Perez v Northern Territory Department of Correctional Services
[2017] FCCA 1499
•17 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PEREZ v NORTHERN TERRITORY DEPARTMENT OF CORRECTIONAL SERVICES | [2017] FCCA 1499 |
| Catchwords: INDUSTRIAL LAW – adverse action application – application dismissed at first instance – matter remitted back on appeal for further hearing in respect of two issues – did applicant’s suspension from work constitute adverse action pursuant to section 351 of the Fair Work Act 2009 – did applicant suffer loss as a consequence of recommendation that his contract of employment not be renewed – no adverse action found – no loss found – no causal connection between applicant’s mental disability and standing down from employment – substantive and operative reason for action was health and safety of applicant – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.340; 341; 342; 351; 360; 361; 545; 546; 550 |
| Cases cited: Perez v Northern Territory Department of Correctional Services [2016] FCA 476 Perez v Northern Territory Department of Correctional Services [2015] FCCA 1384 Board of Bendigo Regional Institute of Technology and Further Education v Barclay [2012] 248 CLR 500 State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd [2014] HCA 41 Sayed v Construction, Forestry, Mining & Energy Union [2015] FCA 27 Shortv Ambulance Australia [2015] FCAFC 55 |
| Applicant: | LUIS EDGAR PEREZ |
| Respondent: | NORTHERN TERRITORY DEPARTMENT OF CORRECTIONAL SERVICES |
| File Number: | DNG 6 of 2014 |
| Judgment of: | Judge Brown |
| Date of Submissions: | 23 August 2016 & 10 October 2016 |
| Date of Last Submission: | 4 November 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 17 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | Not Applicable |
| Counsel for the Respondent: | Mr Simon Wiese |
| Solicitors for the Respondent: | Solicitor for the Northern Territory |
ORDERS
The application remitted back for further hearing, by order of the Federal Court of Australia made on 6 May 2016 is dismissed.
The application is otherwise dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
DNG 6 of 2014
| LUIS EDGAR PEREZ |
Applicant
And
| NORTHERN TERRITORY DEPARTMENT OF CORRECTIONAL SERVICES |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Luis Edgar Perez was employed, by the Northern Territory Department of Correctional Services (“the Department”) as a trainee prison officer between 11 February 2013 and 10 February 2014. He was based at the Alice Springs Correctional Centre. From both parties’ perspectives, this period was not without its controversies.
In March of 2014, Mr Perez commenced proceedings against the Department and six of its employees, who had been involved in Mr Perez’ traineeship. In broad terms, Mr Perez claimed that the Department had taken adverse action against him, in contravention of the provisions of the Fair Work Act 2009 (Cth) (“the Act”).
As a consequence, Mr Perez sought the imposition of penalties and compensation against the Northern Territory and the individuals named in his application amounting to $570,600.00. His application proceeded to trial, before me, in Alice Springs between 5 and 7 May 2015. Judgment was delivered on 29 May 2015. I dismissed the application.
Mr Perez appealed the determination to the Federal Court citing eleven grounds of appeal. The appeal was heard by White J on 27 November 2015 with judgment being delivered on 6 May 2016. The appeal was dismissed other than in respect of two discrete aspects.
In particular, White J made the following order:
“The matter be remitted to the Federal Circuit Court of Australia for the trial Judge to consider the relief, if any, to be awarded in respect of the adverse action constituted by the recommendation in the report of 15 October 2013 concerning the Appellant’s employment, and for determination of the Appellant’s claim that his “suspension” on 23 December 2013 constituted adverse action by the First Respondent in contravention of s 351 of the Fair Work Act 2009 (Cth).”
In addition, White J ordered as follows:
“Without the leave of the trial Judge no party is to be at liberty to adduce further evidence on the remittal.”
Following delivery of the appeal judgment, the case was listed before me on 17 May 2016, on which occasion I made the following order:
“Further consideration of this matter is adjourned to 19 July 2016 at 9:30am for directions in respect of the further hearing of the matter and whether it can be dealt with by way of written submissions and whether any application to adduce evidence will be made and for the extant application for costs NOTING both parties are at liberty to attend by telephone link.”
The matter returned to court on 19 July 2016, on which occasion I was advised by Mr Perez, who has acted on his own behalf throughout the entirety of the proceedings to date, that he agreed that the issues arising from the appeal could be dealt with by way of written submissions, without any further oral evidence being adduced. Mr Weise, the solicitor for the respondent was of the same view.
As a consequence, on 19 July 2016 the following orders were made:
“1. The applicant is to file within 42 days his submissions arising from the appeal with the respondent to file its answering material within a further 42 days of that.
2. Any reply by the applicant to be filed within a further 28 days of that.
3. Decision adjourned following submissions.”
Mr Perez provided his submissions on 23 August 2016. The Department with its submissions on 10 October 2016. Mr Perez responded to these submissions on 4 November 2016. These reasons for judgment are directed to resolving the issues remitted back to this court by White J.
Background
On 30 December 2012, Mr Perez accepted an offer of “temporary employment from 11 February 2013 to 10 February 2014 as a prison officer in training.” from the Northern Territory Government Department of Treasury & Finance. In the relevant offer of employment, Mr Perez was also advised that successful completion of the prison officer in training program depended on him:
·Pass grades in all theory and practical examinations;
·Satisfactory completion of block training, including both off-the-job and on-the-job components;
·Satisfactory formal written performance assessments;
·Satisfactory conduct and satisfactory assessment of required competencies throughout the period of training.
It is common ground between the parties that the necessary qualification prerequisite for the offer of a position as a prison officer, with the Department, is a Certificate III in Correctional Practice. To acquire the certificate it is necessary for a person to complete on the job training in an approved correctional facility.
In addition, the offer of employment included the following statement:
“Satisfactory completion of the twelve month contract should result in an offer of permanent employment.”[1]
[1] See annexure 1 to the applicant’s affidavit filed 13 March 2014
After a period of initial training, Mr Perez started his on-the-job training at the Alice Springs Correctional Centre on 27 April 2013. On 12 June 2013, an incident occurred at G-Block at the Correctional Centre, which involved Mr Perez and caused concern to a number of senior officers at the Centre. Mr Perez and the other prison staff involved in it have different views about what occurred.
From the respondent’s position, Mr Perez entered the compound area of G-Block in an unauthorised manner in response to a security incident, involving the throwing of a garbage bin. The manner in which Mr Perez had entered the block was asserted to be in breach of prison officer protocols and had the potential to put both Mr Perez and any officers, who came to his assistance, in danger. Thereafter, Mr Perez was counselled.
From Mr Perez’ perspective, he did not act inappropriately in entering G Block, in the manner in which he did. He refutes that he put either himself or anyone else at risk. However, after the incident, he alleges that he was subject to a course of intimidation and harassment, by the respondent, which breached provisions of the Fair Work Act and which culminated in the respondent’s decision not to offer him a permanent position, as a prison officer, at the completion of his period of training.
In broad terms, it is the position of the Department that it was not in a position to offer Mr Perez a position as a prison officer because he had not successfully completed his Certificate III in Correctional Practice. In addition, it was the view of a senior officer, stationed at the Correctional Centre, Mr Yan, that Mr Perez’s health and safety would be jeopardised if he was employed at the Centre.
Mr Perez was absent from work between 10 July 2013 and 12 November 2013. He was diagnosed as suffering from depression and anxiety. He submitted a claim for worker’s compensation, alleging he had suffered a psychiatric injury, whilst at work. His application was not accepted.
Whilst he was off work, on 24 July 2013, Mr Perez made a formal complaint, via the human resources consultant, at the Alice Springs Correctional Centre that he had been subject to harassment, by a group of senior prison officers, following the incident at G-Block on 12 June 2013.
Mr Perez’ complaint of harassment was investigated by Kyra Andrews. Ms Andrews, at relevant times, was employed by the Northern Territory Department of Correctional Services, as an audit and investigations officer in its professional standards unit.
Ms Andrews completed what was entitled a preliminary investigation report into Mr Perez’ complaint, in mid-October of 2013. She forwarded this report to Ken Middlebrook, who was the Commissioner of Correctional Services, at the time and so the Department’s Chief Executive Officer.
Ms Andrews did not find that Mr Perez had been subject to any form of harassment in the aftermath of the G-Block incident. Rather, she accepted that Mr Perez had entered the compound without waiting for appropriate authorisation from any senior officer and so had potentially put both Mr Perez himself and other officers in danger. In this context, Ms Andrews wrote as follows:
“All of the officers named in Mr Perez’s complaint had a responsibility to discuss their issues/concerns with Mr Perez as they were all at a higher rank. There had already been several instances reported to management about Mr Perez’s poor work performance as he had not been following procedures or listening to instructions from Senior Officers. Mr Perez holds a base rank of POIT and does not have the same level of experience or knowledge as the other officers whom Mr Perez has accused of harassment.
It is also clearly evident that Mr Perez does not take constructive feedback in a positive manner and refuses to accept responsibility for his actions. This is evident in a number of Mr Perez’s emails where he has blamed others for making mistakes and fails to appreciate that the Senior Officers are there to provide on the job training and advice for the new recruits in order for them to successfully complete their qualifications. This shows that Mr Perez has a lack of self awareness.”[2]
[2] See affidavit of Kyra Andrews filed 14 April 2015 at annexure KA-14
Under the heading recommendations, in her report, Ms Andrews wrote as follows:
“Unless Mr Perez can provide credible evidence to substantiate his allegations of harassment, then it is recommended that no further action be taken in this matter.
As it has been clearly identified that Mr Perez’s workplace performance is poor and is not meeting the requirements of the Certificate III in Correctional Practice, it is recommended that consideration be given to terminating his employment contract with the Department which is due to expire 10 February 2014.”
Following receipt of Ms Andrews report, Mr Middlebrook wrote to Mr Perez, in the following terms:
“Your complaint of alleged harassment by senior officers at the Alice Springs Correctional Centre has been investigated by the Professional Standards Unit. I have read the Investigation Report and I am satisfied that the actions taken by staff at ASCC were nothing more than Performance Management to assist you during your time as a Prison Officer in Training (POIT).
As requested, a copy of the report has been provided to you. I now invite you to provide me with any submissions you may have regarding the Investigation Report as required under the principles of natural justice.
I take this opportunity to encourage you to return to work at the Alice Springs Correctional Centre and complete your training. I also remind you that as a POIT you are obliged to follow the directions of senior officers at all times and learn from their experience.”[3]
[3] Ibid at KA-14
On 14 November 2013, Mr Perez sent an email to Ms Andrews indicating that he had received the preliminary report and had no comment to make in respect of it.
There is no controversy that Mr Middlebrook did not take any formal action in respect of Ms Andrews’ recommendation concerning the termination of Mr Perez’ employment. Rather, as is clear from his letter, he encouraged Mr Perez to return to work and counselled him to follow the directions of his superiors, at all times.[4]
[4] See also Perez v Northern Territory Department of Correctional Services [2016] FCA 476 at [23]
Mr Perez returned to work, on 12 November 2013, pursuant to a graduated return to work plan, which was devised by a rehabilitation provider, Balance Workforce Solutions, in conjunction with both Mr Perez himself and management at the Alice Springs Correctional Centre.
Part of this plan consisted of a desensitisation strategy for Mr Perez designed to deal with Mr Perez’ anxiety about being in the main prison area by gradually re-accustoming him to this environment. However, on his return to work, Mr Perez indicated that he felt unable to re-enter the main prison area because of his anxiety. As a consequence, he was assigned to an area called The Cottages, which is a low security area, outside of the main prison.
On 13 December 2013, there was a further incident, involving Mr Perez, at The Cottages. At the time Mr Yan was the general manager of the Alice Springs Correctional Centre and therefore the officer in charge of Mr Perez’ return to work plan with the assistance of Ms Bongiorno, the manager of Workplace Injury Solutions and Ms Levot, a rehabilitation consultant.
Following the incident of 13 December 2013, Ms Levot considered that there was a significant risk of Mr Perez suffering harm, if he continued in the workplace. Ms Levot reached this view because she was concerned prisoners in the Correctional Centre might perceive Mr Perez to be a vulnerable prison officer and this might compromise security and safety issues within the Prison. As a consequence, Mr Yan determined on 23 December 2013 to stand Mr Perez down, on full pay, effective from 23 December 2013.
In order to complete the requirement for the conferral of a Certificate III in Correctional Practice, which is a formal qualification necessary for a prison officer in training to progress to a prison officer, it was necessary for Mr Perez to display required levels of competency within the main prison area. For obvious reasons, this could not occur if he felt unable to enter the prison.
On 30 January 2014, Mr Yan sent Mr Perez a letter, which read as follows:
“I refer to your contract as a Prison Officer in Training for the period 11 February 2013 to 10 February 2014.
As per the discussion I had with you on 22 January 2014, I am advising you that you have not been recommended for permanent appointment and that your contract will not be extended for a further period.
Your employment at Alice Springs Correctional Centre will cease on close of business Monday 10 February 2014.”[5]
[5] See Mr Yan’s affidavit filed 8 April 2015 at WCY-12
In my reasons for judgment, I made the following findings in respect of the various incidents, which led to Mr Yan standing Mr Perez down on full pay, for the remainder of his prison officer in training contract and further in respect of Mr Yan’s decision not to offer Mr Perez a position as a probationary prison officer from February 2014 onwards.
“Mr Perez’s rehabilitation provider was Ms Fleur Levot. She reported to Mr Yan her concern that the desensitisation process for Mr Perez was not being successfully implemented, as Mr Perez had not been able to enter the main prison on a routine mail run. He had been able to touch the front door of the prison, but had been unable to get any further.
Ms Levot further reported to Mr Yan that this incident had been observed by prisoners at The Cottages and, in these circumstances, she was concerned that other prisoners might view Mr Perez as being a vulnerable prison officer and this might compromise security and safety issues within the prison. Ms Levot also reported her concerns to Mr Yan that Mr Perez was not compliant with the return to work plan.
Significantly, Ms Levot also advised Mr Yan that she had discussed with Mr Perez the fact that if he was not prepared to enter the main prison, he would be unable to work as a prison officer. Thereafter, Mr Yan discussed Mr Perez’s situation with Ms Bongiorno and colleagues within the ASCC.
Mr Yan formed the view that it was unlikely Mr Perez would complete the training required of him to become a prison officer. Shortly prior to Christmas, Mr Yan received a communication from Ms Bongiorno, which indicated that she was concerned about the safety of Mr Perez at the ASCC. In these circumstances, Mr Yan determined to stand down Mr Perez on full pay and not renew his contract.”[6]
[6] See Perez v Northern Territory Department of Correctional Services [2015] FCCA 1384 at [228]-[231]
Thereafter, under the heading The standing down of Mr Perez on 24 December 2013, I found as follows:
“In generic terms, I accept that the standing down of Mr Perez, by Mr Yan, on 24 December 2013, was injurious to Mr Perez’s employment, notwithstanding that he continued to receive his regular remuneration.
However, in my assessment, the reason Mr Yan determined to stand Mr Perez down was for a legitimate reason, relating to the safe and proper operation of the ASCC, including the safety of Mr Perez himself.
In this regard, I accept Mr Yan’s evidence that he considered it unsafe for Mr Perez to remain working, at the ASCC, given his apparent inability to enter the main prison facility and his unusual behaviour in The Cottages.
In these circumstances and given the assessment of Ms Bongiorno, it would have been operationally unacceptable for Mr Yan to do anything other than what he did in regards to Mr Perez. Otherwise, there was the potential for harm to come to both Mr Perez and others, both prisoners and officers, working within the ASCC.”[7]
[7] Ibid at [262] – [265]
Under the heading The Termination of Mr Perez’ Employment I found as follows:
“Mr Perez was employed on a one year temporary contract as a prison officer in training. He did not complete his training successfully, as he did not satisfy the necessary prerequisites to be granted a Certificate III in Correctional Practice.
The main reason Mr Perez was unable to obtain the prerequisite certificate was because he was either unable or unwilling to enter the main prison facility, at the ASCC, and perform the duties of a correctional services officer. In these circumstances, Mr Yan had no alternative other than to elect not to extend Mr Perez’s contract of employment as a correctional officer.”[8]
[8] Ibid at [266]-[267]
On appeal, White J found as follows:
“The FCC Judge did not determine the appellant’s claim that Ms Andrews’ recommendation that his employment not be continued after the expiry of the initial 12 month term constituted adverse action.
The FCC Judge accepted that this suspension of Mr Yan of the appellant on 23 December 2013 was injurious to the appellant’s employment, notwithstanding that he had continued to receive his regular remuneration.
The FCC Judge did not determine, at least expressly, the appellant’s claim that he had been the subject of adverse action, in contravention of s 351 of the FW Act. The reasons which the Judge gave for rejecting the appellant’s adverse action claim with respect to his suspension and termination of employment do bear upon this claim, but they cannot reasonably be regarded as determinative of it.”[9]
[9] See Perez v Northern Territory Department of Correctional Services [2016] FCA 476 at [42] – [44]
These reasons for judgment are directed to the resolution of the two omissions raised by White J on appeal. They relate firstly to the consequences of my failure to consider whether the recommendation of Ms Andrews, in her report of October 2013, to Mr Middlebrook that “consideration be given” to the termination of Mr Perez’ contract of employment with the Department of Correctional Services, constituted adverse action.
Secondly, to my failure to consider the application of section 351 of the Act to the circumstances arising following Mr Perez being stood down from his position, by Mr Yan, on 24 December 2013, particularly whether adverse action was taken against Mr Perez for a protected attribute as designated by that section.
Legislative provisions
Part 3-1 of the Fair Work Act 2009 (Cth) (“the Act”) is headed General Protections. Pursuant to section 340(1) a person must not take “adverse action” against another person because that other person has a workplace right.
Section 342(1) of the Act contains a table setting out the circumstances in which a person is to be regarded as having taken adverse action against another person. The first item of the table provides as follows:
“Adverse action is taken by an employer against an employee if the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.”
Section 341 provides the definition of workplace right. A person has such a right if, amongst other matters, he or she:
“(c)is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.”
The expression workplace law is defined within section 12 of the Act. It includes any law of a state or territory that regulates the relationship between employers and employees, including dealings in respect of occupational health and safety matters.
Section 351 of the Fair Work Act 2009 provides as follows:
“351 Discrimination
(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(2) However, subsection (1) does not apply to action that is:
(a)not unlawful under any anti-discrimination law in force in the place where the action is taken; or
(b)taken because of the inherent requirements of the particular position concerned;
As a consequence of the use of the word because in sections 340 and 351 there must be a causal link between the taking of the adverse action against the applicant concerned and a protected attribute relating to that applicant, either as a consequence of a workplace right or one of the attributes listed in section 351.
Section 361 provides as follows:
“(1)If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention 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.”
As White J pointed out, the effect of section 361 is to place the onus of disproving the necessary causal link on the respondent. In these circumstances, an application arising under Part 3-1 of the Act involves three elements:
·Does the applicant have a workplace right or other protected attribute arising under either section 340 or 351 of the Act;
·Did the respondent concerned take adverse action against the applicant;
·If so, was the adverse action taken because of the applicant’s possession, exercise or proposed exercise of that workplace right or because of one of the protected attribute of the applicant concerned.
The leading authority relating to the application of section 361 is Board of Bendigo Regional Institute of Technology and Further Education v Barkley[10]to which reference was made in both the initial judgment and the judgment on appeal. In the latter, White J also made reference to State of Victoria (Office of Public Prosecutions) v Grant in which the relevant principles were summarised as follows:
·The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
·That question is to be answered having regard to all the facts established in the proceeding.
·The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
·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.”
·Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
·If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.[11]
[10] Board of Bendigo Regional Institute of Technology and Further Education v Barclay (2012) 248 CLR 500 at [50]
Ms Andrews’ recommendation
On appeal White J held that Ms Andrews’ recommendation of October 2013 “that consideration be given to terminating his [Mr Perez’s] employment contract with the Department which is due to expire 10 February 2014” was a form of adverse action as envisaged by section 342 of the Act, as the recommendation was capable of undermining his employment with the respondent and so causing some form of injury to it.
Given Ms Andrews’ role in the Professional Standards Unit, whose recommendations were intended to be at arm’s length from senior management of Corrections and independent of it and so carry weight with it, White J considered that any actions of Ms Andrews should be attributed to the respondent.
As a consequence, White J found that I had fallen into error by failing prima facie to make a declaration to the effect that Ms Andrews’ recommendation constituted adverse action vis-à-vis Mr Perez and more significantly had not considered whether the respondent had discharged the onus upon it, arising as a consequence of section 361, as to why Ms Andrews had made the recommendation in question, particularly whether it was tainted by some form of prohibited consideration.
This failure, on a prima facie basis to make the declaration of adverse action attributable to Ms Andrews raises a number of issues, as follows:
·What were the practical consequences, if any, of the recommendation?
·Did it have any implications in mid-October of 2013?
·Was it a substantive and operative factor in Mr Yan’s decision to stand Mr Perez down and then not renew his contract?
·In these circumstances, should a declaration be made?
·If so, what penalty or other compensation should be imposed on the respondent?
White J said as follows in the appeal judgment:
“I consider that the FCC Judge should have found that Ms Andrews’ recommendation that the appellant’s employment be not continued after February 2014 constituted a form of proscribed adverse action. Prima facie, a declaration to that effect should be made.
There are then questions as to whether any order for compensation should be made in the appellant’s favour, pursuant to s 545 of the FW Act, and whether any penalty should be imposed pursuant to s 546 of the FW Act by reason of this contravention of s 340. The parties did not make submission on these questions on the hearing of the appeal.”[12]
[12] Perez v Northern Territory Department of Correctional Services [2016] FCA 476 at [171] – [172]
I note that White J indicated that prima facie a declaration should have been made in respect of the adverse action said to have arisen as a consequence of Ms Andrews’ recommendation to Mr Middlebrook. However, on appeal no such declaration was made. Rather the issue was remitted back to this court for its ultimate resolution. In remitted the case back, White J said as follows:
“I consider that the matter should be remitted to the FCC Judge for further consideration of the relief, if any, to which the appellant is entitled in consequence of this Court’s findings concerning the adverse action constituted by Ms Andrews’ recommendation concerning the appellant’s employment. This will include consideration of the grant of a declaration, the award of compensation, the imposition of a penalty, and any other matters.”[13]
[13] Ibid at [177]
Ms Andrews’ recommendation has two potential implications – firstly, what occurred immediately after it was made; secondly, its implications, if any, in respect of the subsequent actions of decision makers, within the Department, particularly Mr Yan, in respect of incidents of Mr Perez’s employment, after his graduated return to work.
In his submissions, Mr Perez seeks the imposition of a penalty of $10,000.00 in respect of the adverse action alleged to have occurred as a consequence of Ms Andrews’ recommendation to Mr Middlebrook. In addition, he seeks the reimbursement of $5,568.00 for out of pocket expenses. More recently, he has claimed compensation for what is characterised as a significant blow to his self-esteem and self-confidence.
In addition, Mr Perez claims that Ms Andrews’ recommendation constitutes a blight on his reputation which “will continue to exist for many years to come” because of the legal requirement that the respondent has to keep its public records. As such it is Mr Perez’s position that his good name has been tarnished, along with his reputation as a worker.
In response, the Department asserts that Ms Andrews’ recommendation had no practical effect and, as such, no order for penalty should be made nor compensation afforded to Mr Perez.
In the appeal judgment, White J noted that there does not appear to be any evidence that Ms Andrews’ recommendation vis-à-vis Mr Perez, whether in mid-October of 2013 or later had any practical effect. In particular there was no evidence to indicate Ms Andrews’ decision was acted upon by Mr Middlebrook or subsequently “played any part at all in the decision of Mr Yan concerning the suspension and termination” of Mr Perez’s employment. However, he also indicated that it was possible Mr Perez suffered some other form of loss.
Part of the basis for the remittal of the case back to this court was to give further consideration to the grant of a declaration in respect of Ms Andrews’ recommendation and any compensation or penalty which should be imposed as a consequence of the recommendation. I turn firstly to whether the declaration should be made.
The evidence clearly indicates that Ms Andrews became involved in the matter because Mr Perez had made an allegation that he had been harassed by managers at the Alice Springs Correctional Centre. As such, I am satisfied that he was exercising a workplace right as envisaged by section 341(c) as he was exercising his entitlement to make a complaint under an applicable workplace law.
In these circumstances, White J identified the following issue arose:
“The circumstance that the recommendation was made in a report addressing a complaint made by the appellant gives rise, by itself, to a concern that the recommendation may have been made because of the making of the complaint. That of course need not necessarily be so but the conjunction of the two events does give rise to this concern.”[14]
[14] Ibid at [107]
In this context, White J considered that neither the respondent in general nor Ms Andrews in particular had given any evidence as to the reasons why she [Ms Andrews] had made the particular recommendation which she did. It was also evident to White J that there was a level of ambiguity about what was the nature of Ms Andrews’ actual recommendation – was the recommendation made meant to be considered immediately or at the time of the conclusion of Mr Perez’s contract of employment as a prison officer in training?
I mean Ms Andrews no disrespect, but in her evidence to me at the trial, she presented as a nervous and inexperienced person.[15] Counsel for the respondent did not elect to elicit any further evidence from her other than that contained in her affidavit of evidence in chief.[16] It is a brief document.
[15] See Transcript at page 130
[16] See affidavit of Kyra Andrews filed 14 April 2015
Attached to Ms Andrews’ affidavit is her report into what is described as Mr Perez’s Allegations of Harassment. In my assessment it is thorough and professionally prepared document, which summarises the evidence of a number of witnesses in respect of what occurred, at the Alice Springs Correctional Centre, at G Block, on 12 June 2013 and afterwards.
As I observed in the earlier reasons for judgment, it is Mr Perez’s opinion that what he did at G Block, on that day, was beyond professional reproach. As a consequence, it is Mr Perez’s perspective that it was unwarranted for his actions to be subject to any form of reprimand. It is as a consequence of what occurred in the Correctional Centre after the G Block incident that Mr Perez asserts that he was subject to unwarranted harassment.
It was these matters which Ms Andrews was tasked to investigate. As a consequence she had to investigate what had happened at G Block in part to ascertain whether the actions taken afterwards, by other prison officers, more senior to Mr Perez, were warranted.
This task included viewing the CCTV footage of the incident and interviewing Mr Fullerton, a prison officer present at G Block on the day in question; and Mr Adeyemo and Mr Salmon, the prison officers, who dealt with what they perceived to be the safety and professional implications of the incident. Ms Andrews also interviewed Mr Perez at length.
After viewing the CCTV footage, Ms Andrews was critical of Mr Perez for either not understanding or being unaware of the security requirement that two officers be present when any officer passed through a security grill. She also formed the view that Mr Perez was not a person who was particularly amenable to what she characterised as constructive criticism. Ms Andrews was also of the opinion that it was the professional obligation of the more senior officers concerned to provide such criticisms in the light of how both she and they had characterised Mr Perez’s professional competence, at G Block, on the day in question.
Ms Andrews also noted that there had been other incidents, involving Mr Perez, in which it had been noted that he did not follow prison procedures or listen to instructions from more senior officers. In addition, she did not find that Mr Perez had been subject to any incidents of harassment following the G Block incident. All in all, the clear tenor of Ms Andrews’ report was that she considered Mr Perez to lack the self-awareness required of a prison officer, in the sense that he blamed others for his mistakes.
Although Ms Andrews does not allude as to any specific reason as to why she made the recommendation, which she did that “consideration be given to terminating his [Mr Perez’s] employment contract with the Department which is due to expire 10 February 2014”, this recommendation appears after she has listed what she perceives to have been Mr Perez’s failings as a prison officer, under the heading Conclusions.
Mr Perez was not a skilled cross-examiner. He asked Ms Andrews a number of questions about her recommendation, which were objected to by counsel for the Department. In order to clarify a question asked by Mr Perez, the following interchange occurred between me and Ms Andrews:
“Ms Andrews, if Mr Perez hadn’t complained of being harassed at the Alice Springs Correctional Centre, you wouldn’t have written your report?‑‑‑Yes.
And I think the thrust of his question is that you’ve gone beyond investigating the harassment to make a recommendation about the contract – that that’s – that must be the case. You’re nodding your head everywhere?‑‑‑Yes. Yes.
So is that part of your remit – to – in terms of your – part of your professional responsibilities to determine or make recommendations about employment?‑‑‑I can make recommendations if I find evidence during my investigation. Yes. I can make that recommendation. It’s up to the Commissioner.
Well, it’s up to the Commissioner; I appreciate that, but you have authority in terms of making recommendations about – that you think are germane after your investigation?‑‑‑Yes.
Yes. All right. And you’re audits and investigations officer?‑‑‑That’s correct.
And the integrity – is it the integrity unit or ‑ ‑ ‑?‑‑‑Professional standards unit.
Professional standards. That is, the intention of professional standards is to be at arm’s length from management of Correctional Services; is that right?‑‑‑Yes. I just make the recommendations. I don’t actually make the decision.”[17]
In the appeal judgment, this passage was subject to comment by White J.
[17] See Transcript at page 131
Ms Andrews was not specifically asked, either by me or Mr Perez, why she made the recommendation which she did or what was the time frame in respect of which it was intended to apply. In particular, she was not asked whether she made her recommendation because Mr Perez had exercised his right to make a complaint of harassment or specifically whether she was motivated by the fact of that complaint.
Clearly, as a matter of logic, Ms Andrews would not have been in a position to make any recommendation regarding Mr Perez, if he had not made his complaint of harassment, which she was tasked to investigate. However, the correlation of her recommendation with Mr Perez’s complaint cannot be regarded as a causal link to it.
As Ms Andrews was at pains to point out, she saw her role as being to investigate any incidental matters relating to the employment of complainant in question, which her inquiry threw up. However, it was up to the Commissioner for Corrections as to what was done in respect of any such matter or recommendation relating to it.
In my assessment, it is clear from reading Ms Andrews report that her recommendation was made because of her assessment of the overall capability of Mr Perez as a prison officer, particularly of her view of how he had responded to criticisms afterwards. I do not accept that there is any plausible evidence to indicate that her recommendation occurred because Mr Perez had exercised his workplace right to complain of harassment.
In the appeal judgment, White J said as follows:
[Ms Andrews’ answer to the leading question from me outlined above] was, on my reading of the evidence, as close as Ms Andrews came to a stating of her reason for making the recommendation as to termination of employment. The inference is open that Ms Andrews made the recommendation because of her view of the appellant’s inadequacies and not because he had exercised his workplace right to make a complaint. However, in general it is not desirable that the discharge of the s 361 onus be left to a matter of inference when express and direct evidence should be available. I am not willing to draw that inference. That leads me to me conclude that the first respondent did not discharge the s 361 onus with respect to the adverse action constituted by Ms Andrews’ conduct.”[18]
[18] See Perez v Northern Territory Department of Correctional Services (supra) at [106]
I accept that it is not generally desirable that the reverse onus, arising as a consequence of section 361, should be inferentially discharged. However, in this particular case, Ms Andrews was at pains to point out that she was not the decision maker, so far as Mr Perez’s employment by the Department was concerned. From her perspective, the relevant decision maker was Mr Middlebrook, the Commissioner for Corrections.
It seems to me to be clear from the reading of Ms Andrews’ report, as a whole, that she was motivated in making the recommendation, which she did to Mr Middlebrook that – consideration be given to terminating Mr Perez’s contract – because of her perception of Mr Perez’s inadequacies as a prison officer in training not for some other occult reason based on a proscribed consideration relating to the fact of the complaint in question.
In my assessment to reach any other conclusion it would be necessary to ascribe some subliminal sinister motivation to Ms Andrews, which does not otherwise arise from the evidence. As was pointed out by Heydon J in Barclay, the court is expressly prohibited from attempting to illicit any unconscious reason as to why an employer took the particular adverse action in question. His Honour rejected any notion that there could be a difference between “what actuated the conduct in question and what the person in question thought he or she was actuated by.”[19]
[19] See Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] 248 CLR 500 at 545-6 [144]
In any event, although Ms Andrews recommended that consideration be given to terminating Mr Perez’s employment, which conceivably was open to Mr Middlebrook to do in October of 2013, there is no evidence that he took any specific action in respect of this somewhat diffuse recommendation. Rather he encouraged Mr Perez to return to work and complete his training, whilst reminding him of his obligations to take direction from his superiors.
As White J noted, there is some level of ambiguity about Ms Andrews’ recommendation. Was consideration to be given to terminating Mr Perez immediately or only when his contract came up for renewal. If the former, it seems clear that no immediate action was taken. If the latter, it will be necessary to examine what part, if any, the recommendation played in the decisions made by the respondent in December of 2013 and January of 2014.
The substantive task for a court, in an adverse action application, is to determine what is the “substantive and operative” reason why the action in question was taken.[20] I am satisfied that the substantive and operative reason Ms Andrews made the recommendation, which she did, was her concerns about Mr Perez’s aptitude as a prison officer not because of his exercise of any work place right. In these circumstances, I find that her evidence discharges the burden imposed on the respondent in respect of section 361 as a consequence of her recommendation.
[20] Ibid at 542[127]
In these circumstances, I am satisfied that it is not appropriate to make any specific declaration in respect of the illegality of Ms Andrews’ recommendation to Mr Middlebrook, so far as what occurred in the period immediately after that recommendation was made in October of 2013.
As a consequence of this finding, which I consider I am entitled to make, given the nature of the remittal of the case back to this court, following appeal, which required the court to consider whether such a declaration should be made, I do not consider it appropriate that any penalty should be imposed upon the respondent in respect of the recommendation made by Ms Andrews in her report, specifically in the context of Mr Middlebrook’s involvement with it.
In addition, I am unable to find that Mr Perez suffered any loss or injury following Ms Andrews’ recommendation, which Mr Middlebrook did not action. As such, Mr Perez’s employment was not terminated and he suffered no reduction in his level of remuneration. There is no evidence to indicate that Ms Andrews’ report was formally placed on Mr Perez’s personnel file for later action by Mr Middlebrook. This was the finding of White J.[21]
[21] Perez v Northern Territory Department of Correctional Services [2016] FCA 476 at [174]
I concede the obvious fact that the report, with its final recommendation, was not likely to have been destroyed. It would have had to have been placed somewhere and presumably it is conceivably possible that it could have been read by somebody interested in Mr Perez.
As such, it is Mr Perez’s position that the recommendation continued to constitute some form of injury to his employment, in the sense envisaged by section 342 of the Act. It is his position that his reputation was sullied by the recommendation, which was never formally rescinded and this, of itself, has had detrimental consequences for him.
The relevant section of the Act, dealing with compensation, is section 545(2)(b) which reads as follows:
(2) Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following:
…
(b)an order awarding compensation for loss that a person has suffered because of the contravention; “
In my view, the emphasis in the section is the compensation for loss suffered by the particular individual concerned. The alleged loss suffered by Mr Perez to his personal reputation arising from any person reading Ms Andrews’ report and its recommendation is purely conjectural. Mr Perez is unable to point to any concrete deficit, which he has suffered, which arises from when the recommendation was actually made.
He is unable to substantiate any assertion that the report was generally circulated within the Department or more widely within the Northern Territory Government to his detriment in respect of other employment opportunities potentially open to him. There is no evidence to indicate it was disseminated within the Alice Springs Correctional Centre. The report was not formally published and so made available to a wider public either to the prejudice of Mr Perez’s potential for employment outside of the government sector or to his general embarrassment.
However, that is not an end to the matter. The next question is whether Ms Andrews’ recommendation continued to be operative after the date on which it was made and so had some connection with subsequent employment decisions made by the Department in respect of Mr Perez, particularly so far as Mr Yan was concerned.
In this context, Mr Perez did not take up the opportunity offered to him to comment on the contents of the report at the time of its release. In more recent times, in his submissions to the court, following the remittal of his application by the Full Court, Mr Perez has asserted that Ms Andrews’ recommendation occasioned a blow to his self-esteem and self-confidence and so retarded his recovery to full psychiatric health following his illness in July of 2013.
The action of Mr Yan in standing Mr Perez down and subsequently not renewing his contract
It is Mr Perez’s position that Ms Andrews’ recommendation blighted his reputation with the Department and was therefore an operative factor in the decision subsequently taken on 23 December of 2013 to suspend him on full pay and then on 30 January 2014 not to offer him an on-going contract of employment as a prison officer. There is no controversy that the relevant decision maker in respect of these decisions was Mr Yan.
In the context of this consideration, it will be necessary to examine the reasons why Mr Yan took the actions which he did and whether they were motivated for a reason prescribed by section 351 or otherwise within the Act. In this context, it will also be necessary for the court to consider whether the respondent has discharged the onus incumbent upon it pursuant to section 361 of the Act.
Mr Perez’s position is based on his analysis of causation. It is his position that he acted appropriately, when he entered the G Block compound on 12 June 2013. Thereafter he was unfairly targeted and harassed by other officers involved in the incident directly and investigating its aftermath. This situation led him to exercise his workplace right to complain, which in turn triggered the investigation by Ms Andrews and her recommendation.
Both at first instance and on appeal, it was found that no impropriety attached to the officers involved in the G Block incident and its investigation. It was found that the officers concerned were within the ambit of their professional responsibilities in counselling Mr Perez in respect of their perception that he had behaved inappropriately in entering the Block in the manner in which he had done and had potentially placed other officers at risk of harm by his conduct.
Mr Perez does not accept this formulation of the incident and its aftermath. It is unlikely that he will ever do so. It is likely to remain his position that he was right in his perception that how he behaved on the day in question was beyond reproach and the apprehension of everyone else involved in the matter is either simply mistaken or more sinisterly has been fabricated to do him an injustice.
It is beyond the remit of these proceedings to revisit this aspect of the case, which has already been subject to scrutiny on appeal. However, Mr Perez’s conviction that he was the victim of significant injustice in respect of the G Block incident remains the central feature of his case that he has been subject to unlawful adverse action by the Department and its officers.
Ms Andrews, following her arm’s length investigation found the various departmental officers’ account of the matter to be more probable than the account of Mr Perez. She made the recommendation, which she did, on the basis of her findings in respect of the G Block incident and its aftermath, along with some other findings relating to other incidents of Mr Perez’s employment as a prison officer in training.
I have found that the Department, in the form of Mr Middlebrook, took no adverse action in respect of Ms Andrews’ recommendation. Mr Perez was encouraged to return to work and, in effect, do better in future. It is Mr Perez’s position that he continued to labour under a sense of injustice regarding Ms Andrews’ recommendation, which had the effect of weakening both his spirit and his mental health. In essence, he contends that he formed the view that there was no point in trying to return to work because his good name had been effectively blighted and he would be terminated, come what may, in February of 2014, when his period of training came to an end.
In this context, it remains his contention that he was the subject of adverse action, as a consequence of Ms Andrews’ recommendation, which remained current, in some way, between October 2013 and February of 2014. This recommendation, incorrect and unjust in his perception, led to the compounding of his psychiatric condition, which in turn was the pretext for his termination by Mr Yan.
On this basis, it is Mr Perez’s submission that he was subject to adverse action, in respect of a protected attribute, namely his mental disability, by Mr Yan, in contravention of section 351 of the Act. In assessing this claim, it will be necessary to examine what occurred when Mr Perez returned to work, on 12 November 2013, particularly what were the substantial and operative factors, which led Mr Yan and others associated with him to do what they did vis-à-vis Mr Perez’s employment.
The first thing to be noted, as has already been indicated, is that Mr Perez took no concrete steps to respond formally to Ms Andrews’ report and its recommendation. In addition, although it may now be his perception that the sentiments expressed in Mr Middlebrook’s letter were insincere, Mr Perez did elect to take part in the graduated return to work program, which had been formulated for him in response to input from his medical advisors, the rehabilitation provider, the Department and Mr Perez himself.
At relevant times, Mr Yan was the Superintendent of the Alice Springs Correctional Centre. It is his evidence that he had little to do with Mr Perez in the initial stages of his training. Mr Yan became more involved with Mr Perez during the process of Mr Perez’s return to work plan, which was prepared by Balance Workforce Solutions.[22] The plan indicates that the nature of Mr Perez’s injury is Depression and Anxiety. The goal of the plan is for Mr Perez to participate in a graduated return to full pre-injury duties and hours.
[22] See annexure WCY 5 to Mr Yan’s affidavit filed 8 April 2015
The initial duties laid out for Mr Perez, in the plan, are as follows:
“Mr Perez to perform the complete scope of Prison Officer in Training duties. Initially Mr Perez will be working in the Management Zone with a shadow Prison Officer. This is to support Mr Perez to return to his pre injury hours.”
There were difficulties arising from the return to work plan from its instigation. Mr Perez declined to work in the Management Zone as he considered that this might aggravate rather than rehabilitate his condition. In these circumstances, he proposed working in the Cottages. In addition, he submitted a list of prison officers with whom he was prepared to work. He indicated that he was unable to work with Mr Fullerton and Mr Nolan.[23]
[23] Ibid at WCY 6
From Mr Yan’s perspective a significant problem arose in respect of Mr Perez’s indication that he could only work in the Cottages. He expressed this concern in the following terms:
“… a position in Cottages would not count towards his acquisition of Certificate III and provide him with none of the training in core competencies required for that certification.”[24]
In his evidence provided at hearing, Mr Yan expanded upon this evidence. He indicated that an essential component of being a prison officer was an ability to enter the main prison facility and be in the vicinity of prisoners.
[24] Ibid at paragraph 27
Notwithstanding his concerns, Mr Yan was prepared to modify the initial return to work plan and place Mr Perez in the Cottages for a period of four weeks. The plan was further amended to include what was characterised as a Desensitization Strategy which would entail the following:
·Mr Perez to view the CCTV footage of the 12 June 2013 incident;
·Ms Levot to accompany Mr Perez to the reception area of the main prison for approximately 30 minutes on 10 December 2013, whilst Mr Perez organised his identification badge;
·Ms Levot to accompany Mr Perez on the mail run from the Cottages to the administration section of the main prison on 11 December 2013 and thereafter Mr Perez perform this duty independently;
·Thereafter Mr Perez perform the normal duties of a prison officer stationed at the Cottages. This included attending at the kitchen, administration area and laundry of the main prison.
On 25 November 2013, Mr Yan met with Mr Perez, at the Cottages, to discuss the return to work plan. Mr Yan informed Mr Perez that he would be required to enter the main prison from time to time and was expected to commence duties, at H Block (within the prison facility) from 9 December 2013 onwards. Mr Perez indicated that he did not think he would be able to enter the prison at the time of his conversation with Mr Yan and further indicated that he would begin work at H Block, when he thought he was ready to do so.
On 14 December 2013, concerns arose about how Mr Perez dealt with the preparation of prison bed packs at the Cottages, particularly how he had responded in an email to the instruction given to him. Mr Perez wrote as follows, in respect of what Mr Yan considered an unexceptional instruction: “may easily be construed for something worse that constructive dismissal and or injury to my employment by management”. Mr Yan considered the response to be “a very strange interpretation of a simple task.”
On 17 December 2013, Ms Levot up-dated Mr Yan in respect of Mr Perez’s progress on the return to work plan. She informed him that Mr Perez had got no further than being able to touch the front door of the prison. Ms Levot was further concerned that Mr Perez was not following the return to work plan. Ms Levot also informed Mr Yan in the following terms:
“I raised the issue with Mr Perez that if he is not prepared to enter the main facility he would be unable to work as a Prison Officer. He took some time to consider this. He then affirmed he understood this fact.”
Following this discussion, I accept that Mr Yan turned his mind to whether Mr Perez’s contract should be renewed in February of 2014, when it had earlier been anticipated that he would have become qualified to be a prison officer, following the attainment of his completion of a Certificate III in Corrections. I accept that Mr Yan’s deliberations in this regard were based solely on his own experiences of Mr Perez up to that stage and what had been reported to him in connection with Mr Perez’s return to work plan. Specifically, the earlier recommendation of Ms Andrews played no part in these considerations.
Given the inability and unwillingness of Mr Perez to enter the main prison facility, Mr Yan reached the conclusion that it was unlikely that Mr Perez would complete his Certificate III – the essential prerequisite to on-going employment as a prison officer.
Based on an earlier medical assessment, it had been anticipated that, with desensitisation and psychological support, Mr Perez would have been able to return to pre-injury duties and normal hours by 6 January 2014. Ms Levot was concerned that Mr Perez was not seeking the psychological support prescribed for him and had not viewed the relevant CCTV footage, as recommended.
Ms Levot wrote to Mr Yan in the following terms:
“As a Rehabilitation Provider I am disappointed Mr Perez is refusing to follow Dr Johnson’s advice.
I raised the issue with Mr Perez that if he is not prepared to enter the main facility he would be unable to work as a Prison Officer. He took some time to consider this. He then affirmed he understood this fact.
Unless I am instructed otherwise, I will proceed to accompany Mr Perez through the medically approved RTW Plan for the next two days. However I am doubtful Mr Perez will progress any further than standing outside the door to the main facility for only seconds.
My concerns include:
The Cottage Prisoners witnessing Mr Perez walking with myself and then retreating prior to entering the Gate House. I consider this results in him being vulnerable in the view of the Prisoners, hence affect the safety of other officers.”[25]
[25] Ibid at WCY 9
On 23 December 2013, Ms Bongiorno, the manager of the relevant rehabilitation service assisting the Department, contacted Mr Yan by email. She had been involved with the assessment of Mr Perez’s worker’s compensation claim, which he had submitted in July and which had rejected on the Department’s behalf. She wrote as follows:
“Due to the complexities surrounding this claim I am quite concerned that Mr Perez may well sustain a further injury resulting in an accepted claim. As you have indicated Mr Perez[’s] contract is due to expire 10 February 2014 with a very strong likelihood that his contract will not be extended, therefore to reduce the Agency’s ongoing exposure of a further claim being lodged (sic) would it be worthwhile considering on a without prejudice basis under HR banner ... for Mr Perez not to attend work for the remain[ing] period of his contract, however continue to ... receive his salary as if he were attending work for the remainder of his contact (sic).”
Mr Perez did in fact lodge a workcover claim on 23 December 2013. This was the day on which Mr Yan determined to suspend Mr Perez from work, on full pay. Mr Yan deposed that he had no knowledge of Mr Perez’s claim and, as such, it played no part in his decision, which in the earlier judgment I accepted had the potential to cause injury to Mr Perez’s employment.
Mr Yan deposed that his decision to send Mr Perez home, on 23 December 2013, was based on his (Mr Yan’s) responsibility to Mr Perez and his colleagues and the prisoners at the Alice Springs Correctional Centre to maintain the safety and integrity of the facility. This decision was informed by the concerns raised with him by both Ms Levot and Ms Bongiorno regarding the risk of Mr Perez suffering a further injury in the workplace.
At the time of the initial hearing, I accepted this evidence. As a consequence, I determined that Mr Yan had not taken the adverse action against Mr Perez for any reason prescribed by section 341 of the Act. In addition, I am satisfied that there is no evidence to indicate Mr Yan knew of Ms Andrews’ recommendation of October 2013 and that it played any part in Mr Yan’s decision to stand Mr Perez down.
I also accepted that Mr Perez’s email of 14 December 2013, which dealt with a possible complaint from him in respect of how he had been directed to prepare the prisoner’s bed packs, was not a factor in Mr Yan’s decision.
The next issue, which requires my determination, is whether Mr Yan took adverse action against Mr Perez because of a mental disability suffered by him, in contravention of section 351 of the Act. As White J noted, Mr Perez did not specifically allude to this aspect of his case in his final submission to the court, at the initial hearing.
Mr Perez has acted on his own behalf throughout the proceedings, both at first instance and on appeal. His claim before the court takes the form of a document headed Consolidated Claim, which contains 43 allegations of breaches of the relevant legislation and seeks the imposition of significant pecuniary penalties, against both the Northern Territory and various of its employees engaged by its Department of Corrections.
Items 32 and 34 of the Consolidated Claim read as follows:
“Adverse Action: On 24th December 2013, Yan suspended Applicant indefinitely with pay for no reason, in contravention of s340(1)(a)(i), s350(1)(a)(ii), and s340(1)(a)(iii) of the Act which suspension caused injuries to the Applicant’s prejudice as defined in s342(1)(1)(b) and s342(`)(1)(c) of the Act.
Yan adverse action of suspending Applicant indefinitely with pay constitute disability discrimination and contravened s351(1) for “mental disability” by suspending Applicant indefinitely with pay for no reason on 24th December 2013 after Applicant suffered mental injury on 2nd July 2013, and re-injury on 10th November 2013 up to the present and whilst applicant was in the midst of undergoing Rehabilitation Programs (Annexures 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 28).”
The annexures referred to are, in the main medical reports, in respect of Mr Perez, as follows:
·Medical report of Dr Johnson (Mr Perez’s treating general medical practitioner) dated 8 September 2013, which indicates Mr Perez to be suffering depression and anxiety due to unfriendly scrutiny at work because of false accusations;
·Psychiatric report of Dr Sheehan dated 30 September 2013 providing diagnosis of adjustment disorder with depressed and anxious mood;
·Psychological reports of Ms Russ dated 14 September 2013 and 18 February 2014 indicating stress related physiological symptoms, which had worsened following his dismissal by the respondent.
In his affidavit filed in support of his application, Mr Perez deposed as follows:
“That on 24th December 2013 while Applicant was making good progress in Respondent’s Desensitisation Plan towards the goal of returning Applicant to pre-injury duties, Applicant was again re-injured when Yan placed Applicant on indefinite suspension for no reason effective 25th December 2013 and was still under suspension when Applicant’s employment contract expired on 10th February 2014; (Annexure 20, Page 127).”[26]
[26] See applicant’s affidavit filed 10 March 2014 at [14]
Clearly, in his pleadings, Mr Perez has raised the allegation that he was firstly stood down because of his mental disability, which secondly led to the decision of Mr Yan not to offer him a contract of employment as a prison officer. As such, the provisions of section 351 of the Act were engaged. These provisions were not considered by me. On this basis, this aspect of the case has been remitted back for further hearing.
The use of the word because in section 351(1) requires a causal connection between the alleged adverse action and one of protected attributes delineated in the section, in this case any mental disability arising in respect of Mr Perez.Essentially, the court is required to inquire why a particular employer acted in the manner in which it did.
I accept that, at the time of his standing down from work, it is more likely than not Mr Perez was suffering some form of mental disability in broad terms. Earlier he had been diagnosed as having an adjustment disorder with features of anxiety and depression, albeit that he had been cleared to return to work by his medical advisers. It is also clear that both Ms Levot and Ms Bongiorno were concerned that the return to work plan was not proceeding as hoped and Mr Perez himself was not coping with it psychologically.
These factors were known to Mr Yan prior to his decision to stand Mr Perez down on full pay on 23 December 2013. In this sense, there is a connection between Mr Perez’s mental condition and the decision to stand him down. The next question is whether this connection is sufficient to trigger the application of section 351.
The construction of section 351 requires the court to enquire why adverse action was taken and determine whether it was because of a personal attribute protected by the FWA. This determination must depend upon findings of fact, particularly the factors which motivated the person or persons who actually took the adverse action in question. As such, much of the court’s determination will involve an inquiry about the state of mind of the relevant decision-maker.
Much of the jurisprudence relevant to this issue arises in connection with section 346 of the Act, which provides protection for employees against adverse action in respect of employees engaging in industrial activities or being members of industrial associations.
In Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd[27] French CJ and Kiefel J said as follows:
“Section 346 does not direct a court to enquire whether the adverse action can be characterised as connected with the industrial activities which are protected by the Act. It requires a determination of fact as to the reasons which motivated the person who took the adverse action.”
[27] Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd [2014] HCA 41
BHP Coal was concerned with the actions of a decision-maker, who had terminated the employment of a person, also as in this case, a long standing union member, who had held up a sign bearing the word scab during an industrial demonstration outside a workplace. It was the evidence of the decision-maker concerned that the use of the word scab, on the placard in question, offended a workplace conduct policy and the employer’s charter of values. On this basis, the employee was dismissed.
The High Court determined that although there was undoubtedly a connection between the termination and a protected industrial activity – the sign having been used in a workplace demonstration – that connection was not necessarily sufficient to found adverse action under section 346, as it was accepted that the reason for the dismissal was not for taking part in industrial activities per se.
In Sayed v Construction, Forestry, Mining & Energy Union [28] Perry J, after referring to BHP Coal and particularly that it was insufficient to found an action under section 346 on the basis of only a connection between the protected activity and the adverse action, said as follows:
“This difference between a “connection” and a “reason” may, with respect, be elusive. Possession of a protected attribute is clearly insufficient, and it may also be accepted that if the occasion for adverse action happens to coincide with manifestation of a protected attribute (such as political opinion or industrial activity), that is insufficient. If, however, more than this is meant by the use of the term “connection” then it seems to me as a matter of fact in a given case there may well be an overlap with a “reason” for the adverse action. So too the distinction between an employer not having to prove adverse action was “entirely disassociated” from a prohibited reason, but having to prove the prohibited reason was not a “substantive and operative” reason. Repeating that these will be questions of fact to be determined on the evidence in a particular case does not remove the difficulty of the somewhat fine distinctions being drawn in the authorities. With respect, they also illustrate the difficulties in paraphrasing, or moving away from, the statutory language which here relevantly requires that an employer prove action was not taken for reasons which “included” a prohibited reason.”
[28] Sayed v Construction, Forestry, Mining & Energy Union [2015] FCA 27 at 37 [188]
In Bendigo Regional Institute of Technology and Further Education v Barclay & Anor[29] the High Court (Gummow and Hayne JJ) , again in said as follows:
“In determining an application under s 346 [it is necessary to] to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.”
[29] Board of Bendigo Regional Institute of Technology and Further Education v Barclay [2012] 248 CLR 500
Accordingly, it is necessary for the court to determine, from the evidence available to it, what was the substantive and operative factor which led Mr Yan to stand Mr Perez down on 23 December 2013. Necessarily, this requires an examination of the subjective reasoning of the decision-maker concerned.
In the earlier decision, I made reference to Shortv Ambulance Australia[30]in which the Full Court of the Federal Court said as follows:
“Where adverse action is taken by one person against another, the task of a court in a proceeding alleging contravention of s 340 or s 351 is to determine why the person took the adverse action and to ask whether it was for a prohibited reason or reasons which included a prohibited reason … The question is whether a prohibited reason was a “substantial and operative” reason for the respondent’s action … The relevant inquiry is therefore into the “particular reason” of the decision-maker for taking action … which is a determination of fact to be made by the court taking account of all the facts and circumstances of the case and available inferences.” Citations removed.
[30] Shortv Ambulance Australia [2015] FCAFC 55 at [54] – [56]
In this case, I find that the substantive and operative reason why Mr Yan stood Mr Perez down was a concern that his safety and that of other employees was at risk if he remained at the prison. In making this decision, there was an obvious connection between how Mr Yan perceived Mr Perez’s somewhat unusual behaviour at the Alice Springs Correctional Centre, following his return to work and what was told to him by the occupational health and safety professionals engaged with Mr Perez in the context of his return to work. This behaviour may fall within the rubric of mental disability.
However, I am satisfied that the operative reason for the decision was that Mr Yan was worried that, if Mr Perez remained at work, he would further injure himself or his behaviour would have implications for the safety of others. In making this decision, Mr Yan was influenced by his understanding of the nature of the prison environment, which is an idiosyncratic workplace to a significant degree.
I reject the evidence of the applicant that:
·he was making good progress on his desensitisation plan on 24 December 2013; and
·that he was re-injured when stood down by Mr Yan;
I further reject his evidence that:
·management decisions adverse to him caused Mr Perez not to be able to finish his prison officer in training period and attain his Certificate III in Correctional Practices.[31]
[31] See Mr Perez’s affidavit filed on 13 March 2014 at paragraphs 14 -19
In the earlier judgment, I referred to the evidence of Mr Yan that prisons are inherently dangerous places and, as a consequence, it is imperative that prison officers be aware of their surroundings and work together as a team to minimise risk to themselves, fellow officers and prisoners. Mr Yan had been advised of the dangers of prisoners viewing Mr Perez as a weak link in prison management.
In addition, during the hearing before me, Mr Tunney, an experienced prison officer deposed as to the hierarchal nature of prisons, which he accepted were potentially dangerous places because of the nature of some of the occupants housed within them, namely convicted criminals some of whom had committed crimes of violence and were suffering some form or other of psychological dysregulation from time to time.
In these circumstances, I accept that Mr Yan was mindful of the potential vulnerabilities of Mr Perez, whom it had been hoped would be able to enter the main prison facility, if supported through a process of desensitisation. Mr Yan had been advised that this process had not been successful, so far as Mr Perez was concerned. As such, in my view, it was legitimate for Mr Yan to be concerned about Mr Perez’s personal safety within the Alice Springs Correctional Centre and the safety of other officers and prisoners.
In order to complete a Certificate III in Correctional Practice, a person must undertake a variety of tasks, whilst a prison officer in training, within the confines of a correctional facility. Without a Certificate III, a prison officer in training cannot progress to being a prison officer.
Mr Perez had himself voiced concerns that he felt unable to enter the main prison facility, notwithstanding this being an essential prerequisite to his completion of a Certificate III. In all these circumstances, I am satisfied that a legitimate health and safety concern was the reason that Mr Perez was stood down by Mr Yan.
In any event, I am satisfied that the standing down was justified by the provisions contained within section 351(2) of the Act. Given the nature of the prison facility and the requirement of being a prison officer in training, I am satisfied that the standing down of Mr Perez was justified by the inherent requirements of his position.
Finally, even if the action is regarded as being adverse action, Mr Perez suffered no loss as a result of his standing down. He remained on full pay until the end of his contract of employment as a prison officer in training.
It is Mr Perez’s case, I think, that his standing down, following on from what had occurred to him since the incident at G Block on 12 June, was the culminating injury to his employment with the respondent, as it prevented him completing his prison officer in training and attaining the relevant vocational certificate of competency and this amounts to both some form of loss and adverse action.
In Mr Perez’s mind, there is a clear connection between all the various managerial decisions taken in respect of him from June onwards which ultimately led to the loss, to him, of a potential career as a prison officer. He believes, I think, that there was some malign motivation against him personally, by the respondent. I reject any suggestion of some form of conspiracy against the applicant by any agent of the respondent. This assertion is unsupported by any evidence independent of Mr Perez.
This personal perception of a connection by Mr Perez between the various decisions made by the respondent, which had implications for his training as a prison officer is not, in my view, equivalent to the reason why the various decisions were taken, although their effects were cumulative in nature and in this sense the decisions connected to one another. The connection is both temporal and practical in effect, but each decision had a different rationale.
In my view, Mr Yan had no managerial alternative other than to stand Mr Perez down, on 23 December 2013, given his genuinely held assessment that the prospect of Mr Perez remaining in the workplace was potentially injurious to his safety. This was the reason for the decision. However it had practical implications for Mr Perez’s capacity to complete the training necessary to become a prison officer.
He was not able to do so. As such, Mr Yan was not able to extend Mr Perez’s contract on 30 January 2014 because he (Mr Perez) was not qualified as a prison officer. In this context, I accept Mr Yan’s evidence he had formed the view that it was highly unlikely that Mr Perez would ever attain the necessary competencies to become a prison officer. This was the reason why Mr Perez’s contract was not renewed – he did not then have a Certificate III in Correctional Practices and was unlikely to ever attain one.
In all these circumstances, I am satisfied that none of the decisions made by the respondent, which have been remitted back by White J for further adjudication, was taken for a reason protected by any provision of the Fair Work Act 2009, particularly section 341 or section 351. For those reasons, the aspects of the case remitted back for reconsideration by White J on 6 May 2016 must be dismissed and the application as a whole be dismissed.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and fifty-four (154) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 17 July 2017
[11] State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32]
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