Pacheco-Hernandez v Duty Free Stores Gold Coast Pty Ltd

[2018] FCCA 3734

FEDERAL CIRCUIT COURT OF AUSTRALIA

PACHECO-HERNANDEZ v DUTY FREE STORES GOLD COAST PTY LTD [2018] FCCA 3734

Catchwords:

INDUSTRIAL LAW – General protections – employee claims that employee was dismissed because she exercised workplace rights by making a complaint in relation to her employment and by participating in a process under a workplace law – whether employee exercised a workplace right by making a complaint in relation to her employment – whether employee exercised a workplace right by participating in a process under a workplace law – whether employer has proved it did not dismiss applicant because she exercised workplace right – employer proved it did not dismiss employee because she participated in a process under a workplace law – employer failed to prove it did not dismiss employee because employee made a complaint in relation to her employment – compensation and other relief granted.

Legislation:

Fair Work Act 2009 (Cth), ss.12, 340, 341(1), 342(1), 360, 361(1), 539, 545, 547
Industrial Relations Act 1988 (Cth), s.179EE

Cases cited:
Aitken v Construction, Mining, Energy, Timberyards, Sawmills & Woodworkers Union of Australia (1995) 63 IR 1
Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333
Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
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
Shea v TRUenergy Services Pty Ltd (No.6) [2014] FCA 271
Turnbull v Symantec (Australia) Pty Ltd [2013] FCCA 1771

Applicant: ESCARLE MARIENE PACHECO-HERNANDEZ

Respondent: DUTY FREE STORES GOLD COAST PTY LTD

File Number: SYG 2297 of 2017

Judgment of: Judge Manousaridis

Hearing dates: 14, 15 May 2018

Date of Last Submission: 15 May 2018

Delivered at: Sydney

Delivered on: 17 December 2018

REPRESENTATION

Applicant, in person

Solicitors for the Respondent: Mr R Marshall of FCB Lawyers and Consultants

DECLARATIONS

1. The respondent contravened s.340 of the Fair Work Act 2009 (Cth) (FW Act) on 10 April 2017 by dismissing the applicant from her employment because the applicant exercised a workplace right by making a complaint in relation to her employment.

2. The applicant is entitled to an order under s.545(2)(b) of the FW Act that the respondent pay the applicant compensation in the amount of $8,263.

3. The applicant is entitled to an order under s.545(1) of the FW Act that the respondent pay $729 to the superannuation fund to which respondent had made superannuation contributions for the benefit of the applicant during the period the applicant was employed by the respondent.

4. The applicant is entitled under s.547 of the FW Act that interest be included in the sums referred to in declarations 2 and 3 at the rate of 7.5% per annum from 10 June 2017 to 17 December 2018.

ORDERS

1. Within 28 days the respondent pay to the applicant $9,205.32.

2. Within 28 days the respondent contribute $812.11 to the superannuation fund to which the respondent had made superannuation contributions for the benefit of the applicant during the period the respondent employed the applicant.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Sydney

SYG 2297 of 2017

Escarle Mariene PACHECO-HERNANDEZ

Applicant

And

Duty Free Stores Gold Coast Pty Ltd

Respondent

REASONS FOR JUDGMENT

Introduction

1. In this proceeding the applicant, Ms Pacheco-Hernandez, claims the respondent terminated her employment in contravention of s.340 of the Fair Work Act 2009 (Cth) (Act). In particular, Ms Pacheco-Hernandez claims her dismissal was planned by Ms Melany Pritchard, an area manager employed by the respondent, and executed by Ms Tiffany Colliver, who was employed in the respondent’s human resources department, because Ms Pacheco-Hernandez had provided a statement in connection with a workers compensation claim that another employee had made, and because Ms Pacheco-Hernandez had made complaints in relation to her employment. Ms Pacheco-Hernandez claims compensation and also an order for the payment of a pecuniary penalty.

2. It is not in dispute that Ms Pacheco-Hernandez commenced her employment with the respondent on 7 November 2016, and that on 10 April 2017 the respondent notified Ms Pacheco-Hernandez that her employment would be terminated. Nor is it in dispute that Ms Pacheco-Hernandez provided a statement in connection with another employee’s workers compensation claim, and that Ms Pacheco-Hernandez did make a number of complaints. As will become apparent later in these reasons, the principal issue is whether the respondent has proved that it did not terminate the employment of Ms Pacheco-Hernandez because Ms Pacheco-Hernandez provided a statement in connection with another employee’s workers compensation claim, or because Ms Pacheco-Hernandez made a complaint in relation to her employment.

Arrangement of Reasons

1. I will first set out in narrative form the facts as revealed by the evidence that is not disputed, events in relation to which there is conflicting evidence, and my resolution of the conflicting evidence. Unless the context suggests otherwise, the facts I state in that section of my reasons are to be taken to reflect my findings of fact. After I set out the text of s.340 of the FW Act and some of the principles that are relevant to the issues in this case, I will then consider whether the respondent has contravened s.340 of the FW Act.

Evidence and Findings

1. The respondent, which trades under the name of “Lagardère Travel Retail” (Lagardère), operates a number of duty free stores around Australia.

2. By letter dated 4 November 2016 Lagardère offered Ms Pacheco-Hernandez employment as a “Full Time Supervisor” on the terms contained in the letter.[1] Ms Pacheco-Hernandez accepted the offer and she commenced employment with Lagardère on 7 November 2016 at the Amuse Beauty Salon (Store) that was located at terminal 2 at Sydney domestic airport.[2]

   [1] Affidavit of E M Pacheco-Hernandez 25.01.2018, annexure “A”

   [2] Affidavit of E M Pacheco-Hernandez 25.01.2018, allegation 2

3. On her first day of work Ms Pacheco-Hernandez attended an induction that was presented by Ms Pritchard. Ms Pritchard told Ms Pacheco-Hernandez she was expected to support the store operations, manage the team, support the stores sales, operate the point of sales, undertake store bank reconciliations, maintain discipline, and ensure that store processes and procedures are applied.[3]

   [3] Affidavit of E M Pacheco-Hernandez 25.01.2018, allegation 3

4. According to Ms Pacheco-Hernandez, Ms Pritchard was a line manager who was in charge of managing four stores across the terminals at Sydney Airport. Whether or not “line manager” accurately describes the position Ms Pritchard held, I find she held the position of “Location Manager”. Ms Dalilah Lorch (who at the time was known as Ms Dalilah M’Tair) was the manager of the Store at the time Ms Pacheco-Hernandez commenced her employment with Lagardère.[4] According to Ms Pacheco-Hernandez, on about 20 January 2017 Ms Lorch’s position of store manager was given to Ms Alice Toncian.[5] It appears from the email correspondence to which I refer below, and from the evidence that Ms Toncian gave,[6] and I find, that Ms Toncian commenced working as manager of the Store at around 27 February 2017.

   [4] Affidavit of E M Pacheco-Hernandez 25.01.2018, allegation 3

   [5] Affidavit of E M Pacheco-Hernandez 25.01.2018, allegation 9

   [6] T128.25

5. On 20 December 2016 Ms Pacheco-Hernandez sent an email to Ms Pritchard in which she reported on work that had been and had not been completed at the Store.[7] Ms Pacheco-Hernandez also referred to an incident “yesterday” with “Renee”, noting she would “use the opportunity today to discuss about this with Tee and Dalila” (sic). Ms Pacheco-Hernandez then said the following:

   a)She felt very much overwhelmed with the business issues and the constant battle Ms Pacheco-Hernandez had to deal with on every shift.

   b)She was not seeing any improvement “from management point of view on addressing these issues as they occur”.

   c)She felt the sales staff were “all over the place in regards [to] their duties and responsibilities”, and that Ms Pacheco-Hernandez was doing tasks that were not part of her job description.

   d)In her ten years retail experience Ms Pacheco-Hernandez had “never experienced so much disrespect form [sic] staffs [sic] and the lack of carrying [sic] from the place where they working [sic]”.

   e)She knew Ms Pritchard would be working on these issues; but Ms Pacheco-Hernandez was feeling “really overwhelmed”, and she was asking the question “if this is the right business for me to [be] in”. She was “really disappointed that the staffs has been coming behind my back to made unfair complaints about me because I had called their attention every single time I seeing them behaving in the wrong on the work place” (errors in original).

   [7] Affidavit of E M Pacheco Hernandez 25.01.2018, allegation 5, annexure “B”

6. Ms Pacheco-Hernandez also said she would appreciate “no calls please or emails or messages on my days off”, noting that she guessed this to be “the business rule”, and that Ms Pritchard could understand that “after been [sic] rostered for 7 days the last thing I wish to hear is about [my] work on my time off”.

7. On 27 February 2017 Ms Pritchard and Ms Pacheco-Hernandez had a conversation to the following effect:[8]

   Ms Pritchard:

   Escarle a woman from an insurance company will come to see you today.

   [8] Affidavit of E M Pacheco-Hernandez 25.01.2018, allegation 11

   Ms Pacheco-Hernandez:

   What person, and what is the reason?

   Ms Pritchard:

   She is an insurance woman. You will find [out] once she gets here. Make sure you answer everything she asks you.

8. Approximately 15 minutes later Ms Pacheco-Hernandez met with Ms Jennifer Foster. In an email she sent to Ms Pacheco-Hernandez, Ms Foster described herself as an “Investigator” in the “Insurance, Assurance & Work Health Safety Services”.[9] Ms Foster had been engaged to conduct an investigation in relation to a claim for workers compensation that had been made by Ms Lorch.[10] Ms Pacheco-Hernandez was interviewed by Ms Foster at a restaurant across from the Store.

   [9] Affidavit of E M Pacheco-Hernandez 25.01.2018, allegation 11, annexure “G”

   [10] Affidavit of E M Pacheco-Hernandez 25.01.2018, allegation 11

9. According to Ms Tiffany Colliver, on 5 March 2017 she received a telephone call from Ms Toncian. Ms Colliver was employed by Lagardère as a “HR Business Partner”. Ms Toncian informed Ms Colliver about an incident with Ms Pacheco-Hernandez that took place in the Store on 3 March 2017. Ms Toncian said she had sent a group text message to a number of employees including Ms Pacheco-Hernandez; Ms Pacheco-Hernandez replied by stating she did not want to be contacted on her personal mobile when she is not at work; when Ms Pacheco-Hernandez returned to work Ms Toncian attempted to discuss Ms Pacheco-Hernandez’s response, but Ms Pacheco-Hernandez became agitated and aggressive towards Ms Toncian; and Ms Pacheco-Hernandez’s “inappropriate behaviour continued onto the shop floor, in front of vendors, customers and other staff members”.[11]

   [11] Affidavit of T L Colliver, 30.11.2017, [5]

10. On 5 March 2017 Ms Pacheco-Hernandez sent an email to Mr Robert Beggs who was then employed by Lagardère as “WHS & Injury Management Advisor – Pacific”.[12] In that email Ms Pacheco-Hernandez said she was “writing to formalise a complaint in regards to an incident” with Ms Toncian on “Friday the 3^rd of February of 2017 [sic]”. Ms Pacheco-Hernandez said that on 3 February 2017 she received a mobile “sms” from Ms Toncian about an email she had sent to “our work email address”; Ms Pacheco-Hernandez responded by stating that the next time Ms Toncian should use the store communication book because “we all read our communication book and emails at the starts [sic] of every shift”; at the “Monday meeting” Ms Pacheco-Hernandez mentioned that it was not part of “our store work culture to use personal mobiles and email [sic] to communicate work stuffs [sic] with employees while they off [sic] work  or before their shifts”; on Friday when Ms Pacheco-Hernandez arrived to start her shift, Ms Toncian approached her and a discussion occurred about Ms Pacheco-Hernandez’s response; in the course of the discussion that followed Ms Toncian raised her voice and started talking over Ms Pacheco-Hernandez in a “very rude way”; when Ms Pacheco-Hernandez moved away from her, Ms Toncian told Ms Pacheco-Hernandez to pack her stuff and leave the Store and, when Ms Pacheco-Hernandez refused to do so, Ms Toncian kept  “harassing all around the store pushing to obey her wishes” (errors in original); and after Ms Pacheco-Hernandez made it plain she would not be leaving the Store Ms Toncian said she was going to complain “about this”. Ms Pacheco-Hernandez said she had demonstrated her skills and experience “in such short time”, and she believed she deserves respect as a person and value as an employee because she was demonstrating her commitment and passion for the job. Ms Pacheco-Hernandez then set out a number of criticisms about the performance of Ms Toncian as store manager.

    [12] Affidavit of T L Colliver, 30.11.2017, [6], exhibit A

11. On 6 March 2017 Ms Colliver sent an email to Ms Pacheco-Hernandez stating that Mr Beggs had forwarded to her the email Ms Pacheco-Hernandez sent to Mr Beggs on 5 March 2017. Ms Colliver introduced herself as “the HR Business Partner”, said that she was “the best person to discuss with you the matter below”, and asked whether Ms Pacheco-Hernandez would be available to see Ms Colliver the following day.[13] Two hours after Ms Colliver sent this email to Ms Pacheco-Hernandez, Ms Colliver received an email from Ms Toncian in which she gave “a summary of my interaction with” Ms Pacheco-Hernandez “with her in the 4 days since I moved to Amuse T2”.[14] After setting out in great detail her interactions with Ms Pacheco-Hernandez, Mr Toncian stated the following (emphasis in original):

    Please see my feedback based on the above, my interaction with her and other supervisors, her behavior [sic] and attitude towards work which makes me reconsider her suitability for this role within our business due to the following:

    1. She is unable to perform daily tasks in a timely manner. She has only been asked to perform normal daily tasks as per job description or to adhere to reasonable requests such as checking and closing tills at a set time in a set period of time as per standard but deems [sic] to be unable to and is not happy with further training but prefers to be paid overtime for taking longer

    2. She has a negative attitude towards work as she deems any tasks causes her stress, she is mainly focused on talking about herself, stating ‘she is a great leader and has great skills’, that she ‘change this place and corrected people’s attitude since starting working with us’

    3. She has an unprofessional behavior [sic] – referred to team as a team with ‘bad behaviour and poor attitude’ in front of staff members and had an extremely disrespectful and aggressive behavior [sic] towards myself and created a scene on the shop floor that one of our business partners had to witness as well

    4. She lacks flexibility and a team player spirit and refuses to take any direction as she regard direction as being ‘dictated’ which leads me to believe she is not suited for team building and support which is in her job description and is very focused on reiterating what she is doing for the store rather than working with the team and discussing visible and measurable results

    5. She seemed more focused on personal gains such as praise for the positive changes she deems to have implemented with the team when I am not in a position to offer them as I have only been in the store for 3 days, change in rosters to accommodate her desires with disregard to the business needs and demands to be paid overtime to be thorough and accurate.

    6. She is unreasonable as when I offered further training rather than just paying overtime she responded saying we should just pay the overtime because she doesn’t like to be rushed

    7. She lacks transparency as she agreed with the till check times when we had this conversation as a group but then went and complained to other staff members and completely ignored my instruction to process the checks [sic] at the agreed time.

    [13] Affidavit of T L Colliver, 30.11.2017, [7], exhibit B

    [14] Affidavit of T L Colliver, 30.11.2017, [7], exhibit C

12. According to Ms Colliver on 7 March 2017 the following occurred: [15]

    a)Ms Colliver met with Ms Pacheco-Hernandez  during which Ms Pacheco-Hernandez confirmed she did not wish to receive communications outside of work, said she found Ms Toncian’s management style harsh, and she was not happy with the rotating roster.

    b)With Ms Pacheco-Hernandez’s agreement, she and Ms Colliver then met with Ms Toncian. Ms Pacheco-Hernandez again confirmed she did not want to be contacted out of work via text message. Ms Toncian agreed but she reminded Ms Pacheco-Hernandez that Ms Toncian was her manager, and she needed to follow her direction in the workplace. Ms Pacheco-Hernandez said Ms Toncian had an aggressive tone of voice. Ms Toncian responded that there is always a transitional period when an employee works with a new manager, and that “you need to work together to establish a relationship”. Ms Toncian further said that it was part of her role as manager to give direction, and she hoped they could work together.

    [15] Affidavit of T L Colliver, 30.11.2017, [8]

13. At 12:21 pm on 15 March 2017 Ms Toncian sent an email to Ms Janice Wong, a loss prevention officer, reporting what she claimed was a $60 variance and that this was due to a mistake by Ms Pacheco-Hernandez.[16] Ms Wong on-forwarded Ms Toncian’s email to Ms Colliver, stating as follows:[17]

    [16] Affidavit of T L Colliver, 30.11.2017, [9], exhibit D

    [17] Affidavit of T L Colliver, 30.11.2017, [9], exhibit D

    Counselling forms prior for Escarle/TM.

    Cash has been left in register as per Alice’s response below, please advise next step.

14. At 12:51 pm on the same day Ms Toncian sent another email to Ms Wong stating there was in fact no actual variance. Ms Wong sent an email to Ms Toncian and Ms Colliver (copied to Ms Pritchard) as follows:[18]

    [18] Affidavit of T L Colliver, 30.11.2017, [9], exhibit D

    As discussed understand there is no variance, the concern was $60.00 being left in cash drawer with no checking of cash drawer, counter cache, under cash drawer, etc.

    Tiffany – please advise as prior counselling forms in file.

15. Ms Colliver acknowledged receipt of these emails by stating: “Thanks Janice, I am monitoring Escarli [sic]”.[19]

    [19] Affidavit of T L Colliver, 30.11.2017, [9], exhibit D

16. In the meantime, on 14 March 2017 Ms Colliver sent an email to Ms Toncian that referred to a “chat” about another employee. Ms Colliver then asked “How’s things with Escarli? [sic]”[20] Ms Toncian responded by email sent on 15 March 2017.[21] She said that “[t]hings with Escarle have been going ok regarding her behaviour”. Ms Toncian, however, said she would like to mention a matter she “had to look into for last Friday just as an FYI”. It related to the time Ms Pacheco-Hernandez had left the store. After explaining the matter Ms Toncian completed her email with the following:

    However, as this is not a major incident and it is the first time it [has] happened since I am in the store, I have not addressed the above with Escarle. I will amend Kronos to 13:51 and continue to monitor her clock out so I am not requesting any further action, just as an FYI for her file.

    [20] Affidavit of T L Colliver, 30.11.2017, [10], exhibit E

    [21] Affidavit of T L Colliver, 30.11.2017, [10], exhibit E

1. On 22 March 2017 Ms Pacheco-Hernandez sent an email to Ms Toncian (copied to Ms Pritchard) in which she referred to the April roster stating that she would “appreciate your consideration because this kind of time table able [sic] doesn’t work for me because I makes [sic] physically exhausted”. Ms Pacheco-Hernandez further said that the roster will put her in danger because if “I abuse . . . my energy levels considering that treating an underactive Thyroid issue [sic]”.[22] Ms Toncian responded by email sent on 27 March 2017 in which she said that despite the “rotation pattern being presented to you prior [to your] employment, Mel [who I find is intended to be a reference to Ms Pritchard] and myself will revisit rosters for next month and consider changes where possible as we want to ensure we care for our teams as best as possible”.[23]

   [22] Affidavit of T L Colliver, 30.11.2017, [10], exhibit F

   [23] Affidavit of T L Colliver, 30.11.2017, exhibit F

2. On 27 March 2017 Ms Toncian sent an email to Ms Colliver (copied to Ms Pritchard) stating “[t]here are some more issues regarding Escarle that will need to go on her file, please see below”.[24] One issue was Ms Pacheco-Hernandez having “handled the POS incorrectly again” on 23 March 2017. The other issue was a comment Ms Pacheco-Hernandez made that a mistake concerning $17.60 would not have been made if “someone” had not changed the rules, the “someone” being taken by the persons to whom the comment was made to be a reference to Ms Toncian.

   [24] Affidavit of T L Colliver, 30.11.2017, [11], exhibit G

3. In paragraph 12 of her first affidavit Ms Colliver says that on 4 April 2017 the following occurred (emphasis added):[25]

   On 4 April 2017 Melanie Pritchard and I discussed by phone Escarles [sic] employment and our concerns with her behaviour in the workplace, specifically the fit within the team, respect for Management, following instructions and point of sale errors. I advised Melanie that we should proceed with termination within the probation period. We originally planned to have the meeting on Friday 7 April however due to changes in Escarles roster this meeting was delayed until 10 April 2017.

   [25] Affidavit of T L Colliver, 30.11.2017, [12]

4. It will be useful at this point to say something about the expression “probation period” Ms Colliver uses in this passage of her affidavit. Clause 15.2 of the letter of offer dated 4 November 2016 to which I refer at the beginning of this section of my reasons refers to the “applicable period of notice . . . during the probation period”. The letter does not otherwise explain what the “probationary period” is. In her affidavit made on 25 January 2018 Ms Pacheco-Hernandez said her contract of employment “did not outline a probationary period”.[26] In her second affidavit Ms Colliver responded to this part of Ms Pacheco-Hernandez’s affidavit by stating that “the probation review policy is available on our intranet page”.[27] Ms Colliver annexed that policy to her affidavit (Lagardère Probation Review Policy), which was as follows:[28]

   Probation Reviews

   Purpose

   The purpose of this policy is to outline the process involved in probation reviews at Lagardère Travel Retail and to affirm to ensuring the right fit is achieved.

   During the probation period employees will have the opportunity to decide whether they are satisfied with the position and the Company will also decide if the employee is capable of performing the duties of the position to required standards.

   Scope of Policy

   The procedure applies to all permanent Lagardère Travel Retail.

   Definitions

   [26] Affidavit of E M Pacheco-Hernandez 25.01.2018, allegation 2

   [27] Affidavit of T L Colliver affidavit, 21.02.2018, [4]

   [28] Affidavit of T L Colliver affidavit, 21.02.2018, [4], exhibit A

Term	Definition
LS (“the Company”)	·    Lagardère Retail
Probation Period	·    6 months period (Australia + NZ)
Trial Period	·    90 days period (NZ)

Probation Reviews Policy

LS perform reviews during the probation period. These are to occur at the following intervals:

1.At the 3 month period – Trial period (NZ)

2.At the 6 month period – Probation period (NZ and AU)

Confirmation of probation letters will be sent to the employee confirming their completion upon request.

Probation review forms are available on Axis on the Company intranet and need to be printed out by the Manager. All forms are to be completed and returned to the office after the probation reviews have been conducted. There are 4 separate forms, one for Team Member, Team leader, Store Manager/Regional/Operations Manager and one for Support Office staff.

Managers are also to ensure that a continuous feedback system is also implemented after the completion of the probation period.

1. I find that the “probation period” to which Ms Colliver refers in paragraph 12 of her first affidavit was intended by her to be the probation period provided for in the Lagardère Probation Review Policy.

2. Although Ms Colliver was not cross-examined in relation to paragraph 12 of her first affidavit, there are grounds for doubting Ms Colliver’s evidence. The source of the doubt are the matters stated in a letter dated 29 August 2017 that was attached to Lagardère’s response. Lagardère there states as follows:

   8. On 15 March 2017 banking errors made by Ms Pacheco-Hernandez were discovered by Ms Wong-Loss Prevention Manager. Ms Tonican [sic], Store Manager & Ms Colliver, HR Business Partner were advised of the concerns regarding lack of process being followed.

   9. On 27 March 2017 Ms Tonican [sic] - Store Manager sent an email to Ms Colliver – HR Business Partner listing further concerns with Ms Pacheco-Hernandez performance, including point of sale errors, banking errors, not following correct procedure for variances and unprofessional behaviour to colleagues and management. Discussions were had between Ms Tonican [sic], Store Manager and Human Resources in respect to Ms Pacheco-Hernandez’s ongoing employment and a decision was made to terminate within the probation period.

   10.    A meeting was held with Ms Pacheco-Hernandez on 10 April 2017 to inform her that her employment would be terminated within the probation period. Due to the now acrimonious relationship between Ms Pacheco-Hernandez and her Store manager, Ms Tonican [sic], Ms Pritchard – Location manager was invited to attend with Ms Colliver – HR Business Partner to inform Ms Pacheco-Hernandez of the decision.

3. This account differs from the account Ms Colliver gives in paragraph 12 of her first affidavit. First, it does not refer to any telephone conversation between Ms Colliver and Ms Pritchard on 4 April 2017. Second, the person who had the discussion about the termination of Ms Pacheco-Hernandez’s employment was Ms Toncian, not Ms Pritchard, and “Human Resources”. Third, it is said that Ms Pritchard attended the meeting with Ms Colliver and Ms Pacheco-Hernandez due to the acrimonious relationship between Ms Pacheco-Hernandez and Ms Toncian. For the sake of completeness, I should also note that paragraph 8 of Lagardère’s letter is incorrect in two respects. First, it incorrectly asserts that Ms Wong discovered Ms Pacheco-Hernandez made a banking error. The emails I have set out above show it was Ms Toncian who initially reported to Ms Wong what she believed to have been a variance. Second, it omits that what was believed to have been a variance was not in fact a variance.

4. Notwithstanding the inconsistencies I am satisfied that it is with Ms Pritchard that Ms Colliver discussed the termination of Ms Pacheco-Hernandez’s employment. Ms Pritchard was the area manager, and she stood in a more senior management position than Ms Toncian. That renders it more likely that Ms Pritchard, rather than Ms Toncian, was the person who discussed with Ms Colliver Ms Pacheco-Hernandez’s employment. I therefore find that on 4 April 2017 Ms Pritchard had a telephone conversation with Ms Colliver during which they discussed the employment of Ms Pacheco-Hernandez, the outcome of which was that Ms Colliver and Ms Pritchard would meet with Ms Pacheco-Hernandez and inform her both by word of mouth and by letter that her employment with Lagardère would be terminated.

5. According to the evidence of Ms Pacheco-Hernandez, which I accept, at around 10.45 am on 10 April 2017 Ms Pritchard walked into the Store and whispered to Ms Pacheco-Hernandez words to the effect of “can you come with me”. Ms Pacheco-Hernandez followed Ms Pritchard away from the Store to a near coffee shop where Ms Colliver was waiting.[29] A meeting then took place between Ms Pacheco-Hernandez, Ms Pritchard, and Ms Colliver. Ms Colliver has given the following evidence of what occurred at the meeting:[30]

   On 10 April 2017 Melany Pritchard and I met with Escarle at the Sydney Domestic Airport to inform her that she will not be passing her probation period as she was not the right fit for our business. The intention was for Escarle to work out her notice period however Escarle reacted quite aggressively towards Melany Pritchard and we decided it would be best for the business to pay Escarle a week in lieu of notice instead. I emailed Escarle an updated termination letter to confirm her last date of employment would be Monday 10 April 2017 and the Company would pay her one week in lieu of notice.

   [29] Affidavit of E M Pacheco-Hernandez 25.01.2018, allegation 15

   [30] Affidavit of T L Colliver, 30.11.2017, [14]

6. Ms Pacheco-Hernandez’s evidence is as follows (errors and underlining in original):[31]

   [A]s soon we sat down, Melanie Pritchard proceeded to advise me of mine termination in front of Tiffany. Confident that my work performance has been satisfactory, I knew there were not valid reasons for the company to terminate my employment. . . . In 11 years of work experience working within the retail industry and in administrative roles, I have to say, I have worked with systems that are more complex and I had delegated more complex task, than ones I delegated at Amuse studio. In addition I am qualified in marketing, and hold a diploma in makeup, with extensive experience in the beauty industry spanning 20 years. In view of this i proceeded to challenge Tiffany Colliver and Melany Pritchard over their decision.

   They exchanged looks Tiffany Colliver verbally told me that there was none. that was a decision made by them and that is that… I asked for a second time the same question to both of them, they kept exchanging eye looks. Then, Tiffany Colliver verbally said to me, we are not legally obligated to give an explanation if we do not wish to do so, but there is nothing negative to say about you or your performance if that is what your asking. . . .

   I read the termination letter and there are not reasons, or performance feedback outline; I grabbed the termination letter and walked to the store, when I got there i packed my bag and I went home. Melany followed through my way back to the store. I told her I was going home immediately because, I was not feeling well, and I left.

   [31] Affidavit of E M Pacheco Hernandez 25.01.2018, allegation 15

7. The accounts of Ms Colliver and Ms Pacheco-Hernandez imply or state that Ms Pacheco-Hernandez received a letter. I find that a letter dated 10 April 2017 from Ms Colliver on behalf of Lagardère to Ms Pacheco-Hernandez was handed to Ms Pacheco-Hernandez which stated as follows:[32]

   [32] Affidavit of E M Pacheco Hernandez 25.01.2018, allegation 15, annexure “L”

   I am writing to confirm the discussions you had with Melany Pritchard – Location manager on 10 April 2017. In this meeting it was discussed that your employment will be terminated within the probationary period effective Friday 14^th of April 2017.

   We will deposit your final payment into your bank account in the following payroll . . . .

   It is indeed unfortunate that this situation has occurred. We wish you all the best for the future.

8. Although Lagardère filed two affidavits made by Ms Pritchard, Lagardère did not read Ms Pritchard’s affidavits because I was told by Mr Marshall, who appeared for Lagardère, that Ms Pritchard was overseas. Ms Colliver, on the other hand, made two affidavits that were read, one of which was made after Ms Pacheco-Hernandez filed the affidavit containing her account of her meeting with Ms Pritchard and Ms Colliver on 10 April 2017. Ms Colliver does not, however, refer to Ms Pacheco-Hernandez’s account of the meeting of 10 April 2017. Ms Pacheco-Hernandez, who is not legally represented, did cross-examine Ms Colliver, but she did not ask her any questions about the meeting of 10 April 2017. Ms Pacheco-Hernandez, when she was cross-examined, was taken to the relevant part of her affidavit containing her account of the meeting, but it was not put to Ms Pacheco-Hernandez that her account was incorrect.

9. I do not accept that either Ms Pritchard or Ms Colliver said words to the effect that Ms Pacheco-Hernandez “will not be passing her probation period as she was not the right fit for our business”. First, the letter dated 10 April 2017 that was given to Ms Pacheco-Hernandez refers to the “probationary period”, but does not say anything about Ms Pacheco-Hernandez “not passing her probation period” or about Ms Pacheco-Hernandez not being “the right fit for our business”. It is unlikely that Ms Pritchard and Ms Colliver, having decided not to state in the letter any reason why Ms Pacheco-Hernandez’s employment was being terminated, that they would do so orally. The more plausible scenario is that Ms Pritchard and Ms Colliver agreed that they would give no reasons to Ms Pacheco-Hernandez for her termination, but that they would simply refer to her being dismissed during her probationary period; and that they agreed that a letter should be drafted, and their meeting with Ms Pacheco-Hernandez should proceed, on that basis.

10. Second, the words “will not be passing her probation period” implies that an assessment of Ms Pacheco-Hernandez’s performance had been undertaken, and that she did not pass that assessment. Lagardère did have a process for assessing employees at the completion of a probationary period, being the process described in the Lagardère Probation Reviews Policy. There is evidence before me to suggest, and I find, that no such process was undertaken in relation to Ms Pacheco-Hernandez. In fact, the Lagardère Probation Reviews Policy contemplated that such process would not be undertaken until six months after an employee commenced his or her employment; and Ms Pacheco-Hernandez had not been employed for six months as at 10 April 2017. Further, given Ms Colliver was in the human resources section of Lagardère, and she discussed with Ms Pritchard the termination of Ms Pacheco-Hernandez’s employment, I find that both Ms Colliver and Ms Pritchard were aware that no probation review assessment had been undertaken in relation to Ms Pacheco-Hernandez. In these circumstances, it is unlikely that either of Ms Colliver or Ms Pritchard said to Ms Pacheco-Hernandez she had not passed her probationary period.

11. I therefore accept Ms Pacheco-Hernandez’s evidence of what occurred at the meeting of 10 April 2017 to the extent she says that she asked why her employment was being terminated, but she was not given any reason why her employment was being terminated. Given this finding, I am also of the opinion that it is likely, and I therefore also find, that in response to Ms Pacheco-Hernandez’s request that she be given an explanation why her employment was being terminated Ms Colliver said words to the effect that she was not legally obliged to give an explanation. I am otherwise not prepared to accept Ms Pacheco-Hernandez evidence of what was said at the meeting. It is unlikely that, given the matters that Ms Toncian had communicated to Ms Colliver about Ms Pacheco-Hernandez either Ms Colliver or Ms Pritchard said words to the effect of “there is nothing negative to say about you or your performance if that is what you are asking”.

12. I find, therefore, that in the meeting of 10 April 2017 Ms Pacheco-Hernandez was handed the letter dated 10 April 2017, Ms Pacheco-Hernandez requested that she be told why her employment was being terminated, and that neither Ms Colliver nor Ms Pritchard complied with that request other than Ms Colliver saying that “we”, by which I find Ms Colliver intended to mean Lagardère, “are not legally obligated to give an explanation if we do not wish to do so”.

13. After the meeting of 10 April 2017 Lagardère sent to Ms Pacheco-Hernandez an amended version of the letter dated 10 April 2017.[33]

    [33] Affidavit of E M Pacheco Hernandez 25.01.2018, allegation 15, annexure “L”

Principles

1. Subsection 340(1) of the FW Act provides:

   A person must not take adverse action against another person:

   (a)    because the other person:

   (i) has a workplace right; or

   (ii)    has, or has not, exercised a workplace right; or

   (iii)   proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

   (b)    to prevent the exercise of a workplace right by the other person.

2. Three matters must be established before a person will be held to have contravened s.340 of the FW Act. First, the person has taken “adverse action against another person”. That expression is defined in a table contained in s.342(1) of the FW Act which identifies in one column the persons by whom and against whom adverse action must be taken, and, in another column, the conduct that, if taken by and against such persons, constitutes adverse action. For the purposes of these proceedings, the relevant person who must take the adverse action is “an employer”, and the person against whom the employer takes the adverse action must be “an employee”; and the employer takes “adverse action” if the employer:

   (a)    dismisses the employee; or

   (b)    injures the employee in his or her employment; or

   (c)     alters the position of the employee to the employee’s prejudice; or

   (d)    discriminates between the employee and other employees of the employer.

3. The expression “dismisses the employee” includes the repudiation by the employer of the employment contract, whether or not the employee accepts the repudiation.[34]

   [34] Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 at [29]

4. The second matter that must be established is that the employee against whom the employer has taken adverse action has, among other things, exercised a “workplace right”. Under s.341(1)(c)(ii) of the FW Act a person has a “workplace right” if, among other things, the person, being an employee, “is able to make a complaint or inquiry . . . in relation to his or her employment”. The ordinary meaning of the word “complaint” is a statement expressing a grievance or a finding of fault; and an expression of grievance or accusation need not be factually correct, substantiated or ultimately made out in order to constitute a complaint within the meaning of s.341(1)(c)(ii) of the FW Act.[35] Under s.341(1)(b) of the FW Act a person also has a “workplace right” if the person “is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument”. The expression “workplace law” is defined in s.12 of the FW Act to mean, among other things, “any . . . law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters)”.

   [35] Shea v TRUenergy Services Pty Ltd (No.6) [2014] FCA 271 at [600]

5. The third matter that must be established is that the employer took the adverse action for a particular reason, or for reasons that included a particular reason.[36] That requirement arises from the presence of the word “because”:[37] Section 340(1) of the FW Act prohibits a person from taking adverse action “because” a person has a “workplace right”, or because the person has exercised, or has not exercised, or proposes to exercise, or proposes not to exercise, such a right. Further, where the particular reason is one of a number of reasons for which the adverse action is taken, the particular reason must be “a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons”,[38] or must be an “operative or immediate reason for the action”.[39]

   [36] FW Act, s.360

   [37] Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 at [20] relying on Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284; (2010) 193 IR 251 at 258 ([26]) (Tracey J)

   [38] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044 at 1066 ([127]) (Gummow and Hayne JJ)

   [39] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044 at 1068 ([140]) (Heydon J)

1. An important aspect of determining whether in any given case a person has taken adverse action “because” of one or more of the matters specified in s.340(1) of the FW Act is s.361(1) of that Act. That subsection 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.

2. 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”.

3. Not every reason for which a person acts qualifies as a particular reason. The quality 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”.[40] Another formulation is the reason must be an “operative or immediate reason for action”.[41] There is no difference in substance between these formulations.

   [40] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [127] (Gummow and Hayne JJ)

   [41] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [140] (Heydon J)

4. 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:[42]

   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.

   [42] (1976) 12 ALR 605 at 612. The case arose under s.5(1) of the Conciliation and Arbitration Act 1904 (Cth).

5. In Barclay v Board of Bendigo Regional Institute of Technical and Further Education, Tracey J said:[43]

   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”.

   [43] [2010] FCA 284, [35]

6. And in the High Court, French CJ and Crennan J said:[44]

   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.

   [44] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, [45] (footnotes omitted)

7. 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:[45]

   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.

   [45] [2012] HCA 32, [141]

8. The same point was made by French CJ and Crennan J:[46]

   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.

   [46] 2012] HCA 32, [45

Did Lagardère contravene s.340 of the FW Act?

1. I now consider whether Lagardère contravened s.340 of the FW Act.

   Did Lagardère take adverse action against Ms Pacheco-Hernandez?

2. There is no issue that Lagardère dismissed Ms Pacheco-Hernandez from her employment and, for that reason, Lagardère took adverse action against Ms Pacheco-Hernandez.

   Did Ms Pacheco-Hernandez exercise a workplace right?

3. In the form 2 she filed, Ms Pacheco-Hernandez claims that she was dismissed because “of the statement I provide for Dalila’s M’tair [sic] workers compensation, and because my complaints in regards the store issues and the bully events”.[47] As I have already noted, on 27 February 2017 Ms Pacheco-Hernandez was interviewed by Ms Foster in connection with a worker’s compensation claim made by Ms Lohr. I find that Ms Foster interviewed Ms Pacheco-Hernandez in connection with a claim for workers compensation which in New South Wales is governed by the Workplace Injury Management and Workers Compensation Act 1998 (NSW). That is a law of a State that “regulates the relationships between employers and employees (including by dealing with occupational health and safety matters)” and, therefore, is a “workplace law” as defined in s.12 of the FW Act. I find that Ms Pacheco-Hernandez was able to participate in that process, for that reason she had a workplace right within the meaning of s.341(b) of the FW Act, and by participating in that process Ms Pacheco-Hernandez exercised the workplace right provided for by s.341(1)(b) of the FW Act.

   [47] Applicant’s application – form 2, 8

4. I also find that:

   a)Ms Pacheco-Hernandez was able to make a complaint about her employment and, for that reason, she had a workplace right within the meaning of s.341(1)(c)(ii) of the FW Act;

   b)by sending each of the emails dated 20 December 2016, 5 March 2017, and 22 March 2017 Ms Pacheco-Hernandez made complaints in relation to her employment; and

   c)on each occasion she sent these emails, Ms Pacheco-Hernandez exercised the workplace rights provided for by s.341(1)(c)(ii) of the FW Act.

   Has Lagardère shown it terminated Pacheco-Hernandez’s employment otherwise than for the reasons claimed?

5. Given that:

   a)Lagardère terminated the employment of Ms Pacheco-Hernandez and, for that reason has taken adverse action against Ms Pacheco-Hernandez;

   b)I have found Ms Pacheco-Hernandez exercised workplace rights by making complaints in relation to her employment and providing a statement to Ms Foster; and

   c)Ms Pacheco-Hernandez alleges her employment was terminated because she exercised her workplace rights;

   s.361(1) of the FW Act applies. That is, it is presumed that Lagardère terminated the employment of Ms Pacheco-Hernandez for the reasons Ms Pacheco-Hernandez claims her employment was terminated, namely, because she exercised workplace rights, unless Lagardère “proves otherwise”. The question, therefore, is whether I am satisfied Lagardère has proved that it terminated the employment of Ms Pacheco-Hernandez for a reason or reasons that did not include as a substantial and operative factor Ms Pacheco-Hernandez having exercised her workplace rights.

6. The starting point is to identify the person or persons who made the decision to terminate the employment of Ms Pacheco-Hernandez and whose mind or minds, therefore, are to be attributed to Lagardère for the purpose of determining the reasons for which Lagardère terminated Ms Pacheco-Hernandez’s employment. The answer to that question is not immediately clear from the evidence contained in paragraph 12 of Ms Colliver’s first affidavit of her discussion with Ms Pritchard on 4 April 2017 which I have reproduced in paragraph 22 of these reasons. Ms Colliver there refers to “our concerns” with Ms Pacheco-Hernandez in relation to “her behaviour in the workplace, specifically the fit within the team, respect for Management, following instructions and point of sales errors”. Ms Colliver also deposes that she “advised that we should proceed with termination within the probation period”. That, however, does not manifest any decision by Ms Colliver to terminate the employment of Ms Pacheco-Hernandez. It is the conveying of advice to Ms Pritchard; and the advice appears to relate to the timing of the termination of the employment of Ms Pacheco-Hernandez, namely, “within the probation period”. This implies that it is Ms Pritchard who at the very least wanted Lagardère to terminate the employment of Ms Pacheco-Hernandez.

7. There is other evidence, however, that I must consider; and that is evidence that Mr Marshall, who appeared for Lagardére, adduced in chief from Ms Pritchard at the hearing before me, beginning with the following:[48]

   I also refer you to paragraph 12 of your affidavit. You talk about a discussion you had with Melanie Pritchard on 4 April and at the end – sorry, the second sentence of that paragraph you say that you advised Melanie that:

   We should proceed with termination within the probationary period.

   [48] T78.45-T79.10

   Could I just ask you you’re a member of the HR team?‑‑‑Yes.

   And you’ve indicated here that you’ve made the decision to terminate the applicant’s employment.  Why was that a decision made by the HR team and not the store management team ‑ ‑ ‑?‑‑‑Yes.

   ‑ ‑ ‑ who had been responsible for the day-to-day management of the applicant?‑‑‑Yes.

8. I interrupted Mr Marshall by asking why the evidence he was seeking to adduce in chief had not been included in Ms Colliver’s affidavits. After further discussion, I permitted Mr Marshall to ask Ms Colliver the questions he proposed to ask. Ms Colliver then gave the following evidence:[49]

   [49] T80.5

   MR MARSHALL:   So the question was in relation to paragraph 12 of your affidavit.  Why the decision was made as an HR decision rather than a store management decision?‑‑‑Yes, sure.  So being HR we have managers all across Australia and New Zealand who manage their employees.  They manage the recruitment process and need to take accountability for the people that they hire. Non passed probations need to come across our desk in HR to ensure that they’re following the correct procedure and that we’re comfortable with the reasons as to why the probation should not be passed.

   Okay.  Thank you?‑‑‑Yes.

9. I again interrupted Mr Marshall by informing him that I had difficulty understanding the question and the answer Ms Colliver gave. After further discussion, Ms Colliver gave the following evidence:

   MR MARSHALL:   Well, the – I guess, the more direct question would be, Ms Colibar [sic], was it your decision that the applicant’s employment should be terminated?‑‑‑Yes.

   And going back to my earlier question, why is this a decision that would be made by someone yourself in HR rather than store management – operational management?‑‑‑Yes.  Okay.  So I’m the person that needs to be accountable for the decision like here today and I need to be confident that the decision was made fairly and that there was reasons behind it.

   Okay.  Thank you.

   HIS HONOUR:   And could I ask a question.  Could Melanie have refused to accept your advice or decision?‑‑‑No.

   No?‑‑‑She could have argued it with me but I would advise Melanie that, ultimately, I – she needs to follow my direction in that .

   You could direct her to do it?‑‑‑Yes.

   Is that anywhere – where is that in – where would I find that to test that?‑‑‑We don’t have a policy that that would be written anywhere but, I guess, Melanie reports into another manager who is based at the head office who would – who would talk to me about any kind of employment relations concerns.

   Right?‑‑‑That’s the usual practice.

   Well, if she didn’t have to follow your advice ‑ ‑ ‑?‑‑‑Yes.

   ‑ ‑ ‑ why would you even consult her?  Why wouldn’t you just see the employee and terminate her services yourself?‑‑‑Well, I’m not the one that’s on the floor so Melanie Pritchard – Alice Tonikin  reports into Melanie Pritchard and Melanie Pritchard speaks to me.  So I’m based at the head office and I’ve come out to the store at different times.

   Well, why would you even be speaking to Melanie if it was your decision to terminate Ms Pacheco-Hernandez’s employment? ‑‑‑ Because of reporting lines.  Melanie works in the store and I work in the support office.  And Melanie was the one that had the conversation with Escarle and I was there as a HR, I guess, witness.  Party of the conversation for both Escarle and Melanie Pritchard.

   Sorry, you’re telling me that she was bound to follow what you said.  This is Ms Pritchard?‑‑‑Yes.

   And what I’m saying is if she was bound to follow you ‑ ‑ ‑?‑‑‑Mmm.

   ‑ ‑ ‑ . . . – you went and terminated Ms Pacheco-Hernandez’s employment not by yourself but with Ms Pritchard?‑‑‑Yes.

   Why did you need to go with Ms Pritchard to terminate Ms Pacheco ‑ ‑ ‑?‑‑‑I guess ‑ ‑ ‑

   ‑ ‑ ‑ Hernandez’s employment?‑‑‑I – I didn’t need to.  I could have gone by myself but I did go with her.

   All right?‑‑‑We had discussed the employment together and that’s our usual practice is that the HR representative would go with the store manager.

10. Mr Marshall submitted that Ms Colliver alone was the person who decided to terminate the employment of Ms Pacheco-Hernandez. I do not accept that submission. First, as I have already observed, the evidence contained in paragraph 12 of Ms Colliver’s first affidavit does not manifest any decision by her to terminate Ms Pacheco-Hernandez’s employment; it refers to Ms Colliver giving advice to Ms Pritchard. Second, there is ambiguity in the evidence Ms Colliver gave in chief about what it is Ms Colliver says she decided, or had authority to decide, in relation to the termination of the employment of Ms Pacheco-Hernandez. In my opinion Ms Colliver intended to say nothing more than that her approval was required before Ms Pacheco-Hernandez’s employment could be terminated; and that her approval was required because Lagardère had human resources policies, and Ms Colliver was responsible for ensuring that whatever human resources policies that applied to the termination of Ms Pacheco-Hernandez’s employment were not ignored. Ms Colliver said as much in the evidence she gave before me. She said that “[n]on passed probations need to come across our desk in HR to ensure that they’re following the correct procedure and that we’re comfortable with the reasons as to why the probation should not be passed”. This passage implies that it is another person within Lagardère who undertakes the assessment of whether an employee passed probation and Ms Colliver’s role was to ensure the procedure that was followed was correct, and that it was fair.

11. I have already found that on 4 April 2017 Ms Pritchard had a telephone conversation with Ms Colliver, the outcome of which was that Ms Colliver and Ms Pritchard would meet with Ms Pacheco-Hernandez and inform her both by word of mouth and by letter that her employment with Lagardère would be terminated. I further find that at some point before she had a conversation with Ms Colliver on 4 April 2017 Ms Pritchard resolved that Lagardère should terminate Ms Pacheco-Hernandez’s employment, and she sought Ms Colliver’s advice about whether, when, and how that could or should be done. Ms Colliver gave advice, and the outcome was an agreement between Ms Pritchard and Ms Colliver that Ms Pacheco-Hernandez’s employment would be terminated by Ms Colliver and Ms Pritchard meeting with Ms Pacheco-Hernandez and handing to her a letter informing her that her employment was terminated. It follows, therefore, that the states of mind of both Ms Colliver and Ms Pritchard are relevant to determining the reason or reasons for which Lagardère terminated Ms Pacheco-Hernandez’s employment.

12. Ms Pritchard was not called to give evidence. There is therefore no evidence from one of the two relevant decision-makers. Ms Colliver did give evidence, but she did not give direct evidence of the reason or reason for which she agreed with Ms Pritchard that Lagardère dismissed Ms Pacheco-Hernandez. She gave two items of indirect evidence. The first is paragraph 12 of Ms Colliver’s first affidavit in which she went no further than deposing to her discussing with Ms Pritchard Ms Pacheco-Hernandez’s “employment and our concerns with her behaviour in the workplace, specifically the fit within the team, respect for Management, following instructions and point of sales errors”.

13. The difficulty with this evidence is that the matters Ms Colliver deposes she and Ms Pritchard discussed on 4 April 2017, even if accepted, are described with such brevity and are at a level of such generality that they do not exclude at least the complaints Ms Pacheco-Hernandez made in her emails of 20 December 2016 and 5 March 2017 as being a substantial and operative factors in Ms Colliver’s and Ms Pritchard’s deciding to terminate the employment of Ms Pacheco-Hernandez. That is, I cannot be satisfied that Ms Pacheco-Hernandez’s behaviour in the workplace which led Ms Colliver or Ms Pritchard or both to conclude Ms Pacheco-Hernandez did not “fit within the team”, or did not exhibit “respect for management” did not include as an operative and substantial factor the complaints Ms Pacheco-Hernandez made in her emails. If anything, given the nature and extent of the complaints Ms Pacheco-Hernandez made in her emails, and the vigour with which she expressed them, it is difficult not to conclude that the complaints constituted or at least formed a substantial part of the “behaviour in the workplace” on the basis of which Ms Colliver and Ms Pritchard concluded Ms Pacheco-Hernandez did not “fit within the team” or did not have “respect for Management”.

14. The second item of evidence Ms Colliver has given is as follows (errors in original):[50]

    I say Escarle’s termination was not based on her involvement in any way with Ms Dalila M’Tair’s worker’s compensation claim. I also say Escarle’s termination of employment was not based on any complaints she made on being allegedly bullied by her-coworkers.

    [50] Affidavit of T L Colliver, 21.02.2018, [3]

15. The difficulty with this evidence is that it is an assertion made without reference to any evidence. The only evidence Ms Colliver has given in relation to the decision to terminate the employment of Ms Pacheco-Hernandez is her description of what she and Ms Pritchard discussed on 4 April 2017; but I have concluded that I cannot be satisfied that Ms Pacheco-Hernandez’s behaviour in the workplace which led Ms Colliver or Ms Pritchard or both to conclude Ms Pacheco-Hernandez did not “fit within the team”, or did not exhibit “respect for Management”, did not include as an operative and substantial factor the complaints Ms Pacheco-Hernandez made in her emails.

16. I therefore find that Lagardère has not proved otherwise that it terminated the employment of Ms Pacheco-Hernandez for the reason that, or for reasons that included as a substantial and operative factor, Ms Pacheco-Hernandez having exercised her workplace rights by making complaints in relation to her employment. I am, however, satisfied that Lagardère has proved otherwise that it terminated the employment of Ms Pacheco-Hernandez for the reason, or for reasons that included as a substantial and operative factor, that Ms Pacheco-Hernandez gave a statement in connection with the investigation of a workers compensation claim made by another employee. That is so because even on the limited evidence given by Ms Colliver, the matters she says she discussed with Ms Pritchard on 4 April 2017 could not reasonably be considered as having been intended by them to refer to the isolated event that constituted Ms Pacheco-Hernandez giving any such statement.

1. There are two matters that give me added confidence in my finding that Lagardère has not proved otherwise that it terminated the employment of Ms Pacheco-Hernandez for the reason that, or for reasons that included as a substantial and operative factor, Ms Pacheco-Hernandez having exercised her workplace rights by making complaints in relation to her employment. The first concerns Lagardère’s not having called Ms Pritchard, being one of the persons who made the decision to terminate the employment of Ms Pacheco-Hernandez. Mr Marshall, from the bar table, told me he was instructed Ms Pritchard was overseas. Those instructions were not substantiated by any evidence, and I am not prepared to accept that Ms Pritchard was overseas. The position, therefore, is there is no adequate explanation for Ms Pritchard not being available to give evidence; and the question arises whether an inadequately explained failure to call Ms Pritchard has any evidentiary significance.

2. In my opinion Lagardère’s failure to call Ms Pritchard in circumstances where no adequate explanation has been given for not calling her brings into play the principles Handley JA considered in Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd:[51]

   In my opinion the Court should not draw inferences favourable to the insured on these matters when no attempt was made to prove them by direct evidence and in particular when no relevant questions were asked of Mr Ferrarese. Rather it seems appropriate to apply the principles of Jones v Dunkel (1959) 101 CLR 298.

   There appears to be no Australian authority which extends the principles of Jones v Dunkel to a case where a party fails to ask questions of a witness in chief. However I can see no reason why those principles should not apply when a party by failing to examine a witness in chief on some topic, indicates “as the most natural inference that the party fears to do so”. This fear is then “some evidence” that such examination in chief “would have exposed facts unfavourable to the party”: see Jones v Dunkel... Moreover in Ex parte Harper; Re Rosenfield [1964-5] NSWR 58 at 62, Asprey J, citing Marks v Thompson 1 NYS 2d 215 (1937) at 218, held that inferences could not be drawn in favour of a party that called a witness who could have given direct evidence when that party refrained from asking the crucial questions.

   There is in fact extensive case law in the United States on this question although it is not referred to in Wigmore, Evidence, 3rd ed (1940). It may be found summarised in 5 ALR 2d, par 25 at 949-951. One of the leading cases is Milliman v Rochester Ry Co 3 App Div 109; 39 NYS 274 (1896), a decision of the Appellate Division of the Supreme Court of New York. The judgment of the Court was given by Follett J who said (at 276):

   “In case a litigant fails to produce a person known to be friendly to him and to his cause, who is so situated that he must have knowledge of the facts in issue, the jury is permitted to presume that the testimony of that person would not have been favourable to the party … The existence of this rule is not disputed but it is urged that it is not applicable to this case because the daughter was produced as a witness, and that no presumption arises from the plaintiff's failure to interrogate her, that her testimony would have been unfavourable to him. I think the rule is as applicable to a case in which a party fails to interrogate a friendly witness, so situated as to be presumed to have knowledge of the existence or non-existence of the vital facts in issue, as it is to the case of a failure to produce such a witness. Indeed I think the omission to interrogate a friendly witness in respect to facts presumably within his knowledge is more significant than the failure to call such a person as a witness, and that the presumption that the testimony would not have been favourable to the party's case is stronger than the one which arises from the failure to produce such a person as a witness.”

   [51] (1991) 22 NSWLR 389, at pages 418-419

3. Although the particular issue Handley JA addressed in this passage was the significance to be attached to not asking in chief a question of a person who has been called to give evidence, what his Honour said applies equally if not with more force to where a person is not called as a witness at all. That is clear from the passage of the judgment of Follett J that Handley JA quoted.

4. The inference, therefore, that is available to be drawn from Ms Pritchard’s inadequately explained absence is that her testimony would not have been favourable to Lagardère’s. Whether I should draw that inference, however, is complicated by two matters. One is that Ms Pritchard made two affidavits that Lagardère has filed. Mr Marshall, however, did not attempt to adduce the contents of the affidavits to show that Ms Pritchard had sworn to matters that supported Lagardère’s case. I cannot therefore make any assumption that the affidavits do support Lagardère’s case as presented at the hearing before me. The second difficulty is that Mr Marshall submitted Ms Pritchard’s state of mind was not relevant because it is only Ms Colliver’s state of mind that is relevant. For reasons I have already given, however, I do not accept that submission. In those circumstances, I draw the inference that Lagardère did not call Ms Pritchard because her evidence would not have been favourable to Lagardère.

5. The second of the two further matters that gives me added confidence in my finding that Lagardère has not discharged its onus arises from Ms Colliver not deposing in her affidavit, and not being specifically asked in chief before me, what her reason or reasons were for deciding to terminate Ms Pacheco-Hernandez’s employment, and in particular, whether her reasons did not include the complaints Ms Pacheco-Hernandez made in her emails. The inference that is available to be drawn is that Ms Colliver did not give evidence about those matters in her affidavit, and she was not specifically asked questions to that effect when giving evidence in chief, because her evidence would not have been favourable to Lagardère. In my opinion, that inference should be drawn and I do draw that inference.

Conclusion on s.340 of the FW Act

1. I am therefore satisfied that Ms Pacheco-Hernandez has established that Lagardère contravened s.340 of the FW Act by dismissing her from her employment because she exercised her workplace right to make a complaint in relation to her employment.

Remedies

1. Under s.545(1) of the Act, this Court may make any order it considers appropriate if it is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision. The orders the Court may make include an order under s.545(2)(b) of the FW Act “awarding compensation for loss that a person has suffered because of the contravention” of a civil remedy provision. The table contained in s.539 of the FW Act identifies in item 11 s.340 as a civil remedy provision. Accordingly, Ms Pacheco-Hernandez is entitled to an order for compensation under s.545(1) of the FW Act for all loss she has suffered because of Lagardère’s contravention of s.340 of the FW Act.

Principles

1. The approach that should be taken in assessing compensation has been stated in a number of cases. In Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd Barker J said:[52]

   In accordance with usual principle, an order awarding compensation must be assessed on the basis that an applicant establishes loss that a person has suffered because of the contravention and that this requires an appropriate causal connection between the contravention and the loss claimed.

   [52] [2011] FCA 333; (2011) 193 FCR 526 at [423]

2. In Aitken v Construction, Mining, Energy, Timberyards, Sawmills & Woodworkers Union of Australia, speaking of s.179EE of the Industrial Relations Act 1988 (Cth) (which is equivalent to s.545 of the FW Act), Lee J said:[53]

   In assessing the compensation that is appropriate the Court will have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened . . . The Court will consider the detriment occasioned to the employee by the employer's contravention of the Act, and the extent to which it is reasonable to compensate the employee for such consequences.

   [53] (1995) 63 IR 1 at page 9

3. One head of loss for which compensation may be ordered under s.545(2)(b) of the FW Act is economic loss. In Turnbull v Symantec (Australia) Pty Ltd, I said:[54]

   To determine whether an applicant has suffered economic loss because of a contravention of a civil remedy provision, the Court must compare two positions. Where it is not alleged that an applicant failed to mitigate his or her loss, one of those positions is actual, and the other is hypothetical. The actual position is the financial position in which the applicant finds himself or herself at the date compensation is fixed or at some earlier appropriate date. The second, and hypothetical, position is the financial position in which the applicant would have found himself or herself at the relevant time had the employer not contravened a civil remedy position. If, after these two positions are identified, the applicant’s actual financial position is less favourable than the hypothetical financial position, compensation will be fixed in an amount that reflects the difference between the two positions. That is, compensation will be fixed in such amount as will put the employee in, or substantially in, the position he or she would have been, had the employer not contravened a civil remedy provision.

   There will usually be little or no difficulty in determining an applicant’s actual financial position. That will be a matter of history, most of the traces of which will be captured in documents. It is another matter to determine the hypothetical position. Here, judgments must be made, often on the basis of incomplete evidence. That will usually give rise to a range of plausible hypothetical financial positions against which to compare the applicant’s actual financial position and, hence, a range of amounts that it may be reasonable to assess as compensation. Nevertheless, an applicant bears the onus of adducing evidence from which the Court can rationally infer a relevant hypothetical position.

   [54] [2013] FCCA 1771 at [87] and [88]

4. In addition to economic loss, an order for compensation may be made under s.545(2)(b) of the FW Act where a person has suffered distress, hurt and humiliation as a result of the contravention of a civil remedy provision.[55]

   [55] Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333 (Barker J)

Compensation – economic loss

1. Ms Pacheco-Hernandez ceased her employment with Lagardère on 14 April 2017.[56] In evidence given under cross-examination, Ms Pacheco-Hernandez said she did not immediately look for new work because she “wasn’t mentally in the space to do it”.[57] She could not recall when she commenced to look for work, but was “months after”,[58] but she commenced a new job at the end of January 2018. Ms Pacheco-Hernandez annexed job search applications to her first affidavit which, in cross-examination, she accepted show she was reasonably active in pursuing other employment from April to around July 2017.[59] Ms Pacheco-Hernandez also accepted in cross-examination that she had looked for alternative employment before Lagardère terminated her employment.[60] There was a suggestion in her evidence that she decreased the intensity of her search for employment around October 2017,[61] but Mr Marshall did not submit that Ms Pacheco-Hernandez did not make reasonable efforts to seek new employment. Mr Marshall did submit, however, that given the fractious relationship between Ms Pacheco-Hernandez and other employees of Lagardère, and that Ms Pacheco-Hernandez had looked for alternative employment while employed by Lagardère, the probabilities were that Ms Pacheco-Hernandez would not have remained employed with Lagardère for any substantial period after 14 April 2017 had Lagardère not dismissed her.

   [56] T64.40

   [57] T65.15

   [58] T65.15

   [59] T67.20

   [60] T65.45 – T66.5: “I was applying since the first day that – even before, I think, that – before they decide to terminate me, because I knew that things wasn’t going well and I wasn’t trusting that my position was secure.”

   [61] T67.45

2. I am not satisfied that Ms Pacheco-Hernandez would have remained employed by Lagardère until the end of January 2018 had Lagardère not terminated her employment in contravention of s.340 of the FW Act. I find Ms Pacheco-Hernandez became unhappy with her employment with Lagardère soon after she commenced working there. That is demonstrated by the email Ms Pacheco-Hernandez sent on 20 December 2016, only some six weeks after she commenced her employment, where she expressed wide ranging criticisms of her colleagues and management. Ms Pacheco-Hernandez remained unhappy, as is shown by the later emails she sent, and her looking for other employment before Lagardère terminated her employment. On the other hand, those responsible for managing Ms Pacheco-Hernandez, and in particular, Ms Toncian, were also unhappy with Ms Pacheco-Hernandez as an employee. That is evident in the emails Ms Toncian sent to Ms Colliver. Although I have found in the circumstances of this case that Lagardère terminated Ms Pacheco-Hernandez in contravention of s.340 of the FW Act, that does not mean it would have been out of the power of Lagardère to have lawfully terminated Ms Pacheco-Hernandez’s employment after 10 April 2017.

3. In her form 2 Ms Pacheco-Hernandez claims she had initiated a workers compensation claim on 28 April 2017 “for psychological injury I have suffered, as a result of the stressful traumatic events I experienced at Amuse store”. She also claimed that she has been diagnosed with an adjustment disorder with mixed anxiety and depressed mood and, for that reason, she has not been mentally and emotionally fit to return to work. Ms Pacheco-Hernandez has adduced evidence of medical expenses,[62] and a care plan that refers to Ms Pacheco-Hernandez suffering from anxiety, depression and back spasms.[63] There is nothing in this evidence that suggests the cause or causes of Ms Pacheco-Hernandez’s conditions. In particular, there is nothing to suggest that the circumstance in which her employment was terminated is a cause of her medical conditions. In those circumstances, even if because of her medical conditions Ms Pacheco-Hernandez was unable to obtain employment, that is not a matter that can be attributed to Lagardère’s contravention of s.340 of the FW Act.

   [62] Affidavit of E M Pacheco-Hernandez 05.05.2018

   [63] Affidavit of E M Pacheco-Hernandez 29.05.2018

4. I find that the employment relationship between Ms Pacheco-Hernandez and Lagardère would not have remained in place for any significant period after 10 April 2017 had Lagardère not terminated Ms Pacheco-Hernandez on 10 April 2017 in contravention of s.340 of the FW Act. In particular, I find it is unlikely the employment relationship would have survived the probation review of Ms Pacheco-Hernandez that was provided for by the Lagardère Probation Review Policy and which was due to take place on or around 6 May 2017, six months after Ms Pacheco-Hernandez commenced her employment. In all the circumstances, I find it would be fair to assess the economic loss Ms Pacheco-Hernandez suffered as a consequence of Lagardère’s contravention of s.340 of the FW Act on the assumption that, had Lagardère not contravened s.340 of the FW Act, Ms Pacheco-Hernandez would have remained employed by Lagardère for a further eight weeks after 14 April 2017, namely, until Friday 9 June 2017. On that assumption, and given that Ms Pacheco-Hernandez’s salary was $50,000 per annum, and was entitled to a 9.5% superannuation contribution ($4,750), I assess Ms Pacheco-Hernandez’s loss to be $7,671 for lost wages, [64] and $729, being the superannuation contribution that would have been paid on the $7,671.

   [64] ($50,000  52) x 8 = $7,692

5. Ms Pacheco-Hernandez also claims $2,083, being the amount of two weeks of annual leave she would have accrued had she remained employed with Lagardère for a further six months. I have found that Ms Pacheco-Hernandez would not have remained employed by Lagardère beyond 9 June 2017. That means that had she remained employed by Lagardère until 9 June 2017 she would have accrued three days annual leave, which translates into $592.[65]

   [65] Ms Pechanco-Hernandez was entitled to four weeks annual leave. That means she accrued one week’s annual leave for every 13 weeks of service. That is, she would have been entitled to accrued leave equal to one week’s wages ($961.50) every 13 weeks. Given that I have found Ms Pacheco-Hernandez would have worked a further 8 weeks, she would have been entitled to accrued leave of 8/13 of $961.50, namely, $592.

Compensation - non-economic loss

1. Ms Pacheco-Hernandez claims $2,000 for “financial loss due to medical expenses” relating to “psychological treatment, physio therapist and medical consultations”.[66] She also claims $21,000 “for general psychological damage-trauma cause by been [sic] bullied, harassed, unfairly dismissed and suffering”. I have already referred to Ms Pacheco-Hernandez having adduced evidence of medical expenses,[67] and a care plan that refers to Ms Pacheco-Hernandez suffering from anxiety, depression and back spasms.[68] As I have also noted, however, there is nothing in this evidence that suggests that the circumstance in which her employment with Lagardère was terminated is a cause of her medical conditions. For those reasons, Ms Pacheco-Hernandez is not entitled to any compensation in relation to her medical conditions.

   [66] Annexure to Amended Claim filed on 10 October 2017

   [67] Affidavit of E M Pacheco-Hernandez 05.05.2018

   [68] Affidavit of E M Pacheco-Hernandez 29.05.2018

Other relief

1. Ms Pacheco-Hernandez claims an order that Lagardère “must not list or provide a negative record of reference . . . against the applicant”. I do not propose to make any such order because it does not relate to Lagardère’s contravention of s.340 of the FW Act.

2. Although not claimed by Ms Pacheco-Hernandez, given she is an unrepresented litigant, it would be appropriate that I also make an order under s.547 of the FW Act that interest be included in the amount I propose that Lagardère pay.

Conclusion and Disposition

1. I have concluded that Lagardère contravened s.340 of the FW Act and that Ms Pacheco-Hernandez has suffered economic loss, that loss being the loss of eight weeks of wages ($7,671), lost accrued annual leave on those eight weeks of wages ($592), and superannuation contributions on the eight weeks wages ($729). I propose that interest be calculated on those amounts from 10 June 2017 to 17 December 2018, being the day on which I propose to pronounce my orders, by applying to these amounts the rates prescribed by the Interest on Judgements Practice Note (GPN-INT) issued by the Federal Court of Australia. That practice note provides for an interest rate of 6% above the cash rate last published by the Reserve Bank of Australia. The cash rate for the period 10 June 2017 to 17 December 2018 has been 1.5%. The rate of interest I will apply, therefore, is 7.5%. On that rate, interest on $8,263 (being the sum of sum of $7,671 and $592) for the period 10 June 2017 to 17 December 2018 is $619.73; and interest on the superannuation of $729 is $83.11.

2. I therefore propose to:

   a)declare that Lagardère has contravened s.340 of the FW Act by dismissing Ms Pacheco-Hernandez from her employment because she exercised her ability to make a complaint in relation to her employment;

   b)declare that Ms Pacheco-Hernandez is entitled to an order under s.545(2)(b) of the FW Act that Lagardère pay Ms Pacheco-Hernandez compensation in the amount of $8,263 (being the sum of 8 weeks of lost wages ($7,692) and lost accrued annual leave on those 8 weeks of wages ($592);

   c)declare that Ms Pacheco-Hernandez is entitled to an order under s.545(1) of the FW Act that Lagardère pay $729 to the superannuation fund to which Lagardère had made superannuation contributions for the benefit of Ms Pacheco-Hernandez during the period she was employed by Lagardère;

   d)declare that Ms Pacheco-Hernandez is entitled under s.547 of the FW Act that interest be added on the sums referred to in (b) and (c) at the rate of 6.5% per annum from 10 June 2017 to 17 December 2018;

   e)order that Lagardère pay to Ms Pacheco-Hernandez $9,205.32 (being the sum of $8,263 and interest of $942.32 on that sum); and

   f)order that Lagardère contribute $812.11  (being the sum of $729 and interest of $83.11 on that sum) superannuation fund to which Lagardère had made superannuation contributions for the benefit of Ms Pacheco-Hernandez during the period she was employed by Lagardère.

1. At the time I pronounce these orders I will set the matter down for a directions hearing in relation to the question of penalty.

I certify that the preceding eighty seven (87) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  17 December 2018