Power v Robot Trading Company Pty Limited T/A Robot Building Supplies
[2013] FCCA 21
•16 April 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| POWER v ROBOT TRADING COMPANY PTY LIMITED T/A ROBOT BUILDING SUPPLIES | [2013] FCCA 21 |
| Catchwords: INDUSTRIAL LAW – Adverse action claim – applicant making complaint against supervisor – whether respondent’s response to complaint significant and/or appropriate – applicant not working after complaint and submitting workcover claim – employer seeking return to work of applicant – applicant resigning after Workcover claim approved – whether applicant constructively dismissed. |
| Legislation: Fair Work Act 2009, ss.341(1), 341(1)(c) Accident Compensation Act 1985 (Vic) |
| Cases cited: O'Meara v Stanley Works Pty Ltd - PR973462 [2006] AIRC 496 Ramos v Good Samaritan Industries [2013] FCA 30 |
| Applicant: | LOUISE POWER |
| Respondent: | ROBOT TRADING COMPANY PTY LTD T/A ROBOT BUILDING SUPPLIES |
| File Number: | MLG 265 of 2012 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 11 February 2013 |
| Date of Last Submission: | 18 February 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 16 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hone |
| Solicitors for the Applicant: | Hymans Solicitors |
| Counsel for the Respondent: | Mr McKenna |
| Solicitors for the Respondent: | Henty Lawyers |
ORDERS
The application filed 7 March 2012 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 265 of 2012
| LOUISE POWER |
Applicant
And
| ROBOT TRADING COMPANY PTY LTD (T/A ROBOT BUILDING SUPPLIES) |
Respondent
REASONS FOR JUDGMENT
Introductory
The applicant, Ms Louise Power, seeks by her claim filed 7 March 2012 remedies for breaches by the respondent of the Fair Work Act 2009 (“the FW Act”), provision proscribing dismissal in contravention of a general protection provision. The applicant asserts that she was effectively forced to resign by the respondent’s conduct as a result of her making complaints about the conduct of her supervisor, Mr Peter Stermole.
In the statement of claim filed 17 April 2012, these matters are set out in greater detail and the statement of claim also raises an alleged breach of the terms of the employment contract.
For the reasons that follow, I do not think that these claims are made out and the application will be dismissed.
Agreed or Uncontroversial Facts
The applicant, Ms Power, is a young single mother whose age is not anywhere disclosed in the materials as far as I can see. She worked for the respondent from September 2008 until she resigned on 17 November 2011. She worked as a Clerical Officer Grade 3 and was supervised by Mr Stermole between November 2010 until September 2011.
The applicant’s employment was governed by an Individual Transitional Employment Agreement (“ITEA”) executed on or about 21 September 2009, which relevantly provided by clause 18 – Workplace Behaviour:
“All employees have the right to work without harassment / sexual harassment / discrimination / workplace violence and workplace bullying. All employees must comply with the company Workplace Behaviour Policy as the company has zero tolerance for breaches of Workplace Behaviour. The company clearly expects employees to respect each other, extend common courtesies to each other in manner and in dress. Any breaches experienced by any employee they should advise the offender to cease their actions and continuation of such must be reported to their immediate supervisor / manager.”
While there are aspects of the applicant’s work that had been unsatisfactory in historical terms, a matter to which I shall return, the applicant has deposed that her relationship with Mr Stermole was supportive and respectful until about May 2011. On any view, things deteriorated to an extent that Ms Power became distressed enough to make a complaint to management, such complaint apparently made orally on 6 September 2011.
Exactly how this took place is not readily revealed by any of the materials filed in the proceeding. However, what is clear is that on 7 September 2011 the applicant and her father, who is clearly supportive of her, attended the Dromana site and met Mr Peter Bennett. Mr Bennett acts as a Human Resources Manager to the respondent and he essentially sat down with the applicant and her father and listened to her complaints about Mr Stermole.
Mr Bennett then, as he had indicated he would do, contacted Mr Stermole and thereafter returned to speak to the applicant and her father. It will be necessary to deal in slightly more detail with these meetings in due course.
The purport of what Mr Bennett put to the applicant was that Mr Stermole denied any misconduct and Mr Bennett also raised with the applicant and her father various counter-allegations made by Mr Stermole which the applicant denied or qualified.
It is clear that Ms Power was distressed by the course of events as she went-off on sick leave. She subsequently lodged a workcover claim. She never actually returned to the respondent after that date.
On 8 September 2011, Mr Bennett spoke to all the employees at the Dromana site including Mr Stermole. Mr Bennett tried to contact Ms Power by telephone and left a message for her which she may not have received, but in any event she did not respond.
On 9 September 2011, Mr Bennett telephoned Ms Power’s home and spoke to her father. I will return to this conversation later.
On 12 September 2011, Mr Bennett wrote a letter to Ms Power (exhibit PB1 to his affidavit being exhibit R3). That letter records that
Mr Bennett had sought to speak to her on 9 September 2011 “to provide advice of our revelations to date”. The letter went on to record the unsuccessful telephone call to the applicant’s mobile phone and the fact that there had been no reply to his calls. The letter concluded, “We would appreciate that you return our call to facilitate the process of investigation. It is important to us to continue our investigations to resolve this situation.”
In the meantime, Ms Power had been in contact with WorkSafe in the context of her WorkCover claim and she says, and I have no reason to doubt, that she understood that that body advised her not to talk to her employer. That advice was in hindsight most unfortunate.
On 16 September 2011, Ms Power wrote to Mr Bennett. That letter read relevantly:
“I hereby provide Robot Building Supplies with written documentation to ‘formally’ raise the OH&S issue of Bullying in the Workplace.
Details of the Bullying and Harassing behavior I had been consistently and solely subjected to by my Manager, Peter Stermole, were thoroughly reported to you in our informal meeting that took place on Wednesday 7th September.
I have not received any written response from Robot Building Supplies providing processes taken, suitable resolutions or final decisions regarding this serious matter.
Now a formal issue, you are required to provide written response to me within 10 working days from receipt of this letter.” (sic)
This reply was to an extent misconceived or disingenuous. The letter from Mr Bennett had plainly sought the applicant’s ongoing participation in an investigative process of precisely the sort that the applicant’s letter of 16 September 2011 purported to seek.
On 19 September 2011, Mr Bennett wrote again. It is appropriate to set out the relevant parts of this letter out in full:
“Further to our letter dated 12th September 2011, requesting continued communication with you to pursue due process which has been exacerbated through our telephone calls and previous letter not being responded to, the following initiatives have transpired:-
· All Dromana staff have now been interviewed to determine the extent of alleged bullying by their manager.
· Statements have been obtained from the administration staff in relation to the Manager’s people leadership style.
· The Manager has been interviewed on several occasions to determine what has occurred given workplace bullying information training and code of conduct briefing sessions were conducted recently.
· Admission from the Dromana Manager has been received that he in fact on one occasion did use colourful language (out of frustration) to female staff in an endeavour to have them cease their colourful language directed towards customers / clients.
· The Dromana Manager has been severely disciplined for using colourful language for that specific occasion.
· All Dromana staff have stated that they have not been bullied by their Manager and all of them have without coercion, stated that he is one of the best managers that has worked at the Branch.
· We have requested an independent external assessment be conducted (requested 13/9/11).
Peter and all the staff would like to see your return to the branch upon your convalescence. Peter has reaffirmed that you are a good sales person and values your contribution to the branch and team.
I would like the opportunity of convening a one on one interview, or whatever you feel comfortable as I do have a statement which is rather profound, given what was tabled at our meeting on 7th September 2011 and in conjunction with you determine a quick and lasting resolution.”
The applicant never replied to that letter. She continued to send in certificates of incapacity to return to work.
On 16 November 2011, the applicant’s WorkCover claim was approved and on 17 November 2011 she resigned her employment (see exhibit A2). Ms Power’s resignation letter relevantly stated, “Due continued unresolved bullying and complaint I am unable to return to work and this leads me to my resignation against my will …” (sic)
It is common cause that the applicant, although contacted by the external consultant to whom Mr Bennett referred, namely Sally Winneke, elected not to meet that individual. The applicant also refused to talk to Mr Jason Purches, another manager who
Mr Bennett requested contact her, and another employee, a
Mr Hansen.
The applicant’s WorkCover payments appear to have ceased in about January 2012 and she deposes without challenge that she was under the care of a psychologist until August 2012 as a result of her responses to the events.
The applicant has effectively not worked since the cessation of her employment with the respondent.
Matters of Disagreement
Was the applicant’s work performance satisfactory and was she bullied by Mr Stermole?
As earlier indicated, the applicant’s brief affidavit material did not address her employment history in any significant way. She did depose that until May 2011 she had had a supportive and respectful relationship with Mr Stermole. In evidence given before the Court, she conceded that she had made a previous complaint to Mr Bennett in 2009 which had been conciliated and led to an apology from her then Manager thus resolving the matter.
It emerged that there had been a session conducted by the respondent in April 2011 about training in response to bullying issues.
The applicant could not recall any prior warnings but it is apparent from exhibit R1 that she was given a warning on 24 February 2010 for failure to notify an absence from work and a further written warning on 16 August 2010 for excessive internet usage.
Nonetheless, these matters need to be put into context. Mr Bennett’s last letter to the applicant expressly affirmed that she was a good employee.
The applicant asserted in her affidavit that in May 2011 there was an incident at which Mr Stermole said, “You seem to know everything, go do it yourself”, in what was said to be a belittling manner. This matter was not traversed in oral evidence and is, in my view, of no significance.
Likewise, the assertion at paragraph 6 of the applicant's affidavit that “Mr Stermole proceeded to glare at her in an aggressive manner for no apparent reason”, is not a matter that in my view merits any attention.
The applicant asserted that on 1 July 2011 she said to a fellow colleague, Nadia Tsakos, “I used to go to high school with that guy, he used to think that he was top shit and still probably does”, and that Mr Stermole came in and screamed at her, “You don't speak to customers like that and if you don't fucking like it, there is the fucking door and you can fuck off!”
The applicant asserted that she burst into tears as a result.
The applicant deposed that on 22 July 2011, Mr Stermole aggressively told her to wear her staff uniform and told her to resign if she did not.
The applicant further deposed to a minor matter about the number of people handling the tills, to which I will pay no further attention.
The applicant further deposed to being required to work through her lunch break on 24 July 2011 and being told that her lunch was forfeited and that this happened on several other occasions.
I pass over some of the other matters raised in the applicant's affidavit, because they are so trivial as to not merit further attention.
Matters appear to have come to a head in what was obviously a strained situation between Mr Stermole and the applicant (albeit that in my view a number of the matters now referred to are the most trifling sort) in early September 2011.
On 2 September 2011, there was an incident where the applicant took a pair of tin snips to use for reasons that were unexceptionable and was, according to her, sworn at by Mr Stermole who said they were new. This once again reduced the applicant to tears.
On 3 September 2011, there was an incident about invoicing. The applicant says she asked Mr Stermole if he had done the invoices, and Mr Stermole said, according to her, that he had got into trouble for not doing so.
In the oral evidence given before the Court, these issues were dealt with at some greater length. It is sufficient, in my view, to say that it is quite clear that the applicant had done several things that Mr Stermole found inappropriate. She had failed to wear her uniform, she was probably less punctual with her lunch times than she now recalls (and it is clear that Mr Stermole had an issue with this) and there was the great tin snips disaster. I regret to say that looked at objectively these were all minor matters that should not have given rise to the amount of emotion on the part of both Ms Power and Mr Stermole that they apparently did.
What is also clear is that Mr Stermole swore, and aggressively so, at the applicant on at least one occasion, and she was deeply upset by this. I find that he swore at her in July, and he also swore at her in September, because Ms Power was sufficiently upset to go off work with a medical certificate on 5 September 2011 and to make a formal complaint to Mr Bennett the following day.
Common sense suggests something must have distressed her significantly to make a formal complaint.
Nonetheless, with the exception of the two swearing incidents, Mr Stermole's behaviour, when looked at objectively, seems to me to be no more than a Supervisor seeking to make an employee toe the line in a way that could not reasonably be regarded as excessive or improper.
What happened on 7 September 2011?
It is common cause that the applicant took her father with her to meet Mr Bennett. Given that the applicant is a young woman with a child, it is reasonable to infer that the father felt the need to go to protect his daughter's interests. Mr Bennett says that the conversation started off with approximately one hour's worth of discussion about Ms Power's complaints about Mr Stermole. All parties seem to agree that this was so.
As Mr Bennett had previously foreshadowed, he then went and spoke to Mr Stermole who, perhaps unsurprisingly, denied everything and countered by raising the various sorts of complaints (timekeeping, tin snips and the like) that has occupied the Court's time.
In my view, not in any way improperly, Mr Bennett then relayed the gist of these matters to Ms Power and her father. Mr Bennett said that the father became agitated and eventually stormed out. He also said that Ms Power's wanted Mr Stermole transferred to the Notting Hill premises of the respondent or preferably sacked.
Having seen Mr Gary Power give his evidence, I have no doubt that Mr Bennett's recollection in this regard is correct. Mr Power has a very natural and proper protective attitude towards his daughter, and it is clear that he wanted Mr Stermole sacked and said so. He himself concedes that the interview ended with him saying, "Right. That's it. We're leaving." It is noteworthy that he had sufficient involvement with and authority over his daughter that she left without demur.
The Credit of the Witnesses
Both Ms Power and her father were good witnesses. They were direct in their answers and patently sincere. Mr Power in particular was quite prepared to make concessions that he may have said that he wanted Mr Stermole sacked even though he did not actually remember doing so.
The Telephone Call on 9 September 2011
When Mr Bennett spoke to Mr Power on 9 September 2011, it is quite clear that Mr Power said words to the effect that he would not like to be working for the respondent himself. It is clear that Mr Bennett acknowledged that Mr Stermole had sworn at the applicant. It is clear that Mr Bennett told the father, Mr Power, that he had not completed his investigations, but that while there were no allegations made out against Mr Stermole other than his admission of swearing on one occasion, Mr Stermole was going to be disciplined. (Mr Stermole did, in fact, receive a formal reprimand).
The Bona Fides of the Investigation
The applicant's evidence was essentially to the effect that she did not regard herself as able to return to the respondent because, notwithstanding the warning given to Mr Stermole, nothing had changed and matters might yet be worse if she returned. This was so notwithstanding Mr Bennett's letter to her making it clear that she was a well-regarded employee whose return was desired.
Mr Bennett, whose both written and oral evidence suggests a somewhat ornate quality, nonetheless impressed me as being sincere in the sense that he took this investigation seriously and never had it in his mind to in any way disadvantage Ms Power for the complaint that she had made.
One slightly surprising addendum to his evidence emerged in the running. The reference in the letter of 19 September 2011 to “a statement which is rather profound” turned out to be a reference to an alleged text message from the applicant to Ms Tsakos in which she said "There's no way I'm going to work for those fucking assholes, Robot," apparently sent shortly after the events of 7 September 2011.
When recalled to answer this assertion, Ms Power could not recall whether or not she had sent a message to Ms Tsakos in these terms.
I think it is more probable than otherwise that such a message was sent (Mr Bennett said he had a copy available and was not called upon to produce it) but I find that this was a momentary exasperation. The applicant’s true position was plainly as she articulated in Court namely, that she felt that she could not go back.
The Legal Issues the Court is asked to Determine
This is a claim founded on the proposition that the respondent dismissed the applicant because of her exercising of a workplace right. As articulated in the originating application, the conduct said to give rise to this is articulated as:
“By reasons of these complaints cited the application before the Fair Work Australia under section 341(1)(c)(ii) and as a workplace right under section 340(1)(a)(i) of the FWA Act (2009) (‘the Act’) which she exercised that became a dominant reason or reasons for the adverse treatment under section 342(1)(a) and (b) of the Act consisting of failure to resolve such complaints culminating her dismissal defined under section 386(1)(b) of the Act including the non-economic issue such as mental stress or injury generated from such inaction.”
Although the claim said that matters would be further articulated in a statement of claim, matters are not much advanced in that claim. The statement of claim asserts that the applicant had a workplace right being:
“a.An ability to make a complaint in relation to her employment.
b. An entitlement to lodge a workcover claim.
c.An entitlement to work in an environment free of inappropriate workplace behaviour.”
The statement of claim asserts that the applicant exercised and/or attempted to exercise her workplace right in that she made complaints about the inappropriate workplace behaviour on or about 6 September 2011, 7 September 2011 and 16 September 2011.
The statement of claim goes on to say that as a result of the applicant exercising a workplace right, the applicant was subjected to adverse action. The particulars of that workplace action are:
“The applicant's complaints/inappropriate workplace conduct was not properly addressed by the respondent making it impossible for the applicant to return to her employment and as such she has been constructively dismissed pursuant to section 386 of the Fair Work Act (‘the act’).”
It is clear that the applicant had a workplace right within the meaning of s.341(1) of the FW Act, if only because, pursuant to s.341(1)(c) the applicant was able to make a complaint as an employee in relation to her employment. That right was set out, if nowhere else, in the clause of her ITEA contract cited earlier and she plainly exercised it. I should say in passing, however, that I think the criticisms offered by the respondent in its written outline of argument, paragraphs 8 and 9, of the applicant's characterisation of workplace rights, is probably correct.
I agree with the respondent's submissions that the issues that arise are:
a)did the respondent take adverse action against the applicant as alleged; and
b)if so, was it taken because of the applicant's complaints made between 6 and 16 September and/or because of her filing a WorkCover claim on 11 September 2011.
What was the adverse action taken against the employee?
The applicant's case has been presented in a somewhat muddled way that is not by any means easy to understand. What it said in substance, however, seems to me to be that the respondent, when faced with the applicant's claim of inappropriate conduct by Mr Stermole, failed adequately to resolve it and this led to her dismissal in the form of constructive dismissal in circumstances where she had no other alternative other than to resign.
I do not think that this analysis can be made out. The applicant made complaints to which the respondent replied very promptly. Mr Bennett met her the day after she complained. His investigative process, while somewhat over ornate, was perfectly unexceptionable. He got information from both sides of the ledger, so to speak.
The reality is that the thing that prevented a final disposition of the applicant's complaint was her own adamantine refusal to cooperate in Mr Bennett's initiatives, whether with him directly or with Ms Winneke.
It seems most unfortunate in hindsight that the applicant was effectively warned off speaking to the respondent by WorkSafe. Nonetheless, I conclude that the applicant in all probability would never have gone back to the respondent. Her own evidence was that pretty much from the start she had formed the view that she would not be able to return. That was because Mr Stermole was still there.
Her father had sought that Mr Stermole be dismissed or transferred, and, as I find, Ms Power could not bring herself to contemplate returning unless this was done.
Was the respondent's failure to discipline or transfer Mr Stermole adverse action as a result of her complaint?
It is quite clear on the evidence that Mr Stermole was disciplined for his misconduct, albeit that as I find it was slightly more extensive than the respondent did.
Was this done as adverse action against the applicant as a result of her complaint? Clearly, the answer is no. The last communication addressed by the respondent to the applicant expressly informed her that she was a good and valued employee whose return was eagerly anticipated. This is not adverse action on any commonsense view of the facts. It was certainly not action occasioned by the fact of her complaint.
Of course, the actions that the respondent took were actions that arose out of Ms Power's complaint. Nonetheless, they were not adverse actions taken against her because of the complaint. Rather, in my view, they were a reasonable response in the circumstances.
To conclude otherwise would mean that in any situation where an employee complains and the outcome is not one they wish, then it would follow that every such circumstance would give rise to an adverse action finding. That is not a tenable conclusion.
Was the applicant constructively dismissed?
The law in relation to constructive dismissal has spawned very substantial case law. The authorities were to an extent reviewed in O'Meara v Stanley Works Pty Ltd - PR973462 [2006] AIRC 496 by a Full Bench of the Australian Industrial Relations Commission. I would refer to the whole of the Commission's review of the authorities, but in particular refer to what the Full Bench of the Commission said at [20] as follows:
“Moore J, one of the members of the Full Court in Mohazab, addressed the question further in Rheinberger v Huxley Marketing Pty Limited. His Honour said, after referring to extracts from Mohazab:
“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct.”
In Ramos v Good Samaritan Industries [2013] FCA 30, Barker J dealt with this issue and noted at [136]:
Ultimately it is complained that the applicant felt, in light of his treatment since he made his complaint in early April 2010, that he was being forced to quit. But his subjective assessment in that regard cannot be the benchmark for the determination of whether he was constructively dismissed. It is by no means clear that he had no other option but to quit his employment at that point?.
This passage echoes the observations of the Full Bench in O'Meara where the Commission stated at [23]:
“… In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”
Here, it is, of course, clear that the failure of the respondent to dismiss or transfer Mr Stermole was the reason that Ms Power resigned. That was clearly her state of mind.
The difficulty is that the respondent had no knowledge of this state of mind. Although Ms Power had initially asked for Mr Stermole to be dismissed, through her father as her representative, this was never pressed or indeed even put in writing in the OH&S complaint sent on 16 September 2011.
The applicant's failure to engage with Mr Bennett after 7 September 2011 means that the respondent had no knowledge of the applicant's state of mind, nor was it reasonable to suppose, in the face of Mr Bennett's correspondence to the applicant, that the respondent had any understanding that a failure to take further action against Mr Stermole would lead to the applicant's resignation.
In my view, it is clear that the applicant was not constructively dismissed.
The Common Law Claim
The applicant has sought, somewhat at the death-knock and in a rather roundabout way, damages for breach of the alleged term of the ITEA contract that the employee was entitled to work in a workplace without harassment, sexual harassment, discrimination, workplace violence and workplace bullying, and that the respondent was to have zero tolerance to breaches of that right (see paragraph 4 of the statement of claim). It is true that the terminology of paragraph 4 of the statement of claim reflects in terms clause 18 of the applicant's ITEA which was equally clearly her contract of employment.
The respondent took what I would describe as pleading points against this matter being pressed, but in the end I do not think it is necessary to determine them. That is because, as the respondent's “note on the applicant’s claim in contract” filed on 18 February 2013 pointed out, the terms of the Accident Compensation Act 1985 (VIC) (“AC Act”) preclude such an application.
Even if I am wrong in this regard, I do not think that Mr Stermole's activities would fall properly to be considered to be a breach of clause 18 of the contract of employment/ITEA. The clause plainly contemplates that, 'Any breaches experienced by any employee, they should advise the offender to cease their actions and continuation of such must be reported to their immediate supervisor/manager.'
This contemplates, as would tend to accord with common sense, the proposition that a single isolated instance of bad language is not generally sufficient to constitute workplace bullying, even in an environment where there is zero tolerance. Looked at objectively, while Mr Stermole's conduct was regrettable, and indeed, reprehensible, and in fact led to disciplinary action against him, it would not, in my view, be sufficient to constitute a breach by the employer of its contract with Mr Stermole. On any view, Mr Stermole's conduct, taken at its worst, was conduct engaged in by Mr Stermole in contravention of the respondent's policies and in contravention of his own contract of employment/ITEA. To use the language of another circumstance, it was a frolic of his own. It would not be conduct in the circumstances for which the respondent could be held vicariously liable.
Even if the applicant was able to surmount all these issues, there is no objective medical evidence before the Court which would enable the Court to evaluate the applicant's claim for damages in any event.
Conclusion
For all the above reasons, the application must be dismissed.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Burchardt J.
Date: 16 April 2013
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