FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rizk v PVH Brands Australia Pty Ltd [2023] FedCFamC2G 249
File number(s): SYG 503 of 2020 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 31 March 2023 Catchwords: INDUSTRIAL LAW – application for relief based on contravention of s 340(1) of the Fair Work Act 2009 (Cth) (FW Act) and s 62(1) of the FW Act – whether applicant made complaints in relation to her employment and for that reason exercised a workplace right – whether respondent discharged burden of proving that it did not terminate applicant’s employment because the applicant made complaints in relation to her employment or for reasons that did not include as a substantial and operative factor the applicant’s making complaints in relation to her employment – respondent did not discharge burden of proof – respondent therefore terminated the applicant’s employment because the applicant exercised a workplace right by making a complaint in relation to her employment and, for that reason, the respondent contravened s 340(1) of the FW Act – whether respondent required or requested applicant work hours that were unreasonably in excess of the hours provided for by s 62(1) of the FW Act – claim not established. Legislation: Fair Work Act 2009 (Cth) ss 62(1), 340(1), 341(1)(c), 342(1), 360, 361(1), 539(1), 545, 546(1), 547(1) Cases cited: Alam v National Australia Bank Limited [2021] FCAFC 178
Allen v Flood [1898] AC 1
Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep 1
Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Carbo v United States 314 F2d 718 (9th Cir 1963)
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204
El-Hajje v Rissalah College Limited [2022] FedCFamC2G 260
EPI Environmental Technologies Inc v Symphony Plastic Technologies [2004] EWHC 2945 (Ch)
Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138
Indiana Metal Products v National Labor Relations Board 442 F2d 46 (7th Cir 1971)
Kassem & Ors v Minister for Immigration & Anor (No.2) [2020] FCCA 1834
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403
Rizk v PVH Brands Australia Pty Ltd [2020] FCCA 2976
Roohizadegan v TechnologyOne Limited (No 2) [2020] FCA 1407
Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271
Division: Fair Work Number of paragraphs: 320 Date of last submission/s: 11 February 2022 Date of hearing: 21, 22, 23, and 24 June 2021, and 2, 3, and 4 February 2022 Place: Sydney The Applicant: Appeared in person Counsel for the Respondent: Mr B Fogarty Solicitor for the Respondent: Clyde & Co ORDERS
SYG 503 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHRISTEN RIZK
Applicant
AND: PVH BRANDS AUSTRALIA PTY LTD
Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
31 MARCH 2023
THE COURT DECLARES THAT:
1.The respondent contravened s 340(1) of the Fair Work Act 2009 (Cth) (FW Act) by terminating the employment of the applicant on 14 November 2019.
THE COURT ORDERS THAT:
2.Pursuant to s 545(2)(b) of the FW Act the respondent pay to the applicant $24,200.98.
3.If the applicant proposes to apply for an order under s 546(1) of the FW Act for the payment of a pecuniary penalty for the respondent’s contravention of s 340(1) of the FW Act, by 21 April 2023 the applicant file and serve any affidavit, and written submissions, on which she intends to rely in support of her application for an order under s 546(1) of the FW Act.
4.If the applicant files and serves any material pursuant to order 3, by 12 May 2023 the respondent file and serve any affidavit and submissions on which it intends to rely on the question of penalty.
5.By 26 May 2023 the applicant may file any affidavit and written submissions in response to the material the respondent files pursuant to order 4.
6.Subject to order 7, the matter is listed for directions at 9:30 am on 7 June 2023 for the purpose of listing the matter for hearing on the question of penalty.
7.The parties may notify the Associate to Judge Manousaridis before the directions hearing referred to in order 6 if they are content for Judge Manousaridis to give judgment on the question of penalty on the papers without any further hearing.
8.The parties have liberty to apply on such notice as the circumstances warrant.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
On 25 June 2019 the applicant, Ms Rizk, commenced employment with the respondent (PVH) in the position of “Commercial Analyst – Wholesale”. Ms Rizk’s employment was subject to her completing a probationary period of six months, in which period either Ms Rizk or PVH could terminate Ms Rizk’s employment.
By letter dated 14 November 2019 PVH informed Ms Rizk that, during the probationary period, her “suitability for the role of Commercial Analyst, and performance and progress in the role, was assessed”; and PVH “has therefore decided to terminate” Ms Rizk’s employment. The letter stated that PVH’s decision to terminate Ms Rizk’s employment “has been made on the basis that various aspects of [her] performance and suitability for the role are unsatisfactory”.
In this proceeding Ms Rizk, who is not legally represented, claims that PVH did not terminate her employment because of any inadequate performance on her part; Ms Rizk claims PVH terminated her employment because she exercised a workplace right within the meaning of s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) (FW Act). Ms Rizk claims she exercised her workplace right by making three complaints in relation to her employment. The first is a complaint Ms Rizk says she made in an email she sent at 11:27 pm on 15 September 2019 to PVH’s Commercial Manager, Ms Nilufer Haksever, about the conduct of another employee of PVH.
The second and third complaints relate to what Ms Rizk claimed were the unreasonable overtime hours PVH was requiring her to perform. Ms Rizk says she made those complaints, and therefore exercised her workplace right, by sending two emails. The first is an email Ms Rizk sent to Ms Haksever at 4:02 am on 11 October 2019, being the day on which Ms Rizk was due to take leave. The second is an email Ms Rizk sent to Ms Haksever at 12:45 pm on 13 November 2019, the day before PVH terminated Ms Rizk’s employment; and which, at 3:45 pm on 13 November 2019, Ms Rizk on-forwarded to Ms Maggie Mackey, PVH’s Human Resources Advisor. Ms Rizk’s email attached a number of documents, which included detailed notes that refer to topics the documents assert were discussed at a meeting Ms Haksever held with Ms Rizk on 8 November 2019. The evidence unequivocally reveals that at the meeting of 8 November 2019 Ms Haksever conducted a performance review of Ms Rizk’s work, and agreed with Ms Rizk that they would meet again.
Ms Rizk claims, therefore, that by dismissing her from her employment, PVH took adverse action against her in contravention of s 340(1) of the FW Act. Ms Rizk also claims that PVH contravened s 62(1) of the FW Act because, Ms Rizk alleges, PVH required or requested that she work an unreasonable number of hours in excess of 38 hours a week.
In relation to Ms Rizk’s claims based on s 340(1) of the FW Act, PVH submits, first, that the statements Ms Rizk made in the email she sent on 11 October 2019 do not constitute a “complaint” for the purposes of s 341(1)(c) of the FW Act; and, second, and in any event, PVH did not terminate Ms Rizk’s performance because of anything Ms Rizk stated in the emails she sent on 15 September 2019 or on 11 October 2019. PVH claims that on 18 October 2019 Ms Haksever decided that Ms Rizk had not successfully completed her probation because, based on Ms Haksever’s own observations of Ms Rizk’s work performance, and the feedback Ms Haksever says she had received from other employees of PVH, Ms Haksever formed the view that Ms Rizk did not (in effect) possess the skills, qualities, and temperament to be a commercial analyst with PVH (Desired Qualities).[1] PVH so claims in circumstances where:
(a)PVH did not terminate Ms Rizk’s employment until 14 November 2019, almost 4 weeks after PVH claims Ms Haksever made her decision to dismiss Ms Rizk;
(b)the evidence unequivocally shows that on 8 November 2019, some 3 weeks after PVH claims Ms Haksever decided Ms Rizk had not successfully completed her probation, Ms Haksever conducted a performance review of Ms Rizk’s work; and
(c)PVH terminated Ms Rizk’s employment at 1:00 pm on 14 November 2019, 15 minutes short of 24 hours after Ms Haksever received from Ms Rizk an email Ms Rizk contends constituted the third of the complaints she made in relation to her employment.
[1] Written closing submissions of the Respondent, [28(a)]
In relation to Ms Rizk’s claim based on s 62(1) of the FW Act, PVH submits that it fails because the evidence does not support Ms Rizk’s claim.
ISSUES
Two principal questions, therefore, arise. The first is whether PVH terminated Ms Rizk’s employment for the reasons PVH says it did, namely, that on 18 October 2019 Ms Haksever decided that Ms Rizk had not successfully completed her probation because she formed the view that Ms Rizk did not possess the Desired Qualities. The determination of that question turns on whether Ms Haksever was the person who decided that PVH should terminate Ms Rizk’s employment and, if so, whether Ms Haksever so decided because she formed the view that Ms Rizk did not possess the Desired Qualities.
The second question is whether PVH requested or required Ms Rizk to work an unreasonable amount of hours beyond the 38 hours a week prescribed by s 62(1) of the FW Act. The determination of that question turns on whether PVH required or requested Ms Rizk to work more than 38 hours a week; whether Ms Rizk did work more than 38 hours a week because PVH required or requested her to do so; and, if so, whether the additional hours PVH required or requested Ms Rizk to work were unreasonable.
It is necessary at this point to note PVH’s curious description of what it submits are the alleged complaints on which Ms Rizk relies in support of her claims based on s 340(1) of the FW Act. PVH accepts that Ms Rizk claims she made complaints on 13 November 2019 by sending an email to Ms Haksever which, some two hours later, she also forwarded to Ms Mackey; but PVH restricts its description of the complaints Ms Rizk claims she made to the statements contained in the 11 October 2019 email Ms Rizk attached to the emails she sent on 13 November 2019.[2]
[2] Written closing submissions of the Respondent, [2]
There is no dispute, however, that Ms Rizk attached to her 13 November 2019 emails more than the email she had sent to Ms Haksever on 11 October 2019. Ms Rizk also attached a document titled “Friday 8th of November Meeting minutes”, and an accompanying document which begins with the words “Details of all the points I have mentioned on the cover” (Rizk November documents).[3] Ms Rizk has consistently relied on these documents as constituting the third of the three complaints she says she made to PVH in relation to her employment, and Ms Rizk has consistently claimed that PVH terminated her employment because she had made complaints in three emails that included the emails and attachments she sent on 13 November 2019. That is how I described Ms Rizk’s claims under s 340(1) of the FW Act in the judgment I delivered on 5 November 2020;[4] and Ms Rizk, in her opening address, stated that she was claiming that her email of 13 November 2019 was a “third complaint”;[5] at the hearing Ms Rizk put to each of Ms Haksever and Ms Mackey that PVH decided to terminate Ms Rizk’s employment on 14 November 2019 because on 13 November 2019 Ms Rizk sent each of them an email;[6] and Ms Rizk similarly relies on the 13 November 2019 email she sent in her closing written submissions.[7]
[3] Affidavit N Haksever 16.12.2020, [87]; annexure “NH-Z”; Affidavit M Mackey 16.12.2020, [24]; annexure “MM-1”
[4] Rizk v PVH Brands Australia Pty Ltd [2020] FCCA 2976, at [10](g)]; [41]
[5] “So on 13 November, I sent a third complaint to my manager as I wasn’t happy with the way it was progressing” (T8.15); “I forwarded the third complaint to Maggie and asked her to read it before our meeting the following day” (T8.20).
[6] 02.02.2022 T94.20; 03.02.2022 T85.5
[7] Page 3, where Ms Rizk sets out Part G of the Form 3 she filed, including paragraph 7 which refers to “my complaint on the 13th of November”, and at paragraph 31, where Ms Rizk submits that the only reason PVH terminated her contract was because she “made 3 complains [sic] in regards to the unacceptable working conditions and very long hours” she “was required to work on a daily basis”.
There is another matter that it is appropriate to note at this point of my reasons. Counsel for PVH opened its case on the basis that Ms Haksever was the sole decision-maker in relation to PVH’s decision to terminate Ms Rizk’s employment. That reflected the evidence Ms Haksever gives in her affidavit. Before the luncheon adjournment on the first day of the hearing, however, PVH’s Chairman and Chief Executive Officer, Mr Craig Barnett, who was called as a witness, not by PVH, but by Ms Rizk, gave evidence in chief, which he confirmed in evidence given under cross-examination, that the decision to terminate Ms Rizk’s employment had been brought to Mr Barnett for his approval; and that he approved Ms Rizk’s termination.[8] Yet PVH continued to proceed with its case on the basis that Ms Haksever was the sole decision-maker; and, in evidence given under cross-examination, Ms Haksever maintained that she was not actually aware she was required to seek the approval “from the CEO or CFO”, and that the decision to terminate Ms Rizk’s employment “was my decision”.[9]
[8] T60.30
[9] 02.02.2022 T33.35-T34.25
ARRANGEMENT OF REASONS
These reasons are arranged as follows.
(a)First, I will say something about what I describe as “Performance Evidence” and its relevance to the issues in this proceeding.
(b)Second, I will identify the affidavit evidence on which the parties relied at the hearing, and describe the course of the evidence given at the hearing.
(c)Third, I will address PVH’s submissions about the credibility of the witnesses. I will there set out some principles relating to the assessment of credibility of testimony I have applied in making findings of fact.[10]
(d)Fourth, I will identify the major events leading to and including PVH’s termination of Ms Rizk’s employment, and make findings in relation to those events. Unless the context suggests otherwise, any unqualified statements of fact that I make in that part of my reasons are to be taken as findings of the facts stated.
(e)Fifth, I will identify the evidence that relates to the hours Ms Rizk worked while employed at PVH.
(f)Finally, I will consider Ms Rizk’s claims based on PVH’s alleged contraventions of s 340(1) and s 62(1) of the FW Act.
[10] Repeating substantially what I said in Kassem & Ors v Minister for Immigration & Anor (No.2) [2020] FCCA 1834, at [29]-[33], [38]
PERFORMANCE EVIDENCE AND ITS RELEVANCE
The reasons that follow are lengthy; and this is principally due to a combination of two factors. The first is that PVH adduced extensive evidence (Performance Evidence) of the work Ms Haksever and other employees of PVH say they observed Ms Rizk perform, and evidence of their views about her work; evidence of conversations employees and officers of PVH say they had with Ms Rizk about her work; and evidence of conversations employees and officers of PVH say they had with each other about the work Ms Rizk performed, and about her suitability for the role of commercial analyst.
All of the Performance Evidence consists of negative opinions about Ms Rizk’s abilities and performance. Most of these opinions, however, are expressed in general terms without reference to any particular item or items of work Ms Rizk performed; and many are based on first, second, and more remote hearsay. Further, it appears that almost all of the negative opinions that are the subject of the Performance Evidence had not been communicated to Ms Rizk when she was employed by PVH, but were only revealed to her shortly after 16 December 2020, when PVH filed and served on Ms Rizk affidavits by the witnesses it proposed to call. PVH submits Ms Haksever relied on the matters revealed by the Performance Evidence in deciding on 18 October 2019 that Ms Rizk did not have the Desired Qualities and, for that reason, her employment should be terminated.
The second factor that accounts for the length of these reasons is a direct consequence of the first. Ms Rizk challenged, and asserted as “false”, nearly every item of the Performance Evidence. Ms Rizk has done so by giving evidence which she submits contradicts or explains away the Performance Evidence; by cross-examining Ms Haksever and the other witnesses whom PVH called to give evidence about the conversations they say they had with Ms Rizk and with other employees of PVH about Ms Rizk’s work, and about the adverse views they had formed about Ms Rizk’s work and suitability for the role of commercial analyst; and by Ms Rizk calling as witnesses in her own case PVH’s former Executive Chairman, Mr Michael Gazal, PVH’s Chairman and Chief Executive Officer, Mr Barnett, and PVH’s Chief Financial Officer, Mr Guy Griffiths.
Perhaps understandably there was a tendency by the parties to assume that the critical or, at least, the important questions I am required to determine are whether Ms Rizk possessed, or did not possess, the Desired Qualities; and whether PVH was justified in concluding (if it did so conclude) that Ms Rizk did not possess the Desired Qualities. These are not, however, questions I am required to determine. Whether Ms Rizk possessed the Desired Qualities was a matter for PVH, and only for PVH, to assess. The question I am required to decide is whether, assuming Ms Haksever was the person who decided that PVH should terminate Ms Rizk’s employment, Ms Haksever so decided for the reasons she says she decided to terminate Ms Rizk’s employment. It is in relation to the determination of that question that the Performance Evidence, if accepted, is relevant; and it is relevant in two ways.
First, the Performance Evidence is relevant to the extent I find that Ms Haksever was aware of the Performance Evidence, and that she relied on the Performance Evidence in deciding that PVH should terminate Ms Rizk’s employment. Second, the Performance Evidence is relevant to the extent the Performance Evidence (if accepted), whether considered alone, or together with any other evidence known to Ms Haksever, was reasonably capable of supporting the view PVH contends Ms Haksever formed that Ms Rizk did not possess the Desired Qualities. To the extent the Performance Evidence was not reasonably capable of supporting the conclusion that Ms Rizk did not possess the Desired Qualities, that would tend to undermine Ms Haksever’s evidence that she decided that PVH terminate Ms Rizk’s employment because Ms Rizk did not possess the Desired Qualities. To the extent, on the other hand, the Performance Evidence on which Ms Haksever says she relied is reasonably capable of supporting the conclusion that Ms Rizk did not possess the Desired Qualities, that would tend to support Ms Haksever’s evidence that she decided that PVH should terminate Ms Rizk’s employment because Ms Rizk did not possess the Desired Qualities.
EVIDENCE AND COURSE OF HEARING
Affidavits
Ms Rizk read the following affidavits:[11]
(a)An affidavit made on 8 April 2020. It contains 12 paragraphs, each of which refers to attachments headed “Fact” followed by a number. There are in total 12 “Facts”. Some of the “Facts” comprise of documents, some contain accounts of conversations, and some contain submissions.
(b)Two affidavits made on 20 May 2020, although these were filed in relation to an interlocutory application PVH had made.
(c)An affidavit made on 18 November 2020. That purports to give evidence of the hours Ms Rizk worked, and the projects on which she worked while she was employed by PVH.
(d)An affidavit made on 11 January 2021. This affidavit, which is divided into seven separate sections, responds to the affidavits filed by PVH to which I refer in the following paragraph. The responses contain a copy of the text of the affidavit to which the response relates, a copy of emails, where relevant, and a mixture of evidence, assertions, and submissions.
[11] The affidavits Ms Rizk filed are set out in a document PVH’s lawyers prepared and which I marked “MFI2”.
PVH filed affidavits made by Ms Haksever, Ms Mackey, Ms Deborah Foreman (General Manager for Tommy Hilfiger), Ms Fay Haratzis (Group Financial Controller), and Ms Sonja Goyen (a former employee who occupied the position of Financial Planning and Analysis Manager). PVH had filed affidavits made by Ms Joanne Fox and Ms Victoria Jubb, but PVH elected not to read their affidavits at the hearing.[12]
[12] T2.40
Course of hearing
Ms Rizk examined in chief Mr Gazal, Mr Griffiths, and Mr Barnett; counsel for PVH cross-examined Ms Rizk from 2:48 pm on 21 June 2021 to 11:13 am on 24 June 2021; Ms Rizk cross-examined Ms Haksever on 24 June 2021 from 11:56 am, and on 2 February 2022 up to 3:31 pm; and over 3 and 4 February 2022 Ms Rizk cross-examined Ms Foreman, Ms Mackey, Ms Goyen, and Ms Haratzis.
At the conclusion of the evidence I made directions for the filing of written submissions. The parties filed written submissions, and indicated they would be content for me to give judgment without any further hearing.
ASSESSING CREDIBILITY
PVH’s submissions
In its counsel’s written submissions, PVH submits that much of Ms Rizk’s claims based on s 340(1) of the FW Act turns on what was said in key meetings Ms Rizk attended or conversations she had with others; and to the extent there is any inconsistency between the evidence of Ms Rizk, on the one hand, and, on the other hand, the evidence of Ms Haksever and other persons, the evidence of Ms Rizk should be rejected.[13] PVH submits the Court should find Ms Rizk was not a witness of credit because, PVH submits, Ms Rizk answered some questions “in an obfuscatory and/or evasive manner”, she conducted herself “in a defensive, argumentative and combative manner”; she was “prone to exaggeration, leading to some implausible conclusions”; and there are inconsistencies between Ms Rizk’s oral evidence and the documents she prepared.[14]
[13] Written closing submissions of the Respondent, [9]
[14] Written closing submissions of the Respondent, [11]
By contrast, PVH submits, the Court should find that Ms Haksever and the other witnesses PVH called were each witnesses of credit. PVH relies on the manner in which each of these witnesses gave their evidence. In relation to Ms Haksever, for example, PVH submits that she was “candid and forthcoming in her answers in cross-examination”; in respect of “important and relevant matters, her evidence under cross examination was entirely consistent with her affidavit evidence”; she answered questions “promptly and without prevarication”; and she responded to robust questioning “with relative composure”.[15] PVH makes similar submissions in relation to Ms Mackey, Ms Goyen, Ms Foreman, and Ms Haratzis.
[15] Written closing submissions of the Respondent, [12]
There are a number of matters to note about PVH’s submissions.
(a)The determination of Ms Rizk’s claims does not turn on what was said in key meetings Ms Rizk attended or conversations she had with others. Ms Rizk’s case based on s 340(1) of the FW Act turns, at least in large part, on whether the emails Ms Rizk claims constituted the making of complaints in relation to her employment constituted the exercise of the workplace right provided for by s 341(1)(c)(ii) of the FW Act and, if so, whether PVH did not terminate Ms Rizk’s employment because Ms Rizk made such a complaint or for reasons that included as an operative factor Ms Rizk’s having made such complaints. Ms Rizk’s case under s 340(1) of the FW Act, therefore, turns largely on the credibility of Ms Haksever.
(b)PVH’s submissions in relation to PVH’s witnesses relate exclusively to the manner in which each of the witnesses gave evidence at the hearing. That PVH’s witnesses may have performed in the witness box in the manner PVH submits its witnesses performed affords no basis for assuming that what they each said in their affidavits should be accepted. For example, PVH in its submissions says nothing about the quality of the evidence Ms Haksever gives in her affidavit of the feedback Ms Haksever says she obtained from PVH’s stakeholders in the week before and on 18 October 2019 about Ms Rizk’s abilities and performance, and on the basis of which, Ms Haksever says, she decided to terminate Ms Rizk’s employment. Ms Haksever says that the feedback from stakeholders she sets out in her affidavit is from a record Ms Haksever made when Ms Rizk’s claims were before the Fair Work Commission for conciliation which, in turn, Ms Haksever says, she prepared from notes she made in a notebook at the time she obtained feedback from PVH’s stakeholders. Ms Haksever says, however, that she “unfortunately” is “no longer able to locate the notebook” she “used”.[16] Nor has PVH addressed Ms Haksever’s insistence that she was the sole decision-maker in PVH’s decision to terminate Ms Rizk’s employment in circumstances where PVH accepts that the decision to terminate Ms Rizk’s employment had been brought to Mr Barnett for his approval; and he approved the termination of Ms Rizk’s employment.
(c)It is true that, in conducting her case and in giving evidence, Ms Rizk manifested belligerence and rigidity. This led me almost from the outset of the hearing to treat Ms Rizk’s submissions and evidence with great caution. Notwithstanding my caution, however, for reasons that will appear later, I have not accepted much of the evidence on which PVH relies; and, although it is unnecessary to determine whether any of the evidence I have not accepted has been falsely given, it is appropriate to note, given PVH’s attack on the credibility of Ms Rizk which in part relies on her belligerence and rigidity, that it was reasonably open to Ms Rizk to challenge much of the evidence on which PVH relied on the basis that it is false.
(d)PVH’s submission that Ms Rizk obfuscated is misplaced. Ms Rizk’s case based on s 340(1) of the FW Act is confined to a relatively small number of events – an email sent at 11:27 pm on 15 September 2019; a meeting on 10 October 2019 and an email Ms Rizk sent to Ms Haksever at 4:02 am on 11 October 2019; a meeting on 8 November 2019 and an email Ms Rizk sent to Ms Haksever at 12:45 pm on 13 November 2019 and the same email being sent to Ms Mackey at 3:45 pm on the same day; and on 14 November 2019 Ms Mackey, in the presence of Ms Haksever, informing Ms Rizk that PVH had terminated her employment. Ms Rizk’s case is that PVH terminated her employment on 14 November 2019 because she had made the complaints she identified in her emails of 15 September 2019, 11 October 2019, and 13 November 2019. PVH has sought to meet this case by adducing extensive evidence of persons giving opinions to the effect that Ms Rizk was slow, uncommercial, illogical, unable to grasp concepts, and lacking in analytical skills. For the most part, however, the opinions are expressed without the person who is said to have expressed them identifying the work Ms Rizk performed in relation to which the opinion is expressed, or the grounds on which those opinions are based. As I have noted already, Ms Rizk appears to have first become aware of these opinions after PVH filed and served its affidavits.
[16] Affidavit N Haksever 16.12.2020, [61]
I therefore do not find useful PVH’s submissions on credibility. The credibility of evidence is to be assessed by the application of principles that extend beyond a witness’s performance in a witness box.
Principles
“Credibility” denotes “the quality or power of inspiring belief”.[17] When applied to testimony (whether given orally before the court or recorded in a document), credibility refers to the capacity of the testimony to inspire belief in the existence or non-existence of the fact asserted by the testimony to exist or not exist. A finding by a court in a civil proceeding, therefore, that testimony is not credible is usually taken to be a finding that the testimony does not have the capacity to satisfy the court, at least on the balance of probabilities, of the existence or non-existence of the fact asserted by the testimony to exist or not exist. But “credibility” may be taken to refer to testimony that is capable of satisfying a fact finder that the fact asserted by the testimony to exist or not exist does exist or does not exist, but which, in the particular circumstances of the case, the fact finder is not so satisfied. In these reasons for judgment I use “credibility” in this broader sense.
[17] Indiana Metal Products v National Labor Relations Board 442 F2d 46 (7th Cir 1971), at 51, quoting Webster’s Third New International Dictionary 1966
Whether any given testimony will inspire satisfaction in the existence or non-existence of the fact the witness asserts exists or does not exist will depend on the fact finder’s assessment of the witness’s “powers of perception, memory and narration . . . and of his [or her] opportunity and desire to exercise them honestly and efficiently in the situation under examination”.[18] That means that assessing the credibility of testimony “involves wider problems than mere “demeanour” which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be”.[19] Assessing evidence “apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence”.[20] It has also been said that credible evidence is “that which meets the test of plausibility”.[21]
[18] Edmund M. Morgan, “The Relation Between Hearsay and Preserved Memory” (1927) 40 Harvard Law Review 712, 712.
[19] Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403, at page 431 (Lord Pearce)
[20] Carbo v United States 314 F2d 718 (9th Cir 1963), at 749
[21] Indiana Metal Products v National Labor Relations Board 442 F2d 46 (7th Cir 1971)
There have been a number of statements about how a court should assess the credibility of testimony. In The Ocean Frost, for example, Robert Goff LJ said:[22]
It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.
[22] Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep 1, at page 57
And in EPI Environmental Technologies Inc v Symphony Plastic Technologies Peter Smith J said:[23]
(i) First, it is essential to evaluate a witness’s performance in the light of the entirety of his evidence. Witnesses can make mistakes, but those mistakes do not necessarily affect other parts of their evidence.
(ii) Second, witnesses can regularly lie. However . . . [that] does not mean necessarily that the entirety of that witnesses [sic] evidence is rejected. A witness may lie in a stupid attempt to bolster a case, but the actual case nevertheless remains good irrespective of the lie. A witness may lie because the case is a lie.
[23] EPI Environmental Technologies Inc v Symphony Plastic Technologies [2004] EWHC 2945 (Ch), at [74]
Finally, there is the approach to fact finding described by MacKenna J.[24]
This is how I go about the business of finding facts. I start from the undisputed facts which both sides accept. I add to them such other facts as seem very likely to be true, as, for example, those recorded in contemporary documents or spoken to by independent witnesses like the policeman giving evidence in a running-down case about the marks on the road. I judge a witness to be unreliable if his evidence is, in any serious respect, inconsistent with these undisputed or indisputable facts, or of course if he contradicts himself on important points. I rely as little as possible on such deceptive matters as his demeanour. When I have done my best to separate the true from the false by these more or less objective tests, I say which story seems to me the more probable, the plaintiff's or the defendant’s, and if I cannot say which, I decide the case, as the law obliges me to do, in the defendant’s favour. The plaintiff has failed to discharge the burden of proof.
[24] MacKenna, B., “Discretion” (1974) 9 The Irish Jurist (new series), 1 at page 10. See also Bell, E., “An introduction to judicial fact-finding” (2013) 39 Commonwealth Law Bulletin 512
Application
Most of the conflicting or otherwise contested evidence relates to the Performance Evidence, which, in turn, principally consists of evidence of conversations. In the reasons that follow, I consider in chronological order, and I make findings, in relation to each of the contested conversations. I make those findings by reference to such contemporaneous documents as are in evidence and as are accepted, or which I find, to be authentic and credible, and also by reference to other findings I make.
This process gives the appearance of strict linearity; but that would be so only in appearance. Assessing the credibility of conflicting testimonial evidence is recursive. The fact finder begins by considering the credibility of a particular item of testimonial evidence in relation to a matter in issue, and he or she does so by reference to admitted facts and evidence that are not reasonably open to dispute. The fact finder will form a provisional belief, disbelief, or doubt,[25] of varying degrees of explicitness and intensity, about the existence or non-existence of the facts asserted by the testimonial evidence the fact finder first considers, and then move on to consider the second item of testimonial evidence. The fact finder will consider the second item of evidence in the same way as he or she has considered the first item of evidence; but now he or she may have in mind a provisional belief, disbelief, or doubt he or she has formed about the fact asserted by the first item of evidence. Such provisional belief will form part of the material with which the fact finder will consider the second item of testimonial evidence and, as with the fact finder’s consideration of the first item of evidence, he or she may form a belief, disbelief, or doubt about the existence or non-existence of the fact asserted by the second item of evidence. But the provisional belief, disbelief, or doubt, in relation to the second item of testimonial evidence itself becomes material with which to revisit any provisional belief, disbelief, or doubt the fact finder formed in relation to the first item of evidence. This process continues with every new item of testimonial evidence the fact finder considers. At some point, the tentativeness of the fact finder’s beliefs, disbeliefs, and doubts about the existence or non-existence of facts asserted by the testimonial evidence begins to become less tentative until the beliefs, disbeliefs, and doubts become sufficiently firm in the mind of the fact finder to make his or her findings of fact in relation to the credibility of each item of testimonial evidence. That will occur after the fact finder brings to mind the beliefs, disbeliefs, and doubts he or she has formed in relation to the testimonial evidence as a whole with a view to considering whether they cohere not only with each other but also with other evidence that is not in dispute or which is not reasonably open to doubt; and, subject to any further adjustments, concluding that they do.
[25] “The true opposites of belief, psychologically considered, are doubt and inquiry, not disbelief.” (James, Principles of Psychology, quoted in C C Moore A Treatise on Facts, Vol.1 Edward Thompson Company 1908, at page 8)
This, at any rate, is the approach I have attempted to apply in assessing the evidence before me.
EVIDENCE AND FINDINGS
PVH’s business
PVH is in the business of supplying, principally to retailers, clothing apparel under a number of well-recognised brands. It is divided into a number of business units according, at least in part, to the brand of apparel PVH supplies to retailers. PVH also includes internal divisions that service these businesses, one of which is the financial division. At the times relevant to this proceeding, PVH was a joint venture between Gazal Corporation Limited and PVH Corp.
Within the financial division there sits a group of employees known as “Commercial Analysts”. These employees report directly to Ms Haksever (who I have already noted held the position of “Commercial Manager”), and focus on different divisions and functions of PVH’s business, including wholesale, retail, and e-commerce.[26]
[26] Affidavit N Haksever 16.12.2020, [3]
28 May 2019 – Ms Haksever interviews Ms Rizk
In around April 2019 Ms Rizk answered an advertisement PVH had placed on “Seek” for the position of “Commercial Analyst – Wholesale”. Ms Rizk holds a Bachelor of Commerce degree from the University of Alexandria, Egypt, and various other certificates relating to accounting and business analysis. She is a member of CPA Australia. Before she answered PVH’s advertisement, Ms Rizk worked in a number of positions. These included working as a Financial Analyst with Noni B Group from September 2014 to July 2018, and as a commercial analyst with GWA group from October 2018 to May 2019.
The position for which Ms Rizk applied was a newly created role that had arisen as a result of PVH’s restructure of its business.[27] The restructure involved PVH shutting down its Melbourne office.[28] Two commercial analysts whom PVH employed in Melbourne decided not to move to Sydney.[29] The restructure also involved Ms Haksever being promoted to the position of “commercial manager”, in which role she was required to act as manager of commercial analysts who had previously been her peers.[30]
[27] T471.30
[28] T473.5
[29] T473.5
[30] T473.25; Affidavit N Haksever 16.12.2020, [6]
Ms Haksever interviewed Ms Rizk on 28 May 2019. According to Ms Haksever, at the interview she briefly tested Ms Rizk’s analytical skills by asking a business case question. Ms Haksever says she asked Ms Rizk to explain the difference between wholesale, consignment, and concession models, and she asked Ms Rizk to “take me through how she would construct a business case to convert a wholesale model into a concession model”. Ms Haksever further says that, although she cannot recall the conversation, she remembers Ms Rizk’s response was “brief, but mostly correct”. Ms Haksever says she continued to ask Ms Rizk “follow-up questions on the same subject, and she struggled to answer further and appeared to become nervous”. Ms Haksever says she thought this “was normal for an applicant to feel nervous during a job interview and so I moved on”. Ms Haksever says her “overall impression” of Ms Rizk’s “interview performance was positive”.[31]
[31] Affidavit N Haksever 16.12.2020, [9]
Ms Haksever has also given the following evidence about her interview of Ms Rizk:[32]
At the end of the interview, I asked Christine why she left Noni B after working there for 5 years and I remember her response very well. She said, “Towards the end, I was working very long hours, and I started making many mistakes as I was very tired. I have a higher standard for my own performance, so I wasn’t happy with my own mistakes, so I decided to leave”. I considered this to be a strange response and I discussed the response with the Respondent’s internal recruitment specialist, Yana Karatonis. After discussing the interview with Yana Karatonis, I felt that perhaps Christine had just been unusually honest and that her statement was not indicative of performance issues, given she had been at Noni-B for five years. . . .
[32] Affidavit N Haksever 16.12.2020, [10]. Ms Rizk’s first name is “Christen”; but persons who have made affidavits often refer to Ms Rizk as “Christine”. Any reference to “Christine” in the evidence I set out should be understood to be intended to be a reference to “Christen”.
Ms Rizk denies Ms Haksever’s account of the meeting. Ms Rizk says she recalls the precise scenario in relation to which Ms Haksever asked Ms Rizk to build a business case. The scenario related to one of two major retailers to whom PVH intended to launch a new brand asking that the brand be provided to it exclusively.[33] Ms Rizk appears to accept that Ms Haksever asked her why she had left Noni B after having worked there for five years; but she denies she said words to the effect recounted by Ms Haksever. Ms Rizk says she gave an explanation that involved her sister.[34]
[33] Response to Nilufer Haksever’s Affidavit, Paragraph 9
[34] Response to Nilufer Haksever’s Affidavit, Paragraph 10
Ms Rizk asked Ms Haksever in cross-examination questions about her impressions of Ms Rizk, the number of persons who had applied for the position of “Commercial Analyst – Wholesale”, the number of persons Ms Haksever interviewed, and the reason for which Ms Haksever decided to shortlist Ms Rizk for that role. Ms Haksever said she recalled Ms Rizk interviewed well, her previous work experience was relevant to the industry in which PVH operates, and Ms Haksever considered that Ms Rizk’s experience in retail made Ms Rizk a good candidate.[35]
[35] T475.5
I do not find plausible, and therefore do not accept, Ms Haksever’s evidence that during the interview Ms Rizk gave as the reasons for deciding to leave her previous employment that she was working very long hours, that she was making mistakes because she was very tired, and that Ms Rizk was unhappy with her mistakes. If in truth Ms Rizk said words to that effect, it is reasonable to expect that Ms Haksever would have asked Ms Rizk about the hours she worked and the reasons why that led her to be tired and to make mistakes, and the type of mistakes Ms Rizk made; and Ms Haksever would have assessed the answers Ms Rizk would have given against the nature of the work Ms Rizk would be required to perform, and the hours Ms Haksever expected Ms Rizk would work, if PVH were to employ Ms Rizk in the position of “Commercial Analyst – Wholesale”. It is also reasonable to expect that, if Ms Rizk in truth informed Ms Haksever that she left her previous position because she was working very long hours and was making mistakes, Ms Haksever would have discussed this with Mr Griffiths, being the person with whom Ms Haksever again interviewed Ms Rizk. The implausibility of Ms Haksever’s evidence is reinforced by Ms Haksever not setting out in her affidavit why she considered it appropriate to talk to PVH’s internal recruitment specialist, rather than with Mr Griffiths, and the substance of the discussion Ms Haksever says she had with the recruitment specialist.
It is open to find, and I find that during the interview Ms Rizk impressed Ms Haksever as being a good candidate for the position of “Commercial Analyst – Wholesale”. It is unnecessary to make any finding about the nature of the tasks Ms Haksever asked Ms Rizk to perform at the interview.
3 June 2019 – Mr Griffiths and Ms Haksever interview Ms Rizk
After interviewing other candidates Ms Haksever decided to interview Ms Rizk again, this time with Mr Griffiths. That interview occurred on 3 June 2019, and it was shorter than the first interview. Ms Haksever assessed Ms Rizk to have performed well in the interview. Ms Haksever and Mr Griffiths also interviewed another person. According to Ms Haksever, that person also performed well in the interviews, but the person did not come from a retail background. Ms Haksever and Mr Griffiths decided that PVH would offer Ms Rizk the position of “Commercial Analyst – Wholesale”.[36]
[36] Affidavit N Haksever 16.12.2020, [12]
In cross-examination Ms Rizk asked Ms Haksever a number of questions about Ms Haksever’s and Mr Griffiths’ interview of Ms Rizk, and also about whether Mr Griffiths had given any feedback to Ms Haksever about Ms Rizk’s performance during that interview, and why Mr Griffiths and Ms Haksever decided to offer the position to Ms Rizk. Ms Haksever said Mr Griffiths believed Ms Rizk performed well in the interview, and his feedback in relation to Ms Rizk was positive.[37] Ms Haksever said that Ms Rizk met all the important selection criteria; and Ms Rizk “ticked the boxes to receive the job offer”.[38] These included analytical skills.[39] I accept this evidence Ms Haksever gave under cross-examination.
[37] T475.45
[38] T476.15
[39] T476.20
25 June 2019 – PVH employs Ms Rizk as a commercial analyst
By letter dated 7 June 2019 PVH offered Ms Rizk employment on the terms of a contract that was attached to the letter (Employment Contract).[40] The Employment Contract provided that Ms Rizk was employed in the position of “Commercial Analyst – Wholesale” (Commercial Analyst). A schedule to the Employment Contract identified the tasks Ms Rizk was required to perform in the role of Commercial Analyst. The “key accountability” was to “assist with the management and optimisation of the financial and operational efficiency of wholesale and ecommerce group of” PVH. The schedule then identified particular tasks which are set out under five headings. These were:
(a)financial control and management, which included delivering on costs minimisation and cost control strategies; reviewing trading terms with customers to identify best practise and cost savings opportunities; develop cost-benefit analysis models; managing the Divisional Operation Analysts to prepare monthly profit and loss statements;
(b)budgeting and forecasting, which included developing consistent and efficient budgeting and forecasting processes, working with the Divisional Operation Analysts in constructing net profit budgets and capital budgets and forecasts;
(c)property, capital management, and cash flow, which included working with the General Managers and Category Managers to develop sales, expenses forecasts and sensitivity analysis;
(d)business partnering, which included maintaining strong relationships with key stakeholders to ensure a united approach towards common financial objectives; and
(e)processes, which included the implementation of budgeted expenditure.
[40] Affidavit N Haksever 16.12.2020; annexure “NH-B”
The schedule to the Employment Contract also included a section headed “KEYMEASUREMENT [sic] CRITERIA – Wholesale Commercial Analyst”, under which the following appeared:
Profit maximisation 50% · Endure cost control especially in Trading Terms and CODB [Cost of Doing Business]
· Track warehouse expenses and ensure costs are controlled
· Review current contracts for delivery of services and work together with JV CFO to re-tender key supply arrangements where applicable
Budget, forecasts and Month end actuals 25% · Assist in the preparation of Group Budget and forecasts
· Ensure a robust and accurate forecast and actuals
· Lead in the delivery of the financial objectives of the Division.
Capital Management 15% · Work together with Divisions to complete new capital business cases
· Maintain the Capital Tracker to ensure expenditure is captured and forecasted accurately
Policy & Procedure 10% · Develop business processes to achieve best practise and efficiencies.
· Ensure consistent approach in production of business tools and reporting across wholesale channels
Finally, the schedule to the Employment Contract contained the following section:
IDEAL EDUCATION/QUALIFICATIONS/COMPETENCES [sic]
·3-5 years of practical experience in a Commercial Role within a Retail environment
·Demonstrated experience in professional services preferred
·Degree qualified in a finance discipline, CA/CPA
·Advanced Microsoft Excel skills
·Exceptional communication and presentation skills both written and verbal
·Resilient and able to work with multiple and highly demanding stakeholders
·An ability to work at both a strategic and a granular level - choosing when each is appropriate
The Employment Contract provided that Ms Rizk’s employment was subject to the satisfactory completion of “the probationary period of six (6) months from commencement, which itself is subject to termination during any stage, by either” Ms Rizk or PVH. Also relevant is the following clause:
Hours of Work
Your ordinary hours of work are 38 hours per week, averaged over 26 weeks, plus reasonable additional hours as required to fulfil the requirements of your position, or as required by the Company.
You acknowledge that given your position and responsibilities, a flexible approach to working hours is required. The Company's core office hours are 8:30 am to 5.00 pm, and you are expected to attend work during these hours.
You also acknowledge that it is reasonable for the Company to require you to work reasonable additional hours in excess of 38 hours (based on working full time), having regard to factors including the nature of your role and responsibilities, your remuneration and other benefits, all of which compensate you for all hours you are required to work.
Initial period of employment
Ms Rizk signed the Employment Contract, and she commenced her employment with PVH on 25 June 2019.
Responsibilities not stated in Employment Contract
According to Ms Haksever, on being employed Ms Rizk had two Junior Analysts reporting to her, and she was responsible for managing those employees and developing their skill set.[41] Ms Rizk disagrees. She says that when she was hired she only had Mr Boris Esin reporting to her until Ms Rizk says she recruited “Michelle” in late August 2019 or early September 2019. Ms Rizk further says that she started to train Michelle, and Ms Haksever began to train Mr Esin.[42]
[41] Affidavit N Haksever 16.12.2020, [19]
[42] Response to Nilufer Haksever’s Affidavit, Paragraph 19
Ms Rizk’s evidence must be viewed with the evidence Ms Haksever gives in her affidavit made on 16 December 2020. Ms Haksever deposes that, during the early part of Ms Rizk’s employment, PVH had a vacant Junior Analyst position, and Ms Rizk performed some of the work associated with that position. Ms Haksever says she adjusted Ms Rizk’s other duties by allocating work she would ordinarily perform to other people, or putting tasks on hold. Ms Haksever therefore agreed that Ms Rizk did perform some of the Junior Analyst’s work, but her overall work did not increase.[43]
[43] Affidavit N Haksever 16.12.2020, [105(b)]
I find that when Ms Rizk commenced her employment, she did not have two Junior Analysts reporting to her. I also find that part of her duties included doing the work of a Junior Analyst. I will deal later with the evidence concerning the amount of work Ms Rizk performed.
Training
According to Ms Haksever,[44] “[f]ollowing [Mz Rizk’s] commencement with” PVH Ms Haksever “spent a considerable period of time providing her with training and introducing her to key stakeholders within [PVH’s] business”. Ms Haksever says the training she provided Ms Rizk included the following:
(a)Ms Haksever provided Ms Rizk with “extensive training” on the topic of the trading terms PVH had negotiated from time to time with its customers, and provided Ms Rizk with “multiple examples and prior workbooks to use as a reference”. Ms Haksever took Ms Rizk through the trading terms negotiations PVH had previously conducted with Myer in great detail, as a training exercise, and explained each step to Ms Rizk as they worked through the example.[45]
(b)One of the first sessions Ms Haksever held with Ms Rizk in relation to trading terms occurred on 4 July 2019 in response to a calendar invitation Ms Haksever sent to Ms Rizk and two other employees, Mr Esin, and Ms Fahime Durbali on the subject “Shapewear Handover – International”.[46] The invitation included “Myer Volume Incentive/General Overview of Trading Terms” as an agenda item. Ms Haksever says that during that training session she spent around 30 minutes training the attendees on the mathematics of the trading terms. Ms Haksever used real life examples, and she asked the attendees to take notes and to take a photo of the whiteboard for future reference.
(c)Ms Haksever met with Ms Rizk, Mr Esin, and Ms Durbali between 12:00 pm and 4:00 pm on 17 July 2019 to provide further training on trading terms.[47] Ms Haksever arranged the meeting by issuing a calendar invitation on the subject “Trading Terms Review – Budget Timeline”.
[44] Affidavit N Haksever 16.12.2020, [22]
[45] Affidavit N Haksever 16.12.2020, [22(a)]
[46] Affidavit N Haksever 16.12.2020, [22(b)]; annexure “NH-D”
[47] Affidavit N Haksever 16.12.2020, [22(d)]; annexure “NH-E”; T466.25
Ms Rizk denies that Ms Haksever arranged the meeting of 4 July 2019 for the purpose of training Ms Rizk and the other attendees. Ms Rizk says that the meeting related to “Fahime’s Handover”, as Ms Durbali worked on a couple of business cases, and wanted to take every one through it, including Ms Haksever, because Ms Haksever did not know how it was built, and it was better for everyone to be at the meeting. Ms Rizk further says that Ms Durbali led the meeting, and made notes on the whiteboard.[48] I find that at least part of the meeting of 4 July 2019 was devoted to Ms Durbali leading a discussion on “Shapewear Handover – International”. I find, however, that at least part of the meeting was devoted to a discussion about trading terms in general, at least to the extent the trading terms related to Myer. The basis of that finding is that “Myer Volume Incentive/General Overview of Trading Terms” was an agenda item.
[48] Response to Nilufer Haksever’s Affidavit, Paragraph 22(B and C)
Ms Rizk disputes Ms Haksever’s statement made in her affidavit that Ms Durbali attended the meeting of 17 July 2019.[49] Ms Haksever, however, corrected this part of her affidavit before she was cross-examined to say that she met only with Ms Rizk and Mr Esin. Ms Rizk says that the main purpose of the meeting was to go through trading terms and rebates. Ms Rizk further says that this was required because she did not have any one to look after Tommy Hilfiger, being one of PVH’s brands, and Ms Rizk was looking after the rebates based on the terms PVH had with each customer. I find that on 17 July 2019 Ms Haksever met with Ms Rizk and Mr Esin, and that, for part of that meeting there was discussion about trading terms. I am not in a position, on the basis of the evidence, to make any finding about the purpose or purposes for which the participants discussed general trading terms; and in any event, nothing turns on this.
[49] Response to Nilufer Haksever’s Affidavit, Paragraph 22(D)
In her affidavit Ms Haksever refers to two comments she made to Ms Rizk at the meeting of 17 July 2019 at the time Ms Haksever suggested the participants have lunch.[50] Ms Rizk has responded to that evidence.[51] The evidence about this subject, however, is not relevant to any issue I am required to determine in this proceeding, and I propose not to otherwise refer to the evidence or make any findings in relation to that evidence.
[50] Affidavit N Haksever 16.12.2020, [22(d)]
[51] Response to Nilufer Haksever’s Affidavit, Paragraph 22(D)
Ms Haksever further deposes that she also spent at least one hour with Ms Rizk every day Ms Rizk and Ms Haksever were at work in which Ms Haksever conducted informal “on the job” training. Ms Haksever says she worked with Ms Rizk on different projects, and spent a “considerable time reviewing past work and doing scenario analysis with [Ms Rizk]”. Ms Haksever always set aside time to train and assist Ms Rizk because Ms Haksever “was very focused on developing her knowledge and bringing [Ms Rizk] up to speed as quickly as possible”.[52]
[52] Affidavit N Haksever 16.12.2020, [23]
Ms Rizk disputes Ms Haksever’s evidence. Ms Rizk states that Ms Haksever did not spend an hour with Ms Rizk every day. Ms Rizk says that Ms Haksever sent to Ms Rizk a file and asked Ms Rizk to go through it to try to understand it by herself. Ms Rizk further states:[53]
I don’t need to understand how to do my job, I simply would only need to understand the business and how to extract the information. That’s all, I’m [a] very quick learner and I grasp all the information in a very short time, so I really don’t need so much training.
[53] Response to Nilufer Haksever’s Affidavit, Paragraphs 23, 24
Ms Haksever’s evidence of the training she says she provided to Ms Rizk is too general to afford a basis on which to find that she trained Ms Rizk to the extent Ms Haksever says she did, or that she met with Ms Rizk for around one hour on each day both Ms Rizk and Ms Haksever were at work. Given, however, Ms Haksever was a manager of a number of commercial analysts, including Ms Rizk, it is open to find, and I find, that Ms Haksever and Ms Rizk regularly communicated with each other about the work Ms Rizk performed; and that Ms Haksever was in a position to form an assessment of Ms Rizk’s performance as a Commercial Analyst.
13 September 2019 – Ms Haksever meets with Ms Rizk to discuss work while Ms Haksever will be on leave
According to Ms Haksever, on 13 September 2019 (a Friday) she met with Ms Rizk after Ms Haksever asked Ms Rizk to send, and Ms Rizk did send, a calendar invitation with the subject “Required duties during your absence”.[54] Ms Rizk disputes that Ms Haksever asked Ms Rizk to send her an invitation, or that Ms Rizk sent the calendar invitation. Ms Rizk says that Ms Haksever sent the calendar invitation. Ms Rizk relies on the calendar invitation recording that Ms Haksever was the “Organizer [sic]”.[55] The calendar invitation, however, identifies “your absence” as the subject of the meeting. That appears to be a reference to Ms Haksever, because, as will appear shortly, Ms Haksever was due to take leave on 17 September 2019. That points to the calendar invitation having been issued by Ms Rizk. I am not in a position to resolve the conflict of evidence, and will make no finding about it. Nothing, however, turns on not resolving this conflict of evidence.
[54] Affidavit N Haksever 16.12.2020, [33]; annexure “NH-I”
[55] Response to Nilufer Haksever’s Affidavit, Paragraph 32-33
The purpose of the meeting of 13 September 2019 was to discuss the tasks Ms Haksever required Ms Rizk to perform while Ms Haksever would be on leave from 17 September 2019.[56] Ms Haksever says that she had prepared an agenda, which she annexed to her affidavit. Ms Haksever says that the dark text that appears in the agenda “generally reflected the notes” Ms Haksever made when she prepared the agenda; and Ms Haksever added the light text after she returned from leave when she reviewed the work Ms Rizk performed while Ms Haksever was on leave.[57]
[56] Affidavit N Haksever 16.12.2020, [33]
[57] Affidavit N Haksever 16.12.2020, [34]; annexure “NH-J”
The document Ms Haksever describes as an agenda (10 October meeting notes) appears to have been printed or created at 4:46 pm on 10 October 2019. It is headed “Christine - Leave Oct’19”. On its face, therefore, the 10 October meeting notes do not appear to be an agenda Ms Haksever prepared for the purpose of discussing at the meeting of 13 September 2019 the work Ms Haksever required Ms Rizk to perform while Ms Haksever would be on leave. I am not satisfied that it is. As I find later in these reasons, the 10 October meeting notes record notes Ms Haksever made during the meeting she had with Ms Rizk commencing at around 3:00 pm on 10 October 2019.
According to Ms Haksever, at the meeting of 13 September 2019 she described the tasks Ms Rizk needed to perform during Ms Haksever’s leave of absence, being the tasks Ms Haksever says are described in the 10 October meeting notes. Ms Haksever says she provided Ms Rizk with “very clear instructions about each task”.[58] Ms Haksever’s evidence continues as follows:[59]
During our meeting, which went for about two hours, it appeared to me that Christine understood all the tasks required of her. She appeared confident and calm as I explained each task. I did not observe anything to indicate that Christine was concerned about the workload and do not recall her asking me any questions or highlighting any issues or concerns in that respect. I explained to Christine that, as the senior Commercial Analyst, she was responsible to represent the team and to take charge of any questions or further work that arose during my absence, particularly from the CFO on the budget deliverables. I also explained to Christine that some of the tasks she needed to perform required her to manage the junior team members, ensure that they do their work and to review that work once it was completed. I made it plain, and I believe that Christine understood, that she was not required to do all of the necessary work by herself.
[58] Affidavit N Haksever 16.12.2020, [35]
[59] Affidavit N Haksever 16.12.2020, [36]
Ms Rizk has given a different account of the meeting.[60] She says the meeting lasted for one and a half hours, not two hours as Ms Haksever has deposed; and for about 45 minutes Ms Haksever and Ms Rizk discussed one project, being a business case relating to Nike (Nike Business Case) that had to be completed while Ms Haksever would be on leave. Ms Rizk says that Ms Haksever had been associated with that project from its beginning with the stakeholders, but Ms Rizk had had no involvement in it; and during the meeting Ms Haksever went through a number of assumptions, and recounted discussions she had with the stakeholders. Ms Rizk further says that for around 30 minutes she and Ms Haksever discussed other tasks Ms Rizk was required to do while Ms Haksever would be on leave, and where the files in relation to those tasks were located; but Ms Haksever did not go into much detail.
[60] Response to Nilufer Haksever’s Affidavit, Paragraph 35 to 36
At 11:45 am on 13 September 2019, 45 minutes after the scheduled ending of the meeting of 13 September 2019, Ms Haksever sent to Ms Rizk the following email: [61]
E:\TUG\NIKE MEN'S UNDERWEAR\LAUNCH AND CONTRACT INFO\Business Plan\Nike Underwear P&L Forecast Sep 2019 Update Presentation to MG and PR.xlsx ➔ this is what we've presented to Michael and Pat
E:\TUG\NIKE MEN'S UNDERWEAR\LAUNCH AND CONTRACT INFO\Business Plan\Nike Underwear P&L Forecast Sep 2019 Update v2 (Post Meeting with MG and PR).xlsx ➔ this is the new version you need to work on. Red tabs (Sales plan 100919 and Capes 100919 are Andy's latest plans)
Let’s catch up on Monday
[61] Affidavit N Haksever 16.12.2020, [37]; annexure “NH-K”
I find that Ms Haksever and Ms Rizk met on 13 September 2019 to discuss the work Ms Rizk would need to do while Ms Haksever was on leave. I also find that most of the discussion concerned the Nike Business Case, and that the balance of the discussion concerned a number of other matters, but the discussion on those matters was not as detailed as the discussions concerning the Nike Business Case. The basis of my finding is the email Ms Haksever sent to Ms Rizk at 11:45 am on 13 September 2019.[62] The email contains links to two documents that appear to relate to the Nike Business Case, and specifies the version of the documents on which Ms Rizk was required to work. That suggests the Nike Business Case was the focus of what Ms Haksever and Ms Rizk discussed at the meeting of 13 September 2019. I also find that the Nike Business Case is the project Ms Haksever describes in paragraph 44 of her affidavit, which I describe later in these reasons.
9:15 pm on Sunday 15 September 2019 – Ms Rizk sends email in relation to email Ms Foreman sent identifying errors
[62] Affidavit N Haksever 16.12.2020, [37]; annexure “NH-K”
At 9:15 pm on 15 September 2019 (a Sunday) Ms Rizk sent an email to a number of people, which included Ms Haksever and Ms Foreman, who was PVH’s General Manager of Tommy Hilfiger.[63] The email was in response to a string of emails that related to a project referred to in the evidence as the “DJ’s Trading terms negotiation” (DJ Project). I find, on the basis of Ms Haksever’s evidence, that the DJ Project “involved helping stakeholders in trading terms negotiations with a major customer”; that trading terms negotiations can take some time because they involve analysing a number of scenarios; and the DJ Project required a number of meetings with internal stakeholders to analyse the different scenarios and results.[64] The evidence in relation to Ms Rizk’s email is relevant because, as will appear later, Ms Haksever relied on Ms Rizk’s email to form the view that Ms Rizk did not accept criticism and reacted emotionally to criticism.
[63] Affidavit D Foreman 16.12.2020, [1]
[64] Affidavit N Haksever 16.12.2020, [46(f)]
Before I set out Ms Rizk’s email of 15 September 2019, it will be necessary to refer to the chain of emails in response to which Ms Rizk sent her email.
Chain of emails
The chain of emails in response to which Ms Rizk sent her email is as follows:
(a)An email Ms Foreman sent to Ms Rizk at 6:32 am on 13 September 2019 in which Ms Foreman said she needed “the findings on the sell through position for David Jones. Ie how much would we benefit from if we reduced benchmark to 60% and 50% as we discussed on Monday”. Ms Foreman said she “need[s] this ASAP as negotiation is today”.
(b)An email Ms Rizk sent to Ms Foreman at 7:20 am on the same day. Ms Rizk said that, as she had stated in a previous email, she was unable to calculate the benefit of reducing the sell through percentage because she did not have adequate data from David Jones; but if she can get the required data, Ms Rizk will be able to work on it, but she would be unable to guarantee she would have an answer for Ms Foreman by the morning.
(c)An email (7:34 am email) Ms Foreman sent at 7:34 am on 13 September 2019 to (I find) Ms Rizk and Ms Haksever in which she said (among other things) that “we all need to regroup on Monday”. Ms Foreman said she had “reviewed all data and [she] can’t see how things add up”; and she then identified some errors, and requested that “you please review all figures” because Ms Foreman could not use them for the presentation. Ms Foreman also said that PVH had a template already set up that was able to be used as a calculator for different terms, and asked whether there was a reason why Ms Rizk did not use that, noting that “Lisa handed it over” to Ms Haksever.
(d)At 8:19 am on 13 September 2019 Ms Haksever sent an email to Ms Foreman in which she said that Ms Rizk had not been able to “get the data at the level of detail we needed”; other than the sell-through information, the Cost of Doing Business (CODB) had been completed the previous week and shared with “Nash” and Ms Foreman; Ms Haksever had reviewed the analysis and “they all looked reasonable”; and that this was in the “same format as Lisa used to provide”. At 8:21 am on 13 September 2019, after noting she had “pressed sent [sic] accidentally”, Ms Haksever continued her email by asking whether Ms Foreman wanted to have a call before Ms Foreman’s meeting with David Jones.
Ms Haksever has given the following evidence in relation to this chain of emails:[65]
I was copied in on an email that Deb sent to Christine and other stakeholders on Friday, 13 September 2019. Deb was working with Nash and Christine on the David Jones trading term negotiations . . . . Deb and Nash realised that Christine’s work on the trading terms was not correct and waited until I returned so that I could review that work. In the interim though, Deb sent an email to Christine on 13 September 2019 requesting an urgent analysis for a meeting she had scheduled with David Jones on that day. Christine performed the analysis that Deb had requested, but completed a large part of it incorrectly because the mathematics was wrong. Christine was unable to complete another part of the analysis because the data required to do so was not available to her. The lack of data was not within Christine’s control. Deb copied me in on an email she sent to Christine on 13 September 2019 that said, “I think we all need to regroup on Monday. I have reviewed all data and I can’t see how things add up” and, “I don’t have the necessary information to take me into this negotiation which given how long we have known about it is extremely disappointing”. I responded to Deb’s email in order to smooth things over so far as I could noting that Christine did not have sufficient data to complete all of the task. Later that day, on 13 September 2019, I looked at the financials and worked with Deb to get her the information she required for her meeting. I spoke to Christine by telephone on 13 September 2019 and said, “It’s ok. Deb is calm, but you need to speak to her at the earliest opportunity”. Christine said, “I’ll send her an email” and I responded by saying, “Don’t send her email. It’s better to have things face to face. Just pop into her office next week and you can talk to resolve it”. Notwithstanding my direction, at 9.15pm on the evening of Sunday, 15 September 2019, Christine sent a further email to Deb which she copied me on (9.15pm email). A copy of the email chain described above is annexed and marked NH-T.
[65] Affidavit N Haksever 16.12.2020, [68]
Ms Rizk disputes this part of Ms Haksever’s evidence (bold and errors in original):[66]
This is a false statement.
Nilufer didn’t call me on the phone as I was in the office and Nilufer did not say do not send an e-mail or go and speak to Debora, so how could Nilufer states such a false statement? In fact, when Nilufer saw my e-mail, I recall very well that she said “Christine, I really like how you stand up for yourself”, there was not comment whatsoever regarding her communication with Debora and what Nilufer stated
[66] Response to Nilufer Haksever’s Affidavit, Paragraph 68
Ms Haksever’s and Ms Rizk’s evidence on this point should be assessed by reference to the evidence Ms Rizk gave under cross-examination, and the evidence Ms Foreman gave in her affidavit, and under cross-examination. In evidence given under cross-examination Ms Rizk accepted that on the Friday (being 13 September 2019) before the Sunday night Ms Rizk sent her email, Ms Haksever met with Ms Rizk to talk about what had happened “with the information that was meant to go to” Ms Foreman.[67] Ms Rizk gave the following evidence:[68]
[67] T109.25
[68] T109.35-T110.15
You were having a training session, or what were you doing?---No, no. She was telling me that she received from Deborah this email, and she was telling me, so I’m like, “Okay. We already went through all the – the template that I did, all the numbers, so where is it?” And that’s why Nilufer was also disappointed from Deborah – that she comes back and she’s saying that there was incorrect, because even Nilufer did not see it.
Did Nilufer find mistakes in the material you had provided?---She didn’t.
She didn’t?---And – she didn’t until Deborah pointed out, so - - -
Right. So Deborah found the mistakes in the material you provided to her?---But me and Nilufer went through it, because this is actually me going through all of that. It’s good for her as well to review my work, and when - - -
When you say “her”, Nilufer?---Nilufer to review the work - - -
So do you say it’s Nilufer’s fault?---I’m not – I’m not saying anyone fault. I’m saying that both of us looked at it, even if we missed it - - -
Before it went to Deborah?---Before it went to Deborah?
When did you look at it? Is this after Deborah - - -?---Before - - -
- - - had raised the issue?---Before I sent it to Deborah. Yes.
You say that Nilufer looked at it with you?---Yes.
All right. And approved it to be sent to Deborah, did she?---Yes.
I see?---And that’s why she was also disappointed that Deborah didn’t get what she was – needed, since both of us looked at it.
The effect of the evidence Ms Rizk gave under cross-examination is that on 13 September 2019, after the emails I have identified above had been sent, Ms Rizk met with Ms Haksever to discuss the issues Ms Foreman had raised in her emails; and it was discovered that information that Ms Rizk had sent to Ms Foreman in relation to the DJ Project, being information Ms Haksever had checked, contained an error or errors.
Nature of errors
Ms Foreman has described in an affidavit the errors to which she referred in the 7:34 am email.[69]
In my email of 13 September 2019 at 7.34am, after reviewing the work Christine had provided for the David Jones Project and noticing errors and mistakes in it, I expressed my concerns about those mistakes in her calculations, including that the numbers did not flow at all. I also asked her why she hadn’t used a template that had already been set up and used for these calculations before by Lisa Zion (the former Commercial Analyst) (Lisa).
My team and I were working on a trading terms negotiation with David Jones, with an important meeting scheduled for that Friday, and hence it was critical that my team and I understood the base so that we had a benchmark to negotiate against, as well as to know how much movement we had and what our cost of doing business was at that point in time.
The tables presented by Christine had a breakdown of all costs/factors by division that made up the Cost of Doing Business (CODB). However, what had not been checked was the sum of the parts to the totals. I pointed this out to her in my email of 13 September 2019, where I wrote, “I have reviewed all data and I can’t see how things add up. Can you please check your CODB”.
At first glance the total in the column of “other direct costs” stated 0.8% and this then added with other total costs to get a total CODB for the F18 year of 15.8%. From this figure scenarios were built for F19 and F20.
It was only on my review of the detail that I saw that the sum of the parts was not adding up correctly. Two of the largest divisions contributing to approximately 70% of sales had a CODB at 5.3% and 8%, so I could see an immediate error in the total of other direct costs at 0.8%. If this error had been rectified the total CODB should have been 20.2%, as compared to the 15.8% presented.
[69] Affidavit D Foreman 16.12.2020, [15]-[19]
Ms Haksever gave evidence under cross-examination in relation to questions Ms Rizk asked her about a conversation Ms Haksever says she had with Ms Foreman on 16 September 2019 (which I set out later) in which Ms Haksever recalls saying to Ms Foreman that Ms Rizk was disappointed, because her work did not result in any outcome, and that she just needed more time to adjust to her role. Ms Rizk asked Ms Haksever to explain how she could tell Ms Foreman that Ms Rizk needed more time to adjust, when in the email Ms Haksever sent at 8:19 am on 13 September 2019 Ms Haksever said that she had reviewed the analysis, and that “they all looked reasonable”; and that Ms Rizk used the same format as “Lisa” used to provide. Ms Haksever gave the following evidence (emphasis added):[70]
[70] T517.10-T518.30
So could you please tell us, how could you meet with Deborah to tell her that I need more time to adjust to my role as per your affidavit or you were concerned that I made a number of mistakes as per Deb’s affidavit when you clearly stated in your email to Deb that I did all the work that was required a week earlier?‑‑‑Yes.
Not just that, you also said that you reviewed my analysis and there were no mistakes, and you told her that the missing data was not my responsibility. Could you please explain to us ‑ ‑ ‑?‑‑‑I could. I said the missing data was not your responsibility and I’ve defended that when I met with Deborah afterwards. I’ve defended that that wasn’t your responsibility and you followed up, so you weren’t to be blamed in that missing analysis portion because you couldn’t get the data. I’ve – I’ve made it clear that it was understood. And afterwards I said that this was shared – in my email I said that this was shared with you a week ago and it – it has been ready and I’ve reviewed it. But afterwards I was shown the latest version of the data that Deborah has given to you and she is explaining here why she thinks that the data doesn’t add up and when I look at that data I can see – I could see afterwards why it didn’t add up, and that certainly wasn’t a version that I reviewed a week before. Then it has indicated to me that there was an update to that version which showed the mistake that Deborah very easily caught on. It wasn’t hard to catch that mistake when you see it. When I looked at your initial analysis I didn’t see it because I don’t believe that it was there. I believe that it has happened afterwards that caused a .8 per cent at the bottom line and men’s and women’s are all different. This is something that can easily be seen when an analytical eye is looking at that work.
When did you review that?‑‑‑When Deborah showed that to me.
No, no, no. The first time, when did you review that?‑‑‑It says that it was last week.
So you reviewed last week – the week when I submitted it; is that what you’re saying?‑‑‑I have reviewed a version of it.
So that was submitted, and you’re aware of that, and that’s why it says “submitted”. So if that wasn’t the version that I submitted, how did you know that there was another version?‑‑‑Because it – the original version that I’ve seen – that I’ve reviewed, that mistake wasn’t there.
But that one is the one that I submitted. So what other version ‑ ‑ ‑?‑‑‑Well, it’s clearly not because in the – in the latest version that I was shared by Deborah it was very clear where she was picking the error and there was an error.
So you’re talking about there were two versions?‑‑‑I – perhaps more.
Is that what you’ve stated?‑‑‑Yes. Perhaps more versions.
Perhaps. And you didn’t review it?‑‑‑I clearly didn’t.
What was the difference of the version? How did you notice that it’s another version?‑‑‑Because the work looked wrong.
That’s the only thing that has occurred, but not because you didn’t pick it up; is that what you’re saying?‑‑‑That’s what I’m saying, because this is very easy to pick up.
But you reviewed it when I submitted it the week before. As you said, it was submitted already?‑‑‑Yes. That was my knowledge, but clearly that’s not the latest version that she was given.
So I guess you’re not sure what version you’ve seen because you’ve said it’s submitted and you reviewed it?‑‑‑That is correct. Yes. I’m not sure what – what version I’ve said.
And you said that you didn’t notice but Deborah noticed it, not you, and she showed it to you; is that what you’re saying?‑‑‑She showed me the latest version that she received which had an error.
And she’s the one who has seen it?‑‑‑And I didn’t see that error.
She has just pointed it out to you?‑‑‑She did point out to me that she didn’t understand how this added up and I agreed that it didn’t add up.
But you didn’t say that on the email?‑‑‑She did.
That email ‑ ‑ ‑?‑‑‑You mean I didn’t say that?
Next, there is the following evidence Ms Foreman gave under cross-examination (emphasis added):[71]
[71] 03.02.2022 T19.25-T22.30
Yes. On 12 September you had another meeting with me at 5 pm to review the file one more time before you go on the next day to Melbourne; correct?‑‑‑Correct. It was not a formal meeting. It was the first opportunity in that day that I had time free to connect with you.
Yes. And you were happy with the file and there was no mistakes at that point; correct?‑‑‑Not quite correct because, from my memory at the time, we came round and I sat at your desk and we discussed – and there was some information you did not have available and it had not all been completed which is why we discussed it. I understood about the sell-throughs but you were going to prepare it ready for my meeting the next day. Correct?
But everything done other than this; correct?‑‑‑You hadn’t finished the workings, Christen.
There was couple of meetings that we had – all I mention above and was correct. It was going through all of these and there was extra requests regarding the sell-through and that were the thing that you asked me to add. And I mentioned that we didn’t receive all the information and that’s why we were missing these. And your response was, “Don’t worry about it. I understand.” Correct?‑‑‑Correct. I understand about that. But what hadn’t been pulled together was the final presentation and scenarios ready for the meeting the next day, which I believe is actually what all of my information and feedback on inaccuracy is about. It’s not about the sell-through and it’s not about the meetings and it’s not about the rebates. Correct
. . . .
Do you agree that we had over four meetings to discuss DJ rebates from the 3rd to the 12th?‑‑‑Yes.
And we had the final meeting to review on the 12th – on 12 September at 5 pm?‑‑‑Yes, when I came around to your desk. But – yes.
You stated that you reviewed the work on 12 September at 7.34 am and then – and that’s when you noticed the mistake and the errors; correct?‑‑‑Incorrect. I reviewed the work when I got home that evening on the 12th – late in the evening. And it was – and I continued to review it and configure how I was going to approach it. And that’s when I sent you the email on the morning of the 13th on my way to the airport in the taxi. So we had spoken on the 12th. We still had some work to do and I reviewed it when I got home late at night.
Okay. Did anyone look at that file other than you to review it?‑‑‑The file that you sent me on the evening of the Thursday the 12th – I can’t comment on that because I was at home reviewing it on my own.
Okay. When I gave you the file it wasn’t protected; right? And there is a chance that by accident ‑ ‑ ‑?‑‑‑I don’t know.
Yes. There is a chance by accident changed something in the calculation; correct?
HIS HONOUR: Sorry, Ms Foreman, you said you don’t know whether it was protected or not; is that right?‑‑‑I – I – I – I can’t comment whether it was protected or not. I don’t ‑ ‑ ‑
MS RIZK: But ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ recall ‑ ‑ ‑
It wasn’t protected?‑‑‑ ‑ ‑ ‑ looking at it. That’s not something that I’ve ever had to look at or observe in any information. But I swear I certainly didn’t change anything, if that is what you were alluding to, Christen.
The second matter that must be established before a person who is an employer can be found to have taken adverse action against an employee is if, among other things, the employee has exercised a “workplace right”. Under s 341(1)(c)(i) of the FW Act a person has a “workplace right” if, among other things, the person “is able to make a complaint . . . to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument”. The ordinary meaning of the word “complaint” is a statement expressing a grievance or a finding of fault; and an expression of grievance or accusation need not be factually correct, substantiated or ultimately made out in order to constitute a complaint within the meaning of s 341(1)(c)(i) of the FW Act.[247]
[247] Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, at [600]
There is some uncertainty about whether an employee’s ability to make a complaint in relation to his or her employment must be “underpinned by an entitlement or right”.[248] I reviewed the authorities in El-Hajje v Rissalah College Limited.[249] I there concluded that the most recent Full Federal Court authority[250] did not endorse the view that “is able” in s 341(1)(c)(ii) of the FW Act necessarily requires that such ability be underpinned by an entitlement or legal right.[251] In any event, even if “is able” requires proof of a source of an entitlement or right to make a complaint, it is satisfied in the circumstances of this case.
[248] The origins of that expression in the context of s 340(1)(c)(ii) of the FW Act is in Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, at [625]
[251] Alam v National Australia Bank Limited [2021] FCAFC 178, at [22]
Adverse action because of exercise of workplace right
The third matter that must be proved to establish a contravention of s 340(1) of the FW Act by an employer is that the employer has taken the adverse action for a particular reason, or for reasons that included a particular reason.[252] That requirement arises from the presence of the word “because”: s 340(1) of the FW Act prohibits a person from taking adverse action “because” a person has a “workplace right”, or because the person has exercised, or has not exercised, or proposes to exercise, or proposes not to exercise, such a right. Further, where the particular reason is one of a number of reasons for which the adverse action is taken, the particular reason must be “a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons”,[253] or must be an “operative or immediate reason for the action”.[254]
[252] FW Act, s 360
[253] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [127] (Gummow and Hayne JJ)
[254] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [140] (Heydon J)
An important aspect of determining whether in any given case a person has taken adverse action “because” of one or more of the matters specified in s 340(1) of the FW Act is s 361(1) of that Act. That subsection provides:
If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
In Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd, Jessup J (with whose reasons Rangiah J agreed), made the following observations about the effect and operation of s 361(1) of the FW Act:[255]
In the context of a provision such as ss 340 and 352, the effect of s 361 is to reverse the legal onus in relation to the reason or reasons for which the adverse action was taken. That is to say, at the end of the trial of fact, the question will be whether the respondent has established, on the civil standard, that the action taken was not taken for a reason, or for reasons which included a reason, proscribed by the legislation. That question is to be answered by reference to all of the evidence which bears upon it. Section 361 does not impose upon the respondent concerned the onus of calling any and every piece of evidence that might arguably influence the answer to the question of reasons or intent. The section is not, in other words, concerned to impose upon the respondent a continuing, unchanging, evidentiary onus with respect to that question.
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500, 516 [41], French CJ and Crennan J said that “the question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the [FW] Act.” Their Honours continued (248 CLR at 517 [45]):
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. [See, eg, General Motors-Holden’s Pty Ltd v Bowling (1976) 136 CLR 676 (note) …] Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker [See, eg, Pearce v WD Peacock & Co Ltd [1917] HCA 28; (1917) 23 CLR 199 at 208 per Isaacs J; at 211 per Higgins J.] or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. [See, eg, Harrison v P & T Tube Mills Pty Ltd [2009] FCAFC 102; (2009) 188 IR 270 at 276 [31]-[33].]
In other words, whether the onus arising under s 361 has been discharged in a particular case will depend upon the assessment of all of the facts by the trier of fact, including, most importantly in the conventional case, his or her assessment of the evidence given by the decision‑maker acting on behalf of the employer.
PVH has referred to additional principles,[256] including the following passage from the judgment of Bromberg J in Cummins South Pacific Pty Ltd v Keenan:[257]
True it is that the disbelief of the decision-maker as to the reason given for the taking of adverse action will ordinarily be a weighty consideration and often a determinative consideration as to whether a reason asserted by an applicant is a substantial and operative reason for adverse action. However, neither that observation nor the s 361 statutory presumption itself, relieves a court of the need to make all of the necessary inquiries and consider all of the evidence probative of whether the reason asserted has been negated by that evidence. Whilst the statutory presumption casts an onus on the respondent to satisfy the court on the evidence before it that the asserted reason has been negated, it does not require that finding to be based solely on the evidence of the decision-maker or to be based solely on the evidence called or otherwise put before the court by a respondent.
Ms Rizk’s case
[256] Written closing submissions of the Respondent, [19]
[257] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, at [116]
Did Ms Rizk make a complaint or complaints in relation to her employment?
In her closing submissions Ms Rizk relies on three things as constituting her making a complaint in relation to her employment. The first is the email Ms Rizk sent to Ms Haksever at 11:27 pm on 15 September 2019 in relation to Mr Esin. This email constitutes a statement expressing a grievance in relation to another employee; and also a statement of grievance or a finding of fault in relation to what Ms Rizk, in her email, claims was PVH’s failure to state clearly what Ms Rizk’s responsibilities were. These constitute complaints in relation to Ms Rizk’s employment.
The second thing Ms Rizk claims constitutes her making a complaint is the email she sent to Ms Haksever at 4:02 am on 11 October 2019. PVH submits that this email does not constitute a complaint because the statements Ms Rizk made in relation to her working hours were general; Ms Rizk accepted in evidence given under cross-examination that her email of 11 October 2019 was the first time Ms Rizk said anything to Ms Haksever about working long hours and on weekends, and that Ms Rizk also accepted that she had never complained to Ms Mackey about working late hours and weekends.
The question is whether any of the statements Ms Rizk made in her email of 11 October 2019 can properly be described as constituting the expression of a grievance or a finding of fault. There is no question that Ms Rizk’s email of 11 October 2019 expresses grievances, and a finding of fault. Among the grievances Ms Rizk expresses in her email is what she asserts is Ms Haksever’s unfair treatment of her; Ms Rizk’s being given unrealistic time frames within which to complete tasks; and Ms Rizk’s being blamed for mistakes she has made in circumstances where she has been given many tasks which she has been expected to complete at the same time. I am satisfied that by sending to Ms Haksever the email of 11 October 2019 Ms Rizk made a complaint in relation to her employment.
The third thing Ms Rizk claims constitutes her making a complaint is the email, and the attachments to that email, Ms Rizk sent to Ms Haksever at 12:45 pm on 13 November 2019. I have already noted that PVH, in its written submissions, does not acknowledge that Ms Rizk relies on this email as constituting one of the complaints Ms Rizk claims she made in relation to her employment; and, for that reason, PVH does not make any submission in relation to whether Ms Rizk’s sending the email constitutes the making of a complaint in relation to her employment. It is plain, however, that by sending the email Ms Rizk stated many grievances and findings of fault. The most striking and obvious statements of grievance and findings of fault were that the environment in which Ms Rizk was working was unhealthy, PVH had been discriminating against Ms Rizk, PVH had breached the Employment Contract, and PVH’s behaviour was against the law.
In the reasons for judgment I published on 5 November 2020,[258] I noted that Ms Rizk also claimed she had made complaints in relation to her employment at her meetings with Ms Haksever on 10 October and 8 November 2019. Nothing turns on whether Ms Rizk claims that, in those meetings, she did make complaints in relation to her employment. If it were necessary to decide that question, I would have held that Ms Rizk did make complaints in relation to her employment.
Did Ms Rizk’s complaints in relation to her employment constitute the exercise of a workplace right?
[258] Rizk v PVH Brands Australia Pty Ltd [2020] FCCA 2976, at [66]
That Ms Rizk made complaints in relation to her employment does not necessarily mean she did so in the exercise of a workplace right. Ms Rizk must show that she made her complaints because she was “able” to do so. I have already noted that, in my opinion, there is no need for a person who makes a complaint in relation to his or her employment to show he or she did so because he or she had an entitlement or right to do so. If I am incorrect about this, I would hold that “[u]nder a legal system based on the common law, “everybody is free to do anything, subject only to the provisions of the law””;[259] and that that principle may properly be characterised as a right or entitlement.[260] On this view, a person “is able”, in the sense of having the right or entitlement, to make a complaint or enquiry in relation to his or her employment, unless there is some provision of the law that prohibits or restricts the person from making such complaint or enquiry.
[259] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, at pages 564-565
[260] There may be a distinction between entitlement and right, such distinction being the distinction Cave J identified in Allen v Flood [1898] AC 1 between “freedom” or “liberty”, on the one hand, and “right”, on the other. Cave J said (at page 29): “Thus, it was said that a man has a perfect right to fire off a gun, when all that was meant, apparently, was that a man has a freedom or liberty [that is, an entitlement] to fire off a gun so long as he does not violate or infringe any one’s rights in doing so, which is a very different thing from a right the violation or disturbance of which can be remedied or prevented by legal process”.
Did PVH terminate Ms Rizk’s employment for the reasons it claims it did?
In its closing submissions PVH submits that:
(a)Ms Haksever was, in substance, the decision-maker, or critical decision-maker, in relation to PVH’s decision to terminate Ms Rizk’s employment, even though PVH accepts:
(i)Ms Haksever “was required to have her decision approved at an executive level”;[261] and
(ii)the termination of the employment of a senior employee, such as Ms Rizk, “required oversight and approval from the CEO”;[262] and
(b)Ms Haksever made the decision to terminate Ms Rizk’s employment on 18 October 2019.[263]
[261] Written closing submissions of the Respondent, [28.b.]
[262] Written closing submissions of the Respondent, [28.d.]
[263] Written closing submissions of the Respondent, [28.e.]
There is a serious difficulty with these submissions. PVH has given no evidence about when Mr Barnett (the “CEO” mentioned in PVH’s written submissions) approved the decision to terminate Ms Rizk’s employment, or about the information on which he relied, or about the reasons on which he relied for deciding that PVH should terminate Ms Rizk’s employment. This was evidence which it was within the power of PVH to adduce; but, for reasons PVH has not stated, PVH has not adduced such evidence. In the absence of this evidence, I am unable to find that PVH terminated Ms Rizk’s employment for the reasons it has submitted PVH did terminate Ms Rizk’s employment; and, for that reason, I am unable to find that PVH has discharged the burden of proving that it did not terminate Ms Rizk’s employment for reasons that Ms Rizk exercised her workplace rights by making complaints in relation to her employment, or that PVH terminated Ms Rizk’s employment for reasons that did not include, as a substantial and operative factor, Ms Rizk’s having exercised her workplace rights by making complaints in relation to her employment.
In any event, I have not accepted the essential elements of Ms Haksever’s evidence. I have not accepted Ms Haksever’s evidence that she did not read or did not read carefully the contents of the email Ms Rizk sent to her at 4:02 am on 11 October 2019 at the time she first became aware of the email; I have not accepted Ms Haksever’s evidence of her meeting with Ms Haratzis on 10 October 2019; I have not accepted Ms Haksever’s evidence that from 10 to 18 October 2019 she approached the various stakeholders of PVH to obtain feedback on Ms Rizk’s abilities and performance; I have not accepted Ms Haksever’s evidence that on 18 October 2019 she decided to terminate Ms Rizk’s employment, or that she so decided for the reasons she says she so decided; I have not accepted Ms Haksever’s evidence that she conducted a work performance meeting with Ms Rizk on 8 November 2019 knowing that whatever Ms Rizk was going to say at the meeting would have made no difference to the decision Ms Haksever said she made (but which I have not accepted she made) on 18 October 2019 to terminate Ms Rizk’s employment; I have not accepted Ms Haksever’s evidence of the conversations she says she had with Ms Mackey on and after 1 November 2019 in relation to the steps she says occurred leading up to the setting up of the appointment of 1:00 pm on 14 November 2019 for the purpose of PVH terminating Ms Rizk’s employment; and I have not accepted Ms Haksever’s evidence that she did not rely on the contents of the Rizk November documents in deciding to proceed with PVH’s termination of Ms Rizk’s employment.
For these reasons, therefore, PVH has not discharged the burden of proving that it did not terminate Ms Rizk’s employment for the reason that Ms Rizk exercised her workplace rights by making complaints in relation to her employment, or that PVH terminated Ms Rizk’s employment for reasons that did not include as a substantial and operative factor, Ms Rizk’s having exercised her workplace rights by making complaints in relation to her employment. And because Ms Haksever, in the face of evidence Mr Barnett has given, and which PVH has accepted is correct, gave evidence both in her affidavit and under cross-examination that she did not seek Mr Barnett’s approval, I would in any event not have accepted her evidence without corroboration by contemporaneous documents or evidence that is not reasonably open to dispute.
Conclusion
Ms Rizk has succeeded on her claim that PVH contravened s 340(1) of the FW Act by terminating Ms Rizk’s employment on 14 November 2019.
Relief
Ms Rizk claims compensation for economic loss, being two months’ salary from the time PVH terminated her employment on 14 November 2019 to 14 January 2020, when she commenced employment with another company with a comparable salary to that PVH paid her. Ms Rizk also claims damages in the sum of $1,590,000 for breach of contract that caused distress and humiliation due to the unlawful termination of the Employment Contract. Ms Rizk relies on the judgment of Kerr J in Roohizadegan v TechnologyOne Limited (No 2).[264]
Principles
Under s 545(1) of the FW Act, this Court may make any order the Court considers appropriate if the Court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision. The orders the Court may make includes an order referred to in s 545(2)(b), namely, “awarding compensation for loss that a person has suffered because of the contravention” of a civil remedy provision.[265] That includes economic loss.
[265] Under the table referred to in s 539(1) of the FW Act, s 340(1) is a “Civil remedy provision”.
To determine whether an applicant has suffered economic loss because of a contravention of a civil remedy provision of the FW Act, two sets of circumstances must be compared.[266] Where it is not alleged that an applicant failed to mitigate his or her loss, one set of circumstances is actual, and the other is hypothetical. The actual circumstances are those in which the applicant finds himself or herself at the date compensation is fixed or at some earlier appropriate date. The second, and hypothetical, circumstances are the financial position in which the applicant would have found himself or herself at the relevant time had the employer not contravened a civil remedy provision. If, after these two positions are identified, the applicant’s actual financial position is less favourable than the hypothetical financial position, compensation will be fixed in an amount that reflects the difference between the two positions. That is, compensation will be fixed in such amount as will put the employee in, or substantially in, the position he or she would have been, had the employer not contravened a civil remedy provision.
[266] I substantially repeat here what I said in Turnbull v Symantec (Australia) Pty Ltd [2013] FCCA 1771, at [87] and [88]
Paragraph (b) of s 545(2) of the FW Act also empowers this Court to make a compensatory order for distress, hurt and humiliation.[267] Such order can only be made if the applicant has in fact suffered distress, hurt, and humiliation as a result of the contravention.
[267] Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333 (Barker J)
Application
I first consider Ms Rizk’s claims for economic loss. The first question is whether, but for PVH’s contravention of s 340(1) of the FW Act, Ms Rizk would have remained employed with PVH up to the day she commenced her new employment. I am satisfied that she would not have remained so employed, because PVH would have dismissed Ms Rizk from her employment by the end of her probationary period. I do not make that finding on the basis of the Performance Evidence; I rely on the contents of the emails Ms Rizk sent to Ms Haksever on 11 October 2019 and on 13 November 2019. I have already held that their contents were such as would have led a person in the position of Ms Haksever and senior executives of PVH to conclude for reasons that would not have included any reason proscribed by s 340(1) of the FW Act, that Ms Rizk did not meet the Desired Qualities. That means Ms Rizk would have remained employed up to the conclusion of the six-month probationary period provided for by her Employment Contract.
Given Ms Rizk commenced her employment with PVH on 25 June 2019, her employment with PVH would have ended on 24 December 2019. According to the letter dated 14 November 2019 PVH sent Ms Rizk confirming the termination of her employment, Ms Rizk was going to be paid one week’s pay in lieu of notice. The letter stated that PVH would pay one week’s wages in lieu of notice, even though Ms Rizk had been paid for the full month of November 2019. Ms Rizk has not disputed that statement.
In the circumstances, I am satisfied that a fair reflection of Ms Rizk’s economic loss is $10,950, being one twelfth of the annual salary provided for in the Employment Contract (including superannuation) ($131,400). Ms Rizk will also be entitled under s 547(1) of the FW Act to interest on that amount from 14 November 2019 (being the date on which I have found PVH contravened s 340(1) of the FW Act) to 31 March 2023 (being the date on which I propose to pronounce orders).
Ms Rizk’s reliance on Roohizadegan is misplaced. Apart from the Full Federal Court having set aside Kerr J’s orders,[268] the applicant in that case supported his claim for damages for distress with medical evidence. Ms Rizk has not provided any evidence which shows she suffers from any medical condition, and that any medical condition Ms Rizk may have was caused or aggravated by what I have found to be PVH’s contravention of s 340(1) of the FW Act. I am satisfied, however, that the circumstances in which PVH terminated the Employment Contract in contravention of s 340(1) of the FW Act caused Ms Rizk distress, hurt, and humiliation. Ms Rizk sent her email of 13 November 2019 with the reasonably held expectation that she would be discussing its contents at a follow up meeting from the performance meeting she had with Ms Haksever on 8 November 2019. Instead, Ms Rizk attended a meeting in which she was confronted by Ms Haksever and Ms Mackey in which Ms Haksever said nothing, and Ms Mackey, by use of a terse statement, terminated Ms Rizk’s employment.
I am satisfied that in these circumstances $10,000 would be appropriate compensation for the distress, hurt and humiliation Ms Rizk suffered because of PVH’s contravention of s 340(1) of the FW Act. That amount should attract interest under s 547(1) of the FW Act on that amount from 14 November 2019 (being the date on which I have found PVH contravened s 340(1) of the FW Act) to 31 March 2023 (being the date on which I propose to pronounce orders).
Finally, Ms Rizk seeks an order that PVH provide an apology for PVH’s contravention of s 340(1) of the FW Act, but also “for the bullying and harassment” Ms Rizk claims she received during her employment with PVH; for Ms Rizk having been “treated as a slave not as an employee” because she was denied her right to take a break during core working hours, and she was “denied to take most of the weekends off due to the constant request by” Ms Haksever on Fridays “to work on projects to be delivered Monday mornings”. Ms Rizk has not made any claims of bullying; and I have not accepted that Ms Rizk has proved she worked the hours she claims in “Fact 10” or exhibit D she worked while employed by PVH. Even if, therefore, the Court had power under s 545 of the FW Act to order a person who contravened a civil remedy provision to issue an apology, I would not have ordered PVH to issue any apology to Ms Rizk in relation to its contravention of s 340(1) of the FW Act.
CLAIM BASED ON CONTRAVENTION OF S 62(1) OF THE FW ACT
Subsections 62(1), (2), and (3) of the FW Act provide:
(1)An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full-time employee — 38 hours; or
(b) for an employee who is not a full-time employee — the lesser of:
(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.
(2)The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.
(3)In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:
(a)any risk to employee health and safety from working the additional hours;
(b)the employee’s personal circumstances, including family responsibilities;
(c)the needs of the workplace or enterprise in which the employee is employed;
(d)whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e)any notice given by the employer of any request or requirement to work the additional hours;
(f)any notice given by the employee of his or her intention to refuse to work the additional hours;
(g)the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h) the nature of the employee’s role, and the employee’s level of responsibility;
(i)whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
(j) any other relevant matter.
To establish PVH contravened s 62(1) of the FW Act, Ms Rizk must prove that PVH requested or required her to work the additional hours referred to in s 62(1), and that PVH’s requirement or request was unreasonable. I have already found that Ms Rizk has not established that she worked the additional hours Ms Rizk identifies in “Fact 10” or exhibit D. Quite apart from that, however, Ms Rizk has not adduced evidence that is capable of identifying the requests PVH conveyed to, or requirement PVH imposed on, Ms Rizk to work the additional hours she claims to have worked. Nor has Ms Rizk adduced evidence that is capable of proving, in relation to any particular request PVH conveyed to, or requirement PVH imposed on, Ms Rizk to perform additional work, that the additional hours PVH may have so requested or required were unreasonable.
For these reasons, Ms Rizk’s claim based on PVH’s contravention of s 62(1) of the FW Act fails.
DISPOSITION
I propose to make a declaration that, by terminating Ms Rizk’s employment on 14 November 2019, PVH contravened s 340(1) of the FW Act. I also propose to order, pursuant to s 545(2)(b) of the FW Act, that PVH pay to Ms Rizk compensation in the amount of $20,950 (being the sum of $10,950 for economic loss, and $10,000 for distress, hurt and humiliation), together with interest pursuant to s 547 of the FW Act from 14 November 2019 (being the date on which I have found PVH contravened s 340(1) of the FW Act) to 31 March 2023 (being the date on which I propose to pronounce orders). I have calculated interest on $20,950 by applying the rates prescribed by the Interest on Judgments Practice Note (GPN-INT) issued by the Federal Court of Australia as follows:
Period Start Period End Days Interest rate Amount 14 Nov 2019 31 Dec 2019 48 5.25% $144.64 1 Jan 2020 30 Jun 2020 182 4.75% $494.84 1 Jul 2020 31 Dec 2020 184 4.25% $447.62 1 Jan 2021 30 June 2021 181 4.10% $425.95 1 Jul 2021 31 Dec 2021 184 4.10% $433.00 1 Jan 2022 30 June 2022 181 4.10% $425.95 1 Jul 2022 31 Dec 2022 184 4.85% $512.21 1 Jan 2023 31 Mar 2023 90 7.10% $366.77 Total: $3,250.98
I will therefore make an order pursuant to s 545(2)(b) of the FW Act that PVH pay to Ms Rizk $24,200.98, being the sum of $20,950 and interest of $3,250.98.
Ms Rizk has not indicated in her Form 3 that she seeks an order under s 546(1) of the FW Act for the payment of a pecuniary penalty. PVH accepts, however, based on the Full Federal Court’s observations in Flightdeck Geelong Pty Ltd v All Options Pty Ltd,[269] that Ms Rizk’s not having claimed that she seeks an order under s 546(1) of the FW Act does not deny this Court power to order a pecuniary penalty. I therefore propose also to order that if Ms Rizk intends to apply for an order under s 546(1) of the FW Act that PVH pay a pecuniary penalty for its contravention of s 340(1) of the FW Act, she must within 21 days after the day I pronounce orders file and serve any affidavit and any written submissions in support of any such application. I will also order that, if Ms Rizk files and serves any such material, PVH file and serve any affidavit and written submissions on which it intends to rely within 21 days after the day on which Ms Rizk will be required to file her material, and that Ms Rizk file material in reply within 14 days after PVH files its material. I will also provide the parties with the option of electing to have the question of pecuniary penalty determined on the papers.
[269] Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138, at [51]-[57]
I certify that the preceding three hundred and twenty (320) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 31 March 2023
- AGLC
- Rizk v PVH Brands Australia Pty Ltd [2023] FedCFamC2G 249
- Case
- [2023] FedCFamC2G 249
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether PVH terminated Ms. Rizk's employment for reasons that included her exercising her workplace rights, specifically making complaints about her employment, as prohibited by section 340(1) of the Fair Work Act 2009 (Cth). The court had to assess whether the evidence presented by PVH, which included hearsay and opinions about Ms. Rizk's performance, was sufficient to prove that the termination was not related to her protected activities. Additionally, the court needed to determine if Ms. Rizk's evidence, which challenged the negative performance assessments and included testimonies from PVH's former executives, was credible enough to counter PVH's claims.
In its decision, the court found that PVH failed to discharge the burden of proving that the termination was not related to Ms. Rizk's exercise of workplace rights. The court highlighted that the evidence provided by PVH was largely based on hearsay and general negative opinions about Ms. Rizk's performance, many of which were not communicated to her prior to the termination. Furthermore, the court noted inconsistencies in Ms. Haksever's evidence regarding the decision-making process and the approval sought from higher management. The court concluded that Ms. Rizk had successfully demonstrated that PVH contravened section 340(1) of the FW Act by terminating her employment.
As a result, Ms. Rizk was awarded compensation for economic loss, which included two months' salary from the date of termination until she found new employment. Additionally, she was awarded damages for breach of contract, amounting to $1,590,000, to compensate for the distress and humiliation caused by the unlawful termination. The court's decision underscored the importance of clear and substantiated evidence in employment termination cases, especially when allegations of unfair dismissal and breaches of workplace rights are involved.
Orders
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Background
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Evidence
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Decision
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