O'Kane v Freelancer International Pty Ltd & Anor
[2018] FCCA 933
•27 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| O'KANE v FREELANCER INTERNATIONAL PTY LTD & ANOR | [2018] FCCA 933 |
| Catchwords: INDUSTRIAL LAW – Claim by employee that employer contravened s.340 of the Fair Work Act 2009 (Cth) (FW Act) by dismissing him because employee made a complaint in relation to his employment – whether the applicant uttered the words he claimed to have uttered (Asserted Words) and on which he relies for conveying a complaint – whether if uttered the Asserted Words conveyed a “complaint” within the meaning of s.341 of the FW Act – whether if the Asserted Words conveyed a complaint whether the complaint was underpinned by an entitlement or right – whether assuming the applicant made a complaint within the meaning of s.341 of the FW Act the employer dismissed the employee – whether if the employee made a complaint and the employer dismissed the employee it did so for a reason or for reasons that did not include as an operative factor the employee’s having made a complaint – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.12, 340, 341(1)(c)(ii), 342, 360, 361(1), 386 Industrial Relations Act1991 (NSW), s.245 |
| Cases cited: Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep 1 Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284 Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 |
| Applicant: | MATTHEW O'KANE |
| First Respondent: | FREELANCER INTERNATIONAL PTY LTD ACN 134 845 748 |
| Second Respondent: | ROBERT MATTHEW BARRIE |
| File Number: | SYG 3488 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing dates: | 23, 24, 25 & 30 October 2017; 6, 7 & 9 March 2018 |
| Date of Last Submission: | 9 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 27 April 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Boyce |
| Solicitors for the Applicant: | Solve Legal Pty Ltd |
| Counsel for the Respondents: | Mr M Seck |
| Solicitors for the Respondents: | Piper Alderman |
ORDERS
The application is dismissed.
The parties have liberty to apply by 18 May 2018 in relation to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3488 of 2016
| MATTHEW O'KANE |
Applicant
And
| FREELANCER INTERNATIONAL PTY LTD ACN 134 845 748 |
First Respondent
| ROBERT MATTHEW BARRIE |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In this proceeding the applicant, Mr O’Kane, claims the first respondent (Freelancer) contravened s.340 of the Fair Work Act 2009 (Cth) (FW Act) by dismissing him from his employment because Mr O’Kane made a complaint in relation to his employment with Freelancer. Mr O’Kane also claims the second respondent, Mr Barrie, was involved in Freelancer’s contravention of s.340 of the FW Act.
Mr O’Kane’s claims arise out of a small set of undisputed facts. It would be useful, therefore, if I set out those facts before I describe in greater detail Mr O’Kane’s claims, and the matters on which Freelancer and Mr Barrie rely for opposing them. I will then identify the issues that arise.
Basic undisputed facts
The starting point is a short but heated exchange of words between Mr O’Kane and Mr Barrie. The exchange occurred at approximately 11:15 am on 17 August 2016 at a meeting at Freelancer’s premises at George Street, Sydney. At that time Mr O’Kane was employed by Freelancer as Vice President of Operations and Talent; and Mr Barrie was employed by Freelancer as its chief executive officer.
Although there is a dispute about what was said, there is no dispute about the event that immediately preceded the exchange of words. It was a meeting between Mr Barrie, Mr Koch, Mr O’Kane, and the mother of Mr X.[1] Mr X was an employee of Freelancer whose employment Freelancer had terminated on 18 April 2016. Mr Koch was employed as Freelancer’s Deputy Chief Financial Officer. At that meeting Mr X’s mother claimed Freelancer had retained some of Mr X’s property. That was true because during the meeting Mr O’Kane gave to Mr X’s mother a jacket, and a bag containing items, that belonged to Mr X. There is also no dispute that, before the meeting with Mr X’s mother, Mr X had engaged in conduct Mr O’Kane, Mr Barrie, and other employees of Freelancer, considered troubling; and that part of that troubling conduct consisted of communications Mr X directed to Mr O’Kane. Finally, there is no dispute that, after the meeting with Mr X’s mother, Mr Barrie initiated the exchange of words with Mr O’Kane; and that, in the course of the exchange, Mr Barrie blamed Mr O’Kane for Mr X’s recent troubling conduct.
[1] I do not identify the name of Mr X because the evidence suggests he suffers or at least suffered from mental illness and I do not wish to aggravate any condition he may have or may have had by identifying Mr X by name in circumstances where it is not necessary that his identity be revealed.
Shortly after the exchange of words Mr O’Kane left Freelancer’s premises. As he was leaving Mr O’Kane said some words to Mr Koch. Mr O’Kane then made his way to Gordon to attend a minor eye procedure he had previously arranged to attend. On his way to Gordon, at 11:40 am, Mr O’Kane sent the following text message to his wife (errors in original):[2]
Matt [that is, Mr Barrie] just told me this is my fault because j didn’t sent [Mr X’s] jacket to the address j didn’t have. I told him I’m taking the day off and walked out.
[2] Affidavit of M P O’Kane 14.07.2017, [162], exhibit MK-1, page 183
Later on 17 August 2016 Mr O’Kane exchanged messages with Mr Nicholas De Jong through “Google Hangout”. Mr De Jong was then employed by Freelancer as Vice President, Security and Operations. The messages were as follows (errors in original):[3]
[3] Affidavit of N P De Jong 05.09.2017, annexure “NPDJ-5, pages 31, 32
Mr O’Kane:Look mate. I’m not sure we should talk anymore.
De Jong: ??
O’Kane:It’s not you.
I just left.
De Jong:ha ha ha
O’Kane:No seriously.
I just left you wee the last message to come up. I was deleting my account from my phone.
But you are a good guy.
So.
Look. I have my boss’s ex personal trainer fixated on me
I have no support to fix this problem
I have been a super good sport
And Matt just told me that I’m to blame so how.
So. I haven’t worked out what I’m going to do from here.
Anyway. Now you know. I’m signing off. Catch up for beers when you get back if you’re keen. M
At 9:32 am on 18 August 2016 Mr O’Kane sent the following text message to Mr Halim, who was then employed by Freelancer as Vice President, Growth:[4]
Taking a couple of days off. I’m getting more and more erratic messages from [Mr X] and based on expert advice I need to avoid the area until it settles down.
[4] Affidavit of M P O’Kane 14.07.2017, [174], exhibit MK-1, page 191
At 11:24 am on 18 August 2016 Mr O’Kane received the following text message from Mr Barrie:[5]
[5] Affidavit of M P O’Kane 14.07.2017, [175], exhibit MK-1, page 194
Hi Matt, based on your conversations with Chris and Nick yesterday, together with your absence today, I understand that you have resigned. That’s unfortunate and I wish the best for you in your future endeavours.
Regards Matt
Mr O’Kane responded by sending an email to Mr Barrie at 12:15 pm on 18 August 2016 in which he said the following:[6]
[6] Affidavit of M P O’Kane 14.07.2017, [177], exhibit MK-1, page 196
Hi Matt.
No, I have not resigned, not sure why you would think that.
. . . .
I am saddened that your first reaction is to consider casting me aside rather than providing support for handling your personal trainer’s issues.
I feel as if you are deliberately misconstruing my frustration from yesterday since if I were to leave your problems with [Mr X] would decrease. However, this is neither fair no ethical.
I have excellent records of every interaction, and I’m sure you will see that I am not to blame for any of this contrary to your suggestion yesterday which I thought was merely a case of frustration on your part.
Yesterday I started work at around 6:45 am and I always planned to leave early for a minor eye procedure. After the meeting with [Mr X’s] mother which I requested not to be present at (but you insisted), I needed some fresh air, so left a little earlier than planned. Around midday instead of 1:30 pm. My comments to Chris that I had had enough related to this situation, and my comments to Nick that I was confused about why I was not getting concrete support and needed to see how things played out over the next few days was also in similar frustration. At no point did I mention resignation.
. . . .
In the mean time [sic], I will be taking medical leave because I’m too stressed to focus on work given this situation. I also feel that it is not safe to me to work in the office, and I understand you feel the same way too since I heard that the building floor was locked down yesterday afternoon.
I have not resigned and require the company’s advice on next steps to deal with this situation in a positive way.
At 12:29 on 18 August 2016 Mr O’Kane sent a text message to Mr Halim stating that he had received a confusing SMS from Mr Barrie, and he asked Mr Halim to “look into” it. Mr O’Kane also said he copied in Mr Halim on an email. Mr Halim responded by asking what Mr Barrie said in the SMS. Mr O’Kane sent the text message he received from Mr Barrie but immediately before the text of Mr Barrie’s message Mr O’Kane said “I feel as if I’m being pushed out to get rid of the “[Mr X]” problem”. After reproducing the text of Mr Barrie’s message Mr O’Kane said “I definitely did not resign”. Mr O’Kane also asked whether Mr Halim had informed Mr Barrie that Mr Halim had given Mr O’Kane “leave this morning”.[7]
[7] Affidavit of M P O’Kane 14.07.2017, [178], [179]
Mr Barrie did not respond to Mr O’Kane’s email. Instead, on 19 August 2016, Mr Koch sent the following email to Mr O’Kane:[8]
On 17 August 2016 when you left work we understood that you had resigned from your employment with Freelancer. At this time, we considered that your employment had come to an end. That position was expressly accepted by Matt Barrie in his message to you because of significant concerns over a period of time about your performance in the role of VP Technical Operations.
Despite your desire to now seek to withdraw that resignation, the position Matt Barrie had reached on 17 August that it would not be appropriate to continue your employment has not changed.
In light of that, Freelancer confirms the termination of your employment. Freelancer will provide you with payment of outstanding entitlements and one month’s pay in lieu of notice. Under certain circumstances Freelancer would consider paying you three months notice and this is a matter for discussion. However, we appreciate that this decision has a significant impact and we would like to assist in this transition where possible to reduce that. If you would like to have a discussion around reaching an agreed separation please arrange a time to speak to me so that we can make arrangements to progress that.
[8] Affidavit of M P O’Kane 14.07.2017, [189], exhibit MK-1, page 202
Claims and responses
Mr O’Kane claims that, by sending the text message on 17 August 2016 in which Mr Barrie stated he understood Mr O’Kane had resigned, Freelancer dismissed Mr O’Kane from his employment. That, Mr O’Kane submits, constituted Freelancer’s taking “adverse action” against him within the meaning of s.342 of the FW Act.
Mr O’Kane further claims that Freelancer dismissed him from his employment because he exercised a “workplace right” within the meaning of s.341(1)(c)(ii) of the FW Act. The workplace right Mr O’Kane says he exercised was his ability to make a complaint in relation to his employment. Mr O’Kane submits that he exercised that right – that is, he made a complaint in relation to his employment – during his exchange of words with Mr Barrie on 17 August 2016. The complaint Mr O’Kane says he made related to Mr X; and he conveyed that complaint by stating words to the effect of: “I’m not feeling at all supported right now”; Mr X had made threats to Mr O’Kane but, after Mr O’Kane “complained”, Mr Barrie promised Freelancer would help make it stop but “[y]ou haven’t done anything to help”; it was “definitely not” Mr O’Kane’s fault and that Mr Barrie was being “unreasonable” and “out of line blaming” Mr O’Kane; and “[y]ou need to do more to solve this problem”.[9] Assuming these allegations are accepted, Mr O’Kane relies on s.361 of the FW Act to submit that Freelancer bears the onus of proving that it took the adverse action against Mr O’Kane for reasons that did not include as an operative factor Mr O’Kane’s having made the complaint he says he made; and Mr O’Kane submits Freelancer is unable to discharge that onus.
[9] Affidavit of M P O’Kane 14.07.2017, [159]
Mr Barrie gives a different account of the effect of the words that he exchanged with Mr O’Kane on 17 August 2016. Mr Barrie says he accused Mr O’Kane of failing to carry out Mr Barrie’s instructions that he return to Mr X his personal belongings, and that Mr O’Kane’s failure to do so had escalated the situation with Mr X. Mr Barrie further says that, in response to those accusations, Mr O’Kane said words to the effect:[10]
[10] Affidavit of R M Barrie, [132]
I’m not having this conversation! Stuff this! I’m done with this company. I’m through! I’m over it!
On the assumption that Mr Barrie’s account is accepted, the respondents submit Mr O’Kane did not make the complaint he claims he made and that, rather than Freelancer dismissing Mr O’Kane from his employment, Mr O’Kane initiated the steps that led to the termination of his employment with Freelancer. Freelancer and Mr Barrie further submit that, even if Mr O’Kane’s account of the exchange of words is accepted, the words he says he used did not convey a “complaint” within the meaning of s.341(1)(c)(ii) of the FW Act; and, to the extent that the words did convey a “complaint”, Mr O’Kane did not make that complaint pursuant to any contractual or statutory right to complain and, for that reason, the complaint did not constitute the exercise by him of any ability to make a complaint and, hence, did not constitute the exercise of a workplace right within the meaning of s.341(1)(c)(ii) of the FW Act. Finally, even if it were to be found Mr O’Kane made a complaint and Freelancer dismissed Mr O’Kane from his employment, Freelancer and Mr Barrie submit that Freelancer acted as it did because Mr Barrie believed Mr O’Kane had resigned; and that, in any event, Mr Barrie had formed the view he should terminate Mr O’Kane’s employment because of what Mr Barrie believed were “Mr O’Kane’s ongoing performance issues”, the “significant amount of negative feedback” Mr Barrie says he received from other employees about Mr O’Kane, Mr O’Kane’s not improving following the giving to him in May 2016 of a formal warning, and what Mr Barrie believes was Mr O’Kane’s failure to follow a direction given by Mr Barrie that Mr O’Kane return to Mr X his property; and Mr O’Kane having lied to Mr Barrie about the return of Mr X’s property.
Issues
From this summary of the parties’ claims and contentions, it is apparent that the first issue I must consider is what words were exchanged at the meeting between Mr O’Kane and Mr Barrie on 17 August 2016. Were the words exchanged those to the effect recounted by Mr O’Kane, those to the effect recounted by Mr Barrie, or words to the effect that neither of them recounted? If I do not find that words to the effect recounted by Mr O’Kane were said, Mr O’Kane’s application must be dismissed. That is because Mr O’Kane’s case rests entirely on the Court accepting he made a complaint in relation to his employment; and the only means by which Mr O’Kane claims he made a complaint was by his uttering words to the effect he recounts uttering during his meeting with Mr Barrie on 17 August 2016.
If I find that words to the effect recounted by Mr O’Kane were exchanged at the meeting, the following issues arise:
a)Did the words Mr O’Kane utter convey a “complaint” within the meaning of s.341(1)(c)(ii) of the FW Act?
b)If (a) is answered in the affirmative, was the “complaint” nevertheless a complaint within the meaning of s.341(1)(c)(ii) of the FW Act, given Mr O’Kane does not claim he made the complaint pursuant to a legal right to complain?
c)If (b) is answered in the affirmative, did Freelancer dismiss Mr O’Kane from his employment?
d)If (c) is answered in the affirmative, did Freelancer dismiss Mr O’Kane from his employment for the reasons Mr Barrie says he sent his text message of 18 August 2016 and the reasons for which he says he otherwise decided not to permit Mr O’Kane to work at Freelancer? And, if so, did the presence of these reasons eliminate Mr O’Kane’s complaint as Freelancer’s operative reason for dismissing Mr O’Kane?
The meeting of 17 August 2016
What I will find was said at the meeting of 17 August 2016 between Mr O’Kane and Mr Barrie turns on my assessment of the credibility of Mr O’Kane’s account and, to a lesser degree, on the credibility of Mr Barrie’s account of the effect of the words used.
Approach[11]
[11] I here repeat with some modifications what I said in SZUVE v Minister for Immigration & Anor [2016] FCCA 1942 at [18], [23]-[25]
Credibility may be defined as “the quality or power of inspiring belief”.[12] When applied to testimony, credibility refers to the capacity of the testimony to inspire belief in the existence or non-existence of the fact asserted by the witness to exist or not exist. A finding by a court in a civil proceeding, therefore, that testimony is not credible is usually taken to be a finding that the testimony does not have the capacity to satisfy the court, at least on the balance of probabilities,[13] of the existence or non-existence of the fact asserted by the testimony to exist or not exist. But “credibility” has a broader meaning. It may be taken to refer to testimony that is capable of satisfying a fact finder that the fact asserted by the testimony to exist or not exist does exist or does not exist, but which, in the particular circumstances of the case, the fact finder is not so satisfied. I propose to use “credibility” in both senses.
[12] Indiana Metal Products v National Labor Relations Board [1971] USCA7 173; 442 F.2d 46 at 51 (1971) (Seventh Circuit), quoting Webster’s Third New International Dictionary 1966
[13] Section 140, Evidence Act 1995 (Cth)
Whether or not any given testimony will inspire satisfaction in the existence or non-existence of the fact the witness asserts exists or does not exist will depend on the fact-finder’s assessment of the witness’s “powers of perception, memory and narration . . . and of his [or her] opportunity and desire to exercise them honestly and efficiently in the situation under examination”.[14] That means that assessing the credibility of testimony “involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be”.[15] Assessing evidence “apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence”.[16] It has also been said that credible evidence is “that which meets the test of plausibility”.[17]
[14] Edmund M. Morgan, “The Relation Between Hearsay and Preserved Memory” (1927) 40 Harvard Law Review 712, 712.
[15] Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce)
[16] Carbo v United States [1963] USCA9 118; 314 F.2d 718 at 749 (1963) (Ninth Circuit)
[17] Indiana Metal Products v National Labor Relations Board [1971] USCA7 173; 442 F.2d 46
There have been a number of statements about how a court should assess testimony. For example in The Ocean Frost, Robert Goff LJ said:[18]
It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.
[18] Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep 1 at page 57
And in EPI Environmental Technologies Inc v Symphony Plastic Technologies Peter Smith J said:[19]
(i) First, it is essential to evaluate a witness’s performance in the light of the entirety of his evidence. Witnesses can make mistakes, but those mistakes do not necessarily affect other parts of their evidence.
(ii) Second, witnesses can regularly lie. However, . . . [that] does not mean necessarily that the entirety of that witnesses [sic] evidence is rejected. A witness may lie in a stupid attempt to bolster a case, but the actual case nevertheless remains good irrespective of the lie. A witness may lie because the case is a lie.
[19] EPI Environmental Technologies Inc v Symphony Plastic Technologies [2004] EWHC 2945 (Ch) at [74]
Finally, there is the approach to fact-finding described by Justice MacKenna.[20]
This is how I go about the business of finding facts. I start from the undisputed facts which both sides accept. I add to them such other facts as seem very likely to be true, as, for example, those recorded in contemporary documents or spoken to by independent witnesses like the policeman giving evidence in a running-down case about the marks on the road. I judge a witness to be unreliable if his evidence is, in any serious respect, inconsistent with these undisputed or indisputable facts, or of course if he contradicts himself on important points. I rely as little as possible on such deceptive matters as his demeanour. When I have done my best to separate the true from the false by these more or less objective tests, I say which story seems to me the more probable, the plaintiff's or the defendant's, and if I cannot say which, I decide the case, as the law obliges me to do, in the defendant’s favour. The plaintiff has failed to discharge the burden of proof.
[20] MacKenna, B., “Discretion” (1974) 9 (new series) The Irish Jurist, 1 at page 10
Counsel for Mr O’Kane submits I should assign little credibility to Mr Barrie’s evidence, at least to the extent Mr Barrie’s evidence is against Mr O’Kane’s interests in this proceeding. Counsel relies on what he submits are extensive instances of identical combinations of words that appear in the affidavits of Mr Barrie and Mr Koch. These instances are identified in schedule 2 to the Applicant’s Outline of Submissions.
In oral submissions counsel for Mr O’Kane referred to the judgment of Black J in In the matter of Colorado Products Pty Ltd (in prov liq).[21] In that case, two affidavits were before the court in which large parts of them “had been copied, generally word for word, from each other”.[22] Black J said:[23]
It does not seem to me to matter whether the identical passages in Helen's and Kenneth's affidavit evidence was the result of collusion between the witnesses personally or was the result of Helen's adopting evidence that had been copied from Kenneth's affidavit, or Kenneth's adopting evidence that had been copied from Helen's affidavit, since each substantially devalues both witnesses' affidavit evidence where no explanation has been given of what occurred. It is not possible for the Court to be satisfied in this situation, in my view, that Helen's and Kenneth's evidence reflects a genuine recollection of events. The Plaintiffs sought to mitigate the impact of the identical passages in the affidavit evidence of Helen and Kenneth by pointing to the fact that successive affidavits of Clare had also included identical paragraphs. With respect, it seems to me that the copying of evidence in successive affidavits of one witness is not analogous to the copying of affidavit evidence between two different witnesses, since the latter necessarily distorts the evidence of the relevant witnesses in a way which the former typically does not.
[21] [2014] NSWSC 789
[22] [2014] NSWSC 789 at [15]
[23] [2014] NSWSC 789 at [16]
I accept that the fact there are a number of instances where the identical combination of words are duplicated in the affidavits of Mr Barrie and Mr Koch may be a matter on which it is open to me to rely when assessing the credibility of Mr Barrie and Mr Koch in general, and to take into account that assessment when considering whether to accept Mr Barrie’s account of his exchange of words with Mr O’Kane on 17 August 2016. There are, however, two points to note.
First, Mr O’Kane bears the burden of proving that words to the effect he deposes were spoken at the meeting of 17 August 2016 were in fact spoken. That onus will not be discharged only because I might find that Mr Barrie is not a credible witness in general, or only because I do not accept Mr Barrie’s account of what was said at the meeting. As Gibbs J (as his Honour then was) observed in Steinberg v Federal Commissioner of Taxation:[24]
The fact that a witness is disbelieved does not prove the opposite of what he asserted: . . . It has sometimes been said that where the story of a witness is disbelieved, the result is simply that there is no evidence on the subject . . . .
[24] (1975) 134 CLR 640 at page 694 (Gibbs J (as his Honour then was))
I accept, however, that, as Gibbs J further observed:[25]
There may be circumstances in which an inference can be drawn from the fact that the witness has told a false story, for example, that the truth would be harmful to him; and it is no doubt for this reason that false statements by an accused person may sometimes be regarded as corroboration of other evidence given in a criminal case . . . . Moreover, if the truth must lie between two alternative states of fact, disbelief in evidence that one of the state of facts exists may support the existence of the alternative state of facts . . . .
[25] (1975) 134 CLR 640 at page 694
The second point is that Mr Barrie’s evidence, just like Mr O’Kane’s evidence, must be considered with such contemporaneous objective evidence as there is, the events (the nature or existence of a number of which are themselves the subject of conflicting evidence) that I find preceded the exchange of words, and any inconsistent statements Mr O’Kane or Mr Barrie may have made about the events in question.
I propose, therefore, to proceed as follows. First, I will set out the events, some of which are disputed, that preceded the exchange of words between Mr O’Kane and Mr Barrie. And here it will be convenient to divide those events into the following phases:
a)From around 18 April 2016, when Mr X’s employment with Freelancer was terminated, to 31 July 2016, when Mr Barrie decided that Freelancer and its employees should consider applying for an apprehended violence order (AVO) against Mr X. The principal theme in the evidence of this period is communications with Mr X about the return of property Mr X asserted belonged to him and was still in the possession of Freelancer. The events are relevant to assessing Mr Barrie’s claim that he believed he had instructed Mr O’Kane to return to Mr X property belonging to Mr X.
b)From around 31 July 2016 to 2 August 2016, being a short period in which there was an extensive exchange of emails between Mr O’Kane and other senior employees of Freelancer, including Mr Barrie, about taking action against Mr X, including Mr O’Kane and others seeking an AVO.
c)The events from 2 August 2016 up to a conversation Mr O’Kane says he had with Mr Halim shortly before the Mr O’Kane met with Mr X’s mother in the morning of 17 August 2016.
d)The meeting with Mr X’s mother in the morning of 17 August 2016.
Second, I will set out the competing accounts of the words exchanged between Mr O’Kane and Mr Barrie on 17 August 2016.
Finally, I will make findings about the effect of the words that were exchanged between Mr Barrie and Mr O’Kane at the meeting, having regard to the undisputed facts I have set out earlier in these reasons, and the events, as found by me, that preceded the meeting.
Events leading to meeting with Mr X’s mother – events preceding application for AVO
Mr O’Kane first became aware of Mr X in or about September 2015 when Mr Barrie told Mr O’Kane that Mr X was training Mr Barrie and other Freelancer employees, and that Mr Barrie was “offering him up to the Executives” and Mr Barrie asked Mr O’Kane whether he was interested.[26] Mr O’Kane himself met Mr X in October 2015 when preparing for a technology conference known as “Sydstart” that Freelancer was organising.[27] Mr O’Kane was informed that Mr Barrie had requested Mr X be given “some jobs for Sydstart”.[28]
[26] Affidavit of M P O’Kane 14.07.2017, [58]
[27] Affidavit of M P O’Kane 14.07.2017, [59]
[28] Affidavit of M P O’Kane 14.07.2017, [59]
Mr X commenced his employment with Freelancer in around November 2015. According to Mr O’Kane, in that month Mr Barrie requested Mr O’Kane “put” Mr X “on the payroll” on the basis that he be paid $85,000 per annum including superannuation. Mr Barrie said:[29]
Let’s call him Health and Well-Being Officer for now. We’ll work something else out later, I just want him on-board and getting paid ASAP.
[29] Affidavit of M P O’Kane 14.07.2017, [64]
Mr Barrie does not agree with Mr O’Kane’s evidence. Mr Barrie says that Mr Halim handled the hiring of Mr X.[30] I do not need to make a finding about how Mr X was employed by Freelancer. I need only record my finding that Freelancer employed Mr X in November 2015 as a “Health and Well-Being Officer”.
[30] Affidavit of R M Barrie, [195]
At 6.31 pm on 18 April 2016 Mr Barrie asked Mr O’Kane to return to the office to discuss Mr X. Later, Mr Barrie told Mr O’Kane he had sent Mr X home “for being intoxicated at work”.[31] At 7.24 pm on 18 April 2016 Mr Barrie sent a text to Mr O’Kane which attached a Facebook message screenshot from a person named Mr Skinner.[32] The screenshot included the following statements:
Hey mate, someone told me this [Mr X] guy is your personal trainer or something? He’s been hitting me up all night about trying to fight me, and my family for some reason? . . . Figured might be something you’d want to know being an anti-violence advocate with violence [sic] supporters in your employ?
[31] Affidavit of M P O’Kane 14.07.2017, [86], [87]. Mr Barrie does not dispute this in his affidavit of 05.09.2017
[32] Affidavit of M P O’Kane 14.07.2017, [88], exhibit MK-1, page 109
According to Mr O’Kane, at 8 pm on 18 April 2016 he had a telephone conversation with Mr Barrie in which Mr Barrie said he could not “get a hold” of Mr X.[33] According to Mr O’Kane, Mr Barrie also said:[34]
Because of my high profile in the Australian media, I feel that immediate action is required. Please prepare a text message to send to [Mr X], notifying him that we’ve terminated his employment. . . . If [Mr X] . . . . leaks it to the media it substantially damages my reputation. Therefore I need you to send it.
[33] Affidavit of M P O’Kane 14.07.2017, [89]
[34] Affidavit of M P O’Kane 14.07.2017, [90]
Mr Barrie does not agree with Mr O’Kane’s account. Mr Barrie says that at around 7 pm on 18 April 2016, while he was jogging with Mr Koch, he received a text message from a person named Mr Skinner informing Mr Barrie that Mr X was “having a mental breakdown and threatening people on Facebook”. Mr Barrie sent a text message to Mr O’Kane attaching a screenshot of exchanges on Facebook between Mr Barrie and Mr Skinner and stated:
That’s it for me
He’s put me in a tenuous situation .. he has to go now
Mr O’Kane responded stating “Ok. Want me to do it?”, to which Mr Barrie said “Yeah”.[35]
[35] Affidavit of R M Barrie, [204], RMB-37, pages 213-214
It is not necessary to make a finding about whether during the telephone call Mr Barrie said words to the effect Mr O’Kane attributes to him. Mr O’Kane’s account, however, does not sit comfortably with the text messages annexed to Mr Barrie’s affidavit. On Mr O’Kane’s account Mr Barrie requested Mr O’Kane to prepare and send a text message terminating Mr X’s employment to minimise the risk of Mr Barrie attracting media attention. The text messages, however, suggest that it was Mr O’Kane who volunteered arranging for the termination of Mr X’s employment.
Mr O’Kane then drafted and, with the approval of Mr Barrie, sent to Mr X the following text message:[36]
[36] Affidavit of M P O’Kane 14.07.2017, [91], exhibit MK-1, page 111
Dear [Mr X]
I am writing to you about the immediate termination of your employment with Freelancer International Pty Ltd. We have attempted to reach you by phone tonight but have been unsuccessful.
Specifically:
· You have caused a grave and imminent risk to the reputation of the business and its leaders by making public threats and disrespectful behaviour on Facebook.
· engaging in threats of assault to staff members and others whom [sic] see you as a representative of the business.
· Tonight, you were intoxicated at work, to the extent that you were so impaired that you were unfit for duty.
We consider that your actions constitute serious misconduct warranting summary dismissal.
You will be paid any accrued entitlements and outstanding remuneration, including superannuation, up to and including the date of this notice.
Sincerely,
Matt O’Kane
VP, Talent
According to Mr O’Kane, at 9.38 pm on 18 April 2016 Mr Barrie telephoned him and asked whether Mr O’Kane had received any response from Mr X. Mr O’Kane said he had not received a response.[37] Also according to Mr O’Kane, Mr Barrie called Mr O’Kane and said he was worried about Mr X, Mr X “has attempted suicide before”, and Mr Barrie did not “want to be accused of causing someone to kill themselves”. After Mr O’Kane suggested that Mr Barrie “call 000”, Mr O’Kane says Mr Barrie told Mr O’Kane not to call 000, but to “call a helpline to get advice”. Mr O’Kane also says that Mr Barrie told Mr O’Kane that he should not mention Mr Barrie’s name because “I can’t be seen to be involved here”.[38] Mr Barrie denies having a conversation to this effect with Mr O’Kane.[39] It is not necessary to make any finding about whether such conversation took place. I accept Mr O’Kane’s evidence that at approximately 9:55 pm on 18 April 2016 he telephoned “Beyondblue” and, on advice from them, Mr O’Kane called 000 and requested that the police conduct a “welfare visit” on Mr X at an address he had obtained from a former employee of Freelancer.[40]
[37] Affidavit of M P O’Kane 14.07.2017, [93]
[38] Affidavit of M P O’Kane 14.07.2017, [95]
[39] Affidavit of R M Barrie, [205]
[40] Affidavit of M P O’Kane 14.07.2017, [97]
Commencing 7.14 am on 19 April 2016 Mr X and Mr O’Kane exchanged the following text messages:[41]
[41] Affidavit of M P O’Kane 14.07.2017, [100]; exhibit MK-1, pages 115-118
Mr X:What can I say but I’m sorry.
Mr X:Yeah you already sent it, I was just apologising.
Also did you send the visitors around to my house to check on
me last night?
Mr O’Kane:Yes. We were worried we we [sic] didn’t hear from you.
Mr X:All good,
I’ll grab my stuff sometime
This arvo
Mr O’Kane:Course man.
. . . .
Mr O’Kane:Canyon [sic] give me a couple of hours notice?
Mr X:I can come in now . . . .
Mr O’Kane says that in the course of these text message exchanges he was “in constant communication with” Mr Barrie who stated he wanted “to wrap up [Mr X’s] employment ASAP on a confidentiality agreement”.[42] Mr O’Kane further says that Mr Barrie said that he and Mr X “did some stuff” which he did not want to be “misinterpreted in the public eye”, and that Mr X, “needs to agree to keep his mouth shut”.[43] Mr Barrie denies saying words to that effect.[44]
[42] Affidavit of M P O’Kane 14.07.2017, [101]
[43] Affidavit of M P O’Kane 14.07.2017, [102]
[44] Affidavit of R M Barrie, [206], [207]
According to Mr O’Kane, at approximately 3 pm on 19 April 2016 Mr X attended the offices of Freelancer. Mr O’Kane presented Mr X with a letter of termination,[45] which Mr X signed, and Mr O’Kane handed to Mr X “a box full of his belongings”.[46] That letter of termination addressed to Mr X states that “in addition, we have agreed to pay you one month as consideration for not discussing or disclosing any matters regarding Freelancer, its processes, or staff”. I find that Mr O’Kane prepared and gave this letter to Mr X on the instructions of Mr Barrie. I do not accept, however, that in the course of giving such instructions to Mr O’Kane Mr Barrie said words to the effect of Mr X “did some stuff” which he did not want to be “misinterpreted in the public eye”, and that Mr X, “needs to agree to keep his mouth shut”.[47] The termination letter only referred to Mr X “not discussing or disclosing any matters regarding Freelancer, its processes, or staff”.
[45] Affidavit of M P O’Kane 14.07.2017, [104], exhibit MK-1, page 120
[46] Affidavit of M P O’Kane 14.07.2017, [105]
[47] Affidavit of M P O’Kane 14.07.2017, [102]
On 21 and 29 April 2016 text messages were exchanged between Mr X and Mr O’Kane about amounts that were to be paid to Mr X.[48] On 30 April 2016 Mr Barrie sent to Mr O’Kane a screenshot of a Facebook conversation a person had with Mr X in which Mr X said he was in hospital after he attempted suicide.[49]
[48] Affidavit of M P O’Kane 14.07.2017, [106], [107]; exhibit MK-1, pages 122 and 124
[49] Affidavit of M P O’Kane 14.07.2017, [109]; exhibit MK-1, page 126
According to Mr O’Kane, on 9 May 2016 Mr Barrie telephoned Mr O’Kane and asked him to contact Mr X to tell him that Mr Barrie is taking legal action against him because Mr X “has been saying nasty things out there about me and my girlfriend”. Mr O’Kane further says that after a pause Mr Barrie said: “I just want you to know that I do not take drugs”. Mr O’Kane says that Mr Barrie “insisted” Mr O’Kane make “immediate” contact with Mr X.[50] Mr Barrie denies having such a conversation with Mr O’Kane.[51] Mr Barrie says that at around this time he did have a conversation with Mr O’Kane about Mr X, but the conversation related to Mr X’s having “another manic episode and having a breakdown”. Mr Barrie says he asked Mr O’Kane to arrange for “another mental health check of [Mr X] by the police”.[52] Given the text message Mr O’Kane sent on 9 May 2016 to Mr X to which I refer in the following paragraph, I accept that on 9 May 2016 Mr Barrie had a telephone conversation with Mr O’Kane about Mr X posting messages on social media that were believed by Mr Barrie to be defamatory of or threatening to Mr Barrie and employees of Freelancer. It is unnecessary to make any finding about the contents of the conversation.
[50] Affidavit of M P O’Kane 14.07.2017, [110], [111]
[51] Affidavit of R M Barrie, [209]
[52] Affidavit of R M Barrie, [209]
At 12:24 pm on 9 May 2016 Mr X sent a text message to Mr O’Kane stating that he was at the doctors, requesting “who to email about taking over fitness”, and stating that Mr X’s doctor did not think that “having contact with anyone at your company is productive”. Mr O’Kane responded with the following text message:[53]
[53] Affidavit of M P O’Kane 14.07.2017, [111]; exhibit MK-1, page 128
[Mr X]. Thanks for letting me know. I sent you this email about an hour ago.
It has come to my attention that over the weekend you sent a number of harassing and defamatory messages, as well as threats to Freelancer staff and its Chief Executive. In addition you made posts on Facebook which were defamatory and misleading.
We take this very seriously and request that you immediately cease to contact or make posts about Freelancer, its staff or we will be forced to refer this to our legal counsel – on multiple counts.
Although you were not entitled to any termination payment due to the egregious nature of your misconduct, the company gracefully offered you six week’s termination payment, which has been paid in full. There are no further entitlements owed to you.
You can see these in the email sent to you.
I think your doctor has good advice. Can you call me to discuss?
There then followed a series of text messages between Mr X and Mr O’Kane.[54] These included a message from Mr X that everything he said was “very broad and is just musings of life”, that he “signed something” saying he would not talk and he has not talked, that, in response to an enquiry from Mr O’Kane whether Mr X was “free for a chat” Mr X said he realised he was not getting “a personal apology from the person I want”. They also included a message from Mr O’Kane stating that Mr X needed to “stop sending threatening messages” and that “[w]e are going to have to take out an AVO”. After further messages Mr O’Kane said that he would “talk this over with our legal company” but that “[t]hey may still apply for an order”.
[54] Affidavit of M P O’Kane 14.07.2017, [111]; exhibit MK-1, pages 128-131
Mr O’Kane says that after he “showed this correspondence” to Mr Barrie, Mr Barrie became upset with Mr O’Kane “for putting things in writing”.[55] Mr Barrie denies this conversation.[56] It is unnecessary to make any finding about this disputed conversation.
[55] Affidavit of M P O’Kane 14.07.2017, [112]
[56] Affidavit of R M Barrie, [209]
On 1 June 2016 Mr X sent a text message to Mr O’Kane in which he said he would like to get the rest of his possessions from the office. Mr X said Mr O’Kane had forgotten to return to Mr X “3 lightening cables, my personal work book” and “an expensive suede jacket”.[57] Mr X also said he was “waiting for my expenses which I put in weeks ago”. Mr O’Kane forwarded this message to Mr Barrie and asked “what to do next”.[58] Mr Barrie responded by email asking whether Mr X had items on his desk, whether a jacket was there, and whether Mr X submitted any expenses were owing to him”.[59] Mr O’Kane responded later with another email setting out the outcome of searches he had made in relation to property Mr X claimed he had left behind. Mr Barrie then suggested that Mr O’Kane “photograph it all” and “ask him what is his and send to him”.[60] Mr O’Kane photographed items, including a jacket, that belonged or may have belonged to Mr X. Mr O’Kane sent an email to Mr Barrie stating: “Jacket (found – Duncan stowed it in the hallway cupboard – he has offered to return it a few times to [Mr X] apparently”,[61] and Mr O’Kane asked Mr Barrie “What do you want to do?” At 2:38 pm on 1 June 2016 Mr Barrie sent an email to Mr O’Kane stating: “Courier it to him”.[62]
[57] Affidavit of M P O’Kane 14.07.2017, [113]; exhibit MK-1, page 133
[58] Affidavit of R M Barrie, [95]; annexure “RMB-15”, page 106
[59] Affidavit of R M Barrie, [95]; annexure “RMB-15”, page 106
[60] Affidavit of R M Barrie, [95]; annexure “RMB-15”, page 105
[61] Affidavit of C A Koch, [36]; annexure “CAK-5”, page 34
[62] Affidavit of C A Koch, [36]; annexure “CAK-5”, page 34
At 15:45 on 1 June 2016 Mr O’Kane sent a text message to Mr X stating: “I have the following items that we think belong to you. Can you give me an address to courier them to?”[63] Mr X responded on 1 June 2016 with a text message stating he was missing his personal notebooks, his shakers, and “expenses”. Mr X also said there is a “tag huer watch and my personal papers from my shelves”.[64] Mr O’Kane forwarded Mr X’s text message to Mr Barrie.[65] After Mr Barrie sent an email to Mr O’Kane at 3:55 pm on 1 June 2016 stating the shakers and powders were in the small kitchen,[66] Mr O’Kane sent an email to Mr Barrie on 1 June 2016 stating there were seven protein shakers and a bag of whey, that he would check to see if they belonged to anyone else and “anything left over I’ll send to” Mr X[67] and attached to the email a photograph of the items Mr O’Kane found. At 5:37 pm on 1 June 2016 Mr Barrie sent an email to Mr O’Kane stating that he did not believe Mr X “left a tag watch behind”. At 5:40 pm Mr Barrie sent an email to Mr O’Kane authorising Mr O’Kane to send a text message and photograph to Mr X.[68] At 5:42 pm Mr O’Kane sent to Mr X a text message with a photograph stating: “Found the tubs with the powder”.[69] Mr X responded by stating: “No whey is Matt’s. Cables and watch missing still”.[70]
[63] Affidavit of M P O’Kane 14.07.2017, [113]; exhibit MK-1, page 133
[64] Affidavit of M P O’Kane 14.07.2017, [113]; exhibit MK-1, page 135; affidavit of M P O’Kane 03.10.2017, [46]; exhibit MK2, page 58
[65] Affidavit of M P O’Kane 03.10.2017, [46]; exhibit MK2, page 58
[66] Affidavit of M P O’Kane 03.10.2017, [46]; exhibit MK2, page 58
[67] Affidavit of M P O’Kane 03.10.2017, [46]; exhibit MK2, page 57
[68] Affidavit of M P O’Kane 03.10.2017, [46]; exhibit MK2, page 57
[69] Affidavit of M P O’Kane 14.07.2017, [113]; exhibit MK-1, page 135-136
[70] Affidavit of M P O’Kane 14.07.2017, [113]; exhibit MK-1, page 136
On 1 June 2016 Mr O’Kane sent an email to Mr Koch containing the text message he received from Mr X. After Mr O’Kane sent the email but at or before 10:18 am on 2 June 2016, Mr Koch sent to Mr O’Kane the following email:[71]
[71] Affidavit of M P O’Kane 03.10.2017, [46]; exhibit MK2, page 55
I would suggest we consider leaving him be for now
Sounds like he is enjoying the interaction and attention.
At 10:18 am on 2 June 2016 Mr Barrie responded with an email stating “Agree”.[72]
[72] Affidavit of M P O’Kane 03.10.2017, [46]; exhibit MK2, page 55
On 6 June 2016 Mr O’Kane circulated a text message Mr O’Kane had received from Mr X on 2 June 2016 stating (errors in original): “Also 6g tag watch is the most important thing it is what I bought with my first pay and was in my draws I still have box and recipe lot”.[73] Mr Barrie responded by stating he did not “believe that for a minute” and that Mr X had come in and “collected his things – no mention of a tag watch”;[74] and Mr Koch responded stating he believed it to be “safer to politely ignore from here”.[75]
[73] Affidavit of M P O’Kane 03.10.2017, [46]; exhibit MK2, page 55
[74] Affidavit of M P O’Kane 03.10.2017, [46]; exhibit MK2, page 55
[75] Affidavit of M P O’Kane 03.10.2017, [46]; exhibit MK2, page 54
On 7 June 2016 Mr X sent a further text message to Mr O’Kane.[76] At 1:46pm on that day Mr O’Kane sent to Mr Barrie the message he received from Mr X and stated: [77] “From here, I would like to send this response”. Under that statement Mr O’Kane set out the text of a proposed response to Mr X’s text message. Mr Barrie authorised Mr O’Kane to send the message.[78] At 14:01 on 7 June 2016 Mr O’Kane sent the following text message to Mr X:[79]
Hey [Mr X], I really can’t help you from here. We’ve checked carefully for a watch and cannot find one. I really wish you the best for the future, but please can you stop sending messages to this phone number. If you have any further concerns, please address them to Human Resources . . . . Thanks.
[76] Affidavit of M P O’Kane 14.07.2017, [116]; exhibit MK-1, page 140
[77] Affidavit of M P O’Kane 03.10.2017, [46]; exhibit MK2, page 53
[78] Affidavit of M P O’Kane 03.10.2017, [46],; exhibit MK2, page 53
[79] Affidavit of M P O’Kane 14.07.2017, [117]; exhibit MK-1, page 140
Mr O’Kane says that Mr Barrie instructed him to send this text message to Mr X, noting that “Freelancer has no Human Resources contact, team or department”.[80] There are two observations that may be made about this part of Mr O’Kane’s evidence. First, Mr O’Kane implies that Mr Barrie dictated the message Mr O’Kane sent to Mr X. To the extent that is what Mr O’Kane intends to convey, it is inconsistent with the email he sent to Mr Barrie at 1:46 pm on 7 June 2016. The email indicates it was Mr O’Kane who had composed the message. Second, by stating that, contrary to what was stated in the email Mr O’Kane sent to Mr X, Freelancer had no human resources department, it appears Mr O’Kane intends to convey that Mr Barrie instructed Mr O’Kane to send to Mr X a misleading text message. To the extent Mr O’Kane intended to make such imputation, and assuming that the text message was misleading because Freelancer did not have a human resources department, it is Mr O’Kane who was the author of any misleading representation. In any event, I make no finding about whether Freelancer did have what would pass as a human resources department.
[80] Affidavit of M P O’Kane 14.07.2017, [117]
Mr X responded by text message on 7 June 2016 in which he stated, among other things, that “if you had have [sic] let me get my stuff this situation wouldn’t exist”.[81] Mr O’Kane passed this message at least to Mr Barrie and to Mr Koch. Mr Barrie responded by stating Mr X is “not coming into the office”; and Mr Koch responded by suggesting “no responses from here MattO”.[82] Mr O’Kane, in turn, responded: “Suits me fine”.[83]
[81] Affidavit of M P O’Kane 14.07.2017, [118]; exhibit MK-1, page 142
[82] Affidavit of M P O’Kane 03.10.2017, [46]; exhibit MK2, page 52
[83] Affidavit of M P O’Kane 03.10.2017, [46]; exhibit MK2, page 52
Mr X sent to Mr O’Kane another text message on 9 June 2016 but, according to Mr O’Kane, he heard nothing further from Mr X “for nearly two months”.[84]
[84] Affidavit of M P O’Kane 14.07.2017, [118]-[120]; exhibit MK-1, page 144
In his second affidavit Mr O’Kane deposed that the effect of this email chain was that Mr Barrie and Mr Koch advised Mr O’Kane to “leave him [that is, Mr X] be”.[85] In evidence given under cross-examination, Mr O’Kane said he understood Mr Barrie’s having agreed with Mr Koch’s stating to leave Mr X alone to mean that he make no further effort to return to Mr X those items that had been identified as belonging to Mr X.[86] Mr O’Kane said he “handed over the stuff to the legal team, put it on the legal team – in the legal team’s area of their office and left it for them”.[87] It is not necessary for me to make a finding about whether Mr O’Kane decided not to make any further attempt to deliver Mr X’s items because he interpreted Mr Koch’s email, and Mr Barrie’s agreement with it, as overriding Mr Barrie’s previous direction that Mr O’Kane courier Mr X’s items. It is relevant, however, that I consider whether O’Kane’s interpretation is one that was reasonably open on the emails that had been sent and of which Mr O’Kane was aware. That is so because, as I will shortly set out, Mr Barrie’s evidence is that at the time he, Mr Koch, and Mr O’Kane met with Mr X’s mother, Mr Barrie believed he had instructed Mr O’Kane to send the items to Mr X, and he believed Mr O’Kane had sent the items to Mr X.
[85] Affidavit of M P O’Kane 03.10.2017, [45]
[86] T241.5-T247.30
[87] T242.35
I find that Mr O’Kane’s interpretation of the emails is not one that was reasonably open to him. I also find that it was reasonably open to Mr Barrie to believe that, notwithstanding the emails that had been sent about Mr X’s claims that Freelancer had retained a valuable watch belonging to Mr X, Mr Barrie’s instruction given in his email of 1 June to courier Mr X’s property to Mr X had remained on foot, and the references to Mr X being ignored only related to Mr X’s claims about the watch. I do not accept Mr O’Kane’s evidence that he handed Mr X’s items to “the legal team” to be returned or otherwise dealt with by that team or by some other team within Freelancer. That is not reflected in any email Mr O’Kane sent at the relevant time; and even on his own evidence, Mr O’Kane does not say that at the time he handed Mr X’s property to Mr X’s mother that he had given the items to Freelancer’s legal team; nor does Mr O’Kane say any such thing during his exchange of words with Mr Barrie after Mr X’s mother left, or in his email he sent to Mr Barrie on 18 August 2016.
Discussions relating to applying for AVO
On 29 July 2016 Mr X sent to Mr O’Kane a short but offensively expressed inquiry about whether Mr O’Kane had found Mr X’s watch.[88] Mr O’Kane showed Mr Barrie the text message.[89] Mr Barrie responded by texting Mr O’Kane that it was time to obtain an AVO.[90] In the meantime, on 31 July 2016 Mr X sent another text message to Mr O’Kane about his watch and in which he makes a number of threats about going on a radio station.[91]
[88] Affidavit of M P O’Kane 14.07.2017, [129]; exhibit MK-1, page 151
[89] Affidavit of M P O’Kane 14.07.2017, [130]; exhibit MK-1, page 153
[90] Affidavit of M P O’Kane 14.07.2017, [129], [130]; exhibit MK-1, pages 151, 153
[91] Affidavit of M P O’Kane 14.07.2017, [131]; exhibit MK-1, page 157
By email sent on 31 July 2016 to Mr Barrie, Mr Halim, Mr De Jong, and Mr O’Kane, Mr Koch said he was briefing Ms Syan Olsen and “we will prepare all the filings necessary for an AVO”.[92] Ms Olsen was Freelancer’s in-house legal counsel. In the meantime Mr O’Kane became aware that Mr X was uploading offensive posts about Mr O’Kane.[93] There then followed a substantial chain of email correspondence between Mr O’Kane and other senior Freelancer employees concerning the obtaining of an AVO against Mr X.[94] Mr O’Kane says that it was “within this email chain I complained about the handling of this matter by Ms Olsen, which was dismissed by Barrie and Mr Koch”.[95]
[92] Affidavit of M P O’Kane 14.07.2017, [133]; exhibit MK-1, page 159
[93] Affidavit of M P O’Kane 14.07.2017, [135]; exhibit MK-1, page 163
[94] Affidavit of M P O’Kane 14.07.2017, [137]; exhibit MK-1, pages 167-177
[95] Affidavit of M P O’Kane 14.07.2017, [137]
Nothing I need to decide turns on whether Ms Olsen handled the matter well or not. Mr O’Kane and the respondents, however, rely on his complaint against Ms Olsen as being a matter that is relevant to my assessment of what was said at the meeting of 17 August 2016. Mr O’Kane relies on it as evidence of the complaints to which he intended to refer in his exchange of words with Mr Barrie on 17 August 2016. The respondents rely on the email as evidence to show Mr O’Kane in fact had made no such complaint and, for that reason, I should not accept that during the exchange of words on 17 August 2016 Mr O’Kane did refer to his having previously made complaints. It will therefore be necessary to set out the chain of emails out of which Mr O’Kane says he complained about Ms Olsen.
On 1 August 2016 the following occurred:
a)At 09:13 Ms Olsen sent an email requesting evidence in relation to Mr X’s conduct, and advising “if we want to go for an AVO each person who wants the AVO enforceable against [Mr X] is going to have to give a statement and provide evidence to the NSW Police”. Ms Olsen also said that if Mr X is to fight the matter in court he would have to pay a minimum of $1,500 to get a criminal defence lawyer.[96]
[96] Affidavit of M P O’Kane 14.07.2017, [137], exhibit MK-1 page 175
b)Mr O’Kane sent an email stating “$1500 wouldn’t be a big deal” and that “[i]ts [sic] going to cost me at least that which totally sucks”. At 9:30 Mr Koch then sent an email stating it would be Mr X, not Mr O’Kane, who would have to pay the $1,500.[97]
[97] Affidavit of R M Barrie, [105], exhibit RMB-17, page 133
c)At 09:35 Ms Olsen sent an email identifying three persons who are friends with Mr X on Facebook. Ms Olsen said she is not and has never been a Facebook friend of Mr X, but she knew him from many years ago, and she had “twenty mutual friends with him”.[98]
[98] Affidavit of M P O’Kane 14.07.2017, [137], exhibit MK-1 page 174
d)At 09:36 Mr O’Kane sent an email stating “you misunderstand”, although it is not clear to whom that comment was directed. Mr O’Kane also said that he was “upgrading physical security here”, and that his wife has “kept the kids home from school”.[99]
[99] Affidavit of R M Barrie, [105], exhibit RMB-17, page 132
e)At 09:39 Ms Olsen sent an email directed to Mr O’Kane stating that if Mr O’Kane needed help he had to immediately go to the police station or Mr O’Kane needed to call the police to his house “right now and make a statement”.[100]
f)At 09:44 Mr O’Kane sent an email (which was not copied to Ms Olsen) stating: “Can someone else handle this situation? She’s lost the plot”.[101]
g)At 10:43 Mr Koch sent an email to Mr O’Kane stating he should talk to the police “today”, and that Ms Olsen “will outline the procedure required to this thread shortly – helpfully she is somewhat of an expert in criminal procedure”.[102]
h)At 10:46 Mr O’Kane sent an email (not copied to Ms Olsen) stating “Stan [which I infer is intended to be a reference to “Syan”, the first name of Ms Olsen] has not filled me with confidence so far. Who can supervise her work?”[103]
i)At 10:46 Ms Olsen sent an email setting out steps for obtaining an AVO.[104] After setting out the steps Ms Olsen described the process that she expects will occur at the police station.
j)At 10:56 Mr Koch sent an email to Mr O’Kane stating that he is supervising Ms Olsen’s work. Mr Koch said “that’s a bit harsh mate but happy to discuss offline”. Mr Koch also said that Ms Olsen “has spent time as a criminal court lawyer so I’m pretty [sure] she knows this process better than any of us”.[105] At 11:03 Mr Barrie sent a message stating in reference to Ms Olsen that he has been “very happy with her work”.[106]
k)At 12:08 Ms Olsen sent an email to Mr O’Kane requesting Mr O’Kane let her know if he decides to go to the police, and whether he needs any support. The email identified matters Mr O’Kane should consider telling or asking the police. Mr O’Kane responded by email sent at 12:12 stating that, based on Ms Olsen’s advice, he would “catch up with Maroubra Police and square it away with them”.[107]
l)At 13:44 Mr O’Kane sent an email to Ms Olsen stating that Maroubra Police advised they cannot get involved in filing an AVO for a non-domestic matter, and that he needed to go to court.[108] At 13:48 Ms Olsen responded by stating that she “originally said in my emails for you to contact Central Police Station or call the Police”.[109] At 13:51 Ms Olsen sent an email to Mr O’Kane stating she did not know what Mr O’Kane said at the police station, but “any AVO can be made at a police station”, and that it was “absolutely incorrect you do it at a Local Court”.[110] At 13:53 Ms Olsen sent another email to Mr O’Kane inviting him to “call me at any time if you need me to help or explain something”, and that she understood “the seriousness and stress that” Mr X “has put you through”.[111] Mr O’Kane responded to Ms Olsen’s email stating “[t]hanks Syan. I’ll take it from here.”[112]
m)At 14:07 Mr Koch sent an email to Mr O’Kane stating Ms Olsen “is honestly trying to help mate three years a criminal defence lawyer – she will know her way around this stuff better than any of us”.[113]
n)At 16:35 Mr de Jong sent an email referring to a conversation he had with a person named “Pirmin” a few weeks before where Mr de Jong was told Pirmin made a deliberate decision to keep Mr X “as a limited contact on FB so he could observe his continuing behaviour”. Ms Olsen responded at 16:39 by stating that was a good idea and that “if he sees anything offensive, or of a criminal/bullying behaviour I do hope he could screen shot that for us because MattB and MattO should not be victimised in such a way any longer”.[114]
[100] Affidavit of M P O’Kane 14.07.2017, [137], exhibit MK-1 page 174
[101] Affidavit of R M Barrie, [105], exhibit RMB-17, page 132
[102] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 173
[103] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 172
[104] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 173
[105] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 173
[106] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 172
[107] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 172
[108] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 172
[109] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 172
[110] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 172
[111] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 172
[112] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 172
[113] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 171
[114] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 171
On 2 August 2016 the following occurred:
a)At 10:02 Mr Halim referred to a post Mr X made stating that Mr X was making things up, and that he was deluded.[115]
[115] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 171
b)At 10:10 Ms Olsen responded to Mr Halim’s email. She said it was best to ignore Mr X’s “empty and cruel assertions”; that Mr X is “mentally ill and abusive”; that the “way forward now is to present evidence to a police officer and apply for an AVO through the Police when MattB returns to Sydney”; and if “that fails then we will opt for the private AVO”.[116]
[116] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 171
c)At 12:55 Mr O’Kane sent an email in which he said that he had been told it seems unlikely that he would succeed in having a court issue an AVO. Mr O’Kane said it “is suggested that a letter from Freelancer’s legal counsel asking him to stop this harassment may produce the desired outcome”.[117]
[117] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 171
d)At 13:15 Ms Olsen sent an email stating that she was “leaning towards sending a standard letter requesting [Mr X] stop what he has been doing”, and that he “isn’t to step foot inside the office/attend the office under any circumstances whatsoever”.[118] Mr O’Kane responded by stating: “Sounds like a plan”.[119]
[118] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 171
[119] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 170
e)At 13:35 Ms Olsen said she will draft a letter, but stated she was reluctant to include “examples of what he has done with photos etc” in the letter.[120] At 13:37 Ms Olsen asked Mr Koch what his thoughts were about who should sign off on the letter. Ms Olsen asked whether she or Mr Koch should sign off because Mr X knew her from around ten years ago, and they “have a lot of mutual friends”.[121]
[120] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 170
[121] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 170
f)After some further exchanges Mr Koch sent an email at 15:27 stating he did not “think this will work at all”.[122] Ms Olsen sent an email stating she thought “it could aggravate him more”, but she drafted the letter “in case you want to send it”. At 15:37 Mr O’Kane sent an email asking Ms Olsen: “Can you guarantee the successful granting of an AVO for my case?”[123]Ms Olsen responded it was not up to her because she is not the police. Ms Olsen continued (emphasis in original):[124]
[122] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 169
[123] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 169
[124] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 169
I suspect the Police did not think your complaint was serious enough which is why they turned you away yesterday and told you to file in the Local Court. Some messages going back and forth and a nasty Facebook post doesn’t usually amount to an AVO of this nature, however, when you said yesterday you kept your children home from school I was of a different opinion.
g)At 15:47 Ms Olsen sent an email to Mr O’Kane stating no one “can guarantee this except the Officer who is assigned to your complaint from the New South Wales Police Force”. Ms Olsen said Mr O’Kane should feel free to “come and talk to” Ms Olsen if Mr O’Kane has “any questions about this”.[125]
[125] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 169
h)At 15:48 Mr Barrie said the draft letter should be sent because he was fed up with the matters Mr X was making up about Mr Barrie “and the threats to go on radio to discuss etc”.[126]
[126] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 169
i)At 15:53 Mr O’Kane sent an email in which he said that the facts surrounding Mr Barrie’s case differ from those surrounding Mr O’Kane’s case; and that he understood that the granting of an AVO in his case was unlikely “since no specific threat has been made against me”. Mr O’Kane asked whether in Ms Olsen’s experience there is enough information relating to Mr O’Kane that is likely to result in a “successful AVO”.[127]
j)Ms Olsen sent two emails. In the first, which she sent at 15:57, Ms Olsen said she had already addressed Mr O’Kane’s question. She said that “the Police decide your AVO”, that she had already said Mr O’Kane had been “knocked back yesterday”,[128] that she did not know what Mr O’Kane told the police and it is not within her capacity to answer Mr O’Kane’s question. Ms Olsen continued:[129]
You said you had to “up” the physical security of your home and your children could not go to school, however, upon reading the facts of your case I did not think it was anywhere near that serious to be honest. Having said that, I do not know [Mr X] and didn’t see the two of you interacting. The letter could also aggravate him. With regard to MattB though it’s different, he is making different threats by wanting to go on radio and had threatened MattB’s family including [C] etc
k)In her second email, which Ms Olsen sent at 15:59, Ms Olsen said:[130]
If you want to go for a private AVO you most certainly can and I can help you, and there is the possibility of a good outcome. However, I cannot “guarantee” anything – it’s up to the Local Court Magistrate.
l)At 16:30 Mr Barrie repeated what he said in an email he sent at 16:18, namely, there should be “no rush – lets [sic] ensure we are 100% happy with something and all sign off before we send”.[131]
[127] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 168
[128] Emphasis in original
[129] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 168
[130] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 168
[131] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 167
On Monday 8 August 2016 the following occurred:
a)At 4:08 pm Ms Olsen sent an email stating she is “happy with this document now”, by which I infer Ms Olsen intended to refer to a draft letter to Mr X, and requested amendments or agreements from the persons to whom she addressed the email, one of whom was Mr O’Kane. Ms Olsen stated that her name is on the document but “if you would prefer Chris to send it please amend that as well”. [132]
b)At 5:08 pm Mr O’Kane sent an email asking: “Did you say you are friends with [Mr X] at some point?”[133]
c)At 5:10 pm Ms Olsen said she remembered meeting Mr X when she left school through friends socially, and that she would see him at parties. This “was around a decade ago”.[134]
d)At 5:36 pm Mr O’Kane sent an email stating: “No objection to sending this letter”.[135]
[132] Exhibit D
[133] Exhibit D
[134] Exhibit D
[135] Exhibit D
It is unclear on the evidence before me what steps in relation to Mr X occurred after 2 August 2016 but before Mr O’Kane’s exchange of words with Mr Barrie on 17 August 2016. The email chain that is in evidence ends on 2 August 2016 with an email from Ms Olsen responding to an email from Mr Barrie that there was no rush to send a letter to Mr X, and “let’s ensure we are 100% happy with something and all sign off before we send”.[136] Mr O’Kane does not identify in his affidavits the taking of any steps to obtain an AVO against Mr X or Freelancer sending a letter to Mr X. In paragraph 108 of his affidavit, Mr Barrie states that he understood that Mr O’Kane did not obtain an AVO but that Ms Olsen helped Mr Barrie to apply and successfully obtain an AVO against Mr X.
[136] Affidavit of M P O’Kane 14.07.2017, exhibit MK-1 page 167
It is relevant to identify here the claims and evidence Mr O’Kane has made or given in relation to the events evidenced by the emails. First, there is the claim made in paragraph 31 of the Form 2 that was filed on behalf of Mr O’Kane:
On 1 August 2016, the Applicant contacted Ms Olsen (as the representative of the First Respondent) and complained or inquired of her about his personal safety. Ms Olsen seemed uninterested and was dismissive of the Applicant’s complaint or inquiry as to his safety and simply advised the Applicant that if he feared for his safety he needed to go to the police. The Applicant went to the police on three occasions. Ms Olsen had given the Applicant dud advice. The Police informed the Applicant that they only deal with domestic apprehended violence orders. Upon advising Ms Olson of this she stated “oh well, the police must not [have] considered the risk serious.
Second, there is what Mr O’Kane deposed in his first affidavit:[137]
By reference to the foregoing emails [being emails Mr O’Kane exhibited to his affidavit which did not include all of the emails I have identified] the attitude of Ms Olsen, Mr Koch and Barrie concerned me greatly. After receiving assurances all weekend that the company would take steps to get an AVO against [Mr X], and given that I had just arrived back from Manila to this mess, now I was being told to look after it myself.
[137] Affidavit of M P O’Kane 14.07.2017, [138]
Mr O’Kane also deposed as follows:[138]
Eventually, Barrie promised that the company would send a warning letter to [Mr X]. This letter never eventuated, despite my repeated requests, inquiries and complaints about [Mr X] to Freelancer and Barrie.
[138] Affidavit of M P O’Kane 14.07.2017, [139]
I did not admit this part of Mr O’Kane’s affidavit into evidence, but I granted his counsel leave to ask Mr O’Kane questions in chief about the matters asserted in this part of his affidavit. Mr O’Kane gave the following evidence:[139]
[139] T77.5
Now, there you say that Mr [Barrie] promised that the company would send a warning letter to [Mr X]. Can you tell the court the interaction – conversation you had with Mr [Barrie] about that letter?‑‑‑Yes. So we were having trouble. As you know, I felt like I was getting the run-around with AVOs and a suggestion came up – I’m not sure if it was from me or from Mr [Barrie]. I’d have to refer to the correspondence – but, essentially, what was promised to me by [Barrie] is, “Look, we’ll get a letter written.” And ‑ ‑ ‑
Sorry. Just to stop you there, what did he say to you?‑‑‑He said to me – okay. So what he said to me was – I don’t remember the context of it leading up but I said to him, “What can we do next? You know, this is driving me crazy. I’m feeling frustrated.” And then [Barrie] said to me, “I’ll have the legal team write up a letter and that will help warn him and calm him down.” So I said, “Okay. That sounds good.”
And was that letter ever issued?‑‑‑No.
And did you ever follow up the issue in that letter?‑‑‑Yes, I did.
And what did you say and to whom about the issuing of that letter?‑‑‑I think I – no. No. I definitely chased up Koch. I chased up [Barrie].
You mean Chris Koch?‑‑‑Chris Koch. That’s correct. Yes.
And Matt [Barrie]?‑‑‑That’s correct. Yes.
And, sorry, what did you say to them or either of them?‑‑‑There’s email records saying what I said. But I think the summary of the emails was, in essence, “What are – you know, have you issued the letter yet?” And I think the summary response in Koch in that email was, “I don’t know where it was.” I think one of the emails that Koch sent was the 15th or thereabouts. Koch said, “I don’t know where it is. I’ll chase it up with [Syan] tomorrow.” But, you know, there was a couple of instances where I raised it and I felt like I was getting the run-around.
And did Ms Olsen ever come back to you on the letter?‑‑‑No.
Third, there is the evidence Mr O’Kane gave under cross-examination. Mr O’Kane accepted that, although in paragraph 31 of the Form 2 Claim that was filed on his behalf it is stated that on 1 August 2016 he “contacted Ms Olsen . . . and complained or inquired of her about his personal safety”, the only complaint he made concerning Ms Olsen is that which may be inferred from the email chains I have summarised.[140] Under cross-examination Mr O’Kane sought to characterise the complaint in a number of ways. One was that although Mr O’Kane accepted Ms Olsen had set out in her emails the steps Mr O’Kane should take when applying for an AVO, Mr O’Kane said “there’s no actual help”.[141] Mr O’Kane continued:[142]
What I needed was help . . . I was complaining at this point because I needed someone to help me, but actually come to me and help me, you know. . . . Well, I thought that someone would help me through the process rather than telling me the steps to the process.
[140] T284.15
[141] T257.10
[142] T257.10-20
Another way in which Mr O’Kane characterised his complaint about Ms Olsen was that she did not inspire his trust; and this was based on what Mr O’Kane perceived to be inconsistent statements by Ms Olsen about the extent to which she knew Mr X.[143]
[143] T270.40
There are a number of observations that may be made about the claims and evidence Mr O’Kane made or gave in relation to the email chain. The first is the wide disparity between what is alleged in paragraph 31 of the Form 2 and what the chain of emails reveals:
a)In paragraph 31 of the Form 2 it is asserted that Mr O’Kane contacted Ms Olsen “and complained or inquired of her about his personal safety”. Mr O’Kane accepted in cross-examination, however, that the only communications he had with Ms Olsen were through email.
b)The email chain does not disclose any complaint or inquiry by Mr O’Kane to Ms Olsen. The email chain shows that Mr O’Kane received an offensive message from Mr X, Mr O’Kane forwarded it to Ms Barrie, Mr Barrie resolved that it was time to obtain an AVO, and that Mr Koch instructed Ms Olsen to prepare an application for an AVO.
c)The assertion made in paragraph 31 of Form 2 that Ms Olsen seemed uninterested and was dismissive of Mr O’Kane’s complaint or inquiry as to his safety but simply advised Mr O’Kane that if he feared for his safety he needed to go to the police, is entirely inconsistent with the chain of emails. The emails show that Ms Olsen actively engaged with Mr O’Kane and others about applying for an AVO. Ms Olsen specifically asked Mr O’Kane to let her know if he decided to go to Maroubra police and, if so, whether he needed any support. Ms Olsen also offered to help Mr O’Kane if he decided to apply for a private AVO.
Counsel for Mr O’Kane submitted that Mr O’Kane does not rely on paragraph 31 of Form 2 as a “complaint” for the purpose of his claims based on the respondents’ claimed contraventions of s.340 of the FW Act. That may be so; but it leaves unexplained how the assertions contained in paragraph 31 of the Form 2 were made in the first place. There is nothing to suggest Mr O’Kane was incapable of knowing what was contained in the Form 2; and there is nothing to suggest that the Form 2 was not completed on the basis of instructions Mr O’Kane gave to his lawyer. The unexplained disparity between the email chain and paragraph 31 of Form 2, therefore, is a ground for discounting the credibility that could otherwise be assigned to Mr O’Kane’s evidence, not only of the effect of the words he claims were exchanged with Mr Barrie on 17 August 2016, but also of his evidence of other conversations that are disputed.
The second observation relates to what Mr O’Kane said in his first affidavit, namely that the emails exhibited an attitude by Ms Olsen, Mr Koch and Mr Barrie that concerned Mr O’Kane because “now I was being told to look after it myself”.[144] That, however, is an unwarranted description of the effect of what the emails themselves reveal. The emails do not show Mr O’Kane was told to look after himself; they manifest an intention by Freelancer, through Mr Koch instructing Ms Olsen, to advise and assist Mr O’Kane and others to obtain an AVO. I have already noted that Ms Olsen offered to accompany Mr O’Kane to the police station, and offered to assist him to apply for a private AVO, if that is what Mr O’Kane were to decide to do. That Mr O’Kane characterised the effect of the emails in a manner that is wholly foreign to their objective effect is also a reason for discounting the credibility that could otherwise be assigned to Mr O’Kane’s evidence of the words he exchanged with Mr Barrie on 17 August 2016.
[144] Affidavit of M P O’Kane 14.07.2017, [138]
The third observation relates to the evidence Mr O’Kane gave in cross-examination. He maintained the position that he did not receive any assistance from Ms Olsen in the face of emails that were put to him which plainly show not only that Ms Olsen did offer him assistance, but that it was Mr O’Kane who said he did not require Ms Olsen to accompany him to the police station.
There is one final matter to note. The email chain suggests that after his unsuccessful attempt on 1 August 2016 to obtain an AVO, which Mr O’Kane chose to do himself without accepting Ms Olsen’s offer to accompany him to the police station, Mr O’Kane lost faith in the option of applying for an AVO, and instead suggested that Freelancer issue a letter to Mr X. It was in that context that Mr O’Kane asked whether Ms Olsen could guarantee the granting of an AVO.
Events immediately preceding meeting with Mr X’s mother
According to Mr O’Kane on 15 August 2016 he received the following voicemail from Mr X (capitals added by Mr O’Kane):[145]
O’Kane, don’t get this crisscrossed, like your eyes. You have my property and I want it back. I will be taking action if not. READ BETWEEN THE LINES. Because mate, what you’ve done . . . is disgusting, and I’ve got a psychiatrist on my side, so find my property please and fucking get in contact with me, because what you’re doing – you’re letting yourself down. Mate, you’re not letting me down, you’re not letting the company down, you’re letting yourself down. Your kids must be ashamed to have you as a parent.
[145] Affidavit of M P O’Kane 14.07.2017, [140]
Mr O’Kane says that “[a]t this point” he “came to the conclusion that [Mr X] was now making specific personal threats against my safety”. Mr O’Kane further said that his wife became so concerned that she called their children’s school and arranged to provide additional security to their children and circulated photographs of Mr X to school staff.[146] Mr O’Kane further says that on or about 16 August 2016 his wife told him that she had been discussing the threats Mr X was making with a criminal psychologist, who happened to be a family friend.[147] Mr O’Kane says he then telephoned the criminal psychologist and “gave her a full run-down on everything that had happened between” Mr X and Mr O’Kane.[148] The criminal psychologist advised Mr O’Kane that the best way to handle Mr X was to ensure Mr O’Kane did not interact or communicate with Mr X whatsoever, and that:[149]
You want to be invisible to [Mr X] and as unreactive to him as possible. You don’t want to satisfy him by responding. His issue should be with Freelancer, not with you personally.
[146] Affidavit of M P O’Kane 14.07.2017, [141], [142]
[147] Affidavit of M P O’Kane 14.07.2017, [143]
[148] Affidavit of M P O’Kane 14.07.2017, [144]
[149] Affidavit of M P O’Kane 14.07.2017, [145]
Mr O’Kane further says that at about 10 am on 17 August 2016 Mr Halim arrived at work and asked Mr O’Kane how Mr O’Kane was “coping with the [Mr X] situation”. Mr O’Kane deposes he responded with words to the following effect:[150]
I am 100 percent disappointed about how Freelancer hasn’t helped me deal with [Mr X].
The legal team provided me advice which seems wrong, or designed to cover their arses. For example, telling me to contact the Police about [Mr X], when I had already told them I’d twice previously gone to the cop shop and they told me they can’t get involved unless it’s a domestic violence matter. They told me to go to the local court. Can you take this up with Matt [Barrie]?
[150] Affidavit of M P O’Kane 14.07.2017, [148], [149]
Mr Halim has not been called by either party to give evidence. In these circumstances counsel for Mr O’Kane submits that I should apply the principle associated with the High Court’s decision in Jones v Dunkel.[151] Counsel relied on the principle as formulated in the Australian edition of Cross on Evidence:[152]
First, unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence or produce particular material to an expert witness may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party’s case.
[151] (1959) 101 CLR 298
[152] J D Heydon, Cross on Evidence 10th Australian ed (2015) at [1215] (footnotes omitted)
I begin with s.361(1) of the FW Act which provides:
If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
Also relevant is s.360 of the FW Act which provides that, for the purposes of Part 3.1 of the FW Act, “a person takes action for a particular reason if the reasons for the action include that reason”.
Not every reason for which a person acts qualifies as a particular reason. The characteristic a reason must have before it may be so characterised has been described in different ways. One is that it had to be “a ‘substantial and operative factor’ as to constitute a ‘reason’, potentially amongst many reasons”.[185]Another formulation is the reason must be an “operative or immediate reason for action”.[186] There is no difference in substance between these formulations.
[185] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [127] (Gummow and Hayne JJ)
[186] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [140] (Heydon J)
The evidence a person would normally be required to adduce to prove that the action in question was not taken for the particular reason has also been described in different ways. One is provided by Gibbs J (as his Honour then was) in General Motors Holden Pty Ltd v Bowling:[187]
The onus of proving that the fact that the employee held the position [of shop steward] was not a substantial and operative factor in the dismissal is to be discharged according to the balance of probabilities and is not to be made heavier by any presumption that if an employee who is dismissed for disruptive activities happens to be a shop steward the latter circumstance must have had something to do with his dismissal. If in the present case evidence had been given by the directors responsible that the employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced by the fact that he was a shop steward or indeed that he was dismissed in spite of that fact, and that evidence had been accepted, the onus would have been discharged.
[187] (1976) 12 ALR 605 at 612. The case arose under s.5(1) of the Conciliation and Arbitration Act 1904 (Cth).
In Barclay v Board of Bendigo Regional Institute of Technical and Further Education, Tracey J said:[188]
If an employer, who is alleged to have contravened one of the provisions of Pt 3-1 in which the word “because” is to be found, adduces evidence which persuades the court that it acted solely for a reason other than one or more of the impermissible reasons identified in a particular protective provision, it will have made good its defence. Because of the reverse onus provision the employer will normally need to call evidence from the decision-maker to explain what actuated him or her to act to the employee’s detriment. As Buchanan J said in Seymour (at 14), the employer will usually have to provide “sworn evidence denying any [proscribed] reason . . . and, in most cases, an explanation of the real reason for [the adverse action] consistent with the absence of [proscribed reasons] is, in a practical sense, also necessary”.
[188] [2010] FCA 284, [35]
And in the High Court, French CJ and Crennan J said:[189]
Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. . . . [D]irect testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
[189] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, [45] (footnotes omitted)
An employer adducing evidence of his or her reasons for taking the impugned action does not necessarily mean the Court will accept the evidence. In Board of Bendigo Regional Institute of Technical and Further Education v Barclay, Heydon J said:[190]
Of course, “mere declarations” by a witness as to his or her “mental state” may not be sufficient to discharge the [employer’s] burden of proof under s 361. External circumstances could put into question the reliability or credibility of those declarations.
[190] [2012] HCA 32, [141]
The same point was made by French CJ and Crennan J:[191]
Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence or because other objective facts are proven which contradict the decision-maker’s evidence.
[191] 2012] HCA 32, [45
The question I must consider, therefore, is: what is the reason or reasons for which Mr Barrie sent the text message of 18 August 2016 (being the act Mr O’Kane claims constituted the adverse action Freelancer took against him)? I will also consider the reason or reason for which Freelancer decided to insist on 19 August 2016 that Mr O’Kane’s employment had come to an end.
The evidence
The parties have assumed that Mr Barrie’s mind is to be treated as the mind of Freelancer for determining the reason or reasons for which Mr O’Kane’s employment was terminated. I accept that assumption.
There are two decisions Mr Barrie made that are relevant. The first is his sending to Mr O’Kane at 11:24 on 18 August 2016 the text message in which he communicated what he said was his understanding that Mr O’Kane had resigned. The second is the decision Mr Koch communicated to Mr O’Kane in the email of 19 August 2016 that it would not be appropriate for Mr O’Kane to continue his employment with Freelancer.
The evidence in relation to Mr Barrie’s first decision is as follows:
a)Shortly after Mr O’Kane left the premises on 17 August 2016 Mr Koch told Mr Barrie that Mr O’Kane had walked past him on the way out and slapped him hard on the shoulders, yelled out “it’s been nice knowing you”, and then walked off without further explanation.[192]
b)At around 12.05 on 17 August 2016 Mr de Jong sent to Mr Barrie a screenshot of the messages Mr O’Kane sent on “Google Hangouts”.[193] Mr Barrie showed the screenshot to Mr Koch and Mr Barrie and Mr Koch each said to each other they thought Mr Barrie had resigned. Mr Barrie also said words to the effect: “If he hadn’t resigned [I] would have fired him anyway”.[194]
c)After Mr O’Kane left the Freelancer’s premises, Mr Barrie received “a lot of negative feedback from other employees about Mr O’Kane”.[195] He received a telephone call from Mr Griston, an employee from London stating he “heard about Mr O’Kane’s resignation” and that he wanted to speak about Mr O’Kane’s behaviour while he was working for him. Mr O’Kane requested Mr Griston send to Mr Barrie further details about his experience with Mr O’Kane.[196]
d)Mr Griston sent an email to Mr Barrie setting a review posted on “Glassdoor” by a former employee containing negative opinions about Mr O’Kane.[197] In his email Mr Griston added he had held back describing “the absolute nightmare I experienced from this person”, that “[y]ou’ve seen the exit interviews and you know why everyone leaves”, and that “I have to ask, on behalf of the whole company, please stop turning a blind eye”. Mr Barrie understood Mr Griston to have been referring to Mr O’Kane.
e)Mr Barrie responded by email in which he stated “I saw” and asked to whom Mr Griston had shown exit interviews. Mr Griston replied: “Just you and Duncan”, by which I find Mr Griston intended to say that only Mr Barrie and a person named “Duncan” had seen the exit interviews. Mr Griston continued by stating that “my days are filled with unhappy staff constantly speaking to me about this issue”.[198]
f)Before he sent the text message of 18 August 2016 communicating his understanding that Mr O’Kane had resigned, Mr Barrie believed Mr O’Kane had resigned. Mr Barrie based that belief on “the behaviour by Mr O’Kane that I had observed (including his communications with Mr Koch and Mr de Jong) and the fact he did not attend for work on 18 August 2016”.[199]
[192] Affidavit of R M Barrie, [135]
[193] Affidavit of R M Barrie, [135]
[194] Affidavit of R M Barrie, [136]
[195] Affidavit of R M Barrie, [141]
[196] Affidavit of R M Barrie, [144]
[197] Affidavit of R M Barrie, exhibit RMB-23, page 151. At [145] of his affidavit, Mr Barrie notes that “Glassdoor” is a website on which employees can anonymously post reviews about their employer.
[198] Affidavit of R M Barrie, exhibit RMB-23, page 151
[199] Affidavit of R M Barrie, [149]
Mr Barrie also deposed as follows:[200]
Even if Mr O’Kane hadn’t resigned on 17 August 2016, in light of Mr O’Kane’s ongoing performance issues set out throughout this my [sic] affidavit, the significant amount of negative feedback I had received from other employees about Mr O’Kane, the fact that Mr O’Kane’s behaviour had not improved at all following the formal warning I issued to him at the meeting of 20 May 2016, his failure to follow a repeated reasonable direction by me to return [Mr X’s] property and the fact that he had lied to me about returning the belongings on multiple occasions, I had formed the view in my mind that I should terminate Mr O’Kane’s employment with Freelancer. I reached this view conclusively after the incident with [Mr X’s mother] when Mr O’Kane caused a commotion in the office and stormed out taking into account the formal warning I had issued to Mr O’Kane at the meeting of 20 May 2016.
I deny that I dismissed Mr O’Kane because he made complaints. I did not dismiss Mr O’Kane. To my mind, he had resigned and I had merely confirmed that understanding to him. To a great extent, I was not even aware of the matters Mr O’Kane alleged were complaints on which a decision to terminate his employment had been based.
[200] Affidavit of R M Barrie, [152], [153]
The evidence in relation to Mr Barrie’s second decision, namely, the decision that Mr Koch communicated to Mr O’Kane in the email of 19 August 2016, consists of nothing more than Mr Barrie showing Mr Koch the email Mr Barrie received from Mr O’Kane on 18 August 2016 in which Mr O’Kane said he had not resigned, Mr Barrie informing Mr Koch “about my decision”, and asking Mr Koch “to send Mr O’Kane an email to that effect”.[201]
[201] Affidavit of R M Barrie, [154]-[156]
It will be seen that Mr Barrie, in his evidence, says a number of things. First, at the time he sent his text message of 18 August 2016 Mr Barrie believed Mr O’Kane had resigned. Second, whether or not Mr O’Kane had resigned, Mr Barrie had resolved in his own mind that Mr O’Kane would not again be employed by Freelancer. Third, Mr Barrie had so resolved for a number of reasons, namely:
a)the “ongoing performance issues” Mr Barrie set out in his affidavit;
b)the “significant amount of negative feedback” Mr Barrie says he received “from other employees about Mr O’Kane” and Mr O’Kane’s behaviour having not improved; and
c)Mr O’Kane’s failure “to follow a repeated reasonable direction by me to return [Mr X’s] property and that he had lied to me about returning the belongings on multiple occasions”.
I have already identified the evidence and have made findings about Mr X. I have not, however, identified the evidence of the other matters on which Mr Barrie says he relied, and, in particular, the “ongoing performance issues”. These are as follows:
a)On 18 November 2015 Mr Barrie received an email from an employee who was resigning in which the employee made negative observations about Mr O’Kane.[202]
b)On 16 February 2016 Mr Barrie received an email from Freelancer’s Senior Director of Growth with some negative feedback about Mr O’Kane.[203]
c)On 24 February 2016 Mr Barrie became aware that Mr O’Kane had refused an employee leave because he incorrectly accused the employee of faking the death of her grandmother.[204]
d)On 1 March 2016 Mr Griston made a number of complaints about Mr O’Kane.[205]
e)In around the middle of March 2016 Mr X informed Mr Barrie that Mr O’Kane had disclosed confidential information.[206]
f)In around 21 April 2016 Mr Barrie was informed that an employee in Freelancer’s Manila office had resigned and that it was likely the resignation was caused by that employee’s interaction with Mr O’Kane.[207]
g)Various “exit interviews” in which departing employees made negative comments about Mr O’Kane.[208]
h)What I will refer to as the “Four Corners Incident” and the meeting held on 20 May 2016 between Mr Barrie, Mr Koch, and Mr O’Kane during which Mr O’Kane accepts Mr Barrie “berated” Mr O’Kane for “talking to Four Corners”.[209]
i)What I will refer to as the “Formal Warning Meeting” that is said to have occurred on 20 May 2016.
[202] Affidavit of R M Barrie, [18], [19]; exhibit RMB-1, pages 38-41
[203] Affidavit of R M Barrie, [20]; exhibit RMB-2, pages 42-44
[204] Affidavit of R M Barrie, [21]-[27]]; exhibit RMB-3, RMB-4, RMB-5, pages 45-48, 49-50, 51-57
[205] Affidavit of R M Barrie, [28]-[33]; exhibit RMB-6, pages 58-63
[206] Affidavit of R M Barrie, [34]
[207] Affidavit of R M Barrie, [46]-[49]; exhibit RMB-7, pages 64-66
[208] Affidavit of R M Barrie, [50]-[52]; exhibit RMB1, pages 67-79
[209] Affidavit of M P O’Kane 03.10.2017, [124]
Mr O’Kane disputed or adduced evidence to explain the matters on which Mr Barrie says he relied for deciding that Mr O’Kane should not continue to be an employee of Freelancer; and much of the hearing before me was directed to whether the incidents as recounted by Mr Barrie did occur or whether they ought to be characterised in the way Mr Barrie intended to portray them. Whether or not those incidents occurred, however, is not an issue that I must decide. The relevant questions are whether, as Mr Barrie deposed, he believed that incidents to the effect he described in his affidavit occurred and, if so, whether, as he also deposes, he relied on those beliefs when he made the relevant decisions concerning the termination of Mr O’Kane’s employment. I accept that whether or not the incidents occurred may be relevant to whether Mr Barrie held the beliefs he says he held and whether he acted on those beliefs. For reasons that should become apparent, however, I do not think it is necessary that I make findings about the issues the parties raised in relation to the incidents. It is, however, important that I set in some detail the undisputed evidence surrounding the Four Corners Incident; and also the disputed evidence about the Formal Warning Meeting.
Four Corners Incident
According to Mr Barrie, the following occurred:
a)On about 12 May 2016 Freelancer’s Communications Team Leader, informed Mr Barrie that a journalist from the ABC television program “Four Corners” was communicating with Freelancer’s Communications Team about a story they were producing about “the future of work”. After making some enquiries of the journalist, Mr Barrie became concerned the journalist would “unfairly represent Freelancer’s international marketplace”.[210]
[210] Affidavit of R M Barrie, [58]
b)At 3.40 pm on 19 May 2016, while walking back to the office with Mr Koch, Mr Barrie received the following text message from Mr O’Kane:[211]
[211] Affidavit of R M Barrie, [62]
Hey matt. Can we have a chat? Urgent press enquiries.
c)Mr Barrie telephoned Mr O’Kane and said words to the following effect:[212]
[212] Affidavit of R M Barrie, [62]
Did you ask anyone about this first? I told you that the comms team are handling it and I said don’t get involved. I’m on [my] way back to the office now. You are not to get involved in press matters as you are not in the communications team.
d)Mr Barrie hung up after which the following text messages were exchanged:[213]
[213] Affidavit of R M Barrie, [63], exhibit RMB-10, pages 84-87
Mr O’Kane:Ok. You should know that the guy at the ABC Four Corners is a close personal friend. He is going to know we are stalling.
Mr Barrie:Huh?
Why didn’t you tell me that?
Mr O’Kane:I did. You hung up.
Mr Barrie:I’m back in 10.
Mr O’Kane:I was talking with air.
e)Mr Barrie then turned to Mr Koch and, after telling him that Mr O’Kane was going to let the Four Corners journalists to come to the Freelancer office to film, Mr Koch said he had received a message over “Google Hangouts” from Mr O’Kane that Four Corners were already coming to the office.[214]
[214] Affidavit of R M Barrie, [64]
f)Mr Barrie then entered into the following exchange of text messages with Mr O’Kane:[215]
[215] Affidavit of R M Barrie, [65], exhibit RMB-10, pages 84-87
Mr Barrie:Chris said you told the guy to come into the office
Is that true?
Mr O’Kane:I said I need to check. But yes
So I’m checking
Mr Barrie:For fucks [sic] sake
Mr O’Kane:I can’t do this with half a fucking conversation.
If you hang up the phone I can’t do anything about that.
g)Mr Barrie telephoned Mr O’Kane and told Mr O’Kane he was not in the communications team, and that “you are not to be involved in press matters”.[216] The following text messages were then exchanged:[217]
[216] Affidavit of R M Barrie, [66]
[217] Affidavit of R M Barrie, [67], exhibit RMB-10, pages 84-87
Mr Barrie:Do not say anything to anyone including getting back to your friend
Mr O’Kane:Too late.
Told him that we are not able to do today
That is it for Comms
The end.
Mr Barrie:You are to never reply to a journo again without permission, got that?
Mr O’Kane:No more Comms. Got it.
Apart from disputing the date on which the text messages were sent (20 May, not 19 May 2016), Mr O’Kane does not dispute conversations Mr Barrie’s account of the conversations he had with Mr O’Kane.[218] Nothing turns on whether text messages were sent on 19 or 20 May 2016, and I do not propose to make any finding about that.
[218] Affidavit of M P O’Kane 03.10.2017, [116], [117]
Mr O’Kane and Mr Barrie both depose to their having a conversation about the Four Corners Incident, but there is a dispute about what was said. It is not necessary for me to make a finding about what was said. Relevant to what I have to determine is that on both accounts, Mr Barrie was extremely angry with Mr O’Kane about Mr O’Kane’s role in the Four Corners journalist expecting to visit Freelancer’s premises. That is manifested in the text message exchanges I have set out; it is also particularly manifested by Mr O’Kane’s account where Mr Barrie is quoted as exclaiming “Fuck” and “Argh!” and his stating to Mr O’Kane that “[y]ou are NOT to talk to the media, ever again. Got it?”[219]
[219] Affidavit of M P O’Kane 03.10.2017, [113]
Formal Warning Meeting
Both Mr Barrie and Mr Koch depose they had a with Mr O’Kane on 20 May 2016 in which Mr Barrie raised with Mr O’Kane issues relating to his performance. According to his affidavit, [220] Mr Barrie told Mr O’Kane he was “seriously starting” to question Mr O’Kane’s judgment and his “ability as a leader after the sheer volume of complaints about him, especially in exit interviews” and that he “brought up four issues in addition to the exit interview complaints”. After identifying the four issues Mr Barrie said “words to the effect that this was a formal warning and that any further inappropriate, abusive or bad behaviour or staff complaints would lead me to reassess his continuing employment with Freelander”.[221] At the beginning of his evidence before me, Mr Barrie said that one of the four issues (the deleted issue) he stated in his affidavit that he raised with Mr O’Kane was not in fact raised, and that that part of his affidavit was “an error”.[222]
[220] Affidavit of R M Barrie, [75]
[221] Affidavit of R M Barrie, [76]
[222] T465.10
Mr Koch gives a similar account to that given by Mr Barrie. That includes Mr Koch deposing that Mr Barrie raised the deleted issue. At the beginning of his evidence before me Mr Koch said the deleted issue had not been raised, and that he had “misrecollected that”. [223] In addition, Mr Koch says that he “made some brief notes at some point shortly after this meeting on” his iPad. [224] The note is as follows:[225]
Boardroom discussion with Matt and MattO, 20 May 2016
About Four Corners bungle
MattO very angry I was in the meeting
[223] T334.10
[224] Affidavit of C A Koch, [20]
[225] Affidavit of C A Koch, [20], annexure CAK-1
Discussed handling of ABC journo and several other recent fails by MattO
Matt clarified after the meeting that he needed me there as a witness for a formal warning.
I do not accept Mr Barrie’s or Mr Koch’s evidence that there was any meeting to the effect of the Formal Warning Meeting:
a)Mr Barrie and Mr Koch say Mr Barrie asked Mr Koch to attend the Formal Warning Meeting as a witness. In his note, on the other hand, Mr Koch states that it was after the meeting that Mr Barrie “clarified” that he needed Mr Koch to attend the meeting as a witness for a formal meeting.
b)If, as both Mr Barrie and Mr Koch say, Mr Barrie asked Mr Koch to attend as a witness, it is reasonable to expect that during the meeting Mr Koch would have recorded as best he could what was being said at that meeting. As is apparent from the terms of Mr Koch’s note, that did not occur.
c)Mr Koch’s note, and his and Mr Barrie’s recollection of the meeting, is bereft of detail of what was discussed. Given the stated purpose of the meeting, namely, Mr Barrie’s issuing to Mr O’Kane a formal warning, it is reasonable to expect that Mr Barrie would have presented precise details of the matters he says were raised with Mr O’Kane. It is also reasonable to expect that at or shortly after the meeting Mr Barrie would have handed to Mr O’Kane a document setting out the issues raised and, more importantly, containing the warning Mr Barrie says he conveyed to Mr O’Kane at the meeting.
d)Mr Koch’s note contains fewer details than what Mr Koch says he recalls was discussed in the meeting. It only refers to a discussion of the handling of the “ABC journo” and “other recent fails” by Mr O’Kane. This does not identify the events which the note characterises as “recent” or when such events occurred.
e)Both Mr Koch and Mr Barrie have included the deleted issue in their recollection of what Mr Barrie said at the meeting. That they both did so in circumstances where there is no contemporaneous record of what was discussed is by itself reason enough for me not to accept that any such meeting to the effect of the Formal Warning Meeting took place.
I find that only one meeting took place on 19 or 20 May 2016. It was between Mr Barrie and Mr O’Kane and, possibly, Mr Koch was also present; only one subject that was discussed, namely the Four Corners Incident; and that Mr Barrie “berated” Mr O’Kane about the incident. There was no meeting to the effect of the Formal Warning Meeting
Findings
Counsel for Mr O’Kane submits I should not accept the evidence Mr Barrie has given about the reason or reasons why he decided to terminate Mr O’Kane’s employment. Counsel relies on a number of matters. The first, and principal matter, relies on the contrast between how Mr O’Kane was regarded and treated by the respondents before his employment was terminated, and how the respondents have sought to portray Mr O’Kane in these proceedings. Counsel submits that until his employment was terminated, Mr O’Kane was considered by Mr Barrie and other employees of Freelancer to have been an exemplary employee. Counsel points to Mr O’Kane’s having received promotions and increases in his salary, praise for his management of certain projects, and to his being nominated to attend an executive management course at Stanford University in California.[226] In these proceedings, on the other hand, the respondents have sought to portray Mr O’Kane in as bad a light as possible.[227]
[226] See, for example, Applicant’s Outline Submissions, [11]-[26]
[227] Applicant’s Outline Submissions, [71]
Counsel submits that the respondents’ attempt to portray Mr O’Kane’s employment history in a bad light lacks credibility, given the high regard in which counsel submits Mr O’Kane was held by the respondents. This, in turn, should lead me not to give credit to Mr Barrie’s evidence that he relied on Mr O’Kane’s poor performance as an employee as a reason for terminating his employment. Counsel also relies on the striking similarities of the affidavits of Mr Koch and Mr Barrie,[228] and the failure by the respondents to call Mr Halim.[229]
[228] See, for example, Applicant’s Outline Submissions, [72]-[78]
[229] See, for example, Applicant’s Outline Submissions, [79]-[83]
There is force in counsel’s submissions. I have already not accepted the evidence of Mr Barrie and Mr Koch that a meeting to the effect of the Formal Warning Meeting occurred. That, in turn, is a ground for doubting the evidence that Mr Barrie has given of his reasons for deciding that Mr O’Kane would not return to Freelancer as an employee. The difficulty with counsel’s submissions, however, is they ignore evidence about which there is no dispute and which is highly probative to determining the reason or reasons for which Mr Barrie decided that Mr O’Kane should not continue as an employee of Freelancer.
First, there is the Four Corners Incident. The text messages that I have set out above by themselves show that Mr Barrie was extremely angry with Mr O’Kane’s conduct in relation to the journalist. Mr O’Kane himself acknowledges that anger where he characterises what Mr Barrie said to him immediately after the incident as a berating. After that incident, it is impossible to characterise Mr O’Kane’s standing in the eyes of Mr Barrie and, to the extent he represented the mind of Freelancer, in the eyes of Freelancer, as that of an exemplary employee, even if before that incident Mr O’Kane may have been so regarded.
Second, there is what I have found occurred at and immediately after the meeting with Mr X’s mother, only three months after the Four Corners Incident. I have found that Mr Barrie was embarrassed with his having misrepresented to Mr X’s mother that Mr X’s property had been returned to him; that his embarrassment turned into anger toward Mr O’Kane; Mr Barrie believed he had instructed Mr O’Kane to return Mr X’s property to Mr X but that Mr O’Kane had not complied with that instruction; and that Mr Barrie also believed that Mr X’s recent troubling conduct was due, at least in substantial part, to Mr O’Kane not having returned Mr X’s property to Mr X.
Third, even on Mr O’Kane’s account of what occurred at the meeting, Mr Barrie was angry with Mr O’Kane. According to Mr O’Kane, Mr Barrie said Mr O’Kane made Mr Barrie look foolish; and by stating (on Mr O’Kane account), that Mr O’Kane had to accept that Mr X’s behaviour was Mr O’Kane’s fault, Mr Barrie was plainly blaming Mr O’Kane.
In my opinion, the reason or reasons why Mr Barrie decided Mr O’Kane would not remain an employee of Freelancer go little further than the matters he stated to Mr O’Kane during the exchange of words on 17 August 2016. On Mr Barrie’s account of the words he used (which I have accepted), Mr Barrie charged Mr O’Kane with not having carried out an instruction Mr Barrie believed he had given to him. I find that Mr Barrie had resolved from that point that he did not want Mr O’Kane to remain an employee; and that he so decided because Mr Barrie believed he had given an instruction to Mr O’Kane to return Mr X’s property and that, contrary to the fact, he believed that Mr O’Kane carried out that instruction. That Mr Barrie may have been mistaken in believing he had given a firm instruction to Mr O’Kane to return Mr X’s property and that Mr O’Kane had disobeyed that instruction does not mean Mr Barrie did not believe that is what occurred. I further find that, having so resolved, Mr Barrie committed himself to do that which was necessary to ensure Mr O’Kane’s employment would be terminated.
I would make the same findings even if I were to have accepted Mr O’Kane’s version of his exchange of words with Mr Barrie on 17 August 2016. Mr Barrie stated he was made to look foolish; and he blamed Mr O’Kane for Mr X’s conduct. It was not submitted by counsel for Mr O’Kane that Mr Barrie did not believe Mr O’Kane made Mr Barrie look foolish or that he did not believe that Mr O’Kane was to blame for Mr X’s conduct; and it was not put to Mr Barrie that he did not hold these beliefs. In those circumstances I would have found that at that point Mr Barrie did not want Mr O’Kane to remain an employee; and that he would have so decided because Mr Barrie believed Mr O’Kane had made Mr Barrie look foolish and because he believed Mr O’Kane was to blame for Mr X’s conduct. I would have further found that, having so resolved, Mr Barrie committed himself to do that which was necessary to ensure Mr O’Kane’s employment would be terminated. Finally, I would have further found that the statements that Mr O’Kane recalls he made, assuming these constituted complaints, would have played no part in Mr Barrie’s decision to have Mr O’Kane no longer be an employee of Freelancer.
Given I these findings, whether or not Mr Barrie believed Mr O’Kane resigned was not relevant to Mr Barrie’s decision that he no longer wanted Mr O’Kane to remain employed by Freelancer. Mr Barrie said as much in his affidavit.
It may be, and in my opinion it is likely, that after Mr Barrie decided he no longer wanted Mr O’Kane to remain an employee of Freelancer, Mr Barrie looked for additional reasons to confirm or bolster his decision. It is likely that Mr Barrie considered the matters Mr Griston communicated to him on 17 and 18 August 2016 as reasons to confirm or bolster his decision not to have Mr O’Kane continue as an employee of Freelancer. It is possible that Mr Barrie also brought to mind the Four Corners Incident as a reason to confirm his decision that Mr O’Kane not remain an employee of Freelancer. Given there is no evidence that, by the time Mr Barrie sent to Mr O’Kane his text message of 18 August 2016, or by the time Mr Barrie instructed Mr Koch to send to Mr O’Kane the email of 19 August 2016, Mr Barrie searched through records, such as exit interviews, that related to Mr O’Kane’s performance as an employee, I do not accept Mr Barrie took into account any of the other incidents Mr Barrie sets out in his affidavit when deciding or putting into effect his decision, that Mr O’Kane not continue with his employment with Freelancer.
There is one final matter I should note. As I have already set out, Mr Barrie claims that among the reasons on which he relied for resolving that Freelancer would not continue to employ Mr O’Kane was Mr O’Kane’s failure “to follow a repeated reasonable direction by me to return [Mr X’s] property and that he had lied to me about returning the belongings on multiple occasions”. There is no evidence before me on the basis of which it could be suggested that Mr O’Kane lied to Mr Barrie about the return of Mr X’s property; and there is no evidence to suggest Mr Barrie had given more than one direction to Mr O’Kane to return Mr X’s property to Mr X. For these reasons, I do not accept that at the time he resolved that Freelancer would not continue to employ Mr O’Kane that Mr Barrie relied on a belief that Mr O’Kane had lied or that Mr Barrie had given Mr O’Kane more than one direction for the return of Mr X’s property to Mr X. My not accepting Mr Barrie relied on these matters, however, does not affect the findings I have made about the reasons on which Mr Barrie relied for resolving that Mr O’Kane would no longer have a future as an employee of Freelancer. It is not necessary for me to consider what accounted for Mr Barrie to state in his evidence that Mr O’Kane lied to Mr Barrie about the return of Mr X’s property, and that Mr Barrie directed Mr O’Kane more than once to return Mr X’s property to Mr X.
Conclusion and disposition
Mr O’Kane has failed to establish that Freelancer contravened s.340 of the FW Act. It follows he has also failed to establish that Mr Barrie was involved in any contravention of s.340 of the FW Act.
I propose, therefore, to order that the application be dismissed. I also propose to reserve to the parties liberty to apply within twenty one days of the publication of these reasons for any order as to costs.
I certify that the preceding one hundred and seventy-four (174) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 27 April 2018
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