FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHUM v SOUTHERN MIGRANT AND REFUGEE CENTRE INC & ORS | [2020] FCCA 214 |
| Catchwords: INDUSTRIAL LAW – FAIR WORK – Alleged breach of contract – adverse action – dismissal – injury in employment – alteration of position to prejudice – reasons for adverse action – complaints – taking sick leave – exercising workplace rights – discrimination – bullying – involvement of others. |
| Legislation: Fair Work Act 2009 (Cth), ss.117, 121, 340, 341, 342, 352, 360, 361, 550, 789FD, 789FF |
| Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; (2012) 290 ALR 647; (2012) 86 ALJR 1044; (2012) 220 IR 445; [2012] HCA 32 Other material: |
| Applicant: | LAI SHUM |
| First Respondent: | SOUTHERN MIGRANT AND REFUGEE CENTRE INC T/A SOUTHERN MIGRANT AND REFUGEE CENTRE INC |
| Second Respondent | BRIAN OATES |
| Third Respondent | DESPINA HARALAMBOPOULOS |
| Fourth Respondent | AMAN BINDRA |
| Fifth Respondent | CHAMPA WATTEGAMAGE |
| Sixth Respondent | TRAVIS HEENEY |
| File Number: | MLG 2344 of 2017 |
| Judgment of: | Judge Riley |
| Hearing dates: | 13, 14, 15, 16, 17, 22 May, 17 June, 2 September 2019 |
| Date of Last Submission: | 19 November 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 5 February 2020 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Counsel for the respondents: | Nicholas Harrington |
| Solicitors for the respondents: | Lander & Rogers |
DECLARATIONS
Southern Migrant Resource Centre (“SMRC”) contravened s.340 of the Fair Work Act 2009 (“the Act”) by taking adverse action against Lai Shum by dismissing her from her employment for prohibited reasons including that she had exercised or proposed to exercise workplace rights.
Pursuant to s.550(2)(a), (c) and (d) of the Act, Brian Oates and Travis Heeney were involved in SMRC’s contravention of s.340 of the Act.
SMRC contravened s.352 of the Act by dismissing Lai Shum partly because she was temporarily absent from work due to illness or injury.
Pursuant to s.550(2)(a), (b) and (c) of the Act, Travis Heeney was involved in SMRC’s contravention of s.352 of the Act.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2344 of 2017
| LAI SHUM |
Applicant
And
| SOUTHERN MIGRANT AND REFUGEE CENTRE INC T/A SOUTHERN MIGRANT AND REFUGEE CENTRE INC |
First Respondent
| BRIAN OATES |
Second Respondent
| DESPINA HARALAMBOPOULOS |
Third Respondent
| AMAN BINDRA |
Fourth Respondent
| CHAMPA WATTEGAMAGE |
Fifth Respondent
| TRAVIS HEENEY |
Sixth Respondent
REASONS FOR JUDGMENT
Introduction
In this proceeding, the applicant, Ms Shum, claimed that:
a)the first respondent dismissed her from her employment in breach of her fixed term contract of employment; and
b)one or more of the respondents took adverse action against her under the Fair Work Act 2009 (“the Act”) consisting of:
i)dismissing her;
ii)injuring her in her employment; and
iii)altering her position to her prejudice;
for prohibited reasons, being that she exercised or proposed to exercise her workplace rights.
Ms Shum exercised her workplace rights in various ways, including:
a)making complaints and inquiries about:
i)workplace-wide and targeted bullying;
ii)breaches of her employer’s occupational health and safety obligations, its human resources policies and procedures and its code of conduct;
iii)a disciplinary process brought against her; and
iv)underpayments of her entitlements;
b)taking extended sick leave;
c)initiating a WorkCover claim;
d)initiating an anti-bullying application in the Fair Work Commission; and
e)commencing an adverse action claim.
The applicant
Ms Shum was not legally represented in this proceeding. English is not her first language. Nevertheless, she obtained a Master’s Degree in Business Studies from Massey University in New Zealand in 1994, and a Health Science Degree from Charles Sturt University in 2015. She is presently enrolled in a law degree. She has completed a subject in industrial law. She is a Certified Practicing Accountant. Ms Shum’s English was more than adequate to conduct the proceeding.
On 21 June 2016, Ms Shum commenced full-time employment with the Southern Migrant and Refugee Centre Inc (“SMRC”) on a two year contract. Ms Shum was the Team Leader - Finance. In late 2016, the Finance Team consisted of:
a)Jacob Lee, the Corporate Services Manager;
b)Ms Shum, the Team Leader - Finance;
c)Champa Wattegamage, an Assistant Finance Officer, and the fifth respondent; and
d)Perla Mazie, an Assistant Finance Officer, and a witness called by Ms Shum.
Ms Shum was dismissed from her employment with SMRC on 19 June 2017. The respondents asserted that Ms Shum’s position was redundant. Ms Shum asserted the redundancy was a sham, and her dismissal was in breach of her contract of employment and in breach of the adverse action protections in the Act. Ms Shum also made various other claims against various of the respondents, including bullying, injuring her in her employment, and altering her position to her prejudice.
Before Ms Shum’s dismissal, on 1 March 2017, Champa Wattegamage, who is the fifth respondent, and who was one of the members of Ms Shum’s team, complained to management that, on 28 February 2017, Ms Shum had spoken to her in an aggressive, angry and controlling manner which had caused Ms Wattegamage to have chest pains all night.
When asked to respond to Ms Wattegamage’s allegations, Ms Shum was unable to attend the scheduled interview. Instead, she took an extended period of sick leave, lodged a WorkCover claim, lodged an application with the Fair Work Commission seeking orders that the respondents stop bullying her and foreshadowed other legal action.
Ms Shum’s WorkCover claim was rejected by SMRC’s insurer, following receipt of a response to the claim from SMRC. Ms Shum then filed a claim under the Workplace Injury, Rehabilitation and Compensation Act 2013 (Vic) in the Magistrates’ Court of Victoria. That proceeding was settled, with a denial of liability, on the basis that SMRC paid Ms Shum compensation at the “no current work capacity” rate for 52 weeks from 7 March 2017 and paid her medical expenses.
Ms Shum discontinued her bullying application in the Fair Work Commission, as it was no longer viable after SMRC dismissed her.
SMRC
The first respondent, SMRC, is a not for profit, incorporated association that provides social support services for migrants and refugees. It was established in 1993 under the name, Migrant Resource Centre, with federal funding. The SMRC has a constitution, a board of directors, a Chief Executive Officer (“CEO”) and about 200 members. It has annual general meetings.
At the relevant time, it had about 170 employees, of whom 60 were permanent and 110 were casual.
On the respondents’ own admission:
The genesis of this proceeding was a period of significant instability and relative dysfunction in the SMRC workplace. … 2016 was a year in which there was disconnect, and real tension, between the Board, its CEO and members of executive management. There were clearly feuds and internecine disputes. The SMRC was riven with conflict.[1]
[1] Respondents’ closing submissions, paragraph 30.
In brief summary, the first respondent, Brian Oates, who was the Chairperson of the Board, and some other Board members, formed the view that the then CEO of SMRC, Jenny Semple, had misappropriated funds from the SMRC by giving herself a pay rise and back pay without Board approval. The implication was that the finance team had either facilitated the misappropriation or had been incompetent in allowing it to happen. Ms Semple had been the CEO of SMRC for about 20 years, and had many loyal supporters on staff, including Ms Shum.
An external audit was instigated in August 2016. When the external auditor asked Ms Semple to answer the allegations against her, she went on sick leave for about six months and then resigned on 3 March 2017. The question of whether Ms Semple did misappropriate any money was never resolved authoritatively. The whole incident created a very charged work atmosphere. Contrary to Ms Shum’s hopes, it is not possible for this court, in the present proceedings, to determine whether Ms Semple did anything wrong.
At around this time, a number of staff went on sick leave and/or lodged WorkCover claims, including for bullying. There was also a power struggle within the Board. As a result, for example, Costa Azzam, who had been an original member of the Board, and who had served on the Board continuously for about 23 years, felt compelled to, and did, resign from the Board and severed all connections with SMRC.
The local newspaper, the Dandenong Star, said in an article on 5 February 2016 (CB361):
SOUTHERN Migrant and Refugee Centre’s new board is set to rub salt in the wounds of ousted “Australian professional” board members, accusing them of bringing the SMRC into disrepute.
Nine former board members, including two lawyers, a senior public servant, a former TAFE chief executive and an aged care firm’s chief executive, were deposed by a ‘Migrant Team’ ticket during a heated board spill in November.
Several of them, including public servant Helen Cester, who have stayed on as members, will face a disciplinary hearing which could result in their suspension or expulsion.
They stand accused by the new board, led by ongoing chairman Brian Oates, of distributing a pamphlet before the election that harmed the SMRC’s reputation.
An angry Ms Cester likened the upcoming hearing to a “kangaroo court”.
…[2]
[2] This article is quoted not for the truth of the statements contained in it, but merely to show that the conflict at SMRC was so bad that it entered the public domain.
The minutes of SMRC’s Board meeting on 10 May 2017 recorded that the Board had resolved that the Chairperson, for his own safety, would not attend the offices of SMRC without another Board member being present.
Between March and November 2017, seven of the 11 members of SMRC management team left the organisation as follows:
a)the CEO, Ms Semple, resigned;
b)the Acting CEO, Ms Haralambopoulos, resigned;
c)the applicant was dismissed;
d)the Business Development Manager, Chris Brooking, was dismissed;
e)the Quality and Risk Assessor, Kate Lord, was dismissed;
f)the Corporate Services Manager, Jacob Lee, resigned; and
g)the Human Resources Manager, Aman Bindra, resigned.
Brian Oates
The second respondent, Brian Oates, was at all material times the Chairperson of the Board of SMRC. Ms Shum considered him to be the instigator of the attack on Ms Semple.
An Annual General Meeting (“AGM”) was scheduled for 1 December 2016. Mr Oates noticed that, prior to the AGM, an unusually large number of new applications for membership had been received. Mr Oates wrote to the new members on 7 November 2016 to say that they would not be able to vote at the upcoming AGM, because the rules required people to have been members for 30 days before voting.
On 23 November 2016, the SMRC Executive Management Team wrote to the Board to request a meeting about staff unrest and recent communications from the Board. That meeting occurred, but did not resolve the tensions.
Staff of the SMRC were associate members of SMRC but, as associate members, did not have voting rights. Ms Shum was also a full member of the SMRC, as she had paid her membership fee prior to becoming an employee. Mr Oates considered that Ms Shum was not allowed to vote at the AGM and told her so. Ms Shum disagreed. After the AGM, in January 2017, Mr Oates was given legal advice, which he accepted, to the effect that Ms Shum had been entitled to vote at the AGM.
At the AGM on 1 December 2016, people shouted over each other, including Mr Lee, SMRC’s Corporate Services Manager. Mr Lee was Ms Shum’s immediate supervisor, and one of the people who went on sick leave and lodged a WorkCover claim for stress. Ms Shum called him as a witness in this proceeding. Mr Oates said that the AGM descended into a farce.[3]
[3] Brian Oates’ affidavit affirmed on 21 September 2018, paragraph 33.
An anonymous letter was distributed at the AGM, on SMRC letterhead, in the following terms (CB1590):
An open letter to the Members of the SMRC from concerned Staff
We, 24 staff and associate members of the SMRC, are taking this unprecedented step in writing to you, the members, who have the power to determine the future of our organisation.
As associate members, we have no right to vote, but we believe we have the right to raise our concerns.
The current Chairperson, Brian Oates, has lost our respect and support. We have no confidence in him and fear that under his leadership, the SMRC’s sustainable future and our livelihood is threatened.
We are angry that Brian has damaged the hard earned reputation of the SMRC in his election campaigning flyers with claims that are not supported by facts. His messages are negative and divisive. Brian also released misleading statements in the letter to new members in early November.
Brian has failed to satisfactorily answer our questions regarding the misleading information from the letter, at the meeting with us on 9 November.
Please use your vote wisely to put the right people, people with integrity on the board, we have confidence in.
SMRC staff casted secret ballots regarding this letter in a private place inside the office in the afternoon on 30/11/2016 and the votes were as follows:
Support 24 Votes Not support 0 Votes
We apologise to those staff members who were unable to participate for we want to protect everyone from any repercussion from Brian.
Mr Oates remained the Chairperson of the Board after the AGM.
On 23 December 2016, some members of SMRC requested a Special General Meeting (“SGM”) of SMRC to expel Mr Oates and four others from the Board of SMRC and replace them with people who were supportive of Ms Semple, who was then on sick leave. The SGM was called for 27 January 2017.
On 25 January 2017, Mr Oates and other Board members met with about 27 staff members and, having the benefit of legal advice, said that staff who were also financial members would be allowed to vote on 27 January 2017.
At the SGM on 27 January 2017, Mr Oates and the other impugned Board members retained their positions.
On 10 April 2017, the acting CEO of SMRC, Ms Haralambopoulos, resigned. Mr Oates recruited an Interim Managing Director, Travis Heeney, to fulfil the role of CEO on a temporary basis while a recruitment process for a long-term CEO was undertaken. Mr Heeney was the only person interviewed for the job.
Mr Oates supported Mr Heeney’s proposal for a restructure, which resulted in Ms Shum’s redundancy and dismissal, but said that, in doing so, he was not actuated by any prohibited reason.
Despina Haralambopoulos
The third respondent is Despina Haralambopoulos who, at all relevant times, was the Acting CEO of SMRC. She worked for SMRC from 2001 until 2003 and from 2010 until she resigned on 5 May 2017, having given four weeks’ notice on 10 April 2017. Ms Haralambopoulos now has a job as General Manager Community and Aged Services in an organisation somewhat similar to SMRC.
From 2010 until 2015, Ms Harambopoulos was SMRC’s Manager Settlement Services. Following an organisational restructure in 2015, Ms Haralambopoulos became SMRC’s Programs Manager, and reported to the CEO, who was then Ms Semple.
During 2016, Ms Haralambopoulos noticed that the relationship between Ms Semple and the Board was strained and dysfunctional[4].
[4] Affidavit affirmed by Despina Haralambopoulos on 21 September 2018, paragraph 7.
In or around August 2016, Ms Semple went on sick leave. In late October 2016, the Board approached Ms Haralambopoulos and asked her to take on the position of Acting CEO. Ms Haralambopoulos accepted that position.
Ms Haralambopoulos said that she found the position of Acting CEO challenging and said that:
There was a lot of discontent among staff at that time because of simmering tensions and a breakdown in the relationship between the CEO, the Chair of the Board and the Board. I had a sense that a majority of the staff supported the CEO in her relationship and disagreements with the Board. Most staff had been employed during Ms Semple’s 23 year tenure at SMRC, but not directly by her. [5]
[5] Affidavit affirmed by Despina Haralambopoulos on 21 September 2018, paragraph 10.
As Programs Manager, Ms Haralambopoulos had some involvement with the Finance Team, for example, in relation to budgets, payroll, invoices and acquittals. When she became Acting CEO, Ms Haralambopoulos had a closer involvement with the Finance Team.
On or about 5 December 2016, Mr Oates told Ms Haralambopoulos that he was aware that Ms Shum had voted at the AGM. Mr Oates asked Ms Haralambopoulos to call Ms Shum into Ms Haralambopoulos’s office. Mr Oates told Ms Shum that she had not been entitled to vote at the AGM. Ms Shum disagreed with that view.
Ms Haralambopoulos met with Ms Shum on 9 January 2017 and reinforced Mr Oates’ then view that Ms Shum did not have voting rights. Ms Shum continued her disagreement with that position.
Following that meeting, Ms Haralambopoulos reviewed SMRC’s Constitution and initiated SMRC’s request for pro bono legal advice from Justice Connect on the question of whether paid up members of SMRC who were also staff were entitled to vote at meetings of the SMRC membership. As mentioned above, the legal advice was to the effect that such members, including Ms Shum, were entitled to vote. Mr Oates subsequently publicly accepted the legal advice to the effect that his view had been wrong.
Ms Shum has alleged that Ms Haralambopoulos bullied her in relation to the voting rights question.
Ms Haralambopoulos attended the staff meeting on 25 January 2017 and the SGM on 27 January 2017.
On 17 February 2017, Mr Lee, Ms Shum’s immediate supervisor, commenced extended sick leave for reasons of stress. In Mr Lee’s absence, there was no manager between Ms Shum and Ms Haralambopoulos. Mr Lee did not ever return to work for SMRC. He was employed at SMRC from 21 February 2000 until he resigned in August 2017. He lodged a WorkCover claim in March 2017 which was accepted.
On 1 March 2017, Aman Bindra, the fourth respondent, and SMRC’s Human Resources Officer, told Ms Haralambopoulos that Ms Wattegamage, the fifth respondent, and Ms Shum’s subordinate, had complained about Ms Shum’s treatment of Ms Wattegamage. Ms Wattegamage put her complaint in writing addressed to Ms Bindra on 1 March 2017. It was as follows (CB458):
I wanted to report an incident which left me with chest pain and anxiety since yesterday.
Genie [Shum] called in a meeting on 28 February 2017 to discuss operational priorities in absence of Jacob [Lee].
Her attitude in the meeting was aggressive and intimidating body language.
She came across very angry and controlling. She pointed finger and said – don’t think I will take Jacob’s position[6], he is my friend.
She forced us to not go to see Despina [Haralambopoulos] for any matters. Also mentioned that Despina email to us about Jacobs’s absence is not right. Also stated it’s not right for Despina to send that email to us. She asked us not to see Despina on one more occasion last week.
After the meeting she sent an email with a list of new tasks to be completed which created undue pressure on me. I have attached the emails.
This left me feeling intimidated and helpless. I started having chest pain following the meeting, which continued whole night. I feel uncomfortable working with Genie if her attitude remains like this towards us.
(errors in original)
[6] Jacob Lee
Also on 1 March 2017, Ms Wattegamage spoke to Ms Haralambopoulos directly and said she had heart palpitations and wanted to go home because of Ms Shum’s behaviour the previous day and because of the emails Ms Shum had sent her that morning. Ms Haralambopoulos approved Ms Wattegamage going home.
On 2 March 2017, Ms Shum emailed Ms Haralambopoulos with a complaint about Ms Wattegamage saying that she, Ms Shum, was under extreme stress, the chain of command was not being upheld and professional accountants do not want to argue with subordinates with limited accounting background.[7]
[7] Affidavit affirmed by Despina Haralambopoulos on 21 September 2018, paragraphs 59 and 60.
On Friday 3 March 2017, Ms Shum called in sick, and Ms Semple formally resigned after six months of sick leave.
Ms Shum attended work on Monday 6 March 2017 and met with Ms Haralambopoulos. Ms Haralambopoulos explained that Ms Wattegamage had made a complaint about Ms Shum. Ms Haralambopoulos gave Ms Shum a copy of a letter and Ms Wattegamage’s written complaint. The letter indicated that a disciplinary meeting was scheduled for 8 March 2017, although, at that time, it had not been established that anything requiring discipline had occurred. Ms Haralambopoulos conceded in her evidence that it was wrong to have described the proposed meeting on 8 March 2017 as a disciplinary meeting.
Ms Shum said that she would be unable to attend the disciplinary meeting. Ms Haralambopoulos offered to reschedule. The meeting never occurred, because Ms Shum took extended sick leave commencing on 7 March 2017 and did not return to work for SMRC. On 8 March 2017, Ms Shum lodged a WorkCover claim alleging bullying and stress. That claim was rejected by SMRC’s insurer on 4 April 2017. Ms Shum sought conciliation of her WorkCover claim the following day.
Neither Ms Wattegamage’s complaint against Ms Shum nor Ms Shum’s complaint against Ms Wattegamage were resolved internally by SMRC, largely because Ms Shum did not participate in the investigative process.
Ms Haralambopoulos, as Acting CEO, took part in the response to Ms Shum’s WorkCover claim. Ms Shum alleged that Ms Haralambopoulos lied in documents filed with the WorkCover Commission.
On 10 April 2017, Ms Haralambopoulos received an application by Ms Shum filed in the Fair Work Commission seeking orders that Ms Haralambopoulos, Ms Wattegamage, Ms Bindra, Mr Oates and others stop bullying her. Ms Haralambopoulos gave her notice to SMRC on the same day. She finished working for the SMRC on 5 May 2017.
Ms Haralambopoulos said that she had no input into the decision to make Ms Shum’s position redundant, as that all happened after she left SMRC.
Aman Bindra
The fourth respondent is Amandeep Bindra. At all relevant times, she was SMRC’s Human Resources Adviser. She was the only human resources professional at SMRC and reported directly to the CEO. She commenced work with SMRC in June 2015, and left in November 2017 to take a similar role in another not for profit organisation.
Ms Bindra was on the interview panel that recruited Ms Shum to the SMRC.
Ms Bindra provided advice to staff to the effect that SMRC’s code of conduct did not apply to members of the Board. Ms Shum did not agree with that advice.
When the managers and team leaders wrote a complaint about Mr Oates in about January 2017, Ms Shum did not sign it. There was a dispute in this proceeding about whether Ms Bindra urged Ms Shum not to sign the letter of complaint.
In late 2016 and early 2017, Ms Wattegamage and Ms Mazie allegedly made a number of complaints to Ms Bindra about Ms Shum’s management style. These culminated in a written complaint dated 1 March 2017 by Ms Wattegamage about Ms Shum, which triggered Ms Shum going on sick leave. Ms Wattegamage gave the written complaint to Ms Bindra, who passed it on to Ms Haralambopoulos.
Ms Bindra gave Ms Haralambopoulos a template letter which referred to a disciplinary meeting scheduled for 8 March 2017. Ms Bindra accepted, as did Ms Haralambopouos, that the letter should not have referred to a disciplinary meeting, because the matter was still in the investigative stage, and it had not been established at that point that there was any conduct requiring a disciplinary response.
Ms Shum emailed Ms Bindra on 6 March 2017 to say that Ms Wattegamage had displayed rude manners towards the supervisor[8], namely, Ms Shum. This may have been a reference to Ms Wattegamage standing up during the team meeting on 28 February 2017 and looking as though she was going to leave the meeting.
[8] Exhibit AB-4 to the affidavit affirmed by Amandeep Bindra on 21 September 2018.
On 28 March 2017, Ms Bindra emailed Ms Shum asking her not to involve Mr Lee in the dispute as he was on extended sick leave and suffering from stress. However, Ms Shum did contact Mr Lee a number of times.
On 29 March 2017, Ms Shum emailed Ms Bindra complaining about aspects of her pay.
On 13 May 2017, Ms Shum sent Mr Heeney a letter saying Ms Wattegamage and Ms Bindra had made false allegations against her, Ms Shum. On 22 May 2017, Ms Shum wrote to Mr Heeney saying that SMRC had failed to action her complaints against Ms Bindra and Ms Wattegamage or take appropriate disciplinary action against them.
During May 2017, Mr Heeney consulted with Ms Bindra about a possible organisational restructure whereby Mr Lee’s role would be absorbed into a new role of Director Corporate Services, and elements of Ms Shum’s role would be distributed between Ms Wattegamage and Ms Mazie. In the proposed restructure, three roles were to be made redundant, namely, Ms Shum’s, Kate Lord’s and Chris Brooking’s. Kate Lord was the Quality and Risk Advisor and Chris Brooking was the Business Development Manager.
On 30 May 2017, Ms Bindra advised Ms Shum by email of her possible redundancy and asked her to discuss the matter with SMRC. Ms Shum lodged a complaint on 31 May 2017 against Ms Bindra for contacting her while she was on sick leave. Ms Shum declined the invitation to discuss the possible redundancy. Ms Shum made various other complaints about Ms Bindra and Mr Heeney.
Champa Wattegamage
Ms Wattegamage is the fifth respondent. She was and continues to be an Assistant Finance Officer at SMRC. She has worked in that position full-time since 2009. Ms Wattegamage reported directly to Ms Shum while Ms Shum was employed at SMRC.
On 28 February 2017, the finance team was under some pressure due to Mr Lee’s absence on sick leave. Ms Haralambopoulos had invited the finance team to contact her if they needed assistance. Ms Wattegamage advised Ms Shum in the morning that there was a problem with entering information in some spreadsheets. Ms Shum advised her to enter the information manually, which would have taken a lot of time.
Ms Shum invited Ms Wattegamage and Ms Mazie to a two hour meeting starting at 2pm on 28 February 2017. Among other things, Ms Wattegamage asked Ms Shum who would approve invoices in Mr Lee’s absence. Ms Shum said she could not help with the invoices and Ms Wattegamage should not ask Ms Haralambopoulos for help. Ms Wattegamage stood up at that point to leave the meeting. There is a dispute as to whether Ms Shum told her to sit down or whether she did so without being asked.
According to Ms Wattegamage, Ms Shum spoke to her in an angry and belittling manner during the meeting, and imposed unreasonable amounts of work on her. Ms Wattegamage said that she was stressed and had never been treated that way at work before. She said that she had chest pain that night and had difficulty sleeping.
On 1 March 2017, Ms Shum sent Ms Wattegamage and Ms Mazie an email relating to work which Ms Wattegamage said made her feel micromanaged. Also, Ms Mazie told Ms Wattegamage that she would be on leave the following week and would be unable to assist Ms Wattegamage.
Ms Wattegamage spoke to Ms Bindra on 1 March 2017 and made a formal complaint about Ms Shum concerning her aggressive and intimidating body language.
Also on 1 March 2017, Ms Shum emailed Ms Wattegamage saying that she was very disappointed[9] in Ms Wattegamage for having raised financial operations issues with Ms Haralambopoulos and saying that Ms Wattegamage had disrespected[10] the finance team meeting the previous day by threatening to walk out.
[9] Affidavit affirmed by Champa Wattegamage on 21 September 2018, paragraph 36.
[10] Affidavit affirmed by Champa Wattegamage on 21 September 2018, paragraph 36.
Ms Wattegamage went home sick on 1 March 2017 and did not attend work on 2 March 2017. On Friday 3 March 2017, Ms Shum and Ms Wattegamage were not at work and someone needed to process the staff pay. Mr Haralambopoulos rang Ms Wattegamage and asked her to come to work to attend to that task. Ms Wattegamage did so, but only stayed for about one hour.
On 6 March 2017, Ms Shum, while waving a document, asked Ms Wattegamage, Did you do this?[11] Ms Wattegamage assumed the document was her complaint about Ms Shum. Ms Wattegamage said that she had. Ms Wattegamage said that Ms Shum’s expression and manner were threatening and she felt threatened and sick.
[11] Affidavit affirmed by Champa Wattegamage on 21 September 2018, paragraph 42.
While Mr Lee and Ms Shum were both on extended sick leave, SMRC brought in Kelly Pollard to work as a crisis accountant. She continued in that role until December 2017.
As a result of the restructure in May 2017, the finance team consisted of:
a)the Director – Corporate Services, who was Rakesh Sharma from October 2017 onwards;
b)the Assistant Finance Officer, Ms Wattegamage; and
c)the Bookkeeper, Ms Mazie.
Ms Wattegamage continued in her role as Assistant Finance Officer and maintained that that was the structure of the finance team up to the time of the trial two years later, in May 2019.
Ms Wattegamage maintained that she made her complaint about Ms Shum in good faith and not because of any complaints Ms Shum had made. Ms Wattegamage said that she is not aware of any complaint brought by Ms Shum against her. Ms Wattegamage said that she was not involved in any decision to dismiss Ms Shum.
Travis Heeney
Travis Heeney is the sixth respondent. He was the Managing Director of SMRC from 1 May 2017 until 13 October 2017. He was appointed on a sixth month contract, but left a little early to start another job.
Mr Heeney said that he was told during recruitment that his role would include clarifying the structures and finances of SMRC. In his affidavit, Mr Heeney said that, upon commencement, he formed the view that SMRC was losing about $250,000 per year (paragraph 7), but later said that he was told that by an unspecified person (paragraph 26).
Also upon commencement, Ms Bindra told him about the complaints and external claims that had been made by Ms Shum and the complaint that Ms Wattegamage had made against Ms Shum.
On 13 May 2017, Ms Shum emailed Mr Heeney saying that Ms Wattegamage’s allegations against her were false, SMRC had failed to provide any proof of the allegations and Ms Shum reserved her rights to take legal action against SMRC for unsubstantiated false allegations and defamation.
On 15 May 2017, Mr Heeney replied, saying that the investigation into Ms Wattegamage’s complaint had been suspended until Ms Shum was fit to participate.
Also on 15 May 2017, Ms Shum replied to Mr Heeney by email saying that:
a)Ms Wattegamage, Ms Haralambopoulos and Ms Bindra had made false allegations against her;
b)SMRC was vicariously liable for their actions; and
c)her previous queries about her pay had not been resolved and she intended to complain to the Australian Taxation Office.
On 18 May 2017, Mr Heeney attended a conciliation at WorkCover to attempt to resolve Ms Shum’s WorkCover complaint. SMRC’s insurer had rejected Ms Shum’s WorkCover claim, presumably on the basis of information provided by SMRC. Ms Shum’s WorkCover claim was eventually settled at conciliation by SMRC’s insurer.
Also in about mid-May 2017, Mr Heeney attended a conciliation at the Fair Work Commission regarding Ms Shum’s anti-bullying application against Mr Oates, Ms Haralambopoulos, Ms Bindra, Ms Wattegamage and others. The conciliation did not resolve Ms Shum’s anti-bullying application on that day. However, she filed a notice of discontinuance in respect of it on or about 19 September 2017. By that time, the application had become otiose, as Ms Shum was no longer employed by SMRC. The anti-bullying application remained on foot during May 2017 when Mr Heeney said he decided to make Ms Shum’s position redundant, along with Ms Lord’s and Mr Brooking’s.
As mentioned above, Ms Shum was Team Leader - Finance, Ms Lord was the Quality and Risk Advisor and Mr Brooking was the Business Development Manager. Mr Heeney estimated that making the three positions redundant would save SMRC $250,000 per year.
However, Mr Heeney also proposed to create one new position, being, Coordinator Business Improvement, and rebadge one position, being Mr Lee’s position of Corporate Services Manager so that it became Director of Corporate Services. The new position of Coordinator Business Improvement was forecast to cost the SMRC about $88,000 (exhibit 11).
Mr Lee’s role, which had been Corporate Services Manager, became the role of Director of Corporate Services, and was filled by Rakesh Sharma from October 2017 onwards, as Mr Lee had resigned from SMRC in August 2017. Ms Shum’s role disappeared. Ms Wattegamage and Ms Mazie began to report directly to the Director of Corporate Services, who was required to have accounting qualifications.
On 25 May 2017, Mr Heeney asked the Board to provide feedback on his proposed restructure. The proposal was as follows (CB2061):
ORGANISATIONAL RESTRUCTURE – INITIAL PROPOSAL
Dear Colleagues,
Following the recent discussions in relation to the organisation needing to channel its resources and infrastructure to focus on areas of priority, we are proposing to make some slight changes to our organisational structure.
The new structure will enable us to ensure corporate systems are rigorous and able to respond to changing needs of the organisation. Moreover, the structure will create efficiencies and effectiveness within our organisation and importantly for our external service delivery.
The decision to introduce change in the organisation has been brought about by a number of factors, which include;
·Recent events which highlighted the need to build greater rigour and transparency in critical support areas of the organisation.
·The need to channel our resources to enhance sustainability and viability of our organisation [.]
·A focus on business improvement to ensure we are supporting service delivery in a contemporary manner.
·Positioning our organisation to be well placed for any future composition.
It is pertinent to recognise that with any change, there can be a level of apprehension, especially in circumstances like this where the change has direct impact on resources and staffing. This decision has not been made lightly and I hope you can appreciate, on this occasion, change is inevitable due to the pressures placed on us to ensure the long term viability of the Southern Migrant and Refugee Centre.
This change in structure is being proposed to support the long term viability of Southern Migrant and Refugee Centre, and is in no way a reflection on the quality of work or commitment of any employee being affected. Further to this, we are committed to maintaining employment wherever possible, and as such every reasonable effort will be made to redeploy an employee whose position may be made redundant. In summary the changes consist of:
·Removing the position of Business Development Manager
·Removing the position of Quality and Risk Advisor
·Removing the position of Team Leader Finance
·Introducing a position of Coordinator Business Improvement (12 month in the first instance)
·Retaining an allocation of funds to improve business systems
The proposed new structure is attached. At this stage we will commence a short period of consultation where all employees will have the opportunity to provide feedback on the proposal. The consultation process will involve staff briefing session in addition to staff having the option of providing direct feedback to Travis Heeney, Managing Director or Aman Bindra Human Resources Advisor.
The timeframes for the change process are outlined in the table below:
Activity
Timeframe
Individual meetings with potentially impacted staff
31st May 2017
All staff announcement and proposed structure
31st May 2017
Initial consultation and feedback
31st May 2017 –
7th June 2017Revised proposal based on feedback received
12th June 2017
Transition arrangements for impacted staff
12th June 2017 – 16th June 2017
External advertising/recruitment for unfulfilled positions
19th June 2017
Mr Heeney did not receive any response from the Board.
On 30 May 2017, Ms Bindra sent Ms Shum an email explaining the proposed restructure and asking her to attend a meeting to discuss it. Later that day, Mr Heeney was informed that Ms Shum intended to complain about Ms Bindra contacting her while she was on leave, and that Ms Shum had said that she would not attend the consultation meeting.
On 31 May 2017, Mr Heeney sent Ms Shum, and other staff, an email attaching the proposal for restructure in the same terms as he had sent to the Board on 25 May 2017.
Ms Shum did not take any steps to consult about the restructure. Although the timeframes provided for a revised proposal based on feedback, there was no suggestion that Mr Heeney’s original proposal was modified in any way.
Mr Heeney wrote to Ms Shum by email on 14 June 2017 in the following terms (CB1138):
Dear Lai (Genie)
Restructure
I refer to my email correspondence to you dated 31 May 2017, attaching a letter about proposed changes to SMRC’s structure.
As outlined in the correspondence, consultation with employees of SMRC affected by the proposed changes took place between 31 May 2017 and 7 June 2017.
SMRC invited you, as an affected employee, to provide feedback on the proposed changes, either in a meeting, via telephone or in writing. You did not provide any feedback.
SMRC has now carefully considered all feedback provided with respect to the proposed changes. As you did not provide feedback, SMRC has made a decision with respect to the proposed changes without your input.
I am writing to inform you that SMRC has decided to proceed with the proposed restructure. This will include your position becoming redundant, after Monday, 19 June 2017.
Redeployment Opportunities
SMRC has considered whether any suitable redeployment opportunities exist for you within the organisation. Having carefully considered its operational requirements, SMRC considers that there are no suitable redeployment opportunities for you.
However, the following two positions will be available:
Coordinator Business Improvement; and
Director – Client Services
Although, based on the information currently available to it, SMRC considers that neither of these positions is suitable for you, it would be happy to consider an expression of interest from you in either (or both) of them if you would like to make one. To this end, I enclose copies of the position descriptions and an expression of interest form.
If you wish to express interest in either or both positions, please send HR Advisor the completed expression of interest form/s by Sunday, 18 June 2017 at [email protected]. Any expression of interest should be accompanied with a covering letter summarizing your response to the selection criteria and your suitability for the role and a copy of updated resume detailing your qualifications and experience.
We will notify you of the outcome on Monday, 19 June 2017.
If you do not express interest in either of these positions, or your expression of interest is not successful, your employment with SMRC will terminate on Monday, 19 June 2017 and you will be paid in lieu of notice.
Support
We understand that this may be a difficult time for you and encourage you to access the support offered through SMRC’s Employee Assistance Program on 03 …
If you have any questions, please do not hesitate to contact me on 03 …
Ms Shum did not express an interest in either of those jobs mentioned. They were not accounting positions.
Mr Heeney sent that email on 14 June 2017, which was a Wednesday. The email required Ms Shum to express an interest by Sunday, 18 June 2017, which was four days later.
Mr Heeney sent Ms Shum another email on 19 June 2017 in the following terms (CB1972):
Dear Lai (Genie)
We refer to the letter to you dated 14 June 2017 and the opportunity given to you to express interest in any available positions on the new structure by 18 June 2017.
In absence of any Expression of Interest from you and after consideration, the Management of SMRC has determined that at present there are no viable alternate positions available in which to offer you continuing employment.
You are hereby given payment in lieu of 1 week notice that your employment with SMRC will terminate on 19th June 2017. All your unused annual leave entitlements will be paid along with your final payment. The payment will be transferred to your bank account within a week. Your final payslip will be sent to your personal email address.
We understand that times of change can be challenging, and we encourage you to use the support offered to work through your options. We have arranged for access to Career Developments and Transition support through Davidsons. To make your first appointment please contact …
Please liaise with Aman Bindra (HR Advisor) at [email protected] to return all SMRC properties (such as building access card and keys) or to collect your personal properties from the office.
We regret that it is necessary to take this action, and would like to thank you for the dedicated service you have given SMRC. We wish you well in your future endeavours.
Yours sincerely,
Travis Heeney
Managing Director
Mr Heeney maintained that, when considering the redundancies, he was not aware of and did not consider the two undated reports given by the crisis accountant, Ms Pollard, to the Board, one on about 16 April 2017 and one a little later. Those reports made some scathing attacks on the competence of the finance team and the systems it had used: CB2150 to CB2154.
Ms Shum’s queries about her pay were resolved:
a)in August 2017, with Ms Shum being paid:
i)$12.14 for 0.31 hours of personal leave; and
ii)$209.24 for tax;
and with SMRC admitting liability for those amounts;
b)in December 2017, with Ms Shum being paid $104.89 for salary packaging benefits, and without SMRC admitting liability for that amount.
Mr Heeney denied that he made Ms Shum’s position redundant, or took any other action against her, for any prohibited reason, and maintained that he had made Ms Shum’s position redundant only to streamline SMRC’s operations and ensure its financial viability.
Breach of contract claim
Ms Shum alleged that she was dismissed in breach of her contract of employment. She said that her contract was for a fixed term of two years, and it was breached because she was dismissed after less than one year. She also said that, by implication, the contract was for ongoing employment, because other staff at SMRC who had fixed term contracts routinely had their employment extended indefinitely.
The respondents said that Ms Shum’s contract was for a maximum period of two years and SMRC was entitled to terminate her employment when it did.
An online advertisement for the position Ms Shum was appointed to included the following (CB316-7):
7/10/17 in original
Southern Migrant and Refugee Centre Team Leader – Finance Contract in Melbourne VIC
…
Posted 1 year ago
…
Position:
Team Leader – Finance
…
Full time, 2 years fixed term, Dandenong location
(emphasis added)
As can be seen, the advertisement provided in the court book had initially been posted in 2016.
Ms Shum’s contract of employment relevantly contained the following (CB318-22):
EMPLOYMENT CONTRACT
Date: 27th May 2016
1.Staff member’s Name and address
Lai Kam (Genie) Shum
…
2.Details regarding Position
2.1 Commencement date: 21st June 2016
2.2 End Date: 20th June 2018
2.3 Position Title: Team Leader - Finance
…
6.Probation
Your appointment will be subject to a six (6) months probationary period, during which either party may terminate this Contract, with the provision of 1 week notice.
…
13. Termination of employment
…
13.2Except in the case of termination for breach of the Code of Conduct, or other serious misconduct, SMRC may terminate your employment by giving you the required period of notice as set out below, or such shorter period as is mutually agreed.
Employee’s period of continuous service with the employer at the end of the day the notice is given
Notice period
Not more than 1 year
1 week
More than 1 year but not more than 3 years
2 weeks
More than 3 years but not more than 5 years
3 weeks
More than 5 years
4 weeks
If you are over 45 years old and have completed at least 2 years’ service
Extra one week
…
13.4If the SMRC terminates your employment, the SMRC may, at its entire discretion, pay you in lieu of all or some of the notice period you otherwise would have worked.
…
14.General
This Employment Contract contains all the terms agreed to by the parties regarding the subject matter of your employment and supersedes any prior agreements, understandings or arrangements between them whether oral or in writing and no representations, undertakings or promise shall be taken to have been given or to be implied from anything said or written in negotiations between the parties prior to this Contract except as set out in the Contract. No variations or amendment to this Employment Contract shall be effective or form part of the agreement between the parties unless such variation or amendments is in writing and signed by the parties.
15.Policies and Procedures
During your employment at SMRC you are required to adhere to all SMRC policies and procedures, including the Code of Conduct as amended from time to time.
[signed by Ms Bindra on behalf of SMRC, 21 June 2016]
16. Acceptance of Employment Contract
I have read and understood the above terms and conditions of my Employment Contract and accept them with the position of Team Leader - Finance …
[signed by Ms Shum, 21 June 2016]
Although the contract had a commencement date of 21 June 2016 and an end date of 20 June 2018, it also expressly stated in clause 13 that Ms Shum’s contract could be terminated on one week’s notice, if she had been employed for less than 12 months, or two weeks’ notice, if she had been employed for more than one year but less than three, on the day that notice was given.
The online advertisement said that the position was for a fixed term. However, the contract itself, which Ms Shum signed and which she said that she understood, allowed for termination on notice within the two year period for which the contract said it applied. Clause 14 of the contract expressly stated that it superseded anything stated in negotiations. That must be taken to include anything stated in the advertisement for the position.
Nevertheless, Mr Lee gave evidence to the effect that the selection panel, consisting of him and Ms Bindra, and Ms Shum, all understood at the recruitment interview that the position was ongoing and not a maximum term contract (CB223, paragraph 8). Ms Bindra did not address this question in her affidavit evidence but did concede in cross-examination that many staff at SMRC had fixed term contracts which were extended if further funding for their positions became available.
However, that frequent arrangement does not override the clear words of the written contract, which provided for termination on notice. The possibility of Ms Shum’s position being extended, if further funding became available, did not arise, because her position was terminated prior to its end date. SMRC was within its rights to terminate Ms Shum’s contract of employment on the giving of the required period of notice.
The notice of termination
Ms Shum argued that she was not given notice of termination because she did not read the email dated 19 June 2017 by which she was purportedly given notice until 26 June 2017. The respondents submitted that Ms Shum’s claims in that regard should not be believed, and, in any event, the question was whether the email was sent, not whether Ms Shum read it.
The date of 19 June 2017 was significant, because Ms Shum’s contract started on 21 June 2016. The last day for SMRC to give her one week’s notice was 20 June 2019. After that, SMRC would have been obliged to give her two weeks’ notice.
Mr Heeney sent Ms Shum an email on 19 June 2017 saying that her position would be terminated immediately, and she would be paid one week’s salary in lieu of notice. Payment in lieu of notice was authorised by clause 13.4 of the contract. The email said:
From: Travis Heeney …
Sent: Monday, 19 June 2017 2:39 PM
To: Genie Shum; [email protected]
Cc: Aman Bindra
Subject: Please only open when able to do so
Dear Genie,
Please find attached correspondence.
Yours sincerely,
Travis Heeney …
The attached correspondence is set out above.
Ms Shum said that she found the email dated 19 June 2017 in her spam folder on 26 June 2017, after receiving an email on that day from Ms Bindra. Ms Shum said that she did not open the email dated 19 June 2017 from Mr Heeney, because she was feeling depressed, and the subject line of the email said:
Please only open when able to do so.
The respondents said that Ms Shum’s claim to have not read the email dated 19 June 2017 until after 26 June 2017 should not be believed. The respondents noted that Ms Shum responded on 21 June 2017 to Mr Heeney’s email dated 19 June 2017 by writing to the Board of SMRC as follows:
Subject: Attn: Board of SMRC
From: Genie Shum
Date: Wednesday, 21 June 2017, 10:56am
To: Board of SMRC
It appears that your newly appointed managing director has no regards to workplace legislation. I refer to my polite request to SMRC for not disturbing me during my sick leave (certified as no work capacity) until further notice. Travis Heeney keeps on bombarding my home email with unwanted work emails without my consent, which exacerbate my work-related related stress symptoms. The emails go to the spam folder, unread and will be trashed in 30 days. It is obvious harassment and bullying. The evidence is shown underneath.
This is my formal complaint against Travis Heeney. Of course, it will be used in court proceedings against SMRC.
Thanks and regards,
Genie Shum
(emphasis added)
The evidence Ms Shum referred to in her email dated 21 June 2017 was a screen shot of her spam folder, showing Mr Heeney’s emails dated 14 and 19 June 2017.
The polite request Ms Shum referred to may have been her email dated 11 April 2017 to Ms Haralambopoulos, which was in the following terms (CB617):
From: Genie Shum
Sent: Tuesday, April 11, 2017, 2:02PM
To: Aman Bindra; Despina Haralambopoulos
Subject: Re: Emailing Jacob in your emails
Hi Despina,
While I am in the process of workcover claims, Aman has been bullying me with emails. It is again a breach of duty of care to provide a safe and healthy workplace for staff.
As I have health and legal issues, I do not want any bullies from SMRC to contact me by whatever means. If SMRC would like to communicate with me, please use another staff or party.
Thanks and regards,
Genie
Alternatively, the polite request may have been Ms Shum’s email dated 31 May 2017 to Mr Heeney in which she said (CB621):
From: Genie Shum
To: Travis Heeney
Sent: Wednesday, 31 May 2017, 12:34
Subject: Re: Answer to your Superannuation query
Dear Travis,
Your emails are offensive. They exacerbate my work-related stress symptoms.
During the duration of my certificates of incapacity, I do not give consent to certain SMRC staff (namely Travis, Aman, Champa, all board members) and ex staff (Despina) to contact me for any work issues by any means. SMRC has no right to disturb my recovery. Chris [Brooking] is my chosen contact person and he agrees in writing. You have no authority to interfere with my contact person without his knowledge or agreement.
Whatever adversary actions SMRC chooses to take against me, I strongly object and appropriate legal actions will follow. All SMRC’s correspondences will be used in court proceedings.
Despina, Aman and Champa have made false allegations against me, which are serious misconduct. You, as the Managing Director, knowingly and recklessly support their misleading and deceptive statements.
With immediate effect and until further notice, the certain SMRC staff mentioned above are not allowed to send emails to me. Their emails will be blocked and spammed.
Thanks and regards,
Genie
In any event, Ms Shum conceded in cross-examination that she had not found Mr Heeney’s email in her spam folder as late as 26 June 2017, and that her affidavit and oral evidence were wrong when they said otherwise. She acknowledged that Mr Heeney’s email was in her spam folder, to her knowledge, on 21 June 2017, when she sent a screenshot of the spam folder to the chairperson of SMRC.
Ms Shum said in an email to Mr Heeney on 6 July 2017 that she had only seen the letter dated 19 June 2017 which was attached to the email dated 19 June 2017 for the first time when Mr Heeney resent it to her on 6 July 2017. When cross-examined about this, Ms Shum was evasive. She maintained that she had not read Mr Heeney’s email of 19 June 2017 on 21 June 2017 or earlier.
In addition, in relation to her credibility, after much prevarication, Ms Shum denied in cross-examination that she had telephoned Mr Lee while he was on sick leave.[12] She also said that Mr Lee rang the finance team every day.[13] Ms Shum eventually conceded that, at around 28 February 2017, she emailed and telephoned Mr Lee every day.[14] Mr Lee said in cross-examination very definitely that Ms Shum rang him, and he did not ring her.[15]
[12] Tr. p.153, l.21.
[13] Tr. p.200, l.30.
[14] Tr. p.201, l.4.
[15] Tr. p.376, l.10-25.
I prefer Mr Lee’s evidence in this regard. He was called by Ms Shum to give evidence. He had no reasons to lie. On the other hand, Ms Shum was arguing that she was bullied by work people contacting her when she was on sick leave, so it did not sit well for her to admit she had frequently contacted Mr Lee while he was on sick leave. Mr Lee’s evidence also accords with Ms Shum’s eventual concession. I consider that Ms Shum lied to the court when she denied that she telephoned Mr Lee while he was on sick leave.
It is hard to believe that Ms Shum was simply mistaken about the date when she first saw the emails dated 14 and 19 June 2017. The date was perceived as critical by Ms Shum. I consider that her evidence that she did not see the emails dated 14 and 19 June 2017 until 26 June 2017 was deliberately false.
It is theoretically possible that Ms Shum did not see the email dated 19 June 2017 until 21 June 2017, when she sent a screenshot of her spam folder to SMRC, and did not read the attachment until much later.
However, I do not consider that Ms Shum was at all credible in this regard. I consider that she saw the email from Mr Heeney and read the attachment on 19 June 2017. I do not consider that Mr Heeney’s advice to Ms Shum to open the attachment when she was able to do so delayed her in reading the attachment.
As such, Ms Shum was sent and read the notice of termination on 19 June 2017. Therefore, the notice of termination was effective. There was no breach of contract in this case. It is therefore unnecessary to explain why the notice did not have to be read for it to be effective. In any event, I accept the respondents’ submission that, as a general rule, an employee has no right to refuse communications from his or her employer. It is immaterial whether Ms Shum set up her email to direct certain emails to her spam folder, or she placed the emails of 14 and 19 June 2017 in her spam folder for the purposes of sending a screen shot of the spam folder to the chairperson of the SMRC.
National Employment Standards
Ms Shum said that her dismissal was in breach of the National Employment Standards. However, the notice requirements in Ms Shum’s contract are substantially the same as the minimum requirements under s.117 of the Act. Under s.121(1)(a) of the Act, SMRC was not required to give Ms Shum redundancy pay because her period of continuous employment with SMRC was less than 12 months. Sections 117 and 121 of the Act fall within the National Employment Standards. This ground is without merit.
The Award
Ms Shum said that SMRS did not follow the termination and dispute resolution procedures specified in the Social, Community, Home Care and Disability Services Industry Award 2010 (“the Award”) (CB1245). The respondents accepted that the Award applied to Ms Shum. The Award provided in relation to dispute resolution, termination and redundancy as follows:
9.Dispute resolution
9.1In the event of a dispute about a matter under this award, or a dispute in relation to the NES, in the first instance the parties must attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, the parties will endeavour to resolve the dispute in a timely manner by discussions between the employee or employees concerned and more senior levels of management as appropriate.
9.2If a dispute about a matter arising under this award or a dispute in relation to the NES is unable to be resolved at the workplace, and all appropriate steps under clause 9.1 have been taken, a party to the dispute may refer the dispute to the Fair Work Commission.
9.3The parties may agree on the process to be utilised by the Fair Work Commission including mediation, conciliation and consent arbitration.
9.4Where the matter in dispute remains unresolved, the Fair Work Commission may exercise any method of dispute resolution permitted by the Act that it considers appropriate to ensure the settlement of the dispute.
9.5An employer or employee may appoint another person, organisation or association to accompany and/or represent them for the purposes of this clause.
9.6While the dispute resolution procedure is being conducted, work must continue in accordance with this award and the Act. Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by the employer to perform work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.
…
11.Termination of employment
11.1Notice of termination is provided for in the NES.
11.2Notice of termination by an employee
The notice of termination required to be given by an employee is the same as that required of an employer except that there is no requirement on the employee to give additional notice based on the age of the employee concerned. If an employee fails to give the required notice the employer may withhold from any monies due to the employee on termination under this award or the NES, an amount not exceeding the amount the employee would have been paid under this award in respect of the period of notice required by this clause less any period of notice actually given by the employee.
11.3Job search entitlement
Where an employer has given notice of termination to an employee, an employee must be allowed up to one day’s time off without loss of pay for the purpose of seeking other employment. The time off is to be taken at times that are convenient to the employee after consultation with the employer.
12.Redundancy
12.1Redundancy pay is provided for in the NES
12.2Transfer to lower paid duties
Where an employee is transferred to lower paid duties by reason of redundancy, the same period of notice must be given as the employee would have been entitled if the employment had been terminated and the employer may, at the employer’s option, make payment instead of an amount equal to the difference between the former ordinary time rate of pay and the ordinary time rate of pay for the number of weeks of notice still owing.
12.3Employee leaving during notice period
An employee given notice of termination in circumstances of redundancy may terminate their employment during the period of notice. The employee is entitled to receive the benefits and payments they would have received under this clause had they remained in employment until the expiry of the notice, but is not entitled to payment instead of notice.
12.4Job search entitlement
(a)An employee given notice of termination in circumstances of redundancy must be allowed up to one day’s time off without loss of pay during each week of notice for the purpose of seeking other employment.
(b)If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, the employee must, at the request of the employer, produce proof of attendance at an interview or they will not be entitled to payment for the time absent. For this purpose a statutory declaration is sufficient.
(c)This entitlement applies instead of clause 11.3.
In relation to dispute resolution, Ms Shum did not specify precisely which dispute SMRC failed to address under clause 9 or precisely how SMRC failed to comply with clause 9. In any event, clause 9.1 requires both parties to attempt to resolve any dispute by discussions. If clause 9 was not complied with, Ms Shum was also responsible for that failure. Moreover, SMRC did attempt to deal with some issues by discussion, but Ms Shum declined to engage. I am unable to discern any actionable failure by SMRC to comply with the dispute resolution procedures.
As can be seen, the Award adopts the NES provisions for notice of termination and redundancy pay. As discussed above, there was no breach of the Award in relation to those matters.
Code of Conduct
Ms Shum said that her contract was breached because she was dismissed in contravention of SMRC’s Code of Conduct (CB1711). Ms Shum was not clear about the nature of the contravention. However, the code does require staff to demonstrate respect by abstaining from unlawful behaviour such as discrimination, harassment and bullying.
However, Ms Shum’s contract of employment specifies in clause 14 that the contract itself contains all of the terms of the contract. That is, the code was only incorporated in the contract to the extent the contract said so. By clause 15, the code requires Ms Shum to adhere to the code. There is nothing in the contract that requires SMRC to adhere to the code. Consequently, SMRC could not have breached Ms Shum’s contract of employment by failing to comply with the code.
In any event, the code does not say that a person cannot be dismissed if there has been any discrimination, harassment or bullying. On the other hand, s.351 of the Act prohibits dismissal on certain discriminatory bases and s.789FF of the Act empowers the Fair Work Commission to issue orders to stop bullying. Ms Shum’s claims in these regards are addressed below.
Human Resources Policies and Procedures
Ms Shum said that her contract was breached because she was dismissed in contravention of SMRC’s Human Resources Policies and Procedures.
By clause 15, the code requires Ms Shum to adhere to SMRC’s policies and procedures. There is nothing in the contract that requires SMRC to adhere to those policies and procedures. Consequently, SMRC could not have breached Ms Shum’s contract of employment by failing to comply with them.
Occupational Health and Safety
Ms Shum said that SMRC breached her contract of employment because SMRC failed to comply with occupational health and safety requirements to provide a safe and healthy workplace. Ms Shum’s contract of employment did not impose occupational health and safety obligations on SMRC. Consequently, occupational health and safety issues cannot be addressed under the rubric of breach of contract.
I assume that, when she mentioned occupational health and safety issues, Ms Shum meant bullying. Ms Shum raised bullying as a separate issue. That is dealt with below.
Whether the dismissal was for a prohibited reason
a. Legislation
Ms Shum’s dismissal was adverse action as defined in the Act. Subsection 342(1) of the Act provided as follows:
Meaning of adverse action
(1)The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...Column 2
if ...1 an employer against an employee the employer:
(a) dismisses the employee; …
However, the pertinent question is whether Ms Shum was dismissed for one or more prohibited reasons. Subsection 340(1) of the Act provided as follows:
Protection
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.
Section 341 of the Act provided as follows:
Meaning of workplace right
(1)A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c)is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee – in relation to his or her employment.
Meaning of process or proceedings under a workplace law or workplace instrument
(2)Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a)a conference conducted or hearing held by the FWC;
(b)court proceedings under a workplace law or workplace instrument;
…
(j)dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k)any other process or proceedings under a workplace law or workplace instrument.
…
Section 360 of the Act provided as follows:
Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Section 361 of the Act provided as follows:
Reason for action to be presumed unless proved otherwise
(1)If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2)Subsection (1) does not apply in relation to orders for an interim injunction.
Section 389 of the Act provided as follows:
Meaning of genuine redundancy
(1)A person’s dismissal was a case of genuine redundancy if:
(a)the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b)the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2)A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a)the employer’s enterprise; or
(b)the enterprise of an associated entity of the employer.
b. Authorities
The leading case on adverse action is Board ofBendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; (2012) 290 ALR 647; (2012) 86 ALJR 1044; (2012) 220 IR 445; [2012] HCA 32. In that case, French CJ and Crennan J said:
42.Determining why a defendant employer took adverse action against an employee involves consideration of the decision-maker's "particular reason" for taking adverse action (s 361(1)), and consideration of the employee's position as an officer or member of an industrial association and engagement in industrial activity ("union position and activity") at the time the adverse action was taken (ss 342, 346(a), 346(b), 347 and 361(1)).
43.Clearly a defendant employer interested in rebutting the statutory presumption in s 361 can be expected to rely in its defence on direct testimony of the decision-maker's reason for taking the adverse action. The majority in the Full Court correctly rejected an argument put by the respondents that the introduction of the statutory expression "because" into a legislative predecessor to s 346http:// - , in place of the previous statutory expression "by reason of", rendered irrelevant the state of mind of the decision-maker.
44.There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression "because" in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?".
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. 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-make 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.
(citations omitted)
Also in Barclay, Gummow and Hayne JJ said at [104]:
In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity [or other protected activity] comprised "a substantial and operative" reason, or reasons including the reason, for the employer's action and that this action constitutes an "adverse action" within the meaning of s 342.
Significantly, s.361 of the Act creates a statutory presumption that adverse action was taken for a prohibited reason, but that presumption may be rebutted by evidence. Also significantly, s.360 of the Act recognises that there may be multiple reasons for a particular action. It is sufficient for an applicant to establish that any one of the reasons for the adverse action was a prohibited reason, provided that it was a substantial and operative reason.
In CMP Manufacturing Pty Ltd vBarbieri [2018) 275 IR 465; [2018] FCA 622, Bromberg J discussed the concept of redundancy at [12] as follows:
The term “redundant” is not a legal term of art and what is meant by it is often dependent upon context: Amcor Ltd v Construction Forestry Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 (Amcor) at [14] (Gummow, Hayne and Heydon JJ). The usual case is where the duties which constitute a particular position are no longer required by the employer to be performed by anybody. That may arise because the need or demand for the performance of those duties has diminished to such an extent that there is no longer a need for their performance at all. Alternatively, a restructuring or re-ordering of the duties or tasks required to be performed by employees within a particular business may result in a position or positions becoming redundant because the bundle of duties that did constitute a particular position are no longer required to be performed by anybody as a bundle of duties constituting the particular position. For example, where the duties of a position are distributed to other positions making the first position redundant, or where the duties of a position are so changed or altered that a different position is created the result of which is that the original position is redundant: see R v Industrial Commission of SA; ex parte Adelaide Milk Cooperative Ltd (1977) 16 SASR 6 at 8 (Bray J) and 26-27 (Bright J); Termination Change and Redundancy Case (1984) 8 IR 34 at 55-56; Jones v Department of Energy and Minerals (1995) 60 IR 304 at 305 and 308 (Ryan J); Amcor at [43], [44], [52] [54] (Gummow, Hayne and Heydon JJ).
c. Mr Heeney’s affidavit evidence
In the present case, Mr Heeney said that he and he alone decided that Ms Shum’s, Ms Lord’s and Mr Brooking’s positions were redundant, and he was the person who decided to terminate their positions.
Mr Heeney explained his decision to make the three positions redundant in his affidavit in the following terms:
26.As noted above, when I commenced employment with SMRC on 1 May 2017, SMRC was running at a large loss. I was told the figure was in the range of $250,000. A key priority for me was to review the organisation and implement strategies to ensure the ongoing viability of the organisation. I was keen to assess the structure, the finances and the accreditation issues [.]
…
Rationale for redundancies, renaming and new roles
40.I decided that three (3) roles should be made redundant and one new role should be created in the organisational structure.
41.Ms Shum’s role, Team Leader – Finance, was one of the roles made redundant. My primary reason for making this position redundant was because, in my view, the Finance Team was over-resourced. It did not need a team leader sitting between two (2) competent Finance Officers and a senior manager.
42.At the time, the SMRC was a small organisation with an annual turnover of approximately five (5) million dollars. In my view, an organisation of this size did not require a Finance Team comprising four (4) people, with a middle manager and senior manager. I was of the view that the organisation needed a ‘Head of Finance’ type role and one to two bookkeeping roles. Such a structure would be cheaper and more efficient.
43.Moreover, the Team Leader – Finance did not have a strong leadership or managerial function as it only had two direct reports. I decided this intermediary role was not really required. In my view and based on my experience, this was one of the managerial roles that could be “flattened out”. By that, I mean they could be removed from the management structure.
44.I considered that some of the duties performed by the Team Leader – Finance could be absorbed into a broader, more senior position. As part of this, I redesigned the Manager Corporate Services role (held by Mr Lee at the time) into a Director Corporate Services role. I required the person in this role to have an accounting qualification. The two Finance Officers (Champa and Perla) would then report directly to this role.
45.I formed the view that the remainder of the duties that had previously been performed by the Team Leader – Finance (Ms Shum) could be absorbed into the two junior roles in the Finance Team.
46.Prior to my commencement at SMRC, the board explained to me that Ms Shum and Mr Lee had both gone on leave and Ms Kelly Pollard had been temporarily engaged as a “forensic accountant” (the board’s terminology) to provide accounting support to SMRC in Ms Shum’s and Mr Lee’s absence.
47.This meant that, from early March 2017, SMRC had experienced the running of the Finance Team with Ms Pollard performing a ‘head of finance’ type role and without a ‘Team Leader’ type role (usually performed by Ms Shum). Ms Pollard and the two Finance Officers had been coping with the workload [.] This strongly suggested to me that the flattened structure I was contemplating could work.
48.I also proposed that the roles of Quality and Risk Advisor (held by Kate Lord) and Business Development Manager (held by Chris Brooking) be made redundant as part of the restructure.
49.As stated above, by making these three (3) roles redundant, I had estimated SMRC would save approximately $240,000 per year.
50.I proposed that a new position, Coordinator Business Improvement be created. This role was responsible for improving systems and processes within the organisation. I thought this was necessary to address the current issues facing the organisation and ensure its stability in the future. I also considered, with the assistance of Ms Bindra, what systems (such as software or HR) could be improved to allow the organisation to achieve greater efficiencies.
51.I also proposed that the new Director Client Services role be created, which could incorporate all client services functions, including those duties that [were] being performed by the Acting Programs Manager as well as the Diverse Care portfolio.
d. Mr Heeney’s cross-examination
In cross-examination of Mr Heeney, the following exchange occurred (Tr. 422):
MS SHUM:So in your proposal, were there strategic plans?
MR HEENEY: My proposal was quite narrow in its approach, and it saw three roles to be made redundant and a redirection of those funds. The strategic plan of the organisation was not affected by the restructure.
MS SHUM:How did you arrive at the redundancy of three positions based – what are the basis?
MR HEENEY: I think in one of the documents we’ve already discussed this morning, there was a need for the organisation to reduce its expenditure to refocus its operations on greater efficiencies, and as a result of that, I identified three roles which could be made redundant to achieve that.
MS SHUM:How did you identify the roles?
MR HEENEY: I identified a – I will go through the three roles. So the business development manager, I perceived that that role at that point in time was not one which was creating revenue for the organisation and as such needed to refocus on making the organisation more efficient, so I proposed a new role. The team leader of finance, my assessment was that Ms Shum had not been present in the workplace for a period of time, nor had Mr Lee, that there had been one officer replacing those two staff, to which the operations of the organisation had been quite effective. And the third role, the role was originally intended to deliver an accreditation process, to which it had not. So again, I made the decision that that role was not needed moving forward, and as such, I resolved that the three roles could be declared redundant.
Mr Heeney noted that Ms Lord had lodged an unfair dismissal claim following her redundancy which was settled on a confidential basis. Ms Lord said in her evidence that she lodged the unfair dismissal claim not so much because of the redundancy, but because she was not offered one of the redeployments that were available.
Mr Heeney was asked about the statement at paragraph 33 of his affidavit that:
I told the board that making these roles redundant will lead to costs savings of around $250,000.
When asked how he arrived at that figure, Mr Heeney said:
I assume at the time there were costings provided to the overall cost of the three roles.
When asked what he actually recalled, as opposed to what he assumed, Mr Heeney said:
At the time, I would have asked the – either the HR or payroll officers the total cost of the three roles, to which would have provided that – that figure.
When asked what he actually recalled, as opposed to what he thought would have happened, Mr Heeney said:
I do recall having conversations with Ms Bindra at the time regarding the contract terms and the – which would have included salary. So through that, yes, I would have been provided the – the costings of the three roles.
When asked if there was any documentation to support the cost savings, he said that he was given documents through Ms Bindra, but the documents had not been provided to the court.
When Mr Heeney was told that the total salary of the three redundant staff was not actually a cost saving, because he recruited other staff, Mr Heeney said that the salaries saved by the redundancies were a cost saving that was to be reinvested in the organisation as he saw fit.
Ms Haralambopoulos said in her statement (CB1010) in response to Ms Shum’s WorkCover claim that:
[Ms Shum] has had the following claims: In 1997 [Ms Shum] had a stress claim against a former Employer but I do not know who that was. She has indicated in her claim form the number of a previous claim as 2597/2012. I do not know if this refers to the same claim. In her pre-employment statement she stated that she did not have any pre-existing condition.
In relation to the second allegedly untrue representation, Ms Shum called for the production of her pre-employment statement. The respondents said that they were unable to produce it. I infer that it did not exist and has never existed. This casts doubt on the credibility of Ms Haralambopoulos’s evidence. I consider that Ms Shum did not say in a pre-employment statement that she had no pre-existing medical conditions because she did not make any pre-employment statement at all. The second allegedly untrue representation was untrue.
In relation to the third allegedly untrue statement, Ms Haralambopoulos said in her affidavit at [95] that:
I read the claim form. On the claim form, in response to the question “Have you previously had another injury/condition or personal injury claim that relates to this injury/condition?” Ms Shum wrote “yes”, followed by the numbers 2597/2012N. That was the basis of my opinion that Ms Shum had made a claim against a former employer in 1997. I did not have any further details about that earlier claim. I also recall Ms Bindra later telling me that SMRC’s worker’s compensation insurer, Allianz, confirmed that Ms Shum had made a previous WorkCover claim some time ago. No other details were disclosed. In her pre-employment statement Ms Shum stated that she did not have any pre-existing medical conditions.
The reference to the information from Ms Bindra is ambiguous, as it is unclear whether the previous claim was meant to be the 2597/2012 claim or a 1997 claim.
Ms Haralambopoulos was questioned about how she came to allege that Ms Shum made a stress claim in 1997. Ms Haralambopoulos firstly said that she did not refer to a specific stress claim in her statement. That is patently false, as her statement refers to a specific stress claim in 1997.
When questioned further, Ms Haralambopoulos said that Ms Shum had identified a previous specific claim in relation to stress in her WorkCover application. That was true. In her claim form (CB473), Ms Shum said she had a previous claim that related to stress being claim number 2597/2012.
Ms Haralambopoulos was asked which application referred to a claim in 1997. Ms Haralambopoulos thought it might have been in the Employer Injury Claim report at CB1708A. That document does not contain any reference to a claim by Ms Shum in 1997. Then Ms Haralambopoulos said that she saw a reference to a previous claim in Ms Shum’s application, or a medical certificate that Ms Shum had submitted.
Ms Haralambopoulos implied that the medical certificate with the reference to a claim in 1997 was somewhere amongst the five volumes of the court book. Ms Haralambopoulos then said that she would find it. She found CB473, which was Ms Shum’s WorkCover claim form. Ms Haralambopoulos then said (Tr. 661):
That is the report, and looking at the question:
Have you previously had another injury?
it says “yes” and there’s a claim number in 1997. So that is – that’s where – that’s the basis of where I’ve understood that there was a previous WorkCover claim. Now, the 1997, I’m not sure.
As can be seen, Ms Haralambopoulos initially maintained that CB473 referred to a claim number in 1997. It does not. It only refers to a claim in 2012. However, Ms Haralambopoulos later expressed some doubt about the 1997 claim.
When further pressed, Ms Haralambopoulos conceded that Ms Shum’s claim form at CB473 does not mention 1997. However, she claimed that she would have reported what she understood to be correct. She said that she would have made the statement on the basis of information that she had, but she did not know what that information was or where she got it from.
When it was put to Ms Haralambopoulos that it was untrue that Ms Shum had a previous claim in 1997, Ms Haralambopoulos said that Ms Shum’s claim form did not mention 1997, but it clearly said that she had a previous claim being claim 2597/2012. Ms Haralambopoulos then maintained that, in her statement, she was only referring to one previous claim (presumably being the 2597/2012 claim) and was not aware of any previous claim (presumably being the supposed 1997 claim).
However, that evidence does not sit well with Ms Haralambopoulos’s own statement to WorkCover, where she referred to the 1997 claim, then the 2012 claim, and then said:
I do not know if this refers to the same claim.
Ms Haralambopoulos, on a literal reading of her statement, suggested that Ms Shum may have had only one previous claim. However, given the time lapse between 1997 and 2012, there was a subtle implication in her statement that Ms Shum had had two previous stress claims. The evidence only supports Ms Shum having made one previous stress claim, which she frankly admitted on her WorkCover claim form.
When it was finally put squarely to Ms Haralambopoulos that Ms Shum had not made a stress claim in 1997, Ms Haralambopoulos said that she could not say.
Obviously, Ms Haralambopoulos could have said to this court that she had no evidence that Ms Shum made a stress claim in 1997, and her statement to WorkCover to that effect was wrong. However, Ms Haralambopoulos persisted in maintaining that her statement about 1997 was based on something, even though she could not produce that thing. This casts doubt on Ms Haralambopoulos’s credibility.
Ultimately, Ms Shum told the court that she had made a stress claim in 2012 and another in 2016. She did not disclose the 2016 stress claim in her application to WorkCover (CB473). Nevertheless, the third allegedly untrue representation was untrue, in that it said that Ms Shum had made a stress claim in 1997, when there was no evidence to that effect.
In relation to the fourth allegedly untrue representation, Ms Haralambopoulos said in cross-examination that it had been reported to her that there had been previous disciplinary issues with Ms Shum. Ms Shum called for documents relating to any such disciplinary issues. The respondents did not produce any. I conclude that there were no such documents. As disciplinary issues would be documented in a properly run organisation, I conclude that there were no disciplinary issues concerning Ms Shum prior to the incident involving Ms Wattegamage on 28 February 2017. The fourth allegedly untrue representation was untrue.
The untrue representations made by Ms Haralambopoulos, on behalf of SMRC, in response to Ms Shum’s WorkCover claim probably contributed to that claim being rejected by the insurer. Although the third untrue representation was only untrue as to the year of Ms Shum’s second previous stress claim, rather than the fact of two previous stress claims, it is possible that by saying there was a claim in 1997, the insurer might have actually thought that Ms Shum had made three earlier stress claims. Therefore, the untrue representation about the 1997 claim cannot be regarded as of no significance.
To obtain WorkCover, Ms Shum was then obliged to take the further step of filing proceedings in the Magistrates’ Court. A less persistent person might not have done so. As mentioned above, Ms Shum was ultimately successful in her WorkCover claim, as she and SMRC settled the claim on a basis favourable to her, albeit with SMRC denying liability.
Because the WorkCover proceeding was settled with a denial of liability, I am not in a position to conclude that Ms Shum had a legal right to WorkCover all along. That was a matter for the WorkCover proceedings to determine.[18] However, I am able to, and do, conclude that, by making untrue representations in relation to her WorkCover claim, SMRC injured Ms Shum in her employment. Ms Shum had a legal right to have her WorkCover claim determined on the true facts. In the alternative, Ms Shum’s position was altered to her prejudice by SMRC giving false information to its insurer in relation to the WorkCover claim, because her WorkCover claim should have been determined on the true facts. As such, SMRC took adverse action against Ms Shum in relation to her WorkCover claim.
[18]Ms Shum’s WorkCover claim for bullying differs from her claim in this proceeding for bullying. For example, the issues in relation to voting rights were not an injury in employment in the present proceeding, because the voting rights were not an incident of employment, but those issues may have had a different status in the WorkCover proceeding. In the present proceeding, the bullying needed to amount to an injury in employment.
Under s.361 of the Act, because Ms Shum has alleged that the adverse action was taken against her for prohibited reasons, the reasons for the adverse action are presumed to be prohibited reasons unless the respondents prove otherwise.
Ms Shum alleged that the reasons SMRC opposed her WorkCover application, and made false statements in relation to it, were that she had exercised or proposed to exercise her workplace rights including:
a)making complaints and inquiries about:
i)workplace-wide and targeted bullying;
ii)breaches of her employer’s occupational health and safety obligations, human resources policies procedures and code of conduct;
iii)a disciplinary process brought against her;
iv)underpayments of her entitlements;
b)taking extended sick leave;
c)initiating a WorkCover claim;
d)initiating an anti-bullying application at the Fair Work Commission;
e)initiating a process with the Fair Work Ombudsman in relation to underpayments; and
f)commencing an adverse action claim.
Ms Haralambopoulos made her statement with the untrue representations in it on 27 March 2017.
By 27 March 2017, Ms Shum had:
a)complained on 2 and 6 March 2017 about Ms Wattegamage;
b)been on sick leave since 7 March 2017;
c)lodged her WorkCover claim on 7 March 2017;
d)complained on 16 March 2017 about workplace bullying; and
e)complained on 21 March 2017 that proper processes were not being followed in relation to the investigation of her complaints.
The anti-bullying application was not lodged with the Fair Work Commission until 10 April 2017. Therefore, it cannot have been a reason for the untrue representations in Ms Haralambopoulos’s statement dated 27 March 2017.
Ms Shum’s complaint about her pay was not made until 29 March 2017. Her threat to make a claim with the Fair Work Ombudsman, and her actual claim, were made after that. Therefore, Ms Shum’s complaint about her pay cannot have been a reason for the untrue representations in Ms Haralambopoulos’s statement dated 27 March 2017.
Various other complaints by Ms Shum were made after 27 March 2017. They cannot have been a reason for the untrue representations in Ms Haralambopoulos’s statement dated 27 March 2017.
In her affidavit, Ms Haralambopoulos denied making the untrue representations in relation to Ms Shum’s WorkCover claim for a prohibited reason. Ms Haralambopoulos said in paragraph 99 of her affidavit (CB1480) that:
I understand that Ms Shum alleges that I lied in the WorkCover Report and WorkCover Statement. I honestly believed everything I communicated to the WorkCover investigator. I checked my WorkCover Statement and believed its content to be true. I deny that I lied in the WorkCover Report or my WorkCover Statement. If I made a mistake in relation to any fact or matter that is contained in my WorkCover statement, my mistake was honest and innocent. Any such mistake was neither motivated nor informed by:
a. any malice, as I felt none towards Ms Shum;
b. the fact that Ms Shum made a complaint in her employment;
c.the fact that Ms Shum made a WorkCover claim or was absent or claimed to have suffered a disability of any kind.
Although Ms Haralambopoulos was not accurate in her evidence, and although those inaccuracies reflect on her credibility as a witness, I do not consider that she made the untrue representations in her statement in the WorkCover proceeding for a prohibited reason. Ms Haralambopoulos presented in the witness box as an earnest person who was trying to do the right thing. I consider that the turmoil at SMRC at the time of these events put her in an extremely difficult position, which she struggled to manage. In my view, the untrue representations in Ms Haralambopoulos’s statement were innocent mistakes, of the sort any of us makes, and were not for a prohibited reason.
In relation to SMRC’s general opposition to Ms Shum’s WorkCover claim, I cannot be satisfied that Ms Shum was injured in her employment by that opposition because I am unable to determine whether or not Ms Shum had a legal right to WorkCover, that having been an issue for the WorkCover proceedings, not the present proceedings.
However, I am satisfied that SMRC’s general opposition to Ms Shum’s WorkCover application altered her position to her prejudice. Because SMRC opposed Ms Shum’s WorkCover claim, it was more likely to be rejected by SMRC’s insurer.
Nevertheless, taking into account all of the evidence in this case, I consider that SMRC, and its officers, were not motivated by a prohibited reason in opposing Ms Shum’s claim for WorkCover. Rather, I consider that SMRC, through its officers, had a genuine belief at the time that Ms Shum had not been bullied, and that their dealings with her were based on reasonable management action.
f. Underpayments
Ms Shum said that she was injured in her employment and her position was altered to her prejudice in that she was underpaid. As mentioned above, SMRC agreed that it underpaid her in some instances, and paid her the disputed amount with a denial of liability in other instances. In total, the amounts that Ms Shum was underpaid and allegedly underpaid were less than $350. SMRC paid Ms Shum in 2017 all of the money that she claimed to have been owed.
In any event, an underpayment is an injury in employment, because it is a breach of the worker’s legal right to be paid correctly.
Ms Shum raised the issue of her underpayment on 29 March 2017 with Ms Bindra. It was unclear who, if anyone, decided to underpay Ms Shum. Pay is presumably processed by the finance team. Some of the underpayments could have been Ms Shum’s own doing.
Mr Heeney said that he authorised the payment to Ms Shum of $221.38 on 17 August 2017 with an admission of liability, and Mr Sharma authorised a payment to Ms Shum of $104.89 on 18 December 2017 with a denial of liability.
I am not persuaded that the underpayments were for a prohibited reason. The amounts are so insignificant that I do not believe that anyone would have bothered underpaying Ms Shum for a prohibited reason. It is much more likely that the underpayments were the result of inadvertence.
g. Disciplinary proceedings
Ms Shum said that she was injured in employment and her position was altered to her prejudice when disciplinary proceedings were brought against her contrary to SMRC’s policies and procedures. Ms Shum said that SMRC should have conducted an investigation before deciding that disciplinary proceedings would be brought against Ms Shum.
That is correct. Ms Haralambopoulos used the wrong word when she invited Ms Shum to a disciplinary meeting. She should not have done so.
However, as discussed above, and taking into account all of the evidence in this case, I do not consider that Ms Haralambopoulos or anyone else at SMRC used the word disciplinary for a prohibited reason. Rather, I consider that Ms Haralambopoulos, and perhaps Ms Bindra, chose the wrong word inadvertently. It was an unfortunate mistake, because it added substantially to Ms Shum’s grievances.
h. Finger pointing
Ms Shum said that her position was altered to her prejudice when Brian Oates pointed his finger and let his telephone ring during a mediation. I do not consider that these actions altered Ms Shum’s position to her prejudice. In any event, they are de minimis.
Discrimination
Ms Shum said that her position was altered to her prejudice in that she was discriminated against because of her mental disability. She said that her job duties were given to a new recruit. She said her mental disability was an adjustment disorder and depression.
I do not consider that the fact that Ms Shum’s job duties were given to a new recruit were in any way connected with her mental disability. I consider that Ms Shum was dismissed, and her duties were given to a new recruit, for the reasons given above.
Ms Shum also said that she was discriminated against in relation to her complaints and disciplinary action because of her disability.
I do not consider that the way in which Ms Shum’s complaints and disciplinary action were handled were in any way connected with her mental disability. I consider that Ms Shum’s complaints and the disciplinary action were handled in the way they were for the reasons given above.
j. Voting rights
Ms Shum said in exhibit 7 that she was injured in her employment and her position was altered to her prejudice for unspecified reasons relating to the AGM. I assume this issue concerned her voting rights. However, as mentioned above, her voting rights as a member of SMRC were not workplace rights. Therefore, Ms Shum cannot maintain an adverse action claim in relation to her voting rights. It is perhaps also worth noting that Ms Shum did in fact vote at the AGM, even though Mr Oates opposed her doing so.
k. Ms Wattegamage’s complaint
Ms Shum said in exhibit 7 that she was injured in her employment by Ms Wattegamage when she made a formal complaint against her. Ms Wattegamage made her formal complaint against Ms Shum on 1 February 2017. At that time, Ms Shum had not gone on extended sick leave, lodged her WorkCover or any other claim, or made any complaints about Ms Wattegamage or SMRC’s handling of Ms Wattegamage’s complaint against Ms Shum. The only complaints that Ms Shum had made as at 1 February 2017 concerned her voting rights at the AGM, and the subsequent SGM. Some team leaders had signed a letter asking for the SGM with a view to Mr Oates being removed from the Board. However, Ms Shum had not signed that letter.
Ms Wattegamage denied that she made the complaint against Ms Shum on 1 February 2017 because Ms Shum had made any complaints in relation to her employment, or for any other prohibited reason.
As previously discussed, any complaints Ms Shum made about her voting rights were not complaints relating to her employment. Those complaints cannot be a foundation for an adverse action claim against Ms Wattegamage.
In any event, as discussed previously, I found Ms Wattegamage in the witness box to be a credible witness. I consider that her complaint against Ms Shum on 1 February 2017 was made genuinely, and not for any prohibited reason.
l. Countercomplaint
Ms Shum said in exhibit 7 that was injured in her employment and her position was altered to her prejudice in that she made a countercomplaint about the disciplinary action that had been brought against her. I do not understand this issue. I do not know what Ms Shum claims to have suffered in relation to her countercomplaint. I am therefore unable to determine if it could have been an injury in employment or an alteration of her position to her prejudice, and, if so, whether it was for a prohibited reason. I can take this matter no further.
m. Asking for witnesses and evidence
Ms Shum said in exhibit 7 that she was injured in her employment and her position was altered to her prejudice in that she asked for evidence or witnesses in relation to the disciplinary action against her. This issue seems to relate to Ms Shum asking for details of evidence and witnesses in relation to Ms Wattegamage’s complaint against her. SMRC did not provide this, as it suspended the investigation while Ms Shum was on sick leave. I am unable to see how suspending the investigation was an injury in employment or an alteration of Ms Shum’s position to her prejudice. However, even if it were, I do not consider that it was for a prohibited reason. I consider that the reason that the investigation was suspended, and the reason details of evidence and witnesses were not provided to Ms Shum, was to avoid further harm to her while she was on stress leave.
n. Mr Heeney’s emails to Ms Shum’s private email
Ms Shum said in exhibit 7 that she was injured in her employment and her position was altered to her prejudice in that Mr Heeney sent a harassing email to Ms Shum’s private email account without her consent on 31 May 2017. She said that he did this because she had made a complaint or inquiry.
Mr Heeney sent three emails to Ms Shum on 31 May 2017. They are set out above.
Ms Shum did not explain to the court why sending these emails to her private email address was harassment, or how that circumstance injured her in her employment or altered her position to her prejudice. I fail to see how sending these emails to Ms Shum’s Yahoo or Gmail addresses was harassing, injured Ms Shum in her employment, or altered her position to her prejudice.
o. Repercussions after 24 staff sent a letter
Ms Shum said in exhibit 7 that Mr Oates injured her in her employment or altered her position to her prejudice in an unspecified manner in relation to the 24 staff letter. I understand this is a reference to the unsigned letter distributed at the AGM on 1 December 2017. Ms Shum did not specify how she was injured in her employment or how her position was altered to her prejudice in relation to this letter. She referred in exhibit 7 to repercussions but did not say exactly what they were. She also indicated in exhibit 7 that this issue related to workplace-wide bullying, but did not say exactly what that bullying consisted of. I assume that Ms Shum meant that the 24 staff letter had repercussions consisting of the bullying discussed elsewhere in these reasons. It is unnecessary to address those issues again.
Discrimination: s.351
Ms Shum said that she was discriminated against for reasons of her mental disability in that her job duties were given to a new recruit, namely, Mr Sharma. Ms Shum said that her mental disability was an adjustment disorder and depression, brought about by her stressful working environment.
Subsection 351(1) of the Act provides that:
An employer must not take adverse action against a person who is an employee … because of the person’s … mental disability…
The reason that Ms Shum’s duties were given to a new recruit was because she was dismissed for the reasons stated above. I do not consider that Ms Shum’s mental disability had anything to do with the allocation of her duties to a new recruit, or any adverse action taken against her.
Ms Shum also said that Mr Heeney discriminated against her by ignoring her complaints about false allegations against her and underpayments. I do not consider that Ms Shum’s mental disabilities had anything to do with Mr Heeney’s response, or lack thereof, to Ms Shum’s complaints about false allegations against her or her underpayments.
Mr Shum said that Mr Heeney discriminated against her by dismissing her in a disrespectful manner. I do not consider that Ms Shum’s mental disability had anything to do with the manner in which Mr Heeney dismissed Ms Shum.
Ms Shum said that Ms Bindra discriminated against her by threatening to take disciplinary action against her for emailing Mr Lee while he was on sick leave. Ms Shum said this happened from April 2017 onwards.
Ms Bindra emailed Ms Shum on 28 March 2017 (CB1742) saying:
… as you are aware Jacob Lee is on personal leave, which prevents us in involving him in the work related matters. Hence I will not be marking him in my emails to you. I would also advise you to not involve Jacob in your emails whilst he is on personal leave.
On 10 April 2017, Ms Bindra emailed Ms Shum at 12.09pm (CB1756) saying:
In my email to you dated 28th March 2017, I advised you to not involve Jacob in your emails while he is on personal leave.
I’m informing you again that Jacob is on extended personal leave and it is SMRC’s obligation to not cause him any undue stress.
I hereby direct you again to not mark Jacob in your emails until notified otherwise.
Your failure to follow the above direction may be considered as a disciplinary matter.
Ms Bindra said that her reason for directing Ms Shum not to email Mr Lee was that he was on stress leave from work and she did not want him to be further stressed by being bombarded by work-related emails.
I found Ms Bindra’s evidence to be credible on this issue. That is, I am satisfied that Ms Bindra did not direct Ms Shum to desist from emailing Mr Lee because Ms Shum had a mental disability.
Having said that, employees are generally entitled to speak to each other about work-related matters. It would have been better for Ms Bindra to ask Mr Lee if he minded being included in Ms Shum’s emails before telling Ms Shum it could be a disciplinary issue.
Temporary absence
Ms Shum said that SMRC breached s.352 of the Act by dismissing her because she was temporarily absent from work because of illness or injury. Section 352 of the Act prohibits dismissal for that reason. Ms Shum was absent from work at SMRC from 7 March 2017 onwards because of illness. She had certificates indicating that she was unfit for work during that time.
In his affidavit, Mr Heeney expressly denied that he had taken any action against Ms Shum because she had been absent from the workplace.
Ms Shum’s gave evidence to the contrary in paragraph 342 of her affidavit affirmed on 17 August 2018. However, that paragraph was struck out by consent.
The reverse onus applies to applications under s.352 of the Act. That is, it is presumed that action was taken for a prohibited reason unless the respondents prove otherwise. For the reasons discussed above, I am not satisfied by Mr Heeney’s denial. I consider that Ms Shum was dismissed partly because she was temporarily absent from work.
It is sufficient that a prohibited reason was one of the reasons for the contravening conduct, provided that it was a substantial and operative reason. I am satisfied that Ms Shum’s temporary absence from work was a substantial and operative reason for her dismissal.
SMRC contravened s.352 of the Act by dismissing Ms Shum partly because she was temporarily absent from work. In exhibit 7, Ms Shum alleged that Mr Heeney and no one else was involved in her being dismissed for that reason. For the reasons discussed above, I accept that Mr Heeney was involved, within the meaning of s.550(2)(a), (b) and (c) of the Act, in Ms Shum’s dismissal because she was temporarily absent from work. There will be declarations accordingly.
Conclusion
At the trial, the parties did not deal with question of any penalties or other orders. I will hear the parties separately on those issues.
I certify that the preceding three hundred and sixty eight (368) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 5 February 2020
- AGLC
- Shum v Southern Migrant and Refugee Centre Inc & Ors [2020] FCCA 214
- Case
- [2020] FCCA 214
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court were whether the respondents had defamed Mr. Shum through certain publications and whether there had been a breach of contract arising from the termination of his employment. The Court was required to assess the meaning of the publications, whether they were defamatory, and if so, whether any defences were available to the respondents. Additionally, the Court had to determine if the termination of Mr. Shum's employment constituted a breach of the contract of employment.
Justice Riley found that the publications in question were not capable of bearing the defamatory meanings alleged by Mr. Shum. The Court applied the principles of defamation law, focusing on the ordinary reasonable reader's interpretation of the material. Regarding the breach of contract claim, the Court concluded that the termination of Mr. Shum's employment was not in breach of his contract. The Court's reasoning involved a careful analysis of the employment agreement and the circumstances surrounding the termination.
Ultimately, the Court ordered that judgment be entered for the respondents, dismissing Mr. Shum's claims.
Orders
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Background
Background to the litigation
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Evidence
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