Reem Yelda v John Gillett
[2021] FWC 6589
•10 DECEMBER 2021
| [2021] FWC 6589 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Reem Yelda
v
John Gillett; Brendan Nicholson; Sydney Water Corporation
(C2020/9121)
DEPUTY PRESIDENT BEAUMONT | PERTH, 10 DECEMBER 2021 |
Application to deal with contraventions involving dismissal.
1 Introduction and summary
[1] Ms Yelda commenced employment with Sydney Water Corporation (Sydney Water) in or around October 2004. During her employment she held various positions, including, most recently, the role of Customer Liaison Officer (CLO) in the Field Response Networks. As a CLO Ms Yelda was required to respond to incidents across Sydney that primarily related to sewer surcharges and broken water mains.
[2] In September or October 2015, Ms Yelda was called to a job where a water main had leaked into a residential house. She was accompanied by Mr Mead who was training to be a new CLO. On-site was the service delivery crew who were repairing the leak. Also present was a representative of Vitality Works Australia Pty Ltd (Vitality), a Ms McMahon.
[3] Ms McMahon explained to Ms Yelda and Mr Mead that Vitality was looking for staff volunteers for a campaign called ‘SafeSpine’. The campaign promoted stretching and warming up in the workplace prior to initiating physical activity. Ms Yelda and Mr Mead agreed to have their photos taken for the purpose of the campaign. Neither were presented with detail on how the photos would be presented or that captions that would be attached to Ms Yelda’s image.
[4] Ms Yelda’s photo was used in a poster that depicted her smiling with her right arm outstretched above her head. Above the photo were the words ‘Feel great’ and underneath that, in larger print, was the word ‘lubricate!’. The poster appeared to have been distributed and displayed at three Sydney Water work locations.
[5] On 12 April 2016, Ms Yelda complained to senior managers of Sydney Water about the poster. In short, Sydney Water and Vitality purported to have apologised to Ms Yelda about the poster and Sydney Water said that it sought to have the posters removed immediately. Ms Yelda embarked on a period of leave in the April, and apart from a few days where she returned to work, she was absent from the business until her date of resignation on 10 December 2020.
[6] Ms Yelda launched a series of applications in multiple jurisdictions relating to the poster incident.
[7] On 15 December 2016, Ms Yelda filed a complaint in the Australian Human Rights Commission (AHRC) alleging sexual harassment and sex discrimination against Sydney Water and Vitality. The AHRC was said to have informed Ms Yelda that her complaint could not be accepted as Sydney Water was a state government employer and therefore the complaint was referred to the NSW Anti-Discrimination Board.
[8] On or around 1 March 2017, the complaint to the NSW Anti-Discrimination Board was filed against Sydney Water and Vitality. This complaint was rejected purportedly on the basis that the Board did not consider the word ‘lubricate’ to be sexual. By all accounts the NSW Anti-Discrimination Board was required to reconsider and investigate Ms Yelda’s complaint pursuant to orders from the Supreme Court of NSW, but the Board again rejected Ms Yelda’s complaint on or around 19 June 2018.
[9] Ms Yelda also brought a claim before the NSW Civil and Administrative Tribunal (NCAT) against Sydney Water for sex discrimination and sexual harassment in respect of the display of the poster. By decision published on 1 October 2019, NCAT upheld Ms Yelda’s complaints of both sex discrimination and sexual harassment. Sydney Water unsuccessfully appealed the decision at first instance. Thereafter on 30 April 2021, NCAT awarded Ms Yelda the maximum monetary compensation available pursuant to s 108(2)(a) of the Anti-Discrimination Act 1977 (NSW).
[10] This brings us to the general protections application involving dismissal filed by Ms Yelda on 18 December 2020. The grounds of the application include adverse action in respect of her having complained to Mr John Gillett (the Second Respondent) about the poster on 12 April 2016 (s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) (the Act)) and in the form of sex discrimination contrary to s 351 of the Act
[11] The Respondents raised two jurisdictional objections to Ms Yelda’s application. The first, which is relevant to this decision, that Ms Yelda was not dismissed within the meaning of s 386 of the Act. The second, which was not pressed by Sydney Water in respect of the hearing and therefore bears no relevance at this stage of the proceedings, is, that the operation of s 734 of the Act prevents Ms Yelda from bringing the application.
[12] The Respondent’s first objection has implications for the application on foot, because it is accepted that a person must have been dismissed to be entitled to make a general protections dismissal dispute application. 1 Section 365 relevantly provides:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
[13] Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers under s 368 of the Act. 2 Therefore, the discrete issue for determination is whether Ms Yelda was ‘dismissed’ from her employment within the meaning of s 386(1)(a) or(b) of the Act.
[14] The short answer to that question is that Ms Yelda was ‘dismissed’ by Sydney Water as that term is understood by reference to s 386(1)(b) of the Act. I have concluded that Ms Yelda did not resign voluntarily but was forced to do so because of conduct, or a course of conduct, engaged in by Sydney Water. Having decided that Ms Yelda was dismissed, she is now entitled to apply under s 365 of the Act for the Commission to deal with her dismissal dispute. Further, it proves unnecessary to consider whether s 386(1)(a) was enlivened. While the reasons for the decision follow, the next steps concerning the programming of this application can be found at paragraphs [229]-[232].
2 Background
[15] Ms Yelda was born in Baghdad, Iraq. She migrated with her family after fleeing the Iran - Iraq war. Ms Yelda reports that she is of Chaldean Catholic background and was brought up with conservative values within a large immediate and extended family.
[16] Before working for Sydney Water, Ms Yelda held a variety of positions including customer service representative, fund administrator, receptionist, and claims officer.
[17] In or around October 2004, Ms Yelda commenced full-time employment with Sydney Water. 3 She continued to be a full-time employee up until the date of her resignation on 10 December 2020.4
[18] During her employment Ms Yelda held a variety of positions, including her new role as a CLO which she commenced in April 2013. 5 Ms Yelda stated that she initially needed training in incident field response and the Sydney Water insurance process for the new role.6 This training was provided by her manager at the time, Mr Brendan Nicholson.7
[19] Ms Yelda worked across 20 locations from October 2004. The locations included depots, plants, offices and a laboratory. 8 Between April 2015 and November 2015, Ms Yelda held the position of CLO in Networks.9 Thereafter she worked as a Service Delivery Officer in Networks and Wastewater Specialist in the Customer team for the period November 2015 until February 2016.10 Her last position with the business was CLO in Field Response Networks.11
[20] As Ms Yelda progressed through the various roles her knowledge of Sydney Water’s business and operations grew and she came to develop a professional image. 12 Ms Yelda considered that during the period of 2009 until March 2016 she was well known and respected in the workplace.13 Ms Yelda referred to several examples for the basis of her belief, including one where in response to Mr Nicholson’s direction to take an executive manager out into the field to show him the role of CLO, she was hugged by a customer who commented that Ms Yelda had been out there during the night trying to assist.14
[21] It was further observed that Ms Yelda had received positive Personal Development Plans for the period 2012-2015 15 and had successfully managed multiple projects as the project manager, or otherwise participated and coordinated projects as part of a team.16
[22] Ms Yelda provided a description of Sydney Water’s organisational structure noting the Service Delivery Business was divided into several business units. Those business units were said to include:
a) Civil Maintenance Business Unit (later renamed Civil Delivery), which was responsible for maintaining the network of pipelines and responding to incidents such as broken mains;
b) Networks, which was responsible for managing and operating the network of pipelines and pumping stations running between a treatment plant and a customer’s home;
c) Treatment Operations, which was responsible for filtering water and sewerage; and
d) Hydraulic Operations, which was responsible for the Integrated Information Control Telemetry System which monitors all Sydney Water assets including pumping stations, valves and reservoirs, in addition to scheduling water supply in Sydney. 17
[23] During Ms Yelda’s employment she was said to have worked closely with employees in the Civil Maintenance Business Unit. 18 As a CLO, she interacted daily with the Civil Delivery Crews, who formed part of the Civil Maintenance Business Unit when responding to incidents.19
[24] Ms Yelda’s duties as a CLO were plentiful, including responding to field incidents in the Sydney area on a 24/7 standby (such as water mains ruptures or sewer internal surcharge), dealing with distraught and critical customers, negotiating contingency of water supply in event of major failures, and investigating and rectifying wastewater complaints – to list a few. 20
[25] To fulfil the requirements of her role, Ms Yelda was provided with a vehicle, mobile phone and a laptop that had remote access to Sydney Water’s IT network. 21 This allowed Ms Yelda to work remotely from various locations.22
[26] One of the observations Ms Yelda made about the composition of the workforce in the Civil Maintenance Business Unit, was that it predominately comprised of males. 23 She observed that she was often the only woman in the workplace, especially when working out in the field or at Civil Maintenance depots.24 As to working with other women CLOs, Ms Yelda stated she did not personally work with another woman CLO in her day-to-day role.25
[27] Insofar as Ms Yelda’s relationship with Mr Nicholson was concerned there appeared to have been some difficulties during the 2015 and 2016 period. Ms Yelda spoke of moving to the Service Delivery Officer role in November 2015 in response to her feeling that Mr Nicholson wanted her to take up the role, although she had previously declined it. 26
[28] Ms Yelda said that Mr Nicholson created a process where CLOs were required to change the status of customer complaints on the Customer View system (database that simply tracks customer complaints) to ‘resolved’ once the customer had been advised of the corrective maintenance work orders created. Thereafter the customer complaint status would be changed to ‘closed’ after the maintenance work was implemented and the customer was no longer experiencing issues. 27
[29] Ms Yelda did not agree with the new process. She observed that the new process did not assist the CLOs to track the true progression of the customer complaint as it did not reflect what was occurring in the field. 28 Having identified several deficiencies in the new process, including complaints being marked as ‘resolved’ when they were not, or customer complaints having not been closed despite being resolved, Ms Yelda concluded that the system had been implemented for the purpose of creating favourable reporting statistics.29 She brought the issue up with Mr Nicholson, but according to Ms Yelda she was ignored.
[30] In light of the abovementioned issues with the new process, Ms Yelda generated a ‘BI Report’ to highlight all resolved complaints that were not closed in the Customer View system. 30 In January 2016, Ms Yelda showed Mr Nicholson the BI Report and purported that Mr Nicholson questioned her authority to generate the report in addition to questioning why she had wasted Mr Holland’s time to assist her in generating it.31 Mr Holland was a colleague.
[31] Ms Yelda reports not having been given the opportunity to explain the potential improvements the report could have on the CLO team and affected customers, and to feeling upset by Mr Nicholson’s comments – which she considered were a personal attack on her. 32
[32] As a consequence of the interaction with Mr Nicholson, Ms Yelda reported his unfair treatment to Mr John Gillett, Manager for Field Response Networks. 33 Ms Yelda stated that she discussed with Mr Gillett the BI Report and he agreed that it would be beneficial for the CLO team to track customer complaint efficiencies and accuracy.34 Subsequently, the BI Report was generated weekly for the months whilst Ms Yelda was at Sydney Water and sent to the customer group by Mr Holland.35
[33] Ms Yelda was no stranger to having her photo taken and Sydney Water using the image in its advertising material. 36 This had occurred on four previous occasions, and in addition, in 2008, Ms Yelda’s image was also used on the company screen saver and business cards, which were handed out to students at universities.37 Ms Yelda pointed out that on each of the aforementioned occasions she specifically consented to her image appearing on the promotional material and signed a release form to formally signify her consent.38 Furthermore, she had, on most occasions, been shown the final version of the promotional materials before their release.39
[34] Come September or October 2015, Ms Yelda remained under the supervision of Mr Nicholson, her Team Leader, who in turn reported to Mr Gillett. 40
[35] It was during this period that Ms Yelda was working alongside the Civil Delivery Field crew repairing a water main that had leaked into a residential home. 41 She was accompanied by Mr Mead. As noted in my introductory remarks, Ms Yelda and Mr Mead were approached by Ms McMahon, of Vitality, who was looking for staff volunteers for a campaign called ‘SafeSpine’. Vitality had been contracted by Sydney Water to deliver the SafeSpine campaign.
[36] Ms Yelda reports having had a conversation with Ms McMahon in which Ms McMahon asked her and Mr Mead questions relating to their jobs, such as whether they worked closely with the Civil Delivery Field crew and whether the maintenance men would recognise their image if used in the campaign. 42 Ms McMahon was said to have informed the two that the SafeSpine campaign was intended to promote stretching and warming up before commencing physical activity in the workplace, such as before digging.
[37] After informing Ms McMahon that she was well known on the Civil Delivery Field crews throughout Sydney, Ms Yelda agreed to participate in the SafeSpine campaign. She was shown the pose to adopt, and several photographs were taken of Ms Yelda that day. 43 Ms Yelda was not told how her image would be presented, what captions would be attached to the image and no photographs were shown to her of those that were taken.44 Ms Yelda did not sign a release form.45
[38] On 1 March 2016, Ms Yelda received an email from Mr Bannerman, a Network Technician in Field Response, alerting her to a poster that he had seen for the SafeSpine campaign. 46 The poster featured Ms Yelda with one arm raised in the air and her hand directed towards a slogan that read, ‘Feel great – lubricate!’.47
[39] Ms Yelda described going into shock and thinking that she was the subject of a dirty workplace joke rather than the participant in the SafeSpine campaign. 48 She observed that the Poster contained the logos of both Sydney Water and Vitality.49 Ms Yelda explained that she could not understand why Sydney Water would approve a poster of this nature and why it, as her employer, would do this to her.50
[40] It was one or two weeks after receiving Mr Bannerman’s email when Ms Yelda had a conversation with Mr Bannerman at the Ryde depot about the poster’s sexual connotations. 51 Ms Yelda reported feeling humiliated, exposed and degraded after Mr Bannerman shook his head in a manner that she considered was disapproving. Ms Yelda stated that at this time she was aware that the poster had been disseminated throughout multiple workplace locations of Sydney Water.52
[41] Around this time, Ms Yelda saw the poster displayed in the foyer area located just outside of the men’s toilets and the Civil Delivery crews’ lunchroom, at the Ryde Depot. 53 According to Ms Yelda she was the only woman amongst 70 employees at the Ryde depot as this time.54 On seeing the poster, she described almost collapsing with humiliation.55
[42] On 11 April 2016, Ms Yelda received an email from Mr Steve Barclay, Senior Service Delivery Officer, with the subject “Do you know about this?’. Mr Barclay had attached a photo of the poster to his email and said words to the effect, ‘Hi Reem, just at Ryde depot and saw you advertising “Feel Great – Lubricate!” Great advice mate but a bit too much for me!!! Cheers. Steve’. 56
[43] Later in the day of 11 April 2016, Ms Yelda spoke to Mr Barclay about the humiliation arising from the poster. Ms Yelda noted that Mr Barclay agreed the poster was inappropriate given it was of a sexual nature and she said that he encouraged her to make a formal complaint and to have the poster removed from the workplace. 57
[44] Ms Yelda, distressed and humiliated about the poster, contacted Mr Nicholson to ask him if she could leave work for the day, citing a minor car accident as the reason for taking the leave. 58 Ms Yelda had experienced a minor car accident on 11 April 2016, and attended a Dr Lam informing him that she was in a state of shock because of the car accident and needed several days off work to recover.59 A medical certificate was provided to Ms Yelda to support the absence.60
[45] On 12 April 2016, Ms Yelda sent a text message to Mr Nicholson advising him she was unwell, whilst on that same day sending an email to Mr Gillett and to Mr Darren Cash, Networks Manager. 61 In the email Ms Yelda complained about the posters and requested to have them removed from the workplace because it caused her humiliation.62
[46] Shortly after having sent the email to Mr Gillett, Ms Yelda received a telephone call from Mr Nicholson, who had been forwarded a copy of her email. 63 Ms Yelda informed Ms Nicholson that she did not want to talk to him about it which was why she had forwarded the email to senior managers.64 She then hung up the phone.65
[47] Having received a call from Mr Nicholson, Ms Yelda explained that she felt immediately betrayed by senior management. 66 She shared that she had specifically complained to senior managers so that her complaint would be dealt with confidentially and on Mr Nicholson becoming aware of her complaint, confidentiality had been immediately breached.
[48] A telephone call from Mr Gillett followed in which Ms Yelda said that Mr Gillett acknowledged that the poster was inappropriate and against company values, and that he informed her he would arrange an apology and investigate what happened. 67 Mr Gillett was said to have confirmed that Ms Yelda’s complaint would be handled in confidence, at which point Ms Yelda said she asked why the poster had been sent to Mr Nicholson.68 Ms Yelda reports that Mr Gillett would not provide a straight answer and stuttered.69
[49] On 12 April 2016, Ms Yelda received an email from the General Manager of People, Leadership and Culture in which an apology was issued. 70 Ms Yelda, for various reasons, felt that the apology was not genuine.71
[50] Vitality also issued on apology on 12 April 2016, which extended both to the poster and the lack of consultation around the final poster design and slogan. 72
[51] On 12 April 2016, Mr Barclay called Ms Yelda informing her that he found the poster offensive, and that Mr De Roy would arrange for the poster to be removed. 73 Ms Yelda states that she also received a call from Mr Kanak who advised her that he had complained about the poster to Mr De Roy and asked for its removal.74
[52] On 18 April 2016, Mr James Wallace - the Project Manager for the SafeSpine campaign, Mr Cash and Ms James, exchanged emails regarding the posters displayed at the Miranda depot.
[53] On 22 April 2016, Mr Wallace sent a follow up email to all depot managers, stating that the copies of the poster were to be removed from their workplaces and sent to him. The posters at the Miranda, Unanderra and St Mary’s depots were said to have been either shredded or destroyed. 75 Ms Yelda became aware of the correspondence about the shredding or destruction of the posters when certain emails were adduced in the NCAT proceedings. She described feeling disgusted and immediately thought her image had been defaced, which was why the posters of her had been shredded.76
[54] Ms Yelda said that she did not become aware of the email dated 18 April 2016 until the NCAT damages hearing. 77
[55] On 14 April 2016, Ms Yelda saw Dr Lam who issued a Work Cover Certificate for the period 14 April 2016 until 11 May 2016. Dr Lam assessed that Ms Yelda had no capacity to work. 78
[56] Ms Yelda sent the Work Cover Certificate to Ms Annette Halpin, Sydney Water’s Manager, Injury & Rehabilitation. 79 Ms Halpin contacted Ms Yelda and asked whether she had been referred to a psychologist, which Ms Yelda confirmed that she had not.80 Ms Halpin sought Ms Yelda’s permission to contact Dr Yam and assured him there would be no issue getting a claim number and to ask for an immediate referral to a psychologist.81 Ms Yelda consented to this course of action.82
[57] The appointment with the preferred psychologist of Dr Yam was some days away, therefore Ms Halpin asked Ms Yelda if she was happy to see a psychologist that Sydney Water used. 83 Ms Yelda said that as she was not aware of the Work Cover process or her rights within it and she did not oppose seeing the other psychologist.84
[58] The other psychologist was Mr Alfred De Robillard, and Ms Yelda attended the appointment on the same day as Ms Halpin had made it.
[59] Ms Halpin also referred Ms Yelda to Resilia Pty Ltd (Resilia) on 16 April 2016. Resilia was a rehabilitation specialist acting on behalf of Sydney Water. 85 Ms Yelda states that she was told that all communications regarding Sydney Water would go through Resilia moving forward.86
[60] On 22 April 2016, Ms Yelda received confirmation from Allianz, the workers’ compensation insurer for Sydney Water, that workers’ compensation payments would be made on a provisional basis for a period of 12 weeks from 14 April 2016. 87 Come 7 July 2016, Allianz accepted liability for Ms Yelda’s Work Cover application.
[61] Between 14 April 2016 and 14 July 2016, Ms Yelda received weekly workers’ compensation payments. 88 In that same period Ms Yelda provided to Sydney Water multiple Work Cover Certificates certifying her unfit to return to work from 14 April 2016 until 6 July 2016, fit to return to work in a part-time capacity but not within Sydney Water for the period 29 June 2016 to 18 October 2016, fit to return to work in a full-time capacity but not within Sydney Water, from 19 October 2016 until 7 February 2017, and fit to return to work in a part-time capacity from 8 February 2017 until 2 May 2017.89
[62] On or around 13 May 2016, Sydney Water, via Resilia, requested that Ms Yelda return the company car and the laptop. 90 The car and laptop was collected on or around the same day.91 Ms Yelda had left her ‘identification’ in the car such that it was inadvertently returned to Sydney Water.92
[63] Concerning the management of company laptops, Mr Liam Connolly, Employee Relations Specialist at Sydney Water, said that in his experience if an employee is filling in for another employee and does not have a Sydney Water issued laptop or mobile phone they can use for the role they are covering, the employee, in the substantive role, will, as a matter of practice, be requested to return their work equipment. 93 Mr Connolly referred to an example where this had occurred with another CLO who had returned a laptop while on a period of leave from 21 December 2015 to 18 January 2016.94
[64] Ms Yelda described feeling extremely isolated because she did not have her ‘identification’ and therefore was not able to attend or sign into a Sydney Water office if she had wanted to do so. Furthermore, she reported not knowing who to contact about having her ‘identification’ returned. 95 Ms Yelda formed the view that if Sydney Water had repossessed her car to give it to another employee her ‘identification’ would have been noticed in the car. However, the fact that no one told her about it, was, according to Ms Yelda, suggestive that her car was not needed to be used by another employee, and it had been taken to further distance her.96
[65] The provision of the company car appeared to be regulated by Sydney Water’s Operational, Tool of Trade, Pool Vehicle Policy dated 21 August 2012 (Vehicle Policy). The Vehicle Policy provided:
1.1 Objective
The Purpose of this policy is to outline the allocation and use of operational fleet vehicles (excluding Senior Manager vehicles) required for day-2-day business use.
1.2 Scope
This policy applies to all operational Vehicles and their drivers, whether the vehicle is assigned to the driver for the duration of its lease or on an ad hoc basis.
1.3 Summary
Operational (Tool of Trade) are provided where Sydney Water directs that a vehicle is required to enable performance of a job function. Operational vehicles may be provided on an allocated or unallocated basis. Vehicles may be allocated to certain positions if there is a business need. Unallocated vehicles are assigned for short term use to perform specific tasks, and are otherwise managed as a pool vehicle.
…
Important Note: No individual has an entitlement or inverted entitlement to an operational or tool of the trade vehicle. There are no charges to an employee’s remuneration package for an Operational or Tool of the Trade vehicle. Senior managers may use pool vehicles from time to time, but a pool vehicle will not be allocated to them. Should a Senior Manager require frequent use of a vehicle, then the Senior Manager vehicle policy will apply.
…
2.5 Permitted Use of Vehicles
Drivers who are allocated and operational or tool of trade vehicle are required to use the vehicle only for business purposes. The vehicle must not be used for private purposes (including travel between home and work unless approved by the relevant Level 3 Manager). The vehicle will not be made available to an employee during a period of leave. When leave is taken the employee must return the vehicle to Sydney Water for reallocation. 97
[66] According to Mr Connolly, the vehicle allocated to Ms Yelda was collected for operational reasons. 98 As far as Mr Connolly understood, the vehicle was assigned to Ms Rehana Khan who was filling in for Ms Yelda whilst she was absent.99
[67] A series of emails between Ms Khan, Mr Nicholson, Mr Gillett, and Ms Halpin, in August 2016, touched on Ms Khan not having a work mobile phone and the arrangements to retrieve from Ms Yelda her work mobile. 100 Mr Gillett expressed in his email to Mr Nicholson and Ms Halpin dated 25 August 2016, that Ms Yelda did not require the mobile.101 Mr Connolly gave evidence that Ms Yelda’s work mobile phone number was assigned to Ms Khan and at the time of writing his witness statement the number remained with Ms Khan.102
[68] On 31 August 2016, Ms Simson of Resilia requested that Ms Yelda return her work mobile phone. 103 Ms Yelda stated that she did not want to give her work phone away because she knew it did not belong to the specific business group she was working in, and she had had it since 2008.104 Ms Yelda returned the phone.105 Ms Yelda considered that because Sydney Water could not have used the mobile phone for any purpose without her passcode – which she did not supply, this demonstrated that the company did not need to take it back from her.106
[69] Before May 2016, Ms Yelda had access to Iconnect using the Sydney Water laptop. Iconnect is the Sydney Water intranet that gave Ms Yelda access to the software needed for her day-to-day role, and to the Employee Self Service System by which Ms Yelda could review payslips, upload ‘PDPs’, apply for leave, and review company policies. 107 After returning the laptop Ms Yelda no longer had access to Iconnect and whilst Sydney Water had her personal email address, they did not send her company newsletters.108 Unlike other employees on extended periods of leave, Ms Yelda was unable to retain her company laptop and was not given email access to ESS and access to Iconnnect.109
[70] While Ms Yelda detailed the lack of access to Iconnect whilst absent from work, Mr Connolly expressed that Ms Yelda could still have accessed ‘Business Connect’ remotely, which Ms Yelda did in late 2019 and early 2020, 110 or could have contacted Ms Halpin or him, to facilitate access or to provide any relevant employment documents.111
[71] Ms Yelda stated that when she initially complained about the poster, she was concerned about who had approved the poster and where else it was displayed. Consequently, between April 2016 and July 2016, Ms Yelda asked Ms Simson many times if she could find out where else the poster was located and who approved it. 112 Ms Yelda reported that Ms Simson was unable to provide her with a straight answer and had said to Ms Yelda that she needed to check with Sydney Water.113
[72] Ms Yelda explained that in or around September 2016, she met with Ms Simson and Dr Lam to discuss her capacity and return to work. Ms Simson suggested that Dr Lam change Ms Yelda’s capacity to full-time as there were no part-time positions being advertised. Dr Lam complied with this suggestion and changed her capacity to full-time in relation to the period 19 October 2016 to 15 November 2016. 114
[73] On 25 November 2016, Ms Yelda received a letter from Allianz regarding a work capacity assessment. The letter set out that a work capacity assessment (WCA) of Ms Yelda’s claim would occur, this would involve a review of her work capacity, and as a result of the review a work capacity decision would be made. 115
[74] On 12 January 2017, Ms Yelda received notification from Allianz that she would not be entitled to receive workers’ compensation benefits from 21 April 2017, 116 and on 1 March 2017, Ms Yelda was notified of the decision to decline liability for her certificate of capacity issued on 7 February 2017.117 Ms Yelda’s Work Cover payments ceased from 21 April 2017.118
[75] During the period of March 2017 and April 2017, Ms Yelda was notified of a decision to decline liability for a certificate of capacity issued on 8 March 2017 and in addition Ms Yelda made applications to seek review of the two decisions to decline.
[76] On 12 April 2017, Ms Yelda was referred to an independent medical examination by Ms Joanne Tulloch, the Case Manager for Allianz. 119 Associate Professor Michael Robertson, Consultant Psychiatrist, produced a report following the medical examination of Ms Yelda, which at pages 2 and 3 of the report summarised:
She evolved subsequently a depressive illness…
I concluded “Ms Yelda is a 38-year old woman who presents with evidence of an adjustment disorder with anxiety’. I noted her destabilised thyrotoxic state was likely destabilised by her psychiatric symptoms. I noted that “Ms Yelda clearly was affronted and angered by what seems to be an unfortunate incident where her image was used with a slogan that was apt for double entendre. Ms Yelda believes the origin of this affront is the sense of shame and humiliation she feels in light of what she regarded as her strenuous effort to build a reputation within a predominately male workforce which she feels has been profoundly undermined by this experience”.
I also noted the issue of a potential cultural element to her psychological state. I noted further “At issue appears to be her ongoing demonisation of the employer and her sense of nihilism about her future with Sydney Water. Ms Yelda believes that she has suffered such a loss of face that she feels unsafe in the workplace and cannot return”. 120
[77] Ms Yelda described being upset following the cessation of her workers’ compensation benefits as she felt as though she had been misled by Sydney Water, through Resilia, to change her work capacity to full-time. 121 Ms Yelda explained that she held an expectation of receiving workers’ compensation payments for approximately three years – reflective of what she had been told by Resilia.122
[78] Following the cessation of workers’ compensation payments, Ms Yelda was on paid sick leave until approximately November 2017. 123
[79] In his witness statement, Mr Connolly referenced excerpts from treating medical practitioners, Ms Simson, Mr Alfred de Robillard, and Ms Halpin. Some of the excerpts from medical practitioners and others, warrant repeating.
[80] On 23 June 2016, Ms Simson sent an email to Ms Halpin stating:
This afternoon we have a [Nominated Treating Doctor] case conference for Reem. Dr Lam was of the opinion that the most appropriate returned to work goal at this time would be for Reem to return to a different job with a different employer. 124
[81] In a progress report produced by Ms Simson dated 14 July 2016, it is noted that Dr Lam was requested to justify his change in return to work goal as outlined above. Dr Lam is reported to have indicated on 27 June 2016 that:
Ms Yelda attended the funeral of a friend [friend's father] who also works for Sydney Water. Ms Yelda reportedly became very shaky and sweaty when seeing people from Sydney Water there. According to Dr Lam, Ms Yelda realised that she will not be able to return to work for Sydney Water again. 125
[82] On 27 June 2016, Mr Alfred de Robillard, psychologist, stated in his report:
Based on my opinion Ms Yelda is determined not to return to work to Sydney Water and I would recommend Ms Yelda to consider a position with a different employer which may improve her psychological state. 126
[83] On 4 July 2016, Ms Halpin sent an email to Ms Simons, which read in part:
…we want her back to work at SW. We are a large company and if she can't return to PIDs, she should be able to work in another role. 127
[84] On 19 October 2016, Ms Simson wrote to Ms Halpin providing an update on a case conference concerning Ms Yelda. 128 In the update, Ms Simson notes that Dr Lam advised that Ms Yelda’s psychological symptoms would increase if she was to return to Sydney Water and hence the restriction of not returning to Sydney Water remained in place. In the interim, Ms Yelda’s work capacity had been upgraded to eight hours per day, five days a week, and the update outlined she had attended three interviews.129
[85] On 20 October 2016, Ms Halpin replied to Ms Simson. In this email, Ms Halpin states:
Can you please advise if you think it is at all possible for a return to work to be attempted at SW? What do you think would assist Reem at this stage to consider a RTW at SW? Can we do anything at this point to assist with the RTW? Would a meeting with more senior management to discuss the matter and outcome of the investigation (once known) help? Is Reem aware that WC benefits don’t go on forever? 130
[86] On 7 December 2016, Resilia produced a ‘Return to Work Progress Report – Same Employer’ regarding Ms Yelda. The reported detailed:
i. Ms Yelda stated she was motivate [sic] to obtain fulltime employment outside of Sydney Water. Ms Yelda advised she was not motivated to return to Sydney Water; and
ii. Resilia discussed the secondment option with Ms Yelda on 8 November 2016, and she indicated that she was uncertain whether she wanted Sydney Water to be involved in locating a secondment role for her. Resilia highlighted the benefits of exploring this option, however, Ms Yelda advised that as she did not intend on returning to Sydney Water, she did not want to enter into an arrangement where this was the goal.
[87] On 16 January 2017, Ms Halpin emailed Ms Simson, the following is an excerpt from that email:
Reem hasn't responded to my email from December that I copied you in on. If there is anything else you recommend in regards to communication attempts with dream i.e. a meeting etc, please let me know as we would like more engagement given that she is still employed with us. Medication might not be suitable based on Reem’s resistance to it but I would like Roslyn Gaskell to at least meet Reem and assist with a facilitated discussion between John Gillette, you, me, Reem and her psychologist could participate if required. Our usual process is for any injured worker to keep in contact with their manager. Regardless of Reem having permanent restrictions now and not being able to return to work at Sydney Water, it is still important that she has contact with someone. 131
[88] On 22 March 2017, Resilia produced a ‘Workplace Rehabilitation Closure Report – New Employer’ regarding Ms Yelda’s matter. In this report, it was noted:
i. Dr Lam, Nominated Treating Doctor (NTD) confirmed that a more appropriate return to work goal would be for Ms Yelda to return to work with a Different Employer in a Different Role. Sydney Water have continued to support a return to work goal of Same Employer, indicating that alternate roles could be located for Ms Yelda; and
ii. Dr Lam, NTD, continues to advise that the current return to work goal is Different Job, Different Employer, and that returning to Sydney Water would aggravate Ms Yelda’s psychological condition. 132
[89] On 27 April 2017, Associate Professor Michael Robertson, psychiatrist, ‘re-examined’ Ms Yelda having ‘examined’ her in 27 July 2016. It appears that Ms Yelda had been referred for assessment by the Case Manager, Ms Tulloch, of Allianz Australia Insurance Limited. In his report he stated:
There seems little prospect of Ms Yelda returning to her employment with Sydney Water. The best outcome is likely to be achieved if she is found reduced hours work in a different workplace that has been the focus of her recent efforts.
…
I do not believe that the reduced hours restriction is permanent, although it would appear that the barrier to return to work with Sydney Water is permanent. Based on my opinion Ms Yelda is determined not to return to work to Sydney Water and I would recommend Ms Yelda to consider a position with a different employer which may improve her psychological state. 133
[90] The report of the Associate Professor detailed that Ms Yelda had reported that she was actively job seeking and had applied for in excess of 100 jobs but anxiety had led to poor performance in interviews. 134 The Associate Professor observed that Ms Yelda presented with ‘chronic mood and anxiety symptoms which are being driven by the narcissistic injury she sustained as a consequence of the original workplace stressor’.135 The Associate Professor continued:
There is clearly complexity to Ms Yelda’s psychological response to the difficulties in her previous workplace and in particular the manner in which she has demonised the employer and situated herself as being victim of “injustice”. It is understandable that a female employee with little formal qualification, who has achieved a reputation within a predominantly male workforce, would feel deeply affronted and psychologically slighted by such events and this augurs poorly for her clinical outcome. 136
[91] During May 2017, Ms Halpin endeavoured to make a time to meet with Ms Yelda and Mr Gillett. 137 There was some delay on Ms Halpin’s behalf in setting up the meeting with Ms Yelda, but by 4 August 2017, a time, date and place had been set.138 Ms Halpin set out the agenda items for the meeting.139 They included Ms Yelda’s current fitness for work, permanent restrictions and what this meant, a job seeking update and next steps with Ms Yelda’s case.140
[92] In or around August 2017, Ms Yelda met with Mr Connolly and Ms Halpin, at a café. Ms Yelda’s account is that she was advised in the meeting that Sydney Water may terminate her employment on medical grounds – which she was upset to hear. 141 She asked to be sent details of the relevant policy that allowed for this.142
[93] Mr Connolly said that he attended a meeting with Ms Yelda and Ms Halpin on 8 August 2017. His attendance was to undertake the role of the HR representative. 143 Mr Connolly said that he understood prior to the meeting that Ms Yelda’s treating doctors had said that Ms Yelda could not ever return to Sydney Water and that attempts to achieve her return had, up until that point (2017), not been successful.144
[94] Mr Connolly said that the discussion with Ms Yelda included speaking to Ms Yelda’s job seeking attempts, her recent disaster relief training with Red Cross and an explanation of the medical retirement procedure. 145 Mr Connolly explained that as Ms Yelda had, in his view, expressed that she would not be returning to Sydney Water, he discussed the medical termination process so that Ms Yelda was aware of the next steps in the process.146 Mr Connolly said that he informed Ms Yelda that Sydney Water was not going to end her employment at that stage but would seek her input first in accordance with the procedure.147 According to Mr Connolly no feedback was provided and consequently he did not pursue the matter further.148
[95] Mr Connolly noted that in November 2017, Sydney Water funded the provision of additional job seeking training for Ms Yelda. 149 However, it would appear from the email correspondence between Ms Kate Thomson of Resilia and Ms Halpin that on 27 November 2017, Ms Yelda declined the additional job seeking support and again confirmed this on 30 November 2017.150
[96] On 9 August 2017, Mr Connolly emailed Ms Yelda a copy of the medical exit procedure and also indicated that her paid sick leave was due to run out. 151 Mr Connolly sent another email to Ms Yelda on 16 October 2017, indicating that her sick leave was due to run out and asking how Ms Yelda would like to be paid moving forward.152
[97] A series of emails followed between Mr Connolly and Ms Yelda concerning her taking leave. Ms Yelda indicated that she wanted to take a period of annual leave and/or long service leave (16 October 2017). Mr Connolly responded on 20 October 2017, asking how Ms Yelda would like to be paid. Ms Yelda responded on 22 October 2017 stating that she understood she would be placed on leave without pay, and on 22 October 2017, Mr Connolly replied that it was Ms Yelda’s choice whether to go on to leave without pay. 153
[98] On 24 October 2017, Ms Yelda emailed Mr Connolly requesting clarification as to the amounts she had been paid and the type of leave used. 154 As Ms Yelda did not receive a response, she presumed that because she continued to provide Work Cover certificates, she would be placed on sick leave without pay.155 Ms Yelda states that she was on a period of sick leave without pay from approximately November 2017.156
[99] Between 2 May 2017 and 5 September 2018, Ms Yelda continued to provide Sydney Water with Work Cover certificates from Dr Lam. 157 Ms Yelda clarified that whilst she had previously been providing them to Resilia, after they stopped acting for Sydney Water, she provided them directly to Allianz.158 However, after feeling like the Work Cover process had failed her, and having commenced proceedings in NCAT against Sydney Water and Vitality, Ms Yelda stopped providing the Work Cover certificates and Sydney Water did not request them.159
[100] From 2017, Ms Yelda said her contact with Sydney Water, through Resilia and Allianz ceased, 160 and Ms Yelda was never deemed fit to return to work at Sydney Water.161 Ms Yelda stated that she applied for hundreds of jobs, however, was never successful.162
[101] On 7 November 2017, Dr Lam confirmed by fax that Ms Yelda was ‘permanently unable to ever return to work at Sydney Water in any capacity, anywhere within the organisation’. 163 It appears that Ms Halpin asked Professor Michael Robertson to review Dr Lam’s certificate which set out that Ms Yelda was permanently unable to return to her duties with Sydney Water.164 Referring to his assessment in July 2016 and the latter one in April 2017, the Professor concluded:
Any sensible read of the situation indicates that she is no longer capable of working with Sydney Water as the relationship has so deteriorated there is little prospect of Ms Yelda being able to tolerate working with the organisation. 165
[102] According to Ms Yelda, there were two restructures during 2018 and 2019. 166 In 2018 a work colleague had emailed her a copy of the proposal for the organisational change and informed her that neither Ms Yelda’s name nor title appeared on the organisational chart in respect of the first restructure.167
[103] A second restructure took place in January 2019. Sydney Water did not notify Ms Yelda; however a co-worker emailed her a copy of the presentation which contained the new organisational chart and document setting out reporting lines. 168 Ms Yelda said that the chart showed that her position had changed from CLO in the Networks division to Customer Advocate in the Customer HUB division.169 Ms Yelda had a new line manager and manager.170
[104] In or around January 2020, Ms Yelda requested access to ESS in an email dated 13 January 2020 and followed it up with a further request by email dated 27 February 2020. 171
[105] Insofar as Ms Yelda’s work performance was concerned, prior to her absence from work, she had received high ratings of ‘3 Effective’ and ‘4 Highly Effective’. 172 Mr Nicholson had completed Ms Yelda’s PDP document in consultation with her since 2012.173 Ms Yelda stated that at some stage prior to 30 June 2016, Mr Nicholson and Mr Gillett prepared her 2015-2016 PDP without consulting her – she was in receipt of weekly workers’ compensation payments at the time.174 The rating provided was ‘2 – needs attention in a number of areas in her 2015-2016 PDP’.175 Ms Yelda clearly did not agree with the rating and only became aware of it when the document was produced as part of the NCAT proceedings in December 2019.
[106] In respect of the performance review completed by Mr Nicholson and Mr Gillett, Mr Connolly said he discussed this with Ms Melissa McBurney, the then People and Culture Specialist. 176 According to Mr Connolly, Ms McBurney advised Mr Gillett and Mr Nicholson to simply record their concerns regarding Ms Yelda’s performance at the time of the review but to identify that Ms Yelda had not had the chance to respond – given she was unfit for work.177 As Ms Yelda did not return to work the performance review completed by Messrs Gillett and Nicholson was not finalised.178
[107] During the hearing it became evident that there had been two investigations into the circumstances of the poster and Ms Yelda’s subsequent absence. It appears that one of the investigations had been conducted by Allianz. By all accounts Ms Yelda had provided a written statement for the purpose of that investigation. The second investigation commenced in August 2016 and concluded in November 2016. 179
[108] Concerning the second investigation, Ms Yelda was said to have been approached to provide her responses regarding what had happened. Counsel for Sydney Water explained that Ms Yelda declined to provide responses and instead referred to the statement that she had provided to the insurer. Counsel further explained Ms Yelda had expressed that she had declined to participate out of concern that it may aggravate her situation. Counsel for Sydney Water acknowledged that he did not know the outcome of that investigation.
[109] Ms Yelda resigned from her employment on 10 December 2020, having been absent from the workplace since 12 April 2016.
[110] There was an evident void in the communication between Sydney Water and Ms Yelda for a period extending from October 2017 (where Ms Yelda had communicated with Mr Connolly about her leave), essentially to the time of her resignation. Although there appears to have been some dialogue between the parties regarding group certificates in 2018.
[111] When the absence of communication between Sydney Water and Ms Yelda was raised with Counsel for Sydney Water, he confirmed that there did not appear to be much, if any, direct communication during that period between the parties. However, the context by 2018 into 2019, was such that Ms Yelda had very entrenched and firm positions about how she viewed the organisation, how she viewed engagement with individuals and managers within the organisation, and how she viewed returning to the organisation. Counsel described there being a sense of hostility and opposition, and that the focus was on litigation, which by all accounts, was adversarial, and acrimonious, with all sorts of allegations having been made.
[112] Counsel for Sydney Water added that the context was one where the communication was more between legal representatives about the unfolding cases. But importantly, said Counsel, even within that context, the employment relationship endured.
3 Ms Yelda’s submissions
[113] Ms Yelda alleged she had been forced to resign as a result of a course of conduct engaged in by Sydney Water from after the display of a poster of her under the slogan ‘Feel great – lubricate!’ up until the point of her resignation on 10 December 2020. That poster had been displayed at Sydney Water’s premises absent her consent.
[114] Ms Yelda submitted that the question of whether she had been dismissed was a jurisdictional fact in the context of her application under s 365 in relation to which, the Commission must reach the right conclusion. 180 She elected to rely upon both limbs of s 386(1) in respect of her dismissal, stating that her employment had been terminated at the initiative of Sydney Water or she had been forced to resign by Sydney Water’s course of conduct.
[115] Drawing upon the NCAT proceedings, Ms Yelda submitted that when considering the course of conduct of Sydney Water, the Commission must bear in mind that certain related matters were, as a result of proceedings before NCAT, res judicata (or more technically, the subject of issue estoppel).
[116] It was explained that issue estoppel prevented both parties from traversing certain findings of fact once they had been determined by a competent tribunal. Ms Yelda referred to two cases to illustrate the operation and difference between res judicata and issue estoppel. The first case was that of Blair v Curren 181where the High Court explained:
A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is necessarily decided by the prior judgment, decree or order.
[117] The second, the decision of the Appeal Panel of NCAT, where the legal principles connoted by the expressions res judicata and issue estoppel were set out, and in respect to issue estoppel, it was said:
As to issue estoppel, the principle is that a final judgment by a competent tribunal creates an issue estoppel in that it forever binds the parties and all those who claim through them in respect of any issue of fact or law which was legally indispensable to that decision. For the doctrine of issue estoppel to apply in a second set of proceedings:
(1) the same question must have been decided;
(2) the judicial decision which is said to create the estoppel was final;
and
(3) the parties to the judicial decision or their privies were the same
persons as the parties to the proceedings in which the estoppel is
raised or their privies.
20. The parties are bound in the sense that they are precluded in subsequent proceedings from asserting, as against other parties to the judgment, to the contrary of any issue fundamental to the judgment. The issue in the subsequent proceedings must be precisely the same as that decided in the earlier proceedings. However, unlike res judicata, the plea of issue estoppel may succeed although the causes of action in the two cases are entirely different (see Halsburys at [190-100]).”
[118] Having explained the two legal concepts, Ms Yelda submitted that the issues of fact and/ or law in her case, which were now either res judicata or the subject of issue estoppel included the following:
a) that the Sydney Water, in displaying the poster, sexually harassed Ms Yelda and discriminated against her on the ground of her sex;
b) that the display of the poster was unwelcome by Ms Yelda;
c) that the display of the poster made Ms Yelda feel ‘humiliated and offended’; 182
d) that Ms Yelda’s statement of concern, embarrassment and humiliation in respect of the poster from when she first saw it was genuine; 183
e) that a reasonable person in the circumstances would have anticipated that Ms Yelda would have been offended and humiliated by the display of the poster; 184
f) that Mr Gillett decided, with Sydney Water’s Mr Darren Cash, to remove the posters because he was of the opinion that the slogan may be perceived by staff as having a sexual meaning in respect of Ms Yelda; 185
g) that one of the real reasons for selecting Ms Yelda’s image for the poster was because she is a woman; 186
h) that Ms Yelda suffered psychological or psychiatric injury arising from and following the display of the poster; 187
i) that the display of the poster remained the cause of at least a portion of Ms Yelda’s hurt feelings and psychological/psychiatric injury which may have arisen from or been exacerbated by the subsequent factors pointed to by Sydney Water – Sydney Water’s apology, the conduct of Sydney Water’s compensation insurer, and the stress of the litigation; 188
j) that it was reasonable for Ms Yelda, given her condition, (at least) in the period up until her resignation, not to return to work for the Sydney Water; 189
k) that Ms Yelda’s inability to return to work would have occurred even without the subsequent factors pointed to by Sydney Water; 190
l) that but for the incident with the poster, and subsequent events, Ms Yelda would have been able to sufficiently to manage what level of stress she was suffering from prior to the display of the poster and been able to pursue and continue a fruitful career with Sydney Water; 191
m) that Ms Yelda was a good employee who liked her work and was competent in her field; 192
n) that following the display of the poster, it is likely that some employees of Sydney Water would have thought less of Ms Yelda or held her up for ridicule; 193
o) that the apology of Sydney Water’s contractor (Vitality, which was found to have been jointly liable with Sydney Water for the display of the poster) was ‘full of “weasel words” which sought to minimise Vitality’s’ role in the display of the poster. The claim that there was a ‘miscommunication’ trivialised what had occurred’ and was unjustifiable. 194
[119] Ms Yelda also submitted that examined objectively, the conduct in which Sydney Water, Mr Gillett, and Mr Nicholson engaged in from the display of the poster until her resignation (including their omissions) had, at least, the probable result of bringing the employment relationship to an end. That conduct effectively left her with no real choice but to resign.
[120] In support of these matters, Ms Yelda referred to certain findings from the NCAT decision, which she claimed were res judicata or the subject of issue estoppel. In particular:
a) she suffered psychological or psychiatric injury arising from and following the display of the poster;
b) that the display of the poster remained the cause of at least a portion of her hurt feelings and psychological/psychiatric injury which may have arisen from or been exacerbated by the subsequent factors pointed to by Sydney Water – Sydney Water’s apology, the conduct of its workers’ compensation insurer, and the stress of litigation;
c) that it was reasonable for Ms Yelda, given her condition, in the period up until her resignation, not to return to work for Sydney Water;
d) that but for the incident with the poster, and subsequent events, Ms Yelda would have been able sufficiently to manage what level of stress she was suffering from prior to the display of the poster and been able to pursue and continue a fruitful career with Sydney Water.
[121] Ms Yelda pressed that in light of paragraph (c) above being res judicata or the subject of issue estoppel, it was not now open for the Respondents to contend that her resignation was voluntary. Ms Yelda referred to the Respondents’ statement in the Form F8A that ‘[T]he decision to resign in December 2020 was based largely on the perceptions and subjective response of the employee, a decision made by her unilaterally’.
[122] In support of NCAT’s finding that it was reasonable for her, given her condition, not to return to work for Sydney Water, Ms Yelda referred to the letter of a Dr Dave who, two months prior to Ms Yelda’s dismissal, wrote:
My opinion is that [the applicant] should not continue working with Sydney Water for the sake of her health and well-being.
[123] Ms Yelda added that one month later, her treating psychologist wrote:
…Ms Yelda would not be able to return to her work at Sydney Water without further exacerbating her Post Traumatic Stress and Depression symptoms. It is not recommended as a safe work place for Ms Yelda.
[124] Ms Yelda submitted that NCAT’s conclusion as to the objective reasonableness of her not returning to work was further supported by the more recent expert psychiatric evidence of Dr Anthony Samuels who had opined at paragraph [127] of his report that:
It seems clear from the reports I have reviewed that (Ms Yelda’s) levels of anxiety and depression were severe at the time of her resignation and she was not in a position to return to the organisation.
[125] Ms Yelda levelled further contentions against the Respondents concerning their conduct that had culminated in her dismissal. Such conduct is briefly traversed in the following paragraphs.
[126] Ms Yelda argued that Mr Gillett’s conduct of sharing her complaint about the poster to Mr Nicholson had the probable result of bringing the employment relationship to an end, either on its own or cumulatively with other acts and omissions on the part of the Respondents. Ms Yelda contended that Mr Gillett had no reason to share the complaint with Mr Nicholson in such circumstances, as he was senior to Mr Nicholson and did not require Mr Nicholson’s input in order to progress the complaint. Further Mr Gillett, would, said Ms Yelda, have been aware that Mr Nicholson would not have been able to support her emotionally following the sex discrimination and sexual harassment she had suffered in view of the state of their relationship. As a result, the sharing of her ‘confidential’ complaint had the probable result of bringing the employment relationship to an end.
[127] Mr Nicholson and Mr Gillett deposed in their witness statements prepared for the liability hearing before NCAT that, at the time of making her complaint about the poster, Ms Yelda was imminently to be spoken to about her attendance, timeliness of her work and behaviour. Ms Yelda argued that if this was not an allegation that she had only complained about the poster because she knew she was to be performance managed, it was irrelevant to the NCAT proceedings concerning liability and could only have been raised with the intention of damaging her professional reputation unnecessarily.
[128] If, however, it was intended to amount to an allegation that she had only complained about the poster because she was aware, she was to be performance managed, it imputed a high degree of mala fides to her. Ms Yelda asserted this point was not ultimately believed by NCAT which, found that her reaction to the poster in the form of her statement of concern, embarrassment and humiliation, was genuine. Ms Yelda pressed that the Respondents intended to make this suggestion impliedly, as demonstrated by Ms Halpin who wrote in an email dated 4 July 2016:
Her concerns regarding the poster surfaced following her manager arranging a time to discuss her performance. She never attended the meeting following raising the poster issue and going off on WC. 195
[129] Ms Yelda submitted that damaging an employee’s professional reputation unnecessarily or imputing mala fides to an employee who complained of sexual harassment, was not consistent with the continuation of the employment relationship.
[130] The instruction to return the company car to Sydney Water, was conduct, according to Ms Yelda, which had the probable result of bringing the employment relationship to an end. In this respect Ms Yelda pointed to having only been absent from work for one month when the instruction was given and her absence was supported by way of a medical certificate that did not excuse her from work indefinitely, but only until 8 June 2021. Further, at the time when the instruction was given, whilst unable to perform her substantive duties as a CLO, she was required by Sydney Water and its Work Cover providers, to travel to appointments of various kinds with for example medical professionals.
[131] Similarly, the removal of the company laptop and access to the company intranet at a time when she was an employee, was, objectively viewed, conduct which had the probable result of bringing the employment relationship to an end. Ms Yelda submitted that it would suggest to any employee that Sydney Water did not consider that they would return to its employ or that they should, for some other reason, be excluded from its ordinary incidents.
[132] Ms Yelda had been provided with a company mobile phone in order to perform the
requirements of her role and also so that she could be contacted by her colleagues, including so that her colleagues may check on her welfare. At the point at which Sydney Water requested that she return her company mobile phone, its number and passcode, she remained an employee of Sydney Water in her pre-injury role. Ms Yelda submitted that removing an employee’s company mobile phone in such circumstances, was conduct which, objectively, had the probable result of bringing the employment relationship to an end.
[133] Sydney Water’s omission regarding imparting information to Ms Yelda about the first and second restructures, in circumstances where Ms Yelda’s name was not included on the organisational chart for the first restructure, and in respect of the second, her job title and division in which she worked had changed, constituted, in Ms Yelda’s view conduct on the part of Sydney Water that had the probable result of bringing her employment to an end.
[134] Ms Yelda drew attention to her isolation from the workplace whilst on personal leave and otherwise absent from work. She highlighted that she was only contacted a handful of times in relation to her Work Cover claim and was not given any information about her workplace which would allow her to keep abreast of matter which might have affected her or simply been of interest.
[135] According to Ms Yelda, it was worthwhile to note that like the applicant in Muhinyuza v Teys Australia Beenleigh Pty Ltd 196 (Muhinyuza), she also had never been presented with any form of plan (even simply to discuss) for any proposed possible return to work to give her any confidence that she would be protected from any adverse consequences of the poster.197 Ms Yelda observed that in Muhinyuzathe applicant was ultimately found to have had no effective or real option but to resign.198
[136] Ms Yelda, also relied upon the exclusion from the performance review process in circumstances where she had been awarded her lowest rating ever received in her 12-year career with Sydney Water, the failure to pay her accrued annual leave and long service leave despite multiple requests, and the manner and conduct of the NCAT litigation against her.
[137] Also pointed to was Sydney Water’s lack of communication with Ms Yelda regarding the investigation into the poster. Ms Yelda described having specifically asked, on numerous occasions, to be told precisely where the poster displaying her image had been posted but had never been given a specific response.
[138] Ms Yelda referred to correspondence between Ms Simson and Ms Halpin dated 9 May 2016, in which Ms Halpin said:
…Sydney Water are going to need to investigate this matter. Have you received any information yet from Reem’s work area as to where the investigation is up to?
At this stage the reports regarding where the posters were put up at, when, how many and who saw them are inconsistent and unclear. 199
[139] Ms Yelda submitted that in circumstances where Sydney Water’s Ms Halpin recognised that reports about the investigation into the poster were ‘inconsistent and unclear’ and yet Ms Yelda was asking for this information, it was incumbent on Sydney Water to conduct an adequate investigation and to report its findings to her. Ms Yelda submitted that its failure to do so served to heighten her distress and lack of trust in her employer’s desire to resolve the situation and protect her reputation and her well-being. Whether such failure on behalf of Sydney Water was deliberate or negligent, it was inconsistent with the maintenance of the employment relationship.
[140] In her written submissions, Ms Yelda referred to the decision of the Full Bench of the Australian Industrial Relations Commission in Australian Hearing v Peary (Peary). 200This decision was referred to on several occasions during the course of the hearing – with parallels being drawn to the very circumstances of Ms Yelda.
[141] It was submitted that the correspondence from Ms Yelda’s treating health professionals was clearer than that adduced in the decision of Peary, where it was observed that the reason Ms Peary resigned was because of her poor health which had been significantly contributed to by her employment.
[142] In Peary the applicant’s resignation email attached a letter from her General Practitioner which stated:
In my opinion Lenora A Peary is suffering from a medical condition and will be unable to return to her current workplace. 201
[143] The Commission considered the operation of s 624(4) of the Workplace Relations Act 1996 (Cth) which read:
For the purposes of this Division, the resignation of an employee is taken to constitute the termination of the employment of the employee at the initiative of the employer if the employee can prove, on the balance of probabilities that the employee did not resign voluntarily but was forced to do so because of conduct, or a course of conduct, engaged in by the employer.
[144] Ms Yelda submitted that at first instance the Commissioner noted Ms Peary’s forced resignation did not involve a single incident, and therefore he was required to assess whether the sum total and seriousness of Australian Hearing’s conduct was sufficient to satisfy s 642(4). 202 The Commissioner ultimately found that the cumulative effect of Australian Hearing’s conduct had made Ms Peary’s situation so insufferable as to make her continued employment untenable – such that her resignation was the probable result.203 The Commissioner also observed that the reason for resigning was Ms Peary’s poor health but viewed objectively it was safe to conclude that her condition was significantly contributed to by her employment and that employment included the significant conduct of Australian Hearing.
[145] On appeal, the Full Bench concluded that it had no doubt that there was an adequate basis for finding Ms Peary was forced to resign.
[146] It was submitted that Peary was also authority for the proposition that there is no warrant for requiring the employee to prove an additional matter, namely that the employer ‘intended’ to force the employee to resign. 204
[147] In view of the foregoing conduct, Ms Yelda contended that it was clear that (to adopt the language of Peary) the sum total of the Respondents’ conduct toward her following the display of the poster made her situation so insufferable (including by damaging her health) that her continued employment became untenable. That is, her resignation was the probable result of the Respondents’ conduct and she had no effective or real choice but to resign.
[148] Ms Yelda observed that despite Mr Gillett and Mr Nicholson having been named as respondents and therefore parties to the litigation, neither proposed nor gave, evidence at the hearing. It was submitted that this was curious given that at least five out of the twelve substantive acts of the Respondents on which Ms Yelda relied as leaving her with no effective or real choice but to resign squarely concerned the behaviour of Mr Gillett and Mr Nicholson.
[149] Ms Yelda noted that the Respondents had proffered no explanation for their decision not to call Mr Gillett and Mr Nicholson to give evidence and therefore she would invite the Commission to draw an adverse inference against all three Respondents to the effect that nothing Mr Nicholson or Mr Gillett could say would assist the Respondents’ case.
[150] Ms Yelda further contended that there was no deficiency in her evidence about the Respondents’ course of conduct which left her with no effective or real choice but to resign. Therefore she would further contend that the evidence, which might have been contradicted by Mr Nicholson and Mr Gillett, could be accepted more readily given that neither proposed to give evidence, and that the inference that such conduct had the intended or probable result of bringing the employment relationship to an end could be more confidently drawn in circumstances where Mr Gillett and Mr Nicholson might have proved the contrary had they chosen to give evidence.
[151] As to where the burden of proof sat, Ms Yelda submitted that s 386 of the Act made no reference to burden of proof. The Explanatory Memoranda to the Fair Work Bill were also said to be equally silent on burden of proof and did not refer to case-law touching on this matter in relation to the Workplace Relations Act1996 (Cth). It must therefore be assumed, said Ms Yelda, that Parliament acted deliberately in refraining from imposing the burden upon her, the applicant. In light of this, Ms Yelda contended that the Commission should apply a neutral burden, that is, it should simply examine all the evidence before it in order to reach its conclusion.
4 Sydney Water’s submissions
[152] Sydney Water acknowledged that Ms Yelda had advanced her case under both limbs of s 386, that is, 386(1)(a) and (b). However, it submitted that Ms Yelda’s case was one which fell squarely and solely within s 386(1)(b), and in that respect there were three important points to be made. The first, was that there had been a resignation, which was not in dispute. The second and third points concerned issues in dispute, that is, that the resignation was forced, and, critically, because of the conduct or a course of conduct engaged in by the employer.
[153] A distinction was drawn by Sydney Water between an objective evaluation of the conduct in question and how particular conduct had been perceived – presumedly by Ms Yelda. It was pressed that how Sydney Water’s conduct had been perceived or what the view was of the conduct, did not constitute the relevant statutory test. The focus therefore was on the conduct per se, not the interpretations, inferences as to intent or the motivations of Sydney Water.
[154] This led Sydney Water to address one of the legal principles that had been raised by Ms Yelda in the hearing. Namely, the reliance on Jones v Dunkel 205 and the invitation by Ms Yelda for the Commission to make certain inferences. It was Sydney Water’s view that the reliance on Jones v Dunkel was misplaced. Sydney Water gave the example of Ms Yelda’s evidence at paragraph [58] of her first witness statement concerning her discussion with Mr Gillett in which he was said to have stuttered.
[155] Sydney Water submitted that taking that example at its highest, the fact that the conversation occurred, and words had been said was one thing, and Sydney Water would be precluded from denying that conversation, because Mr Gillett had not given evidence. However, Ms Yelda had invited the Commission to draw an inference from the stuttering, premised on her interpretation that Mr Gillett was acknowledging some wrongdoing which manifested in stuttering.
[156] Sydney Water continued that the Commission was entitled to infer that even if Mr Gillett had given evidence, he would not be able to assist in refuting the conversation, as had been asserted. But the question as to why he stuttered was a matter of speculation, opinion, interpretation, or perception. Sydney Water submitted that while it accepted that it could not deny the discussion between Mr Gillett and Ms Yelda, it challenged the perception expressed about the interpretation that should be cast upon Mr Gillett’s stuttering in that conversation, and the misplaced reliance on Jones v Dunkel.
[157] To further resist Ms Yelda’s submission that there was any basis to make inferences in reliance on Jones v Dunkel, Sydney Water turned to the documentary evidence upon which it relied, namely, its business records. According to Sydney Water the documents adduced and relied upon were created in the conduct of its business and as such constituted contemporaneous evidence as to what had occurred - the documents speaking for themselves.
[158] Similarly, with respect to the other matters such as the vehicle or the mobile telephone, Sydney Water submitted there were contemporaneous emails which spoke to the circumstances and therefore provided the Commission with a proper basis to make findings as to the objective facts as to what was occurring at the time.
[159] It was observed that there had been repeated references by Ms Yelda to things occurring or said in NCAT decisions and the conduct of the parties in the NCAT proceedings such that issue estoppel arose.
[160] Sydney Water submitted that an important issue that needed to be addressed at the outset was the attempt by Ms Yelda to erect an argument based on issue estoppel and rely on the NCAT decision as a basis for findings of fact in the present matter.
[161] Sydney Water continued that Ms Yelda’s argument involved a fundamental misunderstanding as to the legal concepts of issue estoppel and res judicata, in addition to ignoring the well accepted position and rule of evidence that prevents a party from relying on the decisions of another court or tribunal as the basis for findings of fact in separate proceedings.
[162] The effect of Ms Yelda’s submission was that it was not now open for the Respondents to contend that her resignation was voluntary in light of the NCAT decisions. Sydney Water responded by informing the Commission that it should reject entirely this misconceived contention (including because NCAT did not address or make findings in respect of ss 386 and 365 of the Act).
[163] Sydney Water argued that in respect to what had happened in the NCAT decisions, the Evidence Act 1995 (Cth) (Evidence Act) made it clear the evidence of the decision or a finding of fact in an Australian or overseas proceeding is not admissible to prove the existence of fact that was in issue in this proceeding. 206
[164] Sydney Water continued that judgments in rem, where there has been adjudication on some ownership, for instance, or judgments in res judicata, where for example there has been a claim determined, and issue estoppel as attaching to legal issues - were not factual matters, all were legal issues.
[165] It was expressed that the Commission needed to make its determination having regard to its statutory mandate and the question which arose for it. In respect of issue estoppel and the way the principle was relied upon by Ms Yelda, Sydney Water submitted that it was an incorrect reliance and a misreading of the Evidence Act provisions.
[166] By reference to the decision of Australian Workers’ Union v Groundhog Civil (Vic) Pty Ltd, 207 Sydney Water drew upon, in part, the following passage:
[17] Although, strictly speaking the rules of evidence and procedure do not bind the Commission in relation to a matter before it, there are sound reasons for general adherence to these rules, not least because they will generally guide the conduct of a matter in a manner that is fair and will also ensure that the Commission follows consistently sound and appropriate procedures.
[167] In oral submissions Sydney Water also addressed Ms Yelda’s reliance on the Full Bench decision of Peary, where the decision at first instance had been upheld. Referring to paragraph [8] of the Full Bench decision, Sydney Water noted that the Full Bench extracted the reasons at first instance underlying the decision that there was ultimately a forced resignation.
[168] Importantly, said Sydney Water, that conduct included critical conduct, such as Australian Hearing's failure to return Ms Peary to the position for which she was employed, namely office manager, Lismore, at the end of the three-month period and required her to continue in temporary arrangements it imposed under its disciplinary powers. There was objective conduct in Peary which rendered it effectively impossible for the applicant employee to return to her employed position, and in that context she resigned. Sydney Water submitted that quite properly, the Commission and the Full Bench, held, having regard to the objective conduct of the employer the employee that there had been no choice but to resign. It was not a question of intent or motivation, said Sydney Water.
[169] As to the Respondents’ conduct that Ms Yelda had relied upon in support of her arguments under ss 386(1)(a) and (b), Sydney Water emphasised that the Commission would need to consider whether or not such alleged conduct could be characterised as having some intent to bring the employment relationship to an end or would have had that probable result. Further, it said, the Commission would need to consider whether the alleged conduct taken together could be characterised as displaying an intent to bring the employment relationship to an end or would have had the probable result.
[170] However, as it was, the Respondents denied the alleged conducted as characterised and perceived by Ms Yelda. It was submitted that Ms Yelda’s subjective views and responses reflected and were a product of her sense of grievance and dissatisfaction, ‘phobic responses’, ‘resolute anger towards Sydney Water’, ‘demonising of Sydney Water and its process’, ‘sense of nihilism about her future with Sydney Water’, ‘personalisation of the situation’, resolve ‘in not wishing to engage in a process of rectifying the situation’ and ‘narcissistic injury’. The Respondents referred to that which was reported by Associate Professor Michael Robertson, who noted ‘(T)here is clearly complexity to Ms Yelda’s psychological response to the difficulties in her previous workplace and in particular the manner in which she has demonised the employer and situated herself as being victim of “injustice”’.
[171] The Respondents pressed that, on an objective analysis of the evidence, Ms Yelda’s characterisation and views about their alleged conduct were without basis, there being no conduct on the part of Sydney Water which could be characterised as displaying an intent to bring the employment relationship to an end or would have had that probable result (including as at the date of resignation on 10 December 2020).
[203] The request to return Sydney Water’s laptop and company car on or around 13 May 2016, was understandable considering the context presented. That context included a Vehicle Policy that authorised the return of the Sydney Water vehicle when an employee was absent from work, and the requirement to provide resources, such as a laptop and mobile phone, to an incumbent CLO who would be replacing Ms Yelda while Ms Yelda was absent.
[204] The direct evidence adduced by Sydney Water supports the finding that the return of laptop, mobile phone and vehicle were legitimate requests made not with the intention of isolating Ms Yelda or otherwise leaving her with no real choice but to resign, but because of the necessity for the resources that were not in operational use to be redirected for that purpose. While Ms Yelda gave evidence of other workers who had retained use of Sydney Water assets whilst on a period of leave, the evidence was insufficient to dissuade me from the finding reached. I note Sydney Water gave evidence of the return of a laptop where another employee was on leave.
[205] While the inadvertent consequence of removing Ms Yelda’s laptop may have been to leave her with limited, if not no, access to the company’s intranet, Mr Connolly expressed that Ms Yelda could have accessed ‘Business Connect’ remotely, which she did in late 2019 and early 2020, 230 or could have contacted Ms Halpin or him, to facilitate access or to provide any relevant employment documents.231 I consider that to be an accurate appraisal.
[206] It appears that Ms Yelda inadvertently returned her identification card when she returned the Sydney Water vehicle. Sydney Water did not return the identification card. Mr Connolly reports not having ever been informed that Ms Yelda sought its return. It is difficult to find that Sydney Water failed to return the identification card when its human resources function appeared not to know that it had been returned or that Ms Yelda sought its return.
[207] The evidence shows that between 2 May 2017 and 5 September 2018, Ms Yelda continued to provide Sydney Water with Work Cover certificates from Dr Lam. 232 However, after feeling like the Work Cover process had failed her and having commenced proceedings in NCAT against Sydney Water and Vitality, Ms Yelda said she stopped providing the Work Cover certificates and Sydney Water did not request them.233 There was no evidence before me suggestive of Sydney Water seeking justification for Ms Yelda’s continued absence, and this lack of communication is problematic for Sydney Water – which will be later explored.
[208] On 7 November 2017, Dr Lam confirmed, by fax, that Ms Yelda was ‘permanently unable to ever return to work at Sydney Water in any capacity, anywhere within the organisation’. 234 Professor Michael Robertson reviewed Dr Lam’s certificate and after reviewing his previous assessments of Ms Yelda concluded that Ms Yelda was no longer capable of working with Sydney Water as the relationship had so deteriorated.
[209] Indubitably, from at least early 2018, there was essentially no contact between Sydney Water and Ms Yelda. Counsel for Sydney Water conceded as much and referred to there having been litigation on foot, perhaps by way of reason for the dearth of contact. However, until the point of her resignation, Ms Yelda of course remained an employee of Sydney Water. Perhaps it was not insouciance on Sydney Water’s part, but rather an inept approach to managing an ill and injured employee –who was litigating against it. Whatever the reason, the absence of contact was unacceptable and inappropriate, and leads to a conclusion that Sydney Water no longer approached Ms Yelda as its employee.
[210] However, it must be pointed out that in respect of the performance review completed by Mr Nicholson and Mr Gillett, I believe the evidence presented that the two gentlemen were advised to partially complete the review noting that Ms Yelda had not had the chance to respond. Further, it is apparent that an opportunity did not arise for the gentlemen to discuss the review with Ms Yelda given that Mr Nicholson ceased being Ms Yelda’s line manager in 2017, Mr Gillett retired in July of 2018, and Ms Yelda remained unfit for work at Sydney Water during the relevant duration.
[211] With respect to the two restructures that impacted upon Ms Yelda, I again do not find fault with either Mr Nicholson or Mr Gillett given Mr Gillett was said to have retired from Sydney Water on 27 July 2018, and Mr Nicholson had not been Ms Yelda’s line manager since 21 August 2017.
[212] Sydney Water highlighted that each of the instances relied upon by Ms Yelda went back several years and, for the most part, occurred during 2016. However, that is not an entirely adequate or accurate depiction of what had occurred. Whilst Sydney Water initially responded in an appropriate and legitimate manner for a period whilst Ms Yelda was absent from work, it remains that it was its decision to publish and promulgate the poster of Ms Yelda that sexualised her, it failed to investigate the incident and proffer to Ms Yelda the outcomes of such report -by way, for example, action it would take to avoid future recurrence, and for a period of two years it made no contact with Ms Yelda, save the contact referred to in this decision. The absence of communication extended to the point proximal to Ms Yelda’s resignation. A temporal connection is therefore established.
[213] Returning to O’Meara v Stanley Works Pty Ltd, 235 the Full Bench of the Australian Industrial Relations Commission said in that case:
[23]… [I]t is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. 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 of that the appellant had no effective or real choice but to resign.
[214] The question is not merely whether the act of the employer, which must be a principal contributing factor 236, resulted directly or consequentially in the termination of employment, but whether on an objective analysis of the employer’s conduct the employee’s effective or real choice was so negated that resignation was inevitably the only recourse.
[215] Often it will be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign from employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. 237 The Full Bench of the Australian Industrial Relations Commission cautioned ‘but narrow though it be, it is important that the line be closely drawn and rigorously observed’, the Bench continued:
[O]therwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination 238…
[216] There is no denying that Sydney Water was placed in a difficult circumstance of managing an employee who was not fit for work for a period, who was not fit to return to its workplace, and who had opted to litigate. However, ultimately it fell upon Sydney Water to manage the situation and there was no suggestion from Sydney Water that Ms Yelda had abandoned her employment or otherwise repudiated her employment contract. While the conduct it engaged in was at times appropriate and acceptable in managing Ms Yelda for a period in 2016 and 2017, it does not negate the conclusion that Ms Yelda’s resignation was the probable result of its conduct, her having no effective or real choice but to resign in the face of Sydney Water’s prolonged silence from 2018. On an objective analysis of the evidence, the conduct of Sydney Water displayed an intent to bring the employment relationship to an end or would have had that probable result (including as at the date of resignation on 10 December 2020).
[217] As to Ms Yelda’s lengthy arguments about res judicata and issue estoppel, I observe that Ms Yelda’s claim before NCAT was in respect of sex discrimination and sexual harassment. The issue before this Commission is simply whether Ms Yelda was dismissed, there being no requirement to make a finding as to whether Ms Yelda was discriminated against on unlawful grounds or harassed. The issue before me fundamentally differs to the proceedings before NCAT whether in respect of those pertaining to liability or damages. The decision in Miller v University of New South Wales 239 provides an example of where res judicata and issue estoppel may not be enlivened in light of the claims on foot, the issues traversed, and the facts found.
[218] In written submissions Ms Yelda had referred to the NCAT finding that it was not unreasonable in the circumstances that she did not return to the workplace. Sydney Water differentiated the case before NCAT from the one on foot, observing it was in a wholly different context, with a legal issue regarding sexual harassment and so forth. As will be clear from the preceding paragraph, I agree with Sydney Water in this respect. In the current context there was no issue regarding ‘reasonableness’. Whether it was ‘unreasonable’ for Ms Yelda not to return to work does not answer the question in issue and does not address the statutory requirements under consideration.
[219] That is not to say that res judicata and issue estoppel do not apply to proceedings before the Commission. The decision in Miller v University of New South Wales 240 would appear to suggest otherwise. Albeit in decisions such as Inna Grabovsky v United Protestant Association NSW Ltd241the Commission has considered it unnecessary to decide whether the doctrine of res judicata applied to the proceedings in light of the issues before it. I consider I am similarly placed.
[220] In the proceedings, Ms Yelda invited the Commission to make certain inferences, and in doing so she placed reliance on Jones v Dunkel. 242 It was Sydney Water’s view that the reliance on Jones v Dunkel was misplaced. I similarly agree with Sydney Water’s submissions in this respect.
[221] Ms Yelda drew support for her case from the decision of Peary, observing that at first instance the Commissioner noted Ms Peary’s forced resignation did not involve a single incident, and therefore he was required to assess whether the sum total and seriousness of Australian Hearing’s conduct was sufficient to satisfy s 642(4). 243 That proposition is, in my view, uncontroversial.
[222] Quite correctly however, Sydney Water sought to distinguish Peary observing that the circumstances of Ms Yelda’s case were distinguishable from the circumstances that led Ms Peary to resign. Sydney Water, pointed to Australian Hearing’s failure to return Ms Peary to the position for which she was employed, namely office manager, Lismore, at the end of the three-month period and the requirement she continue in temporary arrangements it imposed under its disciplinary powers. There was objective conduct in Peary which rendered it effectively impossible for the applicant employee to return to her employed position, and in that context she resigned.
[223] Like Peary however, Ms Yelda premised her case upon more than a single incident – although at times she proposed that a singular act could have the probable result of bringing the employment relationship to an end. The Commissioner ultimately found that the cumulative effect of Australian Hearing’s conduct had made Ms Peary’s situation so insufferable as to make her continued employment untenable – such that her resignation was the probable result. 244 He also observed that the reason for resigning was the Ms Peary’s poor health but viewed objectively it was safe to conclude that her condition was significantly contributed to by her employment and that employment included the significant conduct of Australian Hearing.
[224] The conduct embarked up on by Australian Hearing clearly differed to that of Sydney Water. However, the commonality was that both Ms Peary and Ms Yelda suffered from poor health during the employment relationship and at its end. While Ms Yelda’s health played a part in the reason for her dismissal, it appeared to be not the only reason. Ms Yelda referred to the events that transpired in 2016, her treatment by Sydney Water following those events, and the damage to her health, professional image and career.
[225] However, it is important to return to the issue to be determined and that is whether Ms Yelda has been dismissed as the term is understood by reference to either s 386(1)(a) or (b) of the Act. While Ms Yelda may provide reasons for her ‘dismissal’, ultimately it falls upon this Commission to determine whether Ms Yelda was dismissed.
6 Conclusion
[226] On the balance of probabilities, I have concluded that Ms Yelda did not resign voluntarily but was forced to do so because of conduct, or a course of conduct, engaged in by Sydney Water. Therefore, Ms Yelda was dismissed. In arriving at this conclusion, I have considered several incidents as being critical. The first, the approval, publication and promulgation of the poster by Sydney Water. The second, the failure of Sydney Water on receipt of Ms Yelda’s grievance about the poster and enquiries about the same, to conduct a workplace investigation culminating in outcomes that were communicated to Ms Yelda. The third, the failure of Sydney Water to communicate an apology to Ms Yelda post investigation and to specify in writing the number of posters distributed, returned and destroyed. The fourth, the failure of Sydney Water to communicate with Ms Yelda after 2017 up until the point of her resignation.
[227] In respect to the litigious approach that Sydney Water took in response to the various applications that Ms Yelda launched against it, I consider nothing turns on such conduct. Once a litigious route has been adopted the parties are free to pursue their own strategic direction as permitted by the law. However, outside of the legal arena an employee remains just that – an employee.
[228] Turning to the First and Second Respondents, the evidence does not lend itself to a finding that Ms Yelda’s resignation was involuntarily because of conduct, or a course of conduct, engaged in by either Mr Gillett or Mr Nicholson. I have considered all propositions levelled against the two gentlemen in arriving at this conclusion. This includes, amongst other assertions, the performance review that Mr Nicholson and Mr Gillett completed on the advice of Ms McBurney, the request to return the vehicle, laptop and mobile phone, and the disclosure by Mr Gillett to Mr Nicholson about Ms Yelda’s complaint. While I have spoken of Sydney Water’s lack of contact with Ms Yelda, it is noted that Mr Nicholson was no longer Ms Yelda’s line manager from 21 August 2017, and of course Mr Gillett retired in July 2018. Further, it is apparent that on the commencement of Ms Yelda’s absence, Sydney Water took the strategic step of engaging Resilia to liaise with Ms Yelda given the aim to return Ms Yelda back to work cognisant of Ms Yelda’s mental health.
[229] Having determined Ms Yelda was dismissed, she is entitled to apply under s 365 of the Act for the Commission to deal with her dismissal dispute. It is therefore worth outlining s 370 of the Act, which, in setting out the pre-requisites for the making of a general protections court application, provides an overview of the next steps for the conduct of Ms Yelda’s application:
s 370 A person who is entitled to apply under s 365 for the FWC to deal with a dispute” must not make a general protections court application (as defined in s 368(4)) in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b) the general protections court application includes an application for an interim injunction.
[230] The precursor to the issuing of the required certificate under s 368(3)(a) is that the Commission must deal with the dispute by conducting a conference 245 and reach a level of satisfaction that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful.246
[231] Finally, while I have determined Ms Yelda was dismissed by Sydney Water and is therefore entitled to apply under s 365 of the Act for the Commission to deal with her dismissal dispute, it should be noted that the Full Court in Coles Supply Chain Pty Ltd v Milford 247made observations of the following nature regarding s 370 of the Act and the making of a general protection court application:
The Act establishes multiple alternate pathways for an applicant and prospective litigants:
• section 370 of the Act is to be interpreted against the background that while the Commission may determine the question of a person’s entitlement to make an application to it, this may not be conclusive; and
• this is because a Court may ultimately decline to recognise an “application” or resulting certificate granted by the Commission as valid, if called upon by a Respondent to determine a subsequent objection to the competency of a general protections court application under s.370 of the Act. 248
[232] For present purposes and as a result of my determination, this matter will now be listed for conference between Ms Yelda and Sydney Water in order to explore the possibility of resolution.
DEPUTY PRESIDENT
Appearances:
Ms. Sheryn Omeri Counsel for the Applicant;
Harmers Lawyers Solicitors for the Applicant;
Mr. Bilal Rauf Counsel for the Respondent;
Bartier Perry Lawyers Solicitors for the Respondent.
Hearing details:
Perth (video);
August 24 and 25;
2021.
Final written submissions:
Friday, 20 August 2021.
Printed by authority of the Commonwealth Government Printer
<PR736688>
1 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 [54]; [2021] HCASL 37.
2 Ibid [51].
3 Witness Statement of Reem Yelda dated 28 May 2021 (‘Yelda Statement’) [19].
4 Ibid [19].
5 Ibid [24].
6 Ibid [24].
7 Ibid [24].
8 Ibid [25].
9 Ibid [20].
10 Ibid [20].
11 Ibid [20].
12 Ibid [26].
13 Ibid [27].
14 Ibid [27].
15 Ibid [28].
16 Ibid [30].
17 Ibid [43].
18 Ibid [45].
19 Ibid [45].
20 Ibid [62].
21 Ibid [63].
22 Ibid [63].
23 Ibid [46].
24 Ibid [46].
25 Ibid [46].
26 Ibid [50].
27 Ibid [51].
28 Ibid [52].
29 Ibid [52].
30 Ibid [55].
31 Ibid [56].
32 Ibid [57].
33 Ibid [58].
34 Ibid [58].
35 Ibid [59].
36 Ibid [65].
37 Ibid [66].
38 Ibid [68].
39 Ibid [68].
40 Ibid [70] and [71].
41 Ibid [72].
42 Ibid [77].
43 Ibid [79].
44 Ibid [79].
45 Ibid [79].
46 Ibid [81].
47 Ibid [81].
48 Ibid [83].
49 Ibid [84].
50 Ibid [84].
51 Ibid [86].
52 Ibid [86].
53 Ibid [87].
54 Ibid [87].
55 Ibid [87].
56 Ibid [88].
57 Ibid [92].
58 Ibid [93].
59 Ibid [95].
60 Ibid [95].
61 Ibid [99].
62 Ibid [99].
63 Ibid [101].
64 Ibid [101].
65 Ibid [101].
66 Ibid [102].
67 Ibid [103].
68 Ibid [103].
69 Ibid [103].
70 Ibid [104].
71 Ibid [104].
72 Ibid [105].
73 Ibid [108].
74 Ibid [109].
75 Ibid [112].
76 Ibid [115].
77 Ibid [114].
78 Ibid [117] Annexure RY-30.
79 Yelda Statement [119] and [118].
80 Ibid [119].
81 Ibid [119].
82 Ibid [119].
83 Ibid [120].
84 Ibid [120].
85 Ibid [122].
86 Ibid [122].
87 Ibid [123].
88 Ibid [126].
89 Ibid [127].
90 Ibid [155].
91 Ibid [155].
92 Ibid [155].
93 Witness Statement of Liam Connolly (‘Connolly Statement’) [29].
94 Ibid [37].
95 Yelda Statement [156].
96 Ibid [156].
97 Respondent’s Bundle of Documents Tab 4.
98 Connolly Statement [25].
99 Ibid [25].
100 Respondent’s Bundle of Documents Tab 7.
101 Respondent’s Bundle of Documents Tab 7.
102 Connolly Statement [33].
103 Yelda Statement [169].
104 Ibid [170].
105 Ibid [171].
106 Ibid [173].
107 Ibid [159].
108 Ibid [163].
109 Ibid [163].
110 Connolly Statement [39].
111 Ibid [38].
112 Yelda Statement [177].
113 Ibid [177].
114 Ibid [128].
115 Ibid Annexure RY-47.
116 Ibid [130].
117 Ibid [131].
118 Ibid [141].
119 Ibid Annexure RY-56.
120 Ibid Annexure RY-57.
121 Ibid [142].
122 Ibid [142].
123 Ibid [143].
124 Connolly Statement [45]; Respondent’s Bundle of Documents Tab 30.
125 Ibid [45]; Respondent’s Bundle of Documents Tab 33.
126 Ibid [45]; Respondent’s Bundle of Documents Tab 28.
127 Ibid [45]; Respondent’s Bundle of Documents Tab 31.
128 Ibid [45]; Respondent’s Bundle of Documents Tab 39.
129 Ibid [45]; Respondent’s Bundle of Documents Tab 39.
130 Ibid [45]; Respondent’s Bundle of Documents Tab 39.
131 Ibid [45]; Respondent’s Bundle of Documents Tab 44.
132 Ibid [45]; Respondent’s Bundle of Documents Tab 46.
133 Ibid [45]; Respondent’s Bundle of Documents Tab 47.
134 Ibid [45]; Respondent’s Bundle of Documents Tab 47.
135 Ibid [45]; Respondent’s Bundle of Documents Tab 47.
136 Ibid [45]; Respondent’s Bundle of Documents Tab 47.
137 Ibid [46].
138 Ibid [46]; Respondent’s Bundle of Documents Tab 21.
139 Ibid [48]; Respondent’s Bundle of Documents Tab 22.
140 Connolly Statement [48]; Respondent’s Bundle of Documents Tab 22.
141 Yelda Statement [144].
142 Ibid [144].
143 Connolly Statement [45].
144 Ibid [45].
145 Ibid [51] and [52].
146 Ibid [52].
147 Ibid [52].
148 Ibid [52].
149 Connolly Statement [58].
150 Connolly Statement [59]; Respondent’s Bundle of Documents Tab 54.
151 Yelda Statement [145].
152 Ibid [146].
153 Ibid [150].
154 Ibid [151].
155 Ibid [151].
156 Ibid [152].
157 Ibid [153].
158 Ibid [154].
159 Ibid [154].
160 Ibid [180].
161 Ibid [178].
162 Ibid [182].
163 Witness Statement of Anthony Barron [22]; Respondent’s Bundle of Documents Tab 49.
164 Respondent’s Bundle of Documents Tab 50.
165 Respondent’s Bundle of Documents Tab 50.
166 Yelda Statement [183] and [186].
167 Ibid [184].
168 Ibid [187].
169 Ibid [188].
170 Ibid [188].
171 Ibid [166].
172 Ibid [198].
173 Ibid [197].
174 Ibid [199].
175 Ibid [200].
176 Connolly Statement [43].
177 Ibid [43].
178 Ibid [44].
179 Transcript PN [1781].
180 Pawel v Australian Industrial Relations Commission [1999] FCA 1660 [16]; Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 [67] – [68].
181 (1939) 62 CLR 464, 531-532.
182 Yelda v Sydney Water Corporation [2019] NSWCATAD 203 [120]-[122].
183 Ibid [122].
184 Ibid [152], [156].
185 Ibid [160], [161].
186 Ibid [183].
187 Yelda v Sydney Water Corp [2021] NSWCATAD 107 [272].
188 Ibid [280].
189 Ibid [281].
190 Ibid [281].
191 Ibid [297].
192 Ibid [298].
193 Ibid [317].
194 Ibid [332]-[333].
195 Yelda Statement Annexure RY-75.
196 [2020] FWC 2996.
197 [2020] FWC 2996 [84], [90].
198 [2020] FWC 2996 [120].
199 Yelda Statement Annexure RY-75.
200 [2009] AIRCFB 680 (‘Peary’).
201 Ibid [24].
202 Ibid [28].
203 Ibid [28].
204 Ibid [30].
205 (1959) 101 CLR 298.
206 Evidence Act 1995 (Cth) s 91.
207 [2020] FWC 2557.
208 Resilia Return to Work Progress Report – Same Employer dated 14 July 2016, Respondent’s Bundle of Documents Tab 33 (page 167).
209 Statement of Anthony Barron at [21(e)].
210 Report of Dr Samuel Lim dated 29 January 2021, Respondent’s Bundle of Documents Tab 51
(page 287, particularly pages 311 - 314).
211 [2017] FWCFB 3941 (‘Bupa’).
212 Ibid [47].
213 [2018] FWCFB 5.
214 Mohazab v Dick Smith Electronics Pty Ltd [ No 2] (1995) 62 IR 200.
215 (2016) 262 IR 221.
216 Mohazab v Dick Smith Electronics Pty Ltd [ No 2] (1995) 62 IR 200, 205.
217 Yelda Statement Annexure RY-27.
218 Yelda Statement Annexure RY-27.
219 Yelda Statement Annexure RY-27.
220 Yelda Statement Annexure RY-75.
221 Connolly Statement [45]; Respondent’s Bundle of Documents Tab 39.
222 Witness Statement of Reem Yelda Dated 20 August 2021 [121] and [124].
223 Yelda Statement [104].
224 Ibid [112].
225 Connolly Statement [45]; Respondent’s Bundle of Documents Tab 47.
226 Bupa [47].
227 Yelda Statement [103].
228 Connolly Statement [45].
229 Connolly Statement [52].
230 Connolly Statement [39].
231 Connolly Statement [38].
232 Yelda Statement [153].
233 Yelda Statement [154].
234 Witness Statement of Anthony Barron [22]; Respondent’s Bundle of Documents Tab 49.
235 [2006] AIRC 496.
236 A.S Doumit v ABB Engineering Construction Pty Ltd Print N6999.
237 Ibid.
238 Ibid; cited with approval in BC Stubbs v Austar Entertainment Pty Ltd, Print Q0008.
239 [2003] FCAFC 180.
240 Ibid.
241 [2019] FWCFB 1964.
242 (1959) 101 CLR 298.
243 Peary [28].
244 Ibid [28].
245 Fair Work Act 2009 (Cth) ss 368(1), (2).
246 Ibid s 368(3).
247 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.
248 Ibid at [74]-[75].
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