Stevenson v Airservices Australia
[2012] FMCA 55
•1 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| STEVENSON v AIRSERVICES AUSTRALIA | [2012] FMCA 55 |
| INDUSTRIAL LAW – Adverse action – whether for a prohibited reason – whether decision-maker’s motivation affected by motives of persons providing him with the information used as the basis for his decision. |
| Air Services Act 1995, s.8 Fair Work Act 2009, ss.340, 341, 342, 360, 361, 545 |
| Khiani v Australian Bureau of Statistics [2011] FCAFC 109 Hodkinson v The Commonwealth (2011) 207 IR 129 Barclay v Board of Bendigo Regional Institute of Technical & Further Education (2011) 191 FCR 212 |
| Applicant: | GEOFFREY STEVENSON |
| Respondent: | AIRSERVICES AUSTRALIA |
| File Number: | SYG 471 of 2011 |
| Judgment of: | Cameron FM |
| Hearing dates: | 19, 20, 21 and 22 December 2011 |
| Date of Last Submission: | 22 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2012 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr T. Jacobs |
| Solicitors for the Respondent: | Blake Dawson |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 471 of 2011
| GEOFFREY STEVENSON |
Applicant
And
| AIRSERVICES AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction
The applicant, Mr Stevenson, was employed by the respondent (“Airservices”) from 1 October 2009 to 8 December 2010.
Airservices is a Commonwealth statutory corporation established under the Air Services Act 1995. Section 8 of that Act provides that one of Airservices’ primary functions is to provide services and facilities to give effect to international agreements relating to the safety, regularity or efficiency of air navigation whether in or outside Australia.
Between May and September 2010 Mr Stevenson made various complaints to his direct supervisor, Caroline Fleming, Airservices' General Manager People and Culture, and to Jason Harfield, General Manager Air Traffic Control, alleging that Andrew Richards, a manager reporting to Mr Harfield, was bullying and harassing him. Mr Stevenson made further complaints to Ms Fleming alleging that Mr Harfield had bullied him in a meeting on 17 May 2010. Airservices appointed an external mediator to resolve the issues between Mr Stevenson and Mr Richards but the mediation did not take place before Mr Stevenson was advised on 8 December 2010 by Airservices’ Chief Executive Officer (“CEO”), Gregory Russell, that his employment was terminated.
Mr Stevenson alleges that he exercised a workplace right by complaining about the alleged bullying and harassment. Relevantly, he alleges that Airservices took adverse action against him by terminating his employment for reasons related to his complaints. He seeks compensation.
Airservices denies that Mr Stevenson’s employment was terminated because he exercised a workplace right. It alleges that his employment was terminated because he failed to build and sustain key relationships with its internal and external stakeholders, including Mr Russell, Mr Harfield and key representatives of the Civil Air Operations Officers’ Association of Australia (“Civil Air”).
Relevant provisions
Part 3-1 of chp.3 of the Fair Work Act 2009 (“FWA”) provides for employees’ general protections. Division 3 of pt.3-1 provides for the protection of workplace rights. Sections 340 to 342 of the FWA are found in div.3 of pt.3-1 and relevantly provide:
340Protection
(1)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. …
341Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
…
(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
342 Meaning of adverse action
(1)The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...
Column 2
if ...
1 an employer against an employee the employer:
(a) dismisses the employee; 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 of the employer.
Section 361 of the FWA is concerned with proof of the reason for action alleged to be contrary to a provision in pt.3-1 of the FWA. It provides:
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
Section 360 provides:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Section 545(2)(b) provides that the Court may award compensation for loss suffered because of a contravention of s.340.
Background to the proceeding
Mr Stevenson commenced employment with Airservices on 1 October 2009 reporting to Ms Fleming, the General Manager of the People and Culture (“P&C”) division. Airservices has a number of different groups including:
a)the Air Traffic Control (“ATC”) group, which manages the safe and efficient flow of aircraft into, out of and across Australian airspace;
b)the Aviation Rescue and Fire Fighting (“ARFF”) group, which provides the ARFF service at about twenty-one fire stations across Australia;
c)the Technology and Asset Services (“TAS”) group, which provides the equipment and infrastructure necessary for the provision of Airservices’ services; and
d)the P&C group, which provides human resources and workplace relations expertise, amongst other services.
Although the proceeding was concerned with whether Mr Stevenson’s dismissal was motivated by a prohibited reason, namely the fact that he had exercised his workplace right to make a complaint or complaints, the evidence was principally directed to Mr Stevenson’s interactions with persons associated with the ATC group, in particular the general manager Mr Harfield, and Mr Richards who was, at the relevant time, the Manager Business Support ATC and reported to Mr Harfield, and Mr Mason who is an ATC supervisor and president of Civil Air, the union covering air traffic controllers (“ATCs”). Evidence was also adduced concerning Mr Stevenson’s relationships with other Airservices employees. The parties adduced evidence of perceptions of how Mr Stevenson discharged his duties.
Much time was devoted to considering a number of incidents which appear to have been flashpoints for difficulties which Mr Stevenson had with Mr Richards and with Mr Harfield. There was also evidence adduced concerning Mr Stevenson’s work with Mr Smith of the ARFF group but, for reasons given later, I am not of the view that this is of any relevance to the matter which is really in issue.
The first relevant incident arose in March 2010 and concerned an ATC employee, David Wiman, who had been terminated and was seeking re-instatement. Mr Harfield understood that Mr Stevenson thought that Mr Wiman should be reinstated and believed that, in reaching that conclusion, he had not placed sufficient weight on the views of the ATC group. Mr Richards complained that he provided Mr Stevenson with material for insertion into a Deed of Release concerning Mr Wiman but was later informed by others that Mr Stevenson was requesting for a second time the information which Mr Richards had already provided to him. Mr Richards deposed that Mr Stevenson had also sent a wrong version of the Deed of Release to Civil Air.
The second matter concerned a Mr Holmes, an employee of Airservices, who had commenced an extended period of leave without pay prior to the termination of his employment. On 1 April 2010 Mr Stevenson telephoned Mr Harfield to discuss Mr Holmes’s possible entitlement to an early retirement benefit (“ERB”) as part of his termination payment. Messrs Stevenson and Harfield’s evidence concerning the content of their discussion diverges but, regardless of what was said, Mr Stevenson subsequently sent an email to Ms Taylor, the P & C group’s Relationship Manager for the ATC group, which she interpreted to mean that Mr Harfield had decided that Airservices would not pay Mr Holmes an ERB. She then advised Mr Holmes accordingly. However, at that point Mr Harfield had not, in fact, reached a concluded view on the issue.
The third and fourth matters concerned a Civil Air application to Fair Work Australia (“Fair Work”) involving Airservices. Mr Richards deposed that prior to a conciliation conference on 10 May 2010 Mr Stevenson had said on two occasions “I am deliberately sneaky when I deal with the unions”. He also deposed that Mr Stevenson said at the conference that he did not have with him an email sent by Civil Air to Ms Fleming or Airservices’ response when in fact he did.
The fifth matter was a meeting between Messrs Stevenson and Harfield on 17 May 2010 when Mr Harfield lost his temper with Mr Stevenson. Mr Stevenson complained about this to Ms Fleming.
The sixth matter was a complaint by Mr Harfield that on 10 June 2010 Mr Stevenson had sent to Civil Air a draft update on an investigation into the work practices at the Melbourne ATC Operations Centre without clearing it with him first.
The seventh matter concerned a sharp email exchange between Mr Richards and Mr Stevenson on 17 June 2010 concerning who was responsible for delays in preparing factual material for inclusion in correspondence to Civil Air preliminary to a meeting with the union.
The eighth matter concerned an email exchange in early September 2010 between Mr Stevenson and Mr Richards relating to employee representative nominees for a Fairness and Diversity Working Group. Mr Richards disagreed with Mr Stevenson’s description of earlier, related events.
The ninth matter concerned a Fair Work conference on 7 September 2010 concerning a matter known as the “triple acquittal” dispute, which concerned the construction of a particular clause in the ATC collective agreement. Following the conference it was suggested that there be a meeting between Civil Air and Airservices. There was a disagreement between Mr Stevenson and Mr Richards about who suggested the meeting and whether Mr Stevenson should attend. Mr Stevenson complained to Ms Fleming and Mr Harfield, saying that Mr Richards’s behaviour towards him was becoming malicious bordering on harassment. He requested “some sort of discussion with him (and me if you want) so it can cease as soon as possible”. The mediation between Mr Stevenson and Mr Richards was subsequently arranged.
The tenth matter was a complaint by Mr Mason to both Mr Russell and Mr Harfield in October 2010 that Mr Stevenson had failed by the due date to file material with Fair Work in the “triple acquittal” proceedings but instead had advised that it would be filed in due course. Mr Mason advised Airservices that Civil Air would complain to Fair Work about this.
Evidence
Geoffrey Stevenson
Mr Stevenson filed a witness statement signed on 26 June 2011 and an affidavit sworn or affirmed on 29 July 2011 which annexed documents additional to those attached to his witness statement.
Mr Stevenson stated that he has been a workplace/industrial relations specialist for twenty-one years. He stated that his performance was praised by Ms Fleming at the end of his probationary period and at performance review meetings. He received a performance bonus for the period ending July 2010.
Generally
Mr Stevenson stated that in 2010 he arranged monthly meetings with Mr Harfield to discuss matters concerning the ATC group. Mr Stevenson stated that during those meetings Mr Harfield did not raise any issues regarding Mr Stevenson’s lack of professional ability or any problems in their relationship.
Mr Stevenson stated that he attempted to meet with Mr Richards on a weekly basis but Mr Richards frequently cancelled the meetings or did not attend. Mr Stevenson stated that it was difficult to arrange meetings with Mr Richards as he would not answer or return telephone calls. Mr Stevenson also said that Mr Richards would withhold information and would not brief Mr Stevenson’s team about industrial tribunal matters until the last minute. Mr Stevenson stated that Mr Richards mainly communicated by email, copied to Mr Harfield and Ms Fleming, and that his emails contained allegations about Mr Stevenson and comments degrading or insulting his ability and performance or making unjustified criticism of his advice. Mr Stevenson stated that many of Mr Richards’s emails were sent from his mobile phone and outside business hours. Mr Stevenson felt that Mr Richards was doing this to harass, intimidate and put pressure on him to leave his employment.
In June 2010 Airservices received some negative media attention as a result of two female ATCs’ allegations of bullying and discrimination by managers in the ATC division. The P&C department was investigating those allegations. The ATC and P&C departments disagreed on how to address the issue and this created a highly charged environment.
Complaints
Mr Stevenson stated that between May and August 2010, he complained to Ms Fleming and Mr Harfield about Mr Richards’s behaviour, which he considered to be negative and a deliberate campaign of harassment to undermine his working relationships within Airservices’ management.
Mr Stevenson stated that he requested a meeting of Ms Fleming, Mr Harfield, Mr Richards and himself to discuss his various difficulties with Mr Richards. Mr Stevenson stated that Mr Richards did not attend the meeting. At the meeting an agreement was reached on a protocol to deal with all workplace relations matters in the ATC division. Mr Stevenson stated that Mr Richards did not recognise the protocol and ignored it when it suited him.
Wiman matter
Mr Stevenson rejected the proposition that he made the decision for the reinstatement of Mr Wiman. He said that he never made a decision, although he did give a view on the merits of the claim. He said that he recommended that there be a pre-conciliation conference meeting and that he meet with the union.
Holmes matter and ERB entitlement
In relation to Mr Holmes and whether he was entitled to an ERB, Mr Stevenson said that Ms Taylor had asked him to ring Mr Harfield “not to tell her what his decision was, but to ring him and – you know, she wanted me to tell her whether he was entitled to an ERB payment” (T49). Mr Stevenson said that his understanding was that Ms Fleming made the decision about whether anybody was paid a settlement on termination.
Mr Stevenson said that Mr Harfield was cranky and asked why he was calling him. Mr Stevenson said that at that time Ms Taylor was on leave and she asked him to send her an email advising what Mr Harfield said. Mr Stevenson said that his email to Ms Taylor attempted to communicate the fact that he did not believe that there was an ERB entitlement and that no one had told Mr Harfield that there was one. Mr Stevenson said that he did not make a decision on whether Mr Holmes should be paid an ERB but merely provided some advice.
10 May 2010 conciliation conference
Mr Stevenson rejected the proposition that he had said, when having coffee with others from Airservices prior to a conciliation before Fair Work on 10 May 2010, that his approach when dealing with unions was “deliberately sneaky”. Mr Stevenson said that this was a smear by Mr Richards. He said that, during the conversation in question, he had discussed his involvement in local government politics and might have suggested that industrial relations was not dissimilar but he was not implying that he was deliberately sneaky in his dealings with unions. In this regard, he pointed to the fact that although Mr Richards had said in an email the following day that this is what he had said, he had rejected it in his email in reply.
In relation to the correspondence raised at the conciliation conference, Mr Stevenson said that his negative response to Civil Air’s enquiry related to the fact that he had not been a party to the correspondence. He agreed that he had a copy of the correspondence but his reply to Civil Air’s query at the conciliation conference related to the fact that he was not a participant in the exchange, merely an observer. In particular, Mr Stevenson rejected the proposition that he deliberately misled Fair Work. He said that this allegation was another smear by Mr Richards. He said that Mr Richards was always very picky when he came to Fair Work with him and always sledged him because Mr Richards did not want him to be the advocate at Fair Work.
Mr Stevenson said that the alleged events of 10 May 2010 did not result in a complaint to Fair Work or in any disciplinary action and had not caused performance issues to be raised with him.
Meeting with Mr Harfield on 17 May 2010
Mr Stevenson stated that Mr Harfield’s behaviour at the meeting on 17 May 2010 was alarming and confronting. He attached to his witness statement a file note of that meeting dated 17 May 2010 in which he said that Mr Harfield’s behaviour had been outrageous, suspicious, angry and that he had banged the table frequently.
Mr Stevenson denied saying at that meeting that he was employed to tell Mr Harfield what to do and that Mr Harfield had to take his advice. He said that he told Mr Harfield that he was employed to give advice and to give advice to him but Mr Harfield became angry when this was said. According to Mr Stevenson, Mr Harfield said that he would determine who would advise him and would determine whether a particular matter was a “legal” one. Mr Stevenson said that Mr Harfield swore loudly at the meeting and threatened to call Mr Russell and had acted in that manner to intimidate him. Mr Stevenson stated that he discussed the meeting with Ms Fleming and indicated that he would not meet with Mr Harfield in the future without another person present.
Mr Stevenson said that he believed that Mr Harfield had contributed to the decision to terminate him because he was annoyed with him at the meeting.
Sending document to Civil Air
In relation to the document sent to Civil Air updating them on the recommendations arising out of the Melbourne investigation, Mr Stevenson said that Mr Shea was the primary contact for the investigation and had prepared the document. He said that he had seen the document, had provided Mr Shea with some feedback on it and was then asked to forward it to Civil Air. He said that he assumed that both Ms Fleming and Mr Harfield had seen the document and it was not his fault that the wrong update had been sent to the union. He said that from Ms Fleming’s point of view, there had been no issue with his performance concerning that matter because she knew that it had not been his fault that the wrong update had been sent.
Mr Mason’s complaint
Mr Stevenson said that the documents due to be filed by Airservices in the “triple acquittal” dispute on 22 October 2010 were not filed on time because there was information outstanding from Mr Richards and his managers. He said that he left a courtesy message on the phone of Civil Air’s executive secretary, Mr McGuane, to let him know that Airservices had not filed the documents. He said that he could not recall whether he had said that they would be filed in due course but said that he could not give a timeframe for when they would be filed. He said that he and his assistant had tried to contact Civil Air earlier that day but there was no response. He said Civil Air’s complaint about this issue was “making a mountain out of a molehill”.
Mr Stevenson said that Mr Mason was peripheral to his relationship with Civil Air and he was not an external stakeholder with whom he needed to have a relationship. He said that he did not deal with Mr Mason directly, rather he dealt with Mr McGuane and Civil Air’s industrial officers.
Mediation and stress related illness
An external mediator, Tricia Garnett, was appointed to resolve Mr Stevenson’s complaints against Mr Richards. Mr Stevenson stated that he met with Ms Garnett and she advised him that she was having trouble arranging a meeting with Mr Richards.
Mr Stevenson stated that on 16 November 2010 he became ill with hypertension and was admitted to hospital the following day. He stated that the harassment of him by Mr Richards and Mr Harfield continued after his return to work and resulted in his further temporary absence from work due to stress.
Dismissal
Mr Stevenson stated that after two short meetings with Mr Russell, his employment was terminated for reasons relating to his complaints and before the conclusion of the mediation process or his recovery from the stress-related medical condition.
Mr Stevenson said that at the 2 December 2010 meeting, Mr Russell only specifically discussed his relationship with Mr Harfield and was vague in relation to other people. Mr Stevenson said that he did not recall Mr Russell saying that he had difficulty working in a team. He said that the enterprise bargaining negotiations were the main issue Mr Russell discussed with him. He also acknowledged the truth of the statement in his letter to Mr Russell of 7 December 2010 that he was aware of the critical nature of the period leading up to negotiations for a new enterprise agreement.
Mr Stevenson said that he raised the issue of his relationship with Mr Harfield and Mr Richards, stating that his relationship with Mr Harfield had deficiencies because of Mr Richards’s action but that Mr Russell said in relation to Mr Richards “don’t worry about Mr Richards. He’s gone”. In their discussion Mr Stevenson concentrated on convincing Mr Russell that he could improve his relationship with Mr Harfield because Mr Russell said that Mr Richards would not be a problem any more as he was going.
Mr Stevenson said that the details of his complaints were not discussed with Mr Russell, the focus being on the fact that he did not have a good working relationship with Mr Harfield.
Mr Stevenson said that he had had good working relationships with the majority of Airservices’ managers, with the exception of Mr Harfield, Mr Richards and some other people from the ATC group who, in his opinion, seemed to dislike the workplace relations group. He said that he did not have an opportunity to build a relationship with Mr Harfield and it was not a good relationship because it was undermined by Mr Richards’s emails and other harassment in which Mr Stevenson said Mr Richards engaged.
Mr Stevenson said that he was aware of mistrust on the part of Mr Harfield but said that this did not demonstrate that they did not have a productive working relationship. Mr Stevenson said that the two had hardly had much contact and were distant because Mr Harfield had interposed Mr Richards between them. He said that none of the other general managers dealt with him in that way. He said he had a productive relationship with Mr Harfield but it was dysfunctional because they did not have anything to do with each other.
According to Mr Stevenson’s note of the meeting, he asked Mr Russell if any union officials had complained about him and was told that Mr Russell received those sorts of complaints about managers all the time but took no notice of them.
Mr Stevenson’s role at Airservices
Mr Stevenson conceded that part of his role was to build and establish working relationships, although he pointed out that it was not a key performance indicator. He acknowledged that at his performance review Ms Fleming had discussed with him his relationships in the business and it was identified that he needed to work on those issues. However, these were valued at 10% of his performance target whereas 80% related to his role of defining P&C’s relationships with other operating groups which was thus more important than his relationships with individual people.
Mr Stevenson said that his job was to provide advice to management so they could make decisions. He said that although it was his job to provide the strategy and to advise the business what the strategy would be, it would be the business which would determine what happened in the end. Even so, he said it was not up to Airservices’ business units to make decisions about payment to a particular employee or what position should be adopted in relation to an industrial dispute and, when it came to matters such as termination of employment, Ms Fleming had advised that she would make the decision.
Mr Stevenson said that there was always disagreement between him and the ATC group as to who was running meetings and having conversations with Civil Air. He said that ATC wanted to run every meeting and do all the talking but he had been hired to do a role: to have a relationship with the union and to run meetings with them, as well as to be at the advocate in conciliation conferences at Fair Work. He said that from early 2010 ATC tried to push him aside and had used Linda Glover from the legal department to run everything as a legal matter, whereas it was his role as workplace relations manager to do these things through the centralised human resource department. So, he said, when people like Mr Richards or Mr Woodward would demand to run a meeting, he would have to remind them that that was his role. However, he denied ignoring others’ opinions or managing issues in a unilateral fashion.
Mr Stevenson also spoke of difficulties he had with Ms Glover, the in-house lawyer, who he said involved herself in matters which were properly his responsibility. He said that, in the end, Ms Fleming told him to push Ms Glover aside and to make sure that he did his job which was to run the industrial relations matters, matters which were properly the responsibility of Ms Fleming’s department. He said that his job was to provide strategy and Ms Glover’s was to provide legal support. He said that P&C had to stop ATC running its own industrial relations policy.
Mr Stevenson rejected Mr Woodward’s evidence that he had said words to the effect “Why does Jason Harfield meddle in industrial issues?”. He conceded that he might have queried why Mr Harfield was interested in a particular issue or issues but recognised that significant industrial issues which would affect him would also involve him. In this regard, he referred to the fact that Mr Richards has been delegated to address operational issues and that Mr Harfield only wanted to deal with important strategic ones.
Gregory Russell
General
Mr Russell is the CEO of Airservices and was the person who made the decision to terminate Mr Stevenson’s employment.
Mr Russell deposed that the ATCs employed by Airservices are members or are eligible to be members of Civil Air. He deposed that a collective agreement regulates the employment of the ATC employees.
Mr Russell deposed that Airservices’ workforce is highly unionised and that industrial issues often arise. He deposed that as a government-owned monopoly service provider, industrial action by its employees can have a very significant impact on airlines and the travelling public. He deposed that, as a consequence, Airservices required internal workplace relations expertise to manage the significant issues which often arise.
2008/09 negotiations with Civil Air
Mr Russell deposed that the nominal expiry date of the current ATC collective agreement is 28 November 2012 and that it was likely that negotiations for the next agreement would commence in about March 2012. The workplace relations manager who had worked to put the current collective agreement in place resigned from Airservices in June 2009 and Mr Russell wanted to ensure that his replacement would, amongst other things, be able to work successfully within a team environment as he anticipated that the new workplace relations manager would play a pivotal role in the next round of negotiations. To this end, he personally spoke with the recruitment agency and was involved in interviewing Mr Stevenson for the position.
Discussions with stakeholders and employees of the respondent
Mr Russell deposed that on 17 March 2010 he had a telephone discussion with Mr McGuane of Civil Air. At the time Mr Stevenson was Civil Air’s point of contact concerning the investigation into workplace conduct at the Melbourne ATC Centre. He deposed that Mr McGuane told him that he did not have a good working relationship with Mr Stevenson and had experienced significant problems in dealing with him. Mr Russell deposed that he advised Mr McGuane that he would monitor the situation.
Mr Russell deposed that on 31 March 2010, following his return from overseas, he had a discussion with Mr Clark, the Acting CEO during his absence, who advised him that there had been some conflict between Mr Stevenson and Mr Richards and Ms Glover. He deposed that the subject of Mr Stevenson was beginning to appear regularly in his conversations with Airservices’ general managers.
Mr Russell deposed that on about 17 May 2010 he was advised by Ms Fleming that Mr Harfield had lost his temper with Mr Stevenson in a meeting and had spoken inappropriately to him. He deposed that he was concerned about this as he thought that it was inconsistent with Airservices’ Code of Conduct and leadership principles. He subsequently spoke to Mr Harfield about the incident and told him that he had acted inappropriately towards Mr Stevenson. Mr Russell deposed that Mr Harfield acknowledged that his behaviour had been inappropriate and said that he had apologised to Mr Stevenson. Mr Harfield then told Mr Russell that his working relationship with Mr Stevenson was frustrating because he could not get Mr Stevenson to listen and, in his view, Mr Stevenson was acting on his own agenda rather than acting in the best interests of the business. When cross examined, Mr Russell said that he had asked Mr Harfield to apologise to Mr Stevenson but did not know whether this had happened.
Mr Russell rejected Mr Stevenson’s allegation that his employment was terminated because he complained to Ms Fleming about Mr Harfield’s conduct. He deposed that this complaint had no bearing or impact on his decision to terminate Mr Stevenson’s employment.
Mr Russell deposed that on 4 June 2010 he had a discussion with Ms Fleming about various issues including Mr Stevenson’s performance. Ms Fleming told him that Mr Harfield had communicated to her his concerns regarding Mr Stevenson’s handling of industrial disputes. Ms Fleming also told him that she herself had some concerns regarding Mr Stevenson’s performance. Mr Russell deposed that he asked Ms Fleming to keep him apprised of any ongoing issues in relation to Mr Stevenson’s performance.
11 June 2010 memorandum and further discussions with Ms Fleming
During Mr Russell’s absence on annual leave in June 2010 Mr Clark, as Acting CEO, issued a memorandum to key senior management dated 11 June 2010 which stated:
As a number of senior management are currently away I want to ensure that we are all aligned and informed on the current range of employee and union matters that we are respectively dealing with, through a tightening of the communication protocols.
I expect that from today, the following transitional process will now be closely followed:
1.All correspondence and/or information provided to the unions and their representatives should be agreed to by the relevant business group General Manager and be signed off by me prior to it being sent;
2.Any conversations with the unions and their representatives will be the subject of a file note, and copied to the relevant General Manager and me; and
3.Any employee related matter that is or has the potential to be legal in nature needs to be discussed with either Linda Glover or the General Counsel and any proposed action cleared by either of them, the respective business group General Manager and me.
Mr Russell deposed that Mr Clark said that he had issued the memorandum because Mr Stevenson had communicated information to Civil Air concerning the investigation into workplace conduct at the Melbourne ATC Centre which should not have been shared and because Mr Harfield had previously raised his concerns about Mr Stevenson’s handling of industrial relations issues. Mr Russell deposed that this memorandum caused him to have further concerns about whether Mr Stevenson was performing his role effectively.
Mr Russell deposed that during the period of about June 2010 to August 2010 Ms Fleming told him on a number of occasions that she had some concerns regarding Mr Stevenson’s performance in that he was not well prepared for meetings and conferences and had difficulties working effectively with other people. Mr Russell deposed that he was concerned about Ms Fleming’s comments but thought that Mr Stevenson might need more time to establish his working relationships. He deposed that this was a continuing issue during 2010 and was also raised by other general managers.
10 July 2010 protocol
On about 10 July 2010 Ms Fleming and Mr Harfield issued a protocol “to clarify role accountabilities in the management of industrial disputes”. Mr Russell deposed that the issuing of the protocol further suggested to him that Mr Stevenson was not performing his role effectively. In particular, he had serious concerns about Mr Stevenson’s ability to work as a team member in the challenging environment of enterprise agreement negotiations.
Mr Russell deposed that around the same time he told Ms Fleming that if Mr Stevenson’s performance did not improve then Airservices would have serious difficulties going into the ATC enterprise agreement negotiations as this was likely to be a highly pressurised situation and they could not afford to have a divided team. He deposed that Ms Fleming said that she understood the issue and had spoken to Mr Stevenson on more than one occasion about performance issues.
August 2010 meeting with Civil Air
On 2 August 2010 Mr Russell, Mr Harfield and Ms Fleming attended a meeting with Mr McGuane and Mr Mason of Civil Air. Mr Russell deposed that this was an informal meeting to discuss various issues and to build on their professional relationships.
Mr Russell deposed that after they had discussed a number of issues Mr McGuane said that he wanted to have a quiet word regarding Mr Stevenson. He deposed that Mr McGuane then said that there was a “real problem” because Mr Stevenson was very difficult to work with. Mr Russell deposed that Mr Mason also made a complaint about Mr Stevenson although he could not recall the specific details. He deposed that Mr McGuane’s comment further contributed to his unease regarding Mr Stevenson’s performance and, in particular, his ability to work effectively with both Airservices’ representatives and union representatives. He deposed that he had real concerns about Mr Stevenson’s capacity to work effectively with key stakeholders.
Award modernisation meeting
On 6 October 2010 Mr Russell attended an in-house award modernisation seminar. Mr Russell deposed that Mr Stevenson gave a presentation concerning Airservices’ underpinning industrial award and the award modernisation process but adopted what Mr Russell considered to be a rather arrogant approach; in particular, Mr Stevenson indicated that it was his role to determine which direction Airservices would take and did not appear to listen to others. Mr Stevenson’s manner of presentation caused Mr Russell further concerns about whether he was the right person for the job and, in particular, whether he could work effectively in a team environment.
Mediation between Mr Stevenson and Mr Richards
Mr Russell deposed that he became aware in late September or early October 2010 that Mr Stevenson had complained about Mr Richards’s conduct and that a mediation had been arranged to try to resolve the conflict between them. He deposed that he supported the mediation and considered it to be an appropriate course to take.
Mr Russell deposed that there was no substance to Mr Stevenson’s allegation that his employment was terminated because he made a complaint regarding Mr Richards’s conduct. He deposed that it was legitimate for Mr Stevenson to make a complaint if he wished and he had no difficulties with this.
Voicemail message from Mr Mason
Mr Russell deposed that on 23 October 2010, while he was in the United States, he received a voicemail message on his mobile phone from Mr Mason. In his message Mr Mason referred to the “triple acquittal” dispute between Airservices and Civil Air and said, amongst other things, that Mr Stevenson had failed to meet the Friday night deadline for the filing of materials with Fair Work, had not been contactable and “was mucking Civil Air around”. Mr Mason also said that Civil Air would be making a complaint to Fair Work regarding Airservices’ failure to lodge materials.
Mr Russell deposed that after he received Mr Mason’s message he received an email from Mr Harfield relevantly saying:
Also Rob Mason has called me (said he left a message on your phone) re a formal complaint they will lodge in FWA on Monday. I am dealing with it with Caroline – if what Mason has reported is correct it is unprofessional as well as unacceptable.
Mr Russell replied as follows:
Caroline and I had a conversation about the individual who seems to be involved. Can you say to her that this issue has confirmed my view!
Mr Russell deposed that he was referring in that email to his view that Mr Stevenson was not performing his job properly and was not the right person for the position.
November 2010 events
Mr Russell deposed that when he returned from the United States he met with Ms Fleming and told her that the situation with Mr Stevenson could not continue, that matters needed to be brought to a head and that he needed a recommendation from her regarding an appropriate course of action. He deposed that Ms Fleming agreed that the situation was untenable and that she would provide Mr Russell with a recommendation.
On 11 November 2010 Ms Fleming sent Mr Russell an email seeking his approval to terminate Mr Stevenson’s employment for reasons which Mr Russell summarised as:
(a)Mr Stevenson had found it difficult to establish good working relationships;
(b)she had provided both formal and informal feedback to Mr Stevenson;
(c)she was not convinced that Mr Stevenson would be able to drive collective agreement negotiations; and
(d)Mr Stevenson was not a “good cultural fit” within Airservices.
Mr Russell responded by email, saying “I agree. Please proceed”.
Ms Fleming left Airservices before Mr Stevenson’s letter of termination was prepared and Claire Marrison then acted in her position. Mr Russell deposed that he did not think it fair for Ms Marrison to undertake Mr Stevenson’s termination as she had not previously managed him so he took on this function himself.
Termination of Mr Stevenson’s employment
On 2 December 2010 Mr Russell met with Mr Stevenson and Ms Marrison. He deposed that he told Mr Stevenson that he had come to the view that Mr Stevenson had difficulty developing strong professional relationships and with working as part of a team and that this would be critical in the next round of enterprise agreement negotiations. Mr Russell also said that Civil Air had made complaints about him and that he, Mr Russell, had lost trust in Mr Stevenson’s capacity to do his job. Mr Russell then handed Mr Stevenson a letter dated 2 December 2010 which relevantly stated that Airservices was concerned, in the context of the approaching enterprise agreement negotiations, that he had not built or sustained key relationships with internal and external stakeholders. The letter stated that Airservices had lost confidence in Mr Stevenson and was considering terminating his employment. The letter invited Mr Stevenson to respond to the issues raised before a final decision was made.
Mr Russell deposed that at the meeting Mr Stevenson responded by saying that he had been set up by Mr Harfield and Mr Richards and that the problem was that he had to work to ATC’s agenda rather than his own. Mr Russell deposed that he told Mr Stevenson that he should go away and think about his response and that they would meet the following week.
Mr Russell rejected many aspects of Mr Stevenson’s version of their discussion; for example, that he had said that the sole problem was Mr Stevenson’s relationship with Mr Harfield. Mr Russell said that they had discussed a range of people at Airservices who had difficulties working with Mr Stevenson. He rejected Mr Stevenson’s evidence that he had said that Mr Harfield did not have a good working relationship with Mr Stevenson or that he had told Mr Stevenson that his relationship with Mr Harfield was “more important”. Mr Russell said that he had made a comment that Mr Richards was not at work as he was on medical leave and denied that he had said to Mr Stevenson about Mr Richards “Don’t worry about him, he’s gone”.
Mr Russell also rejected Mr Stevenson’s contention that he had said that he had taken no notice of the complaints from Civil Air. Mr Russell said that Mr Stevenson asked him if the union had made complaints against him and he indicated that they had. However, he said that they did not discuss the details of those complaints at their meetings on 2 and 8 December 2010 or at any earlier time. He said that he had never put to Mr Stevenson the complaints made against him by Civil Air.
Mr Stevenson responded to the meeting and letter of 2 December 2010 by a letter dated 7 December 2010 in which he asserted that he had been subjected to a “sustained campaign” mounted by Mr Richards to make him resign. He referred to Mr Harfield’s hostility towards him which, he asserted, greatly surprised him as well as to the “incorrect perception” about his lack of ability to perform his role. In his letter Mr Stevenson also asserted that his performance had been excellent.
Mr Russell deposed that the contents of that letter did not alter his view that Mr Stevenson could not effectively fulfil his role. He said that he had felt that Mr Stevenson’s 7 December 2010 letter did not add anything substantive to the issue and he disagreed with Mr Stevenson’s assertion in it that he had done a good job. Consequently, on 8 December 2010 he met with Mr Stevenson and terminated his employment.
Mr Russell deposed that he decided to terminate Mr Stevenson’s employment because, in his view, Mr Stevenson lacked the skills required for the role. In particular, he lacked the capacity to build sustainable professional relationships both within Airservices’ organisation and with external organisations. He deposed that he had endeavoured to give Mr Stevenson the benefit of the doubt over a period of many months but serious concerns regarding Mr Stevenson’s performance had been consistently raised with him by various persons. Further, Mr Stevenson had failed to develop any sort of rapport with him and they did not have a productive working relationship. Mr Russell deposed that, for these reasons, he had no confidence that Mr Stevenson could fulfil the important function of playing a critical role in the team to manage the next round of ATC enterprise agreement negotiations and he was keen to see a team in place and developed well in advance of those negotiations. Consequently, he terminated Mr Stevenson’s employment.
Other
Mr Russell said he had not known the details of the disagreements between Mr Stevenson and Mr Richards but acknowledged that there were “clearly relationship issues”. Mr Russell said that he had not been aware of the detail of Mr Stevenson’s claims concerning his meeting with Mr Harfield on 17 May 2010, recorded in Mr Stevenson’s file note of that date, until he read Mr Stevenson’s statement.
Mr Russell said that it had not been his role to give Mr Stevenson a warning or reprimand, that being the role of the general manager.
Other Airservices witnesses
Although Mr Russell was the relevant decision-maker, Airservices adduced evidence from six other of its employees, one of whom was Mr Mason, the President of Civil Air. These witnesses provided background to the decision made by Mr Russell and, in particular, to the nature of their own relationships with Mr Stevenson.
Jason Harfield
Mr Harfield deposed that as General Manager ATC he is accountable for air traffic management operations, including approximately 911 ATCs. He deposed that the ATC group employs over 1200 staff at over thirty locations in Australia.
Mr Hatfield deposed that as the ATC group has over 1200 staff and is highly unionised, employment and industrial issues arise on a regular basis. Day-to-day employment and industrial issues in the ATC group are often dealt with by senior managers who report to Mr Harfield, including the Manager Business Support, the position Mr Richards held at the relevant time. Mr Harfield deposed that as he is responsible for over 1200 staff, he expects his senior managers to deal with day-to-day issues so that he can focus on the more strategic ones.
Mr Harfield deposed that ATC senior managers liaise with the P&C Group, particularly the workplace relations manager, to ensure that employment and industrial issues are dealt with effectively.
Termination of Mr Wiman
Mr Harfield deposed to his disagreement with Mr Stevenson’s actions in connection with an unfair dismissal claim brought by David Wiman. Mr Harfield had dismissed Mr Wiman but Mr Stevenson’s view was that he should be reinstated, which was what happened. Mr Harfield did not say that Mr Stevenson caused Mr Wiman to be re-employed or identify the basis for Mr Stevenson’s view that he should be. Nor did he say why he disagreed with Mr Stevenson’s view. Nevertheless, without identifying the conduct in question, Mr Harfield deposed that in the course of resolving Mr Wiman’s claim Mr Stevenson constantly shifted positions and deflected responsibility for what had occurred, which caused Mr Harfield to have an unfavourable impression of Mr Stevenson.
However, the real significance of this matter appeared to be as the backdrop for the subsequent difficulty concerning Mr Holmes’s ERB.
Termination of Mr Holmes
Mr Harfield deposed that on 1 April 2010 he received a telephone enquiry from Mr Stevenson about whether, under his employment agreement, Mr Holmes was entitled to an ERB as part of his termination payment. Mr Harfield deposed that he informed Mr Stevenson that in the past ERBs had been paid to employees who had been dismissed and that he wanted to consider the matter over Easter before making a decision.
On 6 April 2010 Mr Harfield became aware that, following that conversation, Mr Stevenson had sent an email to Ms Taylor which said that an ERB was not payable. She had subsequently sent an email to Mr Holmes indicating that an ERB was not payable to him on his termination. On 11 April 2010 Mr Harfield sent an email to various people stating that he would begin putting his positions in writing and sending them directly to the relevant parties to ensure clarity on his positions. Mr Harfield deposed that he did not trust Mr Stevenson to represent his views accurately and had serious reservations regarding his integrity which affected his ability to work with him constructively.
17 May 2010 meeting with Mr Stevenson
Mr Harfield deposed that on 17 May 2010 he had a meeting with Mr Stevenson. Mr Harfield deposed that Mr Stevenson repeatedly asserted that it was his role to tell managers what to do. In turn, Mr Harfield repeatedly replied that whilst he took into consideration various advice, including that of Mr Stevenson, he ultimately made the final decision. Mr Stevenson alleged that he had not told Ms Taylor anything in relation to the Holmes matter and that Mr Harfield and Ms Taylor were trying to “set [him] up”. Mr Harfield deposed that he thought this denial by Mr Stevenson was a lie and that he was troubled by this. Mr Harfield deposed that at some point in the meeting he had raised his voice at Mr Stevenson as Mr Stevenson would not listen and continued to reiterate that Mr Harfield was required to take his advice.
Mr Harfield denied Mr Stevenson’s account of the meeting on 17 May 2010, in particular the claims that he was abusive or bullying. Mr Harfield denied that he swore at Mr Stevenson during their meeting or used bad language although he did accuse Mr Stevenson of being untruthful in relation to whether he had sent the email to Ms Taylor about Mr Holmes’s ERB entitlement.
The next day Mr Russell raised the issue of Mr Harfield raising his voice at Mr Stevenson. Mr Harfield acknowledged that he should not have raised his voice but deposed that he had been frustrated because Mr Stevenson was not listening to him. Mr Harfield said that he told Mr Russell that he had apologised to Mr Stevenson and that Mr Russell did not ask him to apologise.
10 and 11 June 2010
In late 2009 and early 2010, an independent investigation was conducted into the work practices at the Melbourne ATC Operations Centre. The investigation recommended the overhaul of some people management systems and the formal counselling of a number of managers. Mr Harfield deposed that he decided to terminate Mr Holmes’s employment as a result of the investigation. He deposed that the investigation and the management of its outcomes were very sensitive.
On 10 June 2010 Mr Stevenson sent to Mr McGuane an email with a draft update of the investigation. However, Mr Harfield had not seen the draft update before Mr Stevenson sent it to Mr McGuane. Mr Harfield deposed that he contacted Andrew Clark, the acting CEO, and complained that the situation was not appropriate and that he did not have control over the communication process. On 11 June 2010 Mr Clark issued his memorandum to senior managers outlining a protocol for communications with unions and their representatives. Mr Harfield deposed that as a result of this incident he had further concerns regarding Mr Stevenson’s skills and judgment.
Protocol for management of industrial disputes
Mr Harfield deposed that in May or June 2010, he was informed by Mr Richards that there were significant problems in his working relationship with Mr Stevenson. Mr Harfield deposed that he was also privy to some emails which indicated ill-feeling between Mr Richards and Mr Stevenson. Mr Harfield deposed that because of the ongoing difficulties with Mr Stevenson a protocol was developed to identify the roles of various managers, including himself and Mr Stevenson, and which indicated that it would be he who determined the course of action to be adopted in industrial disputes. Mr Harfield deposed that he thought that the protocol was necessary because he did not trust Mr Stevenson to do his job properly. The protocol was finalised and issued on 10 July 2010.
5 July 2010 dinner with Mr Mason
Mr Harfield deposed that on 5 July 2010 he had an informal dinner with Mr Mason. Mr Harfield deposed that Mr Mason stated that the next ATC collective agreement negotiations would not work if Mr Stevenson was involved, comments which gave Mr Harfield further concern about the relationship with Civil Air.
2 August 2010 meeting with Civil Air
Mr Harfield deposed to a meeting he attended on 2 August 2010 with Mr Russell, Ms Fleming, Mr McGuane and Mr Mason. During the meeting Mr Mason said about Mr Stevenson:
He’s late, he stalls, he’s unprepared, he doesn’t get back to us, and quite frankly he’s dishonest.
Mr Harfield deposed that given these comments, he had further serious reservations about Mr Stevenson’s ability to do his job effectively.
23 October 2010
Mr Harfield deposed that on 23 October 2010 while he was acting as CEO he received a telephone call from Mr Mason saying that Civil Air was going to file a complaint with Fair Work about Airservices’ failure to file, on time, evidence concerning the “triple acquittal” dispute. Mr Mason stated that they had received what he described as a flippant message from Mr Stevenson saying that the evidence would be filed in due course. Mr Mason said that Civil Air was fed up with Mr Stevenson and sick of him not responding to correspondence, not returning telephone calls and not filing evidence on time.
On 10 November 2010 Mr Harfield sent an email to Ms Fleming, Mr Richards and Mr Stevenson about the “triple acquittal” dispute in which he expressed his unhappiness at the amount of time he had had to spend on the matter. He asked that a review be conducted into how it had been handled.
Counselling of Mr Richards
Mr Harfield deposed that on 15 November 2010 he counselled Mr Richards regarding his behaviour and working relationships with colleagues, particularly Mr Stevenson. Mr Harfield deposed that he viewed certain email exchanges between Mr Richards and others, particularly Mr Stevenson, as unprofessional and inappropriate. As part of the counselling process, an external coach was engaged to assist Mr Richards in dealing with conflict management.
Termination of Mr Stevenson
Mr Harfield deposed that on 26 October 2010 Ms Fleming informed him that Mr Stevenson’s employment was to be terminated. Mr Harfield deposed that he had not discussed with Mr Russell whether Mr Stevenson’s employment should be terminated.
Andrew Richards
As Manager Business Support, ATC Mr Richards was responsible for the national resource planning of the air traffic service, including recruiting and training ATCs and planning for their retirement and transfers. The role also required him to provide support to Mr Harfield.
Mr Richards deposed that Airservices employs over 900 ATCs and that they are represented by Civil Air. He deposed that as the Manager Business Support, he had substantive input into employment and industrial issues which affected the ATC group and that he regularly liaised on such issues with Mr Harfield and also with Civil Air representatives including Mr McGuane and Mr Mason. Mr Richards deposed that he was the workplace relations team’s point of contact for the ATC group at the time Mr Stevenson joined Airservices.
It was apparent from his evidence that Mr Richards had, at points, a very strained relationship with Mr Stevenson. He took exception to Mr Stevenson’s conduct of certain industrial relations matters and characterised some of his statements as falsehoods. However, although considerable attention was given in the evidence to this poor relationship, Mr Russell referred to it only at an abstract level, first as a report from Mr Clark in March 2010 that there had been some conflict between Mr Stevenson and Mr Richards and Ms Glover, secondly as the background to the 10 July 2010 protocol, thirdly as something which was hampering Airservices’ capacity to deal effectively with industrial disputes, and fourthly as the background to the mediation process established in late 2010. The evidence does not suggest that Mr Russell was aware of the detail of the difficulties between Mr Stevenson and Mr Richards or of the fact that Mr Stevenson had complained to Ms Fleming about Mr Richards between May and August 2010. Further, in cross-examination Mr Richards stated that he had only complained about Mr Stevenson in emails to Ms Fleming and Mr Harfield and in person to Mr Woodward. That is to say, he had not complained to Mr Russell. As I conclude that Mr Russell was not aware of the detail of the difficulties between Mr Stevenson and Mr Richards, it is unnecessary to summarise in these reasons the detail of Mr Richards’s evidence, which was principally concerned with those matters.
Robert Mason
Mr Mason has been employed as an ATC supervisor at Airservices’ Brisbane centre since 1993 and has been the President of Civil Air since 1 May 2008.
Mr Mason deposed that civil ATCs and certain supporting air traffic service employees are eligible to be members of Civil Air. He deposed that approximately 99.6% of Civil Air’s members are employed by Airservices whilst 0.4% of its members are civilian ATCs employed by the Department of Defence.
Airservices and Civil Air are parties to the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Collective Agreement 2009 – 2012. Mr Mason deposed that he had been closely involved in intensive and protracted negotiations for that agreement.
Mr Mason deposed that industrial and employment issues involving Civil Air, Airservices and ATCs often arose and it was an important part of his role to discuss these issues with Airservices’ representatives in an attempt to resolve them. He deposed that in his role he often communicates with Airservices’ managers, including Mr Russell, Mr Harfield and Mr Richards. Mr Mason deposed to good professional working relationships with both Mr Harfield and Mr Richards, even though they often disagreed on issues and had differing perspectives. He said that he has had an informal dinner with Mr Harfield once in his tenure as Civil Air president and two or three times with Mr Harfield and Mr Russell.
Mr Mason deposed that he had not had an effective working relationship with Mr Stevenson. He deposed that he had serious concerns about Mr Stevenson which went beyond the usual tension and differences between Civil Air and Airservices’ representatives. In this regard, he made a number of negative observations concerning his appreciation of the manner in which Mr Stevenson discharged his duties as Airservices’ workplace relations manager in the period up to August 2010. He deposed that he found dealing with Mr Stevenson was frustrating and considered that his approach to Civil Air’s correspondence and to its role, at least as far as the Melbourne investigation was concerned, was unprofessional and disrespectful. He also deposed that he had not trusted Mr Stevenson, which made it difficult to maintain a productive working relationship and, more generally, that he had formed the view that Mr Stevenson was “mucking [Civil Air] around”.
On 2 August 2010 there was a meeting between various Civil Air representatives and Airservices representatives when, Mr Mason deposed, he complained to Mr Russell about Mr Stevenson’s conduct.
Mr Mason deposed that subsequent to his complaint to Mr Russell, he had found dealing with Mr Stevenson in relation to the “triple acquittal” dispute resulted in little progress. Indeed, after a conference on 7 September 2010, Mr Mason proposed to Mr Richards that a meeting to discuss the dispute be held on 9 September 2010 in the absence of Mr Stevenson. Mr Mason said that he had not asked Airservices not to invite Mr Stevenson to the meeting on 9 September 2010; the participants had resolved to meet without him.
Further, although Civil Air filed certain materials in the “triple acquittal” dispute with Fair Work by a timetabled date, Airservices’ materials were not and Mr Mason deposed that Mr McGuane informed him that Mr Stevenson had said that the materials would be filed “in due course”. Mr Mason deposed that he was angered by this and “completely fed up” with Mr Stevenson. He deposed that he called Mr Russell’s mobile phone and left a message stating that Mr Stevenson’s actions were inappropriate and that Civil Air would be filing a complaint with Fair Work. Mr Mason deposed that Mr Harfield telephoned him, either that day or the next, and he repeated what he had said in his message to Mr Russell.
Mr Mason deposed that he had told Mr Russell and Mr Harfield his view that the enterprise agreement negotiations would be severely impaired if Mr Stevenson was managing them on behalf of Airservices.
Laura Taylor
From September 2006 to May 2011 Ms Taylor was the Relationship Manager ATC, which she described as a generalist human resources position. She deposed that in that role she had supported the ATC group with any “people related matters”. She liaised with and provided support to Mr Harfield, Mr Richards and all other ATC managers on issues such as recruitment, performance issues, fitness for duty and termination of employment. At the end of 2009 or in early 2010 Ms Taylor moved to the ATC’s level in Airservices’ Canberra office and was physically located with the “ATC team”.
Ms Taylor deposed that she had good professional relationships with Mr Harfield and Mr Richards. She deposed that she had not had a strong professional relationship with Mr Stevenson and also said that she did not trust him, primarily because she did not feel that their conversations were constructive or that he listened to her.
Ms Taylor gave evidence relating to the Wiman unfair dismissal claim and the Holmes ERB issue. However, she did not say that her working relationship with Mr Stevenson was a matter which had been reported to Mr Russell and it is not apparent from his evidence that it was. As a result, Ms Taylor’s evidence is of little relevance to the question whether Mr Russell’s decision to dismiss Mr Stevenson was motivated by a prohibited reason and, with the exception of some of her evidence which provided background to the Holmes ERB issue, need not be set out here.
Ms Taylor deposed that on 29 March 2010 she asked Ms Fleming in the presence of Mr Stevenson whether Airservices should pay an ERB to Mr Holmes. She deposed that it was agreed that Mr Stevenson would ask Mr Harfield and inform Ms Taylor of Mr Harfield’s decision. On 1 April 2010 Mr Stevenson sent an email to Ms Taylor entitled “Spoke to Jason as requested._ERB” which said:
Laura,
There is no entitlement that I can see.
No one has indicated to him that there is.
Regards
Ms Taylor deposed that on the basis of this, which she described as Mr Stevenson’s advice, she sent an email to Mr Holmes advising him that an ERB was not payable.
Peter Smith
Mr Smith deposed that he has held the position of Manager National Operations ARFF since July 2009 and at the relevant time reported to Andrew Rushbrook. As Manager National Operations, Mr Smith was responsible for the provision of service delivery at twenty-one fire stations across Australia. He deposed that this involved:
a)fire fighting operations for both aircraft and infrastructure;
b)medical response at airports; and
c)response to aircraft in distress.
Mr Smith deposed that the ARFF workforce was heavily unionised and industrial and employment issues often arose. He deposed that in respect of these issues he often liaised with Mr Stevenson in his role as workplace relations manager. However, again, although Mr Smith gave evidence of matters which he believed evidenced that he did not have an effective working relationship with Mr Stevenson, the evidence does not support a conclusion that Mr Russell was aware of Mr Smith’s views or that Mr Smith’s superior, Mr Rushbrook, shared them and raised them with Mr Russell. As a consequence, Mr Smith’s evidence was of no real assistance to me.
David Woodward
Mr Woodward deposed that prior to October 2010 he was employed as Manager, ATC Reform and that for a period of eight weeks in May and August 2010 he had acted in Mr Richards’s role while the latter was on leave. Among other things, this required him to act as Mr Harfield’s delegate in industrial issues. Mr Woodward deposed to his dealings in this capacity with Mr Stevenson saying that he was shocked by one comment Mr Stevenson made concerning the way he dealt with unions, which he considered to have been inappropriate. However, Mr Woodward also said that he discussed this matter only with Mr Richards and with no-one else.
Other evidence given by Mr Woodward indicated a view that Mr Stevenson was not interested in his views when he was representing Mr Harfield and questioned Mr Harfield’s role in that Mr Woodward deposed that at one point Mr Stevenson had said words to the effect “why does Jason Harfield meddle in industrial issues?”.
It is not apparent that Mr Russell was aware of Mr Woodward’s views of his dealings with Mr Stevenson.
Applicant’s submissions
Mr Stevenson submitted that he had exercised a workplace right to make complaints of harassment and bullying by Mr Richards and Mr Harfield and that his employment was terminated because of those complains or for reasons related to them. Mr Stevenson also said in relation to his complaint about Mr Richards having made false and degrading statements about him that he asked for something to be done but the issue was never adequately dealt with. Mr Stevenson submitted that he was entitled to make a complaint and to have it dealt with properly before it damaged his health and safety and that he had not been afforded substantive or procedural fairness during the dismissal process.
Mr Stevenson submitted that it had been his role to provide workplace relations advice to many people at Airservices, and to deal with five unions and their officials, and that whilst there had been many issues on which to advise, there had been few complaints. Mr Stevenson submitted that Airservices’ evidence referred to a few minor issues in great detail and incorrectly implied that these were major performance issues. Mr Stevenson submitted that prior to his dismissal he was not disciplined, warned or advised that these were performance issues and that in most cases there were no complaints made to Ms Fleming or to Mr Russell. He submitted that Mr Russell had confirmed that he never put any complaints to Mr Stevenson so that he might respond to them. He also submitted that Mr Harfield, Mr Richards, Mr Woodward and Mr Mason never discussed these issues with him.
Mr Stevenson submitted that his performance assessment with Ms Fleming did not reflect the criticisms which Mr Richards made of him. He submitted that he received his 2010 performance bonus and that Ms Fleming had not told him that his performance was lacking. He submitted that Ms Fleming’s recommendation for his dismissal was not supported by any other evidence from her indicating that his performance warranted dismissal. He submitted that her recommendation had been solicited by Mr Russell under duress.
Mr Stevenson submitted that as some of Mr Mason’s evidence was inaccurate the rest of it might also be inaccurate. He submitted that Mr Mason’s evidence was tainted by the fact that he was giving evidence against him in circumstances where they had had various industrial relations disputes in the past. He said that the motivation for Mr Mason’s evidence was dubious. Mr Stevenson also pointed to an inconsistency in the evidence of Mr Harfield and that of Mr Russell in that whilst Mr Harfield said that he had apologised at the meeting on 17 May 2010 and was not asked by Mr Russell to apologise for his behaviour, Mr Russell said that he had in fact asked Mr Harfield to apologise. Mr Stevenson submitted that this contradiction undermined Mr Harfield’s credibility as a witness. Mr Stevenson also submitted that Mr Woodward’s evidence was unreliable and that Ms Taylor’s evidence was evasive and unclear.
Mr Stevenson submitted that, in the circumstances, Airservices’ argument that he was dismissed because of the issues referred to in its evidence was a sham.
As to what he said were the real reasons for his dismissal, Mr Stevenson submitted that the complaints he had made resulted in a campaign to discredit him. Mr Stevenson submitted that his evidence showed that there was a campaign by Mr Richards to undermine him which resulted in senior managers such as Mr Harfield and Mr Russell being told that his performance was poor. As an example, Mr Stevenson submitted that Mr Harfield’s perception of him was affected when Mr Richards raised, in an email which he sent to him, and copied to Ms Fleming and Mr Harfield, the issue of him being “sneaky”.
Mr Stevenson submitted that when he complained to Mr Harfield about Mr Richards on 17 May 2010, Mr Harfield’s behaviour towards him became inappropriate and when he complained about Mr Harfield’s inappropriate behaviour things got worse. He submitted that his relationship with Mr Harfield was damaged by the complaint he made against him and also by Mr Richard’s undermining of him.
He submitted that Mr Harfield blamed him for the Holmes ERB matter and for the sending of the Melbourne investigation’s draft recommendations to Civil Air and that these incidents were used to further a case for his dismissal. Mr Stevenson submitted that Mr Harfield and Mr Richards used other people, namely Mr Woodward, Mr Mason and Ms Taylor, to undermine him.
Mr Stevenson submitted that Mr Russell’s evidence showed that their relationship was distant and removed and that he obtained information about him from other people. He submitted that Mr Russell had acknowledged that he was aware of the complaints against Mr Richards and Mr Harfield.
Mr Stevenson submitted that Mr Russell’s memory of who had run the Melbourne investigation indicated that he was vague about Mr Stevenson’s role and responsibilities. He submitted that Mr Russell’s evidence was generally vague and unreliable and that his diary notes lacked detail. In particular Mr Stevenson submitted that this vagueness extended to what was discussed at the meeting on 8 December 2010 when his employment was terminated.
Mr Stevenson submitted that at his 2 December 2010 meeting with Mr Russell, Mr Harfield was the only person Mr Russell identified as someone with whom Mr Stevenson did not have a working relationship. Mr Stevenson submitted that in his letter of 7 December 2010 to Mr Russell he dealt with his relationship with Mr Harfield because Mr Russell had indicated that his relationship with the ATC group, and particularly Mr Harfield, was important to the decision whether or not to terminate his employment.
Mr Stevenson submitted that as no other specific performance issues were raised with him at his dismissal, Airservices’ evidence concerning specific incidents and emails was not relevant to the decision on the dismissal. He submitted that they were not put to him formally to respond to and thus could not have been the real reason for his dismissal. He submitted that the real reason for his dismissal was the complaints which had undermined certain working relationships.
Mr Stevenson submitted that he exercised a workplace right in making those complaints and that as a result adverse action was taken against him in the form of his dismissal from his employment.
Respondent’s submissions
Airservices submitted that this was not an unfair dismissal claim or a case relating to procedural fairness but a dispute about the reason for a termination of employment.
Airservices submitted that as Mr Stevenson’s evidence was significantly different from that of its witnesses, credibility issues arose. It submitted that Mr Stevenson was a wholly unsatisfactory witness, saying that during his cross examination he was evasive, argumentative and gave speeches rather than answers to questions. Airservices submitted that Mr Stevenson had raised wild conspiracy theories and asserted matters which had no foundation in fact.
Airservices submitted that there were many instances where Mr Stevenson’s evidence defied belief, giving as an example his refusal to accept that the email he sent to Ms Taylor about the Holmes ERB matter had caused difficulties. Airservices submitted that Mr Stevenson exhibited no insight into the deficiencies of his performance, saying that this was illustrated by his letter to Mr Russell of 7 December 2010 where he stated that his performance had been excellent. Airservices submitted that Mr Stevenson also exhibited no insight into the nature of his role, which was to advise Airservices managers and not to dictate how matters were to be run. It was submitted that Mr Stevenson’s evidence should not be accepted or should be accorded little weight.
Airservices submitted that Mr Stevenson’s own evidence supported Mr Russell’s view that he had been unable to establish productive working relationships.
Airservices submitted that Mr Russell’s and Ms Fleming’s emails of 11 November 2010 were contemporaneous records of Mr Stevenson’s poor performance, the real reason for his dismissal. Further, the letters given to Mr Stevenson on 2 and 8 December 2010 were consistent with the 11 November emails, indicating that the issue was Mr Stevenson’s inability to build and sustain key relationships.
Airservices submitted that there was no connection between Mr Stevenson’s complaints and the termination of his employment and that Mr Russell’s denial of such a connection should be accepted. It submitted that there was no reference to the complaints in the 11 November 2010 emails which confirmed the real reason for Mr Stevenson’s dismissal.
Airservices submitted that Mr Stevenson’s allegation that he was dismissed because of the complaint he made against Mr Harfield on 17 May 2010 was without substance. It pointed to the significant temporal gap between 17 May 2010 and 8 December 2010, the date he was dismissed.
Airservices submitted that Mr Stevenson’s allegation that his employment was terminated because of complaints he made about Mr Richards was also without substance. It pointed to the temporal gap between the 7 September 2010 complaint arising out of the Fair Work conference concerning the “triple acquittal” dispute and Mr Stevenson’s dismissal on 8 December 2010. Airservices submitted that it responded appropriately to Mr Stevenson’s complaint by arranging for mediation.
It was submitted that Mr Stevenson’s file note of his 17 May 2010 meeting with Mr Harfield should be rejected as it was an argumentative commentary and not a factual document. Airservices submitted that Mr Stevenson’s file note of his 2 December 2010 meeting with Mr Russell should also be rejected as it was made after the 8 December 2010 meeting when his employment was terminated.
Consideration
At the outset it should be observed that Mr Stevenson’s claim against Airservices is a statutory one based on an alleged contravention of s.340 of the FWA. In particular, the question Mr Stevenson raises is whether Airservices subjected him to adverse action, specifically dismissal, for a reason or reasons that included the fact that he had made a complaint or complaints in relation to his employment.
The claimed cause of action does not depend in any way on whether any of the individuals who gave evidence or were referred to in the evidence, including Mr Russell, put Mr Stevenson on notice of the matters which provided the background to his dismissal. Nor does it depend on whether the complaints which Mr Stevenson made were addressed by Airservices adequately or at all: Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31]. It is therefore unnecessary to consider those issues further.
The evidence demonstrates, first, that during the course of 2010 Mr Stevenson exercised a workplace right by making complaints to Ms Fleming about the conduct of Mr Richards and Mr Harfield and, secondly, that on 8 December 2010 Airservices took adverse action against Mr Stevenson by dismissing him from his employment with it. Those two of the three elements of the statutory cause of action having been made out, attention now must turn to the remaining element: whether the adverse action was taken because, or in part because, Mr Stevenson had exercised a workplace right. Mr Stevenson alleges that the adverse action was taken for that reason or for reasons which included that reason. He having made that allegation, s.361 of the FWA casts upon Airservices the burden of disproving it.
I said in Hodkinson v The Commonwealth (2011) 207 IR 129 at 162 [128]-[129], in a passage which is relevant to this proceeding:
The word “because” in ss.340, 351 and 352 directs attention to whether there is a causal nexus between the allegedly contravening conduct and the circumstances of the person the object of that conduct. In assessing whether such a nexus exists it is relevant to consider evidence of an employer’s subjective reasons for engaging in the conduct alleged to contravene those provisions and, in the case of a corporation, the subjective reason or reasons of the person or persons who made the decision that the corporation engage in the relevant impugned conduct: Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221; 198 IR 143 at [51]. However, the relevant person’s state of mind or subjective intention is not decisive because the decision-maker may be unconscious or imperfectly aware of what motivated their actions: Barclay v Board of Bendigo Regional Institute of Technical & Further Education (2011) 191 FCR 212 at [28].
In order to make out its defence, an employer who is alleged to have contravened one of the provisions in which the word “because” is found must establish that the real reason for the adverse action did not include a prohibited reason. To do so, the real reason or reasons for taking the adverse action must be shown to be “dissociated” from the prohibited reason alleged to have actuated the adverse action: Barclay v Board of Bendigo Regional Institute of Technical & Further Education at [32].
Gray and Bromberg JJ said in Barclay’s case that the search is for what actuated the conduct of the decision-maker, not what that person thinks actuated him or her. Their Honours further said that it is not open to the decision-maker to choose to ignore the objective connection between the decision he or she makes and the attribute or activity in question. That is to say, it is possible for a decision-maker to believe that he or she is actuated by particular consideration when, on analysis, the motivation can be seen to have been somewhat different. In Barclay’s case, although the Bendigo TAFE had purported to take action against Mr Barclay because it believed that he had breached some of his obligations as an employee, the actions he took were taken in his capacity as an officer of his union and any deficiencies in his conduct arose out of his actions as a union officer, not as a TAFE employee. Their Honours held that the decision-maker’s choice to characterise her adverse action against Mr Barclay as action taken because of his conduct as an employee and not as action taken because he was a union officer or because of any of his industrial activities did not alter the fact that her real reasons included those latter factors.
In this case, Mr Stevenson claims that his complaints about Messrs Richards and Harfield led to inaccurate reports of his performance being supplied to Mr Russell and that, acting on this misinformation, Mr Russell made a decision to dismiss him.
Barclay’s case does not go so far as to say that a decision-maker’s reasons for decision are to be determined by reference to the motivations of persons providing him or her with information upon which the decision to take adverse action is based. The relevant issue is the decision-maker’s motivation and whether it included a prohibited reason, not whether the information on which the decision to take adverse action was based was flawed or the reasons why that information might have been flawed. Attention must always remain only on the decision-maker’s subjective state of mind when making the relevant decision even if, as in Barclay’s case, that may have to be determined objectively.
Consequently, even if Mr Russell was supplied with information by people whose actions were motivated by the fact that Mr Stevenson had made complaints, and even if some of that information was inaccurate because persons who generated it were pursing a campaign against Mr Stevenson because of his complaints, if Mr Russell did not make his decision for a reason which included the fact that those complaints had been made then there will have been no breach of s.340.
However, this did not seem to be the case advanced by Mr Stevenson. He may have suggested that Mr Russell’s decision to dismiss him was independently motivated, at least in part, by the fact of the complaints, but, if this was suggested it was not pressed. Moreover, the evidence does not support such a conclusion. For the reasons which follow, I am satisfied that Mr Stevenson’s complaints against Mr Richards and Mr Harfield formed no part of Mr Russell’s reasons for dismissing him.
As already recorded, Mr Stevenson submitted that the reasons given by Airservices for his dismissal were a sham and that this could be inferred from the fact that at no point prior to 2 December 2010 had anyone complained to him about his performance of his duties. That is to say, the assertion that he had been unable to build and sustain key relationships with internal and external service providers, in particular the ATC group, was an invention designed to cover the real reason for his dismissal. To reach that conclusion it would be necessary for me to conclude that Mr Russell was not a witness of truth and that the email which Ms Fleming sent to Mr Russell on 11 November 2010 recommending Mr Stevenson’s dismissal should also not be accepted as truthful. As to Mr Russell, I accept that he was telling the truth to the best of his recollection. In this regard, the fact that he and Mr Harfield said different things about whether Mr Russell asked Mr Harfield to apologise to Mr Stevenson does not, in my view, reflect anything more than the fact that individuals’ recollections of events are rarely identical. I draw no adverse conclusion against either Mr Russell or Mr Harfield from the fact that their recollections on that particular point differed.
I am fortified in my conclusion concerning the truthfulness of Mr Russell’s account of his reasons for the decision to dismiss Mr Stevenson by the corroboration provided by Ms Fleming’s email of 11 November 2010 which provides powerful contemporaneous support for the reasons identified by Mr Russell. Although Mr Stevenson submitted that Ms Fleming had been pressured to write the email recommending his dismissal, he referred to no particular evidence to support this hypothesis and none is apparent. I note that Ms Fleming left Airservices shortly after sending the email but this simple fact does not, without more, advance the issue either way.
Further, although Mr Stevenson questioned the credibility of Mr Mason’s evidence, it is to be noted that his complaint of October 2010 concerning Airservices’ failure to meet a Fair Work timetable date for the filing of documents was corroborated by both Mr Russell and Mr Harfield. I do not accept that each of those witnesses was mistaken or was being untruthful. Whether or not Mr Mason or Civil Air were discussed by Mr Stevenson and Mr Russell on 2 December 2010, the fact remains that the president of the union which would be across the table from Airservices during the approaching ATC enterprise agreement negotiations was complaining about his union’s ability to work with Mr Stevenson.
As well as accepting Mr Russell, I also accept that Mr Stevenson, although a garrulous and sometimes inattentive witness, was endeavouring to give a truthful account of matters from his perspective. However, his loquacious style and his failure always to be responsive, or perhaps to pay attention, to questions in cross examination marked him out as someone very different from Mr Richards and Mr Harfield, who were focused and intense when giving their evidence. What emerged from the tone and substance of the email exchanges between various of the witnesses during Mr Stevenson’s time at Airservices also became apparent to me during the course of the trial, namely that Mr Stevenson and Messrs Richards and Harfield are very different people. Perhaps this is what Ms Fleming was referring to in her email of 11 November 2010 where she said that Mr Stevenson was “not a good cultural fit with Airservices”.
Far from the reasons for Mr Stevenson’s dismissal being a sham, I accept that he had failed to establish proper working relationships with important individuals both in Airservices and externally. Indeed, even though Mr Stevenson’s recollection of his meeting with Mr Russell on 2 December 2010 differed from Mr Russell’s, his notes of that meeting nevertheless recorded Mr Russell saying that Airservices had a problem with Mr Stevenson’s relationships within the organisation and referring to the need to have a cohesive team for the approaching negotiations over a new ATC group enterprise agreement. I do not consider the differences in Mr Stevenson’s and Mr Russell’s recollections of that meeting to be of particular significance in the context of the adverse action allegation. Both versions make it clear that Mr Russell expressed concern about Mr Stevenson’s ability to forge effective relationships, even if he did not specifically identify anybody other than Mr Harfield, as Mr Stevenson alleges. I also accept Mr Russell’s evidence that in December 2010 it was important to ensure for the forthcoming ATC enterprise agreement negotiations that there be a coherent team in place to represent Airservices.
Given the approaching enterprise agreement negotiations, it was clearly important for Mr Stevenson to have an effective working relationship at least with Mr Harfield. I accept that he did not. I also accept that it was the fact of such poor relationships, not why they were poor, which motivated Mr Russell, with the enterprise agreement negotiations in mind, to dismiss Mr Stevenson. I find that his decision was disassociated from the fact that Mr Stevenson had made complaints against Mr Richards and against Mr Harfield.
Conclusion
Airservices has demonstrated that it did not dismiss Mr Stevenson because, or for reasons which included the fact that, he had made complaints against Mr Richards or a complaint against Mr Harfield. Therefore, that adverse action did not amount to a contravention of the FWA.
Consequently, the application will be dismissed.
I certify that the preceding one hundred and sixty-seven (167) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 1 February 2012
CORRECTIONS
Paragraph 162 line 5 – delete “all three” insert “each”.
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