Soni v Aboriginal Hostels
[2022] FedCFamC2G 115
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Soni v Aboriginal Hostels [2022] FedCFamC2G 115
File number(s): MLG 1972 of 2020 Judgment of: JUDGE BURCHARDT Date of judgment: 1 March 2022 Catchwords: INDUSTRIAL LAW – Application asserting adverse action by employer constituted by failure to renew 1 year fixed term contract- applicant asserting exercise of workplace rights – difficulty in construing what the asserted rights actually were – whether application indeed exercised any rights – respondent’s witnesses denying any actions motivated by any exercise of workplace rights and asserting poor performance by application of his employment duties – respondent’s witnesses wholly reliable – application dismissed. Legislation: Fair Work Act 2009 (Cth)
Public Governance, Performance and Accountability Act 2013 (Cth)
Cases cited: Alam v National Australia Bank Limited [2021] FCAFC 178
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204
Victoria v The Commonwealth [1996] 187 CLR 416
Division: Division 2 General Federal Law Number of paragraphs: 109 Date of last submission/s: 15 February 2022 Date of hearing: 14 & 15 February 2022 Place: Melbourne Counsel for the Applicant: Mr Grabau Solicitor for the Applicant: Gleeson and Co Lawyers Counsel for the Respondent: Mr Galbraith Solicitor for the Respondent: Mills Oakley ORDERS
MLG 1972 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAVI SONI
Applicant
AND: ABORIGINAL HOSTELS
Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
1 MARCH 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
Mr Ravi Soni, who has a background in the hotel industry, started a one-year contract with the respondent on 19 December 2018. The contract was expressly limited to expire on 11 December 2019. Mr Soni’s position was readvertised, and he reapplied but was not successful. He seeks remedies arising out of that sequence of events, pursuant to the Australian Consumer Law and/or the Fair Work Act 2009 (Cth).
This is one of those matters in which it would be possible to write a very extensive and lengthy judgment, not least because of the slightly scattergun way in which the applicant has formulated various facets of his case. Because of the conclusions I have reached, however, I propose to try and cut to the chase and deal with matters in a relatively summary way. Put shortly, the evidence in this case has established to my entire satisfaction that Mr Soni was not a satisfactory employee and that it was for that reason that his reapplication in 2019 was unsuccessful. I am further fully satisfied that, contrary to his case, the respondent did not engage in any conduct that contravened the Australian Consumer Law. It follows that the application will be dismissed.
AGREED OR UNCONTROVERSIAL MATTERS
Mr Soni has a history of work in hotel management, and towards the end of 2018 he applied for a position with the respondent. He had a job interview. Prior to that interview, he has deposed that he read a number of documents about the respondent on the Internet, including the relevant enterprise agreement and the AHL Corporate Plan. On 17 December 2018, he was forwarded an offer of non-ongoing employment by Regina Gorecki, the respondent’s Director of Human Resources (CB262-269). The letter of offer made a number of relevant assertions, including under the heading, offer of non-ongoing employment:
You have been selected for employment as a non-ongoing employee at the APS Level 3-7 with Aboriginal Hostels Limited (AHL).
Details of your proposed employment and the duties on which you will be engaged are set out in the attached Notice of Engagement.
As per the indicated APS Level and Salary in the attached Notice of Engagement, you will be employed as a non-ongoing employee under Section 22 of the Public Service Act 1999 (PS Act).
You are expected to commence and finish on the Commencement Date and Cessation Date as indicated in the attached Notice of Engagement; unless an alternative Commencement or Cessation Date is agreed with me in writing.
Your non-ongoing engagement will be subject to you meeting the conditions of engagement outlined in the attached Notice of Engagement and the AHL EA. Please carefully read through these items prior to acceptance of this offer.
The letter also noted (CB264):
This Notice of Engagement, the attached Letter of Offer and the Aboriginal Hostels Limited Enterprise Agreement 2017 (AHL EA) form the complete offer of employment from Aboriginal Hostels Limited to Ravi Soni.
At CB265 it was specified next to the word “category”, “Non-ongoing Specified Term”. The commencement date was 19 December 2018, and the termination date was 11 December 2019. Both those items were ticked by the applicant.
The applicant signed the acceptance of engagement offer (CB268) and ticked the box which marked “I formally accept the non-ongoing offer of employment as specified in the letter of offer dated 18/12/2018 to Aboriginal Hostels Limited”. (The applicant conceded in cross-examination that that was an error and should have referred to the letter of offer of 17 December 2018).
The documentation sent on 17 December 2018 followed the job interview between the applicant, Jacinta Mack, and Hannah Simpson on 4 December 2018. On 11 December 2018, the applicant sent a follow-up email in which inter alia he asserted:
As mentioned on the phone, I am very keen on the position and confident that if successful you will find me to be great asset for many years to come.
Mr Soni’s employment duly began and appears to progress relatively unexceptionably until about the middle of 2019. At that time, Carla Wills was appointed as the manager of the hostel (the applicant being the assistant manager). Between early and late June 2019, the applicant was unwell and was an inpatient with meningitis at the Alfred Hospital. He appears to have met Ms Wills upon his return to work either at the end of June or the beginning of July 2019.
Almost from the start, two things occurred. First, as he has deposed in his affidavit (paragraph 24, CB57), the applicant thought that Ms Wills was not experienced in hospitality. Second, Ms Wills formed the view that the applicant was struggling to perform the role of assistant hostel manager (paragraph 7 of her affidavit, CB427). Ms Wills has deposed as to a number of difficulties (in her perception) of Mr Soni’s performance, including his devolving administrative tasks to her that he should have undertaken himself, failure to perform administrative tasks associated with the booking system properly, and lack of courtesy to residents and other employees. At paragraph 9 of her affidavit, she has given a number of particular instances ranging from 12 July 2019 until at least 23 October 2019.
Ordinarily, the next person up in the chain of command, so to speak, from Ms Wills would have been the operations manager, Taylor Cameron. Ms Cameron was, however, on maternity leave from January 2019 until October 2019, when she returned to that task. In the interim, the role that would otherwise have been performed by Ms Cameron was undertaken by Jacinta Mack, a business manager. She is one of three business managers employed by the respondent to manage the respondent’s Australia-wide operations, including, relevantly, Victoria. Ms Wills reported to Ms Mack in about late July 2019 that she was experiencing difficulties with Mr Soni’s workplace performance (paragraph 5 of her affidavit, CB469). On 5 August 2019, Ms Mack sent Mr Soni an email copied to Ms Wills, attaching an individual performance agreement (CB476 - 478). The email invited both Mr Soni and Ms Wills to participate in a meeting to discuss the document. The document, entitled Final Cycle Performance Feedback, assessed Mr Soni’s performance as meeting expectations in respect of the operation of the hostel, but otherwise, in all relevant facets, as being “support required”. Mr Soni replied by email on 6 August 2019 and disagreed with various details. He asserted, “I would like to further discuss and also I would like to contact various persons from whom I have personally received feedback from which is the opposite to the report especially in regards to 2, 3, 4, 5.” (CB480). On 24 August 2019, the applicant emailed Jacinta Mack relevantly stating, “I would like to have a chat with you mid week in regards to various matters including communications / follow ups / procedures and similar” (CB483). On 4 September 2019, a meeting was held by Ms Mack with Mr Soni, Ms Wills and Laura Del Miglio from Human Resources by telephone. Ms Mack has deposed (paragraph 9, CB470):
I opened the discussion by emphasising that the meeting was an informal opportunity to discuss his performance, and was being held to allow us to work together to address any issues that Mr Soni was experiencing in the workplace. Mr Soni actively participated in the meeting, and I cannot recall him raising any concerns about the expectations of performance. I emphasised with him the importance of working with and following the reasonable directions of the Hostel Manager in the course of performing his duties.
Thereafter, as Ms Mack has deposed, the applicant contacted her on several occasions, which Ms Mack has deposed were inappropriate and should have been dealt with by contact with the manager, Ms Wills. On 24 October 2019, a further matter arose that required Ms Mack’s involvement. Ms Wills forwarded an email to Ms Mack together with a prior email she had sent to Mr Soni on 23 October 2019. Relevantly, the email to Ms Mack said:
I have asked Ravi on a number of occasions this week to stop taking bookings in the hostel as we are at 100% occupancy and have no spare rooms up our sleeve and he's also made future bookings (aka he's overbooked the hostel, none of our current residents have told us of plans to leave).
He is Ignoring me and continuing to make bookings even after an incident last week where two ladies arrived from Alice Springs and weren't able to check-in to the reservation I'd made for them because he'd made another one over the top. He also booked an extra male in last week and then took his 2 RDOs leaving me and the cleaner to ask 4 separate residents to swap rooms and re-clean everything to fit this new person in.
I am at a complete loss as to what to do. I don't know what his intentions are behind it whether they are deliberate or misguided but I am starting to get worried. I'm not too sure where to go from here. The below is my handover notes from yesterday which I also went through with him in person during out crossover.
As a result of the concerns expressed, Ms Mack agreed with Ms Wills that they would provide Mr Soni with read-only access to the hostel’s reservation management system until his issues could be sorted out (at paragraph 12, Ms Mack’s affidavit, CB471).
On 18 October 2019, Mr Soni sent an email to Ms Mack which relevantly said:
My contract I believe is valid till December 18th.
Could you please inform as to the renewal of contract as soon as possible.
Ms Mack replied, relevantly:
The role of Assistant Hostel Manager at WT Onus will be re-advertised, and thus should you be keen to be considered for the position, you will need to re-apply.
Taylor Cameron or HR advise will advise when the recruiting process has commenced. (CB493 to 494)
The position was readvertised, and on 12 November 2019 Hannah Simpson sent an email to Taylor Cameron, copied to Ms Mack, setting out the applicants for the position of assistant hostel manager, which included Mr Soni. Ms Cameron sent a list to Ms Simpson, copied to Ms Mack, on 13 November 2019, which highlighted the persons that she thought ought to be interviewed, which list did not include the applicant. Ms Simpson responded to Ms Cameron, saying, relevantly (CB345):
Given that Ravi has applied, for our benefit it would only be fair that we interview Ravi and this way we have something to defend ourselves with if found unsuitable at interview.
Ms Mack, who had been copied into the email, responded on 13 November 2019, stating, relevantly:
I am not sure of the benefit to AHL or Ravi to interview him for the role at WT Onus. Given the reported performance level and issues that I have observed and managed during the past months, I am not keen to interview him for the role at WT Onus.
Following receipt of that email, those involved in the selection process did not include Mr Soni in the list of interviewees for the position.
In a parallel series of events, on 30 October 2019, Mr Soni emailed Laura Del Miglio, who is a recruitment team leader within the Human Resources Department of the respondent, but more importantly, for these purposes, is one of three harassment contact officers. The email to Ms Del Miglio (CB288) relevantly says:
Could you please provide details of Employee Assistance Program or similar as I would like to discuss my concerns regarding the workplace.
Ms Del Miglio replied, relevantly:
did you decide to contact me as a HR person or because I am a harassment contact officer? As it is important I put the correct hat on.
On 1 November 2019, Mr Soni sent Ms Del Miglio another email (CB291) which raised his concern about Ms Wills bringing her dog to work, and on 8 November 2019, Ms Del Miglio replied (CB297-298) summarising what she understood were the applicant’s concerns, inviting him to review her email and confirm its accuracy so that “We can then have another discussion before moving any further on this”. The applicant confirmed that the summary was correct and that he appreciated her assistance.
Ms Del Miglio, on the applicant’s request, sought to arrange a meeting to be attended by Ms Mack, Ms Cameron and Ms Wills, but owing to ill health on the applicant’s part, this did not occur. The complaint did not, however, go any farther because the applicant’s contract expired before the matter could be progressed.
On 26 November 2019, the applicant sent a letter “to whom it may concern”, which is not itself in evidence but which is set out at paragraph 67 of the applicant’s affidavit (CB72-73), complaining of unfair treatment, effectively, since June 2019 (when Ms Wills started). This was, of course, the same date upon which he was formally notified by Hannah Simpson that his application had been unsuccessful (CB349). He also forwarded a complaint to the APS Ethics email address on 28 November 2019, but this was not known, so far as the affidavit material discloses the matter, by any of the relevant witnesses called by the respondent.
THE EVIDENCE GIVEN AT COURT – THE APPLICANT
Paraphrases of the evidence taken from notes (as these are) may present as tedious to read, but in view of the nature of the controversy before the parties, in this case, it cannot be avoided.
The applicant was called and by leave gave some further evidence-in-chief. He said that the corporate plan to which he had referred would be in the annual report. There were ongoing positions, and the respondent operated 45 places around Australia. If the representations had not been made to him, he would have been looking for other employment. He would not have assessed the employment with the respondent as secure. He would have looked for work in providing services to the Aboriginal community and also managing hostels. He gave further evidence about his work following the cessation of his contract with the respondent. The respondent’s corporate plan for 2018 to 2022 was tendered as exhibit A1.
Cross-examination started off with detailed questions about the applicant’s post-employment earnings and work.
He was then asked what website he had looked at about the respondent before his first interview. He said he looked it up prior to the interview and had studied the respondent’s website in detail. He had worked in the field for 20 years, and he believed he got the documents from the website. Exhibit A1 had been downloaded today. When asked why it was not, in fact, annexed to his affidavit, he said words to the effect that he had been swamped with documents. He confirmed his handwriting on the letter of job offer, and he confirmed that he could have declined the offer of non-ongoing employment. He said he went ahead with the job anyway. He started on 19 December 2018 and finished on 11 December 2019. The work was a passion of his. He saw it as his foot in the door. Counsel put that there was nothing in his job offer that gave him unrestricted access to the respondent’s reservation system. The applicant replied that the job offer was not a position description.
Counsel traversed the performance review plan at CB477-478. The applicant said that he wanted to find out what the concerns were. He never received any documents. He asked for evidence and further documentation. He confirmed his response at CB480. He confirmed he attended the meeting on 4 September 2019. It was put that the issues were discussed with him, and he said “to a degree. There were a lot of strange things going on. Some of these things were brought up” (the applicant’s answers tended to be non-responsive or evasive or prevaricatory).
Counsel put to the applicant the handover notes of Ms Wills at CB522-525. It was put that he had not responded to these. Mr Soni said he believed he had. He did not agree with what Ms Wills was saying in these documents. Counsel traversed Mr Soni’s email to Ms Mack of 24 August 2019. It was put that this was not raising a grievance about his employment, and Mr Soni said it did not sound like a complaint.
Counsel traversed the reservation management system. The applicant agreed that this showed what rooms were available. He confirmed that in late October 2019 he was restricted to read-only status. Counsel put that he was not locked out, but Mr Soni said he could only read it. He could not enter anything. There was information he could not read. He could not read people’s bills. He could not book a client in. Darren wanted a room, and he could not book him in. Counsel put that there was no restriction on outstanding bills, but Mr Soni said he could not access accounts. He said he could not do anything. This was embarrassing. He was extremely limited. It was not just a matter of not taking bookings. He could not take money. Counsel put that his rate of pay was not changed, and he said he can agree with that. He agreed that no shifts were taken away from him, and he was not demoted. He said he could not do his work.
Counsel put that he had been invited to apply for the assistant hotel manager position twice in late 2019. Mr Soni sent an email wanting to continue his employment. He agreed that he had received the email from Ms Mack on 18 October 2019 (CB493-494), telling him that the job would be readvertised. When it was put that he was invited to re-apply twice, he said he could not remember. Counsel took him to CB496, being an email from Ms Simpson advising him that the job was advertised, and he agreed. It was his second application, as he had worked there for a year.
Counsel traversed paragraph 22 of the applicant’s affidavit (CB26) and put it that he had not been involved with the harassment officer’s call to Ms Mack. Mr Soni said he had never spoken to Jacinta Mack. She never returned his call.
Counsel traversed the hazard/incident report form at CB276-279. Mr Soni remembered these. They are about the late Sarah Fenton.
The applicant became distressed during this line of cross-examination, and a short adjournment was necessary. Counsel put that this incident report was not a complaint about his employment, and Mr Soni said “not those words”. It was a very concerning matter. The girl died.
In re-examination, Mr Soni was asked if the corporate plan statements had any effect, and he said, “Yes, 100 per cent.” He was then asked how he reconciled that with signing a 12-month contract. Mr Soni said it was his foot in the door. He had “a career in front of me”. It was the structure of the company. When asked about the effects of the read-only status in the reservation system and what its effect was, Mr Soni said it was unbelievable. He got a phone call from Darren, who needed a room, but he could not book him in. He was the only staff member there. He could not do simple duties and could not do his work.
THE EVIDENCE OF JACINTA MACK
Ms Mack adopted her affidavit as true and correct. She confirmed that in 2018 and 2019, non-continuing contracts were common, and it was common to re-advertise.
Under cross-examination, Ms Mack was asked if her employment had commenced with non-ongoing contracts, and she said yes. She was employed on non-ongoing contracts for three and a half years. When asked if she had expected to be renewed, Ms Mack was clear. She said no. There was no expectation of renewal. She took that risk.
There was no re-examination.
THE EVIDENCE OF CARLA WILLS
Ms Wills adopted her affidavit as true and correct. She is presently employed as a project officer, albeit, as I understand it, on maternity leave. She also formally tendered the four extra emails at CB522-525. There are handover notes at the end of every shift, and these were examples of non-actioned notes. The notes were tendered as exhibit R1.
Under cross-examination, Ms Wills confirmed that she commenced on a 12-month contract. This was standard. They were 12 or 18 months. She is still on a non-ongoing contract.
It was put that she had been steadfast about not booking over 70 per cent of the beds at the hostel. Ms Wills said she did not think so. She had told Mr Soni several times she did not want to exceed 70 per cent, but there were certainly times when they did. Counsel put it that she spent little time with Mr Soni at the commencement of her employment. Ms Mack said that Mr Soni was unwell for three weeks to a month. He had contacted her a few weeks after she had started and told her what was going on. Counsel put it that the first problem was with the cleaners and that Mr Soni said they were a day late. Ms Wills said she was not onsite when the altercation with the cleaners occurred. They had been employed to pressure clean the driveway, and staff had to move their vehicles. They had asked Ravi, and the altercation ensued. Ravi explained the issue at the time. She was confused about the correlation between moving the vehicles and a person collecting belongings that the applicant raised. She did not have any access to any information about Mr Soni’s employment before she arrived, nor any previous performance appraisals.
Counsel raised an issue relating to criminal records. Ms Mack was aware that Aboriginals have higher instances of criminal records. She said she had never asked Mr Soni to investigate the criminal records of guests. When she commenced employment, the hostel was taking people who were released from prison. She had asked if the parole officers wanted the hostel to lodge released criminals. She told Mr Soni to ask parole officers if they were comfortable, given that there were vulnerable women and children in the hostel.
She was aware that Mr Soni had extensive experience in hotel management. In response to a particular instance of bookings, Ms Wills said that they might have had two spare beds, but only in women-only rooms. It was not appropriate to put males in. Counsel put it that once he was cut off access to the reservation system, the applicant would not have been able to do this, and Ms Wills confirmed that this was correct. It was put to her that some people swear to a degree, that it is just part of their speech and is not insulting, and Ms Wills said, “Some people swear and some don’t. Some people swear but are not offensive.” Counsel finally cross-examined about paragraph 9(n) of Ms Wills’ affidavit (CB431). Ms Wills confirmed that you cannot physically stop people leaving the hostel. Nonetheless, with read-only access, you can still read if people have not paid, and you can take money from them. You cannot receipt the payment onto the system, but you could take pay on EFTPOS and leave for her to enter when she arrived.
Re-examination did not take the matter any significant degree further. Ms Wills confirmed in answer to a question from the court that there were about 11 or 12 bedrooms and 25 beds.
THE EVIDENCE OF TAYLOR CAMERON
Ms Cameron adopted her affidavit as true and correct.
Under cross-examination, she confirmed that it was standard to have non-ongoing contracts. Some move onto permanent. She is a senior officer in payroll and did not know if there was any rolling over of contracts now. Ms Cameron confirmed the accuracy of paragraph 9 of her affidavit in which she had deposed, relevantly (CB371):
Ms Simpson provided me with copies of the applications, which I reviewed. It seemed to me that Mr Soni’s application was incomplete, as he didn’t address the selection criteria, and had effectively resubmitted his application from the previous year. In light of the performance issues which I was aware of, I consulted with Ms Simpson on whether we needed to interview Mr Soni, given that he was the incumbent, and I was told that we did not need to. On that basis I was comfortable in proceeding to not interview Mr Soni, given that there was little prospect of his application being successful.
THE EVIDENCE OF HANNAH SIMPSON
Ms Simpson affirmed her affidavit as true and correct.
In cross-examination, Ms Simpson was asked if she was familiar with Mr Soni’s performance in 2019. She said she was not a part of anything to do with his performance. She was merely concerned with recruitment.
She was then asked about her email at CB345, in which she had referred to the possibility of interviewing Mr Soni in 2019. It was put that she was in favour of interviewing him to dot the Is and cross the Ts, and she confirmed that this was correct. She was not aware of what was happening at that stage. She had no personal interaction with Mr Soni. Mr Soni would have had contact with Carla Wills and a business manager in Perth. She had never visited the WT Onus Hostel. There had been no issues before Carla Wills arrived. The only issues raised were raised by Carla Wills.
It was put that a 12-month contract was standard, and Ms Simpson said yes. Mostly, they advertise again if the contract is up for renewal. When asked if it was usual to interview the incumbent, Ms Simpson said it depended on the force of their application and their performance. She herself started on a six-month contract which had been renewed two to three times but is now permanent. Now, it is probably 50/50 in terms of contract and permanent employment. In 2018, there were very few permanent staff. She confirmed that the decision had been made not to interview the applicant (CB344).
THE EVIDENCE OF LAURA DEL MIGLIO
Ms Del Miglio has been a recruitment team leader for five and a half years. She adopted her affidavit as true and correct.
Under cross-examination, Ms Del Miglio confirmed that her only contact with the applicant was in her capacity as harassment contact officer. The first contact she had had with Mr Soni was his email on 30 October 2019. This is about one to three days before she spoke to him. When asked what concerns Mr Soni had expressed, Ms Del Miglio said Ms Wills’ dog coming in was his main concern, though also health and safety matters about resident numbers and evacuation procedures. She was based in the ACT throughout. She did not have much interaction with Carla Wills. She was relying on information from Ravi. He had raised his concerns about Carla.
THE EVIDENCE OF REGINA GORECKI
Ms Gorecki is the Director of Human Resources for the respondent, and she adopted her affidavit as true and correct. She was asked if she was aware about performance reports made about Mr Soni. She said she was made aware. The business manager had requested a support meeting with Mr Soni and his manager. She had talked to one staff member to see if they could provide support.
She was asked about the process of probation (it should be noted in passing that it is quite clear from what Ms Gorecki had to say that she is very fully versed in the practices and procedures of the respondent). When there is a new appointment, an employee is not eligible for a formal performance management process. This is done under the probation procedures. There is a mid-term review which consists of discussions between the manager and the employee. There is then a final review just before the cessation of the six-month probationary period. After that, there can be performance agreements. Ms Gorecki confirmed that there is no star system. There are three forms of assessment. There is satisfactory, needs attention, and unsatisfactory. The mid-term report by the previous manager on 18 March 2019 was satisfactory. There were no comments, and it recommended continuation of the employment. The final review (before the expiration of probation) was not completed. This should have been at least four to six weeks before the cessation of the six months on 19 June 2019. If nothing was done, the appointment would be confirmed.
It was put to Ms Gorecki that if there were no issues, are 12-month contracts confirmed. Ms Gorecki was clear. She said no. This was completely different. These positions must be advertised as either ongoing or non-ongoing. Non-ongoing employees compete on a merit-based basis. Non-ongoing employment can be extended to a maximum of three years, with a maximum of up to 18 months in any given instance. After three years, the employees must compete on a merit-based recruitment process. There is now approximately 55 per cent ongoing employees, about 25 non-ongoing, and the remainder are casual. The respondent has stabilised its workforce since 2019. In 2018, about 30 per cent were permanent.
Ms Gorecki confirmed her understanding that the corporate plan is a key document for the respondent’s strategic planning but is not regarded as a binding contractual document.
In re-examination, Ms Gorecki confirmed that in 2018 to 2019, only about 30 per cent of employees were permanent. Over 50 per cent were in non-ongoing employment in 2018 to 2019.
BRIEF OBSERVATIONS ABOUT THE EVIDENCE
I have set out the paraphrases of the evidence, tiresome though it may be, for two reasons. First, as I hope is apparent, no challenge of any moment was made to the credibility of any of the respondent’s witnesses. More particularly, nothing was put to Ms Wills or Ms Mack to challenge the veracity of their descriptions of the difficulties they said they had encountered with the way Mr Soni performed his work. As I have indicated, at least in outline, Ms Wills set out in considerable detail the aspects of Mr Soni’s performance that she found unsatisfactory. It was never put to her that even one of these assertions was, in fact, incorrect. Likewise, Ms Mack, whose intervention in the recruitment process in 2019 was clearly critically antithetical to Mr Soni’s application, was not challenged as to her perceptions of Mr Soni’s work.
Lest it be of any moment, however, I would make the further following point. The applicant was, as Counsel for the respondent submitted in final submissions, not a satisfactory witness. He was palpably evasive and prevaricatory at times. By way of contrast, the witnesses called by the respondent were extremely impressive. They all answered the questions put to them directly and responsively and were plainly telling the truth. Moreover, their evidence in each instance was entirely consistent with the various contemporaneous documents. I was particularly impressed by both Ms Wills and Ms Mack. In the case of Ms Wills, she was more than prepared to make concessions that she would have been perfectly entitled not to make. Likewise, Ms Mack impressed me as particularly direct and forthcoming in her answers. Were it necessary to do so, I would have preferred their evidence to that of Mr Soni. Given that they were not effectively challenged, however, it is not necessary for me to go that far.
THE APPLICANT’S CLAIMS – THE AUSTRALIAN CONSUMER LAW
The applicant’s statement of claim pleads both section 18 and section 31 of the Australian Consumer Law. Section 18 relevantly reads:
(1)A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
Section 31 provides:
A person must not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead persons seeking the employment as to:
(a) the availability, nature, terms or conditions of the employment; or
(b) any other matter relating to the employment..
In the conduct of the case at trial, I got the impression that the section 18 claims were effectively all but abandoned. The claims were effectively pressed pursuant to section 31.
By paragraph 29 of the statement of claim, it is said that:
The initial representations, the further representation by conduct and the representation in the course of employment set out in paragraphs 4. 5, 7 and 8 above were false or misleading or liable to mislead and accordingly the conduct of the respondent there set out contravened section 18 and/ or section 31 (regarding employment) of the ACL and/ or constituted the misrepresentation of workplace rights in contravention of section 345 of the FWA.
Paragraph 4, when boiled down, amounts to an assertion that the matters in the AHL corporate plan constituted representations that were misleading.
It is immediately apparent that the corporate plan (exhibit A1) was prepared by the respondent as required under section 95(1)(b) of the Public Governance, Performance and Accountability Act 2013 (Cth). It is, in its nature, self-evidently an aspirational document, as the respondent correctly submits. The wording upon which the applicant seeks to rely is at page 7 and is as follows:
AHL’s workforce is integral to effective service delivery. To maximise staff’s ability to contribute to organisational objectives, AHL will seek to:
•employ Indigenous Australians at all levels
•retain and develop its workforce
•attract staff with the right mix of skills who apply its values.
To endeavour to elevate these generalised aspirational remarks to the point of being a binding representation, which is what the applicant seeks to do, is simply a bridge too far. They are not a commitment that this will necessarily be achieved. It simply states “AHL will seek to”. That language is the language of aspiration, not of promise.
It is therefore immediately apparent that the section 31 claim must necessarily fail in this respect.
Paragraph 5 of the statement of claim, which is the next paragraph relied upon, relates to the 11 December 2018 email that the applicant sent to the respondent, in which he said, “I am very happy that my work references were positive. As mentioned on the phone, I am very keen on the position and confident that if successful you will find me to be a great asset for many years to come.” Under the heading Particulars, it is asserted:
The conduct of the respondent in failing to immediately state that the position was limited constitutes a representation by conduct and by silence to the applicant.
In circumstances where thereafter the applicant was sent completely unambiguous documentation making it entirely clear beyond the merest scintilla of doubt that this was a non-ongoing one-year contract, that assertion is plainly utterly untenable.
The next representation alleged is at paragraph 7 of the statement of claim, in the following terms:
From about April 2018 the applicant was a prospective employee of the respondent in that he could apply for the position of Hostel Manager or to renew his position as Assistant Manager.
This is self-evidently not a representation. In paragraph 8, however, it is asserted:
In or about April or May 2019 the applicant was urged by Hanna Simpson, a senior manager with the respondent, to apply for the upcoming position of Hostel Manager or to renew his position as Assistant Manager.
Particulars suggest that Ms Simpson used these words in an email in or about April or May 2019. That email has not been produced in the course of this proceeding. Ms Simpson did not respond to that paragraph in her affidavit, and it was not put to her that she had in fact sent the e-mail. There is, in fact, no evidence to suggest that Ms Simpson did anything of the sort, apart from the applicant’s generalised assertion in the statement of claim. What the applicant said, so far as relevant, is at paragraph 19 of his affidavit, CB57:
In Mid-April 2019 AHL advertised for a new Manager. There were murmurings to me about that job, but I did not really want that level of responsibility for a few dollars extra pay so I did not apply for that job.
Leaving aside the question as to whether anything Ms Simpson had said was to the effect alleged in the statement of claim, which, as I say, the evidence does not, in fact, support, and leaving aside whether this could be in trade or commerce, in circumstances where the applicant deliberately chose not to apply for the position, it is impossible to see how this is capable of constituting a representation made to him in any conceivable operative way.
To recapitulate, the respondent’s corporate plan did not amount to a representation. Mr Soni’s email about his proposed suitability did not give rise to a representation by silence. The issuing of the unambiguous fixed term contract in any event would have disabused Mr Soni from any idea he might have had that either the corporate plan or his email gave rise to any sort of employment other than a one-year contract. Indeed, as he himself said, it was his foot in the door. That is an understandable appreciation from his point of view, but it did not elevate his one-year non-ongoing contract to some representation that he had anything other than that. He cannot have been misled. What he was told was true. There is no question that the application under the Australian Consumer Law is not made out.
It is appropriate at this stage to deal with what the applicant pressed alternatively under section 345 of the Fair Work Act. That relevantly requires that:
(1)A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person..
Insofar as paragraph 29 of the statement of claim pleads that the matters relied upon to establish the Australian Consumer Law claim alternatively constituted the misrepresentation of workplace rights in contravention of section 345 of the Fair Work Act, it is immediately apparent for the same reasoning already expressed that cannot be the case. There was nothing false or misleading about any aspect of the employment that was offered to Mr Soni.
THE ADVERSE ACTION CLAIM
It is perhaps appropriate, first of all, to comment on one aspect of the matters raised in the respondent’s submissions. Those submissions point (paragraphs 17 to 18) to the inappropriate emphasis in the applicant’s case as to the fairness or otherwise of the process whereby Mr Soni’s employment did not continue. Those submissions correctly point out that that is not a cause of action available in this court but rather one that could and should have been pursued in the Fair Work Commission. This court has no jurisdiction to entertain these matters (see Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204 at [125].)
The consideration of the adverse action claim, in my view, requires consideration of four matters: (a) what workplace rights does Mr Soni assert he had, (b) did Mr Soni exercise those workplace rights, (c) was adverse action taken against Mr Soni, and (d) was the adverse action caused wholly or substantially by the exercise of the workplace rights.
WHAT WORKPLACE RIGHTS DOES MR SONI ASSERT
At paragraph 31 of the statement of claim, it is asserted:
The conduct of the applicant as set out above in paragraphs 13, 16, 21, 22,
23 and 27 were his exercises by the applicant of workplace rights within the meaning of section 341 of the FWA or showed his intention to exercise workplace rights within the meaning of those expressions in the FWA.
PARAGRAPH 13 OF THE STATEMENT OF CLAIM
This reads:
As at 1 July 2019, the applicant was certified for light duties until about 10 July 2019.
While being certified for light duties might well involve a workplace right pursuant to either section 341(1) (a) and/or (b) of the Fair Work Act, nothing in the statement of claim or in the applicant’s own affidavit suggests that the issue of his being certified for light duties gave rise to any consequences whatsoever.
PARAGRAPH 16 OF THE STATEMENT OF CLAIM
This reads:
On 24 August the applicant sent an email to Jacinta Mack, Business Manager, stating among other things:
“I would like to have a chat with you mid week in regards to various matters including communications / follow ups / procedures and similar.I did call your phone approx twice over the past 3 days but did not leave a voicemail.”
As I understand it, the applicant’s position is that this was a complaint or enquiry to a person having the capacity under a workplace law to seek compliance with that law or a workplace instrument, or more particularly, being an enquiry as an employee in relation to his or her employment.
It is, however, well established that in order to be a complaint, there must be some active indication that something is being complained about, see Alam v National Australia Bank Limited [2021] FCAFC 178 at [59]. The terms of this email do not, in my view, properly construed, rise to that point.
PARAGRAPH 21 OF THE STATEMENT OF CLAIM
This reads:
On 6 November 2019 the applicant sent an email to Jacinta Mack requesting a phone call as he was concerned about the apparent inexperience of Carla Wills, the Hostel Manager. Further particulars will be supplied upon discovery.
That email has not been produced, so far as I understand the matter, in the currency of this proceeding. The applicant’s affidavit makes no mention of it whatever. Unsurprisingly, therefore, Ms Mack does not respond to it. On the evidence as it stands, the only conclusion I can reach, bearing in mind that the matter was not put to Ms Mack in cross-examination in any event, is that this aspect of the claim is simply not made out because there is no evidence to suggest that it occurred.
PARAGRAPH 22 OF THE STATEMENT OF CLAIM
This reads:
On 12 November an “harassment officer” at the instigation of the applicant, contacted Jacinta Mack orally regarding the applicant’s complaints. Further particulars will be supplied upon discovery.
It is immediately apparent, of course, that this action by the harassment officer was not an exercise of a right by the applicant but rather an action of that person themselves.
PARAGRAPH 23 OF THE STATEMENT OF CLAIM
This reads:
By letter of 26 November 2019 the applicant raised his concerns squarely regarding: (and a number of matters are set out).
This appears to correspond to paragraph 67 of the applicant’s affidavit, CB72-73. I do not set out that paragraph in full. I note that in paragraph 67 of his affidavit, Mr Soni, who sets out the letter in full, is not able to say to whom the “to whom it may concern” email was sent, save that he believed it was sent to the harassment officer (Ms Del Miglio).
Ms Del Miglio has set out in affidavit her chain of what she says was her correspondence with the applicant, and she was not challenged as to this in cross-examination. While I would readily accept the terms of the letter as described in the affidavit were capable of being the exercise of a workplace right pursuant to section 341 of the Fair Work Act, there must be a question as to whether it was exercised in the sense that it was actually sent to an identifiable person.
PARAGRAPH 27 OF THE STATEMENT OF CLAIM
This reads:
On 10 December 2019 the applicant filed a “Hazard / Incident” report with the respondent which stated inter alia:
“I Ravi Soni wish to state that from my own investigation which includes discussions with various staff and residents: Sarah Fenton (deceased) did not verbally abuse or yell as stated in incident report that led to her eviction. I specifically recall on 23rd October when Carla Wills was extremely rude to Sarah that Sarah did not at all react in a abusive manner. My observations of Sarah would best describe her behaviour as "over it, tired and not worth the hassle, not having the energy to bother to argue." A certain resident who witnessed the events that Sarah was evicted for has stated "Sarah didnt say anything and was quiet and no way did she yell or was abusive". Every person I have asked has stated that Sarah was a quiet person.”
Leaving aside the fact that this report was the day before the cessation of the employment, by which time the applicant already knew he was not going to be reappointed, it is difficult to see how this could have given rise to any adverse action on any view of the matter. Furthermore, it is difficult to see that it rises to meet the definition of what is a complaint. It does not foreshadow a complaint to any third party. It might conceivably be something that would initiate a process or proceedings under a workplace law, but it certainly does not say so.
OTHER MATTERS THAT MIGHT CONSTITUTE THE EXERCISE OF A WORKPLACE RIGHT
Although not put in the statement of claim as giving rise to the exercise of a workplace right, I am prepared to assume in Mr Soni’s favour that his interactions with Ms Del Miglio might amount to the exercise of a workplace right. He plainly complained about the dog and various other matters. However, as I have already indicated, on Ms Del Miglio’s unchallenged evidence, the harassment officer claim, if I can so describe it, ultimately fizzled out because the applicant did not get back to her and take the matter further.
IN ANY EVENT, WAS ADVERSE ACTION TAKEN AGAINST MR SONI
The pleading of adverse action traverses, as I have indicated, the matters in paragraphs 13, 16, 21, 22, 23 and 27 of the statement of claim. It is then pleaded at paragraph 32:
The respondent’s conduct as set out above in paragraphs 14 15, 18, 19, 20, 25. 26 and 28 were each because of the prior conduct of the applicant set out above in paragraph 31 because the applicant had, with respect to each such incident of the respondent’s conduct, previously shown that he intended to exercise his workplace rights or had previously exercised his workplace rights in respect to those matters as referred to in paragraph 31 above.
PARAGRAPH 14 OF THE STATEMENT OF CLAIM
This reads:
Carla Wills later states that from 1 July 2019 she raised ‘concerns’ about Ravi with Jacinta Mack in Sydney who was the Business Manager of the respondent. Carla Wills states this in later written material particulars of which will be given upon discovery.
Adverse action is of course defined relevantly in section 342 of the Fair Work Act in respect of an employer against an employee as:
The employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice, or
(d) discriminates between the employee and other employees or the employer.
I am prepared to assume in Mr Soni’s favour that the referral by Ms Wills to Ms Mack of her concerns might injure, in the ultimate, Mr Soni in his employment.
PARAGRAPH 15 OF THE STATEMENT OF CLAIM
This reads:
On 5 August Jacinta Mack, who was not in Victoria, sent an email to Carla Wills and the applicant regarding an “IPA” meeting” about his performance. Carla Wills was to attend that meeting.
This is particularised as a copy of the email dated 5 August 2019. That email is at CB476-478. I am prepared to assume in Mr Soni’s favour that the assertions of less than satisfactory performance at CB477-478 might involve injuring him in his employment, albeit that it should be noted that Ms Mack’s email sought comment from Mr Soni and made it clear that this would be properly considered.
PARAGRAPH 18 OF THE STATEMENT OF CLAIM
I do not set this out in full. It refers to an email from Ms Wills to Mr Soni on 23 October 2019, in which she exhorts him to keep to the 70 per cent KPI accommodation limit.
On its face, this was simply an admonition made by Ms Wills to Mr Soni about the proper organisation or functioning of the hostel. While it may have been part of a sequence of events that ultimately led to the termination of employment, it is difficult to see that it injured Mr Soni in his employment.
PARAGRAPH 19 OF THE STATEMENT OF CLAIM
This is concerned with a further email sent by Ms Wills to the applicant in which she raised with him his taking bookings in circumstances where the hostel was overbooked. Once again, while this was part of the continuum, as with paragraph 18, it is difficult to see that it injures him in his employment. It merely requires him to comply.
PARAGRAPH 20 OF THE STATEMENT OF CLAIM
These matters refer to events on 24 October 2019, whereby the applicant was ultimately reduced to read-only status on the reservation management system. I am prepared to accept that this was action that altered his position to his prejudice and/or injured him in his employment.
PARAGRAPH 26 OF THE STATEMENT OF CLAIM
This asserts that on or about 6 December 2019, the applicant was accused orally by Ms Wills of overbooking the hostel and of other minor infractions. It is asserted that discussions to this effect were raised in e-mails “about 6 December 2019”)
This matter is not dealt with in Mr Soni’s email at all, nor in that of Ms Wills. The emails asserted in the statement of claim have not been provided. It is difficult to see how the finding of adverse action can be sustained.
PARAGRAPH 28 OF THE STATEMENT OF CLAIM
This asserts that:
On 11 December 2019, the respondent determined the applicant’s employment and his position at the hostel therefore ceased.
It is absolutely clear that this cannot have been adverse action. It was foreshadowed by the original contract itself. The contract came to an end as a result of the fluxion of time (Victoria v The Commonwealth [1996] 187 CLR 416 at 520).
OTHER MATTERS
Although not pleaded, I am prepared to assume in Mr Soni’s favour that the decision of Ms Mack to intervene in the selection process when the position was re-advertised in 2019 was adverse action within the meaning of the Act. It plainly injured him. It altered his position previous to that, which was that Ms Simpson was pressing for him to be included as an interviewee. Ms Mack’s intervention was decisive in, in effect, ensuring that his employment did not continue.
WAS THE ADVERSE ACTION CAUSED BY ANY EXERCISE OF WORKPLACE RIGHTS BY THE APPLICANT
For the reasons given, there are considerable difficulties with establishing what the workplace rights were that the applicant asserts. It is also difficult, in many instances, to see, as I hope I have indicated, that he actually exercised them. To the limited extent that adverse action can possibly be found on the pleadings or even more broadly, my conclusion can be expressed shortly. As already previously indicated, the respondent’s witnesses were excellent witnesses. Plainly, those things that befell Mr Soni that ensured that his employment did not get renewed following the re-advertisement process, which I fully accept from Ms Gorecki is a rigorous and proper one done on a merits-based series of criteria, was because the applicant simply failed to perform his job properly. This was the evidence of Ms Wills. This was the evidence of Ms Mack. I think I have already made this clear, but I would repeat that I fully accept that evidence. Mr Soni was not a satisfactory employee. He so conducted himself that it became necessary to remove his capacity to make bookings because of the problems he was causing. People coming from Alice Springs and not being able to be accommodated is, as Ms Mack pointed out in her affidavit, a significant deficit. It is merely, however, illustrative of the difficulties. The removal of Mr Soni from the computer system made things more difficult for Ms Wills in the short term. It was a step plainly taken because there was felt to be no alternative. In the end, Mr Soni did not perform to a satisfactory level. This led Ms Mack to express the view that he ought not be interviewed, and this therefore did not occur.
It should be noted finally that the circumstances whereby Mr Soni was removed from consideration for the new position might be open to criticism. He was, in effect, not considered because of complaints about his performance that were never put to him in terms and to which he therefore did not have an opportunity to reply. He may perhaps have had a more tenable claim for unfair dismissal in the Fair Work Commission, but as already indicated, that is not the claim before this court.
Mr Soni has completely failed to make good any of his causes of action, and it follows that the application must be dismissed.
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 1 March 2022
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