial of commission and withholding of payment was taken for, or for reasons including, a proscribed reason I determine below.
(iv) On 18 April 2019, setting an unrealistic 14-day timeframe for improvement of his work performance
A 14-day timeframe for improvement was set at the April meeting, and effected by the 18 April Warning. It is stated in the April Notes – Exhibit version. I have set out the evidence and made findings at Section E, [285]-[308]. The respondents submit that having regard to the evidence, the adverse action did not occur as alleged by Mr Nolan, indeed there was no such adverse action.
For the reasons I said in my consideration of Mr Batten’s evidence on the setting of the 14‑day timeframe, I did not find Mr Batten an honest witness on the matter, and on the evidence of the April Notes – Exhibit version, and the 18 April Warning, I am satisfied that the 14‑day timetable for improvement was set (per the Notes, not including the 2 public holidays), and that it amounted to adverse action within the meaning of the FW Act. Whether it was taken for, or for reasons including, a proscribed reason I determine below.
(v) Denial of sick leave in early April 2019
I have found that Mr Batten did not deny Mr Nolan the right to take sick leave. Mr Nolan admits that he did not otherwise – through HR – apply for sick leave, or provide his 8 April medical certificate to HR to substantiate his absence on 8 April 2019.
Mr Nolan did not make the complaint or inquiry to request sick leave he alleged: what he did was merely inform Mr Batten that he had been ill on 8 April 2019 and had a medical certificate to cover that day, and 2 more days that he did not take, and on 18 April 2019 restate and so notify Mr Batten of the above, and his GP’s advice, none of which constituted the exercise of a workplace right, or the prevention of the exercise of that right within the meaning of ss 340 and 341 of the FW Act. As there was no denial of sick leave – it not having been requested – Grace Worldwide took no action amounting to adverse action within the meaning of ss 340 and 342(1) the FW Act. Mr Nolan’s claim of adverse action in relation to sick leave in April 2019 fails.
The decision-maker and their reasons for the adverse actions
(1) Adverse actions taken by Mr Batten
It was not seriously in dispute, and the evidence establishes that Mr Batten alone decided to take the adverse actions of:
·placing Mr Nolan on the 13 February PIP, and as a consequence, subjecting Mr Nolan to the PIP process;
·issuing the 27 March 2019 written warning, and the 18 April 2019 written warning;
·setting the 14‑day improvement timeframe stated in the 18 April 2019 warning, and
·denial of the claim for January 2019 sales commission, and so not paying the commission claimed.
I so find.
Reasons for adverse actions taken
As to the imposition of the PIP and PIP process, Mr Batten’s evidence was that he placed Mr Nolan on the 13 February 2019 PIP solely because Mr Nolan was not meeting his KPIs of his sales revenue target and his sales activity target and his pipeline for attaining those targets was insufficient – thus imposing the 13 February PIP, and the PIP process was aimed at ‘shocking’ Mr Nolan to lift his performance, attain his targets and improve his pipeline, and to maintain the improved performance. The actuating reason for each of these adverse actions was Mr Nolan’s poor performance.
Issuing the 27 March 2019 warning, and issuing the 18 April 2019 warning were continuations of the PIP process started on 13 February 2019. Mr Batten’s evidence was that further to the commencement of the PIP process by the 13 February 2019 PIP, each of the 27 March 2019 warning and the 18 April 2019 warning was imposed solely because by the time of the warning in each case Mr Nolan had not improved and still was not improving his sales performance – he had not met his sales revenue and sales activity targets, and his pipeline of future activities to generate future revenue to meet those targets, and as at 27 March 2019 and as at 18 April 2019, respectively, he showed no sign that he would do so. Additionally, I am satisfied that because of Mr Nolan’s ongoing failure to perform in those respects, Mr Batten imposed greater, and shorter targets.
As to the setting of the 14‑day improvement timeframe on 13 April 2019, I consider that timeframe did not objectively appear achievable. However, notwithstanding that I did not accept Mr Batten’s evidence that he had or would not amend the timeframe to allow for Mr Nolan’s 4 days of pre‑approved leave, Mr Batten’s reasons for imposing the timeframe were the same – that he did so solely because of Mr Nolan’s continuing poor sales revenue and sales activity performance and failure to meet the targets set or to have in place the pipeline of activities to meet those targets.
Mr Batten’s evidence as to why he acted in each case was direct, unambiguous and not shaken in cross‑examination. I accept it.
Mr Batten’s reasons are substantiated by the documented evidence:
(i)of Mr Nolan’s failure to meet his sales revenue and sales activity targets in January 2019, and thereafter in each of February and March, and as at 18 April 2019 that he would not meet those targets in April – whether or not the 4 days of leave were taken into account, and
(ii)that Mr Nolan did not have the pipeline of activities to achieve those targets,
·first, under the Commission policy in respect of January 2019 and February 2019; and then
·the lesser revenue target, and the varied sales activity target imposed under the 13 February PIP in respect of the balance of February and March, and then
·under the updated PIP, in respect of March and April.
My criticisms of Mr Batten’s behaviour and his lack of credit, and the conflict evident between Mr Batten and Mr Nolan do not impugn his evidence as to why he acted. As the authorities state, the focus of the Court is not whether the outcome was procedurally or substantially unfair, it is whether the reason for the adverse action was, or included – as a substantial and operative reason, the proscribed reason.
I accept Mr Batten’s evidence that he did not take the action of subjecting Mr Nolan to the 13 February 2019 PIP because Mr Nolan made the October 2017 complaint and/or the November WHS 2018 complaint [179]. I accept Mr Batten’s evidence that he did not impose the 27 March 2019 warning, the 18 April 2019 warning, or the 14 day improvement timeline because Mr Nolan made any one or more of the October 2017 complaint, the November 2018 complaint, the 14 February 2019 complaint, and the 21 February complaint.
As to the denial of the January 2019 sales commission and consequent non‑payment of the commission, I am satisfied on the totality of the evidence and further to the findings of fact I have made culminating in my findings at [214] that:
(a)under the Commission policy and further to his KPIs, Mr Nolan was required to meet both his sales revenue target and his sales activity targets for the month in order to qualify for commission for that month; Mr Nolan did not meet both his sales revenue target and his sales activity targets in January 2019;
(b)it follows, that I accept the respondents’ submission that the denial of Mr Nolan’s claim to sales commission for January 2019 was an automatic and necessary contractual consequence of his failure during January 2019 to meet the monthly commission hurdles and KPIs in his contract and under the Commission policy forming part of his contract, and consequently, there was no amount of sales commission properly payable to Mr Nolan, and
(c)accordingly, the respondents have established that Mr Nolan was denied sales commission for January 2019, and did not receive the commission he claimed for January 2019 because he did not meet both his sales revenue target and his sales activity targets in January 2019 and therefore did not qualify for commission under the Commission policy.
As observed in Alam at [24], that Mr Nolan did not meet both his sales revenue target and his sales activity targets in January 2019, and therefore did not qualify for commission under the Commission policy is so obvious and so serious a reason as to swamp any other reasons. Mr Nolan was not denied sales commission because, or for reasons that included, that he had made any of the complaints upon which he relies.
Conclusion on reasons for adverse actions taken up to Easter 2019
It follows from the above, and I find, that the actuating reason Mr Batten and thus Grace Worldwide denied Mr Nolan sales commission for January 2019 was solely because he failed to qualify for the commission as required under the Commission policy, and that that reason was exclusive of any other reason.
Further following the above I find that Mr Batten’s actuating reason for each of the acts of:
(a)placing Mr Nolan on the 13 February PIP, and as a consequence, subjecting Mr Nolan to the PIP process;
(b)issuing the 27 March 2019 written warning, and the 18 April 2019 written warning; and
(c)setting the 14‑day improvement timeframe stated in the 18 April 2019 warning,
was the non‑proscribed reason stated by Mr Batten that I have accepted above – in sum, because of Mr Nolan’s poor work performance, and that that reason in each case was exclusive of all other reasons.
Accordingly, I conclude that none of the PIP, 2 warning notice actions, and the 14 – day improvement timeframe actions, or the denial of January sales commission and withholding of payment action was taken for a reason prohibited by the FW Act, specifically, the exercise of workplace rights found above in Section F at [397], and that the respondents have rebutted the presumption prescribed by s 361 of the FW Act.
(2) Adverse Actions taken by Mr Guyer - show cause and termination actions
Mr Guyer claimed to have taken the following adverse actions and been solely the person who decided to do so. Mr Nolan did not challenge or dispute that he did so:
(a)holding the show cause meeting on 29 April 2019; raising new claims of insubordination; and
(b)termination.
For the following reasons I am satisfied that, and I find Mr Guyer was the relevant, and sole decision‑maker for the above adverse actions.
It is apparent from their written evidence, and the internal correspondence between the respondents’ witnesses, that further to the 18 April email, Mr Guyer accepted what Mr Batten told him of his interactions with Mr Nolan, and his claims about Mr Nolan’s behaviour and attitude, and in turn that Ms Gilroy accepted what Mr Batten said. In addition, Mr Guyer was aware of Mr Nolan’s poor sales and sales activity performance since January 2019.
However, Mr Guyer’s unchallenged evidence is that notwithstanding his receipt of Mr Batten’s 18 April email he had not decided what he was going to do until after he met with Ms Gilroy on 23 April 2019, and was informed of his options. Since Mr Barnett had departed in April 2019, Mr Guyer was reluctant to lose another sales team member. He was not challenged on this evidence. His further unchallenged evidence is that he decided to proceed with the show cause letter and meeting, only after having considered Ms Gilroy’s advice as to his options, and that was his decision alone.
Mr Guyer’s unchallenged evidence is that he had not made up his mind what action he might take as a consequence of the show cause meeting, and that he did not make up his mind to terminate Mr Nolan’s employ until after that meeting and receipt and consideration of Mr Nolan’s response letter.
In the circumstances, whilst I consider that by the 18 April email Mr Batten had input into Mr Guyer’s decision‑making process, Mr Batten’s role in Mr Guyer’s decision‑making amounted to no more than merely a contextual influence. In particular, Mr Batten’s desire expressed in the 18 April email to move to termination was not an indispensable contribution to Mr Guyer’s reasons actively or inadvertently adopted by Mr Guyer. I am satisfied that Mr Guyer brought an independent analysis to the steps he took, and the reasons for taking them, informed by Ms Gilroy’s advice of the steps available to him at the time.
As I have said earlier in these reasons, Ms Gilroy’s role was limited to advising Mr Guyer on the available actions. The evidence establishes that her participation was limited to supporting Mr Guyer in his decision‑making process, and assisting by the preparation of the show cause letter and the termination letter. She otherwise acted as a sounding board for Mr Guyer. To the extent that Ms Gilory contributed to Mr Guyer’s decision‑making process, and I consider she did so to the extent I described in Section E of their meetings and conversations in the period 23 April 2019 to 30 April 2019, I find that she was no more than a contextual influence, she did not make an indispensable contribution to Mr Guyer’s decisions identified above.
For the above reasons, I am satisfied that Mr Guyer was the relevant decision‑maker for each of the adverse actions of holding the show cause meeting on 29 April 2019; raising new claims of insubordination, and termination. I so find.
Reasons for adverse actions taken
I have recorded at [351] the reasons Mr Guyer gave for taking each of the above adverse actions.
Mr Guyer’s evidence as to why he acted in each case was direct, unambiguous and not shaken in cross‑examination. I accept it.
It was also evident from Mr Guyer’s written and oral evidence that he decided to terminate Mr Nolan’s employment only after the show cause meeting and because of Mr Nolan’s responses in that meeting and in his written response.
I am satisfied that the reasons stated by Mr Guyer are the actual reasons for taking each of the above adverse actions. I find that Mr Guyer did not issue the show cause, conduct the show cause, add the claim of insubordination, or terminate Mr Nolan’s employment because, or for any reason including any of the workplace rights established by Mr Nolan, namely those I have found at [397] above.
I find that none of the adverse actions that I have found established (above at [398]-[408]) was taken for a reason prohibited by the FW Act, and that the respondents have rebutted the presumption prescribed by s 361 of the FW Act.
G. CONCLUSION AND DISPOSITION
The applicant has not demonstrated that Grace Worldwide and Mr Batten contravened the FW Act as alleged.
The application is dismissed.
I certify that the preceding four hundred and thirty-five (435) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Baird. Associate:
Dated: 20 July 2023
- AGLC
- Nolan v Grace Worldwide (Australia) Pty Ltd [2023] FedCFamC2G 623
- Case
- [2023] FedCFamC2G 623
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether Mr Nolan had engaged in protected activities that led to adverse actions by his employer in contravention of the Fair Work Act 2009 (Cth). The court had to determine if Mr Nolan's dismissal was due to exercising his workplace rights, such as raising health and safety concerns and reporting bullying, or if it was based on legitimate performance issues. The court also had to consider whether the statutory onus under s 361 of the FW Act had been discharged to establish that the decision-maker was not involved in the adverse action.
Justice Mortimer found that Mr Nolan's dismissal was due to ongoing poor work performance and insubordinate behaviour, not for exercising his workplace rights. The court held that Grace Worldwide had not contravened the Fair Work Act by dismissing Mr Nolan. The decision maker, Mr Batten, was not involved in the contravention as the dismissal was based on performance issues. The statutory onus was not discharged, and therefore, Mr Nolan's application was dismissed.
In conclusion, the court ordered that Mr Nolan's application be dismissed, and the bankruptcy proceedings against him remain stayed until 10 days after the final determination of this case. The lapsing date of the creditor’s petition was extended to 12 September 2023.
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Background to the litigation
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Evidence
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