Saad v Ada Evans Chambers Pty Ltd
[2018] FCCA 1832
•9 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAAD v ADA EVANS CHAMBERS PTY LTD & ANOR | [2018] FCCA 1832 |
| Catchwords: INDUSTRIAL LAW – Application alleging breaches of the FWA and the Legal Services Award 2010 – unpaid parental leave – extension of unpaid parental leave – failure to consult – return to work guarantee – replacement employees – adverse action – declarations made. |
| Legislation: Fair Work Act 2009 (Cth), ss.3, 43, 44, 45, 46, 76, 83, 84, 84A, 340, 341, 342, 360, 361, 545, 546, 550 Legal Services Award 2010 |
| Cases cited: Stanley v Service to Youth Council Incorporated [2014] FCA 643; (2014) 225 FCR 317 Turnbull v Symantec [2013] FCCA 1771; (2013) 280 FLR 196 |
| Applicant: | PATRYCIA SAAD |
| First Respondent: | ADA EVANS CHAMBERS PTY LTD (ACN 065 856 260) |
| Second Respondent: | MICHAEL JOHN MAXWELL |
| File Number: | SYG 820 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing dates: | 23 – 25 October 2017 |
| Date of Last Submission: | 25 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 9 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr I Latham |
| Solicitors for the Applicant: | Turner Freeman Lawyers |
Counsel for the Respondents: | Mr A Britt |
ORDERS
THE COURT DECLARES THAT:
The first respondent breached s.45 of the Fair Work Act 2009 (Cth) by contravening cl.8 of the Legal Services Award 2010.
The second respondent is taken to have breached s.45 of the Fair Work Act 2009 (Cth) through a contravention of cl.8 of the Legal Services Award 2010, pursuant to s.550 of the Fair Work Act 2009 (Cth).
THE COURT ORDERS THAT:
The application made on 27 March 2014 is otherwise dismissed.
The applicant to file and serve written submissions on the issue of appropriate compensation on or before 30 July 2018.
The respondents to file and serve written submissions in reply on or before 20 August 2018.
THE COURT NOTES THAT:
The parties are to advise the Court whether the quantum of compensation is to be determined on the written submissions, or whether a hearing is required, on or before 20 August 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 820 of 2014
| PATRYCIA SAAD |
Applicant
And
| ADA EVANS CHAMBERS PTY LTD (ACN 065 856 260) |
First Respondent
| MICHAEL JOHN MAXWELL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 27 March 2014 by Ms Patrycia Saad (the applicant) seeking declarations, compensation and pecuniary penalties pursuant to ss.545 and 546 of the Fair Work Act 2009 (Cth) (“the FWA”) against Ada Evans Chambers Pty Ltd (the first respondent) (“AEC”) and Mr Michael Maxwell (the second respondent) for alleged breaches of ss.44, 45, 83, 84, 84A of the FWA and alleged adverse action taken against Ms Saad (in breach of s.340 of the FWA). Ms Saad filed a “Form 2” on 28 March 2014, and a “Form 4” on 27 March 2014.
It is not in dispute that at the relevant times, AEC was an employer, and Ms Saad was an employee, for the purposes of the FWA. Mr Maxwell is the director and a shareholder of AEC. It was not in dispute that at the relevant times, Mr Maxwell “controlled” AEC.
Ms Saad was employed by AEC, commencing on 21 January 2002. She claims her employment was terminated on, or about, 28 October 2013, following a twelve month period of unpaid parental leave which commenced on 4 June 2012.
Before the Court
The parties first appeared before the Court on 16 April 2014. Ms Saad was represented by a solicitor, as were the respondents. Orders were made, by consent, for the progress of the matter, including that parties attend mediation before a Registrar of the Court. The mediation was unsuccessful.
The affidavit evidence filed on behalf of Ms Saad, and read into evidence, is as follows:
a)The affidavit of Jodi Phelps, sworn 20 July 2016.
b)The affidavit of Patrycia Saad, sworn 29 July 2016, with annexures.
c)The affidavit of Michael Saad, sworn 29 June 2017.
d)The affidavit of Justine Anderson, sworn 29 June 2017, with annexures.
The affidavit evidence filed on behalf of the respondents, and read into evidence, is as follows:
a)The affidavit of Graeme Pollard, affirmed 3 August 2017, with annexures.
b)The affidavit of Isabel Barnes, affirmed 1 August 2017, with annexure.
c)The affidavit of the Michael Maxwell, affirmed 3 August 2017, with annexures.
A copy of Ms Saad’s “Form F8A” from the proceedings before the Fair Work Commission was tendered by the respondents at the final hearing and marked as “RE1”.
On 10 August 2016, orders were made that the parties file documents outlining any objections to the affidavit evidence, prior to the final hearing. However, neither Ms Saad, nor the respondents, complied with this order. Shortly after the commencement of the final hearing, a short adjournment was granted to the parties to, where possible, reach “agreement” on the objections.
A bundle of documents, referred to by the parties as “the court book”, was subsequently handed up by Ms Saad. This contained, among other things, copies of the affidavits filed by the parties which included redactions (using a black marker) to those parts of the affidavits that the parties had agreed would not be put before the Court as evidence, and, in some circumstances, added in agreed notations.
The parties’ remaining objections to the affidavit evidence, and the disposition of those objections, are contained in Schedule 1 to the judgment.
Background
Ms Saad’s claims were originally contained in a document headed “Points of Claim” (“POC”) filed with the Court on 27 March 2014, and two other documents headed “Reply” (“the Replies”) (filed on 22 April 2016) to both respondents’ Defences (“the Defences”) (both filed on 8 March 2016).
On the second day of the final hearing (24 October 2017), Ms Saad sought leave to file an amended POC (“the APOC”). This was not opposed by the respondents and leave was granted (on the basis that Ms Saad conceded that there is a “temporal relationship between the workplace rights and the adverse action that is necessary to be proven”).
Ms Saad claimed that she was employed as Mr Maxwell’s “secretary”, and that her employment was covered by the Legal Services Award 2010 (“the Award”). Further, that the terms and conditions of her employment contract “were partly express and partly implied” ([5] of the APOC).
On 4 June 2012 Ms Saad commenced a 12 month period of unpaid parental leave ([7] – [9] of the APOC).
In the period of about March to May 2012 [Ms Saad was unable to confirm exactly when], Ms Saad claimed that an employee of AEC, Ms Laura Geelan, commenced training to work in Ms Saad’s position while she was on unpaid parental leave. Ms Geelan “took over” Ms Saad’s position on 4 June 2012 ([12] of the APOC).
Ms Saad claimed that in about August 2012, Mr Maxwell “undertook a restructure” and “refused to permit [Ms Saad] to return to work to her pre-maternity leave position” ([16](a) and (c) of the APOC). Further, that Mr Maxwell attempted to procure Ms Saad’s resignation by offering her “inferior and/or unrelated positions” ([16](d) of the APOC). Ms Saad initially claimed that this conduct came within the meaning of “adverse action” under s.342 of the FWA ([17] of the APOC) (however, this was not pressed, see [38] and [199] below).
While Ms Saad was on unpaid parental leave, she claimed that Mr Maxwell also “undertook a review” of the “staff supporting [Mr Maxwell]”, that were employed by AEC or Mr Maxwell ([18] of the APOC). Ms Saad alleged that the “review” was undertaken “to ensure that [Ms Saad’s] position no longer existed”, and that she was “not consulted” during the course of the review ([18](a) and (b) of the APOC). Further, the “review” concluded with the position of secretary to Mr Maxwell being engaged by Mr Maxwell directly, and not by AEC, and that the “accounts” task previously performed by the “secretary” to Mr Maxwell, was undertaken by the “floor clerk” ([18](c) and (d) of the APOC).
Ms Saad initially claimed that this conduct was “adverse action” within the meaning of s.342 of the FWA (later, not pressed, see [38] and [199] below), and that the “review” constituted a “major change”, as that term is defined in cl.8 of the Award ([19] – [20] of the APOC). Further, the failure to consult with Ms Saad during the course of the “review” was said to be a breach of cl.8 of the Award and s.83 of the FWA ([22] of the APOC).
Ms Geelan resigned in, or about, September 2012. Ms Saad alleged that Mr Maxwell advertised for, and then hired, a “new” secretary, Ms Justine Anderson, on a “permanent full time basis” ([23] – [24] of the APOC).
Ms Saad claimed that Ms Anderson was a “replacement employee” within the meaning of s.84A of the FWA. Further, Ms Anderson was not informed that Ms Saad was on unpaid parental leave, or of her entitlement to return to her position of employment at the conclusion of that leave ([24] – [27] of the APOC). Ms Saad initially claimed that this “conduct” was adverse action within the meaning of s.342 of the FWA ([25] – [26] of the APOC) (later, not pressed, see [38] and [199] below).
In April 2013, Mr Maxwell hired Ms Isabel Barnes as the “receptionist” for AEC. Mr Maxwell was the relevant employer. In or about August 2013, Mr Maxwell was said to have “switched” Ms Anderson and Ms Barnes in their positions of employment ([28] of the APOC). [I should note that the APOC states (at [28]) that this occurred in “October 2012”. But Ms Barnes was not employed until April 2013. On the evidence, the “switch” occurred in August 2013.] Ms Barnes was then employed by Mr Maxwell on a permanent full-time basis as his secretary.
Ms Saad claimed that Ms Barnes was a “replacement employee” within the meaning of s.84A of the FWA ([29](a)of the APOC). As with the engagement of Ms Anderson, Ms Saad claimed that Mr Maxwell did not inform Ms Barnes of Ms Saad’s unpaid parental leave, or her entitlement to return from that leave to her position of employment. This conduct was also alleged to be adverse action within the meaning of s.342 of the FWA ([31] of the APOC) (however, later, this was not pressed, see [38] and [199] below) and a breach of s.84A of the FWA ([28] – [32] of the APOC).
Ms Saad alleged that in or about January or March 2013 [there was some inconsistency in relation to when], Mr Maxwell removed her access to the “computer systems”, presumably of AEC. This was also said to be adverse action within the meaning of s.342 of the FWA ([33] – [34] of the APOC) (however, later this was not pressed see [38] and [199] below).
Ms Saad alleged that she met with Mr Maxwell on or about 3 April 2013 to discuss her return to her position of employment following her unpaid parental leave. Ms Saad claimed that she indicated to Mr Maxwell her desire to return to work on a full-time basis, whereupon Mr Maxwell informed her that her pre-parental leave position, “[no] longer existed following a restructure” and that Mr Maxwell “could not afford to have her return to [her pre-parental leave] position” ([35] of the APOC).
Ms Saad claimed that she sought to exercise her workplace right to return to work following the period of unpaid parental leave and in breach of s.84 of the FWA, the “respondents” failed to “permit [her] to return to her pre-maternity leave position”, which constituted adverse action within the meaning of s.342 of the FWA ([36] – [39] of the APOC).
Ms Saad claimed that in order to “defray” the costs of her returning to work, she “made a series of suggestions” including that she take a period of long service leave, extending her unpaid parental leave for an additional twelve months and returning to work on a part-time basis. The “respondent” [in context, Mr Maxwell acting on behalf of AEC], is said to have “rejected all of these proposals”, which was said to constitute adverse action within the meaning of s.342 of the FWA
([40] – [42] of the APOC) (however, this was later not pressed, see [38] and [199] below).
On or about 28 October 2013, Ms Saad alleged that the “respondent” [in context, her reference appears to be Mr Maxwell], “terminated” her employment. This conduct was said to be adverse action within the meaning of s.342 of the FWA ([43] – [44] of the APOC).
Further, Ms Saad alleged that the “adverse action” described at [17], [19], [26], [31], [34], [39], [42] and [44] of the APOC “was taken for prohibited reasons” [46] of the APOC) (but see [38] and [199] below).
Relevant legislation
The relevant legislation is as follows.
a)Section 44 of the FWA:
“44 Contravening the National Employment Standards
(1) An employer must not contravene a provision of the National Employment Standards.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) However, an order cannot be made under Division 2 of Part 4-1 in relation to a contravention (or alleged contravention) of subsection 65(5) or 76(4).
Note 1: Subsections 65(5) and 76(4) state that an employer may refuse a request for flexible working arrangements, or an application to extend unpaid parental leave, only on reasonable business grounds.
Note 2: Modern awards and enterprise agreements include terms about settling disputes in relation to the National Employment Standards (other than disputes as to whether an employer had reasonable business grounds under subsection 65(5) or 76(4)).”
b)Section 45 of the FWA:
“45 Contravening a modern award
A person must not contravene a term of a modern award.
Note 1: This section is a civil remedy provision (see Part 4-1).
Note 2: A person does not contravene a term of a modern award unless the award applies to the person: see subsection 46(1).”
c)Section 46 of the FWA:
“46 The significance of a modern award applying to a person
(1) A modern award does not impose obligations on a person, and a person does not contravene a term of a modern award, unless the award applies to the person.
(2) A modern award does not give a person an entitlement unless the award applies to the person.
Note: Subsection (2) does not affect the ability of outworker terms in a modern award to be enforced under Part 4-1 in relation to outworkers who are not employees.”
d)Section 76 of the FWA:
“76 Extending period of unpaid parental leave--extending for up to 12 months beyond available parental leave period
Employee may request further period of leave
(1) An employee who takes unpaid parental leave for his or her available parental leave period may request his or her employer to agree to an extension of unpaid parental leave for the employee for a further period of up to 12 months immediately following the end of the available parental leave period.
Note: Extended periods of unpaid parental leave can include keeping in touch days on which an employee performs work (see section 79A).
Making the request
(2) The request must be in writing, and must be given to the employer at least 4 weeks before the end of the available parental leave period.
Agreeing to the requested extension
(3) The employer must give the employee a written response to the request stating whether the employer grants or refuses the request. The response must be given as soon as practicable, and not later than 21 days, after the request is made.
(4) The employer may refuse the request only on reasonable business grounds.
(5) If the employer refuses the request, the written response under subsection (3) must include details of the reasons for the refusal.
Discussion
(5A) The employer must not refuse the request unless the employer has given the employee a reasonable opportunity to discuss the request.
…
No extension beyond 24 months after birth or placement
(7) Despite any other provision of this Division, the employee is not entitled to extend the period of unpaid parental leave beyond 24 months after the date of birth or day of placement of the child.”
e)Section 83 of the FWA:
“83 Consultation with employee on unpaid parental leave
(1) If:
(a) an employee is on unpaid parental leave; and
(b) the employee's employer makes a decision that will have a significant effect on the status, pay or location of the employee's pre-parental leave position;
the employer must take all reasonable steps to give the employee information about, and an opportunity to discuss, the effect of the decision on that position.
(2) The employee's pre-parental leave position is:
(a) unless paragraph (b) applies, the position the employee held before starting the unpaid parental leave; or
(b) if, before starting the unpaid parental leave, the employee:
(i) was transferred to a safe job because of her pregnancy; or
(ii) reduced her working hours due to her pregnancy;
the position the employee held immediately before that transfer or reduction.”
f)Section 84 of the FWA:
“84 Return to work guarantee
On ending unpaid parental leave, an employee is entitled to return to:
(a) the employee's pre-parental leave position; or
(b) if that position no longer exists--an available position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position.”
g)Section 84A of the FWA:
“84A Replacement employees
Before an employer engages an employee to perform the work of another employee who is going to take, or is taking, unpaid parental leave, the employer must notify the replacement employee:
(a) that the engagement to perform that work is temporary; and
…
(c) of the rights the employee taking unpaid parental leave has under:
…
(ii) section 84 (which deals with the return to work guarantee)…”
h)Section 340 of the FWA:
“340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) A person must not take adverse action against another person (the second person ) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4-1).”
i)Section 341 of the FWA:
“341 Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body…”
j)Section 342 of the FWA:
“…adverse action is taken by an employer against an employee if the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer…”
k)Section 361 of the FWA:
“361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.”
l)Section 550 of the FWA:
“550 Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
Note: If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person's contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.”
For current purposes, cl.8 of the Award is as follows:
“8 Consultation regarding major workplace change
8.1 Employer to notify
(a) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.
(b) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.
8.2 Employer to discuss change
(a) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.
(b) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1.
(c) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.”
[Emphasis in original.]
Summary of main points in dispute
First, in relation to s.83 of the FWA and cl.8 of the Award (s.44 and s.45 of the Act), Ms Saad stated before the Court that a “decision” of the kind referred to in s.83 of the FWA and cl.8 of the Award, occurred at two points. One, when her unpaid parental leave was/was not extended (see further below). Two, when she received the termination of employment letter in October 2013.
At the hearing, Ms Saad submitted that there was some debate about the date of termination, but in the APOC, the relevant date was said to be 28 October 2013 (at [43]). The date, of course, is relevant, given that pursuant to s.83 of the FWA, no consultation is required until the decision is made (Stanley v Service to Youth Council Incorporated [2014] FCA 643; (2014) 225 FCR 317 (“Stanley”) at [192] – 196] (see further below). The respondents’ position was that the “termination” of Ms Saad’s employment occurred in October 2013.
The respondents conceded that AEC’s decision not to employ someone to do secretarial work for Mr Maxwell was “caught” by s.83 of the FWA. Further, that cl.8 of the Award is “broader” than s.83 of the FWA, and not time limited. They submitted that the claim in relation to the breach of cl.8 of the Award was their “weakest point”. However, they submitted that Ms Saad was holding AEC to a “higher standard” than is required by that clause.
Second, in relation to s.84 of the FWA (the return to work guarantee), there does not appear to be any dispute that Ms Saad’s pre-parental leave position no longer “existed” at the end of her unpaid parental leave. Therefore, s.84(b) of the FWA applied. Ms Saad claimed that Mr Maxwell had the capacity to provide a position to Ms Saad pursuant to s.84(b) of the FWA (relying on Turnbull v Symantec [2013] FCCA 1771; (2013) 280 FLR 196 (“Turnbull”)) (see further below). Ms Saad submitted before the Court that she applied for extended parental leave, and was not told that she did not have such an extension (in writing or orally). Therefore, she was entitled to return to work pursuant to s.84 of the FWA.
The respondents submitted that s.84 is not a “right” in the strict sense that Ms Saad appeared to be using the term. The respondents claimed that the position Ms Saad performed before the period of unpaid parental leave was for AEC, and not Mr Maxwell, and that AEC had no power to make a position available (as it has no power over Mr Maxwell). The respondents also claimed that the request for an extension of parental leave did not comply with s.76 of the FWA.
Third, in relation to s.84A of the FWA (replacement employees), Ms Saad submitted that an unpaid person on parental leave (such as Ms Saad) had standing to litigate in relation to s.84A of the FWA because she had an “interest” that is affected. Ms Saad relied on the decision in CPSU, the Community and Public Sector Union and Anor v Commonwealth of Australia [2006] FCA 1589; (2006) 157 IR 457 per Cowdroy J, which discussed the meaning of “person with affected interest”, for the proposition that it is not necessarily a “legal interest”, rather, it is a broader phrase than that. Ms Saad also submitted that AEC had a responsibility pursuant to s.84A of the FWA to the “replacement employees”, who were filling the job of legal secretary to Mr Maxwell, whether or not they were employed by AEC.
The respondents submitted that s.84A of the FWA only applies to AEC (as Ms Saad’s employer). The relevant “replacement employees” were not hired by AEC, but by Mr Maxwell, and therefore, there was no obligation to notify them of Ms Saad’s unpaid parental leave pursuant to s.84A of the FWA.
Fourth, in relation to the alleged “adverse action” taken against Ms Saad, Ms Saad submitted that there were two “central” adverse actions and that the “others” were “incidental”. These were, one, that she was prevented from returning to work after a period of unpaid parental leave. Two, her employment was terminated. The parties appeared to agree that the central issue here was whether the adverse action was taken “because” of the exercise of a workplace right (s.340(1)(a) of the FWA).
The respondents submitted that although they conceded that the termination of employment is adverse action within the meaning of s.342 of the FWA, it was not taken due to any workplace right. Further, that the adverse action claims cannot be made against Mr Maxwell as he was not Ms Saad’s employer. Those claims should be dismissed. Ms Saad appears not to have subsequently pressed them.
Consideration
As noted above, Ms Saad has filed an APOC in these proceedings, alleging a number of claims against the respondents, which give rise to a number of issues. However, her written and oral submissions focused on a narrower group of issues.
For this reason, I sought confirmation, particularly in light of the evidence, as to what matters (in the APOC) were not being pursued.
It was confirmed that the “contractual claims” were withdrawn. This however, still left a number of other matters which were not apparently addressed in the written submissions, and importantly, in the subsequent oral submissions. In this light, I have focused on the case presented by Ms Saad in her submissions, and in light of her relevant evidence.
The factual matrix on which Ms Saad relies is as follows. Ms Saad was employed by AEC (a company). Mr Maxwell was, at the relevant time, an individual who “controlled” AEC. Ms Saad took unpaid parental leave. During this time, Mr Maxwell was said to have given “her work” to other employees. AEC did not consult her about her “potential redundancy”.
In light of her submissions, those parts of the APOC dealing with alleged adverse action which require attention and which Ms Saad described in oral submissions as “essential”, are the claims arising from the “right” of Ms Saad to return to work after her period of unpaid parental leave and the termination of Ms Saad’s employment. The “other” claims set out in the APOC were described by Ms Saad as “incidental”.
However, some matters set out in the APOC do need to be seen in light of the evidence emerging at the hearing because they provide background and, in part, important context, for the disposition of Ms Saad’s claims.
First, the APOC asserts that Ms Saad gave oral and written notice of her pregnancy in December 2011 and requested 12 months unpaid parental leave commencing 4 June 2012 at this time ([7](a) of the APOC). In cross examination, Ms Saad’s evidence was that she told Mr Maxwell of her pregnancy orally, but that written notice was given “later”. She was not sure when this occurred.
Ms Saad’s evidence on this was not clear. Initially she stated that she sent emails regarding her pregnancy “before Christmas”. However, there was no reference to this in her affidavit which stated that she “confirmed” the period of unpaid parental leave in February 2012 ([34] of Ms Saad’s affidavit). She did not have copies of the emails.
Second, Ms Saad’s evidence was not clear on the relevant date she told Mr Maxwell that she wanted her unpaid parental leave to commence. This was in contrast to what is stated in the APOC (at [7]) (which states that she requested the leave commence on 4 July 2012).
Third, Ms Saad’s evidence was unclear as to those persons whom she said “replaced” her in her employment. In the APOC (at [11]) the assertion is that the “respondents resolved”, in around “April or May 2012” that Laura Geelan, who at that time was employed by AEC as a receptionist, would “replace” her in her role during her unpaid parental leave. The APOC asserts that Ms Saad commenced training Ms Geelan prior to her unpaid parental leave and Ms Geelan “took over” her position when Ms Saad commenced parental leave on 4 June 2012.
In her oral evidence, Ms Saad stated that she started to train Ms Geelan “before then”. She was unable to explain what was written in the APOC (at [11] and [12]). Her evidence was that she did not know what was meant by those parts of the APOC. She was unable to say when Mr Maxwell told her that Ms Geelan would replace her during her unpaid parental leave and that she should commence to train her.
Fourth, the APOC (at [14]) asserts that in “about June 2012 the first respondent engaged [Isabel] Barnes as receptionist to replace [Ms] Geelan”. In her oral evidence however, Ms Saad stated that she did not know that to be the case. Nor was any reference made to it in her affidavit evidence.
Fifth, the APOC asserts (at [23]) that in September 2012, Ms Geelan resigned from her employment. In cross examination, Ms Saad’s evidence was that she had “no knowledge of that”.
Sixth, the APOC (at [28]) states that in October 2012, Mr Maxwell “switched” Ms Anderson and Ms Barnes so that Ms Barnes became “his secretary” and Ms Anderson became the “receptionist” for AEC. Her evidence in cross examination was that she had no knowledge of this (in fact it appears that Ms Barnes was not yet employed at this time).
Seventh, it is to be remembered that the APOC asserts (at [33]) that the removal of Ms Saad’s access to “computer systems” while on unpaid parental leave was “adverse action” by the respondents as against Ms Saad.
However, Ms Saad’s evidence in relation to this was unclear. She said she rang to complain that she was unable to access the “diary” and was told a password was required for access. This password was provided. However, she also gave evidence that she did not know if the password “worked”. Further, she could not remember what was said in a subsequent conversation with the person who had provided her with the password.
Eighth, in the APOC (at [33]) the assertion is made that Mr Maxwell “removed [Ms Saad’s] access to computer systems” “[i]n about January 2013”. Her evidence was that she was unsure when this occurred. She appeared to agree that this occurred around March 2013 as was indicated in her affidavit (not January 2013). In any event, this claim in relation to adverse action was subsequently not pressed by Ms Saad (see [38] and [199] below).
During the hearing, Ms Saad’s counsel submitted, in light of the questions asked of Ms Saad, which elicited the evidence outlined above, that the APOC was not Ms Saad’s sworn statement. Rather, it was a “pleading signed by the solicitor”. Further, that some of the “pleadings are either admitted or not admitted in the evidence”.
It is important to note the central role played by POCs in matters of this type. The POCs are the factual contentions upon which an applicant seeks to base their case, and the context for the legal arguments to be advanced. In short, the POC is the vehicle by which the respondent is put on notice of the case they are required to answer.
Of course, the ultimate disposition of any case depends on the evidence that ultimately emerges before the Court. However, there is some expectation that in preparing the POC, and in this case it is to be remembered that the document that Ms Saad was taken to was an amended POC, the solicitor who “signed” it, had some anticipation of the evidentiary basis for what is claimed.
In any event, the importance and relevance of what is set out above is that ultimately, on Ms Saad’s evidence, important factual matters from which her case was said to emerge, were no longer reasonably available to her. This is also the case because no other evidence was proffered to “support” those factual assertions in the APOC which were “not admitted”.
By contrast, the evidence of Mr Maxwell as given initially in his affidavit, and subsequently in cross examination, generally did not suffer from the same deficiencies as Ms Saad’s evidence (see further below).
Paragraph 46 of the APOC is in the following terms:
“The adverse action described at paragraphs 17, 19, 26, 31, 34, 39, 42 and 44 of these Points of Claim was taken for prohibited reasons
Particulars
(a) The adverse taken by the second and first respondents was taken because of:
(i) the applicant exercising or attempting to exercise the first to fifth workplace rights;
(ii) the applicant’s sex;
(iii) the applicant’s pregnancy;
(iv) the applicant’s carer’s responsibilities;”
What must immediately be said is that nothing of substance was put in evidence in relation to Ms Saad’s sex, pregnancy, or carer responsibilities. This was subsequently acknowledged by Ms Saad in closing submissions. She stated that she did not “pursue those matters”.
At best, on the evidence, what remained were her claims in relation to ss.44, 45, 83, 84 and 84A of the FWA and Ms Saad’s assertion that both respondents took adverse action against her because she was exercising, or attempting to exercise, workplace rights.
The meaning of “adverse action” is set out at s.342 of the FWA (and see above at [29]). The respondents submitted that on the evidence, and when regard is had to the items constituting the meaning of “adverse action”, Mr Maxwell, was not, relevantly, the employer. As such, the matters raised against him with reference to s.342 of the FWA could not be made out.
In submissions in reply, Ms Saad accepted that for current purposes, Mr Maxwell was not the employer and therefore could not have taken “adverse action”. Of course that still leaves open the question of his accessorial liability pursuant to s.550 of the FWA, given his relationship with AEC.
In light of what is set out above, attention is to be directed to the two central issues posed by Ms Saad. That is, the failure to consult (by AEC) and her right to return to work (with AEC) after her period of unpaid parental leave. This is to be considered in the context of ss.83, 84, 84A and s.340 of the FWA and cl.8 of the Award.
The relevant period of unpaid parental leave
Both matters (outlined above at [67]) can only be resolved with the disposition of an issue that arose during the hearing. There was no dispute that Ms Saad commenced her parental leave on 4 June 2012 for a period of 12 months. However, the question arose as to when the period of unpaid parental leave came to an end.
Ms Saad asserted that she sought an extension of her unpaid parental leave beyond 3 June 2013 (which was 12 months from 4 June 2012). The respondents asserted that no extension was granted.
The respondents drew attention to s.76 of the FWA. This provides that an employee who takes unpaid parental leave may request the employer to extend the period of this leave for up to a further 12 months, following the end of the available parental leave period. The issue in dispute between the parties was whether Ms Saad made such a request.
In her evidence, Ms Saad stated that on 14 March 2013 (prior to the end of the 12 month period), she sent an email to Mr Maxwell to discuss coming into AEC’s chambers for a visit. She stated her intention on the visit was to “discuss [her] return to work” ([43] of Ms Saad’s affidavit).
The relevant email is at annexure “PS2” to her affidavit. In essence, it says that she was “planning to pop in for a visit” and was “looking forward to catching up”. In cross examination, Ms Saad readily acknowledged that the email made no reference to her return to work, or to coming in to discuss her return to work. She visited on 19 March 2013, and although Mr Maxwell was present for a brief period (“2 minutes”), nothing of “substance” was discussed ([45] of Ms Saad’s affidavit).
She also gave evidence that between 20 March 2013 and 28 March 2013 she had further email exchanges with Mr Maxwell. The email exchanges are at annexure “PS3” to her affidavit.
Ms Saad’s affidavit evidence (at [48]) was that “we [Ms Saad and Mr Maxwell] agreed to meet to discuss my return to work on 3 April 2013”. However, the emails in the relevant period do not support this proposition.
Mr Maxwell sent an email to Ms Saad the day after her short visit on 19 March 2013, which stated as follows (see annexure “PS3” of Ms Saad’s affidavit):
“Hi Trish
Sorry I missed you yesterday but I was very busy
Your boy looks alert and beautiful
It would be nice to catch up soon
Things have changed here and we should discuss that
Lets catch up soon
Hope Mick is well
…”
It appears Mr Maxwell wanted to meet with Ms Saad to discuss “changes” at AEC.
In any event, Ms Saad gave evidence in her affidavit of a discussion with Mr Maxwell on 3 April 2013 (at [49]) as follows:
“We met at Marco’s Cafe. We had a conversation to the following effect:
[Ms Saad]: I want to talk about when I’m back in June
[Mr Maxwell]: Things have changed around here. The Brydens work has dried up.
[Ms Saad]: That’s okay. I can turn it around. There are outstanding fees I can chase.
[Mr Maxwell]: There is not enough money to have you back.
[Ms Saad]: I want to return. If you can’t afford to have me full time, I’ll come back part time.
[Mr Maxwell]: No, I can’t afford any secretary.
[Ms Saad]: But you have somebody there now. I want to come back.”
Mr Maxwell’s version of the discussion is as follows ([74] – [76] of Mr Maxwell’s affidavit):
“[74] On 03 April 2013, I met with the applicant at approximately 11:00 am. We sat in a coffee shop and had a discussion. During that conversation, the applicant said words to the following effect –
‘I am struggling with the idea of leaving my boy and do not think that I can return to full-time employment at this stage. Instead of coming back, I would like to take my long service leave and you can pay that weekly if you like over a period of time.’
[75] During that conversation I said words to the effect –
‘Things have changed significantly. The Brydens partnership has been dissolved and a lot of briefs were taken away from me and I am still concerned about my financial viability. Your role disappeared after Laura left and I employed Justine as a basic secretary, on the understanding that she would help out from time to time on the switch so that I could justify a part payment being made by Ada Evans Chamber Pty Ltd. Jodi has now taken over all your accounting and other duties which means that I don’t have to pay a secretary for that function anymore. I would be happy to find something for you when you are ready to come back.’
[76] At no time during our discussion on 03 April 2013 did Trish discuss returning to work full-time. In fact, she made it clear that she could not see herself leaving Jakob at that stage. There was no mention of day care for Jakob in this discussion.”
Further email exchanges took place between Ms Saad and Mr Maxwell in April and May 2013. On 8 April 2013, Ms Saad sent Mr Maxwell an email in the following terms (see annexure “MM11” to Mr Maxwell’s affidavit):
“Dear Mr Maxwell
It was lovely to catch up with you the other day.
I just wanted to re-cap some of the things we discussed that Tuesday, 3 April 2013:
1. I still wish to come back to my current position from my maternity leave.
2. You expressed your concerns for affording a secretary anymore.
3. So I proposed returning 1 day per week to start with and increasing days over time.
4. I wish to take my Long Service Leave commencing 3 June 2013. (Due to your financial concerns I proposed taking the long service leave in the form of double the time off at half the weekly rate. e.g. instead of 2 months at fully weekly rate, taking 4 months at half the weekly rate, or even 6 months at a third of the weekly rate.)
You mentioned paying Jodi, the clerk, extra for doing your bookkeeping. If that is the aspect of my role that you prioritise, then I should be able to get the bookkeeping done in 1 day per week. This should, of course, be a cheaper option as my wage is less than Jodi’s.
Thank you, by the way, for your frankness and taking the time to talk with me. I am sure we can find a suitable arrangement.
I look forward to further discussions and await your thoughts on the Long Service Leave terms so that I may firm up my childcare arrangements.
Regards,
Trish Saad.”
Mr Maxwell responded on 29 April 2013 as follows (see annexure “MM12” of Mr Maxwell’s affidavit):
“Hi Trish
I am sorry I have been so tardy but things have been hectic.
It was nice to catch up.
You look nice and relaxed and your little boy is beautiful.
Dealing now with your email, I must say I was surprised to see you mention the prospect of full-time work as we didn’t discuss that.
I have been working on a part-time return to work, as you mentioned you would like to return on a part-time basis, perhaps one day a week, even in a receptionist role.
As you know, things have changed dramatically here, mainly due to the Brydens partnership dissolution. Your role disappeared after Laura left. My accountants advised that it was no longer tenable for my secretary to be employed by Ada Evans Chambers Pty Ltd and Justine was employed as a basic secretary who is required to help out at the switch from time to time. Jodi has taken over all accounting and other duties related to my personal affairs. You mentioned that you would like to take another few months off and be paid your long service leave etc on a weekly basis for that period.
In the light of my current financial position, that would be helpful.
I am sure I could find a part-time role here either working for me personally or as an assistant to the clerk for you when you are ready to do something and would welcome your thoroughness and efficiency.
I will be away for a while and suggest we catch up on my return to discuss what you would like to do.”
On 26 May 2013, Ms Saad sent an email to Mr Maxwell in the following terms (see annexure “PS6” to Ms Saad’s affidavit):
“Hi Mr Maxwell,
Hope you had a great trip away. Assuming you might be back now, as I hope not to bother you on your holidays.
Thank you for your last email.
It probably won’t come as a surprise to you, but I am struggling with the idea of ‘leaving’ my little baby boy, especially in the light of you clearly not really needing me so much right now. Jakob is going through a fierce ‘separation anxiety’ stage, and I am myself a bit too :-)
So I would like to extend my maternity leave by another 12 months, instead of taking my long service leave for now. This of course is also better for you in light of your current financial position, as you won’t need to pay me anything for the 12 months. I understand this is an entitlement available to me and allows me to retain my rights to my position which I still hope to return to and have every intention of doing so (as I did when first taking maternity leave). However, as you mentioned things have changed for you in Chambers, then this should be a better outcome for you and I am willing to have that extra time without pay to spend with my son and hopefully things turn around for you in a year’s time.
I trust you will welcome my request and hope that it is the win/win outcome I think it to be.
Regards,
Trish Saad”
I note that although Ms Saad was questioned in cross examination on the above email of 26 May 2013, neither party referred to it in submissions in relation to whether Ms Saad had made a request pursuant to s.76 of the FWA to extend her unpaid parental leave period. Rather, the parties’ focus was on her email of 30 May 2013 (see below). In any event, it appears that it was in her email of 26 May 2013 that Ms Saad first raised the prospect of extending her unpaid parental leave.
On 27 May 2013, Mr Maxwell sent Ms Saad an email in the following terms (see annexure “MM13” to Mr Maxwell’s affidavit):
“Hi Trish
Would you be interested in some part-time work..say one day a week for Pulse?
Lets talk, anyway
I am please you have connected so well with your little one
Say Hi to Mick…”
On 30 May 2013, Ms Saad responded as follows (see annexure “MM13” to Mr Maxwell’s affidavit):
“Hi,
That sounds like fun but I wouldn’t be able to consider that offer at this point in time.
I have worked so hard the last 24 years, all in barristers chambers, to get to where I am,
I don’t want to walk away from that, just because I had a baby. I will stick to just extending my maternity leave for now. But thank you anyway, and that you for understanding.
Jakob has started to walk the last couple of weeks at barely 11 months, so cute and exciting. Will have to pop in for another catch up soon. Hi to Jo too, hope she and you had a nice rest over your holidays.
Trish”
The respondents submitted that there was “an issue” as to whether Ms Saad’s email of 30 May 2013 was a request to extend her unpaid parental leave pursuant to s.76 of the FWA, “as distinct from a statement”.
It is here that some caution is necessary. Ms Saad’s affidavit evidence was that she discussed various matters with Mr Maxwell in the period from 3 April 2013 to 29 May 2013. There was a “dispute” in the evidence between Ms Saad and Mr Maxwell as to what was discussed.
Whatever was discussed in this period, what emerges is that there is no evidence of any written request for the extension of the parental leave period from Ms Saad that met the requirements of s.76(2) of the FWA.
Ms Saad’s email of 30 May 2013, and the reference to “I will stick to just extending my maternity leave now”, may reflect what Ms Saad hoped would occur. However, what remains, even if this was to be taken as a written request, is that it was not given “to the employer at least 4 weeks before the end of the available parental leave period” (s.76(2) of the FWA).
Before the Court, Ms Saad did not dispute that such a request needed to have been made in writing at least four weeks before 3 June 2013. It was not.
Ms Saad submitted however, that the Court should look to the “purpose and objects of the Act in accordance with Blue Sky” (in context, a reference to Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355).
However, having made that submission, Ms Saad made no specific reference to any of those objects or purposes of the FWA, let alone explain how they affected the particular circumstances of this case.
There is nothing in the object of the FWA as expressed at s.3 of the FWA, to provide any basis for Ms Saad’s submission that, in effect, the requirements set out in s.76 of the FWA can be ignored when that section does not assist an applicant’s case.
The object is expressed at s.3 of the FWA to be, in part, “to provide a balanced framework for cooperative and productive workplace relations…”. Applying the provisions of s.76 of the FWA, as they are stated, promotes that objective.
Ms Saad’s submissions sought to characterise the respondents’ submission on this point as being that, unless a request is made in writing at least four weeks before the end of the unpaid parental leave period, no extension could be granted, even if the employer wanted to agree to it.
As I understood the respondents’ submission, the importance of Ms Saad’s failure to comply with the requirement of s.76(2) of the FWA, was that if no competent request was made, then no obligation arises on the respondents to comply with, for example, s.76(3) of the FWA, concerning the giving of a written reply by the employer within 21 days after the request is made. [For the sake of completeness, and with s.76(5A) of the FWA in mind, I note that this point was not the subject of submission by Ms Saad.]
On the evidence, and in particular, having regard to documentary evidence, the emails of April and May 2013 (set out above) reveal that Ms Saad and Mr Maxwell engaged in a discussion about Ms Saad’s return to part-time work, or alternatively working for “Pulse Radio” (a business with which Mr Maxwell had a connection).
The email exchanges above reveal that Mr Maxwell made clear his “concerns” about “affording” a “secretary any more” (item 2 at annexure “MM11” to Mr Maxwell’s affidavit), and that Ms Saad understood this concern, or at least she said she did. Although her stated preference was to return to what she said was her “current position”, she proposed a graduated return to work. In particular, to perform “bookkeeping”.
In context, this can be seen as a reasonable attempt to accommodate Mr Maxwell’s “concerns”. However, it was not a request for an extension of her unpaid parental leave period.
Mr Maxwell’s email of 29 April 2013 (see above at [80]) again addressed the issue of Ms Saad returning to work on a part-time basis. He stated that he had been “working on a part-time return to work as you [Ms Saad] mentioned”. He emphasised that “things have changed dramatically here, mainly due to the Brydens partnership dissolution” (a significant source of work).
Mr Maxwell also referred to Ms Saad’s comment made earlier about taking long service leave. However, the emphasis was on her return to work in a part-time role (see annexure “MM12” of Mr Maxwell’s affidavit):
“…In the light of my current financial position, that would be helpful. I am sure I could find a part-time role here either working for me personally or as an assistant to the clerk for you when you are ready to do something and would welcome your thoroughness and efficiency…”
On 27 May 2013 Mr Maxwell proposed (annexure “MM13” to Mr Maxwell’s affidavit):
…Would you be interested in some part-time work..say one day a week for Pulse? Lets talk, anyway…”
Ms Saad’s reply is set out above at [84].
Ms Saad did not make a clear statement, in writing, that she wanted an extension of her “unpaid parental leave”. The following email correspondence occurred.
On 3 June 2013 at 6:18pm, Mr Maxwell sent the following email to Ms Saad (see annexure “MM17” to Mr Maxwell’s affidavit and annexure “PS7” to Ms Saad’s affidavit):
“Hi Trish
That’s a pity you cant come back.
I will arrange for someone else to do the Pulse work.
It required someone with your pedantic and thorough approach..not easy to find.
Hope to see you soon.
Love
M”
Ms Saad replied on 3 June 2013 at 8:48pm as follows (see annexure “MM17” to Mr Maxwell’s affidavit and annexure “PS7” to Ms Saad’s affidavit):
“I thought you were offering to get me a job at pulse radio, sorry, this is getting all a bit confusing.
Anyhow, I take that as you accepting my extension of my maternity leave.
T x.”
Mr Maxwell responded on 3 June 2013 at 9:23pm as follows (see annexure “MM17” to Mr Maxwell’s affidavit and annexure “PS7” to Ms Saad’s affidavit):
“No, Trish
In view of the fact you don’t want to come back full time now, I thought you might like to do some part time work for me.
I think Jo will take it on.
See you soon.
Love
M”
In all, I find that on the evidence, the period of unpaid parental leave which had been approved, ended on 3 June 2013. That is, 12 months from 4 June 2012. Even if what was in her email of 26 May 2013, or the email of 30 May 2013, could in some way be understood as a request, in writing, to extend her parental leave, it still did not comply with s.76 of the FWA. Therefore, there was no extension of her period of unpaid parental leave pursuant to that section.
Having made this finding, I will turn to the issues set out above at [67], first with reference to ss.83, 84 and 84A of the FWA.
However, I note that both parties made submissions on what they described as the question of “credit” in relation to the evidence given by various witnesses. Ms Saad described this as the evidence of Ms Phelps and Ms Anderson on the one hand, and Mr Pollard and Mr Maxwell on the other. It is convenient to deal with the “credit” questions before turning to ss.83, 84 and 84A of the FWA.
Credit
I agree with Ms Saad’s submissions that there are often differences in accounts about the same events, because evidence is given by different persons with different perspectives and further, differences in accounts can arise with the passage of time.
The differences in the witness’s evidence centred on events occurring while Ms Saad was on unpaid parental leave and in particular, what Mr Maxwell described as the “changes” in the “work situation” and the consequent impact on personnel and work responsibilities.
Ms Phelps provided an affidavit in these proceedings and was cross examined. Ms Phelps was employed by AEC between 2008 and 2013 as a “floor clerk”. Her evidence primarily covered the period of 2012 to 2013. It is of note that although she confirmed that her affidavit evidence was, at the time of its making, true and correct, before the Court she identified “errors”, particularly in relation to comments said to have been made by Mr Maxwell as to the type of work done by Ms Saad.
Her evidence that she was “a little hazy on [her] recollection”, which was given in examination in chief, can be seen as being honest as at that time. However, it does not explain why, if her recollection was “hazy”, she sought to give this evidence by way of affidavit. This “haziness” in her recollection, and through her evidence given in cross examination, meant that Ms Phelps, in effect, resiled from the evidence put in her affidavit.
Other evidence given by Ms Phelps during cross examination also remained unsatisfactorily explained. For example, she stated that her work involved her in preparing “contracts”. Yet her explanation of this was to have performed simple administrative tasks in creating “data files”.
Ms Phelps also agreed in evidence, that when she left AEC in December 2013, it was in “less than ideal circumstances”. She agreed that she did not “particularly like Mr Maxwell”.
That, of itself, is not sufficient to place less weight on her evidence. However, her evidence of difficulties with recollection (demonstrated a number of times in cross examination), and her evidence that confirmed that Ms Geelan was employed by Mr Maxwell, not AEC, and for “considerably less remuneration” than that of Ms Saad, meant that Ms Phelps’ evidence was of limited assistance to Ms Saad’s case and, to the contrary, was of assistance to the respondents’ case (and see further below in relation to Ms Phelps’ credit).
Ms Anderson also gave evidence by way of affidavit. She was employed by AEC between November 2012 and January 2014. She was studying law at that time. Her evidence was that at the interview following her job application, Mr Maxwell told her she was to be employed as a “legal secretary”. Her evidence was that at no time was she told that the “position was a maternity leave position”. She gave evidence of, after commencing work, having overheard Mr Maxwell and Mr Pollard having “numerous conversations” about “getting rid of Trish Saad” ([5] – [16] of Ms Anderson’s affidavit).
In her evidence in cross examination, Ms Anderson was unable to recall dates relevant to the times she said she had overheard such conversations concerning Ms Saad. In one instance, she had given affidavit evidence that Mr Maxwell, in discussion with Mr Pollard, had said “we have to get rid of [Ms Saad]. I don’t want her back” ([16] of Ms Anderson’s affidavit). In cross examination she was unable to say in which year this occurred, let alone which month or day.
These features of Ms Anderson’s evidence are sufficient, of themselves, to cause some caution in the assignment of weight. However, what stands as of greater concern, is Ms Anderson’s evidence concerning what she said was Mr Maxwell’s “vendetta” against her.
The context for this appears to be as follows. During her employment, Ms Anderson was studying law. She asked Mr Maxwell to sign her “practical legal training” (“PLT”) form. Mr Maxwell refused to do so. Ms Anderson was with a senior counsel when he telephoned Mr Maxwell on her behalf and asked him to reconsider signing the form.
Ms Anderson then gave evidence that she thought Mr Maxwell was “angry” with her. Subsequently, her evidence was that she was “disappointed” that he had not signed the PLT form, and that he had a “vendetta” against her.
Mr Maxwell’s evidence, which was not “weakened” in cross examination, was that he did not sign the PLT form because he did not think it appropriate in circumstances where Ms Anderson did not meet the relevant criteria.
It is not necessary to recount the further details of this matter. That is because in cross examination, Ms Anderson agreed that she was doing “basic secretarial work” and “reception work”. She gave no relevant evidence that she was doing any “legal work”.
This provides the reasonable basis, and reasonable explanation, for Mr Maxwell’s refusal to sign a form certifying that Ms Anderson had demonstrated experience in doing work directly relevant to her practical legal training.
Whether Ms Anderson was “disappointed” in Mr Maxwell or, whether she perceived him to be “angry” with her, is not sufficient to explain why she expected him to inappropriately, and in the circumstances, falsely, certify that which was not true. Nor was she able to explain in her evidence why she had such an expectation of Mr Maxwell.
This evidence also must be seen in light of her other evidence concerning conversations that she said she had with Ms Phelps at the end of December 2013 and into early 2014 concerning Ms Saad and her employment. Her evidence was that she found what “was happening” to Ms Saad “sad” and “disappointing”.
Ms Phelps also left her work with AEC in circumstances which Mr Maxwell, in his evidence, described as “acrimonious” ([137] of Mr Maxwell’s affidavit). This arose out of what Mr Maxwell described as Ms Phelps’ conduct in using Facebook as a means of communication in contravention of Chambers policy, and indeed in contravention of a practice which Ms Phelps was supposed to “police” as part of her work duties.
Ms Phelps was cross examined on the matter of her Facebook conversations with Ms Anderson (one of the matters raised with her by Mr Maxwell at the time of her resignation on 20 December 2013).
She denied and/or gave evidence that she could not remember some aspects of the conversation. These matters included, in addition to the Facebook matter, that she had “overpaid” Ms Anderson and used her son to “cover” for her while taking “long lunches”.
Mr Pollard also gave evidence. To a significant and relevant extent, and on matters on which he was able to give evidence, he corroborated Mr Maxwell’s version of events.
Importantly, in cross examination, Mr Pollard’s evidence that the “restructure” [of AEC] did not occur simply to allow for Ms Saad to be “retrenched”, was not weakened. Unlike Ms Phelps and Ms Anderson, it was not possible to form an adverse view as to the weight to be assigned to his evidence.
There was certainly nothing in Mr Pollard’s evidence that came close to the following example. In her affidavit (at [28]), Ms Phelps gave evidence that “from late 2012 and into 2013, [Ms Saad] came into Chambers on a number of occasions”. Her evidence was that on the first occasion, prior to Ms Saad’s arrival, Mr Maxwell told her to “move some of the files off [Ms Anderson’s] desk” so as to give the appearance to Ms Saad that all Ms Anderson was “doing” was “typing”.
However, in Ms Phelps’ oral evidence before the Court given in examination in chief, her evidence was that her “stronger recollection”, after recently reading her affidavit, was that she was asked to move files, “but I think it was in context to (sic) Jo Maxwell” (Mr Maxwell’s wife). Further, she said that, “I cannot say for certain that we moved files in relation to [Ms Saad] or [Ms Saad] coming to visit chambers”. Why Ms Phelps gave contrary evidence in her affidavit was never satisfactorily explained.
It is not necessary to make a finding that the evidence of Ms Phelps and Ms Anderson should be totally rejected. Rather, it is not to be preferred to the evidence of Mr Pollard. In that light, Mr Pollard’s evidence provides strong corroboration for the evidence of Mr Maxwell. The evidence of Ms Phelps and Ms Anderson cannot be said to comparatively assist Ms Saad, particularly about events in respect of which she had no actual or personal knowledge.
The respondents did not seek to impugn the credit of Ms Saad. In their submissions, while references were made to minor discrepancies in her evidence, the disposition of the matters in dispute between the parties, as between the evidence of Ms Saad and Mr Maxwell, falls to an assessment, between the evidence in relation to individual matters as set out below.
Sections 83, 84 and 84A of the FWA
I agree with the respondents (noting that this submission was made only in reference to AEC) that s.83 and s.84 of the FWA (see below for s.84A of the FWA) are engaged while an employee is on unpaid parental leave. As from 4 June 2013, Ms Saad was not on unpaid parental leave as the relevant period of unpaid parental leave had ended and had not been extended.
The relevant question in relation to s.83 of the FWA is therefore whether it was engaged in the circumstances of this case and if so, how. Here, Ms Saad’s complaint relied, in part, on events that occurred beyond 4 June 2013. However these events need to be understood within the actual scope of s.83 of the FWA and obligations imposed by it.
Section 83 of the FWA is focused on an employee. In the current case Ms Saad was an employee of AEC. Further, its focus is on an employee who is on unpaid parental leave.
The dispute between the parties centred on the matter of whether the employer (AEC), made a decision that would have a significant effect on the status, pay, or location of Ms Saad’s (the employee’s)
pre-parental leave position, and whether it took all reasonable steps to give Ms Saad information about, and an opportunity to discuss, the effect of that decision on that position.
Both parties referred to Stanley. For current purposes, the following is of relevance (Stanley at [193] to [196]):
“[193] However, some features of the obligation imposed by s 83(1) on an employer may be noted. First, the obligation is expressed to arise only when an employer has made a decision of the stipulated kind. This is indicated by the words “makes a decision” in subsection (1)(b) and, to a lesser extent, by the words “the effect of the decision” in the concluding line. In this respect, the obligation established by s 83(1) is similar to that imposed by the standard “Introduction of change” clause in Awards of the former Australian Conciliation and Arbitration Commission (Termination, Change and Redundancy Case (No 2) (1984) 295 CAR 673 at 688) which provided:
Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and their union or unions.
This means that s 83(1) does not impose an obligation on an employer to consult with the affected employee before the employer makes the relevant decision.
[194] Secondly, the obligation when it arises is of a stringent kind. The employer must take “all reasonable steps” to give the employee information about the effect of the decision and the opportunity to discuss the effect of the decision. This means that any reasonable step must be taken and an employer will not discharge the obligation by some activity if, in the circumstances, further action could reasonably be expected. The nature and extent of the reasonable steps required will vary according to the nature and circumstances of the case. An employer’s subjective view of what may be adequate will not be decisive: the section establishes an objective criterion.
[195] The content of an employer’s obligation under s 83 may well be informed by the attitude of the affected employee. Some employees will wish to engage in active discussion and seek detailed information, while others will not. The opportunity to be provided by an employer may be more extensive in the case of the former than in the case of the latter.
[196] Thirdly, s 83(1) contemplates a form of consultation of a discrete kind. That is the effect of the employer’s decision “on the employee’s pre-parental leave position”. However, given the obvious policy consideration underlying s 83(1), there is no reason to construe that expression narrowly. In particular, it does not seem appropriate to construe s 83(1) as requiring a form of consultation concerning the employee’s position, but not concerning the employee personally. A decision having a significant effect on “the status, pay or location” of an employee’s pre-parental leave position will usually have an intrinsic effect on the employee personally. It is natural to suppose that s 83(1) contemplates discussion about the effect of the decision on the employee personally as well as on the employee’s pre-parental position. SYC did not submit to the contrary.”
[Emphasis added.]
As is made clear in Stanley at [193], s.83 of the FWA does not impose any obligation to consult before the employer makes the relevant decision. Noting that it is a decision made while an employee is on unpaid parental leave to which s.83 of the FWA applies.
For the reasons set out above, I agree with the respondents that in the current circumstances, Ms Saad, as the employee, did not meet the relevant requirements from 4 June 2013.
The issue is therefore, when, or if, a decision of the type described in s.83 of the FWA occurred in the period 4 June 2012 to 3 June 2013 when Ms Saad was on unpaid parental leave. [I note that the parties variously referred to the date on which Ms Saad’s unpaid parental leave period ended as being 4 June 2013, but as her unpaid parental leave commenced on 4 June 2012, the 12 month period ended on 3 June 2013.]
Before the Court, Ms Saad submitted (citing Stanley at [198]) that the word “discuss” as it appears at s.83(1) of the FWA, is “capable of a wide meaning”. That is, in particular, that the discussion must be “genuine”.
I note that this is not the only element of s.83 of the FWA. Prior to the “discussion”, and in addition to having made a decision that will have a significant effect on the employee’s pre-parental leave position, the employer is then obliged to take all reasonable steps to give an affected employee information about the effect of the decision on that position.
Both parties agreed that the relevant event arising from the evidence is when AEC (Ms Saad’s employer) decided that it would no longer employ a person to do secretarial work for Mr Maxwell. Ms Saad submitted that this decision occurred in September or October 2012. The respondents submitted it occurred in October or November 2012. On both parties’ positions, this decision occurred prior to 3 June 2013.
It is to be remembered, and Ms Saad did not dispute this in her evidence, that at the relevant time (when commencing her unpaid parental leave), she was employed by AEC to do “secretarial work” for Mr Maxwell (see, for example, her affidavit at [14]). The respondents accepted that in late 2012, the decision (as described above) was “caught” by s.83 of the FWA.
The relevant evidence before the Court revealed the following.
After 1 July 2012, the conduct of Mr Maxwell’s practice changed, given that a large source of work from Brydens Lawyers was no longer being referred to him ([45] of Mr Maxwell’s affidavit). This occurred while Ms Saad was on unpaid parental leave.
Mr Maxwell had discussions with various people about the “restructuring” of “his practice” in the period of July to October 2012. On 5 December 2012 Mr Maxwell sent an email to Ms Saad. It is reproduced at annexure “MM8” to his affidavit (see also [67] of his affidavit). It is in the following terms:
“…I thought you would have heard that Laura has left for greener pastures.
She did not give me much time so I had to restructure the practice and employ someone else.”
[Emphasis added.]
This email does give general notice of the restructure. That is, notice of a decision that would have a significant effect on Ms Saad’s
pre-parental leave position. However, it was not until April 2013 that it can be said that Ms Saad was given information, in the requisite sense, of the decision. That is, some of the details of the decision, and as to how it affected her position.
In particular, Ms Saad and Mr Maxwell had a discussion on 3 April 2013 ([74] of Mr Maxwell’s affidavit and [48] – [49] of Ms Saad’s affidavit). While, as noted above, there was some dispute between the parties as to what was said in that discussion, further email correspondence ensued (see annexures “MM11” to “MM17” of Mr Maxwell’s affidavit and also see above).
In her evidence, Ms Saad also reports on the conversation of 3 April 2013 (at [49] and see [47] to [48] of Ms Saad’s affidavit). While there were some differences in the evidence as between Mr Maxwell and Ms Saad as to what was discussed, for immediate purposes, and taking into account the content of the preceding emails, I find that Ms Saad was given “information” about the “decision”.
Further, given the events (as they are set out in the evidence and as referred to above, that is, the emails and discussions between Ms Saad and Mr Maxwell) of the period from December 2012 to April 2013, I find that the employer (through Mr Maxwell) took reasonable steps to give Ms Saad information about the decision. Further, I find, as is clear from the email exchanges, that Ms Saad was given the opportunity to discuss that at that time.
While Ms Saad made submissions about what was said to be a “second” decision, the termination of Ms Saad’s employment took place on 28 October 2013 (see annexure “PS14” to Ms Saad’s affidavit). This was while Ms Saad was not on unpaid parental leave. For the reasons set out above, that decision is not caught by the obligation in s.83 of the FWA and therefore no breach arises.
I note that Ms Saad did indicate in submissions that the termination of employment alternatively occurred when Ms Saad’s unpaid parental leave was not extended. However this submission was not further developed. The parties did not satisfactorily explain what Ms Saad’s employment status was in the period of 4 June 2013 to 28 October 2013. The respondents suggested that “at best”, she was on leave without pay during this period. I agree with the respondents.
Ms Saad also asserted a breach of s.84 of the FWA (see the terms of s.84 of the FWA above at [29])29.f). In short, Ms Saad asserted that both respondents had an obligation to return her to her pre-parental leave position, or alternatively an available position for which she was qualified. She relied on Turnbull at [56], [60] and [63] to support this submission.
While there was evidence put before the Court, and submissions made by Ms Saad, in relation to “alternative positions” of employment (e.g. part time work at AEC and work for Pulse Radio), the decision by Mr Maxwell to engage another secretary and Mr Maxwell’s decision in relation to who should do his “accounts” (previously done by Ms Saad) were not decisions made by the relevant employer. That is, AEC. They were decisions made by Mr Maxwell who was not the employer in relation to the pre-parental leave position held by Ms Saad.
As set out above, s.84(a) and (b) of the FWA provide that on ending unpaid parental leave, an employee is entitled to return to the
pre-parental leave position. That, of course, is predicated on the proposition that that position still exists at the time of the ending of the unpaid parental leave. Of further relevance, is that there is no available position comparable in pay and status with the pre-parental leave position (Turnbull at [63]).
It is relevant to again note that, as with what is made clear in Turnbull, the relevant obligations in s.84 of the FWA are on the employer.
In her submissions, Ms Saad asserted that this does not necessarily have to be the “original” employer. However, this was not satisfactorily explained for current purposes.
In the current circumstances, AEC was the employer at the time Ms Saad commenced unpaid parental leave. The obligations in s.84 of the FWA therefore applied to AEC. Ms Saad did not satisfactorily explain how that obligation attached to anyone else.
Mr Maxwell’s evidence before the Court was that for a number of reasons, including the loss of business from Brydens Lawyers, he no longer required AEC to provide him with a legal secretary (the
pre-parental leave position for current purposes).
On the evidence, there is no reason not to accept Mr Maxwell’s evidence that the “changes” to the work situation to which he referred in his emails to Ms Saad in March and April 2013, were the reasons for the “restructure” of the working arrangements, which had consequences for his need for a secretary.
Here, the evidence of Mr Pollard was also of importance. Mr Pollard was, at all the relevant times, Mr Maxwell’s legal research assistant. His evidence supported Mr Maxwell’s evidence of the impact on the business of the loss of referrals from Brydens Lawyers, and generally, the relevant events in late 2012 involving the matters referred to above.
That directs attention to s.84(b) of the FWA. Given that the
pre-parental leave position no longer existed (as from at least late 2013), the question becomes whether there was an available position, with AEC, for Ms Saad to return to, for which she was qualified and suited, and was a position nearest in status and pay to the pre-parental leave position.
It is to be remembered again that “available position” refers to an available position in the context of it being “within the power of the employer to make that position available” (Turnbull at [60]). Given Ms Saad’s APOC and submissions, it must be emphasised that in the current case, this applies to AEC.
On the evidence, I agree with the respondents that the pre-parental leave position was the subject of a genuine redundancy and, on the evidence, there were no alternative positions, let alone those nearest in pay and status, to the pre-parental leave position available at the relevant time to Ms Saad. That is, on the ending of the period of the unpaid parental leave. From the time of the decision that AEC was no longer required to provide a secretarial position to Mr Maxwell, there was no such position available.
Before the Court, Ms Saad referred to Turnbull at [56] and both parties referred to Turnbull at [60] which are as follows:
“[56] In my opinion s.84 imposes an obligation on the employer to inform the employee of the existence, if there is one, of an “available position for which the employee is qualified and suited nearest in status and pay to the pre-parental position”, and to offer that position to the employee. To so interpret s.84 promotes the evident purpose of the provision. An entitlement has value only if, and to the extent that, the beneficiary of the entitlement is aware of it. And, particularly in the case of large and complex businesses such as that of Symantec, whether or not there is an “available position” is something that would be peculiarly within the knowledge of the employer, not the employee.
…
[60] In my opinion, to restrict the meaning of “available position” in the manner contended for by counsel for Symantec would be to ignore commonplace features of large-scale and even moderate-scale businesses operating in Australia: global reach and intricate corporate structures set up for tax and accounting reasons. In my opinion, whether or not a position that is available overseas, or is available in a legal entity separate from the employer, is an “available position” for the purpose of s.84 of the Act depends on whether it is within the power of the employer to make that position available. Whether it is within the power of the employer in any given case is a question of fact to be decided in the circumstances of the particular case.”
Ms Saad’s submission was that given that irrespective of whether the pre-parental leave position was a secretarial position for Mr Maxwell or for AEC, Mr Maxwell still had the capacity to provide such a position to Ms Saad when her unpaid parental leave ended.
The respondents’ submission was that there was no evidence that AEC (as the relevant employer) had the power to make a position with Mr Maxwell available to Ms Saad.
It is the case that on the evidence, while Mr Maxwell had some “power” (to use the word employed in Turnbull) over AEC, the evidence before the Court does not allow for the proposition that AEC had “power” over Mr Maxwell.
In any event, on the evidence, there was no position as at 3 June 2013 either with AEC, or Mr Maxwell, that was available, and even nearest in status, and pay, to the pre-parental leave position.
To the extent that before the Court Ms Saad relied on the argument that Mr Maxwell “retained” a position which included secretarial work, that must be rejected. References to the work done by Ms Barnes or Ms Anderson and the “positions” they occupied, cannot be said to be positions nearest in status and pay to the pre-parental leave position.
Mr Maxwell’s evidence is that Ms Anderson and Ms Barnes performed “basic” secretarial work, and work on reception (noting that they “swapped” positions in August 2013) and, unlike Ms Saad’s role, they were not involved in the keeping of “accounts” (see [59] – [63] and [93] and annexure “MM6” to Mr Maxwell’s affidavit). This evidence was confirmed by Mr Pollard (see [50] – [60], [76] and [93] of Mr Pollard’s affidavit).
In all therefore, on the evidence, there was no position at the end of the unpaid parental leave period (3 June 2013) or for that matter, at the time of the “termination” of employment (28 October 2013), which met the requirements set out at s.84(b) of the FWA.
Ms Saad was certainly entitled to return to her pre-parental leave position with AEC. However, on the evidence, that position no longer existed. Nor was there a position with AEC, or for that matter Mr Maxwell, as at June 2013, or even October 2013, which was nearest to the pre-parental leave position in status and pay. There was no obligation on AEC or Mr Maxwell to “create” a “special” position for Ms Saad. No breach of s.84 of the FWA arises.
Ms Saad also relied on s.84A of the FWA to argue that the respondents had an obligation to keep the pre-parental leave position nominally vacant. That is, to fill the position on a temporary basis, while Ms Saad was on unpaid parental leave, and to ensure that any employee temporarily performing the work of that position knew it was for a temporary period.
Ms Saad’s submissions on s.84A of the FWA were in essence, as follows. An employer must keep a position (in respect of when the usual occupant is on unpaid parental leave) vacant. Any “replacement” employee must be made aware that their occupation of the position is temporary. This did not occur in the current case.
The APOC asserts that Ms Anderson and Ms Barnes were “replacement employees” for Ms Saad while she was on unpaid parental leave.
While some of the dispute between the parties centred on whether Ms Saad had “standing” to pursue a breach of s.84A of the FWA, it is not necessary to resolve that issue in the circumstances of this case.
Ms Saad’s argument before the Court explained that s.84A of the FWA is a “crucial” part of the protection given to employees who take parental leave. That is, if at the time of ending the unpaid parental leave, the employee wants to return to pre-parental leave position, then the expectation is that the employer would have told the subsequent occupant of the position that such occupancy was temporary. Thus facilitating the employee’s return to their “original” position.
The difficulty with the argument in the current circumstances, is that on the evidence before the Court, Ms Saad was employed by AEC as a “legal secretary” at the time she commenced unpaid parental leave.
Before the Court, Ms Saad’s submissions in relation to s.84A of the FWA were that the Court should prefer the evidence of Ms Anderson and Ms Phelps, who were described as “independent witnesses”. In Ms Saad’s submission, that evidence shows there was little or no “relevant consultation” with Ms Anderson or Ms Barnes. That is, Ms Barnes was not told the position was “temporary”. I note that when pressed by the Court, Ms Saad’s submissions were that this evidence was not “crucial” in respect of s.84A of the Act. I ultimately understood Ms Saad’s position to be that Ms Anderson’s and Ms Phelps’ evidence was important in the context of adverse action.
It is to be remembered that Ms Anderson was employed in November 2012 to perform “basic aspects” of secretarial work and to do so for Mr Maxwell ([59]ii. of Mr Maxwell’s affidavit).
The difficulty for Ms Saad’s argument is that Ms Anderson was not employed by AEC to perform work as a “legal secretary” for Mr Maxwell, on the same basis, as had Ms Saad.
Ms Anderson was employed by Mr Maxwell, on the evidence, to perform work different in certain respects to that done by Ms Saad. In particular, see the affidavit of Mr Maxwell at annexure “MM6”.
The evidence before the Court indicates that Ms Anderson was initially hired to perform duties such as (item 1.2 of annexure “MM6” to Mr Maxwell’s affidavit):
“1.2.1 Typing;
1.2.2 Filing correspondence;
1.2.3 Maintaining briefs;
1.2.4 Managing the solicitors’ files;
1.2.5 Assisting the clerk of chambers;
1.2.6 Performing relief reception work (as required);
1.2.7 Loose-leaf filing;
1.2.8 Liaising with solicitors;
1.2.9 Other general clerical and administrative duties.”
Ms Anderson was then “transferred” to “reception” in August 2013 ([93] of Mr Maxwell’s affidavit). In cross examination, Ms Anderson confirmed that unlike Ms Saad’s pre-parental leave role, her role did not incorporate “accounting and finances”. Ms Saad was unable to satisfactorily explain before the Court how Ms Anderson’s position was said to be Ms Saad’s pre-parental leave position.
Even if the “temporary” positions had some common elements, the difficulty now for Ms Saad is that Ms Anderson was employed by a different employer, and she was not employed to occupy the
pre-parental leave position. That is, the position which Ms Saad had occupied at the time of commencing unpaid parental leave. That position no longer existed for the reasons set out above. The same can be said in relation to Ms Barnes’ employment.
In all, for the reasons set out above, I find that Ms Saad’s position was terminated due to a restructure of AEC. In the circumstances, AEC did not breach s.83, s.84 or s.84A of the FWA. It follows that no breach of s.44 of the FWA arises.
Adverse Action
In her APOC, Ms Saad set out a long list of events which the APOC presents, and claims, as being various instances of “adverse action” taken by the respondents. That is, as being breaches of s.340 of the FWA (see [16] – [19], [25] – [26], [30] – [31], [33] – [34], [38] – [39], [42] – [44] and [46] of the APOC).
A number of preliminary points must be emphasised. One, Ms Saad is required to establish the objective facts in relation to her claims, on the balance of probabilities.
Two, once she has done this, s.361 of the FWA operates to reverse the onus to rest on the respondents. The parties agreed that s.361(1) of the FWA provides as follows. Once a “complainant” has alleged that the employer’s action in not providing a return to work following a period of unpaid parental leave was motivated by a reason, or an intention, that contravenes the relevant provisions of the FWA, then it falls to the employer to establish, on the balance of probabilities, that the impugned conduct was not carried out unlawfully. That applies to the current circumstances.
Three, the contraventions alleged in the APOC which are said to arise from s.340 of the FWA, by virtue of s.360 of the FWA, and s.361 of the FWA, can only be contraventions, which require proof, that the respondents took the action “for a particular reason” and “with a particular intent”.
Four, there was no dispute between the parties that if the Court were to find that Ms Saad had exercised a “workplace right”, and that “adverse action” (within the meaning of the FWA) had been taken, then the presumption to be applied was that it was taken by the respondents for that reason alleged, unless the respondents are able to prove the contrary to be the case (Kennewell v MG & CG Atkins T/A Cardinia Waste & Recylers [2015] FCA 716 at [52]).
In their written submissions, the respondents have presented a detailed and comprehensive response to each of the “adverse action” matters alleged in the APOC.
It is not necessary however, in the current circumstances, to examine each, and all, of the “adverse action” claims as set out in the APOC in any detail. That is because at the final hearing Ms Saad made clear that the “essential” claims, or the “central” claims, were first, the “breach” of Ms Saad’s “right” to return to work from unpaid parental leave and second, the termination of her employment.
The other matters were described as being “incidental”. That was never satisfactorily explained before the Court. Given that these other matters were not satisfactorily explained, and in effect, not prosecuted, I find that Ms Saad has not established the objective facts in relation to the claims at [16](a) [16](b), [16](d), [18], [25], [30], [33] and
[40] – [41] of the APOC.
It is also important to note that the findings set out variously above in relation to the factual claims made by Ms Saad apply equally to the following consideration, and do not need to be repeated.
For example, the finding that Ms Saad, relevantly, was employed only by AEC and not Mr Maxwell. Similarly, the views I have expressed in relation to the evidence of the witnesses in these proceedings continue to be relevant.
The “first” adverse action claim relates to what Ms Saad said was her “right” to return to work on the ending of her period of her unpaid parental leave. What must immediately be said, again, is that the relevant employer was AEC, and not Mr Maxwell.
As the respondents correctly submitted, the APOC asserts (at [16] and [38] – [39]), that Mr Maxwell “refused” to allow Ms Saad to return to work. To the extent that Mr Maxwell was not the employer for current purposes, then this complaint cannot succeed in relation to him.
Further, the APOC does not allege, that is, make an attempt to assert, that this “adverse action” was taken because Ms Saad sought to exercise, or in fact did exercise, a workplace right. In short, the causal connection necessary so as to invoke s.340 of the FWA was not pleaded, nor was it satisfactorily explained before the Court.
Ultimately, and yet further, as set out above, the adverse action alleged, relevantly, against AEC, in this complaint, was not taken for the reasons alleged by Ms Saad. It was, as set out above, because Mr Maxwell no longer required AEC to provide him with a legal secretary. The reasons for this are set out above.
In all, the “first” claim of adverse action is to be dismissed.
The “second” claim of adverse action pressed by Ms Saad was what she described in the APOC as the termination of her employment.
Again, the APOC makes no reference to the exercise of a workplace right, such as to consequently connect it to the termination of employment. Nor did the APOC allege that the adverse action here was taken because Ms Saad sought to exercise, or did exercise, such a right.
Importantly, this connection was not satisfactorily explained before the Court, as is necessary if s.340 of the FWA was to be relied upon. Nor did Ms Saad satisfactorily explain that AEC (as the relevant employer) took the action with such reason, or intent, that s.361 of the FWA was engaged (see above).
In any event, as set out above, Ms Saad’s termination of employment occurred because the pre-parental leave position no longer existed, and AEC was not in a position to offer any suitable alternative to Ms Saad. This claim also is to be dismissed.
The Award
The provisions of s.45 and s.46 of the FWA and cl.8 of the Award are set out above (at [29] and [30]).
There was no dispute between the parties that Ms Saad’s employment was covered by the Award (for the purposes of s.46 of the FWA).
Ms Saad asserted that the respondents breached cl.8 of the Award (see above at [30]). She submitted that the obligation to consult in cl.8 of the Award, is as to matters of “significant effect” on employees. This includes termination of employment.
There was a difference in emphasis between the parties as to what the subject of the consultation should encompass, and the timing of any such consultation, under this clause of the Award.
Ms Saad asserted that consultation must be “meaningful”. To achieve that objective, consultation after a decision has been made, is not meaningful (Maswan v Escada Textilvertrieb T/A Escada [2011] FWA 4239). That is, consultation must involve a “genuine opportunity to persuade” (Livingstones Australia v ICF (Australia) Pty Ltd T/A IC Frifth & Associates [2014] FWCFB 1276; (2014) 240 IR 448 (at [35]) (“Livingstones”), Siriwardhana v FDGH Pty Ltd [2013] FWC 5609 and Alcwyn Roberts and Peter Collins v Coles Group Supply Chain Pty Ltd [2016] FWC 4898).
The respondents emphasised the words “has made a definite decision” and “likely to have significant effect on employees” as they appear in cl.8 of the Award. The submission was that the obligation under the Award does not refer to “mere proposals”, where no decision has been made by the employer.
In that light, the submission was that while termination of employment has a “significant effect” on an employee (with reference to cl.8.1(b) of the Award), this obligation does not arise until a “definite decision” has been made.
The respondents’ argument is that while the term “significant effect” may include termination of employment, the consultation obligation under the Award does not arise prior to that decision.
The respondents’ position was that in the current case, “the employer” made a definite decision to introduce major change in “organisation or structure”, which consisted of a decision to terminate a particular employee’s employment (with reference to Ingersole v Castle Hill Country Club Limited [2014] FCCA 450 at [150]).
It must be said that aspects of the respondents’ submissions here pose questions of inconsistency with submissions made in relation to the obligation to consult under s.83 of the FWA. For example, the references here to the “employer”, given subsequent reliance on the conduct of Mr Maxwell, raises the question of whether Mr Maxwell was the relevant employer (which is contrary to their position in relation to s.83 of the FWA).
The question raised in light of these submissions is who (either AEC or Mr Maxwell), made the “definite decision to introduce major change including termination”. Further, did the decision to make the “major change” include, or to use the word from the respondents’ written submissions, “consist” of a decision to terminate Ms Saad’s employment.
In any event, the respondents, in my view, did not satisfactorily focus on the important differences between s.83 of the FWA and cl.8 of the Award.
For current purposes, and as set out above, notwithstanding the use of the word “consultation” in the heading of that section, the language of s.83 of the FWA, focuses on the employer’s obligation to give information to an employee on unpaid parental leave about a decision that will have a significant effect on the employee’s pre-parental leave position. It was in that light, and the circumstances involving the actual employer, that I found for the respondents in relation to the claims concerning s.83 of the FWA.
However, in my view, the focus of cl.8 of the Award is different to that of s.83 of the FWA. I agree with Ms Saad that the focus of the language of cl.8 of the Award is on “proposed changes”.
In short, s.83 of the FWA is focused on the obligation to give information about a decision made. Clause 8 of the Award is focused on the obligation to “notify” (cl.8.1 of the Award) the employee when a “definite decision” has been made to “introduce major changes”. Further, the obligation to “discuss” with affected employees, the likely effects of the major changes. As was relevantly said in Livingstones (on which Ms Saad relied), the consultation must be a genuine opportunity to the employee to persuade and influence the ultimate decision (and see also Stanley at [197]).
In my view, the circumstances envisaged by cl.8 of the Award are, for current purposes, as follows. One, the employer considers or proposes (“thinks about”) a major change. This does not engage the obligation in cl.8.1 of the Award. Two, the employer makes a “definite decision” to introduce major changes. This does engage the obligation in cl.8.1 of the Award. Three, the discharge of that obligation requires meaningful discussion with an employee and “consideration” of the matters raised (cl.8.2 of the Award). Four, the employer then proceeds to make the final decision.
On the evidence before the Court, the period relevant to this consideration begins at June 2012. Mr Maxwell’s evidence is that he was notified at that time that Brydens Lawyers would not be sending any more work, and that he was to return to them the files he had on hand (see [40] – [44] of Mr Maxwell’s affidavit). He describes the consequences of this as having a “drama[tic]” change on the conduct of his practice ([45] of Mr Maxwell’s affidavit).
I pause here to note again that Ms Saad’s employer was AEC. However, there was no dispute between the parties that Mr Maxwell was a director of AEC and for immediate purposes, acted on its behalf.
From July to October 2012 Mr Maxwell took steps to rearrange the distribution of tasks between employees to accommodate these “dramatic” changes. These included changes to, and re-arrangement of, the tasks previously performed by the occupant of the position of “legal secretary”.
Following what he said in evidence were difficulties with his practice, including the keeping of “accounts” (one of Ms Saad’s tasks in her role), Mr Maxwell spoke to his accountant on 21 September 2012. Mr Maxwell’s evidence is that a discussion was had with words to the following effect ([51] of Mr Maxwell’s affidavit):
“[Mr Maxwell]: ‘My usual secretary, Trish, is away on maternity leave and I have a replacement secretary who is not keeping up with the accounts. Some bills have not been paid for a period of time and, in fact, I think my accounts are in a mess.
My practice has substantially diminished and I am concerned that it may not be financially viable for me to continue because Brydens have taken back a large volume of work and what is left is probably not going to sustain me.’
[Accountant]: ‘If you want to remain financially viable you need to reduce your expenses. Kim has done some accounting work for you before. She could do some more accounting work through Ada Evans Chambers to assist you or you could use the clerk to do your personal accounts as she is already doing that role for chambers. Is there any way you can simplify the secretary’s role so you do not have to pay her as much?’
[Mr Maxwell]: ‘We could probably take away the accounts and perhaps give the secretary a part-time role on the reception desk which would be subsidised by the chambers.’
[Accountant]: ‘Give that a go and come back for a chat later.’”
In essence, Mr Maxwell’s evidence of what was discussed led to the proposal that the “accounts” task should be taken away from the “legal secretary” position, and that that position should become part-time. The objective was, in part, to reduce costs, including by reducing the rate of pay to that position. That proposal was implemented in early October 2012 (see [54] and annexure “MM5” to Mr Maxwell’s affidavit).
On 5 November 2012 Mr Maxwell caused an advertisement to be made for a “replacement legal secretary”. On his evidence, this was also an opportunity to address concerns arising from his legal secretary being employed by AEC, and confining the legal secretary’s tasks to “basic aspects of being a secretary” (excluding any “accounts” related tasks) ([59] of his affidavit).
Mr Maxwell appointed Ms Anderson to this position on 12 November 2012.
Mr Maxwell’s evidence is that he had a further discussion with his accountant on 28 November 2012 as follows ([65] of his affidavit):
“On 28 November 2012, I had lunch with Andrew Mitchell and the conversation was along the following lines:
I said: ‘I listened to your advice and as it currently stands the position is that my new secretary is only a basic secretary with no requirement to do any accounting work. I have given the accounting work to the clerk and may have to renumerate her after a period of time. I am now employing the secretary personally.’
He said: ‘Well, that looks like a restructure to me.’
I said: ‘It was not my intention to do that but I suppose it is. I will keep that in place and hope that my practice survives.’
He said: ‘You will have to tell your former secretary that you have restructured.’
I said: ‘Ok, I will do that.’”
On the view I have taken of cl.8 of the Award, the “definite decision to introduce major changes” occurred on 21 September 2012 when Mr Maxwell had his “first” discussion with his accountant. Mr Maxwell’s account of his discussion with his accountant on 28 November 2012 can only be properly, and fairly, read as a report to the accountant of having followed his advice and implemented the recommended “restructure”. By 28 November 2012, that restructure was already in place.
The obligation in cl.8 of the Award to engage in “meaningful” discussion with Ms Saad was engaged on 21 September 2012. On the evidence, “step 2” of the circumstances envisaged by cl.8 of the Award occurred, and the obligations in cl.8 of the Award were enlivened (see [226] above).
I have two immediate difficulties with Mr Maxwell’s evidence in this regard. One, that in the circumstances, he did not realise that what he had implemented on 21 September 2012 was a “restructure”. Two, that as a lawyer, he relied on his accountant to advise him of his legal responsibilities towards his employee (arising from cl.8 of the Award and s.43 of the FWA).
In any event, the question immediately arises as to whether Mr Maxwell, on behalf of AEC, or for that matter anyone else on behalf of AEC, took steps to commence the meaningful discussions envisaged in cl.8.2(a) of the Award with Ms Saad. She was, plainly, an employee “affected” by the “definite decision”. The Award requires such discussions to commence “as early as practicable”. The relevant date is 21 September 2012.
It is relevant to note that Mr Maxwell took no such steps immediately after the “definite decision” was made. Such a step, on his own evidence, did not occur until 5 December 2012. Even then it was not on his own initiative, but prompted by, and in response to, an email from Ms Saad (see [66] – [67] and annexure “MM7” of his affidavit).
Mr Maxwell’s response to Ms Saad’s email was as follows (annexure “MM8” of his affidavit):
“I thought you would have heard that Laura has left for greener pastures.
She did not give me much time so I had to restructure the practice and employ someone else.
We can discuss all this after Christmas”
On Mr Maxwell’s evidence, no discussion took place during the period which could reasonably be described as, in context, “after Christmas”.
Again, it took action by Ms Saad to prompt some action by Mr Maxwell. On his own evidence, Ms Saad sent an email on 14 March 2013 to say that she would “pop in” to Chambers on 19 March 2013. On 20 March 2013 Mr Maxwell sent the following email to Ms Saad (annexure “MM10” to Mr Maxwell’s affidavit):
“Hi Trish
Sorry I missed you yesterday but I was very busy
Your boy looks alert and beautiful
It would be nice to catch up soon
Things have changed here and we should discuss that
Lets catch up soon
Hope Mick is well
…”
Again, no meaningful discussion had taken place by 20 March 2013. This was six months after the “definite decision” relevant to in cl.8 of the Award, had been made.
There is nothing in the evidence to indicate that AEC (acting through Mr Maxwell or anyone else) provided in writing (as required by cl.8.2(c) of the Award “all relevant information” about the “nature of the changes proposed”.
In the circumstances, AEC did not comply with the obligation in cl.8.2(b) or (c) of the Award. The meaningful discussions required did not take place “as early as practicable” after the definite decision was made. This is also the case even if that date was said to have been 28 November 2012 (the date of Mr Maxwell’s “second” discussion with his accountant).
At best, on the evidence, any attempt to commence “meaningful” discussion did not occur until 3 April 2013 ([74] of Mr Maxwell’s affidavit and [49] of Ms Saad’s affidavit). As noted above, Mr Maxwell and Ms Saad engaged in further email exchanges up until 3 June 2014. Ms Saad did not attend for work on 4 June 2013 (after the end of the unpaid parental leave period). References to these discussions are set out in the affidavit of Mr Maxwell at [76] – [84] and the relevant annexures referred to therein and the affidavit of Ms Saad at [51] to [61] and the relevant annexures referred to therein.
As has been previously noted, there are differences between the evidence of Mr Maxwell and Ms Saad regarding the conversation of 3 April 2013 and the context for their subsequent email communications.
However, it is not necessary to resolve the question of whose evidence is to be preferred. This is because even on Mr Maxwell’s account (and taking into consideration what is written in the various emails) there is nothing in any email from Mr Maxwell (acting on behalf of AEC), nor otherwise in Mr Maxwell’s evidence, such as to say that the employer complied with the obligations in cl.8 of the Award.
At best, Mr Maxwell’s emails appear to seek to provide alternative part-time work for Ms Saad. In my view, Mr Maxwell presented a “fait accompli” to Ms Saad. There was none of the detail required by cl.8.2(c) of the Award. Ms Saad was not given any opportunity, let alone a meaningful one, to discuss the “definite decision to introduce major changes”.
By 20 March 2013 (the first of Mr Maxwell’s emails) the work structure of AEC had already changed. Nothing said by Mr Maxwell subsequently could be reasonably understood as providing an opportunity to Ms Saad to discuss the introduction of any proposed changes. That is, the changes were no longer proposed, rather, they had already been implemented.
In all, AEC did not comply with cl.8 of the Award. In particular, AEC did not comply with cl.8.1 of the Award, or cl.8.2(a), (b) or (c) of the Award. Such failures are a breach of s.45 of the FWA.
Ms Saad also asserted that Mr Maxwell was “involved in” these breaches pursuant to s.550 of the FWA. On the evidence, he acted on behalf of AEC. He associated himself with the conduct and actions of AEC. Further, on the evidence, he was a “knowing participant” in the contraventions. I find he was “involved in” the contraventions pursuant to s.550 of the FWA.
Further, and in any event, the respondents conceded before the Court that if any contravention is found by AEC, that Mr Maxwell was the principal actor in the conduct, which formed a part of Ms Saad’s claims.
Conclusion
The APOC made a large number of assertions. Given the findings set out above, in essence, only those claims relating to AEC’s breaches of cl.8 of the Award and s.45 of the FWA, and the matter of the relevant accessorial liability of Mr Maxwell are made out.
For the remainder, the application, as expressed in the APOC, is to be dismissed. In submissions, Ms Saad stated that she would concentrate on the matters as addressed above. To the extent that the APOC asserts other contraventions, the lack of submission, indeed the lack of prosecution, was such that those matters remained unsatisfactorily explained.
Given the above, I will make the following declarations:
a)The first respondent breached s.45 of the FWA by contravening cl.8 of the Award.
b)The second respondent is taken to have breached s.45 of the FWA through a contravention of cl.8 of the Award, pursuant to s.550 of the FWA.
In this light, it is appropriate that the respondents pay to Ms Saad compensation in respect of the contravention of the Award. As was submitted by Ms Saad, determination of appropriate compensation, and any penalties, are matters to be determined separately. I will give the parties the opportunity to make submissions on compensation, and, if pressed, hear the parties on penalties.
I certify that the preceding two hundred and fifty-seven (257) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 23 April 2019
Schedule 1 – Objections to Evidence
| Affidavit | Reference | Objection | Disposition |
| Affidavit of Ms Saad sworn 29 July 2016 | [79] – [82] | Relevance | Objection upheld, evidence not allowed. |
| [85] – [86] | Relevance | Objection overruled on the basis that the respondents can made submissions on those paragraphs, evidence allowed. | |
| Affidavit of Mr Maxwell affirmed 3 August 2017 | [120] – [122] | Relevance | Objection overruled, evidence allowed. |
| [137] – [145] (except for [141](e) which was not pressed by the respondents) | Relevance | Objection overruled, evidence allowed. |
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