Rezkalla v The Trustee for Lazarovski Family Trust (No 2)
[2023] FedCFamC2G 346
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rezkalla v The Trustee for Lazarovski Family Trust (No 2) [2023] FedCFamC2G 346
File number: MLG 3062 of 2021 Judgment of: JUDGE CHAMPION Date of judgment: 5 May 2023 Catchwords: INDUSTRIAL LAW – Adverse action – Applicant alleging dismissal due to complaints – Alleged dismissal because of discrimination – Alleged dismissal because of complaints within meaning of s. 341(1)(c)(ii) – Alleged dismissal because of temporary absence due to illness – Employer company since deregistered – Owner who dismissed the Applicant has since died – No contraventions found –– No accessorial liability Legislation: Children Services Award 2010
Evidence Act 1995 (Cth) s. 69
Fair Work Act 2009 (Cth) ss. 340, 341, 342, 351, 352, 361, 550
Fair Work Regulations 2009 (Cth) reg. 3.01
Federal Circuit and Family Court of Australia Act 2021 (Cth) s. 190
Cases cited: Australian Building and Construction Commissioner v The Australian Manufacturing Workers’ Union [2017] FCA 167
CFMEU v. De Martin & Gasparini Pty Ltd. (No. 2) [2017] FCA 1046
Fair Work Ombudsmanv Devine Marine Group Pty Ltd [2014] FCA 1365
Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346
Tattsbett Ltd. v Morrow (2015) FCR 46
Division: Division 2 Family Law Number of paragraphs: 79 Date of last submissions: 4 April 2023 Date of hearing: 3 & 4 April 2023 Place: Melbourne Applicant: Appearing in person First Respondent: No appearance Second, Third and Fourth Respondents Appearing in person ORDERS
MLG 3062 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANAL REZKALLA
Applicant
AND: THE TRUSTEE FOR P & D LAZAROVSKI FAMILY TRUST
First Respondent
AMANDA SPOTO
Second Respondent
DAPHNE CHRISTOU (and another named in the Schedule)
Third Respondent
order made by:
JUDGE CHAMPION
DATE OF ORDER:
5 May 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
REASONS FOR JUDGMENT
JUDGE CHAMPION
INTRODUCTION AND SUMMARY
Ms Manal Rezkalla (Ms Rezkalla), the Applicant, was an employee of Lazarovski Investments Pty Ltd as The Trustee for P & D Lazarovski Family Trust (Lazarovski Investments) at a childcare centre known as Hillside Cottage (Hillside Cottage) in the Melbourne suburb of Hillside. Lazarovski Investments employed Ms Rezkalla, as a cook and assistant educator. Ms Rezkalla’s employment was short-lived: she was employed for a 7-week period from about 27 July 2021 until she was dismissed on 9 September 2021.
Ms Debbie Lazarovksi was the long-term director of Lazarovksi Investments. Ms Lazarovksi died on 1 December 2021. Following her death, Lazarovksi Investments was deregistered on 17 February 2022. Since an interlocutory judgment in this proceeding which concluded it was not possible for Ms Rezkalla to maintain her action against a deregistered entity, Ms Rezkalla’s proceeding is no longer on foot as against Lazarovski Investments, formerly the First Respondent: see Rezkalla v. The Trustee for P & D Lazarovski Family Trust [2022] FedCFamC2G 56 (O’Sullivan J).
Despite the deregistration of her former employer, Ms Rezkalla nonetheless continued to pursue her claim against several fellow employees. The second to fourth named respondents were other employees of Lazarovski Investments at the time of Ms Rezkalla’s employment, as follows:
(a)Ms Amanda Spoto was the Centre Manager of Hillside Cottage and the Second Respondent (Ms Spoto);
(b)Ms Daphne Christou was an educator and the Third Respondent (Ms Christou); and
(c)Ms Hayley Jakins was an educator and the Fourth Respondent (Ms Jakins).
At trial, all parties were self-represented. An interpreter in the Arabic language assisted the Applicant. Ms Spoto, who now lives in Far North Queensland, was permitted to appear at the trial by Microsoft Teams in line with the overarching purpose of the Court to resolve disputes at a cost that is proportionate to the importance and complexity of the matters in dispute: Federal Circuit and Family Court of Australia Act 2021 (Cth), s. 190(2)(e).
Ms Rezkalla alleges that she was dismissed from her employment in contravention of Part 3.1 of the Fair Work Act 2009 (Cth) (Act) because of any one of, or a combination of, the following:
(d)she made a complaint that her colleagues were not doing their share of the work and that she was being allocated cleaning duties in breach of her employment contract (first complaint); or
(e)she made a complaint that she was being harassed by her colleagues in employment (second complaint) (further details as to the first complaint and the second complaint are below); or
(f)because she is Egyptian Australian (discrimination); or
(g)because she was temporarily absent from work because of illness (the sick leave).
I find that Ms Rezkalla was not dismissed because of any one or more of the first complaint, the second complaint, the discrimination or the sick leave. Ms Lazarovksi dismissed Ms Rezkalla from her employment because Ms Lazarovski decided that Ms Rezkalla was not prepared to perform cleaning duties in accordance with lawful and reasonable directions given to her in accordance with her employment contract.
The application will be dismissed. I have set out my reasons below.
BACKGROUND
Ms Rezkalla is Egyptian-Australian.
As set out above, Ms Rezkalla was employed by Lazarovski Investments at Hillside Cottage from about 27 July 2021 until 9 September 2021. Hillside Cottage operated a 52-place childcare centre. There were approximately 12 employees, most of whom were part-time employees.
The Children Services Award 2010 (Award) applied to Ms Rezkalla’s employment.
Although Ms Rezkalla was first employed as a cook, after just one week of employment on 3 August 2021, the parties agreed in writing to a variation to Ms Rezkalla’s employment contract. Pursuant to the variation, Ms Rezkalla was to be employed as “Assistant Educator/Cook – Support Worker". She was a “permanent part time” employee. She was classified at Level 3.3 under the Award. Her hours were “up to 75 hours per fortnight". Her actual hours varied. They averaged 26 hours weekly. She (along with other employees) had their hours reduced because of COVID-19 lockdowns. She was paid $25.26 hourly with 10% superannuation. She was ultimately responsible to the “Approved Provider – Debbie Lazarovski.” The employer maintained a Position Description for assistant educators. Ms Rezkalla denied that she had ever seen this document. Ms Rezkalla described her duties as preparing the children’s food, kitchen duties and covering educators’ breaks in the children’s rooms as required.
Lazarovski Investments employed Ms Spoto as Centre Manager at Hillside Cottage. Although Ms Spoto ultimately reported to Ms Lazarovski, Ms Spoto was the senior employee at Hillside Cottage day–to-day. Ms Spoto’s evidence was that Ms Lazarovski always made final business decisions. In particular, Ms Spoto’s evidence was that the decision to dismiss Ms Rezkalla from employment was not her decision, but the sole decision of Ms Lazarovski. Ms Spoto appended her electronic signature to the dismissal letter dated 9 September 2021, but she did so solely because of Ms Lazarovksi’s direction and on the basis that she was implementing Ms Lazarovski’s decision.
Ms Christou was a Lead Educator. Ms Christou reported to Ms Spoto. She was a colleague of Ms Rezkalla but not her supervisor.
Ms Jakins was also an educator and an employment colleague of Ms Rezkalla. She also was not in a supervisory position with regard to Ms Rezkalla.
THE APPLICANT’S CASE AND THE CHRONOLOGY OF EVENTS
The First Complaint – allocation of cleaning work
Ms Rezkalla says that that she made an oral complaint to Ms Lazarovski “around the third week of employment” – mid-August 2021: (CB19: Statement of Claim (SOC), [34]). Ms Rezkalla’s complaint was that Ms Christou would slip out from Hillside Cottage many times a day to smoke outside and did not do her duties as a kindergarten teacher under the guise of supervising the kitchen. According to Ms Rezkalla, Ms Christou’s actions meant that Ms Rezkalla had additional work to do covering for Ms Christou, adding at least 20 minutes per day to her shift.
A further aspect to Ms Rezkalla’s First Complaint was that that she was unreasonably assigned duties in addition to her food supervision work. Ms Rezkalla’s grievance was that she was assigned more than her share of cleaning work, when she had not been employed as a cleaner. She made a complaint that as an educator she should not be assigned so much cleaning work because it was outside the scope of what she had been employed to do. She also made a complaint that she was assigned an unfair share of the cleaning work (relative to her colleagues). She made a complaint that she was assigned these duties because Ms Christou was slipping away from the centre to smoke, leaving Ms Rezkalla to do an unfair share of the work. The additional work included looking after the laundry and the garden, cleaning children’s rooms (sweeping and mopping) and changing nappies for children while involved in preparing food: (CB57: Ms Rezkalla’s affidavit, [20]).
Ms Rezkalla said to Ms Spoto that she felt that she was being “segregated” (CB99: Ms Spoto’s affidavit filed 13 March 2023, [39]) as to the cleaning work.
Ms Spoto, Ms Christou and Ms Jakins each gave evidence that all educators shared in cleaning work as part of their duties. The children’s care was necessarily the educators’ priority. Educators did cleaning work as needed including sweeping and mopping the children’s rooms and some cleaning of the outside areas of the centre. The tenor of the evidence was that educators might spend approximately half an hour cleaning in the course of a shift. Who performed what cleaning work depended on who was available. I find that Ms Rezkalla was allocated and performed cleaning work in the same way as her colleagues.
The position description for an assistant educator included a duty to “maintain environments and cleanliness of the service to adhere to all policies and procedures” (CB150). Whether or not Ms Rezkalla receive a copy of this position description, I was not persuaded that Ms Rezkalla was allocated cleaning duties outside the scope of her contract or that she was unreasonably allocated an unfair share of the cleaning duties relative to her colleagues. Ms Lazarovski and Ms Spoto’s allocation of cleaning duties to Ms Rezkalla was by way of a lawful and reasonable direction to Ms Rezkalla in accordance with her employment contract.
Nonetheless, Ms Rezkalla raised a genuine grievance when she told Ms Spoto that she was being “segregated” as to cleaning duties. She repeated this complaint that she was being allocated an unfair share of the cleaning work on 8 September 2021, in a meeting with Ms Lazarovski and Ms Spoto. As I have explained below, although I consider Ms Rezkalla’s complaint was misconceived, it was a complaint within the meaning of s. 341(1)(c)(ii) of the Act.
The Second Complaint -bullying and harassment
Ms Rezkalla says that around the fourth week of her employment:
Daphne [Christou] and Hayley [Jakins] started harassing me verbally and physically and it was clear that they were pushing me to resign as they needed somebody else to do their work for free. (CB 58 at [23])
Making due allowance for the fact that Ms Rezkalla was self-represented, I had difficulty in identifying exactly the content of the bullying and harassment complaint Ms Rezkalla said that she made and when Ms Rezkalla said that she made it.
The incidents that occurred around the fourth week of her employment are disputed. I have made findings as follows.
13 August 2021 - The exchange of words between Ms Rezkalla and Ms Christou
On 13 August 2021 (when Hillside Cottage was celebrating “Keep Australia Beautiful” day) one of Ms Spoto or Ms Christou asked Ms Rezkalla to break from her work in the kitchen to share in the celebration with other staff and the children. Although Ms Rezkalla initially came out from the kitchen, she quickly returned to the kitchen because she had work to do. When Ms Spoto asked her to come out again she responded in a loud voice “no”.
On 13 August 2021, Ms Christou’s evidence was that she and Ms Rezkalla had a sharp exchange. Ms Rezkalla raised her voice to her and said words including: “why are you in the kitchen?”; “Why are you telling me now what to do?”; “You’re not the boss Daphne, Amanda is the boss”; “Why do you say do this Manal, do that, Manal change nappies. Why Daphne?” Ms Christou responded, “I try to get you involved outside, to feel a part of the team, but I’m not getting put down like that.” Ms Christou walked away. Ms Christou made a handwritten note about the exchange and gave it to Ms Spoto (CB295–7).
Ms Spoto’s evidence was that she saw and heard these events. Despite Ms Rezkalla’s denial that she had said these words or raised her voice to Ms Christou on 13 August 2021, the weight of the evidence is against her. I prefer the account of Ms Christou which Ms Spoto broadly corroborated.
17 August 2021 – The mediation meeting
On 17 August 2021, because of the events on 13 August 2021, there was a meeting. Each of Ms Rezkalla, Ms Lazarovksi, Ms Spoto and Ms Christou were at the meeting. Ms Spoto referred to the meeting as a “mediation meeting”. Ms Spoto’s evidence was that the aim of the meeting was to discuss how the team could work more cooperatively together. Ms Spoto said in the meeting Ms Christou told Ms Rezkalla that she wanted Ms Rezkalla to feel part of the team but that she was hurt by some of the things that Ms Rezkalla had said to her the previous week (on 13 August 2021). At some point, Ms Christou left the meeting at Ms Spoto’s direction because Ms Rezkalla was interrupting her. The evidence was that Ms Christou was visibly frustrated in the meeting because she was unable to get her point across to Ms Rezkalla. After Ms Christou left the meeting, Ms Rezkalla raised her voice and said to Ms Spoto that she (Ms Spoto) was not doing her job. Ms Spoto asked her to calm down. Both Ms Spoto and Ms Lazarovski asked Ms Rezkalla to stop yelling in the meeting.
Ms Spoto’s evidence was that during the meeting on 17 August 2021 Ms Rezkalla accused Ms Christou of “bullying” her. The complaint was made reactively in the context of Ms Christou raising concerns about Ms Rezkalla’s own conduct on 13 August 2021. Although there was no obligation for Ms Rezkalla to frame any complaint formally or using any particular words, I do not accept that Ms Rezkalla by using the word bullying in passing made a complaint that she was able to make within the meaning of s. 341(1)(c)(ii) on 17 August 2021. There was plainly some interpersonal tension between Ms Rezkalla and Ms Christou about what had happened on 13 August 2021. There was frank meeting about the issues. Ms Spoto responded as a pragmatic manager in an attempt to de-escalate any interpersonal issues. She said words to the effect of, “No Manal, I see you and Daphne both at fault, we all have faults and the way I see it, we all need to work together, and you both need to move forward as adults.” (CB101, [70]). The mere mention of the word bullying did not amount to a complaint.
Ms Rezkalla’s evidence was that: “Daphne and Hayley started harassing me verbally and physically”: (CB58, Ms Rezkalla’s affidavit, [23]). She said that she made a “complaint to Amanda and the owner about the harassment around the fourth week of my employment”: (CB58, Ms Rezkalla’s affidavit, [25]).
Asked to clarify the “physical harassment”, Ms Rezkalla said that on one occasion Ms Christou had come unduly close to her (into her personal space) such that Ms Spoto had to intervene by stepping between them. Ms Christou denied that she had approached Ms Rezkalla in this way. Ms Spoto did not remember any occasion when this happened. This was a serious allegation and Ms Rezkalla gave no satisfactory evidence of how and when it was raised with Ms Spoto during her employment. With regard to Ms Jakins’ alleged physical harassment, Ms Rezkalla alleged that Ms Jakins had intentionally bumped into Ms Rezkalla (intentionally bumping her shoulder into Ms Rezkalla’s shoulder) near the fridge door. Again, this was a serious allegation. The evidence was that the first time that Ms Rezkalla raised any concern about Ms Jakins’ conduct was in the meeting on 8 September 2021, reactively when Ms Lazarovski and Ms Spoto informed her that they had received complaints about her own conduct, including a complaint from Ms Jakins. Ms Rezkalla reacted by making a complaint against Ms Jakins that she had to clean while Ms Jakins just did paperwork. Do not accept that Ms Rezkalla had made a complaint that Ms Jakins had deliberately physically bumped into her at any time before she gave that evidence at trial.
Ms Rezkalla must establish that she made the Second Complaint as a matter of “objective fact”: Tattsbett Ltd. v Morrow (2015) FCR 46 at [119] (Jessup J). Ms Rezkalla has not proved that she made a complaint of bullying - a complaint she was able to make in relation to her employment - which engaged the obligations of Part 3.1. Ms Rezkalla’s use of the word “bullying” in passing at the meeting on 17 August 2021 was not in substance the notification of a grievance in the sense discussed by Dodds-Streeton J in Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346 at 29(d) (see below). I find as a matter of “objective fact” (Tattsbet) that Ms Rezkalla never made a complaint to Ms Lazarovski or Ms Spoto that Ms Christou or Ms Jakins were physically harassing her before she was dismissed.
8 September 2021 – The meeting between Ms Lazarovksi, Ms Spoto and Ms Rezkalla
On the morning of 8 September 2021, Ms Rezkalla and Ms Jakins had been rostered together to start work at 6:30 am. There was a disagreement between the two women. Ms Jakins felt strongly about what had happened. She made a note, which she gave to Ms Spoto. In her note dated 8 September 2021 (6:52 am), Ms Jakins wrote at CB314:
I asked Manal to begin list in diary. As I said I will do the normal set up as the responsible person. When I said “responsible person” she laughed in my face
[…]
She asked why can’t I do the vacuum list and I told her as the responsible person, I do the checklists. I told her to forget it and do whatever she wants as I hate arguing with her every morning. […] then she accused me of being a bully. She has really made me upset and I don’t want to work alone with her anymore. Later just after 7 am, I was checking the temperature of nursery fridge and she swung the adjoining door open and it hit me, she said nothing […]
The evidence was that a “responsible person” in a childcare centre had particular obligations to complete tasks required by governmental regulations.
When Ms Spoto arrived at the centre Ms Jakins was upset about what had happened between her and Ms Rezkalla. She said to Ms Spoto that she could not work with Ms Rezkalla again: (CB103: Ms Spoto’s second affidavit, [87]). Ms Jakins gave Ms Spoto a copy of the note she had written.
Having seen that Ms Jakins was upset and received her note, Ms Spoto responded by contacting Ms Lazarovski “and asked her to call asap as there was a staffing issue that needed to be sorted”: (CB104: Ms Spoto’s second affidavit, [90]).
On 8 September 2021, Ms Rezkalla, Ms Lazarovski, Ms Spoto had a meeting. There was a sharp dispute as to what had occurred in the meeting. Ms Lazarovski has since passed away. Ms Lazarovski took a contemporaneous file note. I admitted that file note into evidence as a business record: Evidence Act 1995 (Cth), s. 69. In part, the file note read as follows:
I got in at work at around 9.30 am, went around and said good morning to everyone as usual. Amanda came up to me and said we need to have a chat […] Amanda said that Hayley [Jakins] doesn’t want to work with Manal [Rezkalla] in the morning anymore.
[…]
I said to Amanda we need to hear Manal’s side and have a chat before she goes home today we got Manal of the floor and Amanda opened the conversation we just want to see how you are going how you are finding this as you are new still. Manal replied good. Then Amanda said that we have feedback from other employees that you haven’t been a team player and we want to hear your side what you would like to say.
[…]
She just kept saying everyone is against her, we just want everyone to do their job we all work as a team.
[…]
[C]learly your not happy, you have two alternatives, you can move on and find a place where you will be happy or stay on and work as per your contract, she said OK. I said OK what she said OK, I said are you staying or going she said I’ll stay I said OK then that’s fine you you have to work and do what needs to be done as per contract. Then she started again I’m not hired to clean I’m not a cleaner, I said no your not a cleaner and you are not hired as a cleaner, but part of our job is to clean as we go, she said everyone makes her to clean only All educators clean there own section and help each other.
[…]
We went back to the office and she kept going on how she does everything and everyone makes only her to work etc. I tried to calm her so we can talk nor she started raising her voice again and kind of yelling at me. I couldn’t go on like this any more and said to her OK I can see you are not happy here so I think you should move on to somewhere where you will be happy this might not be the place for you, you need to find a place where you will be happy.
[…]
So she said OK and took of to the back area. She had got her handbag came back to the office and slammed her uniform on the desk and left and said I’ll see you in court.
[Spelling errors as in the original]
Ms Spoto’s evidence as to the events at the meeting on 8 September 2021 was broadly in line with the facts Ms Lazarovski set out in her file note.
On 8 September 2021, Ms Rezkalla clocked off at 10:49 am (CB293), about half way through her scheduled shift. Ms Lazarovski reasoned that Ms Rezkalla was not returning to the workplace given that she had left part way through her shift, slammed her uniform on the desk and said, “I’ll see you in Court”. Ms Lazarovski arranged to cover Ms Rezkalla’s shift the following day.
Ms Spoto’s evidence was that Ms Rezkalla later returned to the centre on that same day (8 September 2021) and demanded the return of her Food Safety Supervisor’s Certificate. Ms Rezkalla agreed that she returned to the centre to require the return of her Food Safety Supervisor’s Certificate.
Also at a time after she left the Centre on 8 September 2021 (but otherwise at a time unknown to the Court), Ms Rezkalla lodged a non-dismissal general protections claim with the Fair Work Commission.
Ms Rezkalla sharply disputed this version of the meeting on 8 September 2021. She said that the meeting occurred later in the day and ended on an open basis in the sense that when she left the meeting she had no inkling that her employment was at an end. Her evidence was that she had told Ms Lazarovski that if she was required to do cleaning work, she needed that requirement for cleaning work to be clearly written down in a new contract. Without this issue having been resolved, she said she left work at the end of her scheduled shift in the ordinary way (about 2:30 pm), expecting to come to work the next day. Her explanation as to the clock card was that she had forgotten to clock off at shift’s end. She alleged Ms Lazarovski’s file note was a fabrication.
I prefer Ms Spoto’s evidence as to what happened in the meeting on 8 September 2021 for several reasons. First, there was no need for Ms Rezkalla to retrieve her Food Safety Supervisor’s Certificate that day if she were planning to return to work. Second, Ms Rezkalla’s clock card supports Ms Spoto’s evidence that the meeting happened in the morning. Third, I do not accept that Ms Lazarovski’s file note was fabricated and it corroborated Ms Spoto’s version of events. Fourth, Ms Rezkalla also said that she was very sick because of stress overnight on 8 September 2021. That she should be so upset, in my assessment was more likely to be because she had been dismissed from employment during the day, which was of course a major matter for any employee. Fifth, in addition to those factors, to some extent my adverse assessment of Ms Rezkalla’s evidence as to this meeting was adversely affected by an adverse assessment of her credit as to her evidence on other matters. In particular at trial, she detailed for the first time a serious allegation that another employee (Ms Jakins) had intentionally bumped her with her shoulder at work. If this had occurred, I have no doubt that Ms Rezkalla would have raised it at the time. I do not accept her evidence as to this allegation or that the complaint of it at the time. Generally, I prefer the evidence of Ms Spoto, Ms Christou and Ms Jakins to the evidence of Ms Rezkalla.
9 September 2021 - Temporary absence because of illness
On 9 September 2021 at 5:56 am, Ms Rezkalla sent a text to Ms Spoto: "Hi Amanda, I’m not able to come today because I’m sick regards Manal”: (CB 322). At approximately 3:00 pm on 9 September 2021, Ms Rezkalla forwarded a supporting medical certificate.
Ms Lazarovski’s file note recorded that after the text was sent she and Ms Spoto (CB319):
[…] just looked at each other and thought what is going on she walked out yesterday and now she is calling in sick[…] We are a bit confused on what she is doing so we rang CM solutions consulting company and had explained what had happened the whole situation. We spoke with Jamie and he said by what you are telling me she has walked and left so he said to give her a termination letter which we did that same day.
Jamie is a reference to a Mr Jamie Barnes from Community Management Solutions (CM Solutions). Mr Barnes’ advice was that Ms Rezkalla be issued a termination letter on the basis that “she walked off yesterday with no indication of returning to her employment”: (CB106: Ms Spoto’s affidavit, [143]). Mr Barnes provided a template termination letter to Ms Lazarovski by email at 4:16 pm on 9 September 2021.
Ms Spoto’s evidence was that she put the template letter on the letterhead of Hillside Cottage and emailed it to Ms Rezkalla. The dismissal letter read in part:
It is my unfortunate duty to advise you that your employment has been terminated during the minimum employment period as identified in both the Fair Work Act 2009 and within your letter of appointment. Accordingly your employment is terminated effective 09.09.2021.
You will receive 1 week of notice paid.
[…]
A payment advice for your final payment will be forwarded to you […]
Ms Spoto’s electronic signature was on the letter. Ms Spoto completed the separation certificate. From the option list, she marked the box “unsatisfactory work performance” as the reason for the dismissal. Ms Rezkalla was paid one week in lieu of notice calculated on the basis of her average weekly hours: 26.60 hours weekly: (CB152: Ms Spoto’s affidavit, [152]).
LEGAL ISSUES
Complaints
As to s 341(1)(c)(ii) of the Act, in Shea (at 353–354, [29]), Dodds-Streeton J held:
(a)a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;
(b)the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;
(c)the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose;
(d)the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii);
The First Complaint
Ms Rezkalla’s First Complaint — which in part was a complaint that she was being unreasonably allocated duties in breach of her employment contract — was a complaint Ms Rezkalla was able to make in relation to her employment within the meaning of s. 341(1)(c)(ii) of the Act. Ms Rezkalla genuinely believed that she was being unreasonably assigned duties beyond the scope of her employment agreement even though, in my view, her complaint was misconceived, and she had to perform cleaning duties when she was given a lawful and reasonable direction to do so.
Ms Rezkalla was not dismissed from her employment because she had made the First Complaint. The substantial and operative reason for Ms Lazarovksi’s dismissal of Ms Rezkalla her from employment was because she was not prepared to perform cleaning duties as lawfully and reasonably directed. In my view, there is a distinction that can be properly drawn between the First Complaint about cleaning duties and the reason for dismissal. The dismissal was not because of the complaint but was because Ms Rezkalla was not prepared to carry out the duties what she was lawfully and reasonably directed to do.
The Second Complaint
In my view, as a matter of objective fact (Tattsbet), Ms Rezkalla did not make the Second Complaint. I find that she did not make a complaint about being physically harassed by Ms Christou or Ms Jakins. If I am wrong and, in fact, Ms Rezkalla made a complaint of bullying on or about 17 August 2021, Ms Rezkalla was not dismissed from employment because she had made a bullying complaint. The bullying matter was at an end at the meeting on 17 August 2021 when Ms Spoto said that both Ms Rezkalla and Ms Christou needed to move forward as adults. No further action was taken. The substantial and operative reason for Ms Rezkalla’s dismissal on 8 September 2021 was not because of the First Complaint or Second Complaint (if a second complaint was in fact made) but was because Ms Rezkalla was not prepared to carry out the cleaning duties as she was lawfully and reasonably directed to.
Discrimination
Ms Rezkalla is Egyptian-Australian.
In Ms Rezkalla’s statement of claim, she alleges that the second, third and fourth respondents “used to shout, tell to her without any reason, simply because she is a person from overseas who refused to do their work for free; another type of slavery” (CB20: SOC, [39]).
Section 351 of the Act provides:
An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, […] national extraction or social origin.
Section 351 prohibits adverse action against Ms Rezkalla because of her race or national extraction, because she is Egyptian-Australian.
I am not satisfied that any of Ms Spoto, Ms Christou or Ms Jakins shouted at Ms Rezkalla. More specifically, there was no evidence that Ms Rezkalla was shouted at because she was Egyptian-Australian or a person from overseas. Having regard to the evidence — particularly what occurred on the important dates in the narrative of this case: 13 August 2021 (the day when Ms Rezkalla and Ms Christou had some level of disagreement), 17 August 2021 (the mediation meeting) and 8 September 2021 (the final meeting) — there was no causal nexus between the dismissal and Ms Rezkalla being Egyptian-Australian.
Ms Rezkalla was not dismissed because she was Egyptian-Australian. She was dismissed because she refused to follow lawful and reasonable directions to do cleaning work.
Temporary absence – illness or injury
Section 352 of the Act is as follows:
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
The Fair Work Regulations 2009 (Cth), regulation 3.01 is as follows:
(1)For section 352 of the Act, this regulation prescribes kinds of illness or injury.
Note: Under section 352 of the Act, an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
(2)A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:
(a) 24 hours after the commencement of the absence; or
(b) Such longer period as is reasonable in the circumstances
On 9 September 2021 Ms Rezkalla was temporarily absent from work within the meaning of s. 352 of the Act and the relevant regulations. She provided a medical certificate as required by reg. 3.01(2)(a).
I accept that Ms Rezkalla was sick. She was not dismissed because she was temporarily absent from work because of illness. I prefer Ms Spoto’s evidence that Ms Rezkalla was dismissed because she walked off the job on 8 September 2021 with no indication of returning to her employment in circumstances in which she had communicated she was not prepared to perform cleaning duties as lawfully and reasonably directed: (CB 81: Ms Spoto’s affidavit, [141]). Ms Lazarovksi was not prepared to “roll back” her decision taken the previous day to dismiss Ms Rezkalla when she, Ms Rezkalla, produced a sick certificate for 9 September 2021. When Ms Rezkalla unexpectedly forwarded that sick leave certificate, the temporary absence made no difference to a decision already taken. The employer stood firm as to the action it had already decided to take the previous day.
Although she was dismissed whilst she was temporarily absent from work because of illness, Ms Rezkalla was not dismissed because she was temporarily absent from work because of illness.
The case against Ms Spoto, Ms Christou and Ms Jakins as primary contraveners must fail
Ms Rezkalla pursued her claim on the basis that each of Ms Spoto, Ms Christou and Ms Jakins was a primary contravener and a secondary contravener. Ms Rezkalla pleaded her claim on the basis that each of Ms Spoto, Ms Christou and Ms Jakins engaged in adverse action contrary to s. 340 of the Act: (CB21: SOC, [51] –[53]). Further, she pleaded that each of Ms Spoto, Ms Christou and Ms Jakins were “involved in” the employer’s adverse action within the meaning of s. 550 of the Act: (CB22: SOC, [54]–[56]).
Section 340 must be read and interpreted harmoniously with s. 342 of the Act. Section 342 sets out the “meaning” of “adverse action”. Insofar as Ms Rezkalla alleges that any of Ms Spoto, Ms Christou or Ms Jakins engaged in “adverse action” as a primary contravener of s. 340, the claim fails because Lazarovski Investments (the employer) took the relevant adverse action, by dismissing Ms Rezkalla, not any one of her employment colleagues. The actions “taken by” Ms Spoto, Ms Christou and Ms Jakins cannot fit with items 1–7 of the s. 342 table. Conceptually, in the circumstances of this case, Ms Rezkalla could only maintain a primary contravention case as to s. 340 against her employer. As is set out above, because Lazarovski Investments has been deregistered, her action is no longer on foot against her employer.
There is no claim Ms Spoto, Ms Christou or Ms Jakins breached s. 351 or s. 352 of the Act as a primary contravener. These sections expressly prohibit action by an “employer”, rather than a “person”.
Different considerations arise as to accessorial liability.
The Claim against Ms Spoto, Ms Christou and Ms Jakins as secondary contraveners- accessorial liability – s. 550
Ms Rezkalla makes claims against each of each of Ms Spoto (CB21: SOC, [54]); Ms Christou (CB22: SOC, [55]) and Ms Jakins (CB22: SOC, [56]) as accessories. She alleges that each of Ms Spoto, Ms Christou and/or Ms Jakins was “involved in” (within the meaning of s. 550 of the Act) the employer’s adverse action.
Section 550 of the Act is as follows:
550 Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
Note: If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person’s contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
Section 361 (the reverse onus provision) does not apply to claims of accessorial liability under s. 550 of the Act. In CFMEU v. De Martin & Gasparini Pty Ltd. (No. 2) [2017] FCA 1046 Wigney J said the following at [332]:
Importantly … the finding that De Martin & Gasparini contravened s 340 of the Fair Work Act was based in part on the fact that De Martin & Gasparini had not discharged the burden, imposed by s 361 of the Fair Work Act, of proving that it did not take the adverse action because the employees had a workplace right or rights. Importantly, however, s 361 of the Fair Work Act does not apply to claims of accessorial liability under s 550 of the Fair Work Act….
[Emphasis added]
An accessory must have actual knowledge of the essential matters that go to make-up the contravention
In Fair Work Ombudsmanv Devine Marine Group Pty Ltd [2014] FCA 1365 White J held:
[176] …. In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the requisite intention: Yorke v Lucas (1984) 158 CLR 661 at 667. In order to have the requisite intention, the person must have knowledge of “the essential matters” which go to make up the events, {…}
[177] Actual, rather than imputed, knowledge is required. So much was made clear in Giorgianni v The Queen (1985) 156 CLR 473 at 506-7 by Wilson, Deane and Dawson JJ:
[…]
The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence.
[178] The notion of being “knowingly concerned” in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring” a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention…”
Ms Spoto
Ms Rezkalla has not proved that Ms Spoto was “involved in” any contravention of Lazarovski Investments.
The best evidence of why Lazarovksi Investments dismissed Ms Rezkalla was Ms Spoto’s oral evidence as to what happened at the meeting on 8 September 2021 and Ms Lazarovksi’s file note of the same meeting. That is, Ms Lazarovksi dismissed Ms Rezkalla from employment because she was not prepared to follow lawful and reasonable directions to perform cleaning duties. I do not accept that Lazarovksi Investments dismissed her because of the First Complaint or the Second Complaint or because of her race or national extraction or because she was temporarily absent because of illness. In my view, s. 361 does not apply in circumstances in which the employer was no longer a party to this proceeding: Australian Building and Construction Commissioner v. The Australian Manufacturing Workers’ Union [2017] FCA 167 (Jessup J), [203]. Accessorial liability is pendent liability. There was no relevant contravention by Lazarovski Investments for Ms Spoto to be involved in.
Even if s. 361 operated to fix Lazarovksi Investments with liability (contrary to what I have set out above), Ms Spoto did not have actual knowledge of the essential matters which went to make up any contravention to support any finding that she aided, abetted, counselled or procured the contravention [s. 550(2)(a)]. Ms Spoto was present at the meeting on 8 September 2021. Ms Lazarovski’s words spoken at that meeting indicated that she was dismissing Ms Rezkalla from employment because Ms Rezkalla was not prepared to follow lawful and reasonable directions to perform cleaning duties. As far as Ms Spoto knew, Ms Rezkalla’s dismissal was because she would not perform cleaning duties as reasonably directed not because of any complaint, or Ms Rezkalla’s race. I do not accept that Ms Spoto was privy to any scheme whereby what Ms Lazarovksi said was intended to mask the real reason for dismissal. As far as Ms Spoto knew when the next day Ms Rezkalla acted in a way calculated communicate a position that her employment was on going, Ms Lazarovski was not prepared to “roll back” her previous dismissal decision made on 8 September 2021. Even if Lazarovski Investments breached ss. 340, 351 and/or 352, Ms Spoto did not have knowledge of the essential matters that went to make up the contravention.
In terms of being “knowingly concerned” (s. 550(2)(c)), Ms Rezkalla has not proved that Ms Spoto engaged in some act or conduct which implicated her in any contravention by her employer. Ms Spoto was not a decision maker as to the decision to dismiss Ms Rezkalla. The decision to dismiss Ms Rezkalla from employment was Ms Lazarovski’s decision alone. Ms Spoto’s contribution to the decision-making process was limited on 8 September 2021. She alerted Ms Lazarovski to the fact that she had received a complaint from Ms Jakins and requested that the staff situation be addressed “asap”. Ms Lazarovksi, not Ms Spoto, made the decision as to how to address the staff situation. Ms Spoto was adamant in her evidence that she made no recommendation as to what should occur. I accept her evidence.
For completeness, my conclusion is that Ms Spoto did not induce the contravention [s. 550(1)(b)] or conspire with Ms Lazarovski to effect the contravention [s. 550(1)(d)]. There was no evidence that would support a different conclusion.
Ms Christou
The accessorial liability claim against Ms Christou must also fail. In addition to the matters I have identified as to Ms Spoto above, critically, the narrative of events demonstrates that the decision to dismiss Ms Rezkalla from employment was made on 8 and 9 September 2021. Ms Christou had been absent from the employment for personal reasons since 23 August 2021. She was not at work on 8 or 9 September 2021. She had no contemporaneous knowledge of the reasons for the dismissal or involvement in the dismissal process. She had no involvement in the events on 8 or 9 September 2021 which would support a finding of accessorial liability against her.
Ms Jakins
Ms Jakins’ involvement in the events of 8 September 2021 started and ended with her giving Ms Spoto her handwritten note about her concerns about her interaction with Ms Rezkalla on the morning of 8 September 2021. She was not present in the meeting on 8 September 2021. There was no evidence that either Ms Spoto or Ms Lazarovksi spoke to her about the decision to dismiss Ms Rezkalla from employment.
There is no evidence that Ms Jakins had any involvement in the decision-making process as to Ms Rezkalla’s dismissal. The accessorial liability claim against her must be dismissed.
CONCLUSION
The application will be dismissed.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 5 May 2023
SCHEDULE OF PARTIES
MLG 3062 of 2021 Respondents
Fourth Respondent:
HAYLEY JAKINS
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