Skelton v Commonwealth of Australia trading as Australian Bureau of Statistics
[2023] FedCFamC2G 89
•13 February 2023
Federal Circuit and Family Court of Australia
(DIVISION 2)
Skelton v Commonwealth of Australia trading as Australian Bureau of Statistics [2023] FedCFamC2G 89
File number(s): MLG 2860 of 2021 Judgment of: JUDGE MANSINI Date of judgment: 13 February 2023 Catchwords: INDUSTRIAL LAW – FAIR WORK – termination in alleged contravention of s.8, s340 and/or s.351 of the Fair Work Act 2009 (Cth) – casual contractor engaged to help members of the public complete the 2021 census – terminated by reason of social media post expressing anti-lockdown opinion and conduct during subsequent disciplinary process – where adverse action established in the form of termination of the employment – consideration of evidence as to the actuating reasons for termination – no contravention established – application dismissed with no order as to costs. Legislation: Australian Bureau of Statistics Act 1975 (Cth) s.16(2)
Census and Statistics Regulation 2016 (Cth) reg.7
Fair Work Act 2009 (Cth) ss.8, 12, 340, 341, 342, 351, 360, 361, 365, 539(2), 550(1)
Public Service Act 1999 (Cth) s.10
Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 253 CLR 500
Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014
Elliot v Kodak Australasia Pty Ltd [2001] FCA 1804
Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71
Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587
Rumble v The Partnership Trading as HWL Ebsworth Lawyers [2020] FCAFC 37
Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27
Serpanos v Commonwealth of Australia [2022] FCA 1226
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of last submission/s: 2 December 2022 Date of hearing: 6 & 7 December 2022 Place: Melbourne The Applicant: The Applicant appeared in person Counsel for the Respondent: Mr Matthew Minucci Solicitor for the Respondent: Australian Government Solicitor ORDERS
MLG 2860 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MERILYN SKELTON
Applicant
AND: COMMONWEALTH OF AUSTRALIA TRADING AS AUSTRALIAN BUREAU OF STATISTICS
Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
13 February 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
2.There be no order as to costs.
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 Mansini
IN SUMMARY
Ms Merilyn Skelton was a casual contractor employed by the Australian Bureau of Statistics (ABS) in a field officer role to assist with the 2021 census until that contract was terminated following a complaint by a member of the general public about her anti-lockdown post on LinkedIn.
The ABS is an apolitical organisation and requires its employees to behave in a way which upholds the integrity and good reputation of the ABS and to refrain from demonstrating or supporting political activity. The ABS maintained there were only two reasons for the termination:
·First, Ms Skelton’s LinkedIn post which asked Australians to stand up and revolt against Government lockdowns, which was in breach of its code of conduct and social media policy because it was in support of a political message and identified her as an ABS employee without disclaimer; and
·Second, Ms Skelton’s subsequent emails to her manager when asked to respond to the post were inappropriate, aggressive, disrespectful and in breach of the APS code of conduct and gave the ABS no confidence that she understood its policies and what was expected of her in terms of appropriate workplace behaviour as to comply going forward.
Ms Skelton is (and was, at the time of her employment with the ABS) a self-described business founder who works with leaders who want to end interpersonal violence. She asked the Court to find that the termination of her employment was a violent personal act taken for reason/s that included her expression of political opinion, in contravention of ss.8, 340 and 351 of the Fair Work Act 2009 (Cth) (Act).
For the reasons that follow I have determined that Ms Skelton was not dismissed in contravention of ss.8, 340 or 351 of the Act. No relief will be granted. The application will be dismissed and there will be no order as to costs.
CONTEXT
Below is a summary of the evidence before the Court as relevant to the Applicant’s claims. Unless otherwise indicated, the following is not contentious and constitutes factual findings I have made.
Terms and conditions of employment
By letter of engagement dated 26 June 2021, the Applicant was offered the role of casual employee in the position of Field Officer pursuant to s.16(2) of the Australian Bureau of Statistics Act 1975 (Cth) and Regulation 7 of the Census and Statistics Regulation 2016 (Cth). The role was to commence on 13 July 2021 with no guarantee of ongoing or regular work (but with intended contract dates of 13 July to 1 October 2021 for the 2021 census).
The role of a Field Officer is to help members of the general public, in person, to complete the census by delivering census materials in the person's allocated geographic work area, and collecting those materials after the census day for secure return to the Respondent. Field Officers are entrusted by the Government to collect confidential material on behalf of the ABS, requiring a high level of trust from the public. They visit households to follow up with residents and are the interface between the ABS and members of the public.
By the terms of the engagement letter, the terms and conditions of Ms Skelton’s employment were to be as set out in the Collective Determination 2020/01. That instrument, at item 15, provided that employees covered by the determination are required to abide by the Australian Public Service (APS) Values and the APS Code of Conduct as provided for in the Public Service Act 1999 (Cth) (PSA). At s.10, the PSA states (and at the relevant times, stated) that the APS Values include impartiality and that “The APS is apolitical and provides the Government with advice that is frank, honest, timely and based on the best available evidence”.
The engagement letter also included an express term as follows:
Your obligations to the ABS
You will be required to:
•perform all duties of your role to the standard required in the Field Officer Role Statement .
•use your best endeavours to promote and protect the interests of the ABS; and
•follow all reasonable and lawful directions given to you by the ABS, including complying with policies and procedures as amended from time to time (including, without limitation, the Census Field Staff Code of Conduct and the Work Health and Safety Guidelines). These policies and procedures are not incorporated into your contract of employment.
Also relevant to this proceeding are the following ABS policies:
(a)the Census Code of Conduct (Code of Conduct), which required ABS employees to treat everyone with respect, courtesy and without harassment; and at all times, behave in a way that upholds the integrity and good reputation of the Respondent; and
(b)the Appropriate Use of Social Media Policy (Social Media Policy) which provided that employees:
(i)must follow the Code of Conduct when using social media, even when posting privately, anonymously or using an alias;
(ii)“must not make comments on behalf of ABS or Government – add a disclaimer that anything you publish is an expression of your personal view and not the ABS or Government”; and
(iii)must not make comments that could compromise public confidence in the census of the ABS.
Also on 26 June 2021, Ms Skelton signed the contract acceptance form in confirmation that she had read and understood the job description and essential duties that she would be required to perform, and accepted the offer of employment on the terms and conditions set out in the letter (among other things). And, at the hearing, Ms Skelton accepted that she was required to comply with the Code of Conduct and Social Media Policy as a condition of her employment and had completed training in respect of ABS policies and procedures including those with which this application is concerned.
The LinkedIn Post
Subject of this dispute is a social media post made by Ms Skelton, in which she shared a “Dear Neighbour” image and added her own comment as follows:
When is enough, enough?
It’s time to STAND UP AUSTRALIA.
AUSTRALIAN REVOLUTION NOW!
(the LinkedIn Post)
On 18 August 2021, the ABS received a complaint from a member of the public in the following terms:
Hi, I think you should know some of your staff are posting crazy Covid conspiracy theories and misinformation on LinkedIn whilst being openly shown as working for the ABS. It’s incredible it can happen.
I’m going to report this to my MP and to the news.
(the Complaint)
On or about 20 August 2021, the LinkedIn Post came to the attention of ABS Director People Management and Wellbeing (a Mr Robin Luff) via the ABS census social media team. Mr Luff gave evidence of his immediate concern about the content of the LinkedIn Post because it encouraged a revolt against Government and could be perceived by members of the public as views endorsed by the ABS. He also gave evidence of his view it could damage public confidence in the ABS and engagement in the census and of his concern that the consequential risk for the ABS could include withdrawal by the health authorities of their permission for the ABS to undertake field work (which was otherwise not permitted at that time). Mr Luff considered the LinkedIn Post was identifiable as associated with the ABS because Ms Skelton had included this in her work experience and it appeared at the top of her LinkedIn page. For her part, Ms Skelton accepted that her LinkedIn Post expressed anti-Government and political views. Her evidence at the hearing was that the message was anti- all (State and Federal) Australian Government and she had removed the ABS from her work experience soon after the post was made as she did not want to associate with an employer that implied what she can and cannot write on LinkedIn. She also said she had some 7,000 connections on LinkedIn at the time.
Disciplinary process
On or about 20 August 2022, Mr Luff asked a people management advisor in his team to provide advice and assistance to the Workload Management Team Leader responsible for Ms Skelton’s work area (a Ms Samantha White) regarding the Complaint. Mr Luff maintained oversight of the matter, including to recommend the approach and review email correspondence to Ms Skelton.
On 24 August 2022, Ms White sent an email to Ms Skelton. That email identified the LinkedIn Post, the allegation that it may lead a member of the public to question the impartiality and good reputation of the ABS and cited parts of the Social Media Policy. The email requested a response by 5pm on 25 August 2021.
On 25 August 2021, Ms Skelton replied to Ms White’s email. In her reply, Ms Skelton stated simply that she was seeking legal advice and would respond the next week.
On 26 August 2021, on advice of Mr Luff, Ms White sent a further email to Ms Skelton which said the following things, that were not in the 24 August 2021 email: she directed Ms Skelton to de-identify herself as working for the ABS on LinkedIn or to remove the LinkedIn Post immediately; and stated that while being employed by the ABS, Ms Skelton had an obligation to remain apolitical. That email also reminded Ms Skelton that her employment is subject to satisfactory performance and conduct and the matter may be referred for potential early termination of her employment. Ms Skelton was requested to respond by 27 August 2021.
On 27 August 2021, Ms Skelton emailed Ms White in response. By her response, Ms Skelton denied any breach of the Code of Conduct or Social Media Policy and said that she had forgotten that she had the ABS in her profile and had now removed this. That response is extracted in its entirety at Annexure A to these reasons.
On 30 August 2021, Ms White emailed Ms Skelton in reply. In that reply, Ms White acknowledged that Ms Skelton had removed the reference to the ABS on her LinkedIn profile and attached a de-identified copy of the Complaint received from the member of the public. Ms White’s reply also stated that she could not provide the name or other information regarding the complainant for privacy reasons.
Also on 30 August 2021, approximately one hour after Ms White’s reply email of same date, a letter signed by Mr Luff to Ms Skelton was emailed by Mr Balakrishnan on instruction of Mr Luff (a copy was in evidence before the Court). That letter:
(a)outlined the issues, described as Ms Skelton’s demonstrated “unsatisfactory conduct”, in the following terms:
•You posted anti lockdown content on your LinkedIn profile while identifying yourself as an ABS employee. [..]
Whilst you are entitled to state your personal views on your social media profile, you did not add a disclaimer that the content you published is an expression of your personal view and not the ABS. The conduct displayed by you is in breach of the ABS Code of Conduct and the Social Media Guidance, specifically in relation to the below:
oAt all times, behave in a way that upholds the integrity and good reputation of the ABS (census code of conduct).
oMake comments that could compromise public confidence in the Census or the ABS (social media and guidance).
oMake comments on behalf of the ABS or Government – add a disclaimer that anything you publish is an expression of your personal view and not the ABS or Government (social media guidance).
•On 24 August 2021, your manager Ms White sent you an email advising you of ABS’ concerns and your unsatisfactory conduct in relation to your post. [..] I have considered your email response, dated 27 August 2021 to the concerns raised by Ms White. I note that you have removed your connection to your ABS employment on your social media profile, however you failed to notify the ABS at the time this occurred. Rather, you wrote an email response that provides me with no confidence that you understand how the content you posted can potentially cause reputational damage to the ABS. I also have no confidence that you understand the requirement to adhere to the Census Code of Conduct and Social Media Policy whilst employed with the ABS.
(b)notified Ms Skelton of Mr Luff’s preliminary decision to terminate her employment based on unsatisfactory conduct and invited Ms Skelton’s response as to why her employment should not be terminated, by 1 September 2021,
(the Show Cause Letter).
On 1 September 2021, Ms Skelton separately (but simultaneously) replied to both emails. Her response to Ms White’s email of 30 August 2021 is extracted in full at Annexure B to these reasons and her response to Mr Luff’s email of 30 August 2021 (addressed to his assistant Mr Balakrishnan who had sent the original communication on his instruction) is extracted at Annexure C to these reasons.
The termination
On 2 September 2021, a letter signed by Mr Luff to Ms Skelton was emailed on instruction of Mr Luff (the Termination Letter). That letter referred to the reasons for Mr Luff’s preliminary decision as conveyed in the Show Cause Letter, that Mr Luff had received no response to that Show Cause Letter and therefore could not take any such response into account when finalising his termination decision. Further, the letter said:
This termination takes effect from COB today, Thursday 02, September 2021.
The reason for termination being that you posted anti lockdown content on your LinkedIn profile while identifying yourself as an ABS employee. This matter was brought to ABS’ attention through a complaint made by a member of the public on 18 August 2021, which questioned the impartiality and good reputation of the ABS.
In addition to the above, I have seen your emails that you provided to Ms White, dated 27 August 2021, and the 01 September 2021 and this provides me with no confidence that you understand your requirement to adhere to the Census Code of Conduct and Social Media Policy whilst employed with the ABS. I would also like to note that in your emails to Ms White, you were extremely unprofessional and inappropriate, and you displayed a clear lack of respect and courtesy toward your manager. Your employment conditions are made under the Census Determination Act 2020 with your obligations set out under the Code of Conduct and Social Media Guidance which you have failed to adhere to.
In relation to the Census Code of Conduct and Social Media and the Social Media Guidance, which iterated in your training when you commenced with the ABS, you have breached the following:
oAt all times, behave in a way that upholds the integrity and good reputation of the ABS (census code of conduct).
oTreat everuone with respect, courtesy and without harassment (census code of conduct)
oYou must not make comments that could compromise public confidence in the Census or the ABS (social media guidance).
oYou must not make comments on behalf of the ABS or Government – add a disclaimer that anything you publish is an expression of your personal view and not the ABS or Government (social media guidance).
For the reasons outlined above, I am satisfied you have potentially caused disrepute to the ABS and APS by your actions, and that you have displayed a lack of respect and courtesy to your manager. As such, you have not met the requirements of your employment conditions for your Field Officer role by maintaining satisfactory conduct and I am of the opinion you would not be able to maintain satisfactory conduct into the future. I hereby terminate you employment effective COB today, Thursday 02 September 2021.
[…]
[sic.]
In his affidavit Mr Luff gave evidence that he was the delegate with authority to make any decision in relation to the continuation or otherwise of Ms Skelton’s employment. At the hearing, Mr Luff was asked to explain to the Court the involvement of others in the termination process in light of his evidence that Ms White had come to his team for advice and had ultimately sent the initial emails to Ms Skelton. Mr Luff gave evidence in response that he was the only decision-maker responsible for Ms Skelton’s termination, and he did not have any operational or other input from Ms White or any other person.
Mr Luff also gave evidence at the hearing that it did not matter what Ms Skelton’s political opinion was, whether it was pro- or anti-lockdown, the expression of any political opinion in a manner that was associated with the ABS and without disclaimer was a contravention of the Code of Conduct and the Social Media Policy. Further, had Ms Skelton updated her LinkedIn Post to include a disclaimer that this was her personal opinion and not the view of the ABS this could have made a difference to the outcome for Ms Skelton, but in this case the issue was complicated by her subsequent conduct in communication with her manager which justified termination in his view. Mr Luff was unwavering in that view and took the Court to numerous examples from Ms Skelton’s emails of 27 August and 1 September 2021 which he noted were rude, aggressive by use of capitals and bolding of terms, critical of her manager and reflected Ms Skelton’s disregard and disrespect for her manager, the ABS and its policies.
Post-termination litigation
On 21 October 2021, the Fair Work Commission conducted a conference to deal with Ms Skelton’s application pursuant to s.365 of the Act. All reasonable attempts to resolve the dispute with the assistance of the Commission were certified as unsuccessful.
On 9 November 2021, these proceedings commenced by way of an application accompanied by a form 2.
As the matter did not resolve at mediation, programming orders were made for the filing of materials in advance of the final hearing to commence on 6 December 2022.
At the hearing on 6 December 2022, Ms Skelton represented herself and the ABS was represented by Counsel.
THE CASE BEFORE THIS COURT
Materials relied upon
Ms Skelton relied on the following:
(a)Affidavit of Ms Skelton filed 1 August 2022, paragraphs 1 to 13 not admissible in evidence but received as submissions;
(b)Annexures to Affidavit of Ms Skelton filed 1 August 2022, marked A to G, received as Ms Skelton’s evidence; and
(c)Oral evidence given by Ms Skelton at the hearing.
The ABS relied on the following:
(a)Outline of Submissions filed on 25 October 2022;
(b)Affidavit of Mr Luff filed on 1 September 2022; and
(c)Oral evidence given by Mr Luff at the hearing.
Statutory framework
Part 3-1 of the Act is titled “General Protections”.
Within it, “Division 3 – Workplace rights” includes provisions designed to protect “workplace rights” and the exercise of those rights.
In relation to the first ground specified in the original application, the starting point is s.340, which relevantly provides (and at all relevant times, provided):
340 Protection
(1)When a person must not take adverse action
A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).
“Adverse action” is defined at s.342(1). Relevantly, adverse action is taken by an employer against an employee if the employer:
a)dismisses the employee;
b)injures the employee in his or her employment;
c)alters the position of the employee to the employee’s prejudice; or
d)discriminates between the employee and other employees of the employer.
Sub-section 342(2) goes on to clarify that the meaning of “adverse action” includes a threat of such action: s.342(2)(a). There are then exceptions for action authorised by or under certain State, Territory and Commonwealth laws and employees in certain stand-down situations none of which apply here: s.342(3).
“Workplace right” is defined at s.341, in three broad categories which relevantly provides (and provided) as follows:
Meaning of workplace right
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee – in relation to his or her employment.
Meaning of process or proceedings under a workplace law or workplace instrument
(2)Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a) a conference conducted or hearing held by the FWC;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f)appointing, or terminating the appointment of, a bargaining representative;
(g)making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer’s leave;
(i)making a request under Division 4 of Part 2‑2 (which deals with requests for flexible working arrangements);
(j)dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k)any other process or proceedings under a workplace law or workplace instrument.
“Workplace law” is defined to include the Act and “..any other law of the Commonwealth, a State or Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters)”: s.12 of the Act.
Relevant to the second ground specified in the original application, Division 5 then provides for “Other protections” which include a prohibition on, relevantly, an employer taking adverse action against an employee because of the person’s political opinion (among other specific attributes):
Discrimination
(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) However, subsection (1) does not apply to action that is:
(a)not unlawful under any anti‑discrimination law in force in the place where the action is taken; or
(b)taken because of the inherent requirements of the particular position concerned; or
(c)if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
Relevant to both grounds, Division 7 is titled “Ancillary Rules” and recognises that some adverse action may be taken for more than one reason. In order to be actionable under Part 3-1, it is sufficient that the relevant adverse action is taken for reasons that include a proscribed reason: s.360.
The statute also provides a rebuttable presumption concerning the proof of the reasons for which adverse action was taken: s.361. That is – if, in an application in relation to a contravention of Part 3-1 of the Act, a person is accused of having taken action for a particular reason or with particular intent and if the taking of that action for that reason or with that intent would constitute a contravention of Part 3-1 then it is presumed that the conduct was engaged in for that reason, unless or until the person who engaged in it proves otherwise.
Each of ss.340 and 351 are civil remedy provisions. The Act confers jurisdiction upon this Court to hear applications for relief relating to contraventions of those sections: s.539(2). That power extends to relief in the form of declarations, compensation and penalties. A person may be taken to have contravened a civil remedy provision if they were in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention: s.550(1).
The respective contentions
In the original application, Ms Skelton identified the following under the heading “contraventions alleged”:
(a)26 August email from Ms White ‘whilst being employed by the ABS, you have an obligation to remain apolitical’ – against s.8 of the Act;
(b)Firing unlawfully for posting a political opinion on MY PERSONAL LinkedIn page that the ABS does not agree with;
(c)I exercised my right to air my political opinion on MY PERSONAL LinkedIn page which is not the property of the ABS.
Ms Skelton’s written materials addressed the evidence she wanted to bring before the Court as to the disputed events and her outline of argument but did not expand on the basis for these alleged contraventions with reference to the provisions of the Act or any authorities.
At the hearing, Ms Skelton was taken to s.8 of the Act which provides for the administration of the Act by establishing the Fair Work Commission and the Office of the Fair Work Ombudsman and did not appear to have any relevance to her claim. Ms Skelton accepted this was an error and did not press any alleged contravention of s.8 of the Act.
Also at the hearing, Ms Skelton was taken to ss.340, 341 and 342 but did not articulate or identify the existence of a “workplace right” as defined and confirmed that her claim is that she was terminated for a discriminatory reason and she relied on s.351. She confirmed to the Court that she had read the written submissions of the ABS. Those submissions included a notation that Ms Skelton had “signposted” a claim under s.340 which appeared to no longer be pressed given she had not identified a “workplace right” or articulated the elements of the claim under s.340 of the Act. Having explored that issue with Ms Skelton and afforded her the further opportunity to articulate the claim at the hearing, which she did not do, I understood the contravention of s.340 not to be pressed and in any event was not made out.
In relation to the claim under s.351, it was not disputed that Ms Skelton’s termination from employment with the ABS was an “adverse action” as defined at s.342 and for the purposes of s.351. She did not contend for any other form of “adverse action” taken in contravention of the Act.
In contending that the adverse action in the form of her termination was taken because of a prohibited or protected attribute pursuant to s.351, Ms Skelton argued that she was terminated because of her expression of her political opinion and/or the fact of her political opinion itself. In this respect, she said there was no policy that required that she be apolitical and also pointed to Mr Luff’s evidence which she submitted was contradictory to the extent that he said that Ms Skelton was terminated because she had posted anti-lockdown content on LinkedIn but on the other hand denied that he had terminated her employment because of, or for reasons that included, Ms Skelton’s political opinion. Ms Skelton maintained before the Court that the ABS had no right to regulate her private social media activity and the Social Media Policy was in direct contravention of Part 3-1 of the Act. And, in her case, there was no connection with the employment because her LinkedIn Post was on a third party website, it was out of hours conduct and there was no reference in her LinkedIn Post to the ABS.
Further, Ms Skelton denied the email responses to her manager conveyed an aggressive tone or were otherwise inappropriate or in contravention of the Code of Conduct. She was also plainly aggrieved by the fact of the disciplinary process including termination having been handled purely by email, via managers with whom she had never met nor spoken.
Ms Skelton also expressed her view that she was put at personal physical risk by the unidentified complainant and that the ABS had breached Article 19 of the United Nations Human Rights Charter.
The ABS denied that Ms Skelton was terminated for a reason that included her political opinion. In summary, it relied on the evidence of Mr Luff as the only decision-maker and whose state of mind when he decided to terminate Ms Skelton’s employment was that there were only two reasons to terminate Ms Skelton’s employment. It said the first reason was because the LinkedIn Post clearly contravened the ABS Social Media Policy and Code of Conduct therefore was a breach of her contract of employment and the second reason was because Ms Skelton’s subsequent response to the issue reflected that she did not understand the seriousness or her obligations under the Code of Conduct and the Social Media Policy when representing herself as an ABS staff member, was unnecessarily and inappropriately aggressive in its tone and amounted to a breach of its Code of Conduct.
In the alternative, if the Court were to find that Ms Skelton was terminated for a reason that included her political opinion, the ABS argued that the adverse action was taken because of the inherent requirements of the particular position concerned and therefore s.351(1) did not apply to Ms Skelton’s termination.
Consideration
In the present case, there is no dispute that Ms Skelton’s termination was an “adverse action” within the meaning of s.342(1) of the Act. The first threshold issue in relation to the alleged contravention of s.351 of the Act is therefore made out.
Ms Skelton’s pleading identified a prohibited reason within the meaning of s.351(1), being the expression of her political opinion, which she alleged was the or at least a reason for her termination. Pursuant to s.361, the burden of proof then rests with the ABS to rebut the presumption that the adverse action was taken for that, or for reasons which included that, reason.
On the evidence before the Court, the ABS has established that Mr Luff was the only decision-maker with authority to and responsible for Ms Skelton’s termination. I am satisfied that, to the extent that there were others (Ms White and Mr Luff’s team member) involved in the disciplinary process consistent with the above findings, their contribution was not significant or material as to require the Court’s interrogation as to their states of mind within the meaning of Elliot v Kodak Australasia Pty Ltd [2001] FCA 1804; Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71.
The question then for the Court to determine is whether the evidence lead by the ABS as to Mr Luff’s reasons for the ABS having engaged in the adverse action were, in fact, the reasons that actuated that conduct. As Justice Snaden usefully set out in Serpanos v Commonwealth of Australia [2022] FCA 1226 at [125] (a decision involving alleged contraventions of s.340, which reasoning equally applies in the context of s.351: Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587 at [280]-[281]), the inquiry is to be conducted as follows:
That is an inquiry in two parts: first, were the nominated reasons matter of opinion or belief that formed in the mind of the respondent (or, in the case of bodies corporate, those of its relevant human agents); and, second, did they positively inspire the respondent then to engage in the relevant conduct? If both questions are answered in the affirmative (and if there be no other reasons for which the relevant conduct was engaged in), it is irrelevant that the respondent’s reasons might be impugned as unfair or illogical or otherwise liable to criticism. A claim under Part 3-1 of the FW Act “…is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome”: Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17, [48] (Bromberg J).
The ABS lead evidence of two reasons for Mr Luff’s decision to terminate Ms Skelton, both of which flowed from Mr Luff’s belief that Ms Skelton had contravened its Code of Conduct and its Social Media Policy.
In the present case, the evidence relevantly established that the LinkedIn Post was made by Ms Skelton and remained in place unedited for a number of (some 8) days, that her LinkedIn page at the time and until on or about 26 August 2022 referenced her employment with the ABS and that the substance of the LinkedIn Post was the expression of a political opinion. The correspondence of Ms Skelton to her employer during the course of the disciplinary process was also in evidence and plainly included a range of communication that was inappropriate in a workplace context, reflected a disrespect for the organisation and its management and were inconsistent with the APS Values. Whilst Ms Skelton was perhaps justified in her view that the conduct of this matter entirely by email was not “best practice” that is not relevant to the present question nor would this excuse her breaches of the policies.
On the evidence, Mr Luff concluded that: the ABS was identifiable as associated with the LinkedIn Post given it appeared in Ms Skelton’s profile as her employer at the time of the post and until removed some days later; the LinkedIn Post contained an expression of political opinion without disclaimer that it represented Ms Skelton’s personal views and not that of the ABS; and that her responses to the subsequent disciplinary process were not only unsatisfactory as to her understanding of the requirements of her in role but represented a further breach of the ABS Code of Conduct by their inappropriate nature.
There was no contradiction in Mr Luff’s evidence as contended. His evidence was consistent, in writing and when tested orally at the hearing, that it was these identified breaches of the conditions of her employment contract and Mr Luff’s conclusion that Ms Skelton did not understand those conditions as to comply going forward that were the reasons for her termination. In addition to compliance with APS Values and the reputational risk demonstrated by the Complaint that was received from a member of the public, Mr Luff was concerned that the criticism contained within the post might have impacted the organisation’s special permissions (and ability) to conduct the census. I accept the evidence of Mr Luff, who was tested on the issue in cross-examination and did not waiver on it, that neither he nor the ABS by its policies had any concern with what Ms Skelton’s political opinion was and it would not have mattered whether her opinion was pro-lockdown or anti-lockdown in that the consequences would have been the same.
The present case involved not only the holding of a political opinion but also the expression of a political opinion, which for present purposes may be assumed to be protected by s.351(1): see Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27. It was Ms Skelton’s conduct in making the LinkedIn Post that led Mr Luff to conclude that Ms Skelton had breached the ABS Code of Conduct and Social Media Policy and formed part of the reason for his decision to bring her employment to an end. The termination therefore necessarily had a connection to a reason that the Act prohibited the decision-maker, Mr Luff, from acting on. But, like other cases of its kind and as the majority explained in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 253 CLR 500 (Barclay) at [62], the decision-maker’s reasons need not “be entirely dissociated” from the protected activity. In Rumble v The Partnership Trading as HWL Ebsworth Lawyers [2020] FCAFC 37 at [41], the Full Court held that the proscription at s.351(1) is against the employee’s political opinion being a “substantial and operative factor” in the reason(s) for their termination.
On the evidence before the Court, the reasons for which the ABS claims to have conducted itself were the actuating reasons for the termination. Those reasons were the breach of the Code of Conduct and Social Media Policy and the subsequent breach of the Code of Conduct. Those reasons were objectively justifiable and the evidence does not establish any other actuating, or substantial and operative factors.
I conclude that Ms Skelton was not terminated for having a political opinion. The expression of her political opinion bore no more than an association with the reasons for her termination – and only to the extent of Ms Skelton’s conduct in choosing to post her political opinion in a manner that breached the terms of the ABS Code of Conduct and Social Media Policy. Mr Luff’s decision to terminate Ms Skelton was for her failure to follow those requirements of her role and her subsequent failure to behave in a manner required by the Code of Conduct. In the particular circumstances of this case, the association that has been identified is distinct from a substantial and operative reason for the termination and I find accordingly.
I have considered whether the relevant requirements of the policies on which the ABS relied as having been breached by Ms Skelton were inherently discriminatory (as alleged) or otherwise substantively or procedurally unfair in a way that might alter the finding as to the actuation of the termination. The Code of Conduct requires (and at the relevant times required) ABS employees to: treat everyone with respect, courtesy and without harassment; and to at all times behave in a way that upholds the integrity and good reputation of the ABS. The Social Media Policy requires (and at the relevant times required) ABS employees to: refrain from making comments that could compromise public confidence in the census or the ABS; and where the ABS was identifiable expressly allowed for publication of personal views provided that a disclaimer was included. These requirements are an embodiment of the APS Values and Code of Conduct which apply to the ABS by statute as is plain on the face of the PSA and do not preclude the holding or expression of a political opinion. Ms White was incorrect when she said that Ms Skelton herself was to be apolitical. As earlier concluded, Ms White was not the decision-maker and the decision-maker’s reasons for termination were that Ms Skelton’s communications contravened the Code of Conduct and the Social Media Policy. There was nothing discriminatory or otherwise substantively or procedurally unfair about a requirement that all employees refrain from expressing, demonstrating or supporting political views regardless of what those views are and where there is a direct link to the ABS.
The policies were subject to interpretation upon their application in that Mr Luff was required to make a judgement as to whether they were breached. On the findings I have made as to Mr Luff’s evidence, there was no prohibited actuating reason in his interpretation or application of those policies.
Just as the Court observed in Rumble, it was open to Ms Skelton to modify her behaviour by adhering to the Code of Conduct and Social Media Policy and still to have held and expressed her political opinion on LinkedIn or indeed other social media and communication platforms. It was also open to Ms Skelton to approach her manager’s enquiry in a fundamentally different way in the spirit of continuing the employment relationship consistent with its inherent requirements.
For completeness, even if I were wrong in the above conclusion, having regard to the statutory purpose and values of the ABS and the conditions of the employment cited above, I would accept that compliance with the Code of Conduct and Social Media Policy were inherent requirements of the role and therefore within the exception at s.351(2)(b).
CONCLUSION
For the above reasons, the application is dismissed. Costs were not sought and there will be no order as to costs.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 13 February 2023
Annexure A
OFFICIAL: Sensitive Personal Privacy
From: "Merilyn Skelton" <[email protected]>
To: "Sam White" <s...w…[email protected]>
Date: 27/08/2021 04:04 PMSubject: Re: ACTION REQ: Inappropriate use of social media - response due by 5pm 25/08/21 [SEC=OFFICIAL]
[…]
Hi Sam,
Thanks for your email.
In response to your out-of-the-blue email, unexpected and threatening email, here is my reply.
1 - I find it extremely unprofessional that the first time I hear from the ABS in relation to my performance and conduct is via email. In 20 years of working I have NEVER had a performance and conduct issue brought to my attention via email via the HR department as the first point of call. This is TOTALLY UNACCEPTABLE WORKPLACE BEHAVIOUR from the HR Department.
2 - I would have expected that if there was any issue with my performance that Dennis Heslin my immediate manager would have contacted me via phone call first. This is standard practice in ANY workplace. Or at least a call from him to notify me that there were concerns about my performance and/or conduct, with evidence given as to what exactly the issues were, and outlining how I could either 1 - correct the performance issues or 2 - seek to remedy the conduct. And the appropriate time frames on which to complete these performance issues and conduct in.
3 - Further to that I would have expected that if the issue was not resolved between Dennis Heslin and I, then I would be advised that it would be escalated to the HR department by him in the first instance and then I would receive a call from the HR department. I have NEVER recieved a phone call from either Dennis or the HR department in relation to these apparent issues. I have had NO indication that my peformance has been unsatisfactory or that my conduct has been inappropriate since I started work with the ABS in July.
4 - In relation to these statements :
'You must not:
•make comments on behalf of the ABS or Government - add a disclaimer that anything you publish is an expression of your personal view and not the ABS or Government
•make comments or post materials that are obscene, defamatory, threatening, harassing, discriminatory or hateful to (or about) your work or another person or entity
•reveal information about the ABS or the Census that isn't publicly available or is protected by privacy or other relevant legislation
•share private information in relation to your work on the Census (this includes posting statuses or images referring to members of the public and/or their dwellings)
•be so critical of the ABS' administration to the point it disrupts the workplace
•make unwarranted personal attacks connected with your employment
•make unreasonable criticisms of the ABS' clients and other stakeholders
•make comments that could compromise public confidence in the Census or the ABS.'
I have NOT taken any of the above actions.
I'm appalled at the accusations to the above and quite frankly disgusted and surprised to be sent two threatening emails for my employment with the ABS via the HR department to be told that my performance isn't satisfactory with no knowledge and no evidence to show me what specifically about my performance and conduct has been unsatisfactory. This is unheard of. This is NOT performance management from the ABS.
5 - In relation to the following statement.
'You must de-identify yourself as working for the ABS or remove the anti-lockdown post (see below) immediately. The comments you have posted may lead a member of the public to question the impartiality and good reputation of the Australian Bureau of Statistics. Whilst being employed by the ABS, you have an obligation to remain apolitical.'
I have had a linkedin profile since around 2004. I have NEVER had any Employer prior to now DEMAND that I take down a post on my personal linkedin page. Unfortunately I had forgotten that I had the ABS in the top part of my profile and have no since removed the TAG in the top part of my profile stating my current workplace as the ABS. I did this the day after I recieved the first email from Sam White. The ABS has NO right to demand what I post and do not post on my Linkedin page. It's mypersonal page and it has NOTHING at all to do with the ABS. What I post on my linkedin profile is NONE of the ABS's business.
'you have an obligation to remain apolitical.'
I wish to see the specific clause in my employment contract that states that I must 'remain apolitical'. In 20 years of working I have NEVER worked in any organisation that has stated such a rule is part of an employment contract. Please show me the specific clause that states that I must 'remain apolitical'. In 20 years of working I have NEVER seen or heard of an employment clause citing such a ridiculous thing, that would be akin to discriminating against someone for their race, gender, religion, or disability.
6 - In relation to the following statement :
'I specifically refer to a complaint made by a member of the public of you behaving in a manner that is inappropriate.'
I would like to know the name of the person from the general public that made the complaint against me. I would also like a full copy of the complaint made against me. Without this information, I am NOT fully informed about the evidence that you have accusing me of behaving me in an appropriate manner. I find it disgusting that this information wasn't sent to me in the first instance. Disgusting and hugely unprofessional.
7 the demands for response time from me within 1 business day from the ABS from an out-of-the blue email with no evidence of the complaint of the member of the general public and with no prior notice is both UNFAIR and despicable.
The demand for a one day turnaround for an apparent performance issue and apparent complaint about my conduct without sufficient evidence and information given is frankly unfair and despicable. As an federal organisation that my tax pays for I find this deplorable that this is how an employee is treated with an apparent complaint against them and performance issues that they have had NO prior knowledge of is a very poor reflection on the ABS. If this is how the ABS treats it's casual/contract employees, I dread to think what happens to their permanent employees. I am appalled that my tax money allows and promotes this unfair behaviour in the workplace. The timeframes demanded for a response with little or no evidence given and without full knowledge and information of the complaint are both grossly unfair and from my 20 years+ professional life unheard of.
I feel that the HR department needs to look at HOW they deal with complaints about professional performance and conduct and how they manage their own performance if this is considered acceptable professional behaviour. I certainly would not tolerate this behaviour from people who would be working for me and my business. It is very unprofessional, and I would be demanding that the HR team/department actually look at how they manage their own professional behaviour if this behaviour is deemed as acceptable towards casual/contract workers. I think the HR department need to look at how their own performance is managed given this demand.
8 In relation to this statement : 'for potential early termination of your employment.'
The fact that this statement is made twice in two separate emails is great cause for alarm. There has been insufficient evidence provided and to me it feels like a loosely veiled threat to simply get rid of a casual/contract worker who has not been provided with any prior evidence of either 1 - a performance or 2 - a conduct issue. I find this phrase both bullying, threatening and violent.
9 In relation to this statement: 'You are a representative of the ABS and this behaviour poses a serious risk to the reputation of the ABS. The comments you have posted may lead a member of the public to question the impartiality and good reputation of the ABS'
As far as I'm concerned, I am only representing the ABS when I am actually out on the field doing the work or on my tablet at home doing administration work or training. Anything outside of that is in my personal time. The only times I represent the ABS is when I have specifically logged into an ABS system to complete any training, or to update any work that hasn't been updated. What I do outside of the hours that I have logged into the 'SafeWork' app and into the 'My Work' app is my business.
The only time I represent the ABS is when I am participating in any of those tasks. And/or actually being paid to work for the ABS.
If the ABS is so concerned about their reputation, then they should employ someone or a proper organisation to do something about it. I am not taking the bullet for the general public's lack of confidence in a tax payer funded organisation based on a nameless member of the general public who likely has made a vexatious complaint against me of which I have no evidence of. If ABS reputation is that much of an issue, then the ABS needs to be honest with how the general public percieves it as an organisation and seek to remedy it publicly without taking it out on a casual/contract employee. There are PR firms that deal with this and given the wilingness of government corporations to spend money on things like this, I'm surprised that this hasn't been done already. I was quite frankly appalled to see the linkedin post from a member of staff with the 'dogstatician' the other day. If that is the image that the ABS is putting out to the general public, it's no wonder the general public have no confidence in what the information will be used for, and how their privacy would be invaded, once giving their
information, and the general reluctance of the public to fill out the Census. I thought that linkedin post was appalling, and a vexatious waste of both mine and general public's tax payers' money.
In closing, please provide me with all the evidence I have requested no later than 5pm Monday 2nd September. After which I will be seeking further legal advice, once I have recieved the evidence I have requested in this email.
I look forward to receiving all the evidence from you, expeditiously and no later than 5pm Monday 2nd September.
Regards
Merilyn SkeltonAnnexure B
OFFICIAL: Sensitive Personal Privacy
From: "Merilyn Skelton" <m………@email.com>
To: "Sam White" <s…w…[email protected]>
Date: 01/09/2021 05:00 PM
Subject: Re: ACTION REQ: Inappropriate use of social media - response due by 5pm 25/08/21 [SEC=OFFICIAL][…]
1. I am not the HR Department. I am the Workload Management Team Leader responsible for the area you are working in and as such I am the person who follows up on complaints about field staff from members of the public. I made the decision to contact you via email in the first instance to give you an opporlunity to respond to the complaint whilst having a copy of the material in question. I apologise if you felt that you were caught by surprise.
Given that I have never spoken to you, wasn't aware of your existence, I still find it very unprofessional that in the first instance that you contact me via email. You could state you were anyone, working for any organisation and I would be none the wiser. I'm appalled that when I first started working with the ABS that you didn't at least call or introduce yourself. Any decent manager in any organisation that I have worked with over the past 20 years at least extends this common courtesy. It's very unprofessional, and as a taxpayer that actually pays for your salary, I'm appalled that you think this is acceptable professional behaviour.
You only gave a copy of the post, and the section in my profile stating ABS in the top line of my profile. You did NOT provide with the actual copy of the message of linkedin from the 'member of the general public'. For all I know it could have been you that has done that to besmirch my reputation as there is no name on the message. It's bullshit that you are not able to provide their details to me when clearly they had been going over my linkedin page (which is the property of ME and not the property of the ABS). I will be taking this up with Linkedin as well. My privacy has been invaded as this person has gone around me without discussing it directly with me first on linkedin. I can only assume it was you or one of your colleagues that made the complaint about me vexatiously. I would like to have this person removed from my linkedin connections so I'm a demand that you provide me with their name so that I can remove them from my connections on linkedin. Therefore I can only assume that is in fact you that made a vexatious complaint against me. And no doubt this has happened with many prior casual/contract workers prior to me. I would assert that this is not a one time event with your employment with the ABS. I would be very interested to look at your employment history with the ABS to find out how many casual/contract employees you have arranged to be fired unlawfully because they don't share the same views as you do.
2. I was not questioning your performance of duties, I was raising a concern about your conduct. Specifically, my concerns were in relation your anti-lockdown post and you identifying yourself as an ABS employee. You stated that you have taken down your connection to your employment, that you work for the ABS, thank you.
This is counter to what you said in both your 2 initial emails to me. Both times you stated it was in relation to my performance and conduct. What has changed now? I'm still to see the section that relates to 'where I must remain apolitical'. I have NEVER seen these statements in any other workplace I have worked in in 20+ years of work. And again, you failed to show me where those are said.
Ironic coming from a manager of an organisation where it's well known in the government sector that management and their leadership swing whatever way the current political parties are in power swing. Nepotism and corruption is rife and not uncommon in both federal and state government organisations. Let's stop pretending that that isn't happening right now even though as it stands the victorian state parliament isn't sitting for whatever reason, and the federal cabinet has been found to be unlawful! Doubly ironic given I have paid for this organisations salaries in part with my taxes over the past 20 years of working life. As it turns out corruption and fraud are all part of any 'great australian government corporation'. Of which you participate in!
My political views and what I post on linkedin has NOTHING to do with the ABS and I'm appalled that the ABS management think that they have the power to tell me or any other employee what we can and cannot post on our personal linkedin pages. In 20+years of professional working life including working for other state government departments I have NEVER had this happen.
I took down the ABS is the top part of my profile, NOT because you told me to, but because it's my profile page and generally I NEVER put who I'm working for at the top part of my profile. The ABS has ABSOLUTELY NO JURISDICTION on how and what I put on my linkedin page. It is MY PERSONAL PAGE.
I am NOT working nor will I EVER Work for the public relations department/marketing department for the ABS and only if I WAS PAID to by the ABS would I EVER promote the ABS on linkedin if it was in my best interest to. I do hope that that Dogstatiscian post has been removed as due to the nature of that, and the sheer number of people who are out of work at the moment due to bureucratic decisions out of their hands I would think that the general public would find that as appalling as I found it. It's a real insult to those that have unwillingly had their livelihoods thrown out by a bunch of bureaucrats who continue to get pay rises, and then tell people how to fill out their ABS census like they are children!
Clearly the ABS marketing/PR are doing a shit job becuse if it takes one small post/ and one small messsage to cause a meltdown in a tax payer funded government organisation in the public relations/marketing department to think that their 'reputation' (what reputation?!, noone even knows what the ABS does in the general public), then really you all should probably get a job in the real world. Clearly the organisation is so out of touch if it thinks that one post, by one random woman, with no influence, is going to make a difference to an already unknown entity that noone in the general public cares about. Except every 4 years where their data is mined and sent off to 3rd parties without their consent and without their knowledge, whilst the organisation parades itself pretending to be the doing 'the right thing' by the taxpayers that actually pay it! Butlikely none of the marketing/pr jobs or you would keep a job In the real world. As in my experience long term government bureucrats in some sectors/industries (more than 5-10+ years) and insitutionalised government workers don't do well in private enterprise or other places where there are actually real world K.P.I's and actual ramifications for failing to meet targets. And where they actually get fired for bad behaviour!
As.it stands the only time, and I reiterate, just in case you didn't understand in the first place, that the ONLY time I represent the ABS is when I'm either logged into the 'safe work' app, or actually out on the field doing the work or doing training online. THOSE are the only times I work and represent the ABS. What I post on my PERSONAL linkedin page is NONE of the ABS businesses in my personal time and my personal hours has NOTHING to do with you or the ABS.
3. Please note for privacy reasons we are unable to provide you the name or any other information regarding the complainant.
Well, if that is the case, I can only assume that is was you that are the complainant. Anyone could have written that. And I would like to remove that person off my linkedin connections for my own personal safety. I don't trust that a person like that would not go after me to physically harm me and I am concerned for my own physical safety as a result. People like that usually are unhinged and willing to wish harm on ANYONE that doesn't share the same view as them. There are many people in the general public like that right now who are all too willing to dob on another and wish illness/death on them because they do not share the same opinion. I find this behaviour abhorrent, but in Australian culture it's quite acceptable nowadays to dob on a mate and its even encouraged, and how dare anyone else have a different opinion to another person (especially in government departments). The fact that that individual did not take this up with me on linkedin reflects poorly on them. And as far as I'm concerned what I do online and on any other social media is my personal business. If you are unable to provide me with the details I can only assume that you were vexatious with me and wanted me removed from the ABS books due to something you read on my profile or posts. This is 'cancel culture' at its finest'. And I can only assume that this has happened with many ABS casuals in the past that you have not shared the same opinions/views with and that you have managed. I can only assume that you have had them fired too.
One final point,
I find it ludricious that you even wanted me to respond or had the audacity to demand a response within a particular timeframe from me to either of your ridiculous and quite frankly abhorrent emails. In your first email you made it quite clear that you had no other intention but to fire me from the casual role at the ABS. It was pre-meditated. No matter what I've said or done in response or what my actual performance or conduct, you had made your mind up prior to sending the first email. So let's not pretend for a minute, that you had any other intention but getting me fired without due process, and without proper procedures. That is most unprofessional, but your manager will deal with that (or most likely not, as everyone knows even the biggest arseholes in government organisations who frame people/demote them/harass them/ bully them usually gets to keep their job! andit's usually the good people that leave/resign/move on as a result).
All the best
Merilyn Skelton
[…]
Annexure C
Re: Action: Intention to Terminate – response required by 5pm, Wednesday 01 September 2021 [SEC=OFFICIAL:Sensitive]
From: “Merilyn Skelton” <m……[email protected]>
To: “Shilpa Balakrishnan” <s…..b………@abs.gov.au>
Date: Sep 1, 2021 5:00:07 PM
Hi Shilpa,
Given that the decision to fire me was premeditated by Ms Smith in the first instance, who I have NEVER met or spoken to, and that the ABS believe it's within their jurisdiction to fire me without due process due to a complaint of one member of the general public over a casual workers post on their own personal
Linkedln page, and since the reputation of the ABS seems to be so fickle that in spite of a whole marketing/communications department funded by many tax payers around the country for many years, then there is nothing I can do or say that will change that outcome. So go right ahead, do whatever you feel that you 'have' to do!It reflects poorly on the ABS that it takes one member of the general public and a casual worker to have such an impact! I don't even have any influence on linkedin or anywhere else. So if that threatens the ABS so much, then they can add it to their reputation for underpaying people from 5 years ago for the last census, that a former work colleague of mine warned me about before I took the casual role. The ABS must have such a bad reputation across the country if that's all it takes to shake it's boots and be so heavy handed, bullying and controlling to demand such unrealistic and unheard of demands from a measly casual worker who delivered a few census documents over a short period of employment. Then go right ahead, do whatever you feel that you 'have' to do!
And whilst this time and money has been wasted, and where ridiculous amounts of money have been spent on census paper documents that won't be properly recycled and will likely contribute to the already environmental catastrophe that Australia is. Instead of sending the people you knew to to actually complete the process online and via email. What year are we living in? 1995? Who runs the project that they think that electronically the majority of the country can't complete it online. So go right ahead, do whatever you 'feel' you have to do! I
You have perfectly demonstrated the bullying, and control that is rife through so many Australian organisations, living in denial about how much influence that they actually havE:! And where the ABS cannot even afford to pick up the excess boxes of census they give casual workers and demand that they put these excessive ocuments and excessive waste of tax payers money across the country by putting it into their own personal recycle bins in their homes! Even though they should be properly disposed of at Iron Mountain given it's a 'government corporation' property paid for by the taxpayer. What a vexatious waste of taxpayers money on paper census forms. And the audacity to ask casual workers to dispose of the excess census paper boxes in their own personal recycle bins. Unbelievable!
But my final demand is this. I want a full copy of my employment record for my own record, and an additional 6 hours pay for the time taken to deal with these emails and to get legal advice and for legal fees, by Friday September 3rd at 5pm. As given this scenario, and the way it's been handled and treated most unprofessionally from a manager and a senior manager I've never met, I would not trust what has been put on there without my consent and without my knowledge!
So go right ahead, do whatever you feel that you 'have' to do!
Thanks
Merilyn Skelton
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