Sapkota v Results Laser Clinic Pty Ltd
[2022] FedCFamC2G 201
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sapkota v Results Laser Clinic Pty Ltd [2022] FedCFamC2G 201
File number(s): SYG 772 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 25 March 2022 Catchwords: INDUSTRIAL LAW – whether by terminating the applicant’s employment the respondent employer contravened s 340(1) of the Fair Work Act 2009 (Cth) – whether the applicant exercised a workplace right – whether the respondent terminated the applicant’s employment for a reason or for reasons that did not include as a substantial or operative factor the applicant’s having exercised a workplace right – application dismissed. Legislation: Evidence Act 1995 (Cth) ss 59, 64(2)
Fair Work Act 2009 (Cth) ss 12, 340, 341(1), 342(1), 360, 361(1)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Cases cited: Alam v National Australia Bank Limited [2021] FCAFC 178
Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284; (2010) 193 IR 251
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044
Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204
Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721
PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15
Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271
Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534
Division: Fair Work Number of paragraphs: 48 Date of hearing: 16 March 2022 Place: Sydney The Applicant: Appeared in person, by video The Respondent: Appeared in person, by video ORDERS
SYG 772 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BARSHA BHANDARI SAPKOTA
Applicant
AND: RESULTS LASER CLINIC PTY LTD
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
25 MARCH 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant, Ms Sapkota, claims the respondent, Results Laser Clinic Pty Ltd (RLC), contravened s 340(1) of the Fair Work Act 2009 (Cth) (FW Act) by terminating her employment because she had sustained an injury, she was bullied at work, and she reported these matters to her manager.
RLC accepts it terminated Ms Sapkota’s employment; but it contends it did so because of poor performance, Ms Sapkota’s failure to follow RLC’s policies in relation to the giving of discounts, and her using the ID and password of a manager without the manager’s authority. RLC further contends that at the time it decided to terminate Ms Sapkota’s employment, it was unaware that Ms Sapkota had notified it she had suffered any workplace injury, or that she had been subjected to bullying.
Ms Sapkota represented herself, and I granted leave to Ms Saliba to represent RLC. Ms Saliba gave evidence, which I accept, that she is the owner and sole director of RLC. Ms Sapkota and Ms Saliba relied on affidavits they each made. I informed Ms Sapkota and Ms Saliba that I would read the affidavits on the basis that I would have regard only to such evidence as is admissible under the law of evidence. As is to be expected from parties who are not legally represented, or who are not lawyers, the cross-examination each of Ms Sapkota and Ms Saliba conducted of the other did not explore all of the matters that are relevant or potentially relevant. I do not propose, however, to draw any inferences that might otherwise be available to be drawn from any failure by Ms Sapkota or Ms Saliba to cross-examine each other on any particular issue or item of evidence.
I will begin by setting out the evidence in narrative form, and make some findings on the basis of that evidence. Unless the context suggests otherwise, an unqualified statement of fact is to be taken to reflect my finding of the fact stated. I will then set out the relevant portions of s 340 of the FW Act, identify some principles, and then consider whether RLC contravened s 340(1) of the FW Act.
EVIDENCE AND SOME FINDINGS
RLC operates a number of laser hair removal clinics in New South Wales, Victoria, and Queensland. Its operations are managed and controlled by Ms Saliba, who, as I have noted, is the owner and sole director of RLC.
Employment Contract and training
By a contract dated 9 November 2020 (Employment Contract) RLC agreed to employ Ms Sapkota in the position of a beauty and laser therapist. The Employment Contract provided, among other things, that Ms Sapkota’s employment was probationary for the first six months of her employment; and that Ms Sapkota would comply with all of RLC’s policies and procedures. Ms Sapkota had worked as a beauty therapist for three years before she commenced her employment with RLC. By June 2020 Ms Sapkota had completed a diploma of beauty therapy. Ms Sapkota, however, had no experience in laser hair removal.
Ms Sapkota participated in a training program after she commenced her employment with RLC. According to Ms Saliba the training consisted of Ms Sapkota attending a four day training program. The program is described in a document titled “Induction Schedule” which is annexed to Ms Saliba’s affidavit made on 7 October 2021. The Induction Schedule also stated:
After the first four days – therapists will be partnered with a Mentor for further training and guidance for their first week in Clinic. Mentors and rosters will be allocated after Induction so level of skill etc. can be assessed first.
Ms Sapkota, on the other hand, says she was given “a few hours training on one day of” her induction week, after which she was sent for “in-salon training” where she performed “small treatments on small areas”. Ms Sapkota said her manager “was very happy with [Ms Sapkota’s] technique”.[1] Ms Sapkota was then allocated to RLC’s clinic at Merrylands. The salon manager there assessed Ms Sapkota and said she was happy with how Ms Sapkota performed her treatments. The manager also helped Ms Sapkota learn a few more techniques.
[1] Affidavit of B B Sapkota 17.05.2021, [3]
There is in evidence a text message Ms Sapkota sent to “Hanni” on 5 February 2021 in which she said she had received messages from head office about the skin treatment assessment; Ms Sapkota had not done any skin treatment training; and she was not sure whether this was an assessment or training. Hanni responded by text message stating that Ms Sapkota had to be “signed off all your skin within the first 6 weeks of your employment”; and she identified four subjects Ms Sapkota had to complete, these being “Micro 02”, “Chemical peel”, “Facelift/ eye lift”, and “Fat/ cellulite”. Hanni further stated that Ms Sapkota should “set up training with Toni”. There is no evidence whether by 5 February 2021 Ms Sapkota had completed the four subjects Hanni identified in her text message or, if she had not completed those subjects, whether she did so after 5 February 2021. Nothing turns on the absence of this evidence or on my not being in a position to make any findings about these matters.
Ms Sapkota’s evidence relating to neck, shoulder, and arm pain
According to Ms Sapkota:
(a)From 19 February 2021 to 5 March 2021 she experienced pain in her right shoulder, arm, and neck from holding the laser machine repetitively when treating clients. Ms Sapkota says she reported this four or five times to her “manager or supervisor”.
(b)Ms Sapkota was unable to use her arm after 19 February 2021 because of pain which continued to worsen.
(c)On 21 February 2021 Ms Sapkota saw a “mobile GP” at home as the pain continued to get worse. The “mobile GP” noted down Ms Sapkota’s symptoms, and said she might be stressed or overworked or both, that she needed to rest, and that Ms Sapkota should “see [a] GP asap to rule out anything serious”.
(d)Ms Sapkota had a phone consultation with a general practitioner, who was more concerned about Ms Sapkota’s sore throat than her pain and aches. The general practitioner referred Ms Sapkota for a COVID-19 test.
(e)Ms Sapkota’s symptoms improved, and she returned to work on 26 February 2021, but her condition “only got worse after that”, taking three doses of Nurofen and Panadol every day to manage the pain; and her condition worsened during her work hours.
(f)On 4 March 2021 Ms Sapkota again saw a general practitioner “about this issue”. Her general practitioner advised that Ms Sapkota “should go through workers compensation”, but Ms Sapkota said she wanted to avoid using workers compensation if she could. The general practitioner noted on the file that Ms Sapkota’s “work as a Laser therapist as the cause of injury”.
(g)In the morning of the day RLC terminated her employment, and before RLC terminated her employment, Ms Sapkota “notified [her] employer that [she] was still experiencing pain from work and that [she] had seen [her] GP”.
This evidence is to be assessed by reference to a number of text messages Ms Sapkota sent to Hanni and to Ms Gulcin Alevli (who is known as “Gucci”).[2]
[2] Exhibit A
(a)At 5:58 pm on 20 February 2021 Ms Sapkota sent the following text message to Hanni (errors in original):
I am not really feeling well from yesterday evening. I started having this chest pain and headache at work after lunch yesterday, my shoulder and back ached so bad got worst late on the day today. My whole body aches and i have been sleeping and sleeping all evening night and all day today. My throat is sore and feel like i am gonna have fever. I thought i will try and sleep it off hoping to get better. Veronica is sick and just found out amanda is sick too. I will come to work as i can understand its very hard with 3 therapist being sick at same time but I thought it will be better to let you know incase it’s contagious or if i got very sick or worse tomorrow.
(b)At 8:57 am on 22 February 2021 Ms Sapkota sent to Hanni a screenshot of a medical certificate dated 21 February 2021 issued by Dr Thai Doan which stated that Ms Sapkota “has a medical condition and will be unfit for work (headache, neck pain, shoulder pain, chest tightening) from 22/2/21 to 24/2/21 inclusive”.
(c)At 7:48 am on 23 February 2021 Ms Sapkota sent the following text message to Hanni (errors in original):
I went to see my gp and she referred me to respiratory clinic for covid test. I have done the test but they said i will get my results by 48 hours and said to stay away from public place until i get reports. I am just sleeping and sleeping all day and night. Hopefully will gets better soon. I have sent you my new medical certificate. . . .
Ms Sapkota sent a screenshot of a medical certificate dated 23 February 2021 issued by a clinician from the Fairfield Respiratory Clinic stating that Ms Sapkota is unfit for work from 22 to 24 February 2021.
(d)At 7:05 am on 24 February 2021 Ms Sapkota sent a text message to Ms Alevli asking whether Ms Alevli had heard anything from “Hanni” whom Ms Sapkota had texted earlier. Ms Alevli responded by text message stating that she had been told Ms Sapkota was “not coming in today”. Ms Sapkota confirmed that was the case, but noted she was feeling a bit better, and was waiting for her COVID-19 test results. Ms Sapkota said it might be the flu, but “they said do the test to be safe”. Ms Alevli suggested Ms Sapkota “[j]ust take today off”. Ms Sapkota said she could work the following day in place of someone if required. It appears Ms Sapkota did not return to work until 26 February 2021, after, at 9:44 am on 25 February 2021, Ms Sapkota sent a text message to Hanni stating that she had received her COVID-19 test results (which were negative), she was feeling better, and she “can be back to work tomorrow”. Ms Sapkota sent to Ms Alevli a screenshot of the text she had sent to Hanni at 9:44 am on 25 February 2021.
(e)At 7:51 pm on 1 March 2021 Ms Sapkota sent the following text message to Ms Alevli (errors and formatting in original):
Thank you so much for today gucci. Thank you for talking to me. I have been very anxious and stressed about what was happening at work. I really felt being bossed around and being pushed and picked on everything i do a lot by vee otherwise I wouldn’t have brought it up. I didn’t ever think it was so bad that I will have anxiety attacks even talking about it. It had really affected me and may be that has added up on me being sick last week. I feel so much better. Missed spots complaints has also made me so anxious and I tend to run late on treatments recently as I want to take time and really do it properly. I thought I was being through but not sure where it went wrong. I really appreciate all your help. Thanks for being there for me and everyone. Thank you very much. I have lost all my energy because of that bloody anxiety attack today I am gonna rest and sleep it off. Have big day tomorrow
Ms Alevli responded as follows (errors in original):
Aww you know I’m always gonna be here to help !! Just push through it and you’ll will get there x
(f)At 9:51 am on 2 March 2021 Ms Sapkota sent the following text message to Ms Alevli (errors in original):
Hope you are having good day at training. I have brought a tape and put it on the wires for laser hope it holds on for time being and is okey. We could find that black starps for one if the machine. I have having very bad neck shoulder and wrist pain from yesterday hopefully doing slide back again.
Ms Sapkota sent a photograph of the laser wire which she attached by sticky tape. Ms Alevli responded by stating that did not look good for the clinic, and requested that Ms Sapkota “take it off and use the black sticker”.
Ms Sapkota tendered a report dated 21 December 2021 prepared by a clinical psychologist (Psychologist Report). Ms Saliba objected to its tender because Ms Sapkota had not given Ms Saliba notice of her intention to tender it. I marked the Psychologist Report and noted I would rule on its admissibility in my reasons for judgment. I mention the Psychologist Report at this point because the Psychologist Report records Ms Sapkota having reported to the psychologist at a consultation on 4 March 2021 that on 1 March 2021 she told “her boss she was suffering from shoulder pain, and explained she had been working all day in conducting laser treatment”, and that she felt “ignored” by her boss. The Psychologist Report records other statements Ms Sapkota made during the consultation, including a statement that she felt unhappy in her workplace “as she learned the environment was unfriendly and at times escalated to hostile”. The relevance of the Psychologist Report turns on accepting as true a number of statements the Psychologist Report records Ms Sapkota made. Those statements are representations to which the hearsay rule in s 59 of the Evidence Act 1995 (Cth) (Evidence Act) applies; but given Ms Sapkota was available to be cross-examined, I find the exception provided for by s 64(2) of the Evidence Act applies. Many of the representations contained in the Psychologist Report, therefore, are admissible.
I accept that in the text message Ms Sapkota sent to Hanni at 5:58 pm on 20 February 2021 Ms Sapkota said that her whole body ached, her throat is sore, and her shoulder and back ached; and that at 8:57 am on 22 February 2021 Ms Sapkota sent to Hanni a screenshot of a medical certificate that referred to Ms Sapkota suffering from a headache, neck pain, shoulder pain, and chest tightening. I do not accept, however, the evidence Ms Sapkota gives in her affidavit that, before 2 March 2021, being the day on which Ms Sapkota sent to Ms Alevli a text stating she was “having very bad neck shoulder and wrist pain from yesterday”, that she reported to anyone employed by RLC that she had pain in her right shoulder, arm, and neck from holding the laser machine repetitively when treating clients; nor do I accept that at any time before 4 March 2021 Ms Sapkota consulted any medical or other health practitioner about her having experienced pain in her right shoulder, arm, and neck from holding the laser machine repetitively when treating clients. The text messages to which I have referred show, and I find, that from around 20 February 2021 to 25 February 2021 Ms Sapkota had consulted a general practitioner in relation to flu-like or COVID-19-like symptoms which included a headache, chest tightening, shoulder, and neck pain. Ms Sapkota did not in her text messages say that she experienced these symptoms, or that she had consulted a general practitioner in relation to those symptoms, because she had been holding a laser machine repetitively when treating clients. I also find that by her text message sent on 2 March 2021 Ms Sapkota informed Ms Alevli that she was experiencing neck, shoulder, and wrist pain when using the laser; that Ms Sapkota addressed this issue by applying sticky tape to a wire to relieve her from having to bear the entire weight of the wire through which the laser was emitted; and Ms Alevli directed Ms Sapkota to use a black sticker instead of the sticky tape Ms Sapkota had used. That, in turn, suggests that the clinic at which Ms Sapkota worked had a method that could reduce the strain in using a laser.
I also do not accept that in the morning of the day RLC terminated her employment, Ms Sapkota “notified [her] employer that [she] was still experiencing pain from work and that [she] had seen [her] GP”. Ms Sapkota does not identify the person whom she notified; and the only evidence, apart from Ms Sapkota’s assertion, of her seeing any health professional in which she complained of any pain from work is the Psychologist Report. That report shows Ms Sapkota consulted a psychologist, not a “GP”; and that the consultation had been arranged for a purpose unrelated to any injury or condition Ms Sapkota claimed occurred at work.
Ms Sapkota’s performance
According to Ms Saliba, RLC’s former Human Resources advisor, Ms Wilson, informed Ms Saliba that Ms Sapkota had a number of complaints recorded on a system RLC maintains known as “Issue Tracker”. Ms Saliba has annexed to her affidavit of 7 October 2021 a copy of documents generated by that system. These records appear to have been, and I find they were, created by employees of RLC when customers gave feedback, or when particular incidents or complaints occurred or were made. Each report is identified by an “Issue No”; and it records the name of the customer, describes the incident or complaint, and identifies the employee. The records are as follows:
(a)On 4 January 2021 a customer sent an email stating that staff “are really rude” and did not give the right information.
(b)On 19 January 2021 a customer reported being unhappy because Ms Sapkota had failed to remove a marker the customer had placed resulting in a burn on the customer’s face.
(c)On 13 February 2021 three customers reported a missed spot, one of which was recorded as stating the customer “had hair everywhere like it wasn’t lasered at all”.
(d)On 16 February 2021 there was a complaint that notes were missing in relation to a treatment Ms Sapkota performed.
(e)On 18 February 2021 a customer said she was experiencing pain and discomfort on the area lasered.
(f)On 27 February 2021 a customer reported a missed spot.
Termination of employment
According to Ms Saliba, Ms Claire Wilson, RLC’s former Human Resources advisor, “initially” informed Ms Saliba that Ms Sapkota had a number of complaints on “Issue Tracker”; and the issues were for missed spots on treatments, and clients were unhappy with Ms Sapkota’s service. Ms Saliba also says she received a phone call from a Ms Veronica Samano in which Ms Samano told Ms Saliba that Ms Sapkota had transacted an unauthorised discount in “the system, which we then had to investigate”; that investigation included Ms Saliba calling Ms Toni Javidi, the manager at Merrylands RLC, who told Ms Saliba that she had not given Ms Sapkota her password, nor her approval to process any discounts. Ms Saliba further deposed as follows (errors in original):[3]
I was advised that [Ms Sapkota] had used Toni's personal login details to give a discount to a customer on a Sunday about a week before she was terminated. The personal login is to discount a service which only managers, 2IC [presumably second in charge] and head office can do. If you discount a product or service without approval this has a sufficent loss to the business. The business cannot afford to discount services without approval. Therefore only approved staff such as a manager and 2IC can discount, (please view Attachment H work cover statement toni Javidi points 10, 11)
[Ms Sapkota] had no authority to use Toni's login, no therapist has that authority. The only therapist that has it at that store is Toni and Gulcin, the clinic 2IC. I belive [Ms Sapkota’s] motivation was for personal gain to discount to clients, if [Ms Sapkota] to hit her sales taget and receive her additional dollar bonus even if the business has a sufficent loss
[3] Affidavit of P Saliba 07.10.2021, [10]-[11]
“Attachment H” to which Ms Saliba refers in this passage is a statement Ms Javidi gave investigators appointed by RLC in connection with a workers compensation claim Ms Sapkota made after RLC terminated her employment. The statement is inadmissible, and I have had no regard to its contents.
On 5 March 2021 Ms Sapkota had a meeting with Ms Saliba and a person from RLC’s Human Resources team. I infer and find that this person was Ms Wilson. It appears the meeting occurred by video. There is no dispute that at the meeting Ms Saliba informed Ms Sapkota that her employment was terminated. Ms Saliba has given the following evidence of the meeting:[4]
It is confirmed that a meeting was scheduled with [Ms Sapkota] on the afternoon of the 5th March 202l. At the commencement of the meeting; [Ms Sapkota] was informed of a series of concerning issues that have been brought to the Company's attention. Specifically, four complaints of missed spots (not thorough treatment), two avoidable and serious treatment reactions, two circumstances of notes missing from files as required by law, and one complaint of rudeness. [Ms Sapkota] was provided with the names and dates of all of these clients and was asked for her response and was unable to provide a reasonable response as to why these complaints occurred. [Ms Sapkota] was also informed of a serious allegation where she used the confidential login of her Clinic Manager to provide an unauthorised discount to a client, contrary to Company Policy and Procedure. [Ms Sapkota] confirmed that she understood she was required to contact her manager for authorisation for a discount and confirmed that she proceeded with the discount without authorisation when her Manager did not pick up the phone. It was confirmed with [Ms Sapkota] that the Manager had not provided her with her login or given her permission to use it at any time. [Ms Sapkota] did not show any remorse for any of these issues.
It is confirmed that an unauthorised discount provided to a client is a serious matter that impacts the financial viability and ongoing success of the Company. As such, the confirmation from [Ms Sapkota] that she did provide the discount without authorisation and did not see why the conduct was unacceptable did, in fact, break the trust in the employment relationship and this was expressed to her during the meeting. It was confirmed with her that because of the on-going performance issues and that the employment trust was now broken due to her misconduct, I decided to terminate her employment within her probationary period.
[4] Affidavit of P Saliba 07.10.2021, [16]
Ms Sapkota has also given evidence of what occurred at the meeting; and she has deposed as follows:
(a)Ms Sapkota was advised her employment was being terminated during her probationary period due to issues with her work; she had burned a client, and there was a client who had a reaction to a treatment.
(b)The “only Issue” addressed with Ms Sapkota was missed hair spots, and that “[a]nother issue that was addressed” was a client who had a reaction to the product Ms Sapkota used to treat the client for a facial.
(c)“HR” said to Ms Sapkota that she had given a client a discount without asking her manager, and Ms Sapkota used her manager’s log-in details to process the discount on 28 February 2021. Ms Saliba said that the trust was broken, and further said that Ms Sapkota should have called Ms Saliba or Hanni before giving the discount.
(d)Of the issues raised at the meeting Ms Saliba was very focused on the discount Ms Sapkota applied to the package. Ms Saliba said she had been struggling, the trust was broken, she did not want Ms Sapkota, and “we are letting you go”. Ms Saliba also said: “you are very good at what you do, you are smart, you can get a job anywhere. Don’t take it personally”.
(e)Ms Sapkota said she asked for specific details about “when and who” so she “could understand”. Ms Saliba said that no details needed to be given because Ms Sapkota was on her probation, and Ms Sapkota should not take it personally, but she did not “fit with the culture”.
(f)Ms Sapkota asked whether if she goes to a lawyer RLC will give detailed information about the complaints. Ms Saliba said “I have done it for decades I won’t be threatened. I have done this many, many times. You can do whatever you like”.
(g)Ms Sapkota said that her clients love her, she loves her job, and she loves her clients; and she asked that, if she is good, why was she being fired.
In those parts of her affidavit in which she deposes to what occurred at the meeting, Ms Sapkota also deposes to matters that she offers as explanations or responses to the matters she says Ms Saliba or “HR” identified in the meeting as reasons for Ms Saliba deciding to terminate Ms Sapkota’s employment. Ms Sapkota there offers the following explanations:
(a)In relation to one customer Ms Sapkota says the customer had a reaction to the product used. Ms Sapkota said her manager confirmed Ms Sapkota was not at fault.
(b)In relation to another customer, Ms Sapkota deposes that the “Issue Tracker” notes exaggerated the customer’s condition as a burn. Ms Sapkota said she had a conversation with the customer in which Ms Sapkota said she was sorry, she did not hear or realise the customer was having discomfort while being treated, and had she realised that she would have lowered the setting. The customer told Ms Sapkota she did not experience any discomfort until later when she returned home.
(c)Ms Sapkota further deposes she had not been informed she was not allowed to use the manager’s log in; she said that the ID and password were provided to her for use, and all staff at the store used them to log in to process sales and discounts. Ms Sapkota also deposes at some length of the circumstances in which she used the password and gave the discount in question, after which she deposed as follows (errors in original):[5]
As on Sunday there is no manager we put our own pckg through as everyone is provided in salon with managers log in which is also a very common practice. In a course of 4 months I was never told to call manager or anyone to get approval for the pckg or the price on the days they aren’t working. I ever only called manager to get approval if it’s a new client and a new quote which manager hasn’t agreed to before already. I was never told by anyone I also have to call to get approval to put pckg through to use the log in.
[5] Affidavit of B B Sapkota 17.05.2021, [17]
It is unclear whether Ms Sapkota intends to depose that these are matters she raised at the meeting. If that is what Ms Sapkota intends to depose, I would not accept her evidence. Ms Sapkota uses language in her affidavit which in terms reports what Ms Sapkota and Ms Saliba said at the meeting. Further, Ms Sapkota deposes that at the meeting she had requested, and had been refused, details of the complaints that were made. In any event, the determination of the issues in this case does not turn on whether at the meeting Ms Sapkota gave explanations to the effect of the explanations she gives in her affidavit.
Although there are differences in the accounts Ms Sapkota and Ms Saliba give of what was said at the meeting of 5 March 2021, they are consistent to a substantial extent. In particular Ms Sapkota and Ms Saliba say, and I find, that Ms Saliba gave three reasons for her decision to terminate Ms Sapkota’s employment – poor performance, Ms Sapkota granting a discount without the authority of a manager, and Ms Sapkota processing the sale and discount in RLC’s computer system by the unauthorised use of a manager’s ID and password. Ms Sapkota and Ms Saliba also agree, and I find, that Ms Saliba informed Ms Sapkota of the nature of the conduct that Ms Saliba said was poor performance, namely, Ms Sapkota had burned a client, and a client had a reaction to a treatment. I do not accept Ms Sapkota’s evidence that she asked Ms Saliba for further details about the nature of the poor performance to which Ms Saliba referred, and Ms Saliba said she would not give further details. As I have already noted, there existed records from the Issue Tracker in relation to Ms Sapkota, and it is likely that Ms Saliba, if asked, would have referred to the information contained in those records, just as Ms Saliba deposes she did. I also do not accept Ms Sapkota’s evidence that Ms Saliba said Ms Sapkota was very good at what she does, that she is smart, that she could get a job elsewhere, and that she not take it personally. It is unlikely that in a meeting in which Ms Saliba informed Ms Sapkota that her employment is being terminated because of poor performance and breach of trust she would also say Ms Sapkota was very good at what she does, that she is smart, she could get a job elsewhere, and that she should not take it personally.
In her affidavit Ms Sapkota says that the only issues she could see that could explain RLC’s decision to terminate her employment was Ms Sapkota having “reported/complained of [her] workplace injury, that [she] had an anxiety attack following bullying at work by Veronica and that [Ms Sapkota is] from a different background than others working at the store”. I have not accepted Ms Sapkota’s evidence that before 2 March 2021 she reported to her manager or anyone else she had pain in her right shoulder, arm, and neck from holding the laser machine repetitively when treating clients; and I have found that on 2 March 2021 Ms Sapkota informed Ms Alevli that she was experiencing neck, shoulder, and wrist pain when using the laser, but Ms Sapkota addressed this issue by applying sticky tape to a wire to relieve her from having to bear the entire weight of the wire through which the laser was emitted. Thus, there is no evidence I have accepted which supports Ms Sapkota’s assertion that she made any complaint about any workplace injury. Even if I had accepted Ms Sapkota’s evidence, there is no evidence that the matters she reported, including the information contained in her text message she sent to Ms Alevli on 2 March 2021, had been communicated to Ms Saliba.
In her text message to Ms Alevli on 1 March 2021 Ms Sapkota said she felt she had been “bossed around” and “pushed and picked on” by “vee”, who I assume is Veronica. I do not accept that could reasonably be characterised as a complaint of bullying. Even if it could be so characterised, however, Ms Sapkota’s text message to Ms Alevli shows, and I find, that Ms Sapkota had raised with Ms Alevli the concerns she had about Veronica’s conduct; and Ms Sapkota felt better after having raised her concerns with Ms Alevli. Further, in her responding text message, Ms Alevli told Ms Sapkota that she was there to help her; and there is no evidence that the matters Ms Sapkota raised with Ms Alevli in relation to Veronica were communicated to Ms Saliba before Ms Saliba terminated Ms Sapkota’s employment.
In her affidavit of 7 October 2021 Ms Saliba gave the following evidence, which I accept:[6]
The first time [Ms Sapkota] informed HR of her injury in any capacity or any anxiety she had experienced in the workplace was after her termination. Any injuries that she may have had did not factor into the decision to terminate her employment. Further, the Company did not receive any formal allegations of bullying, as required by Company Policy (Attachment D - HR Incident Notification Form).
The Company was unaware of any injury until after [Ms Sapkota] was terminated for poor performance/misconduct within their probationary period. The Company has no record of an incident report, which is easily accessible to all employees on a Portal called opcentral (evidence Attachment E can be provided when requested). It is confirmed that the applicant was terminated on the basis of poor performance and misconduct. . . .
[6] Affidavit of P Saliba 07.10.2021, [17]-[18]
Ms Saliba also gave the following evidence, which I also accept:[7]
The Company did not receive any formal allegations of bullying, as required by Company Policy (Attachment A - Workplace Bullying, Harassment and Discrimination Policy). On one occasion HR was approached by the Clinic Manager who stated that an informal comment about not feeling included by two employees who worked with the Applicant on a Sunday. Following this conversation, Claire Wilson (HR Advisor) held informal discussions with both employees who denied any misconduct but agreed to reflect on their interactions with the Applicant to ensure she felt comfortable in the workplace.
[7] Affidavit of P Saliba 07.10.2021, [13]
It is open to find, and I do find, that the incident Ms Wilson reported to Ms Saliba is not the incident or events to which Ms Sapkota referred in the text message she sent to Ms Alevli on 1 March 2021. The incident Ms Wilson reported to Ms Saliba was Ms Sapkota stating to the clinic manager that she did not feel included by two employees, whereas in her text message to Ms Alevli on 1 March 2021 Ms Sapkota refers to feeling bossed around, and being pushed and “picked on everything” by one person, “vee”, who I have found to be Veronica. It is open to find, and I do find, that Ms Wilson reported the incident to Ms Saliba after 5 March 2021 in the course of enquiries Ms Saliba made for the purpose of this proceeding. I base that finding on Ms Wilson’s also having reported to Ms Saliba that Ms Wilson had spoken to the employees in question, and that Ms Saliba does not say that Ms Wilson approached the employees after she had spoken to Ms Saliba. In any event, I do not accept that Ms Sapkota’s stating that she did not feel included by two employees is capable of being characterised as Ms Sapkota claiming that she was being bullied.
SUBSECTION 340(1) OF THE FW ACT AND PRINCIPLES
Subsection 340(1) of the FW Act provides:
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.
Three matters must be established before a person will be held to have contravened s 340(1) of the FW Act. First, the person has taken “adverse action against another person”. That expression is defined in a table contained in s 342(1) of the FW Act which identifies in one column the persons by whom and against whom adverse action must be taken, and, in another column, the conduct that, if taken by and against such persons, constitutes adverse action. For the purposes of these proceedings, the relevant person who must take the adverse action is “an employer”, and the person against whom the employer takes the adverse action must be “an employee”; and the employer takes “adverse action” if the employer, among other things, “dismisses the employee”. The expression “dismisses the employee” means the repudiation by the employer of the employment contract, whether or not the employee accepts the repudiation.[8]
[8] Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721, at [29]
The second matter that must be established is that the employee against whom the employer has taken adverse action has, among other things, exercised a “workplace right”. Under s 341(1)(a) of the FW Act a person has a workplace right if the person “is entitled to the benefit of . . . a workplace law”. The expression “workplace law” is defined in s 12 of the FW Act to mean, among other things, “any . . . law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters)”. Under s 341(1)(c)(ii) of the FW Act a person has a “workplace right” if, among other things, the person, being an employee, “is able to make a complaint . . . in relation to his or her employment”. The ordinary meaning of the word “complaint” is a statement expressing a grievance or a finding of fault; and an expression of grievance or accusation need not be factually correct, substantiated or ultimately made out in order to constitute a complaint within the meaning of s 341(1)(c)(ii) of the FW Act.[9]
[9] Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, at [600]
There is an aspect of the construction of s 341(1)(c)(ii) of the FW Act to which I should refer, and that relates to the words “is able”. There is some controversy within the Federal Court about the proper construction of these words. In Cummins South Pacific Pty Ltd v Keenan,[10] all three justices of the Full Federal Court were of the view that all three justices in PIA Mortgage Services Pty Ltd v King[11] construed “is able” in s 341(1)(c)(ii) of the FW Act as requiring a complaint to be “underpinned by a right or entitlement to make it”.[12] In Cummins Bromberg and Mortimer JJ were of the view that that construction was incorrect, and said they would have refused to follow that construction if that would have been necessary to dispose of the appeal.[13] In PIA Mortgage Services, however, Rangiah and Charlesworth JJ held that an “employee is “able to complain” to his or her employer within s 341(1)(c)(ii) of the FW Act concerning the employer’s alleged breach of the contract of employment” and that the “source of that ability is the general law governing contracts of employment”.[14]
[10] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204
[11] PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15
[12] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, at [64] (Bromberg J), [209] (Mortimer J), [286] (Anastassiou J)
[13] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, at [66] (Bromberg J), [209] (Mortimer J)
[14] PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, at [26]
The current position appears to be that stated by the Full Federal Court in Alam v National Australia Bank Limited,[15] namely, “this Court should proceed on the understanding of s 341(1)(c) indicated by the unanimous decision of the Full Court in” Cigarette & Gift Warehouse Pty Ltd v Whelan.[16] In Whelan, the Full Federal Court held that Collier J’s construction of s 341(1) in Whelan v Cigarette & Gift Warehouse Pty Ltd,[17] was “unremarkable and correct”.[18] Collier J said:[19]
Section 341(c)(ii) defines a workplace right in an employee as being the entitlement of the employee to make a complaint or inquiry in relation to his employment. In such cases as Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 242 IR 1 (Shea), Murrihy v Belezy.com.au Pty Ltd [2013] FCA 908; 238 IR 307 and Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; 243 IR 468 (Walsh), s 341(c)(ii) was interpreted broadly. In Walsh [41], Bromberg J observed that the requirement in s 341(c)(ii) that a complaint or inquiry by the employee be “in relation to” his employment means that there must be a relationship between the subject matter of the complaint and the complainant’s employment. As Dodds-Streeton J further observed in Shea, a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise.
As a general proposition, a complaint or inquiry to the employer by an employee in relation to his or her entitlement to an incentive bonus, or the failure of the employer to prepare an incentive bonus plan, where the terms of employment of that employee make provision for payment of such bonuses or the preparation of such plans, would fall within the scope of s 341(c)(iii) of the FW Act.
[15] Alam v National Australia Bank Limited [2021] FCAFC 178, at [97]
[16] Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16
[17] Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534, at [33], [34]
[18] Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16, at [28]
[19] Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534, at [33], [34]
The third matter that must be established is that the employer took the adverse action for a particular reason, or for reasons that included a particular reason.[20] That requirement arises from the presence of the word “because”;[21] s 340(1) of the FW Act prohibits a person from taking adverse action “because” a person has a “workplace right”, or “because” the person has exercised, or has not exercised, or proposes to exercise, or proposes not to exercise, such a right. Further, where the particular reason is one of a number of reasons for which the adverse action is taken, the particular reason must be “a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons”,[22] or must be an “operative or immediate reason for the action”.[23]
[20] FW Act, s 360
[21] Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721, at [20] relying on Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284; (2010) 193 IR 251, at 258 ([26]) (Tracey J)
[22] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044, at 1066 ([127]) (Gummow and Hayne JJ)
[23] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044, at 1068 ([140]) (Heydon J)
Relevant to determining whether in any given case a person has taken adverse action “because” of one or more of the matters specified in s 340(1) of the FW Act is s 361(1) of that Act. That subsection provides:
If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
In Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd, Jessup J (with whose reasons Rangiah J agreed), made the following observations about the effect and operation of s 361(1) of the FW Act:[24]
In the context of a provision such as ss 340 and 352, the effect of s 361 is to reverse the legal onus in relation to the reason or reasons for which the adverse action was taken. That is to say, at the end of the trial of fact, the question will be whether the respondent has established, on the civil standard, that the action taken was not taken for a reason, or for reasons which included a reason, proscribed by the legislation. That question is to be answered by reference to all of the evidence which bears upon it. Section 361 does not impose upon the respondent concerned the onus of calling any and every piece of evidence that might arguably influence the answer to the question of reasons or intent. The section is not, in other words, concerned to impose upon the respondent a continuing, unchanging, evidentiary onus with respect to that question.
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, 516 [41], French CJ and Crennan J said that “the question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the [FW] Act.” Their Honours continued (248 CLR at 517 [45]):
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. [See, eg, General Motors-Holden’s Pty Ltd v Bowling (1976) 136 CLR 676 (note) …] Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker [See, eg, Pearce v WD Peacock & Co Ltd (1917) 23 CLR 199 at 208 per Isaacs J; at 211 per Higgins J.] or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. [See, eg, Harrison v P & T Tube Mills Pty Ltd (2009) 188 IR 270 at 276 [31]-[33].]
In other words, whether the onus arising under s 361 has been discharged in a particular case will depend upon the assessment of all of the facts by the trier of fact, including, most importantly in the conventional case, his or her assessment of the evidence given by the decision‑maker acting on behalf of the employer.
[24] Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, at [27], [28]
DID RLC CONTRAVENE S 340(1) OF THE FW ACT?
In Part G of her Form 2 Ms Sapkota alleges as follows:
1)I was terminated after sustaining both a physical injury and aggravating my anxiety and depression from bullying by staff at Results Laser Clinic. I reported both the workplace injury and the bullying, my assistant manager witnessed my anxiety attack at work.
2)I was terminated after reporting these issues to my manager and assistant manager several times and after seeing my GP for diagnosis/treatment.
3)I notified my assistant store manager that I had seen my GP for treatment and that I intended to open a claim with Workcover as I had suffered an injury at work. I had been trying to avoid going through Workcover for the injury but it was getting worse and impacting my work and personal life. Later that day I was notified of a meeting with HR & the owner Paulina where I was notified that I was being terminated during probationary period.
4)No reason was given for my termination, the owner Paulina said a reason wasn’t required to terminate during my probation. She said that I wouldn’t have any issues getting a job elsewhere as I’m very good at what I do and very smart
There is no question that RLC’s termination of Ms Sapkota’s employment constituted adverse action. The question is whether RLC terminated Ms Sapkota’s employment because she exercised a workplace right.
Did Ms Sapkota exercise a workplace right?
The following matters and findings are relevant to determining whether Ms Sapkota exercised a workplace right:
(a)There is no evidence that before RLC terminated Ms Sapkota’s employment Ms Sapkota had initiated any action under the Workplace Injury Management and Workers Compensation Act 1998 (NSW), or under any other law dealing with occupational health and safety, in relation to any injury she claims to have suffered while employed by RLC.
(b)There is no evidence that Ms Sapkota notified any employee or officer of RLC that she had made or intended to initiate any action under any law in relation to any injury. Ms Sapkota has given evidence that she experienced pain in her right shoulder, arm, and neck from holding the laser machine repetitively when treating clients; that she reported this four or five times to her manager; and that she had seen a medical practitioner in relation to this pain; but I have not accepted this evidence.
(c)I have found that on 2 March 2021 Ms Sapkota informed Ms Alevli that she was experiencing neck, shoulder, and wrist pain when using the laser; Ms Sapkota addressed this issue by applying sticky tape to a wire to relieve her from having to bear the entire weight of the wire through which the laser was emitted; and Ms Alevli directed Ms Sapkota to use a black sticker instead of the sticky tape Ms Sapkota had used.
(d)I have found that on 1 March 2021 Ms Sapkota raised with Ms Alevli the concerns she had about Veronica’s conduct; Ms Sapkota felt better after having raised her concerns with Ms Alevli; and in her responding text message Ms Alevli told Ms Sapkota that Ms Alevli was there to help her.
I do not accept that Ms Sapkota’s informing Ms Alevli on 2 March 2021 that she was experiencing neck, shoulder, and wrist pain when using the laser, constituted the exercise by her of any right under a law dealing with occupational health and safety matters; and I do not accept that this constituted a complaint or inquiry in relation to Ms Sapkota’s employment. I therefore do not accept that Ms Sapkota’s informing Ms Alevli she was experiencing neck, shoulder, and wrist pain when using the laser constituted Ms Sapkota exercising a workplace right.
I also do not accept that Ms Sapkota’s raising with Ms Alevli the concerns she had about Veronica’s conduct constituted the exercise by her of any right under a law dealing with occupational health and safety. I do accept, however, that Ms Sapkota’s raising with Ms Alevli the concerns she had about Veronica’s conduct may properly be characterised as a grievance relating to her employment and, for that reason, may properly be characterised as the exercise by Ms Sapkota of the ability she had to make a complaint in relation to her employment and, therefore, the exercise by her of a workplace right. I also accept that if, as Ms Wilson reported to Ms Saliba after 5 March 2021, Ms Sapkota said to the clinic manager she did not feel included by two employees, that, too, may properly be characterised as an expression by Ms Sapkota of a grievance relating to her employment and, therefore, the exercise by her of a workplace right.
Did RLC terminate Ms Sapkota’s employment because she exercised a workplace right?
The determination of this question turns on whether I accept Ms Saliba’s evidence. That follows from Ms Saliba being the person who had the authority to decide on behalf of RLC to terminate Ms Sapkota’s employment, and who did terminate Ms Saliba’s employment. I make the following findings:
(a)I accept Ms Saliba’s evidence that Ms Wilson informed her that Ms Sapkota had a number of complaints on “Issue Tracker”; and the issues were for missed spots on treatments, burning, missing notes, and clients being unhappy with Ms Sapkota’s service;
(b)I accept Ms Saliba’s evidence that she had received a phone call from Ms Samano in which Ms Samano told Ms Saliba that Ms Sapkota had transacted an unauthorised discount; that Ms Saliba made enquiries of the manager at Merrylands RLC, who told Ms Saliba that she had not given Ms Sapkota her password, nor her approval to process any discounts;
(c)I find that Ms Saliba formed the belief that Ms Sapkota’s performance was below the standard Ms Saliba considered to be appropriate for RLC; that Ms Sapkota had transacted an unauthorised discount; that Ms Sapkota had accessed RLC’s information system to process the transaction by the unauthorised use of a manager’s password; that Ms Saliba believed that this was contrary to RLC’s practices and financial interests; and that Ms Sapkota’s conduct was a breach of trust;
(d)I find that the reasons on which Ms Saliba relied for deciding to terminate, and terminating, Ms Sapkota’s employment were those Ms Saliba conveyed to Ms Sapkota at the meeting on 5 March 2021, namely, Ms Sapkota’s poor performance, Ms Sapkota transacting an unauthorised discount, and Ms Sapkota having accessed RLC’s information system to process the transaction by the unauthorised use of a manager’s password; and
(e)I find that Ms Saliba did not decide to terminate Ms Sapkota’s employment for the reason, or for reasons that included as a reason, substantial or otherwise, Ms Sapkota’s having raised with Ms Alevli concerns she had about Veronica’s conduct, or Ms Sapkota’s having informed Ms Alevli that she was experiencing neck, shoulder, and wrist pain when using the laser, or Ms Sapkota stating to the clinic manager she did not feel included by two employees.
I rely on the following matters:
(a)It was reasonably open to a person in the position of Ms Saliba, being the effective owner of RLC, to form the belief, on the basis of the entries made in “Issue Tracker”, that Ms Sapkota had been performing poorly.
(b)Ms Sapkota accepts she did transact a discount, and she processed the transaction on RLC’s information system by use of another person’s ID and password.
(c)It was reasonably open for a person in the position of Ms Saliba, being the effective owner of RLC, to view an employee’s transacting an unauthorised discount, and using a manager’s password, as matters that undermine the trust the employer could repose in the employee.
(d)There is no evidence that before 2 March 2021 Ms Sapkota had communicated to Ms Alevli or to any other employee or officer of RLC that she was experiencing neck, shoulder, and wrist pain when using the laser; and there is no evidence Ms Saliba was aware that on 2 March 2021 Ms Sapkota had communicated to Ms Alevli that she was experiencing neck, shoulder, and wrist pain when using the laser, or that Ms Sapkota had communicated any such thing to any other person within RLC.
(e)There is no evidence Ms Saliba was aware that Ms Sapkota had expressed to Ms Alevli concerns in relation to Veronica.
(f)I have found that Ms Saliba was not aware before she terminated Ms Sapkota’s employment that Ms Sapkota stated to the clinic manager that she did not feel included by two employees; but even if Ms Saliba had been so informed, she would have also been informed that Ms Wilson had resolved Ms Sapkota’s grievance by speaking with the two employees in question who had agreed to reflect on their interactions with Ms Sapkota.
In cross-examination Ms Sapkota asked questions of Ms Saliba that assumed there was a common practice for employees at the Merrylands RLC to give discounts on Sundays without seeking the approval of a manager, and for recording the transaction by using a manager’s ID and password. Ms Saliba said she was not aware this was the case; and, in response to Ms Sapkota putting to Ms Saliba that she was biased against Ms Sapkota, Ms Saliba said that was incorrect, and that she had terminated the employment of employees at other stores for not following procedures. I accept Ms Saliba’s evidence. There is no evidence, other than the assertion Ms Sapkota made in her affidavit, the effect of which she put to Ms Saliba, that there was any such common practice; or, to the extent there was any such practice, Ms Saliba was aware of it.
Ms Sapkota also asked questions of Ms Saliba that assumed there were other employees whose performance was comparable to Ms Sapkota’s, but whose employment had not been terminated; and, for this reason, Ms Sapkota had been the victim of discrimination. Ms Saliba gave the following evidence:[25]
MS SAPKOTA: Are you aware that – yes, sure. Are you aware that they also had missed – missed spot complaints, heat reaction complaints, missed notes?‑‑‑Yes. Through Issue Tracker.
Yes. So why was I terminated and they weren’t?‑‑‑So with them, they actually have received warnings for those as well. You were under the six months probationary period, and because you had so many issues, a lot more than the other staff, and you used the manager’s discount without approval, that’s why we determined it because you were under the six months probationary period.
Are you saying that all the new staff that were in six months probation for last 15 years with your company never had the same complaints as me and in same amounts?‑‑‑They have had complaints, but not as much as you. Yes. That’s correct.
[25] T48
I accept Ms Saliba’s evidence at least to the extent it reflects her beliefs at the time she decided to terminate Ms Sapkota’s employment. Even if, however, it were the case that Ms Saliba had decided not to terminate other employees who exhibited the same performance as the Issue Tracker revealed about Ms Sapkota’s performance, that would be incapable of supporting a finding that Ms Saliba terminated Ms Sapkota’s employment on the basis of matters of which there is no evidence Ms Saliba was aware, namely, Ms Sapkota’s having claimed she had a work injury, or that she had been bullied, or that she told the clinic manager she did not feel included by two employees.
In her affidavit Ms Sapkota also claimed that one of the reasons RLC terminated her employment was that she is “from a different background than others at the store”. This assertion cannot be given any weight. Ms Sapkota does not identify her background, the background of other employees, how Ms Sapkota’s background differed from the other employees’ backgrounds, or whether Ms Saliba was aware of what Ms Sapkota claims is her background and the background of other employees.
CONCLUSIONS AND DISPOSITION
By Ms Sapkota conveying to Ms Alevli concerns she had about Veronica’s conduct, and by Ms Sapkota informing her clinic manager she did not feel included by two employees, Ms Sapkota exercised the workplace right she had to make a complaint in relation to her employment with RLC. RLC did not, however, terminate Ms Sapkota’s employment because she exercised a workplace right; RLC terminated Ms Sapkota’s employment because of what Ms Saliba believed was Ms Sapkota’s poor performance, her transacting an unauthorised discount, and her accessing RLC’s information system to process that transaction by the unauthorised use of a manager’s ID and password.
It follows that RLC did not contravene s 340(1) of the FW Act, and that the application must be dismissed.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 25 March 2022
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