Siddiqui v Karl Thomas and M Irfan Pty Ltd trading as Mowbray Physiotherapy Services
[2023] FedCFamC2G 616
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Siddiqui v Karl Thomas and M Irfan Pty Ltd trading as Mowbray Physiotherapy Services [2023] FedCFamC2G 616
File number: LNG 68 of 2021 Judgment of: JUDGE TAGLIERI Date of judgment: 17 July 2023 Catchwords: FAIR WORK – alleged breach of general protection provisions – alleged adverse action consisting of dismissal – whether the Applicant’s dismissal was because she made complaints about her hours and asserted her workplace rights – alleged coercion – whether the Applicant worked overtime within the meaning of the Health Professionals and Support Services Award 2020 – failure to make and keep employee records – failure to provide employee records upon request – failure to display the applicable award and the National Employment Standards – failure to provide the applicant with a Fair Work Information Statement - company director involved in the contraventions. Legislation: Fair Work Act 2009 (Cth) pt 4-1, ss 125, 340, 343, 361, 535, 536, 557C(1)(b)(i), 557C(1)(b)(ii)
Fair Work Regulations 2009 (Cth) regs 3.31, 3.32, 3.33, 3.33(1), 3.34, 3.35, 3.42, 3.45, 3.46
Health Professionals and Support Services Award 2020 sch A.2.2, sch C C.2.1, cls 3.3, 13.1, 15, 24, 25
Cases cited: Fair Work Ombudsman v Taj Palace Tandoori Restaurant Pty Ltd [2021] FMCA 258
Ghimire v Karriveiw Management Pty Ltd (No.2) [2019] FCA 1627
PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225
Division: Division 2 General Federal Law Number of paragraphs: 224 Dates of hearing: 17, 18 & 19 January 2023 Place: Hobart Counsel for the Applicant: Mr Lettau Solicitor for the Applicant: Hall Payne Lawyers Counsel for the First Respondent: Mr Pym Solicitor for the First Respondent: Barry Nilsson Lawyers
Table of Corrections 13 September 2023 On the cover page and orders page, 14 July 2023 changed to 17 July 2023 ORDERS
LNG 68 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FATIMA SHOAIB SIDDIQUI
Applicant
AND: KARL THOMAS AND M IRFAN PTY LTD TRADING AS MOWBRAY PHYSIOTHERAPY SERVICES
First Respondent
MUHAMMAD IRFAN
Second Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
17 JULY 2023
THE COURT DECLARES THAT:
A.The Respondents contravened cl 24 of the Health Professionals and Support Services Award 2020 (“the Award”) in that they did not pay the Applicant overtime where she worked in excess of her ordinary hours.
B.The Respondents contravened cl 3 of the Award in that they did not ensure that copies of the Award and the National Employment Standards were made available to the Applicant.
C.The Respondents contravened s 125 of the Fair Work Act 2009 (Cth) (“the Act”) in that they did not give a copy of the Fair Work Information Statement to the Applicant.
D.The Respondents contravened reg 3.42 of the Fair Work Regulations 2009 (Cth) (“the Regulations”) in that they failed to provide the Applicant’s employee records to her upon request.
E.The Respondents contravened regs 3.31, 3.32, 3.33, 3.34 and 3.35 of the Regulations in that they failed to make and keep employee records in respect of the Applicant.
THE COURT ORDERS THAT:
1.The Court will hear further submissions at a time and date to be fixed to enable final orders to be made by way of remedy or penalty in relation to the declarations referred to at A to E of these Orders.
2.Within 14 days of the date of these Orders, the parties are to file and serve written submissions, inclusive of calculations of the quantum of overtime payable and penalty.
3.If the parties consent to determination of quantum of overtime payable and penalty being heard in Chambers on the papers, they submit a joint minute to that effect to Chambers within 21 days following the expiration of time in Order 2 of these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
These proceedings are brought by Fatima Shoaib Siddiqui (“the Applicant”) who seeks relief under Div 2 of Part 4-1 of the Fair Work Act 2009 (Cth) (“the FW Act”) from Mowbray Physiotherapy Services (“the Employer”) and Muhammad Irfan, the managing director of Mowbray Physiotherapy Services (“the Second Respondent”), in relation to a number of alleged contraventions of the FW Act and the Fair Work Regulations 2009 (“the Regulations”).
The Employer is said to be liable in its capacity as the employer of the Applicant, and the Second Respondent is said to be personally liable as accessory to the contraventions by the Employer.[1]
[1] Section 550 of the FW Act.
THE APPLICANT’S CLAIMS
The Applicant’s claims are pleaded in the Statement of Claim filed 11 March 2022 and, in summary, relate to:
(a)failure to pay overtime rates resulting in underpayment of wages;
(b)failure to make and keep employee records;
(c)contraventions of the general protections provisions;
(d)non-monetary matters; and
(e)other miscellaneous claims.
The failure to pay overtime rates claim is based on the assertions that:
(a)On or about 29 November 2020, the Applicant was offered a position as a physiotherapist with the Employer and accepted the offer on the same day;
(b)Her employment was pursuant to a written letter of offer dated 29 November 2020 and the Health Professionals and Support Services Award 2020 (“the Award);
(c)The Applicant’s duties and responsibilities accord with a Level 1, pay point 3 of the Health Professional employee classification, as per sch A.2.2 of the Award;
(d)The Applicant worked overtime, and was not paid any special rate for overtime as required by cl 24 of the Award;
(e)The Employer contravened its obligation under s 535 of the FW Act to keep records consistent with regs 3.32 and 3.33(1) of the Regulations, and further to make a copy available to the Applicant as an employee on request contrary to reg 3.42 of the Regulations; and
(f)By reason of the Employer’s contravention of reg 3.42 of the Regulations referred to at [4(e)] of these reasons, the reverse onus of proof is engaged by the operation of s 557C(1)(b)(ii) of the FW Act.
The Applicant’s general protections claim is two-fold: for adverse action pursuant to s 340 of the FW Act and for coercion contrary to s 343 of the FW Act.
The adverse action claim relies on the following contentions:
(a)From May 2021 and in writing on 14 August 2021, the Applicant raised concerns about being required to work excess hours;
(b)On 2 September 2021, the Second Respondent raised for the first time alleged issues with the Applicant’s performance;
(c)On 6 September 2021, after the Applicant again raised the issue of her excessive hours, the Second Respondent made threats to reduce the Applicant’s employment status;
(d)Having received advice from the Fair Work Ombudsman, the Applicant sent a text in accordance with said advice on the evening of 6 September 2021;
(e)On 7 September 2021, the Second Respondent gave notice to the Applicant that she was dismissed, with dismissal to take effect in one month from that date;
(f)The above chronology of events leads to the inference that the Employer dismissed the Applicant from employment because she had made complaints about her hours and asserted her workplace rights under the Award and the FW Act;
(g)The Applicant’s dismissal constitutes adverse action and was therefore a contravention of s 340 of the FW Act, a civil remedy provision; and
(h)By the operation of s 361 of the FW Act, it is for the Employer to prove that the dismissal was not for any protected reason.
The coercion claim relies on contentions that the Second Respondent made threats to the Applicant on 8 September 2021 to the effect that if she went to Fair Work, he would not provide a reference for future employment and would make a complaint about her to the Australian Health Practitioner Regulation Agency (“AHPRA”), which he in fact did do.
Finally, the Applicant has made other non-monetary and miscellaneous claims relating to unpaid meal breaks, a failure to make available copies of the Award and National Employment Standards (“NES”) and a failure to provide the Applicant with a Fair Work Information Statements.
There was a claim based on payment at the incorrect classification, but I was informed by both Counsel at the hearing that this was no longer pursued. Further, I was informed that it was agreed that the proper classification for the Applicant in her employment under the Award was Level 1. However, the Applicant says that Level 1 pay point 3 applies to her while the Respondents say that Level 1 pay point 2 applies.
THE APPLICANT’S EVIDENCE
The Applicant filed two affidavits for the purposes of the proceedings. She identified her affidavits filed 23 August 2022 and 4 November 2022 and confirmed them to be true and correct. They were taken as read into evidence without objection.
The Applicant was then cross-examined. She stated that she had since gained employment as a physiotherapy assistant on 25 August 2022 and subsequently obtained employment with the same practice as a physiotherapist.
She largely maintained her evidence in chief and, in summary, her evidence was as follows:
(a)She maintained that at her job interview, the Second Respondent had agreed to pay for the fees for the exams she needed to pass to obtain full registration;
(b)She agreed that she had prepared the timesheet in the Court Book at page 219, but said that the writing on the top right-hand corner stating “[the Applicant] starts from 12 April 2021” is not her handwriting;
(c)She disagreed that the timesheets and records were made by the reception staff, stating that Ms Tahsiba Nur had told her to record her hours, including the times when she came in and went out of the clinic;
(d)When it was suggested that she retrospectively completed the timesheets, she disagreed, stating that she only did so one time and “sometimes if I forgot to [write] it in”;
(e)She disagreed with the suggestion that there was no opportunity to work from home. The Applicant stated that she took files home relating to patients for whom insurance company treatment plans were required;
(f)When challenged about the evidence at [12(e)] of these reasons, as the Employer had neither asked her nor permitted her to take documents home, the Applicant did not reply directly, but reiterated she was doing work from home;
(g)It was put to the Applicant that she had not correctly recorded time on the timesheets because she had written the time she was supposed to start rather than when she arrived at work. The Applicant replied “I’m not sure”, and “most times I write it when I arrived at the clinic”;
(h)The Applicant denied that she was frequently late. She conceded it may have occurred two or three times, but she could not specifically recall;
(i)The Applicant agreed that Ms Nur was responsible for opening the clinic and that Ms Nur was already there whenever the Applicant arrived for work;
(j)She disagreed that she had already left the clinic when the receptionist closed the clinic and left;
(k)When taken to specific days recorded on the timesheet in the Court Book at pages 491 and 840, she maintained that on occasion she left the clinic after the receptionist and did not take a full lunch break;
(l)She disagreed that the receptionist always closed the clinic. She stated that sometimes she and the Second Respondent would stay behind to discuss things and he would close the clinic when they had finished;
(m)In the first month of her employment, she did not record when she took a lunch break. However, she maintained that she had never taken a full lunch break;
(n)When pressed about the period when she had not been recording her breaks, she admitted that she took breaks. However, she did not take “a proper break”, and sometimes not at all;
(o)When asked about the timesheet in the Court Book at page 821 and the one at page 491 which she completed for the same period, it was suggested that because Ms Lita Yennifer closed the clinic, the Applicant could not have still been there after the last patient. The Applicant disputed the proposition and stated that she was definitely at work after the receptionist had left and that she had been with the Second Respondent discussing the work she was doing with patients;
(p)She denied that there were discrepancies in the recordings she made in her timesheets, but conceded that she had written when she had a patient rather than when she arrived at the practice on at least three, but not five, occasions;
(q)She agreed that she was paid for 40 hours every fortnight regardless of her hours, but qualified the concession by stating that when she recorded her hours she recorded less than what she actually spent with patients;
(r)She stated that she was at work at the clinic on some occasions when not directed to do so. She qualified this statement by adding that on occasion, at the beginning of her employment, she stayed back to speak with the Second Respondent, but after she finished with her final patient she was free to leave;
(s)When it was put to the Applicant that she had not complained about working excessive hours prior to August 2021, the Applicant denied this and maintained that she had spoken to Mrs Irfan, but could not recall on how many occasions;
(t)The Applicant agreed that Mrs Irfan had sometimes visited the office, but moved to Melbourne and worked remotely for most of the Applicant’s employment;
(u)When it was suggested to the Applicant that the conversations she had had with Mrs Irfan related to rostering rather than a complaint about how many hours she had worked in May and June 2021, the Applicant stated that she had concerns about excess hours, but she could not recall when she first met and spoke to Mrs Irfan about it;
(v)Regarding having a Covid-19 vaccination, the Applicant maintained she was happy to have it. She said, however, that she had been told she could not take time off work for that purpose, but should arrange to have the vaccination on the weekend like the Second Respondent had done. Despite this, the Applicant then agreed that she had not been able to arrange it for the weekend and so booked it in on a lunch break, had the vaccination and was given the afternoon off;
(w)When challenged about the proposition that the Second Respondent had promised to pay for her Masters degree, the Applicant maintained that he had agreed to pay for it, but that he had then reneged during a telephone conversation between the Applicant and Second Respondent on 15 August 2021;
(x)The Applicant agreed that her email of 14 August 2021 had been written by her and her husband. When challenged about the accuracy of its content because her husband had not been present during discussions between her and Mrs Irfan, the Applicant maintained its accuracy and said that she had checked the email and it was correct;
(y)When put to the Applicant that by 25 August 2021 the Employer was concerned that she was falsifying the record of her hours, the Applicant denied this and stated that the Second Respondent had never told her that she was not accurately recording her hours except in the discussion on 6 September 2021 when he instructed her not to record her time in and time out;
(z)When a conversation recounted in the affidavit of Ms Yennifer filed 3 October 2022[2] was put to the Applicant, she denied it and stated “I don’t remember that he… had any time talk about the matter of timesheets”;
[2] Court book at page 620.
(aa)She agreed that she had been asked to attend a performance review on 2 September 2021 at which time there was a discussion about her work with patients. She denied that it involved 22 concerns, stating the concerns regarding patients were on an A4 sheet of paper;
(bb)She agreed that she had been asked about why patients were not returning to follow-up, but added that she could not do everything because she was on a limited registration;
(cc)She denied there had been a performance review on 6 September 2021 and stated that it was just a chat because a lunch break was interrupted when she had a patient. The Applicant denied that she was aggressive or that the Second Respondent had stated that there were ongoing performance issues;
(dd)She said that she would record in the booking diary when a patient was late as it would affect her overall performance;
(ee)When asked about Ms Nur’s affidavit describing a conversation between the Applicant and the Second Respondent as being a heated discussion concerning the examination fees, the Applicant denied that she had raised her voice. She maintained that the Second Respondent had stated that she should have got the agreement in writing;
(ff)The Applicant also denied Ms Nur’s evidence about the Applicant’s aggressive tone during a meeting on 2 September 2021. She stated that she had simply told the Second Respondent that he had to review and rebook patients, stating “I was not aggressive”;
(gg)When it was put to the Applicant that by 6 September 2021 it had been made clear to her that the Second Respondent was not happy about inaccuracies in the timesheets, the Applicant did not directly reply. She simply stated that the only discussion she had with the Second Respondent regarding timesheets was one in which the Second Respondent instructed her not to write time in or out and that Ms Nur would prepare the timesheets;
(hh)The Applicant also agreed that, by that time, the hygiene issues had been raised only a couple of times at the start of her employment and that after she had spoken with Ms Sahito, the issue had resolved. The Applicant denied that it continued to be an issue in August and September 2021;
(ii)The Applicant denied that she had been reminded at the performance review about not leaving equipment around the clinic and about tidying up;
(jj)The Applicant denied ever leaving equipment in the corridor at the clinic, contrary to the statement in Ms Nur’s affidavit at [30];
(kk)When directed to Mrs Irfan’s affidavit filed 3 October 2022 at [23], the Applicant stated that she had been told it was the receptionists’ job to tidy equipment after an appointment. When challenged about this proposition, noting that there would be many patients and that the receptionists had their own tasks, the Applicant simply stated there is not a lot of equipment;
(ll)The Applicant disputed the evidence of the Second Respondent in his affidavit filed 3 October 2022 at [44.5.6] that she had been warned about breaching data privacy by downloading and retaining confidential data and information. She stated that she had been asked by the Second Respondent to prepare a supervision report and to base it on another physiotherapist’s report, and that he had agreed that she could access the information;
(mm)When asked about a Facebook post dated 30 August 2021,[3] she disputed that it would be apparent or known to persons reading it that the statement about leaving her employment referenced the Employer. However, she also agreed that it was a private Facebook group and that any member of the group could access the post. The Applicant defensively added “I don’t think … it affects him because I did not mention about anything”;
(nn)The Applicant specifically denied the proposition that her employment had been terminated because of inaccurate timesheets, her aggressive attitude, conduct issues involving clinical concerns in respect of 22 patients, her personal hygiene, leaving gym equipment out, downloading confidential data and making a Facebook post which disparaged the Employer;
(oo)She stated that the Second Respondent had not been her sponsor for visa purposes and was obliged to provide a supervision report to AHPRA within six months of the start of her employment; and
(pp)It was put to the Applicant that if the supervisory relationship between her and the Second Respondent broke down, such that they no longer trusted each other and were not working together, then there was an obligation to report that to AHPRA. The Applicant agreed.
[3] Court Book at page 813.
In re-examination, the Applicant admitted she had made mistakes in treatment, but denied this was the reason for patients not returning for further appointments. Instead, she claimed they were not returning for financial reasons.
Evidence of Aliza Sahito
The Applicant also relied on the evidence of Ms Aliza Sahito whose affidavit filed 4 November 2022 was read without objection.
In cross-examination, Ms Sahito agreed that wages were paid according to timesheets. She said that both physiotherapists and reception staff were required to fill in timesheets.
When asked whether she was aware that Ms Nur completed timesheets for the Applicant during her employment, Ms Sahito stated she was not aware of this at the time.
Concerning [16] of her affidavit referring to the Second Respondent stating that the Applicant and her husband had “bad intentions” and “tried to defraud the clinic”, Ms Sahito clarified that the statement was about asking for more money and not about the timesheets.
Ms Sahito maintained that she had never witnessed the Applicant being aggressive or threatening, despite other witnesses saying she had. She added that she may not have heard a conversation if it occurred in the back room because she worked at the front of the clinic in reception.
When Counsel observed to Ms Sahito that she was the only witness who said reception staff put equipment away, she stated that during her training she was told that as a receptionist she should clean up and put things away.
Ms Sahito agreed that she had discussed the Applicant’s body odour with her at the instigation of Mrs Irfan, but said that after their discussion the problem resolved.
When asked about how working hours were recorded on timesheets, Ms Sahito stated that she was more inclined to round times down, whereas the Applicant would write the exact time.
Ms Sahito said that if the Second Respondent and the Applicant remained in the clinic after the last patient left, the Second Respondent would instruct her to leave and he would lock up the clinic when he was finished for the day.
In re-examination about the timesheets, Ms Sahito stated that they were filled in and put on a little stand in reception. There was one timesheet for each person and they were then given to Mrs Irfan when complete.
RESPONDENTS’ CONTENTIONS
The Respondents say that the Applicant was employed full-time as a limited registration physiotherapist between 12 April 2021 and 15 September 2021, and that her employment was terminated on 7 September 2021.
Her role required supervision, which was at Level 1 of the Award in accordance with a Supervised Practice Plan.
The Respondents deny the overtime claim referred to at [4(d)] of these reasons, stating that on average the Applicant worked 35 hours per week, except during one week where she did work in excess of 40 hours due to the unexpected resignation of another physiotherapist. Where the Applicant did work excess hours within the meaning of the Award, the Respondents say that this was consistent with the terms of her contract of employment.
In short, the Respondents say that the overtime claim for the additional hours is, for the most part, a fabrication and that the Applicant was paid above-award rates for the duration of her employment.
In answer to the Applicant’s contentions at [4(e)], the Respondents say that the only requirement was for the Employer to keep a record of ordinary hours worked by the Applicant. They contend that the booking diary and Excel spreadsheet were kept and that this complied with the requirements under the Regulations and FW Act.
The Respondents dispute the accuracy of the timesheets produced by the Applicant, asserting that they are false. Accordingly, they argue that where the Employer has adduced evidence of a record of hours worked and the Court concludes that the timesheets produced by the Applicant are inaccurate or false, it is not a matter of the reverse onus applying. Instead, they argue that the Applicant bears the onus and that she has not meet the required standard of proof.
The Respondents also deny that the Applicant ever made complaints about missing lunch breaks.
Regarding non-payment of the first week of the Applicant’s employment, the Respondents contend that the Applicant first worked on 12 April 2021, consistent with her own timesheets, the orientation report and the clinic’s accounting software. The Respondents suggest that 6 April 2021 is the start of the pay period for their accounting software.
The Respondents have a simple contention in answer to the general protections claims. They assert that the Applicant has failed to show a nexus or causative link between the alleged actions of the Applicant and alleged reactions by the Employer.
The Respondents’ answer to the general protections claims is premised on a finding that the Applicant did not make complaints about working excessive hours, contrary to that which she now claims.
Self-evidently, the outcome of the general protections claims will depend on whether the Court prefers the evidence of the Second Respondent and other witnesses who were employed by the Employer to the evidence of the Applicant.
In response to the coercion claim, the Second Respondent denies that he made the statements asserted and that the Applicant’s evidence should not be accepted.
The Respondents’ claim that the Applicant was correctly paid under the Award as a Health Professional Level 1.2 is essentially because she worked under close supervision at all times. The Respondents emphasise that the Applicant was subject to a limited registration and had never previously practised as a physiotherapist in Australia.
In relation to the claims in breach of reg 3.42 of the Regulations summarised at [4(e)] of these reasons, the Respondents maintain that the Applicant received the documents and records to which she was entitled, but not confidential information which the Applicant was also seeking.
Evidence of Second Respondent
The Second Respondent’s affidavit filed 3 October 2022 was read in evidence without objection. He also gave brief evidence in response to evidence relied on by the Applicant.
The Second Respondent gave evidence about how work hours were recorded in the clinic. He stated that time was recorded in a three-stage verification system. The reception staff were part-time and paid according to an hourly rate for hours worked and recorded by them on a timesheet. The physiotherapists were full-time and paid an annualised salary for a maximum of 38 hours a week and, for them, the computerised booking system recorded when the physiotherapists worked. He stated that this system was accurate. In addition, the Second Respondent said that payslips are prepared for every employee, and with the physiotherapists they make sure they do not work in excess of their full-time hours. He added that if a physiotherapist worked extra time during one week, then they adjusted the hours of work in the following week. It is his understanding that this is permissible within either two or four week blocks.
As to the preparation of timesheets, the Second Respondent stated that there was no need for physiotherapists to have one because they were paid a guaranteed fixed income whether they worked less or more.
On seeking clarification of the evidence referred to at [40] of these reasons, he stated:
No, so it was not, you know, like, required, but she was doing it, you know, like, for her own record, and I – and I did not, you know, like, object.[4]
[4] Transcript of Proceeding (“Transcript”) dated 18 January 2023 on page 4 at lines 35 to 44.
The Second Respondent also stated that he was required to report to the Physiotherapy Board of Australia as the Applicant’s supervisor for registration purposes. He was required to notify them within seven days of issues of concern that arose, so he had to notify them of her termination of employment.[5]
[5] Transcript dated 18 January 2023 on page 6 from line 46 onward.
As to the events leading to termination, the Second Respondent stated that he put his concerns and frustrations about the Applicant’s performance to her over the course of three performance reviews[6] before notice was given to the Applicant of her termination.[7]
[6] An informal review in August 2021, a formal review on 2 September 2021, and a second formal review on 6 September 2021.
[7] Transcript dated 18 January 2023 on page 7.
In summary, the Second Respondent’s evidence under cross-examination was as follows.
He is an experienced physiotherapist with 25 years’ experience overall, but 16 years’ experience in Australia. He is a part-owner of the Employer and bought out the business about five to six years ago.
He makes key decisions for the business, including about hiring employees and the terms of their contracts. He is responsible for business records and has administrative staff helping because he also provides physiotherapy services to the clients.
He keeps accurate records and none of those before the Court have been changed in any way.
He directed Ms Nur to prepare timesheets for the Applicant in around July 2021 and they are accurate because they were prepared from the booking diary, which is part of the practice management software used by the clinic. The timesheets are the physical version of the information recorded in the electronic booking diary for the Applicant from 12 April 2021,[8] and appear from page 173 of the subpoena material relied upon by the Applicant. When taken to certain dates recorded in the electronic diary and compared to the printed diaries and timesheets prepared by Ms Nur, the Second Respondent disputed that there were inconsistencies. He claimed that all versions “matched”.
[8] Transcript dated 18 January 2023 on page 9 at lines 1 to 4.
The Second Respondent agreed that some of his supervision of the Applicant involved her observing him treat patients, but he denied that this occurred after she had finished her working day treating her own patients.[9]
[9] Transcript dated 18 January 2023 on page 35 at lines 15 to 25.
When challenged by the apparent contradiction of this evidence with what was written in the letter he authored dated 15 August 2021, the answer given by the Second Respondent was confusing as he stated “no” and “yes” to the question of whether the Applicant staying back after her last appointment to observe him with patients was work and, despite the letter referring to multiple occasions, he claimed in evidence that it occurred on only one or two occasions.[10] The Second Respondent maintained that when the Applicant observed him after her last patient she was doing it for her own personal learning and satisfaction to prepare for exams.
[10] Transcript dated 18 January 2023 on page 36 at line 35 onwards.
The Second Respondent eventually agreed that he sometimes left the clinic after the receptionist, and that on those occasions he would close up the clinic. However, he firmly denied that the Applicant stayed behind with him at those times and had left after the receptionist.[11]
[11] Transcript dated 18 January 2023 on page 38 at lines 10 to 30.
His evidence was that there was only one pay period when the Applicant worked in excess of a 38 hour average per week. In other periods it was always less than a 38 hour average.
He thought the ordinary hours per week under the Award and NES was 40 hours, but now knows it is 38 hours a week. He paid the Applicant for 40 hours regardless of when she worked less, according to averaging over four weeks as stipulated in her contract.[12]
[12] Transcript dated 18 January 2023 on pages 38 to 39.
He was not aware at the time of the Applicant’s employment that the Award did not include a salary clause for Level 1 Health Professionals.[13]
[13] Transcript dated 18 January 2023 on page 40.
At the end of every week a reconciliation would be done of the hours the Applicant worked.[14] When asked how the hours would be calculated, the Second Respondent said:[15]
Because she had the guaranteed, you know, like, income, and whenever we were thinking, you know, like, okay, she’s exceeding the numbers of, you know, like, hours more than 40 hours a week, we were adjusting it accordingly.
[14] Transcript dated 18 January 2023 on page 41.
[15] Transcript dated 18 January 2023 on page 42 at lines 1 to 6.
The Second Respondent agreed that the Applicant had requested her employee record, including the record of her hours. He said that it had been provided by provision of payslips each week, but the Applicant was also seeking the whole diaries of the patients and “we said no”.[16] He agreed that in the text of 6 September 2021[17] and email of 8 September 2021,[18] the Applicant had not made a request for patient clinical notes or information.[19]
[16] Transcript dated 18 January 2023 on page 43 at lines 39 to 41.
[17] Court Book at page 544.
[18] Court Book at page 551.
[19] Transcript dated 18 January 2023 on page 45.
He agreed that he understood the payslips were the Applicant’s employee records because that is the legal advice he had received. He eventually accepted that the pay slips did not show any overtime rates because he did not consider that she had worked overtime.[20]
[20] Transcript dated 18 January 2023 on page 45 at lines 35 to 39.
He considered the booking time for the Applicant’s first patient to be her start time and the time of completion of the last patient for the day to be the finish time, then calculated her hours accordingly.[21]
[21] Transcript dated 18 January 2023 on page 46.
He agreed that the booking diary did not record the start and finish time for overtime. He then said that the diary also showed the start and finish time of the physiotherapists as well, but did not record the start and finish times for the receptionists.[22]
[22] Transcript dated 18 January 2023 on page 46 at lines 41 to 48.
When again asked if the Applicant stayed after her last patient to observe him with a patient, he stated that they normally would provide “half a day off”.[23]
[23] Transcript dated 18 January 2023 on page 47 at lines 21 to 26.
The Second Respondent accepted that leave accruals showing on the payslips were not accurate. He added that they did record what leave staff took and the accountant reconciled it at the end of the financial year. He agreed that the payslips did not accurately record accrual of leave, but they were true copies of the Applicant’s original payslips.[24]
[24] Transcript dated 18 January 2023 on page 49 at lines 10 to 23.
He agreed that there was no record made on the payslip of penalty rates, overtime, start and finish times, or leave taken.[25] He then added that because they had paid the Applicant for 40 hours a week rather than 38 hours a week, they ended up paying $586 more than what was owing after overtime on the Applicant’s calculations.[26]
[25] Transcript dated 18 January 2023 on page 49 at line 30.
[26] Transcript dated 18 January 2023 on page 49 at line 35.
When it was put to the Second Respondent that no record was made of penalty rates, overtime, start and finish times, or leave taken at the clinic, he replied “that is incorrect” and maintained that the Applicant’s hours were recorded in the booking diary.[27] He added a narrative about being a small business and acting on advice from a Tasmanian Chamber of Commerce and Industry lawyer at the time.
[27] Transcript dated 18 January 2023 on page 49 at lines 42 to 46.
Following a short adjournment, the Second Respondent added evidence to clarify his earlier evidence about what information was recorded about leave on the payslips and asserted that the balance shown was changing over time.[28]
[28] Transcript dated 18 January 2023 on page 51 at lines 5 to 12.
When asked about an email of 14 August 2021 and earlier evidence that this was the first time the Applicant had raised overtime, the Second Respondent clarified that there were two separate issues raised by the Applicant, being excessive workload on 11 August 2021 and overtime on 14 August 2021. The Second Respondent denied that the Applicant had raised either issue on 6 August 2021 in a conversation.[29] He maintained that the overtime issue was first raised on 14 August 2021.
[29] Transcript dated 18 January 2023 on page 52 at lines 22 to 23.
The Second Respondent stated that he had decided to dismiss the Applicant in late August 2021, when he had arranged the performance review due to issues with her patients. He then met with her on 6 September 2021 to dismiss her and gave her a termination letter the next day. Following this, he stated that the meeting on 6 September 2021 was a follow up from the 2 September 2021 meeting. When it was put that he merely suggested she find another job, he agreed. However, he disagreed that he had not dismissed her outright. He said he told her she was dismissed, but was giving her a month’s notice.[30] He denied that he had not told the Applicant her employment was terminated when they spoke on 6 September 2021 and maintained the reasons for termination were conveyed.
[30] Transcript dated 18 January 2023 on pages 53 to 54.
The Second Respondent was asked about a text message sent to him from the Applicant at 9:37pm on 6 September 2021 and agreed he had received it.
When challenged about reasons given for termination in the letter of 7 September 2021, he denied inconsistency between what he had stated about her enthusiasm in an email of 15 August 2021 and what was stated about her lack of desire to upgrade clinical knowledge and skills. He added there were many other issues as well, including that when she had the performance review she stated that she was focussing on the exam and that clinical skills were not her priority. He added that performing well in the job at the clinic was his concern.
When challenged about the lack of examples given in the letter of 7 September 2021 about performance or conduct, he referred back to the contract terms. It was put to him that it was simply “a copy and paste” of the contract terms, but the Second Respondent stated he had wanted to refer the issues he had with the Applicant’s performance back to the contract. He agreed he wanted to “tie it up tightly and neatly”.[31]
[31] Transcript dated 18 January 2023 on page 56.
It was suggested that the Second Respondent had concerns about whether he would be justified to terminate the Applicant under the terms of the contract. He strongly denied this. He asserted that he had never terminated any employee and that his main issue was dignity, honesty, conduct, performance, or the lack of it.
When it was suggested that the Applicant’s termination had caused losses to the Employer because the Applicant was seeing “lots of clients”, the Second Respondent disagreed. He said “my business suffered the immediate short term loss, because she was seeing a good number of patients” for her level of experience, and it was also Christmas time and the clinic was short a physiotherapist.
When it was suggested that the evidence above was inconsistent with the claim that the clinic was losing clients because of her, the Second Respondent agreed. However, he stated that they still had a flow of patients for her because they gave other patients to her to see rather than to another physiotherapist. The financial impact was not the issue, rather it was the Employer’s reputation. He adamantly maintained that there was reason for the performance review and that, as well as non-returning patients of the 22 reviewed, there was also concern about quality of treatment.[32]
[32] Transcript dated 18 January 2023 on page 57 at lines 1 to 20.
The Second Respondent was asked about a notification he made to AHPRA concerning the Applicant. He gave somewhat confusing evidence about whether it was a complaint or concern and what the subject of it was, referring to both performance and conduct, but concluding that “conduct… probably covers everything”.[33] When pressed about the “two main reasons” for the termination, he agreed one was accessing material from the computer relating to another physiotherapist and said that the Applicant had also taken a screenshot of patient information from the computer on the same day.
[33] Transcript dated 18 January 2023 on page 58.
It was suggested that this had been addressed on 3 August 2021 by Mrs Irfan, but the Second Respondent replied that there had been other occasions when the Applicant was downloading other physiotherapist’s material and emails from the computer, and that she had been warned not to do so and to instead only access training material.[34]
[34] Transcript dated 18 January 2023 on page 59 at lines 4 to 18.
When probed about not having submitted evidence about this, the Second Respondent stated that he was a busy clinician and that is why the dispute exists. He further stated that the Applicant had acknowledged she had downloaded material from the computer.
The Second Respondent was asked about the text exchange between the Applicant and Mrs Irfan on 3 August 2021, and that no concern or complaint was made about the Applicant taking a screen shot of the booking diary. The evidence was that Mrs Irfan had not asked for the screenshot of the booking diary and that she had told the Applicant she was not supposed to be downloading material related to other people.[35] The Second Respondent added that the Applicant had kept the screenshot and used it with other information to lodge a complaint against him to AHPRA.[36]
[35] Transcript dated 18 January 2023 on page 60 at lines 41 to 47.
[36] Transcript dated 18 January 2023 on page 61 at lines 4 to 8.
The Second Respondent agreed that on another similar occasion Mrs Irfan had not taken issue with the Applicant taking a screenshot of computer data, but stated that he had an issue with it.
The Second Respondent emphatically denied that he had told the Applicant to download the supervision report of another practitioner to assist in preparing her own.[37]
[37] Transcript dated 18 January 2023 on page 62.
About giving the Applicant’s aggression as one of two main reasons for termination, the Second Respondent maintained that as a member of his cultural community he was not expecting the Applicant to behave as she did. When it was put that he had not expected the Applicant to stand up for her legal rights because he was offering her a pathway to registration as a physiotherapist in Australia, the Second Respondent denied this. He stated: [38]
… - we will pay for your – pay you above your entitlement. You go and check on your Fair Work website, and that’s what I said to [the Applicant].
[38] Transcript dated 18 January 2023 on page 64 at lines 20 to 21.
When referred specifically to the Applicant’s email of 14 August 2021, the Second Respondent maintained that it was characterised and described by him as aggressive in his evidence.
The Second Respondent agreed that the Applicant’s complaints were building up from 11 August 2021, while the Applicant says her issues were building from 6 August 2021.[39] He added that there was the communication from the Applicant on the night of 11 August 2021 and following that on 14 August 2021 from the Applicant.
[39] Transcript dated 18 January 2023 on page 64.
When asked what was aggressive in the email dated 14 August 2021, the Second Respondent said that there were false statements in the email such as attributing to him that he promised to pay her exam fees in the context that he had already paid about $1,000 in professional development and arranged text books. This made the Applicant’s attitude in the email “aggressive”, compounded by her description of her treatment as “unfair”.[40]
[40] Transcript dated 18 January 2023 on page 67.
When it was suggested to the Second Respondent that his characterisation of the email as aggressive was “a bit of an overstatement”, this was rejected. The Second Respondent was pressed about what in the email he considered aggressive and, in summary, he stated it was:
(a)Insisting that a performance review could not be undertaken within six months;
(b)Stating that she was not focussed on in-clinic learning, but rather on passing exams; and
(c)Her tone and manner of conveying these things.
The Second Respondent rejected that the Applicant was simply standing up for herself or pursuing legal rights, and stated that the Applicant had no legal right to have her exam fees paid by the Employer.
When taken to a letter the Second Respondent sent to the Applicant on 15 August 2021,[41] it was suggested that no performance issues were raised at the time, yet the Applicant was terminated in early September 2021. The inference of this was that therefore there were no genuine performance issues. The Second Respondent stated that he was not wanting to inflame things and he thought the letter was balanced.[42]
[41] Court Book at pages 360 to 363.
[42] Transcript dated 18 January 2023 on page 69 to 70.
When cross-examined about the communications on 11 and 14 August 2021,[43] the Second Respondent emphasised that there was a difference between what the Applicant raised as excess workload and the claim for overtime subsequently made. In effect, he appeared to say that he had raised with the Applicant that she should catch up with patient notes during gaps when she did not have a patient, and that it was not necessary that she keep reception staff back by doing so after hours.[44]
[43] Court Book at page 513; Court Book at pages 358 to 359.
[44] Transcript dated 18 January 2023 on pages 71 to 72.
The Second Respondent was cross-examined about instances when he reminded the Applicant about the probation period, said to be relevant to threat or coercion of the Applicant.
Counsel for the Applicant conducted exceedingly confusing cross-examination of the Second Respondent about reminding the Applicant that she was on probation after she had made entries in the booking diaries about a patient being late. The effect of what the Second Respondent appeared to say is that it was not acceptable to treat a patient for less than the 20 minutes allocated to a booking, even if they were late, so there was no purpose to the entries and the clinic staff would arrange for the patient to be appropriately seen by another clinician or rebooked.[45]
[45] Transcript dated 18 January 2023 on page 76 and following.
The Second Respondent was challenged about his evidence that a probation report was completed for AHPRA concerning the Applicant on 10 June 2021.[46] He maintained he had prepared it in June 2021 and given it to the Applicant to sign and forward to AHPRA. He rejected the suggestion that it was completed in August 2021 because of the content of the email from AHPRA at page 531 of the Court Book. The following exchange occurred:[47]
… - So you accept that you finalised this report in August, after 30 August?---There was a lot of, you know, forward and backward, you know, that thing. But it was already done on 10th and was not submitted.
[46] Court Book at page 536; Transcript dated 18 January 2023 on page 81.
[47] Transcript dated 18 January 2023 on page 85 at lines 32 to 34.
The final effect of the Second Respondent’s evidence was that:
(a)He had completed the supervisor report for APHRA in June 2021;
(b)He had given it to the Applicant to sign and upload;
(c)The Applicant did not sign and upload the report until August 2021; and
(d)The report was not fully complete at the time of upload in August 2021, meaning it had to be added to and then signed again when it was eventually submitted in fully completed form after 30 August 2021.
The Second Respondent then added that the assessment he completed in the supervision report portrayed the Applicant positively because he wished to facilitate her registration and ability to work, and that it did not necessarily canvass the employment issues.[48] He agreed, however, that he was obliged to notify AHPRA immediately if there were conduct issues or concerns. As to the information in the supervisor report, he impressed it was relevant to June 2021 when the report had been initially prepared.[49]
[48] Transcript dated 18 January 2023 on page 87.
[49] Transcript dated 18 January 2023 on page 88.
The Second Respondent impressed that he was hopeful that the performance issues with the Applicant would improve at the time the AHPRA report was submitted on 30 August 2021. He was asked how this was consistent with evidence given earlier that he had decided to dismiss the Applicant by this time. He replied:[50]
… So consideration – I think it’s probably just not a good wording thing.
[50] Transcript dated 18 January 2023 on page 88 at lines 38 to 39.
It was put that he was changing his evidence and he replied:[51]
… I – I was considering and that’s why, you know, like, I did two performance reviews prior to termination and I was hoping, you know, like, probably if things, you know, like, will improve during the performance, you know, like, review, I – I will ..... you know, like, my decision.
[51] Transcript dated 18 January 2023 on page 88 at lines 44 to 46.
Again pressed about what Counsel said was a contradiction between information in the AHPRA report submitted in August 2021 and the termination soon after, the Second Respondent stated:[52]
… During, you know, like, the entire, you know, like, period of employment, particularly in August, she wasn’t quite keen to improve her clinical skills.
But you wrote to her on 15 August that you really appreciate that – her eagerness to improve her clinical skills?---You always encourage people.
Okay?---You – yes. And you find the best, you know, like, solution otherwise, you know, like, situation will escalate, you know, like, at work all the time. So I like to be as positive as I can.
Is - - -?---But there’s a time, you know, like, you have to make the decision.
[52] Transcript dated 18 January 2023 on page 89 at lines 20 to 31.
The Second Respondent agreed that there was nothing in the AHPRA report about the Applicant leaving gym equipment out and it contained only positive things said about her performance. He said:[53]
Leaving aside the report, you accept that any concerns you had in August and, indeed, in early September did not rise to the level of seriousness that you would provide notice to Ahpra about them?---Yes. So – I mean, the reason of termination, 25 you know, like, was not only the performance. There were many other, you know, reasons as well. So that’s why I did not want to involve Ahpra at all because I knew, you know, like, it was her first job in the clinic and it will be quite detrimental, you know, for her if I provide any negative feedback in the first supervision report.
[53] Transcript dated 18 January 2023 on page 91 at lines 23 to 29.
Counsel for the Applicant cross-examined about various reports by the Second Respondent to AHPRA concerning the Applicant after her termination and about reports made by the Applicant concerning him. The cross-examination may have been relevant to the issues before the Court if there was contradictory information to AHPRA about the Applicant and the reasons for terminating her, and if they were legitimate. However, ultimately, the evidence was that AHPRA took no action against either the Second Respondent or the Applicant.
The Second Respondent was also cross-examined about the required level of supervision of the Applicant, but the relevance of this to the issues in dispute was unclear.
When cross-examined about Ms Sahito’s evidence that she cleared gym equipment for him and other physiotherapists, the Second Respondent maintained that this was a responsibility of the physiotherapists, although on occasions the reception staff may have also assisted in their tidy/clean up.[54] The Second Respondent stated that he believed there was policy material produced by the Employer stating it was the responsibility of the physiotherapist to clear and tidy gym equipment after use.
[54] Transcript dated 18 January 2023 on page 103.
Concerning whether there were notes or records made about the Second Respondent’s supervision of the Applicant during regular catch ups and meetings with her, the Second Respondent said that there were none because of the frequency and number of these discussions.[55] He maintained that there were records about the Applicant’s performance issues and these where in relation to the 22 patients reviewed with her at the meeting on 2 September 2021.[56]
[55] Transcript dated 18 January 2023 on page 107.
[56] Affidavit of the Second Respondent filed 3 October 2022 at [43].
Contrary to that stated in his email of 26 September 2021, the Second Respondent conceded he had not given the Applicant written warnings prior to her termination.[57]
[57] Transcript dated 18 January 2023 on page 109.
There was exceedingly confusing cross-examination about the events of calling a performance review, but ultimately the evidence of the Second Respondent was:[58]
Did you arrange the performance review on 30 August 2021?---On or around 30 August.
MR LETTAU: And the date of the performance review that you arranged, you say on or around 30 August, was for 2 September?---Yes.
[58] Transcript dated 18 January 2023 page 111 at lines 41 to 45.
Further confusion ensued about when a Facebook post was seen by the Second Respondent proximate to arranging the performance review on 30 August 2021 and holding it on 2 September 2021. I intervened and the following exchange occurred:[59]
HER HONOUR: Did you see the Facebook post after 30 August, which is when you say you organised the performance review?---Yes. So that’s the question I was 15 struggling to answer unfortunately. It was on or around – you know, like, I organised a performance review, and I also saw the Facebook post as well, but I definitely saw this post before doing the performance review.
MR LETTAU: I still haven’t got a definitive answer out of the witness, I will rest 20 that point for now.
THE WITNESS: And there no yes and – so I - - -
MR PYM: Sorry. I object to that. I think he did provide a definitive answer which 25 was to the best of his recollection he thinks it was before, and I think he accepted then the alternate proposition that you put to him, that that might be outside of his reflection.
[59] Transcript dated 18 January 2023 on page 113 at lines 14 to 28.
The Second Respondent was then taken to the Facebook post made on 30 August 2021.[60] It was put that the post was general, non-offensive and did not identify him or the clinic. The Second Respondent seemed to accept some of those propositions, but his evidence conveyed that some members of the public, particularly those associated with their ethnic and cultural communities, would understand to whom the Applicant was referring.[61]
[60] Court Book at page 813.
[61] Transcript dated 18 January 2023 on pages 114 to 115.
The Second Respondent was asked about the Defence filed 27 April 2022 at [49(d)] which states:
The applicant was directed to complete time sheets in order to track the hours 35 she worked, but the applicant consistently failed to sign the time sheets, or accurately record the time that she worked.
His evidence was that he knew the Applicant was completing timesheets and was content for her to continue to do so if she wanted. He did not directly address that the Defence at [49(d)] is inconsistent with his other evidence that the Applicant was not directed to complete timesheets.
EVALUATION OF EVIDENCE AND KEY FINDINGS OF FACT
Having had the benefit of hearing and observing the parties give evidence, where there is factual dispute, in most instances, it is possible to resolve the dispute on the basis of the parties’ unchallenged affidavit evidence, contemporaneous records and written communications between the Applicant and the Second Respondent which are in evidence before the Court.
It is relevant that the manner in which the parties gave their evidence is likely to have been impacted by cultural factors and by English not being their first language. Further, the manner in which the Applicant gave evidence is likely to have been impacted by personal beliefs held about what she wanted and expected from the employment, not necessarily grounded in objective fact.
The Second Respondent often gave long answers to questions and sought to explain or defend himself or to rebut the evidence of the Applicant. This may create an impression that he was not a reliable witness, but I do not have that impression. Instead, I consider that it reflects his character and personal values which place great emphasis on dignity, faith and honesty, which is discernible from his evidence.[62]
[62] Transcript dated 18 January 2023 on page 56 at line 27.
Sadly, this case involves parties setting out with good intentions towards one another, but each had very different expectations about the nature of the employment relationship upon which they embarked. This, in my view, has led to misunderstandings between them, conflict and then dispute culminating in the Applicant’s employment being terminated. Not all the claims made by the Applicant are made out. As will be apparent from the findings and reasons below, where the evidence of the Applicant conflicts with that of the Second Respondent, I prefer that of the Second Respondent which is more logically cogent and supported by documentary material.
Applicable Award
Both parties accepted that the relevant award governing the Applicant’s employment was the Health Professionals and Support Services Award 2020. Initially, the Applicant had claimed that she was classified as a Level 2 Health Professional Employee. However this was not pressed at the hearing, and instead she maintained that she was classified as a Level 1, pay point 3 employee. The Respondents maintained that the Applicant’s classification was a Level 1 pay point 2 employee.
Schedule A of the Award provides for the Classifications of health professionals covered by the Award, including physiotherapists, as is clear from Schedule B which lists the common health professionals to which the Award responds.
In Schedule A, the meaning of a Level 1 Health Professional is provided for as follows:
A.2.1 Health Professional—level 1
(a)Positions at level 1 are regarded as entry level health professionals and for initial years of experience.
(b)This level is the entry level for new graduates who meet the requirement to practise as a health professional (where appropriate in accordance with their professional association’s rules and be eligible for membership of their professional association) or such qualification as deemed acceptable by the employer. It is also the level for the early stages of the career of a health professional.
The Applicant’s own evidence about her qualifications and work experience is set out at [4] to [5] of her affidavit filed on 25 August 2022.[63]
[63] Court book at page 430.
The meaning of a Level 1 Health Professional does not itself distinguish between pay points, however Schedule C of the Award at clause C.2.1 assists. This clause refers to pay point 3 applying to a 4 year degree. The Applicant’s uncontradicted statement was that she completed a 5 year qualification equivalent to an Australian Bachelor of Physiotherapy. Accordingly, I find that her qualifications and experience, including that which she gained while in employment with the First Respondent, meets the description of Level 1 pay point 3.
Although the Applicant had very limited work experience in Pakistan, it was not in a regulated industry where the health professional had to be registered and the description of the work she did was in a very limited field of paediatrics.
The parties also seemed to agree that if the Applicant worked overtime, she was entitled to be paid overtime rates in accordance with cl 24 of the Award. However, the Respondents say that the Applicant did not work overtime and, instead, her hours of work were averaged in accordance with the terms of her contract and that this was permissible pursuant to the Award.[64]
[64] Defence filed 27 April 2022 at [49].
There was also agreement between the parties that the Applicant was paid a fixed salary of $2,076.92 per fortnight.
Date of commencement of employment
The Applicant claims she commenced work on 6 April 2021 while the Respondents say it was 12 April 2021.
I prefer the evidence of the Second Respondent about this subject for the following reasons:
(a)The Applicant has made contradictory representations about when she commenced work. For the provider number application she states the commencement date is 24 March 2021, which does not accord with her statement in her first affidavit filed 25 August 2022 at [31] and [32];[65]
[65] Affidavit of the Second Respondent filed 3 October 2022 at Annexure MI-12 and Annexure MI-13.
(b)Although Counsel for the Applicant submitted that the documentary evidence was consistent with a start date of 6 April 2021 and he referred the Court to Annexure FS-14 of the Applicant’s first affidavit filed 25 August 2022, being an enquiry to the Fair Work Ombudsman made by the Applicant’s husband, it is self-serving as it is was created when the parties clearly had differences of opinion;[66]
[66] Transcript dated 19 January 2023 on page 28; Affidavit of the Applicant filed 26 August 2022 at Annexure FS-14.
(c)The objective and contemporaneous records created before any dispute arose support a commencement date of 12 April 2021 on the balance of probabilities because:
(i)The Applicant represented this date as her start date in her AHPRA Orientation Report;[67]
(ii)The notification from Medicare of the Applicant’s provider number was dated 3 April 2021 and sent to the Applicant’s address. It is unlikely, given this date, that the provider number would have been available on 6 April 2021;
(iii)The first timesheet for the Applicant is for the fortnightly period commencing 12 April 2021 and a handwritten note on it states “[the Applicant] starts 12 April 2021”;[68]
(iv)The payroll record maintained by the Employer recorded the date of commencement of the Applicant’s employment as 12 April 2021;[69] and
(v)The first payslip for the Applicant in evidence is for the fortnightly period ending 20 April 2021;[70] and
(d)The Applicant admits she did not have patients until 12 April 2021, and to the extent that she claims she spent four days in the week of 6 April 2021 shadowing the Second Respondent and the other physiotherapist, I reject her evidence as she has produced no documents corroborating that to be the case. I infer that she did not complete or prepare a timesheet for that week, otherwise it would have been tendered in her case.
[67] Affidavit of the Second Respondent filed 3 October 2022 at Annexure MI-17.
[68] Tender Bundle of the Applicant at Tab F.
[69] Affidavit of the Second Respondent filed 3 October 2022 at Annexure MI-16.
[70] Affidavit of the Applicant filed 25 August 2022 at [34].
All the above combined make it reasonable and probable that the Applicant attended the clinic in the week of 6 April 2021 for some periods to address administrative matters relating to her employment, but was not performing work.
Claims about excess hours of work/workload
The Applicant claims that she had several conversations with the Second Respondent about working excessive hours, with the first of these occurring in May 2021.The Second Respondent denies this and says the first time workload or excess hours was raised was on 11 August 2021.
I reject the Applicant’s claims and prefer the Second Respondent’s evidence that complaints and concerns about excess hours/overtime or excess workload were first made in mid-August 2021 for the reasons that follow.
The Applicant’s own evidence in her affidavit filed 25 August 2022 at [7] to [21] conveys two clear sentiments. First, that she was motivated to obtain residency in Australia and, second, had chosen to work in Tasmania because of her preference to pursue the musculoskeletal field of physiotherapy and to work in this field, she needed to pass exams.[71]
[71] Affidavit of the Applicant filed 25 August 2022 at [12].
Having commenced employment with the Employer in Tasmania in April 2021, in the context of her evidence referred to at [123] of these reasons, I find it unlikely that the Applicant began complaining or discussing excess workload or overtime with the Second Respondent in May 2021, being just a little over one month from when she commenced work with the Employer.
Although the Second Respondent agrees the Applicant’s workload increased when another physiotherapist resigned,[72] her own evidence is that she was contracted to work 40 hours per week on average, which she was not initially doing.[73]
[72] Mr Shahid.
[73] Affidavit of the Applicant filed 25 August 2022 at [44] to [48].
Between May 2021 and June 2021 inclusive, the booking diaries show a trend in increased patient load. I find that the Applicant’s hours of work increased to accommodate this. However, the booking diaries on which the Applicant relies show that patients were not scheduled/booked from the same total hours daily and on some days no patients were booked after a certain time. This tends to coincide with the evidence of the Second Respondent and Mrs Irfan that they sought to adjust hours so that they averaged to 40 per week consistent with the terms of the contract of employment.
The variation in patient bookings is also consistent with the Applicant’s evidence about discussions with Mrs Irfan in particular.[74] It is notable that the evidence of the Applicant about conversations with Mrs Irfan about her hours is very particular, but not so in respect of asserted conversations with the Second Respondent.
[74] Affidavit of the Applicant filed 25 August 2022 at [55], [60] to [61], and [64].
I find that the Applicant did raise concerns about her hours of work with Mrs Irfan in late May and June 2021, but not with the Second Respondent in this period. I conclude that the discussions were in the nature of a request to work different and fewer hours to enable her to meet family responsibilities.[75]
[75] Eg. Affidavit of the Applicant filed 25 August 2022 at [60].
I infer and find, based on the Applicant’s own evidence that a tension developed between her needs and commitments to family on the one hand and the hours of work she had contracted to do on the other. I find that by early August 2021, this came to a head when she requested sick leave and absence from work due to her husband having a minor operation.[76]
[76] Affidavit of the Applicant filed 25 August 2022 at [68] to [71].
I reject the Applicant’s claims that the subject of the conversations with Mrs Irfan in May and June 2021 and her conversations with Mrs Irfan and the Second Respondent in early August 2021 were a complaint about working excessive hours, overtime or workload per se. I consider that the Applicant has subsequently perceived them as such to suit her case, but at the time, I find that she was seeking to vary the total and spread of hours she was required to perform for personal reasons.
I find, on the basis of the Applicant’s evidence, that on 11 August 2021 she alleged to the Second Respondent that he had previously promised to pay exam fees, this being very soon after the disagreement about the Applicant’s hours of work and sick leave claim in early August 2021.[77]
[77] Affidavit of the Applicant filed 25 August 2022 at [74] to [77].
I find on the basis of the Applicant’s own evidence that by mid-August 2021, she appreciated that the job she had taken was not suiting her and her needs. This triggered her email of 14 August 2021 and the content of it.[78]
[78] Affidavit of the Applicant filed 25 August 2022 at [79] to [84].
The Applicant has not formulated her claim for adverse action on the basis of a refusal on the part of the Employer to provide leave contrary to a provision of the Award. The Employer accommodated many of her requests for time off to meet personal commitments and provided benefits to her beyond the terms of the Award or her contract of employment.[79]
[79] Affidavit of the Second Respondent filed 3 October 2022 at [52] and [59].
Promise to pay exam fees
Noting the above findings, whether there was in fact a promise made by the Second Respondent to pay the Applicant’s exam fees becomes an important factor in the evaluation of the parties’ conduct after August 2021 and in ascertaining the reasons for termination of the Applicant’s employment about one month later.
I prefer the Second Respondent’s evidence about the issue of whether he had promised to pay the Applicant’s exam fees.[80] It is extremely unlikely that the Second Respondent would offer to pay the exam fees at the Applicant’s employment interview, given what the parties agree was discussed.[81]
[80] Affidavit of the Second Respondent filed 3 October 2022 at [8]; Transcript dated 18 January 2023 on pages 119 to 120.
[81] Affidavit of the Applicant filed 25 August 2022 at [26]; Affidavit of the Second Respondent filed 3 October 2022 at [8].
I consider it likely that the Applicant has confused or conflated in her mind what Mr Wahajuddin said about the Second Respondent assisting her to complete the exams. I find that the Second Respondent did not promise to pay for the Applicant’s exam fees at any stage, but likely agreed to assist her study and preparation for them. I find the Applicant incorrectly and falsely alleged that the Second Respondent had promised this.
The findings at [136] of these reasons are also consistent with the tenor of the Applicant’s evidence in her affidavit filed 25 August 2022 at [74] to [80], which conveys that she was struggling to have funds to pay for the exam fees and so raised the issue of payment of the exam fees by the Second Respondent. He denied he had promised to pay them. I accept his evidence that during their discussion on 11 August 2021, he said that if her performance was exceptional he may have considered paying for them at a later time.
Applicant’s work performance and events leading to termination
The Applicant relied heavily on the contents of a supervision report submitted to AHPRA dated 10 June 2021[82] to contradict and discredit the Respondents’ claims that there were performance and conduct problems and that this led to her termination.
[82] Affidavit of the Applicant filed 25 August 2022 at Annexure FS-17.
I find that based on independent and objective evidence, an incomplete version of the report must have been submitted before 30 August 2021.[83]
[83] Being an email from AHPRA dated 30 August 2021, as attached to the affidavit of the Applicant filed 25 August 2022 at Annexure FS-15.
The Second Respondent agrees that he assessed the Applicant’s performance positively, but was firm in his view that the report reflected the Applicant’s performance up until 10 June 2021 and not her performance between that time and when the supervision report was finalised and submitted in late August 2021.
It is clear that the report to AHPRA, attached to the Applicant’s affidavit filed 25 August 2022 at Annexure FS-17, is the first supervision report and relates to the first three months of employment. I infer that the Applicant had seen the mostly complete version before they raised issues of it being incomplete in late August 2021 as it is likely she sent it to AHPRA who communicated with her about it. I also infer this from a text exchange on 7 September 2021[84] and the last paragraph of the Applicant’s email to the Second Respondent of 8 September 2021.[85] These establish that a separate supervision report was created and submitted to AHPRA for the period June 2021 to termination of the Applicant’s employment.[86]
[84] Affidavit of the Applicant filed 25 August 2022 at Annexure FS-21.
[85] Affidavit of the Applicant filed 25 August 2022 at Annexure FS-22.
[86] Affidavit of the Applicant filed 25 August 2022 at Annexure FS-31.
Based on the assessments made by the Second Respondent in the initial and final supervision reports, I find that the Applicant’s performance as a physiotherapist was largely regarded as satisfactory and fairly commensurate to her level of experience, but this does not correspond to the Second Respondent having no concerns about the Applicant’s performance and conduct in her employment relationship, which I consider to be a distinct issue as explained in the reasons that follow.
Termination of employment and reasons for same
I accept the Second Respondent’s evidence that he was considering terminating the Applicant’s employment from late August 2021. In arriving at this finding, I have given significant weight to the Second Respondent’s evidence about the Applicant accusing him of breaking a promise about payment of the exam fees and the content of two emails which the Applicant admits she sent to the Employer’s general work email address dated 14 August 2021 and 25 August 2021 and which involved personnel issues between and employer and employee which are usually confidential.
The Second Respondent’s evidence in his affidavit filed 3 October 2022 at [36] regarding his reasons for terminating the Applicant’s employment is clear and entirely consistent with the evidence he gave under cross-examination as noted at [80] to [83] of these reasons concerning his affront at the content and tone of the email sent by the Applicant on 14 August 2021.
The Second Respondent’s evidence was also corroborated by Ms Nur, who heard the conversations between the Applicant and the Second Respondent. The description she gave of the Applicant’s demeanour in her affidavit and under cross examination accords with that of the Second Respondent. [87]
[87] Affidavit of Tahsiba Nur filed 3 October 2022 at [33] to [38].
In late August 2021, the Second Respondent was attempting to get a police check for the Applicant through the company CV Check, which he says was to enable him to secure a National Disability Insurance Scheme contract.[88] The Applicant seems to agree, but does not address whether she had delayed in replying to the multiple prompts from CV Check to authorise it.
[88] Affidavit of the Second Respondent filed 3 October 2022 at [39] and Annexure MI-14.
It may be that there was a lack of communication between the Second Respondent and Applicant as to the purpose of the police check. The Applicant says that she first received an email from CV Check on 25 August 2021,[89] but does not address the representation by CV Check that they had sent a number of “emails and text messages”. I find that there was a delay in processing a police check for the Applicant and this caused additional frustration to the Second Respondent.
[89] Affidavit of the Applicant filed 4 November 2022 at [16].
On 30 August 2021, the Applicant made the Facebook post attached to the Second Respondent’s affidavit filed 3 October 2022 as Annexure MI-15. This post is not mentioned at all in the Applicant’s first affidavit filed 25 August 2022. In view of the explanation subsequently given in the Applicant’s affidavit filed 4 November 2022 at [17], this in my view is a telling omission which conveys that the Applicant has selectively put evidence before the Court to suit her narrative.
The Second Respondent states that on 30 August 2021,[90] the relationship was becoming untenable and he communicated to Ms Nur that he was considering terminating the Applicant’s employment. This state of mind accords with that of the Applicant’s knowledge about the state of the employer/employee relationship as she was seeking out other employment.
[90] In cross-examination, the Second Respondent said ‘30 August 2022’. However, it is obvious in the content of these proceedings that the correct date is 30 August 2021.
The Applicant says she was seeking other employment because the Second Respondent had threatened to terminate her employment “over the issues I had raised”.[91] However, the evidence in her affidavit filed 25 August 2022 at [91] makes it plain that the Second Respondent had serious concern that she had sent another email to the workplace email address which was visible by other employees. This is entirely consistent with the Second Respondent’s evidence as referred to at [80] to [83] of these reasons.
[91] Affidavit of the Applicant filed 4 November 2022 at [17(a)].
I consider it unlikely that the Second Respondent made threats to terminate the Applicant’s employment on 25 August 2021 or at any time. However, I find that the Second Respondent was probably exhibiting a high degree of frustration and loss of patience with the Applicant for:
(a)Not following his directions about sending emails;
(b)Affecting the business of the clinic with patients not returning and securing NDIS work; and
(c)Calling his integrity into question and it being broadcast to his staff.
The Applicant and Second Respondent gave largely consistent evidence about a performance meeting on 2 September 2021.[92] Their respective accounts mutually demonstrate a difference of opinion and tension about the degree of guidance and supervision the Applicant should receive from the Second Respondent on one hand and the standard of clinical knowledge and patient service the Second Respondent expected from the Applicant on the other hand.
[92] Affidavit of the Applicant filed 26 August 2022 at [103] to [107]; and Affidavit of the Second Respondent filed 3 October 2022 at [43].
I find that, although the Second Respondent was considering terminating the Applicant’s employment by late August 2021 and 2 September 2021, it was on 6 September 2021 he had decided to do so.
I accept that the decision to terminate the Applicant was effectively made on 6 September 2021 and then confirmed in writing on 7 September 2021. During the discussion between the Second Respondent and Applicant on 6 September 2021, the Employer was affording procedural fairness to the employee and communicating the reasons for termination. My reasons for this finding include:
(a)The evidence of the Second Respondent about the meeting on 6 September 2021 is detailed and thorough, and I accept it. He maintained his evidence very firmly despite repeated and persistent challenge and cross-examination;
(b)The Applicant denied that there was a performance meeting on 6 September 2021, but then agreed there was a discussion about performance;[93]
(c)The Applicant denied that the Second Respondent had raised concerns about how she was recording her work hours in her timesheets, but then stated that the Second Respondent had told her that Ms Nur was to complete the time in and time out;[94]
(d)The Applicant’s evidence that there was an ad hoc meeting at 1:10pm does not accord with what the booking diary clearly shows was a performance meeting scheduled at 12:50pm on 6 September 2021. The evidence is that the booking diary was maintained by reception staff and they have no reason to fabricate the record;[95]
(e)The Applicant’s timesheet entry for this day is amended but the purpose and meaning of this is unexplained;[96]
(f)Although the text message sent at 9:57pm on 6 September 2021 accords with some of what the Applicant says was discussed at the meeting on 6 September 2021, it is plainly not a complete record and it is self-serving. It is telling that there is no record of the communication claimed to have occurred with the Fair Work Ombudsman. This is in distinct contrast to the record produced by the Applicant concerning the enquiry made on 26 August 2021[97]. Furthermore, while the Applicant states in her evidence that “advice was taken from Fair Work”,[98] the text itself refers to “legal advice”;
(g)The Applicant had received very specific advice from the Fair Work Ombudsman by late August 2021 about her concern relating to the Employer’s approach to averaging of her hours of work, but there is no evidence that she followed the advice in the response given which causes me to doubt the legitimacy of her claims;[99] and
(h)As the Applicant was already looking for other employment, it is entirely logical that the conversation would be as is stated by the Second Respondent in his evidence.[100]
[93] Transcript dated 17 January 2023 on page 30.
[94] Transcript dated 17 January 2023 on page 31.
[95] Applicant’s Bundle of documents at Tab F on page 311.
[96] Tender Bundle of the Applicant at page 310.
[97] See Affidavit of Applicant filed 25 August 2022 at [96] and Annexure FS-14.
[98] Affidavit of the Applicant filed 25 August 2022 at [113].
[99] In the Applicant’s affidavit filed 25 August 2022 at Annexure FS-14, the advice being to calculate what was said to be owed and email the employer.
[100] Affidavit of Second Respondent filed 3 October 2022 at [44.6] and [44.7].
Collectively, the matters at [154(b)] to [151(h)] of these reasons mean that I do not accept the tenor of the Applicant’s account of what occurred at the 6 September 2021 meeting. I find that the Applicant was well aware that the Second Respondent was intending to terminate her employment for reasons relating to accuracy of timesheets, her impact on the business, and her aggression in challenging his integrity and failing to follow directions. I do not accept that he was intending to terminate the employment because she was raising her right to be paid overtime.
The text message of 6 September 2021 was sent in the knowledge that this was the second occasion the Applicant had been required to attend performance discussions which would likely lead to her formal termination being notified. The Applicant clearly had an appreciation that the Respondents were dissatisfied with her as an employee and the reasons for this.
I prefer the Second Respondent’s evidence about what occurred at the performance meeting/discussion on 6 September 2021 and I find that the Second Respondent put the Applicant on notice to “show cause” why she should not be terminated, but also stated he was agreeable to her working out the notice period.
Adverse action
The Applicant relies on various purported conversations and written communications by email or text with the Second Respondent to establish that she was treated adversely and threatened because she was exercising workplace rights.[101]
[101] See Applicant’s Outline of Submissions filed 7 November 2022 at [26] to [31].
Those purported workplace rights that were alleged to be exercised were not well defined by the Applicant and her Counsel. Ultimately, the Applicant seems to have mostly relied on the circumstances leading to her dismissal.[102]
[102] Oral submissions of Mr Lettau, see Transcript dated 19 January 2023 at page 19.
In view of this unsatisfactory state of affairs, I have directed myself to the Statement of Claim and address that which is pleaded (albeit oppressively).[103]
[103] Statement of Claim filed 11 March 2022 at [61] to [79].
Regarding the complaints about excess hours said to amount to pursuit of a workplace right, the five complaints pleaded are between 12 May 2021 and 14 August 2021 and are collectively expressed as being a complaint that she was required to work more than ordinary full-time hours and was not paid overtime.[104]
[104] I.e. in excess of 38 hours.
The Applicant at no time in the relevant period complained that she was not being correctly paid for the hours of work. I have found that the complaints were as to the spread of hours and that they did not suit her personal needs.[105] I find that the Employer did not require the Applicant to work overtime, but based on the records maintained by the Applicant she is deemed to have done so as a result of the reverse onus.[106]
[105] At [127] of these reasons.
[106] Fair Work Ombudsman v Taj Palace Tandoori Restaurant Pty Ltd [2021] FMCA 258 at [66] and [67].
In the Statement of Claim at [80], an allegation is made about a request for leave to get a Covid-19 vaccination. I do not accept the Applicant’s evidence regarding the nature of the conversation she had with the Second Respondent about this request.
The inference the Applicant seeks to be drawn is that she was refused time off and not paid for the lunch period during which she attended the vaccination appointment. However, the evidence does not support this, nor does the Applicant’s characterisation of the discussion. The text exchange is polite and the Second Respondent responds “no problem” and agrees that the Applicant need not work during the afternoon. The Applicant agreed when cross-examined that she had been given the afternoon off after attending the appointment during a lunch break.[107]
[107] Transcript dated 19 January 2023 on page 23.
In the Statement of Claim at [84] to [85], the Applicant pleads a workplace right concerning a complaint said to have been made to the Fair Work Ombudsman. However it is difficult to understand how this relates to the adverse action claim as nothing substantive is pleaded about the adverse effect said to have arisen because of the complaint. Indeed, the Applicant’s own evidence is that the Respondents were not made aware of the contact with the Fair Work Ombudsman on 26 August 2021. Accordingly, I find there is no causal nexus between the making of the complaint or pursuit of a workplace right and being treated adversely as I accept the evidence of the Applicant that she did not inform the Respondents that she had made a complaint to the Fair Work Ombudsman.
Matters are pleaded in the Statement of Claim at [85] about an AHPRA supervision report. There was considerable evidence about this topic, such as who prepared it, how it was prepared, and when it was first submitted to AHPRA.
The evidence was confusing and, to the extent the Applicant claimed she had completed the supervision report and the Second Respondent had told her to access a previous physiotherapist’s report to complete it, I reject her evidence. Much cross-examination of the Second Respondent and also Mrs Irfan occurred in relation to the preparation of the report, when it had been submitted and if it had been “changed”. Ultimately, it does not appear particularly material to the issues to be decided. However, preferring the Respondents’ evidence, I find that the document was more likely prepared by the Second Respondent, and then sent to the Applicant for approval and submission by her to AHPRA. However, it was not actually submitted until late August 2021 and resubmitted when AHPRA noted the report was not complete.
In the Statement of Claim at [89] to [99], the Applicant pleads various matters concerning the lead up to the termination of her employment and asserts that, by sending a text message on 6 September 2021,[108] she was asserting a workplace right.
[108] Statement of Claim filed 11 March 2022 at Annexure FSS10.
In the context of events that occurred between 30 August 2021 and 6 September 2021, I find that by sending the text message the Applicant was seeking to corroborate her self-serving interpretation of part of her discussion with the Second Respondent during the meeting. As I have rejected the Applicant’s account of this discussion, I am not persuaded that the text, as pleaded as an inquiry about the Applicant’s “workplace right”, was genuine, in good faith or for a proper purpose. In arriving at this conclusion, I have placed reliance on PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 and the reasons of Rangiah J at [26] and Charlesworth J and Snaden J at [137].
Reasons for termination of employment
The parties each provided evidence that a performance meeting took place on 2 September 2021, which was called shortly before.
There is dispute about whether there was a performance meeting on 6 September 2021. However, I have found that there was one, preferring the evidence of the Second Respondent for the reasons given at [153] to [154] of these reasons. I accept that there may well have also been discussion about what hours the Applicant was working as that clearly was inter-related to the Second Respondent raising concern about inaccuracies in the timesheets the Applicant prepared.
I find that the Second Respondent knew the Applicant’s six month probation period was due to expire and, based on the evidence the Second Respondent gave, I am satisfied that he was mindful of that and wanted to ensure that he afforded the Applicant procedural fairness in carrying out the termination of her employment.[109] The Applicant’s own evidence confirms that there was discussion about the probation period, but I consider she has misconstrued or misrepresented what was discussed to suit a narrative which supports her claim.[110]
[109] Transcript dated 18 January 2023 on page 102 at lines 18 to 40.
[110] Affidavit of the Applicant filed 25 August 2022 at [111].
I find on the balance of probabilities that by the time the meeting occurred on 6 September 2021, the Second Respondent had formed a state of mind that the Applicant’s employment would be terminated, but noting his original desire to assist a person from his community and noting the Applicant’s personal circumstances, he found the decision to be taken, a difficult one. He was seeking to ensure it was carried out in a procedurally fair way and was willing to allow the Applicant to serve out her notice period.[111]
[111] Transcript dated 18 January 2023 on page 102 at lines 18 to 40.
The reasons given for terminating the Applicant are generally expressed in the termination letter dated 7 September 2021,[112] but the reasons were clearly conveyed in the discussion on 6 September 2021 noting the findings above. Further, they are discernible in the context of the findings I have made above at [143] to [157] of these reasons about events after 14 August 2021.
[112] Affidavit of the Second Respondent filed 3 October 2022 at Annexure MI-16.
In addition, considerable evidence has been given by the Second Respondent which I have accepted and it establishes that the real or operative reason the Applicant was terminated related to her conduct as an employee, the concern the Employer had about her integrity, ethics and diligence and more particularly because of:
(a)Inaccurately recording timesheets;
(b)Aggression by accusing the Second Respondent of being dishonest and broadcasting accusations and her dispute to other employees; and
(c)Not performing her duties efficiently and to the high standard expected by the Employer.
The above reasons for termination were communicated in the discussion with the Applicant on 6 September 2021 and fall squarely within points 1, 2 and 3 of the termination letter dated 7 September 2021.
DETERMINATION OF CLAIMS
Non-payment of overtime rates claim
Central to this claim is whether the Applicant did in fact work overtime within the meaning of the Award, namely if she worked in excess of “ordinary hours”, being 38 hours a week pursuant to cl 13.1 of the Award.
The Second Respondent was firm in his evidence that he and Mrs Irfan, who was also involved in management of the clinic, monitored the hours worked and ensured the Applicant did not exceed the 38 hours per week average.
The Applicant maintained that she often worked until after her last patient booking was finished and also worked through meal breaks because of the volume of work required.
Various documents were produced in the evidence purporting to record the hours of work undertaken by the Applicant. They were copies of:
(a)Timesheets completed by Ms Nur;
(b)Timesheets completed by the Applicant;
(c)Redacted electronic booking diary for the Applicant and Second Respondent for the period 19 April 2021 until 24 May 2021; and
(d)Timesheets and the corresponding electronic booking diary for the Applicant, by fortnight of work, for the period 12 April 2021 to 13 September 2021.[113]
[113] Tender Bundle of the Applicant at Tabs A, F, and G; Affidavit of the Applicant filed 25 August 2022 at Annexure FS-5; Affidavit of the Second Respondent filed 3 October 2022 at Annexures MI4, MI18, and MI19; Affidavit of Tahsiba Nur filed 3 October 2022 at Annexure TN1.
Many of the timesheets completed or created by the Applicant are not signed, and some are amended and changed. In some instances her affidavit evidence contradicts the entries in the time sheets.[114] Much of the writing seems to be in the same pen and there was a lack of specific evidence given about how and when the Applicant completed the timesheets.
[114] Affidavit of the Applicant filed 25 August 2022 at [44]; Applicant’s bundle of documents at Tab F on page 178.
The timesheets completed by Ms Nur were also corrected in places and the accuracy of them depended on her being able to observe the Applicant, not only at the start and finish of each day, but at frequent times during the day. I think this unlikely. Further, she acknowledged an error in her recording under cross-examination.[115]
[115] At [12(o)] and [12(p)] of these reasons.
The Applicant’s timesheets also reflected her evidence that when she stayed back after she had her last patient to discuss patients, observe the Second Respondent treat patients, or discuss clinical skills with him, she treated that as working and included a later finish time.
The purpose of the electronic booking diary is to record when patients have made an appointment and what appointments the Applicant had. It does not necessarily, totally or accurately capture how much time the Applicant worked. The evidence also was that the booking diary got amended and changed at times. For these reasons, I am not satisfied that the booking diary constitutes a true record of the Applicant’s hours of work.
I have come to the conclusion that, to a greater or lesser extent, both the Applicant and the Respondents have sought to rely on records of the Applicant’s hours that are reconstructed. Accordingly, I am not satisfied that any of the records are accurate.
Failure to make and keep employee records
The findings above and conclusion at [185], concerning time sheets and record keeping are relevant to this claim. By virtue of s 535 of the FW Act, the Respondents were required to keep an employee record for the Applicant in compliance with regs 3.31, 3.32, 3.33, 3.34 and 3.35 of the Regulations. That obligation is legally distinct from the obligation to provide a payslip pursuant to s 536 of the FW Act and regs 3.45 and 3.46 of the Regulations.
I am not satisfied that the timesheets completed by Ms Nur satisfy the requirements of s 535 and the relevant regulations. The payslips do not satisfy the obligation either for the reasons expressed at [182] of these reasons. Finally, the booking diary does not satisfy the requirements either for the reasons given at [184] of these reasons. In addition, both these records lack substance and detail of the nature contemplated by the Regulations.
Accordingly, these findings are to the detriment of the Respondents, given the provisions of s 557C(1)(b)(i) of the FW Act. The hours of work asserted to have been performed by the Applicant must be accepted,[116] meaning that pursuant to the Award she is entitled to be paid overtime on some days of work and because the Award does not permit salary packaging for Level 1 employees.[117] I arrive at this conclusion reluctantly because I am not satisfied that the Applicant’s record of hours is accurate.
[116] Ghimire v Karriveiw Management Pty Ltd (No.2) [2019] FCA 1627 at [16].
[117] Transcript dated 18 January 2023 on page 40 at lines 35 to 45.
The Respondents submitted that the Applicant’s reliance on the reverse onus is overstated and that it was for the Court to determine which of the parties’ evidence about hours of work is to be preferred. It is no doubt correct that the Court must decide which evidence is preferred, but I have found that the Respondents did not maintain an accurate record of the hours of work performed by the Applicant. Accordingly, s 557C(1)(b)(i) of the FW Act compels the Court to prefer the Applicant’s record despite it also not being considered to be accurate.
I reject the submission in the Respondents’ written submissions at [39] because I am not satisfied that the averaging of hours was effectively undertaken within the permissible remit of the Award. Further, the records they rely on as constituting the record of ordinary hours are not reliable, clear or accurate.
The Respondents assert in their written submission at [16] that the record of hours worked was maintained in an Excel spreadsheet and booking diary, but I have rejected the suggestion that the booking diary accurately records the hours worked by the Applicant. The Excel spreadsheet was referred to in cross-examination, but is not in evidence and I cannot satisfy myself on the balance of probabilities that it is an employee record that accords with the requirements of s 535 of the FW Act and relevant regulations.
The Applicant’s claim for overtime succeeds, although the quantum of it is not particularised and calculated. I will make directions for the parties to file calculations identifying what the quantum of the payment due to the Applicant is and in due course pronounce orders accordingly.
General protections claims
Adverse action claim
The question for the Court in relation to this claim is whether any of the prohibited reasons alleged by the Applicant were a substantial and operative reason for her dismissal. [118]
[118] Board ofBendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, Gummow and Hayne JJ at [104].
Counsel for the Applicant submitted that there was a nexus between the conversations on 6 September 2021, the SMS message sent that evening and the notification of the termination on 7 September 2021.
Counsel strongly contended that the Applicant’s account of the discussions/meeting on 6 September 2021 should be preferred because the Applicant provided a “conversation starter” and that it was a conversation about a workplace right, namely the Applicant’s entitlement to overtime.[119]
[119] Transcript dated 19 January 2023 on pages 20 to 21.
I disagree. There was a clear conversation starter because a performance meeting was scheduled to occur given my finding at [154(d)] of these reasons. The agreed fact is that the conversation began later than scheduled because the Applicant was delayed with a patient, which also explains why the conversation occurred as it did, with the Second Respondent showing the Applicant timesheets and discussing what he claimed were inaccuracies in them.
That is, the conversation was about inaccuracy in the timesheets, integrity and professionalism. There is no evidence that the Applicant made any statement about not being paid overtime or not being paid according to the Award.
Counsel for the Applicant properly submitted that temporal proximity does not necessarily inform about the real cause of a termination. The discussion on 6 September 2021 was the second time the Second Respondent was expressly taking issue with the Applicant’s professionalism and integrity for making what he considered to be false assertions in the timesheets, inefficient performance and inability to follow directions.[120]
[120] At [43] of these reasons.
Counsel for the Applicant submitted that there were four competing accounts given by the Second Respondent as to the reasons for terminating the Applicant.[121] I disagree. The reasons given in the termination letter of 7 September 2021 express in an overarching way the sentiments captured by the Second Respondent’s evidence about the discussions previously had with the Applicant about:
·Patient treatment up to and prior to the meeting on 2 September 2021;
·Accuracy or otherwise of timesheets up to 6 September 2021;
·Accusations against the Second Respondent about his integrity relating to the exam payment allegation; and
·Ongoing non-compliance with directions.
[121] Transcript dated 19 January 2023 on page 34.
It is hardly surprising that a more detailed or elaborated account has been given by the Second Respondent in evidence for the purpose of the hearing. Further, the Second Respondent’s concerns about the Applicant’s conduct were cumulative. The affidavit of the Second Respondent, his evidence in chief and additional detail is elicited because of the need to respond to the affidavit evidence of the Applicant and also the manner in which Counsel for the Applicant cross-examined. The Second Respondent’s evidence is not inconsistent, rather it is broadly consistent.
Further, to the point of what the Second Respondent included in the post-termination report to AHPRA, it is not surprising that the report is positive because that is consistent with my finding that the reasons for termination were, in reality, points 1 and 3 of the letter of 7 September 2021. The Second Respondent’s view of the Applicant’s performance and clinical standards was a mere subsidiary reason for the termination and, as the Second Respondent stated, he was hopeful that in time her performance and clinical skills would improve as she gained experience of practice in Australia.
In essence I accept the oral submissions of Counsel for the Respondents about the reasons for dismissal.[122]
[122] Transcript dated 19 January 2023 on page 9 at line 2 to page 10 at line 2.
The evidence relating to the former physiotherapist employee, in my view, carried little probative weight in relation to the issues in these proceedings. It is clear there is a factual dispute about whether the Applicant was authorised to access certain documents relating to him or created by him, but I have made findings against the Applicant about this issue and, in any event, it was not expressly a reason relied upon or conveyed to the Applicant at the time of termination.
Similarly, the evidence concerning what the Second Respondent said or did not say to AHPRA about this previous employee does not assist the Court with the issues in this case. Counsel for the Applicant asserted it was relevant because it demonstrated a tendency. I disagree. There is no basis upon which the Court could find that there were false reports made to AHPRA and whether the information provided by the Second Respondent was a “complaint” simply distracts from the fact that the Second Respondent had a statutory duty to submit information because he was a supervisor for the purpose of the Health Practitioner Regulation scheme.
In view of the findings I have made concerning the reasons for terminating the Applicant’s employment, it follows that there was no adverse action for a prohibited reason. I expressly reject the submission at [5] of the Applicant’s written submissions filed on 7 November 2022.
Although the Second Respondent has included other reasons in the letter of termination and greatly expanded upon other issues and performance concerns in evidence given to the Court, this does not detract from the fact that the essential reasons were conveyed to the Applicant and are clear, in my view, from the evidence I have preferred and findings I have made.
I am satisfied that the statutory presumption in s 361 of the FW Act has been rebutted by the Respondents’ evidence in relation to their decision to dismiss the Applicant. I therefore accept [8] to [14] of the written submissions on behalf of the Respondents filed 12 December 2022.
Coercion claim
The Applicant’s coercion claim is pleaded in the Statement of Claim filed 11 March 2022 at [102] to [110]. Its factual basis relies on alleged threats by Mrs Irfan as particularised at [102] and threats by the Second Respondent as particularised at [103], all of which are alleged to have been made after the termination of the Applicant’s employment.
The only evidence about the alleged threats by Mrs Irfan is in the Applicant’s affidavit filed 25 August 2022 at [123] and [124]. Mrs Irfan refutes the Applicant’s evidence in detail in her affidavit filed 3 October 2022 at [19]. Mrs Irfan was not cross-examined about the discussion during which the alleged threats were made.
I prefer the evidence of Mrs Irfan because it is more detailed and it is, in my view, significant that the Applicant had opportunity to dispute the detail given by Mrs Irfan about this discussion when she filed a reply affidavit on 4 November 2022, but did not do so.
Further, the email to AHPRA conveying sentiments about alleged threats do not make any reference to Mrs Irfan whatsoever. I consider that the Applicant has exaggerated what was discussed with Mrs Irfan to fit her narrative of alleged coercion and I find that there were no threats by Mrs Irfan as alleged by the Applicant.
Curiously, the Applicant’s evidence about the threats allegedly made by the Second Respondent is less detailed and confined to one statement allegedly made at the end of the work day on 8 September 2021.[123]
[123] Affidavit of the Applicant filed 25 August 2022 at [126].
The Applicant’s allegation of being threatened by the Second Respondent with a complaint to AHPRA or the Australian Physiotherapy Board is raised for the first time in her email to AHPRA of 8 November 2021,[124] after she had notice that the Second Respondent had lodged a complaint to AHPRA on 15 September 2021.[125]
[124] Affidavit of the Applicant filed 25 August 2022 at Annexure FS-36.
[125] Affidavit of the Applicant filed 25 August 2022 at Annexure FS-35.
However, even when the Applicant did lodge a complaint with AHPRA about the Respondents on 9 November 2021, she did not complain about being threatened by either the Second Respondent or Mrs Irfan.
I find the Applicant’s evidence about the alleged threats to be inconsistent and unreliable. I do not accept her evidence for all the above reasons. In the context of the clear denials maintained by the Second Respondent during cross-examination,[126] I find that the threats were not made as I prefer his evidence.
[126] Transcript dated 19 January 2023 on page 6 at line 24 to page 7 at line 19, and page 7 at lines 35 to 42, and page 19 at lines 3 to 9.
As a consequence of the above findings of fact, the coercion claim fails due to the factual foundation for it not being made out.
For completeness, I address the extensive cross-examination about who prepared the initial supervision report to AHPRA and when it was submitted. Noting my evaluation of the evidence about this topic and my findings, I fail to see how it is relevant to or assists any of the claims made by the Applicant.[127] To the extent that it may be marginally relevant to the real reasons for the termination and whether they were communicated to the Applicant, it is evident some concern and direction about privacy and confidentiality arose before the termination as is obvious from Annexure FS-8 to the Applicant’s affidavit filed 25 August 2022.
Non-monetary matters
[127] [138] to [141] and [167] of these reasons.
Failure to provide employee records upon request
Noting the findings at [186] of these reasons and the concessions in evidence by the Second Respondent referred to at [28] and [37] of these reasons, the Respondents contravened reg 3.42 of the Regulations, a civil remedy provision of the FW Act.
Failure to make available copies of the Award and NES and failure to provide a Fair Work Information Statement
The Second Respondent identifies what documents were provided by way of induction/policies when the Applicant commenced employment.[128] There is no evidence that the documents required by cl 3.3 of the Award and s 125 of the FW Act were given to the Applicant. Instead, the Second Respondent simply states at [12] of his affidavit filed 3 October 2022 that he orally referred the Applicant to the Fair Work website. Further, in circumstances where he stated in oral evidence that the Applicant was employed under a contract and that he thought that salary packaging was permissible but now knows it is not permissible for a Level 1 employee, I find that the contraventions alleged at [28] to [35] of the Statement of Claim are established.
Other miscellaneous claims
[128] Affidavit of the Second Respondent filed 3 October 2022 at [11] and Annexure MI8.
Failure to provide meal breaks
I do not accept that the Applicant was commonly assigned to work during meal breaks. The timesheets and booking diary entries largely provide for meal breaks and to the extent that the Applicant may at times have missed them, I conclude it was because she ran over time with patients, which can be inferred from her lack of experience and admission that she needed assistance with clinical skills.[129]
[129] Affidavit of the Applicant filed 25 August 2022 at [70] and [104].
In any event, the evidence simply does not rise to establishing on the balance of probabilities that cl 15 of the Award was contravened. The claims pleaded at [36] to [48] of the Statement of Claim fail.
Underpayment of wages
For the reasons given at [118] to [120] of these reasons, the claim for payment of wages in the week of 6 April 2021 fails.
ACCESSORIAL LIABILITY
There is no dispute that the Second Respondent is accessorily liable for any of the claims that have succeeded. He is a director, owner and principal of the First Respondent and it was clear from his evidence that he had intimate knowledge of the employment arrangements for the Applicant.
SUMMARY AND CONCLUSION
The parties will need to be heard about the quantum of the overtime claim and the orders that they seek for the contraventions found to have been established and which are referred to at [185], [192], [218] and [219] of these reasons. I will make procedural orders at the time of delivery of this judgment to permit that to occur and subsequently for final orders to be published.
I certify that the preceding two hundred and twenty-four (224) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 17 July 2023
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