Salerno v University of Melbourne
[2020] FCCA 1294
•29 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SALERNO v UNIVERSITY OF MELBOURNE | [2020] FCCA 1294 |
| Catchwords: INDUSTRIAL LAW – Adverse action claim for performance concerns, employment complaints, proposed redundancy and dismissal – claim for compensation for distress and financial loss – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 342, 351, 361 |
| Cases cited: Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526 Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338 |
| Applicant: | LIANNE SALERNO |
| Respondent: | UNIVERSITY OF MELBOURNE |
| File Number: | MLG 2842 of 2017 |
| Judgment of: | Judge McNab |
| Hearing dates: | 15 February 2019 and 16 December 2019 |
| Date of Last Submission: | 17 February 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 29 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Millar |
| Solicitors for the Applicant: | McDonald Murholme |
| Counsel for the Respondent: | Mr Wheelahan |
| Solicitors for the Respondent: | Corrs Chambers Westgarth |
ORDERS
The application filed by the applicant on 22 December 2017 be dismissed.
Any application by the respondent for costs be filed by 12 June 2020 and be supported by submissions limited to 4 pages in length.
Any submissions in response be filed by 25 June 2020 and limited to 4 pages in length, and the question of costs be determined on the papers.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2842 of 2017
| LIANNE SALERNO |
Applicant
And
| UNIVERSITY OF MELBOURNE |
Respondent
REASONS FOR JUDGMENT
Introduction
This proceeding concerns whether the respondent undertook adverse action against the applicant (‘Ms Salerno’) because she had exercised workplace rights within the meaning of section 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) (‘the Act’).
The four forms of alleged adverse action are:
(a)the Performance Concerns (set out at [13] of the Statement of Claim);
(b)the Further Performance Concerns (set out at [26] of the Statement of Claim);
(c)the Proposed Redundancy (set out at [32] of the Statement of Claim); and
(d)the Dismissal (set out at [43] of the Statement of Claim).
By a Statement of Claim dated 16 March 2018, Ms Salerno alleges that she was subjected to adverse action by reason of the Employment Complaints and the Employment Inquiries in relation to her seeking a review of her classification to HEW Level 7.
The applicant claims that by reason of the adverse action taken in breach of the Act she is entitled to:
(a)compensation for distress caused for the Performance Concerns and the Further Performance Concerns;
(b)compensation for stress and anxiety for the Proposed Redundancy and the Dismissal; and
(c)compensation for a net financial loss of $80,897.
The proceeding was issued on 22 December 2017. The matter was listed for trial before Judge Wilson (as he then was) on 15 February 2019. The proceeding was adjourned part heard to 16 May 2019. Because of the appointment of Judge Wilson to the Family Court of Australia on 12 March 2019, he could no longer hear the matter.
On 24 April 2019, Orders were made for the matter to be listed before me and, with the consent of the parties, the Affidavit of Simon Napthine sworn 31 May 2018 and the transcript of the oral evidence given on 15 February 2019 was to be tendered as an exhibit and read into evidence before the Court as reconstituted subject to the right of either party to have the witness recalled. No party sought for that to happen.
Background
The Court did not have the benefit of agreed statement of facts, however the basic facts are not in contest.
From the period 15 September 2009 until 20 October 2017 the applicant was employed in the position of Animal Care Coordinator at the University of Melbourne (‘the University’). She was employed on a full-time basis, and worked approximately 45 hours per week, though that varied throughout the years.
In 2014, the applicant made an inquiry about reclassifying her position to HEW 7, making reference to several other employees. In January 2015, the applicant was informed that it would be notable to progress two classification levels at once. A meeting in February 2015 with Ms Diana Harrison confirmed this, and Ms Harrison offered to classify the applicant’s role at HEW 6.3 rather than HEW 6.1. The applicant accepted this offer.
On 10 August 2016, Ms Salerno made an inquiry by email to Mr Dermot O’Sullivan, seeking the reclassification of her role.
On 30 November 2016, the respondent convened a panel of staff from the Faculty of Veterinary Science to review the applicant’s application for reclassification, together with two other applications for reclassification.
On 29 December 2016, the applicant’s reclassification request was refused.
Also on 29 December 2016, Ms Salerno made a complaint to Ms Jill Carter about, inter alia, the length of time the reclassification process had taken, and the outcome (‘the First Employment Complaint’).
On 11 January 2017, Ms Salerno made an inquiry to Ms Antoniette Rizzo as to whether she could opt for ‘Linked Advancement’ (‘the Second Employment Inquiry’).
On 21 February 2017, the applicant attended a meeting with Ms McColl and Ms Rizzo. The applicant claims (and the respondent denies) that Ms Rizzo verbally referred to an email the applicant sent and said that it raised concerns about the applicant’s professionalism.
On 23 February 2017, Ms Salerno wrote to Ms Lynette McColl about what email had been referred to in the meeting on 21 February 2017 (‘the Third Employment Inquiry’).
On 26 February 2017, Ms Salerno made a complaint to Ms Rizzo about her discontent with the reclassification decision (‘the Second Employment Complaint’).
On 27 February 2017, Ms Salerno made an inquiry to Ms Rizzo about whether a Professional Staff Reclassification Review Committee (‘PSRRC’) could be convened (‘the Fourth Employment Inquiry’).
On 7 March 2017, Ms Salerno made an inquiry to Ms McColl about whether the applicant’s 23 February 2017 email had been received by her (‘the Fifth Employment Inquiry’).
On 8 May 2017, Ms Salerno made a complaint to the Victorian Equal Opportunity and Human Rights Commission (‘VEOHRC’) (‘the Third Employment Complaint’).
On 8 May 2017, Ms Salerno made an inquiry to Ms Rizzo regarding the continued existence of the PSRRC and seeking a review of her classification (‘the Sixth Employment Inquiry).
Each of the above (at [11] – [19]) have been admitted by the respondent to constitute the exercise of workplace rights as that expression is defined under the Act.
Between late April and mid-May 2017, the applicant requested additional study leave. This request was ultimately denied, as well as her request for financial assistance for an international study program.
During May and June 2017, the applicant had several meetings and interactions with her manager, Mr Simon Napthine, regarding her role, her cancelled study trip to Africa and management of the forklift. Ms Salerno describes some of these conversations as disappointing or as making her feel incompetent.
In August 2017 the applicant sustained a back injury whilst operating the forklift. She was subsequently absent from work until early September 2017, and her WorkCover claim was approved in September 2017.
Also in August 2017, a draft change proposal for restructuring the Operations Department was sent to the applicant and other staff identifying roles within the team (including the applicant’s role) that had been identified as no longer being required (‘the Draft Change Plan’).
On 14 September 2017, the applicant added a further complaint of victimisation to her VEOHRC complaint. Conciliation for this matter took place on 11 October 2017 and the matter was not resolved at that time.
On 25 September 2017, the applicant informed Mr Napthine that she would be taking leave until 6 October 2017 due to work-related stress.
The applicant gave evidence at [82] of her affidavit that after reading the new position descriptions in the restructure proposal, she believed that the new role for the Werribee campus was ‘virtually identical to [her] original role, as many of the responsibilities were the same’ as hers. She gave evidence that around 6 October 2017 she decided not to apply for any of the new positions.
On 3-4 October 2017, the respondent invited existing members of the Operations Department to submit expressions of interest for roles in the Final Change Plan.
On 11 October 2017, the respondent wrote to the applicant advising that her employment may terminate on 6 December 2017 at the end of an eight-week notice period which commences from the date of that leter.
On 12 October 2017, the applicant sent an email expressing interest in two roles in the Final Change Plan. On the same day, Ms Rizzo sent the applicant an email confirming interview times for those roles on 16 and 17 October 2017.
On 16-17 October 2017, interviews took place for roles in the new structure. The applicant did not attend those interviews. Ms Rizzo contacted the applicant by telephone and was advised by the applicant that she would not be applying for any role. On 16 October 2017 the applicant sent Ms Rizzo an email requesting early separation.
On 20 December 2017, the applicant’s employment with the University ceased by way of redundancy.
Issues
On each of the four forms of adverse action claimed by the applicant at [2], the issues requiring determination by the Court are:
(a)whether each constituted adverse action;
(b)if so, what was the reason for the adverse action; and
(c)if the action was for a prohibited reason, what were the consequences of the adverse action.
Relevant legislation
Section 340(1) of the Act provides that a person must not take adverse action against another person because, inter alia, the other person has exercised a workplace right.
For the purposes of section 340(1) of the Act, ‘workplace right’ is defined in section 341 of the Act.
The circumstances in which ‘adverse action’ is taken by an employer against an employee is outlined at Item 1in section 342(1) of the Act:
1. [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.
The applicant’s claims
The Performance Concerns
At [13] of the Statement of Claim, the Performance Concerns are pleaded:
13. On 21 February 2017 the Applicant attended a meeting with Lyn McColl (Ms McColl) Faculty Executive Director and Ms Rizzo during which time Ms Rizzo verbally referred to an email the Applicant had sent and said that it raised concerns about the Applicant's professionalism (Performance Concerns).
Particulars
The Performance Concerns were oral and contained in a discussion between the Applicant, Ms McColl and Ms Rizzo on 21 February 2017.
At [38] of Ms Salerno’s affidavit affirmed 10 May 2018, Ms Salerno states that the 21 February 2017 meeting took an unexpected turn when ‘Ms McColl then referred to an email I had sent and said that it raised concerns about my professionalism.’
Ms Salerno says that there was a specific email referred to as questioning her professionalism, and that this is supported by:
(a)the applicant ending up in tears during the meeting, and that ‘it is inherently more likely that an attack upon her professionalism was made to cause this than simply having a dispassionate discussion about the workplace’;
(b)the applicant promptly following up with a request for details of the email referred to which is a ‘contemporaneous response to the issues raised at the meeting’ and ‘much more likely to accurately reflect what happened than an affidavit sworn 15 months later’; and
(c)the fact that if Ms Salerno had misunderstood what had happened in the meeting, Ms McColl had the opportunity to correct her impression and did not.
The applicant relies upon Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338 in support of her contention that being told that one could improve constituted a deterioration in her position, rendering her employment less secure.
Further, the applicant says at [10] of her submissions that the abovementioned conduct also ‘discriminated between Ms Salerno and other employees’ and that ‘there is no suggestion that other employees received the same criticism from Ms McColl’.
The applicant maintains that the meeting was in response to her agitating the reclassification issue, citing [23] of Ms McColl’s affidavit that the meeting was organised after ‘Ms Rizzo raised with me that the Applicant was aggrieved at the decision not to reclassify her position at level 7.’
At [12] of her submissions, Ms Salerno states:
12. […] It lacks credibility to suggest that the matters were raised simply as a general exhortation about the need to take care in sending emails. A manager would not ordinarily sit down with an employee and say, unprompted, be careful what you write in emails. Rather than being the unremarkable discussion that the Respondent suggests it was, the matters discussed on 21 February 2017 appear to result from the making of complaints by Ms Salerno. At very least, in the context of section 361 of the Act, the Respondent has not proven otherwise. No other communications from Ms Salerno have been relied upon by the Respondent as justifying the admonition delivered to her at that meeting – her communications over the reclassification decision provide the only credible explanation.
Ms Salerno says that the action caused distress and provides context for the later events, in particular the termination of employment.
The Further Performance Concerns
At [26] of the Statement of Claim, the Further Performance Concerns are pleaded:
26. On 1 June 2017 the Applicant met with Mr [Simon] Napthine during which time Mr Napthine made comments:
(a) to the effect that the Applicant should consider whether she was content to perform a role that she enjoys while knowing that she would not receive any extra money for it;
(b) questioning the Applicant's level of professionalism;
(c) that the Applicant's emails 'could do with some work'; and
(d) regarding decisions the Applicant had made and that they were "questionable",
(Further Performance Concerns).
Particulars
The Further Performance Concerns were verbal and contained in a discussion between the Applicant and Mr Napthine on 1 June 2017.
In addition, Ms Salerno relies on Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333 at [298] to [300] to support her proposition that the questioning of her professionalism and the quality of her emails in the 1 June 2017 meeting left her employment less secure, and constituted adverse action.
Ms Salerno accepts that it is difficult to ascertain what Mr Napthine’s reasons were for expressing the Further Performance Concerns. She notes that his oral evidence suggested his reason was ‘a perception of a culture of people trying to prosecute arguments via email’ and that ‘it is not possible on the evidence to conclude that the Respondent has ‘proven otherwise’ for the purposes of section 361 of the Act’.
The applicant says that a consequence of the meeting on 1 June 2017 was that Mr Napthine thereafter made recommendations as to which positions should be removed (in particular the applicant’s position) as part of a review process.
The Proposed Redundancy
At [32] of the Statement of Claim, the Proposed Redundancy is pleaded:
32. On 29 August 2017 the Applicant was advised that her role had been identified as no longer being required by the Respondent (Proposed Redundancy).
Particulars
The Proposed Redundancy was both written and oral.
Insofar as it was oral it was contained in a verbal discussion on 29 August 2017 between Mr Napthine, the Applicant and members of the Operations Team across the Werribee, Dookie and Parkville campuses, during which time the Applicant was present via teleconference.
Insofar as it was written it was contained in a document dated October 2017, emailed to the Applicant by Mr Napthine on 29 August 2017, and titled "FINAL Change Plan for the new structure of the Operations Department", a copy of which is in the possession of the Applicant's solicitors and available for inspection by prior appointment.
The applicant submits that the identification of her position as being potentially redundant left her employment less secure. She says that she was injured in her employment or had her position altered to her prejudice, making out ‘adverse action’ pursuant to section 342 of the Act.
The allegation is against Mr Napthine and Ms McColl who ultimately approved the restructure of the Operations Department.
Ms Salerno also claims that the fact that the redundancy was only a proposal still makes out ‘adverse action’ because, the respondent can be considered to have been ‘threatening to take action’ to make her role redundant.
Ms Salerno alleges that her role was not actually redundant, and the ‘Reasons for change’ produced by Mr Napthine were not applicable to her role. Indeed, Ms Salerno says that ‘one of the newly created position was, in truth, Ms Salerno’s position’, and that there is no discernible difference between the Animal Care Coordinator position held by her, and the Animal Care Senior Technical Officer position newly created.
The applicant also alleges that the respondent provides ‘the provenance of the decision but not the reasons for it’, and claims at [23] of her submissions that:
23. […] The lack of any clear reasoning to support the inclusion leads to the same conclusion as was reached by Gray J in NTEU v RMIT, being that the Respondent has ‘made use of its redundancy processes to rid itself of an employee, who was considered to be troublesome’. The reason for the Proposed Redundancy was the exercise of workplace rights as the Respondent failed to ‘prove otherwise’.
The applicant says that the inclusion of her position in the draft report resulted in the loss of income following the termination of employment.
The Dismissal
At [43] of the Statement of Claim, the applicant pleads that the dismissal of the her employment was written and contained in both a letter dated 11 October 2017 signed by Ms McColl, and a written request dated 16 October 2017 from the Applicant to HR regarding early separation on 20 October 2017.
Given the importance of the letter of 11 October 2017, the relevant parts are provided:
I write to notify you that the Faculty has determined that the position of Animal Care Coordinator (0032386), which you currently hold in the Faculty of Veterinary and Agricultural Sciences is redundant pursuant to clause 75.3(b) of the University of Melbourne Enterprise Agreement 2013 (‘2013 EA’) due to changes in the structure of the Operations department.
This means that your employment may terminate on 6 December 2017 at the end of an eight (8) week notice period which commences from the date of this letter 11 October 2017.
The redundancy procedure and entitlements for professional staff are set out at clause 75 of the 2013 EA which is available at: EA Clause 75.
You have fourteen (14) days from the date of this letter (‘Transition Period’) to nominate whether to seek Redeployment or apply to work out the Notice Period or apply for Early Separation (by completing and returning the nomination section of this letter). If the University has not received your nomination by the end of the Transition Period, you will be deemed to have nominated to seek redeployment.
Redeployment
If you nominate to seek redeployment (or you are deemed to have so nominated) all options for deployment to suitable alternative employment within the University will be considered during the Notice Period.
Suitable alternative employment is employment at the equivalent classification and same time fraction which provides the staff member with comparable salary and conditions and is a position for which the staff member has the necessary skills and experience and/or can be trained to undertake within a reasonable time frame.
If redeployment has not been achieved at the expiry of the Notice Period, your employment will terminate. On termination you will receive a Redundancy Payment calculated in accordance with the 2013 EA unless:
* You have been offered ongoing employment in the University in suitable alternative employment whether or not you have accepted such an offer; or
* You have accepted another position within the University at a lower classification level.
Working out the Notice Period / Early Separation
If you do not wish to seek redeployment, you may apply to work out the Notice Period (i.e. for your employment to terminate at the expiry of the Notice Period on the termination date specified above) or apply for Early Separation (i.e. for your employment to terminate prior to the expiry of the Notice Period).
The University may agree to an application to work out the Notice Period provided there is meaningful work available. If the University agrees to an application for Early Separation, your employment will end on a date specified by the University or such other date as agreed with you. If the termination date is earlier than the end of the Notice Period, you will be paid in lieu of the balance of the Notice Period in addition to a Redundancy Payment.
Notwithstanding the above, the University reserves its right to require staff members to work out part or all of the Notice Period, where operational needs require it.
Where a staff member is entitled to receive the maximum 52 weeks in redundancy pay and they are required by the University to work all or part of the 8 week Notice Period, they will be entitled to receive up to an extra 4 weeks in redundancy pay, in accordance with subclause 75.7 of the 2013 EA.
The applicant claims that the Dismissal was adverse action within the meaning of section 342(1) of the Act. She claims that she left employment in accordance with the options given to her in the 11 October 2017 letter, which was ‘not simply advising that her position was redundant – it also provided notice of termination of her employment [on 6 December 2017].’
The applicant submits that this is because she did not request that her employment end. Further, she says that her election to not seek redeployment and to receive a payment in lieu of the balance of the notice period did not convert her departure into a resignation or other voluntary departure.
The applicant alleges that:
(a)there is no coherent explanation for why her position was made redundant and her employment brought to an end; and
(b)it is not for her to prove that adverse action was taken because of the exercise of workplace rights, but rather the respondent must prove otherwise:
31. […] It is the absence of any understandable reason for making Ms Salerno’s position redundant and giving her notice of termination of employment that means the Respondent has failed to discharge the statutory presumption under section 361 of the Act.
The respondent’s defence
The Performance Concerns
The respondent contends that the discussion in the meeting of 21 February 2017 does not constitute adverse action, and that the Court can be satisfied from the direct testimony of Ms McColl and Ms Rizzo that there was no adverse action regarding the Performance Concerns.
The respondent also says that in the applicant’s evidence she said that the Performance Concerns were not a disciplinary matter but rather a discussion on how Ms McColl might ‘help the Applicant to explore her career options’.
In the alternative, if the Court finds that there was adverse action as claimed, the respondent says that the reason for Ms McColl’s statement outlined at [24] of her affidavit, ‘to help the applicant to explore her career options’.
Also, the respondent asserts that the cross examination at Transcript page 68 of Ms McColl’s affidavit evidence proves that the action was not taken for a prohibited reason:
What I’m putting to you – what I wish to put to you now – is that the reason you did that was because your experiences with Ms Salerno through the reclassification process, that she was obviously unhappy about, indicated that she needed to take care with her written communications? That’s not true. ...
(emphasis added)
The respondent says that the consequences of meeting was that the applicant was emotional and tearful, and that those tears were for the reasons stated by Ms Rizzo (below) and not in respect of the alleged Performance Concerns:
T42. And this was after there had been discussions or issues raised concerning Ms Salerno’s use of emails and what she had said in emails? What Ms Salerno said when we asked what the upset was – well, Ms McColl asked – was that she – she wanted to have the conversation about her HEW grade and not about other opportunities across the faculty.
(emphasis added)
The Further Performance Concerns
The respondent submits that there was no adverse action with regards to Mr Napthine and the meeting with the applicant on 1 June 2017.
The respondent contends that Mr Napthine’s evidence (including affidavit and cross-examination) provides a detailed account of the meeting by him.
It is submitted that the reason for the meeting with Ms Salerno on 1 June 2017 was not for a prohibited reason. Rather, as stated at [28] of his affidavit, Mr Napthine’s discussion with the applicant was because he was conducting a one-on-one ‘Position Description Audit’ with her, just as he was doing with other Operations Department members.
The respondent says that Mr Napthine’s comments do not reasonably give rise to an injury of a compensable kind, and that there is no connection between the conversation about the applicant’s professionalism or use of email and the subsequent selection of the positions.
The Proposed Redundancy
The respondent submits that considering Mr Napthine’s affidavit evidence at [28]-[39] and [56]-[60], together with his cross-examination at Transcript 10, there was no adverse action as a result of the proposed redundancy.
At [37] – [38] of its submissions, the respondent claims that:
37. […] Under the terms of the proposed redundancy there was to be a process, pursuant to the relevant enterprise agreement and in consultation with the Union, that provided for a restructuring of the Faculty of Veterinary and Agriculture Science’s Operations Department, however, all employees could apply for new positions and/or redeployment.
38. It was accepted by the applicant that it was open to her to apply for any of the nine roles in the new structure: T14.
(citations omitted)
What was the reason for the alleged adverse action?
The respondent says that the reason and purpose for the Proposed Redundancy was not for a prohibited reason, and is set out in:
(a)exhibit SN-15 to Mr Napthine’s affidavit, in particular clause 1 and 3;
(b)Mr Napthine’s affidavit, in particular his denial at [60];
(c)Ms McColl’s affidavit at [8] - [17], in particular the denial at [17];
(d)cross examination of Mr Napthine commencing Transcript 10; and
(e)cross examination of Ms McColl commencing Transcript 74.
The respondent contends that there were no practical consequences of the restructure, and relies on clause 6 of exhibit SN-15 of Mr Napthine’s affidavit for the proposition that all employees could apply for new positions and/or redeployment.
The Dismissal
The respondent contends that the applicant requested her employment end rather than seek redeployment and/or apply for a role in the new restructured Operations Department, and that there was no adverse action by the respondent. It is said that any submission by the applicant that the review process and the production of the Draft Change Plan was a sham is not supported by the evidence.
The respondent says that it then processed the applicant’s request to be terminated early from her employment and receive a redundancy package in accordance with clauses 75.7 and 75.8 of the University of Melbourne Enterprise Agreement 2013.
Citing exhibit TR-20 of Ms Rizzo’s affidavit affirmed 31 May 2018, the respondent says that the reason for the dismissal was that the applicant requested that her employment end.
As to any alleged prohibited reason, the respondent refers to:
(a)Ms McColl’s affidavit at [17];
(b)exhibit SN-15 to Mr Napthine’s affidavit, in particular clause 1 and 3 of that document;
(c)Mr Napthine’s affidavit, in particular his denial at [60];
(d)cross examination of Mr Napthine commencing Transcript 10; and
(e)cross examination of Ms McColl commencing Transcript 74.
Consideration
At [38] of her trial affidavit the applicant stated:
38. On 21 February 2017, I attended a meeting with Ms McColl and Ms Rizzo. Ms McColl stated that the purpose of the meeting was to gain a better understanding about my career objectives and to determine if there were any projects I could be involved in. Ms McColl then referred to an email I had sent and said that it raised concerns about my professionalism. Ms McColl did not specify the subject or the date of this email. Ms McColl said I should look into development in that area, but did not elaborate or provide any detail as how this email had raised concerns about my professionalism or what content she took issue with.
Ms McColl gave evidence in her affidavit affirmed 31 May 2018 that the discussion was:
(a)‘definitely not about the Applicant’s performance in her role’; at [24]; and
(b)focused on how she (Ms McColl) might assist the applicant explore her career options.
Ms McColl gave advice about the importance of networking and profile, and noted that particular care should always be taken with respect to written communication. She said the applicant needed to be careful when communicating via email ‘as you never know where an email might end up.’ In cross examination, the applicant agreed that Ms McColl said that to her at the meeting.
Ms McColl’s evidence under cross examination regarding the meeting of 21 February 2017 was consistent with her evidence in her affidavit. Ms McColl gave evidence under cross examination regarding the applicant’s dissatisfaction with the review process. She stated at Transcript page 65:
The meeting was about giving Lianne a bit further context about why the university and the faculty’s needs hadn’t changed in relation to the role that she submitted for reclassification. I can understand that she was dissatisfied with the outcome, but at the end of the day, the university and the faculty’s needs remained as they were previously. I thought it was fair, given that Lianne was unhappy with the outcome of that discussion, to meet with her to give her some feedback around what our needs were. I also offered to speak on Lianne’s behalf widely throughout the university, because if she had – it was clear to me, through the conversations that had been fed back to me, that Lianne had felt she had outgrown that role. I was happy to support Lianne in a conversation in her broader career, to understand what other things she might be interested in in the university, and to therefore, as senior professional person in a faculty, look out for other opportunities should they become available.
Ms McColl also gave evidence at page 65 of the Transcript in response to a question put to her that she had emphasised that Ms Salerno needed to be careful with her written conversations, and emails in particular, that:
As with all of us because, you know, our profile will be the thing that we’re often assessed against in relation to other roles that we pursue across the university. I was just offering her feedback as to when you’re conducting yourself in meetings or in verbal communications. You just don’t know, you know, whether that person’s going to cross your path down the track and be potentially a person that could be a hiring manager.
There was no evidence given by Ms McColl that there was any particular email that she was referring to when she gave that advice to the applicant and I accept that Ms McColl was honest in her evidence regarding that matter.
In an email from the applicant to Ms McColl dated 23 February 2017, the applicant followed up the discussion on 21 February 2017 and asked Ms McColl to identify what email was mentioned so that the applicant could ‘review it and better understand [her] area for development’.
Ms McColl did not respond to the applicant but provided an explanation for that by stating that she did not feel it was appropriate for a senior executive such as herself to become involved in that level of discussion, and left it to the human resources team to manage. That response is entirely understandable and credible.
I accept Ms McColl’s evidence under cross examination that there was no specific email from the applicant that she was referring to, and I accept that she was giving the applicant general advice about the importance of tone in written communications. That the applicant became upset at the meeting is not a proper basis for finding that the evidence of Ms Rizzo and Ms McColl is incorrect or untrue. Ms Rizzo gave evidence that Ms McColl asked the applicant at the meeting why she was upset and the response which is set out at [25] of Ms Rizzo’s trial affidavit. That evidence was to the effect that the applicant was upset because her concern was that she had felt that she was being under-valued by the faculty and expected to discuss how her classification could be increased.
The discussions at the meeting of 21 February 2017 do not constitute adverse action as I accept that the reason for the meeting was to assist the applicant not to discipline her.
Meeting of 1 June 2017 (Further Performance Concerns)
The applicant’s evidence regarding this meeting is set out at [45]-[49] above.
Mr Napthine gave detailed evidence regarding this meeting at [28]–[39] of his affidavit sworn 31 May 2018. The discussion with the applicant was part of a series of discussions that Mr Napthine had with each of his direct reports and most other members of the Operations Department. The purpose of the meetings was to:
(a)ascertain whether the position descriptions provided to the team members properly described the actual work done in the respective roles; and
(b)‘discuss how they saw their roles, what they enjoyed about it, what bugged them, and start to gain an insight into their career ambitions and motivations.’
Mr Napthine gave evidence at [32] of his affidavit where he referred to the matters raised in subparagraphs 26(b) and (c) of the applicant’s Amended Statement of Claim and [62] of the applicant’s affidavit, denying that he raised any concerns about the applicant’s professionalism or professional conduct in that meeting.
Mr Napthine gave a detailed account of the meeting in his evidence. In cross examination when he was directed to the applicant’s evidence of the meeting that he had ‘questioned my level of professionalism and said that my emails could do with some work’, Mr Napthine replied “yes” but then gave context to that answer by stating (at Transcript page 17):
Now, what led you to make that observation that her emails could do with some work?---I actually said it about her emails and some other emails I had seen down at Werribee and what I was seeing was a culture of people trying to prosecute arguments via email where I was trying to say to her, and I said to others on the same day, that sometimes conversations – and there are other ways that can be done to do it.
So the way in which she was going about making complaints in relation to her employment was something that you found to fall short of your expectations?---No, these weren’t about her employment per se. And, again, it was – I drew the tension that I had seen other people doing it. It was trying to resolve workplace matters like who will be organising this or who should be responsible for that, not complaints about her actual work or work rights.
So that’s inquiries which related to her job?---I – I wouldn’t characterise them as inquiries.
But whatever their characterisation, you were troubled by the – the way in which she was pursuing issues that were of concern to her?---No, I wasn’t troubled. I was trying to offer it as a bit of a coaching suggestion. And I was – you know, that’s why I used the words “do with the work”. It wasn’t a formal admonishment, it wasn’t questioning her professionalism. It was trying to start saying that, as we start looking at doing things, we can do things a little bit better. I see my role as a manager to be part of a coach.
On the basis of that evidence I do not accept that the applicant was subjected to any adverse action as result of the discussions with Mr Napthine on 1 June 2017. The comments were reasonably general in nature and in the context of Mr Napthine seeking to assist the applicant. If I am wrong about this finding and I was to find that the comments constituted adverse action, no compensable loss flows from them. I find that the comments and the subject of the discussions had no impact on the restructure process and the termination of the applicant’s employment.
The Proposed Redundancy
The applicant submits that the creation of a review document that identified her position (being Animal Care Coordinator) as potentially redundant left her employment less secure, and therefore she was injured in her employment and accordingly she had been subjected to adverse action.
It is submitted that the proposed redundancy as a result of the restructure canvassed in the Draft Change Plan (Annexure 13 to the Mr Napthine’s affidavit) was a process set in place by the respondent to get rid of an employee.
The respondent, by Mr Napthine, gave evidence of the background and business reasons for creating the Draft Change Plan. The fundamental and obvious point that must be made is that the Draft Change Plan and the review process involved far more roles than just the applicant’s. The plan affected about 9 positions across a number of locations. About 5 people moved into the changed positions and 3 or 4 (including the applicant) had their employment terminated by reason of redundancy: evidence of Mr Napthine under cross examination at Transcript pages 25-26.
The Draft Change Plan was introduced as a result of restructures within the University. Mr Napthine gave comprehensive evidence of the rationale and processes that lead to the creation of the plan in his affidavit including the commencement of a program commenced in 2013 called the Business Improvement Program which saw major changes to the University operating model. None of the background matters set out in [13]-[16] of Mr Napthine’s affidavit were the subject of challenge.
I find that there is no basis to the claim that the proposed change plan was constructed to bring about the end of applicant’s employment because of any workplace enquiry or workplace complaint.
I accept the evidence of Mr Napthine at [56]-[60] of his trial affidavit regarding the effect of the Draft Change Plan, and that whilst a number of the positions that were referred to the in the plan were similar to the applicant’s position, the newly created roles had different reporting lines and different responsibilities that arose due to the wider changes proposed by the plan.
A Final Change Plan was presented on 3 and 4 October 2017 after consultation with staff and the relevant union. An expression of interest period during which employees could apply for newly created positions opened on 5 October 2017. The applicant chose not to apply for any position. That was entirely her decision and it was never put to any witness of the respondent that any application that she made would be pointless.
Mr Napthine gave evidence at [74] of his trial affidavit that the applicant had been given the opportunity to submit her expression of interest for a role in the new structure after the deadline had closed, and to interview without a written application, when no other candidate was given that opportunity. She chose not to apply for any position.
The applicant accepted in cross examination that she could apply for any of the roles in the new structure: Transcript page 14. In fact, whilst the applicant initially indicated to Ms Rizzo that she would apply for positions she then advised that she would not apply for any position and asked for an early separation payment, thereby requesting the employment come to an end. These were all matters known to the applicant when she commenced this proceeding.
There was no basis for making the allegation that the change process was a sham. That claim was put to Ms McColl in cross examination in the following terms:
[…] when the decision was taken to prospectively make my clients position redundant and then, when the decision was taken to restructure, and then, when my client’s employment was terminated, these were all motivated by her agitation within the workplace and in particular, their [her] agitation over the reclassification issue. What you say to that?
Ms McColl replied:
… I don’t agree […]
If the allegation that the whole restructure process was a sham was to have any basis it would have to be established that all the people affected by the changes were subject to the same sham process.
I also find that Ms McColl and Mr Napthine did not target the applicant as part of the review process or the creation and implementation of the Draft Change Plan. Ms McColl was in a senior management position in the University. When the review was being discussed and when the Draft Change Plan was given to her, she did not associate particular people to the roles identified (Transcript pages 74-77) and she was not motivated by any complaint or enquiry made by the applicant in signing off on the plan.
The applicant’s employment did not terminate upon a letter being sent under Ms McColl’s signature dated 11 October 2017. That letter contained the following advice:
[…]
This means that your employment may terminate on 6 December 2017 at the end of an eight (8) week notice period which commences from the date of this letter 11 October 2017.
[…]
You have fourteen (14) days from the date of this letter (‘Transition Period’) to nominate whether to seek Redeployment or apply to work out the Notice Period or apply for Early Separation (by completing and returning the nomination section of this letter). If the University has not received your nomination by the end of the Transition Period, you will be deemed to have nominated to seek redeployment.
On the basis of that communication, the applicant’s employment terminated on 6 December 2017 in the event that the applicant chose not to seek redeployment. If she sought redeployment and was unsuccessful in obtaining redeployment, it would cease on 6 December 2017 at the end of the notice period. The applicant asked for the notice period to be brought forward without seeking redeployment.
As noted in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647; [2012] HCA 32 at [44] per French CJ and Crennan J, the central question for the Court was ‘why was the adverse action taken?’
In considering whether the respondent has displaced the presumption in section 361 of the Act, I have regard to Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184, where Tracey and Buchanan JJ state at [32]:
As the trial judge recognised the leading authority on the operation of ss 360 and 361 of the Fair Work Act in the context of Pt 3-1 of that Act (which includes s 351) is Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; 220 IR 445. The principles which informed this decision were recently reaffirmed by a majority of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41. Relevantly, these authorities establish that:
·The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
·That question is to be answered having regard to all the facts established in the proceeding.
·The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
·It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
·Even if the decision-maker gives evidence that he or she acted solely for nonproscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
·If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.
I accept the evidence of the witnesses for the Respondent and find that they have discharged the burden established by s 361 of the Act. Each of the actions that they are alleged to have taken which are said to constitute adverse action were not taken for a proscribed reason.
The evidence does not support a finding that the respondent took adverse action against her as a result of the Draft Change Plan or the termination of employment, and neither of those processes arose because of any action taken by the applicant which she characterises as workplace complaints or enquiries.
Conclusion
For these reasons each of the applicant's claims fail, and I make Orders dismissing her application. I reserve the question of costs and will make Orders for the filing of any submissions in relation to costs with the matter of costs to be determined on the papers in chambers.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 29 May 2020
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Remedies
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Procedural Fairness
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Natural Justice
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Judicial Review
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