Sangare v Department of Infrastructure

[2016] FCCA 2046

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANGARE v DEPARTMENT OF INFRASTRUCTURE [2016] FCCA 2046

Catchwords:
INDUSTRIAL LAW – Termination of employment – alleged adverse action on basis of race or national extraction – finding that termination of employment because of complaints about applicant’s conduct, a misapprehension as to his eligibility for a section 457 visa and negative information revealed in RRT decision.

Legislation:

Fair Work Act 2009 (Cth), ss.351, 361

Public Sector Employment and Management Act (NT)
Migration Act 1958 (Cth)

Cases cited:

Board of Bendigo Regional Institute of TAFE v Barclay (2012) 248 CLR 500

Applicant: SOULEYMANE SANGARE

Respondent: DEPARTMENT OF INFRASTRUCTURE

File Number: DNG 6 of 2015

Judgment of: Judge Young

Hearing date: 15 & 16 December 2015 & 26 July 2016

Date of Last Submission: 26 July 2016

Delivered at: Darwin

Delivered on: 27 July 2016

REPRESENTATION

The Applicant appearing in person

Counsel for the Respondent: Mr Anderson

Solicitors for the Respondent: Hunt & Hunt Lawyers

ORDERS

1. The application filed 12 March 2015 be dismissed.

2. The question of costs is reserved.

3. If the Respondent wishes to seek costs an application in writing must be made within 14 days and the Applicant is to reply to that application in writing within 7 days thereafter.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 6 of 2015

SOULEYMANE SANGARE

Applicant

And

DEPARTMENT OF INFRASTRUCTURE

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

1. This is an application pursuant to section 351 of the Fair Work Act 2009 where the applicant alleges that the respondent terminated his employment on a prohibited ground, or grounds, namely, race or national extraction. I should say there was some controversy over the identification of these grounds because the applicant’s claim, which was apparently drafted by a lawyer, did not identify a ground in section 351, but rather referred to the applicant’s employment being terminated, on “the basis of his migration and/or visa status.”

2. It was fairly evident that the applicant in his materials was also claiming that his country of origin or national extraction and his race were involved.  It was agreed at the outset that the complaint should be treated as one related to race or national extraction and I have proceeded on that basis. 

3. Turning to the background to the application.  The applicant came to Australia in 2012.  He applied for a protection visa and the various reviews and appeals relating to that application continued until 11 September 2014 when the applicant’s special leave application to the High Court was dismissed.

4. The applicant lawfully worked during this period pursuant to a bridging visa.  He is a civil engineer.  He began working in the Katherine office of the respondent in June 2014 through a labour hire arrangement.  His performance was such that the respondent decided to offer him direct employment.  The department was aware that there were visa and immigration issues and retained a migration agent, a Ms Ende.  Ms Ende advised the department on 24 September 2014 that the applicant had a “complicated migration history” and it could not be guaranteed that his application for a 457 visa would be approved.

5. On 25 September 2014 a decision was made to offer the applicant employment.  On 29 September 2014 a letter enclosing a draft contract was sent to him, which was an ongoing contract, that is an indefinite term contract.  The applicant signed that contract and returned it.  On receipt of that contract the staff at the respondent’s HR department realised that an error had been made and that the applicant ought to have been offered a fixed term contract, that is a contract for a limited period.  This arose because the Public Sector Employment and Management Act (NT), under which the Northern Territory Public Service operates, provided through Employment Instruction Number 1 that a person was not eligible for ongoing employment with the Northern Territory Public Service unless that person was an Australian citizen, a permanent resident, held a regional sponsored migration scheme visa or was a New Zealand citizen permitted to work.

6. The applicant suggested that he held a regional sponsored migration scheme visa but he was unable to produce any such visa and I am satisfied that he held a different category of visa throughout, that is, a bridging visa which permitted him to work.  A new draft fixed term contract was then sent to the applicant.  This provided for a fixed term of employment. This was sent to the applicant, and provided for a fixed term of employment from 6 October 2014 to 5 October 2016.

7. The applicant signed the second draft contract and returned it to the respondent’s HR department.  I am satisfied that this was the relevant contract and the contract that the respondent had intended the applicant to enter into.  The applicant claimed at various times during the hearing that there was only one contract, the ongoing contract, that is, the first contract signed by him, but I reject that claim to the extent that that claim is relevant. I do not accept that it is relevant but it appears to have been put forward by the applicant on the basis that it reflected on the credibility of the respondent’s case.

8. However, each of the respondent’s witnesses who were involved in the preparation of the contract, or the decision to offer the applicant a contract of employment, claimed that the course of events was as set out above.  The applicant himself issued a subpoena to a Ms Bresson, who was employed in the respondent’s HR department, and as far as I can see was directly responsible for the preparation of the contract.  When there was a later inquiry about the error, following a complaint by the applicant, Ms Bresson was the one who provided advice to her superiors about the chain of events.

9. As I say, the applicant issued a subpoena to Ms Bresson, and she appeared yesterday at the beginning of the second session of evidence.  Her evidence was unequivocal that the course of events was as described above and the applicant did not put to her anything to the contrary. I accept her evidence about that.  As I have mentioned, there is a question mark about the relevance of the issue but it was put by the applicant that this chain of events of which the witnesses gave evidence was a fabrication. I find that that claim, that is, that the evidence is fabricated, is untrue.

10. Soon after the applicant began his employment the respondent set in train a process to sponsor him for a 457 visa, that is, a visa that would permit him to work for the respondent and that process continued on in the background to the events that I am about to describe.  On 18 November 2014 there was a meeting in the Katherine office of the respondent attended by Mr McHugh, who was the chief executive of the Department of Infrastructure, Mr Pemble, who was the executive director Civil Services, Mr Flanagan, who was the manager of the Katherine office and the applicant’s direct supervisor, and the applicant.

11. The meeting was incidental to some degree in the sense that it was not specifically called to deal with issues relating to the applicant.  It was a meeting in the ordinary course of events but one of the issues discussed was a complaint by a contractor about the applicant’s refusal to approve some variations to a contract price.  The complaint was made directly to the chief executive, Mr McHugh, and then appears to have been passed down the line to Mr Pemble.  Mr Pemble decided that the appropriate person to resolve the complaint was Mr Flanagan, who is the applicant’s supervisor, and, in fact, Mr Flanagan later gave evidence that that is precisely what he did.

12. In that meeting it was decided that the applicant should be returned to the Darwin office for a brief period for further training about the department’s processes.  This was not a disciplinary meeting in any sense and the decision to send the applicant back to Darwin was not a disciplinary step but rather to better educate or train the applicant in the department’s processes.  The meeting is of significance because the applicant alleges that during this meeting he left the room for a moment and while he was out of the room he heard Mr McHugh say, “I didn’t know he was a black African.”

13. The applicant suggests that this remark implies some racial motivation to the events that followed.  Each of the persons present at that meeting gave evidence about what had taken place in the meeting and what had been said.  The three witnesses other than Mr Sangare – Mr McHugh, Mr Pemble and Mr Flanagan – each denied that Mr McHugh had used those words.  Mr Pemble and Mr Flanagan denied hearing those words or anything like them.  I accept the evidence of each of Messrs McHugh, Pemble and Flanagan, and I reject the evidence of the applicant in relation to this point.

14. Even if it was the case that Mr McHugh had used those words it seems to me that, while they may have been offensive if said, it does not lead to a necessary inference that the events that followed were racially motivated.  So just to be clear, I find that the words were not said, but even if they were said they are not evidence of a racial motivation for what followed. 

15. On 21 November the respondent, through a Ms Cargill who was the director of the HR department of the respondent, became aware that the applicant’s 457 visa application had been refused. In substance this was because his protection visa application had been refused.  Without going into the details of why this was, it appears that the Migration Act 1958 provided that an unsuccessful applicant for a protection visa who had no other relevant visa could not apply for a 457 visa from within Australia. There seemed to be some indication that it might be possible to apply but it would require the applicant to leave Australia and make the application from outside Australia. In any event, the applicant seems to have accepted that this was an obstacle and he raised this problem directly with the Minister responsible for the department, Mr Styles, and sought Mr Styles’ intervention with the Federal Minister for Immigration.

16. A request then came from the Minister’s office – I infer although there was no direct evidence of this – to the department for a ministerial briefing on the issue.  On the morning of 24 November 2014 Ms Cargill, as the director of HR, and a Ms McDonald, who was then the acting regional director of the Katherine office of the respondent and at that time replacing Mr Flanagan who was on leave, met with the applicant to discuss his request for ministerial intervention. The applicant told them that his protection visa application had been refused and so he was ineligible for a 457 visa.

17. There is some issue about this meeting and its consequences because Ms Cargill and Ms McDonald in their affidavits are critical of the applicant and claim he was aware at the time he sought employment that he was ineligible for a 457 visa and in effect misled the department and such is the respondent’s case here.  I do not accept that.  It is clear that Ms Ende had advised Ms Cargill that the 457 visa application may not be approved and that advice was given to Ms Cargill on 24 September 2014 before the respondent was employed or an offer of employment was made.

18. Further, there was no evidence that the applicant was aware of his ineligibility for a 457 visa.  There is nothing to suggest that he had a greater knowledge of the requirements of the Migration Act than the migration agent, Ms Ende, retained by the department. She had advised, as I have already mentioned, that the applicant had a “complicated migration history” and his application for a 457 visa may not be approved.  Ms Cargill admitted in answer to a question from me during her evidence that she understood at all relevant times that the application for a 457 visa may not be successful and she agreed that the suggestion to the contrary in the ministerial that she drafted may have been misleading.

19. The statement that I am referring to is the statement included in the ministerial briefing drafted by Ms Cargill which said,  “the department was not made aware that Mr Sangare was ineligible to apply for a 457 visa at the time of nomination.”

20. As I say, I find that that statement was misleading, although I am unable to conclude that it was deliberately so.  It is of note that there is no mention in the affidavits filed on behalf of the respondent, or the affidavit of Ms Cargill or of Ms McDonald, where they depose as to what took place at the meeting on 24 November 2014, that around that time Ms McDonald had told Ms Cargill that she had had a “run-in” – I put it colloquially – with Mr Sangare at some earlier stage. She had complained that Mr Sangare was disrespectful to her and spoke in an inappropriate and unprofessional manner to her.

21. Ms McDonald, I infer, told Ms Cargill about that “run-in” and she also told her that the applicant had spoken inappropriately to a Ms Edmonds, who was another employee of the department in the Katherine office.  The events relating to what I have called Ms McDonald’s “run-in” with Mr Sangare are recorded in a diary by Ms McDonald and the diary entry – her diary entry for 29 October 2014 – contains a long entry relating to that episode.  That diary entry was made contemporaneously.

22. I am unable to make any findings, and nor do I consider it necessary to make any findings, about the rights and wrongs of that “run-in”, but I find that it was operative in Ms McDonald’s mind and once the complaint was communicated to Ms Cargill it was operative in her mind.  I infer that Ms Cargill decided to check on this information and spoke to Mr Pemble and Mr Pemble confirmed there had been a complaint from Ms Edmonds. Mr Pemble confirmed in evidence that one, if not two, complaints had been made to him by Ms Edmonds.

23. The complaint seems to have been in substance that Mr Sangare, as an engineer responsible for roads construction, had not given Ms Edmonds enough information for her to fulfil her public relations role, presumably directed towards advising the public of the duration of road closures or the like.  It is clear from Ms Edmond’s email to Mr Pemble, which was in evidence, that Ms Edmonds had shouted at Mr Sangare on one occasion and he had shouted back.  I think it is likely that Mr Pemble also told Ms Cargill during this conversation that there had been complaints from contractors about Mr Sangare.

24. Again, I am unable to make any finding about the substance of the complaints or whether they had any merit or not.  It is unnecessary to do so but I do accept the evidence of Mr Flanagan, who was Mr Sangare’s direct supervisor, that Mr Flanagan himself had never received any complaints from contractors about Mr Sangare’s performance.  None of this adverse material was put to Mr Sangare and he was not given any opportunity to respond to it.  I am not suggesting he was entitled to an opportunity to respond.  This is not an unfair dismissal application but I do note that he was not given a proper opportunity to respond to that material.

25. After the meeting on 24 November 2014 with Ms Cargill and Ms McDonald, which appears to have taken place in the morning or perhaps the early afternoon, Mr Sangare provided a copy of the decision of the Refugee Review Tribunal relating to his protection visa application.  That decision recounted a history where Mr Sangare was said to have entered the United States some years before, stayed unlawfully, been deported, returned on a second occasion using a passport he was not entitled to use and been deported again.  It also recounted his entry into Australia using another person’s passport. Mr Sangare admitted that these elements of the history were true.

26. While I consider that information was highly relevant to the subsequent decision, I also find that the other matters, in particular the complaints communicated by Ms McDonald and the misapprehension about the applicant misleading the department about his 457 eligibility, were also operative and substantial reasons for the decision.  Each of these matters is referred to in the ministerial briefing note prepared by Ms Cargill.  In relation to the claim in the ministerial briefing note, which I have already referred to, that Mr Sangare misled the respondent in relation to his 457 visa eligibility, I find that is wrong, and I also find, as I have mentioned, that there was no opportunity for him to respond to the claim that he had misled the department nor an opportunity to respond to the complaints that he had mistreated other officers and being the subject of complaint by a contractor.

27. Nevertheless, the material revealed in the Refugee Review Tribunal decision would concern any employer, particularly a public service employer, and while I consider that some of the processes adopted might merit some criticism, the positive finding I make is that the operative and substantial reasons for the termination of the applicant’s employment were those set out in the ministerial briefing note prepared by Ms Cargill. They can be summarised as follows:

    a)Complaints from other staff, particularly Ms McDonald, about Mr Sangare;

    b)A belief that Mr Sangare had misled the department about his 457 eligibility. I find that that belief, while unreasonable, was likely to have been genuinely held; and

    c)The further information set out in the RRT decision, which I have referred to, particularly about Mr Sangare’s migration history.

28. It is unsatisfactory that Mr Sangare was not given an opportunity to respond particularly to points (a) and (b), but, as I have mentioned, this is not an unfair dismissal proceeding and there was, I am satisfied, no obligation, relevant to these proceedings, to give him an opportunity to respond. I find that these three factors that I have mentioned, (a), (b) and (c), were the substantial and operative reasons for the decision not to support ministerial intervention and I refer in particular to the High Court decision in Board of Bendigo Regional Institute of TAFE v Barclay (2012) 248 CLR 500, and particularly at paragraph 104.

29. The decision not to support the ministerial intervention led inexorably to the chief executive signing a letter on 10 December 2014 advising Mr Sangare that his employment would be terminated operative from 17 December 2014, the date of the expiry of his bridging visa.  The applicant says that the expiry of his bridging visa was irrelevant, because a further visa was obtained on 18 December 2014, and he was, he says, therefore eligible to work without interruption.  He subsequently sought reinstatement on that basis but that reinstatement was refused.

30. I am satisfied that the reasons for the termination of Mr Sangare’s employment were:

    a)complaints about his conduct towards other staff;

    b)a misapprehension that he had misled the department about his eligibility, or ineligibility, for a 457 visa; and

    c)the information revealed in the Refugee Review Tribunal decision. 

31. I am satisfied therefore that, after having regard to section 361 of the Fair Work Act, that race or national extraction were not reasons for the termination of the applicant’s employment and not reasons for any adverse treatment.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 10 August 2016