Picos v Healthengine Pty Ltd
[2015] FCCA 1983
•24 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PICOS v HEALTHENGINE PTY LTD & ANOR | [2015] FCCA 1983 |
| Catchwords: INDUSTRIAL LAW – General protections claim – whether termination by reason of temporary absence because of illness or injury – whether termination by reason of adverse action based on workplace rights – whether undue influence and undue pressure to agree to deduct amounts payable – whether intent to coerce with respect to workplace rights – whether knowing or reckless false or misleading representations about workplace rights – whether intent to coerce with respect to allocation of duties and responsibilities – whether request or requirement to work more than maximum weekly hours of work – whether contravention of personal/carer’s leave provisions. |
| Legislation: Building and Construction Industry Improvement Act 2005 (Cth) Fair Work Act 2009 (Cth), ss.62, 97, 340, 341, 342, 343, 344, 345, 351, 352, 355, 360, 361, 546 Fair Work Bill 2008 (Cth), Explanatory Memorandum |
| Auspine Ltd v Construction, Forestry, Mining & Energy Union [2000] FCA 501; (2000) 97 IR 444 The Macquarie Dictionary (2nd Edn) (Macquarie University: The Macquarie Library Pty Ltd, 1991) |
| Applicant: | CONNIE PICOS |
| First Respondent: | HEALTHENGINE PTY LTD |
| Second Respondent: | MARCUS TAN |
| File Number: | PEG 370 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 7, 8, 9, 10, 11 April 2014 |
| Date of Last Submission: | 11 April 2014 |
| Delivered at: | Perth |
| Delivered on: | 24 July 2015 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondents: | Mr J Blackburn |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 370 of 2013
| CONNIE PICOS |
Applicant
And
| HEALTHENGINE PTY LTD |
First Respondent
| MARCUS TAN |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Ms Picos, makes various claims in relation to her employment with the first respondent, HealthEngine Pty Ltd (“HealthEngine”), and against the second respondent, the Chief Executive Officer of HealthEngine, Dr Marcus Tan (“Dr Tan”). Collectively, HealthEngine and Dr Tan will be referred to as “the respondents”. The claims can be grouped as follows:
a)claim 1 alleges Ms Picos was dismissed from her employment because she was temporarily absent from work on account of illness or injury, thereby allegedly contravening s.352 of the Fair Work Act 2009 (Cth) (“FW Act”);
b)claims 2, 3, 3B (there is no claim 3A) and 4 allege the taking of adverse action against Ms Picos by dismissing Ms Picos, injuring Ms Picos in her employment, altering Ms Picos’ position to her prejudice, and discriminating between Ms Picos and another employee, in contravention of s.340 of the FW Act;
c)claim 5 alleges that HealthEngine exerted undue influence and undue pressure on Ms Picos to agree to deductions from amounts payable for the performance of work in contravention of s.344 of the FW Act;
d)claim 6 alleges that the respondents took action and threatened to take action with intent to coerce Ms Picos to do or not do certain things in relation to her workplace rights, in contravention of s.343 of the FW Act;
e)claim 7 alleges that the respondents knowingly and recklessly made false and misleading representations about Ms Picos’ workplace rights in contravention of s.345 of the FW Act;
f)claim 8 alleges that the respondents took action against Ms Picos, by way of a performance bonus payment to another employee, with intent to coerce that employee to allocate certain duties and responsibilities in relation to Ms Picos in contravention of s.355 of the FW Act; and
g)the further claims allege contravention by HealthEngine of s.62 of the FW Act, alleging that Ms Picos was required or requested to work more than the maximum allowable hours of work, and a contravention of s.97 of the FW Act by HealthEngine in relation to the taking of personal/carer’s leave.
Ms Picos claims relief by way of various declarations of contravention by the respondents of ss. 340, 343, 344, 345, 352 and 355 of the FW Act, a declaration of a breach by HealthEngine of ss.62 and 97 of the FW Act, damages, the imposition of pecuniary penalties payable to her and interest upon judgment amounts awarded.
Further details of the claims are set out below.
The respondents deny the claims made by Ms Picos, and oppose the granting of the relief claimed by Ms Picos.
The nature of the business of HealthEngine is best described by Dr Tan. It is relevant to note that Dr Tan has a Bachelor of Medicine and Surgery, is a Fellow of the Royal Australian College of General Practitioners, has an Executive Master of Business Administration, and worked as a medical practitioner for 15 years before commencing as the fulltime Chief Executive Officer of HealthEngine in January 2010. Dr Tan describes HealthEngine’s business as follows:
5.HealthEngine is an online Health Directory and Health Appointment Marketplace. It is in the business of providing online search and booking facilities for users to make health appointments online through its website commenced operations in 2006 and has approximately 500,000 users a month and services around 900 health practices.
7.While we commenced in 2006 we are still very much a “start-up” business which means that there is a lot of uncertainty associated with the business, we need to run very leanly to succeed and our staff have to pull together as a team and exhibit a great deal of resourcefulness, flexibility and adaptability.
Affidavit of Marcus Tan, affirmed 26 February 2014 (“Dr Tan’s Affidavit”) at [5]-[7].
There was no serious dispute about the above description, save that Ms Picos challenged whether or not HealthEngine was a “start-up” business: see Transcript at page 46, but, ultimately, nothing material turns upon that issue.
Ms Picos commenced at HealthEngine as the Finance and Operations Manager on 27 June 2013.
Evidence and Credibility
The Court has had regard to the following evidence in determining this application:
a)Ms Picos’ affidavits, being:
i)Ms Picos’ Hearing Affidavit affirmed 10 March 2014;
ii)Ms Picos’ Supplementary Affidavit affirmed 7 April 2014; and
iii)an affidavit styled “Fifth Affidavit” affirmed 28 November 2013;
b)the respondents’ affidavits, being:
i)Dr Tan’s Affidavit;
ii)the affidavit of Jake Edward Howard affirmed 26 February 2014 (“Mr Howard’s Affidavit”);
iii)the affidavit of Catherine Marie Sindermann affirmed 26 February 2014 (“Ms Sindermann’s Affidavit”);
iv)the affidavit of Darius Yi Zhan Wey (“Mr Wey”), HealthEngine’s Chief Information Officer, affirmed 26 February 2014 (“Mr Wey’s Affidavit”); and
v)the affidavit of Adam Hwa-Loon Yap (“Mr Yap”), the Chief Operating Officer of HealthEngine, affirmed 26 February 2014 (“Mr Yap’s Affidavit”);
c)the exhibits tendered at hearing; and
d)the Transcript of the oral evidence over five days from 7 to 11 April 2014.
The Court has also had regard to the various pleadings, written submissions, and the oral submissions made on the fifth day of hearing.
Where there are conflicts in the evidence between the evidence of Ms Picos, and the evidence of the respondents’ witnesses, and in particular Dr Tan, the Court has given greater weight to the evidence of the respondents’ witnesses. As a whole, the respondents’ witnesses gave evidence which was logical, rational and related to the issues raised. By contrast, Ms Picos had difficulty focusing on the relevant issues, and answering relevant questions: see, for example, Transcript at pages 23, 31, 32, 34, 94. Further, Ms Picos had a tendency to exaggerate and misrepresent matters related to her personally. In less than four years prior to commencing employment at HealthEngine Ms Picos had held at least five different positions, the longest of which she held for 16 months, and the final position in which she was employed at Forge Group Ltd was a position in which she did not continue following the initial three month probationary period, and in relation to which there is a dispute (which is unnecessary to resolve) as to whether she was dismissed or resigned: see Exhibits 8, 9 and 10. Furthermore, Ms Picos’ credibility was damaged by her suggestion that she was employed by a corporate advisory business of her own, and “seconded herself” to Forge Group: Transcript at page 44, when the true position is clearly that she entered into a contract of employment which did not endure past the first three months: Transcript at pages 38-44, Exhibits 8, 9 and 10. The highest salary that Ms Picos received in any of the positions, including that at HealthEngine, was $80,000 during her brief period of employment at Forge Group: Transcript at page 43, and her actual income from various corporate advisory ventures that she initiated was minimal: Transcript at pages 28-29. Ms Picos also misrepresented her qualifications, which also cast doubt on her credibility. She claimed in her CV (see Dr Tan’s Affidavit at MLT-2) to have a Master of Commerce from the University of Sydney, but conceded that she had only studied a Master of Commerce at the University of Sydney for one year, and did not have the qualifications: Transcript at pages 37 and 48. Likewise, the CV indicates that Ms Picos obtained a Bachelor of Laws from the University of Western Sydney in 2009, but she conceded that she had not completed that degree at the University of Western Sydney, and tried to justify it by the fact that she subsequently undertook a Juris Doctor at the University of Sydney from 2010 to 2012. Against the above background, Ms Picos would claim in late 2014 on the website for one of her corporate advisory groups that:
The world does not have a female Richard Branson or female Warren Buffett character. Connie Picos has arrived.
See Dr Tan’s Affidavit at MLT-38.
When asked whether she saw herself as a female Richard Branson or female Warren Buffett, after indicating that “I don’t want to insult those persons who obviously have years of achievement”, she answered “In a sense, yes”: Transcript at page 39.
In all of the above circumstances, the Court, having regard to the entirety of the evidence and upon a re-reading of the Transcript, has come to the view that Ms Picos’ evidence is not as reliable as that of the witnesses for the respondents, and where there is conflict between the two the evidence of the respondents is to be preferred.
Claim 1
Applicant’s claim
Ms Picos claims that in contravention of s.352 of the FW Act HealthEngine dismissed her on 20 August 2013 because she was temporarily absent from work for illness and injury.
Section 352 of the FW Act provides as follows:
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Regulation 3.01 of the Fair Work Regulations 2009 (Cth) (“FW Regulations”) provides as follows:
(1) For section 352 of the Act, this regulation prescribes kinds of illness or injury.
(2) A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:
(a) 24 hours after the commencement of the absence; or
(b) such longer period as is reasonable in the circumstances.
(3) A prescribed kind of illness or injury exists if the employee:
(a) is required by the terms of a workplace instrument:
(i) to notify the employer of an absence from work; and
(ii) to substantiate the reason for the absence; and
(b) complies with those terms.
(4) A prescribed kind of illness or injury exists if the employee has provided the employer with evidence, in accordance with paragraph 107(3)(a) of the Act, for taking paid personal/carer's leave for a personal illness or personal injury, as mentioned in paragraph 97(a) of the Act.
(5) An illness or injury is not a prescribed kind of illness or injury if:
(a) either:
(i) the employee's absence extends for more than 3 months; or
(ii) the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and
(b) the employee is not on paid personal/carer's leave (however described) for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence.
(6) In this regulation, a period of paid personal/carer's leave (however described) for a purpose mentioned in paragraph 97(a) of the Act does not include a period when the employee is absent from work while receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers' compensation.
It is not in dispute that Ms Picos worked on 19 August 2013, went to work on 20 August 2013 and left work early on that day, and was therefore temporarily absent from work on that day. There is an issue as to whether Ms Picos was dismissed on 20 or 22 August 2013, but nothing turns upon that issue, because, accepting Dr Tan’s evidence, the reasons for the termination were the same whether it was 20 or 22 August 2013. In that regard, the respondents say that the reasons for dismissal were not because of any temporary illness or injury that Ms Picos had suffered, and that in any event:
a)the respondents could not have contravened s.352 of the FW Act because they did not know that Ms Picos was absent from work on 20 August 2013 because of illness or injury;
b)there is no satisfactory evidence that Ms Picos was ill on 20 August 2013; and
c)the absence of Ms Picos on 20 August 2013 was not because of an illness or injury of a kind prescribed by the FW Regulations because Ms Picos did not provide a medical certificate to HealthEngine until 2 October 2013, and that the delay in providing the medical certificate was not reasonable for the purposes of the FW Regulations, and therefore not an illness or injury for the purposes of s.352 of the FW Act.
The respondents say that there was an agreement by Ms Picos on 20 August 2013 to resign, and that it is to be implied that she agreed not to make any further claims against the respondents, in return for an agreement that she be provided with four weeks’ pay in lieu of notice, rather than the one week’s pay in lieu of notice that she was entitled to. Ultimately, it is not necessary to resolve the issue of whether or not Ms Picos resigned, because even if she was dismissed on 20 August 2013 the reasons for such a dismissal were the same as the reasons for her dismissal on 22 August 2013. Further, it is not necessary to resolve any issue which might arise from any agreement to resign and the payment of four weeks in lieu of notice, as no claim is made for breach of contract in that regard by Ms Picos, her entire case being premised upon her dismissal from employment rather than her resignation.
The respondents say that the reasons for the termination of Ms Picos were her behaviour and attitude towards her co-workers and her attitude towards her work. The factual context for that assertion follows.
On Thursday, 8 August 2013 at 12.15pm Ms Picos sent an email to Ms Sindermann, who was HealthEngine’s Practice Support Manager, and longest serving employee, and copied it to HealthEngine’s entire practice support team. The email was in the following terms:
Hi Cath,
If you would prefer, I can stop sending emails, you can go back to the admin system and ensure that 99% all of the information is in there to send invoices to customers?
So far I have been missing at least 50 email addresses, 20 forms of pricing, 50 DNAs, and 100 miscellaneous pieces of information that you may have that is not in the system.
You may also like to apologise for the fact that at least 526 invoice were system generated through your team, and some sent, in error on 31 July 2013.
Kind Regards,
Connie Picos
Finance & Operations Manager
Dr Tan’s Affidavit at Annexure MLT-19.
Ms Sindermann was upset by the 8 August 2013 email as she felt the comments in it were offensive and untrue, and she left work immediately: Ms Sindermann’s Affidavit at [34]-[35].
At 10.38pm on 8 August 2013 Dr Tan sent Ms Picos an email. The text of that email was as follows:
Hi Connie,
I’m going to put this email response down to your being unwell and having a frustrating time with the invoicing but I’d caution you about ever sending a response like this again, particularly to so many people.
I will reiterate my desire to instil a no-blame culture and remind you about what I said at the Wednesday Staff meeting about working as a team and not judging people for mistakes made or issues around the legacy systems.
You are a smart person and need to recognise surely that goodwill is hard to build up when you are new to a workplace and if you want to command the trust and respect of others particularly if you are in charge of HR you cannot be sending out emails like this even if you may feel justified in your position to do so.
What purpose did you think it would serve other than to put Cath and the entire practice support team offside?
Cath was so upset by the email that she went home early today.
Please note that I am not taking sides on this, merely pointing out that rightly or wrongly you burnt some political capital with your email today and it was perhaps an unwise thing to do. Feel free to vent your frustrations with Rachel and myself, hopefully there are some solutions rather than simply criticisms in amongst the venting but much of professional life is about the ability to control oneself and how we respond to difficult situations is what defines us.
Let’s have a chat more about this on Monday, but hopefully we can put this behind us and rise above it all and get on with making things better for everyone.
Thanks for working so diligently on getting the July invoicing complete under difficult circumstances and illness.
Hope you are feeling better and can enjoy a well deserved weekend.
Cheers
MarcusDr Marcus Tan MBBS FRACGP Exec MBA FAICD
Medical Director/Chief Executive Officer
Dr Tan’s Affidavit at Annexure MLT-20.
On Saturday, 10 August 2013 Ms Picos initiated an exchange of text messages between her and Dr Tan, in the following terms:
MS PICOS: Marcus, wondering what the situation is with my job as to whether to bother fixing the accounts? Connie
DR TAN: I’m confused with this Connie. What is the situation you are referring to. Are you suggesting that you are resigning.
MIS PICOS: No, the reference to having a chat on Monday regarding the email, plus the accounts mess plus Jake’s latest hire.
DR TAN: The chat on Monday is to help me understand your frustrations and how we solve some of the issues that led to the email and accounts mess. I maintain that I am trying t[o] encourage a no-blame culture. We should always be trying to find solutions by learning from mistakes. Finger pointing an[d] recrimination is a waste of time, energy and effort. My question to you was whether you felt you were up to working in a startup to not have some of the structure they are used to. Your future in HealthEngine is very much up to you, your understanding of who you are and what you want and how you respond to these events going forward. What do you want to do?
MS PICOS: Okay I look forward to catching up on Monday. I will stay and I will adjust my approach. Thank you for the feedback :)
DR TAN: This is all a learning experience for all of us Connie. I continue to learn stuff every day and I wouldn’t be involved in HealthEngine if I wasn’t continually growing and learning. I’m glad you are open to taking up my challenge. I hired you because I saw your potential, it’s early days and you’ll have plenty of opportunities to prove me right. Behavioural flexibility is one of the keys to startup success so thanks for offering to modify your approach.:)
On 9 to 11 August 2013 there was an email exchange between Mr Howard, a Business Advisor with HealthEngine and Ms Picos as follows:
a)Mr Howard to Ms Picos at 8.43am on 9 August 2013:
Hi Connie,
Colm is still grieving and said he need until Monday to sort his head out.
Marcus: I CC’d you in, no doubt you’re concerned about his absence, I’m confident however we’ll see him back in on Monday. I’ll keep you posted if anything change on this front. I’ve schedule a call with him Sunday to ensure we’re on track for next week.
J
Jake Howard
Business Advisor
b)Ms Picos to Mr Howard at 4.32pm on 10 August 2013:
This is embarrassing.
A person receives 2 days of bereavement lease when a direct family member passes away.
Kind Regards,
Connie Picos
Finance & Operations Manager
c)Mr Howard to Ms Picos at 8.22am on 11 August 2013:
Hey Connie,
I hear you’ve been unwell, I hope you’re feeling better and back on your feet shortly.
With regards to your response below, I’m not sure ‘embarrassing’ is the way I’d describe Colm’s absence due to the sudden death of his aunty, that to me sounds extremely cold. I appreciate the formal guidelines offer 2 days for this type of situation, however I’m of the mind that if my aunty died suddenly in a terrible car accident I’d be hard pressed to get my head in a space that was appropriate for a new working role within 2 days. I very much understand we have a business to run so no doubt from a remuneration perspective we’ll need to draw a line. I can’t however not be sympathetic to Colm’s situation on a human level.
I’ve scheduled to speak with Colm today to confirm his return tomorrow. Perhaps we can discuss how to apply leave and manage this situation then.
Thanks,
Jake
Jake Howard
Business Advisor
Mr Howard’s Affidavit at Annexure JEH 2.
Dr Tan then sent an email to Mr Howard, copied to Ms Picos, on 11 August 2013, which emphasised the need for compassion and for HealthEngine’s culture to be warm, caring and people-oriented. That email said as follows:
Jake,
Connie and I will be discussing how the leave will be applied on Monday.
Our key priority is that Colm is treated with compassion and that he feels he is ready to come back and have his head back in the game.
Undoubtedly his start with HealthEngine has been disrupted but I am prepared to give him, as I do with everyone on our staff, the benefit of the doubt and put it down to unfortunate circumstances.
I think our culture needs to be a warm, caring, people-oriented culture which reflects the nature of our business.
This doesn’t mean we aren’t goal oriented and performance driven BTW simply that we recognise that we are a people business and as such need to nurture our people to get the best results.
On the issue of HR, Connie and I will be working out a hiring and leave policy in the next couple of weeks so it is essential that we bring Connie into all hiring and firing decisions to ensure all our policies are adhered to.
Cheers
MarcusDr Marcus Tan MBBS FRACGP Exec MBA FAICD
Medical Director/Chief Executive Officer
Dr Tan’s Affidavit at Annexure MLT-23.
Ms Picos attended work on 12 August 2013, and attended a staff meeting. At the staff meeting Ms Picos:
a)shouted aggressively and swore at Ms Sindermann, including accusing Ms Sindermann of “causing the invoicing fuck up”;
b)continued to shout and abuse Ms Sindermann even though Ms Sindermann was crying;
c)when Ms Sindermann left the meeting, Ms Picos said words to the effect that Ms Sindermann and her staff could not be professional or accountable for their work as they did not have university degrees; and
d)accused Ms Sindermann of being lazy.
Ms Sindermann’s Affidavit at [40]-[51] and Transcript at page 297; Mr Wey’s Affidavit at [33]-[41]; Dr Tan’s Affidavit at [126]-[127].
Dr Tan then warned Ms Picos that her views and conduct were inappropriate. Dr Tan told Ms Picos that her conduct would not be tolerated. Dr Tan’s comments were reinforced by Mr Wey, HealthEngine’s Chief Information Officer. Dr Tan reiterated to Ms Picos that HealthEngine had a no blame culture, and that its staff was not to be judged based on their academic qualifications. See Dr Tan’s Affidavit at [128]; Mr Wey’s Affidavit at [41].
On 13 August 2013 Ms Picos had a conversation with Mr Yap. Ms Picos complained to Mr Yap about the work that she was given to perform. Ms Picos was also highly critical of Ms Sindermann and again referred to Ms Sindermann not having university qualifications, and in which she indicated to Mr Yap that she resented being asked to do work by Ms Sindermann, whom she described as “a person like that”. When Mr Yap questioned Ms Picos “very hard” on her comments on Ms Sindermann, one of Ms Picos’ responses to him was “Do you know who I am”? On 14 August 2013 Mr Yap reported the conversation to Dr Tan: see Mr Yap’s Affidavit at [17]-[46]. Mr Yap was not cross-examined about his conversation with Ms Picos referred to above: Transcript, pages 310-319.
Ms Picos’ view of her colleagues at HealthEngine, or at least those not in a position of superiority in relation to her, is set out in her own words in her Fifth Affidavit where she describes them as “an incompetent gang of people working in a disorganised state”: Fifth Affidavit at [42], and in her Reply at 130[L] to 130[N] where Ms Picos expresses dismay at having to work with Ms Sindermann and Ms Bosnjak, and describes them as having “zero noteworthy achievements”: and see Transcript at page 138 where Ms Picos says: “… I have not Googled Catherine Sindermann’s name … I worked with Catherine Sindermann. I do not know of any of her achievements …” (see also Transcript at page 136).
On 14 August 2013 Dr Tan spoke to Ms Picos once again in relation to her role. Dr Tan says that Ms Picos continued to be critical of Ms Sindermann, and of Ms Sindermann’s staff. Dr Tan told Ms Picos that if that was the view she had of her colleagues, then he felt sorry for her. Dr Tan’s conversation with Ms Picos was then interrupted by a telephone call which he took, and while he was on the telephone, Ms Picos left abruptly and angrily. Ms Picos subsequently endeavoured to put a different context on this conversation in her evidence, but the Court accepts that when she left Dr Tan’s office she was angry, and that her view of that meeting is best described in her Supplementary Affidavit where she speaks of it being an “abusive disagreement”: Ms Picos’ Supplementary Affidavit at [2(j)].
Ms Picos was not at work on Thursday, 15 August 2013.
On Friday, 16 August 2013 Ms Picos sent an email to Dr Tan saying that she would be returning to work on Monday, 19 August 2013: Dr Tan’s Affidavit at [144] and Annexure MLT-26. Ms Picos did return to work, and worked for the entire day on 19 August 2013.
Dr Tan met with Ms Picos at about 4.30pm on 19 August 2013. It was Dr Tan’s intention to terminate Ms Picos’ employment. Dr Tan said that he had formed the view that Ms Picos was not someone who was capable of working as part of a team, and that her conduct and attitude towards other employees of HealthEngine was unacceptable, and that she was not prepared to do work that she considered beneath her, and that her performance was also poor. Dr Tan considered (and Mr Yap agreed) that Ms Picos’ attitude towards her co-workers could not be overlooked, and as a consequence, the meeting on 19 August 2013 resulted in Dr Tan asking Ms Picos to explain why she was behaving towards her colleagues in the way that she had. Ms Picos replied that she had been under stress with her workload, but that she was fine now. Dr Tan told Ms Picos that she was not a good cultural fit, and that it was his wish to terminate her employment during her probationary period. Ms Picos said that she wanted to continue in her role, that she could adapt to it, and that she could change her behaviour. Ms Picos pleaded to be given another chance. Dr Tan told Ms Picos that if her behaviour did not improve, she would not pass out of her probationary period, and he would seek to terminate her employment. Consequently, Ms Picos was told that she was effectively on notice, and that the situation would be reviewed in two weeks. See Dr Tan’s Affidavit at [145]-[157]; Ms Sindermann’s Affidavit at [60].
At approximately 8.55am on 20 August 2013 Ms Picos telephoned Dr Tan and said that she was going home. Dr Tan asked to meet with her, and Ms Picos agreed. Dr Tan and Ms Picos met at a café near HealthEngine’s offices. The Court accepts that at the meeting between Dr Tan and Ms Picos, Dr Tan asked Ms Picos why she was going home, and Ms Picos replied that she was feeling frustrated with the work she was doing, found it beneath her and boring and felt she should not have to do it. Ms Picos also complained that her colleagues were unprofessional because they did not have university degrees, and described them a lazy and as not having much pride in their work. Significantly, Ms Picos did not tell Dr Tan that she was ill, and did not mention any medical certificate or mention an intention to claim workers’ compensation. See Dr Tan’s Affidavit at [162]-[166].
Dr Tan gave evidence, and the Court accepts that evidence, that at this stage he realised that Ms Picos’ attitude and conduct was not going to change: and that despite previous counselling, and despite her saying the previous afternoon that she could change, that she was persisting with the same remarks and attitudes towards her colleagues as she had previously exhibited. Consequently, Dr Tan decided to terminate Ms Picos’ employment forthwith because of those concerns about Ms Picos’ conduct, and attitude towards her fellow employees. Dr Tan told Ms Picos that her ongoing involvement with HealthEngine was not going to work. The Court accepts that it was agreed that Ms Picos would be allowed to resign with four weeks’ pay in lieu of notice. See Dr Tan’s Affidavit at [171]-[174]. Immediately afterwards, Dr Tan, who looked “distraught” told Ms Sindermann “she’s left” when giving Ms Sindermann the keys and security pass Ms Picos had returned: Ms Sindermann’s Affidavit at [64]. Dr Tan subsequently sent an email to HealthEngine employees advising that Ms Picos had “… resigned … effective immediately”: Dr Tan’s Affidavit at [175] and Annexure MLT-32.
Subsequently, on 21 August 2013 Ms Picos demanded an additional payment in excess of $100,000 to resolve her departure. As a consequence of Ms Picos reneging on the agreement that she resign with four weeks’ pay in lieu of notice, Dr Tan caused a letter of termination to be sent to Ms Picos on 22 August 2013 bringing her contract with HealthEngine to an end with one week’s salary in lieu of notice in accordance with the terms of her employment contract. See Dr Tan’s Affidavit at [177]-[179] and Annexures MLT-34 and MLT-35.
The Court does not accept that HealthEngine had any issue at all with the possibility that at any stage during her employment Ms Picos might take some kind of personal or sick leave for genuine reasons. In that regard, the evidence demonstrates that HealthEngine was prepared to grant leave and make accommodation for employees with personal issues that needed to be dealt with. Examples include:
a)recognising Ms Sindermann’s family responsibilities by permitting her to have her daughter at work;
b)allowing a newly hired employee, Mr Mooney, to go on bereavement leave: Mr Howard’s Affidavit at [26]-[39]; and
c)allowing another employee, Ms Lawrence, to work remotely from the United States for three to four weeks because of the illness of a family member.
There is nothing to indicate that HealthEngine’s termination of Ms Picos’ employment on 22 August 2013 was effected for any different a reason than that arrived at on 20 August 2013, that is that it was caused by Ms Picos’ conduct and behaviour towards her colleagues. In light of the evidence in these proceedings, that was a view that HealthEngine, through Dr Tan, was manifestly justified in arriving at. And, even if that view was not justified, it does not alter the fact that it was Ms Picos’ conduct and behaviour that were on the evidence the real and only reason for the termination of her employment.
The evidence makes it plain that HealthEngine was prepared to accommodate its employees’ personal issues where that was necessary. In Ms Picos’ case, the evidence does not indicate that she made HealthEngine aware that she was ill or injured on 19 or 20 August 2013. But, in any event, the evidence led on behalf of HealthEngine clearly establishes that the termination of Ms Picos’ employment was not on the basis of any illness or injury that HealthEngine was aware of. The reason for Ms Picos’ dismissal was because of her conduct and behaviour towards her fellow employees.
If indeed Ms Picos was ill on 20 or 22 August 2013, that was not a matter of which HealthEngine or Dr Tan was aware, or was made aware, by Ms Picos. In those circumstances, the respondents could not have contravened s.352 of the FW Act because they did not have the requisite knowledge that Ms Picos was suffering from an illness or injury, if indeed she was: Sperandio v Lynch [2006] FCA 1648; (2006) 160 IR 360 at [91] per Jessup J.
In addition to the lack of knowledge of the respondents of illness on the part of Ms Picos on those days, the evidence does not establish to a relevant level of satisfaction for the Court, that Ms Picos was in fact ill on 20 or 22 August 2013. On 16 August 2013 Ms Picos had sent Dr Tan an email indicating that she would be back to work on the following Monday morning, 19 August 2013. On 19 August 2013 Ms Picos attended work for the whole day without giving any indication that she was ill, and in fact told Dr Tan she was “fine now”. Ms Picos attended on Tuesday, 20 August 2013, and did not tell anyone that she was ill: Dr Tan’s Affidavit at [145] and [162]. There is in evidence a medical certificate (in the form of a “Workers’ Compensation FIRST Medical Certificate”) dated 15 August 2013 from a medical practitioner stating that Ms Picos is “totally unfit” for a period of two weeks from 15 August 2013: Ms Picos’ Hearing Affidavit, Annexure B. Ms Picos’ description of how the illness or injury occurred is said to be “Unreasonable workload. Unreasonable expectations.” and there is a medical assessment of “stress related symptoms”. The Court is not obliged to accept the medical certificate where it is controverted by the facts, as it is here. On 16 August 2013 (the day after Ms Picos had seen the doctor) Ms Picos told Dr Tan she would be back to work on Monday, 19 August 2013, and she was. She gave no indication that she was ill, and said she was “fine now”. She returned to work again on the morning on 20 August 2013, and again gave no indication that she was ill. Even when she was leaving work on 20 August 2013, she gave no indication that she was ill, or that there was a medical certificate upon which she intended to rely. Furthermore, at a stage at which it might be expected that she would raise any question of illness or injury, namely during a discussion with Dr Tan about the future of her employment at HealthEngine, there was again no indication that she was ill or injured or that she had a current workers’ compensation medical certificate. Finally, the medical practitioner concerned was not called by Ms Picos in circumstances where it was plain that the defence of the respondents challenged the veracity of Ms Picos’ illness.
In all of the above circumstances, the Court considers that the better view, on the evidence, is that on 20 and 22 August 2013 Ms Picos was not ill or injured for the purposes of s.352 of the FW Act.
The medical certificate was not provided to the respondents until 2 October 2013, almost seven weeks after the date of the medical certificate, being 15 August 2013. It was not until 23 August 2013 that Ms Picos indicated that she had a medical certificate covering her until 29 August 2013, but at that stage she did not say when the medical certificate had been obtained, and did not provide a copy to HealthEngine. As indicated above, when it was plain that termination of employment was likely, Ms Picos did not produce or otherwise make reference to the medical certificate. In the circumstances, the failure to, and delay in, providing the medical certificate before the dismissal was unreasonable, and the further delay in providing the medical certificate after the dismissal, was unreasonable, and for those reasons the Court also considers that Ms Picos was not dismissed in contravention of s.352 of the FW Act.
For all of the above reasons Claim 1 is not made out.
Claims 2-4 – adverse action
Ms Picos alleges that the respondents took adverse action against her:
a)because she had workplace rights, including:
i)to workplace safety;
ii)to reasonable and legal working hours;
iii)to payment for work;
iv)of trust and confidence; and
v)to safe work systems; and
b)to prevent the exercise of workplace rights and because Ms Picos has, did, did not and proposed to exercise, workplace rights, in contravention of s.340 of the FW Act.
The detail of each of the claims, being Claims 2, 3, 3B and 4 are set out and dealt with further below.
There is no dispute that Ms Picos has workplace rights relating to safety under the Occupational Safety and Health Act 1984 (WA) (“OS & H Act”), to reasonable and legal working hours and to payment for work: Defence at [12(a)].
The Court notes that there is no workplace right to trust and confidence: Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 88 ALJR 814; (2014) 244 IR 425; (2014) 312 ALR 356 (“Barker”).
Section 340(1) of the FW Act deals with protection against adverse action and provides as follows:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplaceright; or
(b) to prevent the exercise of a workplace right by the other person.
Section 341(1) of the FW Act defines “workplace right” as follows:
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee--in relation to his or her employment.
Under s.341(2) of the FW Act a process or proceedings under a workplace law or workplace instrument includes:
(a) a conference conducted or hearing held by FWA;
(b) court proceedings under a workplace law or workplace instrument;
…
(k) any other process or proceedings under a workplace law or workplace instrument.
Under s.342(1) of the FW Act 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 342(2) of the FW Act provides that adverse action includes threatening to take the action under s.342(1) of the FW Act, while s.342(3) of the FW Act provides that adverse action does not include action that is authorised by or under the FW Act or any other law of the Commonwealth.
Section 360 of the FW Act provides as follows:
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
In terms, s.360 of the FW Act recognises that a person takes action for a particular reason if the reasons for the action include that reason. In National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; (2013) 234 IR 139 the Federal Court observed at [20] per Gray J that:
… Further, s 360 of the Fair Work Act recognises expressly that action may be taken for more than one reason. What the party seeking to rebut the presumption must do is establish on the balance of probabilities that the alleged improper reason was not a reason for the taking of action. Generally (although as a matter of logic, not necessarily) the evidence as to the state of mind of the decision-maker or decision-makers will include evidence as to what are claimed to be the actual reasons for the decision. Even if the reasons advanced as actual reasons for the decision are accepted as such, the absence of evidence that there were no additional reasons, or that the actual reasons did not include the alleged proscribed reasons, will usually result in a failure to rebut the presumption.
The phrase “takes action for a particular reason if the reasons for the action include that reason” has been interpreted to mean that the reason must be an operative or immediate reason for the action. It need not be the sole or dominant reason: Maritime Union of Australia v CSL Australia Pty Ltd [2002] FCA 513; (2002) 113 IR 326 at [54]-[55] per Branson J; Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor [2012] HCA 32; (2012) 248 CLR 500 at [103] per Gummow and Hayne JJ and [140] per Heydon J (“Barclay”).
Section 361(1) of the FW Act 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.
In Barclay it was observed at [44]-[45] per French CJ and Crennan J that:
… The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. 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. 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 given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct 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.
Whether any adverse action has been taken because of a proscribed reason is a question of fact: Barclay at [41] per French CJ and Crennan J.
In United Firefighters Union of Australia v Easy [2013] FCA 763 (“United Firefighters”) the Federal Court said at [41] per Ross J:
The practical effect of s361 is that in most cases an explanation of the real reason for the adverse action, consistent with the absence of a proscribed reason, is also necessary to rebut the presumption. But it is important to note that s 361 does not obviate the need for the applicants to prove the existence of the objective facts which are said to provide the basis of the respondent’s conduct. The onus does not shift from the applicant to the respondent until the applicant establishes the elements of each of the general protections upon which it seeks to rely. It is not enough for the applicants to merely make assertions regarding these elements, they must be determined objectively.
In relation to Ms Picos’ adverse action claim Ms Picos must prove the existence of facts which are said to be a basis for the respondents’ conduct: Rojas v Esselte Australia Pty Ltd (No. 2) [2008] FCA 1585; (2008) 177 IR 306 at [46]-[50] per Moore J. Once Ms Picos proves those facts and the fact that adverse action was taken, s.361 of the FW Act operates to presume that the action was taken for the reasons asserted by Ms Picos. The onus is then transferred to the respondents to prove the contrary. The onus thus transferred (or reversed) is difficult to then discharge unless the decision-maker is called to give evidence of the decision-making process: Barclay at [45] per French CJ and Crennan J. Otherwise, Ms Picos bears the onus of proof, to the civil standard, on all other aspects of his case: Evidence Act 1995 (Cth), s.140.
Claim 2
Ms Picos claims that HealthEngine and Dr Tan took adverse action against her by dismissing her on 20 August 2013.
Ms Picos’ claim that adverse action was taken against her by reason of the exercise of a workplace right by dismissing her from employment must be dismissed in circumstances where:
a)Ms Picos has not led any evidence which would indicate that the asserted workplace rights were factors in her dismissal;
b)the respondents have denied that they dismissed Ms Picos because of any alleged workplace right: Dr Tan’s Affidavit at [185]; Mr Yap’s Affidavit at [53]-[55]; and
c)the real reason for Ms Picos’ dismissal, and the only reason on the evidence, was her conduct and behaviour in respect of her fellow employees, as set out above: see [34] and [37]-[38] above.
Claims 3 and 3B
It is convenient to deal with Claims 3 and 3B together. (There is no Claim 3A).
Ms Picos alleges that during June, July and August 2013, the respondents took adverse action against her, including injuring her in her employment from June 2013 to August 2013 by:
a)altering her responsibilities and providing a much lower level of responsibility;
b)grossly extending working hours;
c)having her work on Fridays, Saturdays and Sundays;
d)failing to offer her the option of fulltime paid employment;
e)having her be responsible to Catherine Sindermann, Practice Support Manager, and not to Dr Tan, the Chief Executive Officer;
f)having Ms Picos liaise with Natalie Bosnjak, Bookkeeper and Registered BAS Agent, and not an external accountant;
g)having Ms Picos reconcile unethical financial transactions with Ms Bosnjak;
h)having Ms Picos perform the role of Ms Lawrence, Executive Assistant, while Ms Lawrence temporarily moved to Los Angeles and acted as a virtual assistant;
i)having Jake Howard, a Sales Advisor, hire Colm Mooney, without reference checks and without reference to Ms Picos who was initially responsible for managing human resources;
j)having Mr Howard terminate Mr Mooney after two days of work for taking extended bereavement leave;
k)requiring Ms Picos to rectify 900 erroneous invoices sent out by Ms Sindermann, including on a Saturday and a Sunday;
l)failing to pay Ms Picos any performance incentive;
m)failing to offer and or provide Ms Picos with equity under the Employee Share Plan;
n)advising that HealthEngine would not be profitable until 2015;
o)failing to offer Ms Picos flexible remuneration;
p)breaching mutual trust and confidence;
q)having Ms Picos draft several, individual, contracts or agreements, without precedent, including during the 2013 end of financial year;
r)failing to manage the illness of the bookkeeper Ms Bosnjak during the 2013 end of financial year;
s)representing that Ms Picos may have to relocate to Sydney or Melbourne to work for HealthEngine; and
t)physically injuring Ms Picos.
The phrase “injures the employee in his or her employment” in Item 1 of s.342(1) of the FW Act extends, for the purposes of the definition of “adverse action” there set out, to any injury of a compensable kind, a legal injury, or an adverse effect on an existing legal right, but must be an injury to the employee in the employee’s employment: Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402; (2012) 208 FCR 178; (2012) 228 IR 399 at [84] per Gordon J (“Klein”); Corke Cox v Crocker Builders Pty Ltd [2012] FMCA 677 at [123] per Burnett FM.
The phrase “alters the position of the employee to the employee’s prejudice” in Item 1 of s.342(1) of the FW Act constitutes a broad additional category of adverse action which covers any adverse effect upon, or deterioration in, the advantages enjoyed by the employee prior to the conduct in question. A prejudicial alteration must be real and substantial, rather than merely possible or hypothetical, but may occur even though there is no loss or infringement of a legal right as such: Klein at [84] per Gordon J.
It is necessary to deal in turn with each of the alleged types of injury and prejudicial alterations.
Injury 1 – Altering responsibilities
Ms Picos alleges that her responsibilities were altered to provide a much lower level of responsibility, and that this constituted an injury to her in her employment or a prejudicial alteration of her position as an employee.
The job description for the position of HealthEngine Finance and Operations Manager to which Ms Picos responded was as follows:
HealthEngine
Finance & Operations Manager
·Australia’s #1 Online Health Directory and Health Appointment Marketplace
·Start ASAP, Part Time (min 3 days) considered for the right candidate
·Family Friendly, Flexible Workplace
The Accounting and Finance Function
·All supplier invoices are dealt with in a timely and professional manner
·All employee payroll, superannuation and related transactions
·Liaise with external accountant to ensure all filings with the ATO and state revenue are kept up to date
·Work with the sales teams to ensure customer invoices and receivables are well managed.
·Ensuring the most effective banking structure is in place.
Business / Property Management
·Managing suppliers and contractors for e.g. security, cleaners, external IT support, insurance providers, fire hazard protection
·Contract administration for all of the above and commercial property
·OH&S review of the property
Human resources
·Implementing an on boarding process for a large number of new hires
·Ensuring all staff documentation is in place, including signed contracts, tax documentation.
·Manage the visa application process for any 457 visas and ensure appropriate insurances are in place.
·Ensuring position descriptions for the 15 staff are updated
The Candidate:
A strong candidate is sought with a broad business background with extensive bookkeeping experience. Exposure to HR and OH&S related matters would be beneficial:
Most importantly you want to roll your sleeves up and get hands on with hunger and desire to solve problems, drive growth and overcome obstacles to implement systems and processes that support this fast growing company through an important stage of its lifecycle. This is a real opportunity to build great systems from the ground up which you will have full responsibility for.
Technical skills
·Xero accounting
·Payroll
·Excel
·Knowledge of small business HR requirements and experience within a business that manages performance
·Excellent drive and motivation evidenced by recent results in your role
About HealthEngine:
HealthEngine is Australia’s #1 Health Directory and Health Appointment Marketplace. This exciting company is the leader in their field and poised to change how Australians find and book health appointments. If you ever wanted to get in on the ground floor with a company like Wotif, RealEstate.com.au, SEEK or Carsales, this is the opportunity for you.
HealthEngine has strategically partnered with Telstra and Seven West Media, the leading communications and media providers in Australia. Together with HealthEngine, they’re looking to make a difference in Australian health care.
The role reports to the CEO based in Perth, as well as the CFO in Sydney, and has broad responsibility across a number of areas.
Direct enquiries about the position to Dr Marcus Tan (CEO/Medical Director) on … [mobile number].
In the Employment Contract entered into by Ms Picos with HealthEngine the description of the “Position” contained the following paragraph:
You are employed in the position of HealthEngine Finance and Operations Manager effective 27th June 2013. You may be required to undertake other duties and your reporting arrangements may change from time to time. In some circumstances you may be required to undertake another position. Unless otherwise notified, the terms and conditions of this agreement will continue to apply.
Clause 5 – responsibilities of the Employment Contract was as follows:
You will be expected to perform such duties and exercise such powers, consistent with your position, or may be assigned from time to time, in relation to the conduct and management of the affairs of the Company.
The company may from time to time change or vary your position, title, reporting relationship and duties and responsibilities provided that any material change is made with your prior consent. Subject to section 5, the Company may transfer you to another or other positions within the company on the same terms and conditions as are contained in this Agreement.
The company agrees in all their dealings to respect your integrity and to do all things reasonably necessary to assist you in the furtherance of your career.
The duties and responsibilities which Ms Picos was required to carry out were those duties and responsibilities which were set out in the employment advertisement to which she responded and in the Employment Contract which she signed. There is no question that the duties and responsibilities described included accounting and finance functions including dealing with supplier invoices, all employee payroll, superannuation and related transactions and that “extensive bookkeeping experience” was sought. The Court has no reason to doubt that the bookkeeping aspect of the employment was stressed again at interview as described by HealthEngine’s witnesses. Moreover, it is plain that one of the reasons that the position of Finance and Operations Manager was created, and that Ms Picos was employed, was to allow the reallocation of accounting functions to the position of Finance and Operations Manager and away from Ms Sindermann: see Dr Tan’s Affidavit at [12]-[14]; Ms Sindermann’s Affidavit at [23]-[24] and [30]-[32] and Annexures CMS6 and CMS7 and Transcript at pages 286-288; Mr Yap’s Affidavit at [21].
The planned reallocation of accounting functions to Ms Picos’ position was put into effect once Ms Picos had commenced employment: see Ms Sindermann’s Affidavit at Annexure CMS6.
The reallocation of accounting tasks set out in Annexure CMS6 to Ms Sindermann’s Affidavit is not an alteration of responsibilities, or a lower level or responsibility, for Ms Picos but rather the putting into place of the duties and responsibilities that she undertook pursuant to the Employment Contract. Otherwise the evidence does not sustain the alleged alteration of responsibilities and imposition of low level duties.
It follows that the claim of injury in employment for prejudicial alteration to employment is not made out insofar as it relates to the alteration of responsibilities.
Injury 2 – Grossly extending working hours
Ms Picos asserts that the respondents extended her working hours “grossly”, and in so doing injured her in her employment or prejudicially altered her position.
Although Ms Picos signed an Employment Contract which, at least on its face, said that it was permanent fulltime, the evidence indicates that it was in fact for four days per week in accordance with the Appendix of Summary of Conditions attached to the Employment Contract. There is no dispute that Ms Picos and Dr Tan agreed on or about 26 June 2013 that Ms Picos’ four days per week would generally be Monday to Thursday. Notwithstanding that the employment was four days per week the hours of work clause (clause 7) provided as follows:
The Company operates with flexible hours, and core business hours are between 6am to 6pm Monday to Friday (AWDST). You will be expected to work a thirty seven and a half hour week, and reasonable additional hours as necessary from time to time to fulfil your duties. No overtime or penalties will be paid.
The respondents deny that they required Ms Picos to work in excess of 60 hours per week at any time during her employment, and do not admit that she worked in excess of 60 hours per week during her employment, and point to the terms of the Employment Contract.
The Court accepts that at no time prior to meeting with Dr Tan on 19 August 2013 did Ms Picos complain to the respondents about her workload or indicate to the respondents that she had been working long hours: Dr Tan’s Affidavit at [66]. At hearing Ms Picos was cross-examined on this issue, and despite claiming to have been “directed” to work excessive hours, both on her days off and on weekends, she was not able to give evidence of an actual direction or a request for her to work on a day off, weekend or while she was away ill: Transcript at pages 128-129. Further, Ms Picos did not at any stage inform the respondents of the hours that she was working: Dr Tan’s Affidavit at [61]-[64]. She did not request time off in lieu, as she was entitled to do under HealthEngine’s time off in lieu policy: Dr Tan’s Affidavit at [90]-[93]. Ms Picos, who had responsibility for human resources policies at HealthEngine, might reasonably have been expected to know about the time off in lieu policy, and also the legislative requirements for recording hours of work. Ms Picos did not know about the former, and no request was made during the course of the proceedings for the production of time and wages records for Ms Picos.
There is simply no evidence that the respondents were responsible for extending Ms Picos’ working hours, either by way of direction or otherwise. To the extent that Ms Picos worked outside of her Monday to Thursday contracted hours, she appears to have done so voluntarily. Therefore, to the extent that she asserts that any injury has been suffered (or that her position has been altered to her prejudice) such injury or alteration arises from her own actions rather than those of the respondents. In any event, it is simply not possible to objectively determine what hours Ms Picos worked in the absence of properly maintained time and wages records, the maintenance of which would have been part of her responsibilities in her capacity as the person responsible for “Ensuring all staff documentation is in place” under the human resources function and for all “employee payroll … transactions” under the accounting and finance function.
For the above reasons, none of the claims made in respect of claim 6 have been made out. Indeed, the entirety of Claim 6 is misconceived. There was no element of intention to coerce in anything that was done by the respondents in relation to Ms Picos’ employment. Ms Picos appears, quite often, to confuse the necessity to carry out the duties and responsibilities of her position as Finance and Operations Manager with what she alleges was an intention to coerce with respect to workplace rights, which the Court has found not to be the case.
For all of the above reasons, Claim 6 is not made out.
Claim 7
Section 345 of the FW Act provides as follows:
(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
In the Further Amended Statement of Claim Ms Picos alleges that HealthEngine and Dr Tan knowingly and recklessly made false and misleading representations about her workplace rights, including:
a)representing that she had to work while ill on 1 August 2013;
b)representing that she had to work on days off on 2 August 2013;
c)representing that she work on Saturday, 3 August 2013 and Sunday, 4 August 2013 and that it would “be great” to know the revenue for July on Monday, 5 August 2013;
d)representing that HealthEngine operated with a “start-up culture” and not a safe work environment;
e)representing that it was appropriate for Ms Bosnjak, bookkeeper, to work on the 2013 end of financial year in place of an external accountant;
f)representing that it was legitimate for Ms Picos to be responsible for an end of financial year (2013) having commenced employment on 27 June 2013 (3 days prior);
g)representing that it was perfectly safe and acceptable to relocate the office of HealthEngine on 1 July 2013, during the end of financial year accounting, that is, that Ms Picos was not entitled to occupational health and safety;
h)representing that Dr Tan would put in place “alternative arrangements” for Ms Picos on 15 August 2013 and not commence a workers’ compensation process; and
i)other representations as set out in other sections of the application,
all in contravention of s.345 of the FW Act.
The Court accepts that the factual context for the events of Thursday, 1 August 2013 to Sunday, 4 August 2013 is that set out in Dr Tan’s Affidavit, namely that:
a)Ms Picos did not advise him that she was ill on 1 August 2013;
b)he was not aware that Ms Picos worked from home on 1 or 2 August 2013, if she did, and nor did he represent to her that she should do so;
c)on Saturday, 3 August 2013 Ms Picos sent Dr Tan a text message at 12.48pm saying that she would be in the office “for a few hours this afternoon fixing invoicing”. Dr Tan did respond to that text message saying that it “would be great to know exactly what revenue we received for July on Monday. Will give us an idea of how we are tracking”, to which Ms Picos responded with a text saying “Yes :)”: see Annexure MLT-8 to Dr Tan’s Affidavit;
d)he did not request or direct Ms Picos to work on Saturday, 3 August 2013, but the office logs indicate that she was in the HealthEngine office for around five and a quarter hours on that day, and on Sunday, 4 August 2013 for around 42 minutes: Annexure MLT-9 to Dr Tan’s Affidavit; and
e)he denies, knowingly or recklessly, or at all, making false or misleading representations about Ms Picos’ workplace rights at this time.
In the Court’s view the above facts do not disclose any false or misleading representation about Ms Picos’ workplace rights by the respondents.
In relation to the representation that HealthEngine operated with a start-up culture, whether or not that representation is correct, it does not constitute a knowingly or recklessly false or misleading representation that HealthEngine did not have a safe work environment: there is simply no causal connection between the two.
In relation to any representation that it was appropriate for Ms Bosnjak, the external Bookkeeper to work on the 2013 end of financial year in place of an external Accountant, it is not apparent what workplace right might have been infringed, or, if it was, what damage or injury might have been done to Ms Picos. In any event, in the Court’s view there was nothing inappropriate about an external Bookkeeper working on the end of financial year accounts, whether in the place of an external Accountant or not, particularly in circumstances where the CFO of HealthEngine was an external Accountant in any event: see [86]-[88] above.
On the evidence, there was no representation, knowing or reckless, false or misleading, make to Ms Picos that she was not entitled to workplace rights to occupational health and safety in relation to the office move on 1 July 2013. This allegation is simply not made out on the evidence.
In relation to Dr Tan putting in place alternative arrangements for Ms Picos on 15 August 2013 that was not a representation, and if it was, it was not knowingly or recklessly false or misleading. Rather, it was a genuine enquiry as to what arrangements might have to be put in place in the workplace if Ms Picos was to be away from the workplace on the basis of illness or injury after 15 August 2013. Further, as Dr Tan has said in evidence, his enquiry with respect to alternative arrangements had nothing to do with any workplace right to workers’ compensation: the two were simply unrelated, and this allegation is again not made out on the evidence.
As to the allegation of knowing or recklessly making false or misleading representations in relation to other representations set out in the application, that is simply too vague and general for the Court to have to deal with.
In Ms Picos’ Outline of Contentions of Fact and Law at [149] she asserts that:
Each respondent knowingly or recklessly made false and misleading representations about:
a.the Applicant’s right to personal (sick) leave
b.the Applicant’s right to reasonable and legal working hours
c.the Applicant’s right to workplace safety
d.the Applicant’s right to safe work systems
e.the Applicant’s right to payment for work
f.the Applicant’s right to workers compensation
g.the Applicant’s right to resolve the workers compensation dispute
h.the Applicant’s right to opportunities
i.the Applicant’s right to not have her position altered.
The evidence in support of paragraph 149 of Ms Picos’ Outline of Contentions of Fact and Law set out at paragraphs [130]-[148] of Ms Picos’ Outline of Contentions of Fact and Law is as follows:
130.“I said it is appropriate she [the Applicant] do the accounts tasks set by Ms Sindermann”: Affidavit of Adam Yap at paragraph 28
131.“I did not know how much work would be involved as part of the role so I described the role as “Part Time (min 3 days)””: Affidavit of Marcus Tan at paragraph 17
132.The SEEK advertisement, pages 1 and 2
133.“Ms Picos commenced employment at HealthEngine’s offices on Thursday, 27 June 2013”: Affidavit of Marcus Tan at paragraph 37
134.“When Ms Picos commenced employment, HealthEngine’s offices were located in Leederville. From 1 July 2013, HealthEngine relocated to the West Australian offices at 50 Hasler Road, Osborne Park.”: Affidavit of Marcus Tan at paragraph 42.
135.“I do not know whether Ms Picos did work the hours she now claims. I know she worked on some weekends because she sent me emails. However I didn’t ask her to work on those days nor did I know how many hours she was working.”: Affidavit of Marcus Tan at paragraph 63
136.“If Ms Picos was working the long hours she claims I wasn’t aware of it.”: Affidavit of Marcus Tan at paragraph 67
137.Affidavit of Marcus Tan at paragraph 70 regarding the Applicant working on Saturday, 3 August 2013 and the Second Respondent wanting to know the revenue for July 2013.
138.Affidavit of Marcus Tan at paragraphs 78 and 79 regarding Second Respondent stating “It’s way too confusing even for me”.
139.“…in the early hours of 20 August 2013, I issued a written email request to all managers and relevant staff at HealthEngine to provide Ms Picos with more support for her role.” Affidavit of Marcus Tan at paragraph 89
140.“Ms Picos was not entitled to be paid for any overtime worked.”: Affidavit of Marcus Tan at paragraph 90
141.“If Ms Picos had raised with me that she was working overtime and requested payment, I would have offered her TOIL.”: Affidavit of Marcus Tan at paragraph 93
142.“Issues regarding her performance included:… (d) Incorrect and tardy invoicing leading to lost sales;”: Affidavit of Marcus Tan at paragraph 103
143.“My question to you was whether you felt you were up to working in a startup culture. I wouldn’t blame you if you didn’t. It can be very unsettling for people to not have some of the structure they are used to…” text message from Second Respondent to Applicant on 10 August 2013 at 8:03 PM (not in dispute)
144.“At 2.27am on Thursday 15 August 2013, Ms Picos sent to me a text message stating “Marcus, I am ill. I will not be in the office today. I intend to claim compensation. Connie”. 139. I responded with a text message to her at 9.12am that day stating “Connie sorry to hear you aren’t well. I hope you are OK. Do let me know if I can assist in any way. Is there a good time to have a chat today? Marcus”: Affidavit of Marcus Tan at paragraph 138, 139
145.“I then telephoned Ms Picos at 5.18pm on Thursday 15 August 2013. She did not answer her telephone so I left her a voicemail asking her to contact me. I did not receive any response to my voicemail. 141. At 10.35 pm on Thursday 15 August 2013, I sent an email to Ms Picos to let her know that I had sent her a text message and left a voicemail message to contact me…”: Affidavit of Marcus Tan at paragraph 140, 141
146.On Tuesday, 20 August 2013 at approximately 8.55 AM the Applicant telephoned the Second Respondent and advised that the Applicant was leaving work. The Second Respondent requested that the Applicant meet the Second Respondent at a nearby coffee shop. The Applicant did meet the Second Respondent at the nearby coffee shop in Osborne Park. (Not in dispute)
147.Dismissal on 20 August 2013.
148.Letter of terminated dated 22 August 2013.
Ms Picos does not explain how the above evidence relates to either:
a)the Further Amended Statement of Claim; or
b)paragraph 149 of Ms Picos’ Outline of Contentions of Fact and Law.
The evidence in support of the Contentions is just that, evidence, and Ms Picos does not identify what, if any, representations ought to be drawn from that particular evidence, and in particular, does not indicate how each of the 10 false and misleading representations alleged at [149] of Ms Picos’ Outline of Contentions of Fact and Law relate to the evidence extracted at [130] to [148] of Ms Picos’ Outline of Contentions of Fact and Law. Furthermore, it is not explained how it is said that the alleged false and misleading representations are made knowingly or recklessly, or at all. It is, as the respondents assert, impossible to discern the content of these alleged representations, how they are said to be false or misleading, and how it is said that they were made knowingly or recklessly. As a consequence, the Court has only been able to deal with those matters asserted in the Further Amended Statement of Claim, as set out and dealt with above: see [214] above.
In the circumstances, and for all of the above reasons, Claim 7 is not made out.
Claim 8
Ms Picos alleges that in contravention of s.355 of the FW Act the respondents took action against her, being paying Ms Sindermann a performance bonus in August 2013 within the intent to coerce Ms Sindermann to allocate duties and responsibilities, including data entry, customer service and very low level work to Ms Picos.
The evidence discloses the basis on which Ms Sindermann became entitled to a performance bonus, and the basis on which it is calculated: see Dr Tan’s Affidavit at [180]-[181] and Ms Sindermann’s Affidavit at [7]-[9]. There is nothing in the means or manner of payment of the bonus that could amount to intent to coerce another employee, nor is there any evidence that the respondents agreed to have paid Ms Sindermann the bonus with intent to have Ms Sindermann allocate duties or responsibilities to Ms Picos. The circumstances in which Ms Sindermann came to allocate accounting functions to Ms Picos have been otherwise described above: see [72]-[74] above, and are accounted for by the fact that it was always the intention of the respondents to transfer these duties to the Finance and Operations Manager position which Ms Picos had taken up.
In the circumstances, the allegation in Claim 8 is simply not made out.
Further claims
At hearing: see Transcript at page 9, the Amended Statement of Claim was further amended so as to seek a declaration that HealthEngine breached the National Employment Standards in relation to ss.62 and 97 of the FW Act.
Section 62 of the FW Act provides as follows:
Maximum weekly hours of work
(1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full-time employee--38 hours; or
(b) for an employee who is not a full-time employee--the lesser of:
(i) 38 hours; and
(ii) the employee's ordinary hours of work in a week.
Employee may refuse to work unreasonable additional hours
(2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.
Determining whether additional hours are reasonable
(3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:
(a) any risk to employee health and safety from working the additional hours;
(b) the employee's personal circumstances, including family responsibilities;
(c) the needs of the workplace or enterprise in which the employee is employed;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e) any notice given by the employer of any request or requirement to work the additional hours;
(f) any notice given by the employee of his or her intention to refuse to work the additional hours;
(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h) the nature of the employee's role, and the employee's level of responsibility;
(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
(j) any other relevant matter.
Authorised leave or absence treated as hours worked
(4) For the purposes of subsection (1), the hours an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised:
(a) by the employee's employer; or
(b) by or under a term or condition of the employee's employment; or
(c) by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law.
For reasons set out elsewhere in these Reasons for Judgment: see [76]-[82] above, Ms Picos was not requested or required to work more than her maximum weekly hours of work, and in any event, it is not possible to discern how many hours of work in any particular week Ms Picos undertook, because there is no evidence as to the number of hours that she worked before the Court. The claim for a declaration for breach of s.62 of the FW Act must therefore fail.
Section 97 of the FW Act provides as follows:
An employee may take paid personal/carer's leave if the leave is taken:
(a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or
(b) to provide care or support to a member of the employee's immediate family, or a member of the employee's household, who requires care or support because of:
(i) a personal illness, or personal injury, affecting the member; or
(ii) an unexpected emergency affecting the member.
There is no evidence that Ms Picos was denied her workplace right to take personal/carer’s leave by reason of illness or injury at any time. In respect of 1, 2, 3 and 4 August 2013 those matters are dealt with above as are 19 and 20 August 2013.
In the circumstances, the allegation that there has been a breach of s.97 of the FW Act is not made out.
Relief claimed
Ms Picos claims the following relief:
a)declarations that:
i)HealthEngine contravened s.352 of the FW Act;
ii)HealthEngine and Dr Tan contravened s.340 of the FW Act;
iii)HealthEngine contravened s.344 of the FW Act;
iv)HealthEngine and Dr Tan contravened s.343 of the FW Act;
v)HealthEngine and Dr Tan contravened s.355 of the FW Act; and
vi)HealthEngine breached the National Employment Standards in relation to ss.62 and 97 of the FW Act;
b)damages of $127,514,421; and
c)pecuniary penalties to be imposed on each of HealthEngine and Dr Tan under s.546(1) of the FW Act for each contravention, to the maximum amount, and an order that any pecuniary penalties imposed be paid to a particular person (being Ms Picos) pursuant to s.546(3) of the FW Act, with interest up to judgment on any amounts awarded.
In view of the fact that all of the claims made by Ms Picos have failed, it follows that she is not entitled to any of the relief claimed.
Conclusions and orders
The Court has concluded that:
a)all of the claims made by Ms Picos in these proceedings have failed to be made out;
b)it follows that Ms Picos has no entitlement to any of the relief claimed.
There will therefore be an order dismissing the application.
I certify that the preceding two hundred and thirty seven (237) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 24 July 2015
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