Storey v The Monitoring Centre Pty Ltd & Ors
[2015] FCCA 3310
•11 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STOREY v THE MONITORING CENTRE PTY LTD & ORS | [2015] FCCA 3310 |
| Catchwords: CONTRACT OF EMPLOYMENT – Whether employment contract subject to a term of five years – whether employer repudiated the employment contract by purporting to terminate the contract before the expiration of the five year term of the contract. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 340(1), 341(1)(c)(ii), 342, 342(1), 351, 360, 363(1), 539, 545, 545(1), 545(2)(b), 547, 550, 793, 793(1)(a) Federal Circuit Court Rules 2001 (Cth), r.28.09 |
| Aitken v Construction, Mining, Energy, Timber Yards, Sawmills & Woodworkers Union of Australia (1995) 63 IR 1 Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd [2014] FCCA 721 |
| Applicant: | MAREE STOREY |
| First Respondent: | THE MONITORING CENTRE PTY LTD |
| Second Respondent: | JOSE MUINO |
| Third Respondent: | HELIA MUINO |
| File Number: | SYG 717 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing dates: | 27, 28, 29, 30 May 2014, 18 and 22 August 2014, 28 October 2014 |
| Date of Last Submission: | 12 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Williams |
| Solicitors for the Applicant: | Harmers Workplace Lawyers |
| Counsel for the Respondents: | Mr T Flaherty |
| Solicitors for the Respondents: | Johnston Vaughan Solicitors |
DECLARATIONS
The applicant is entitled to:
(a)an order pursuant to s.545(2)(b) of the Fair Work Act 2009 (Cth) that the respondents pay the applicant compensation in the amount of $17,453.35;
(b)judgment on her contract claims against the first respondent in the amount of $4,320; and
(c)interest on the sum of the amounts referred to in (a) and (b) calculated at the rates prescribed by Practice Note CM16 issued by the Federal Court of Australia from 14 February 2013 up to and including 11 December 2015.
The first respondent is entitled to:
(a)judgment on its cross claim against the applicant in the amount of $9,849; and
(b)interest on the amount referred to in (a) calculated at the rates prescribed by Practice Note CM16 issued by the Federal Court of Australia from 18 February 2013 up to and including 11 December 2015.
ORDERS
Pursuant to r.28.09 of the Federal Circuit Court Rules 2001 (Cth) judgment is given in favour of the applicant against the respondents in the amount of $14,130.06, being the balance in favour of the applicant of the amounts, including interest, referred to in declarations 1 and 2.
The matter be stood over to a date to be fixed for the purpose of hearing submissions on penalties and costs.
The parties have liberty to apply on such notice as the circumstances warrant.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 717 of 2013
| MAREE STOREY |
Applicant
And
| THE MONITORING CENTRE PTY LTD |
First Respondent
| JOSE MUINO |
Second Respondent
HELIA MUINO
Third Respondent
REASONS FOR JUDGMENT
Introduction
In these proceedings the applicant, Ms Storey, claims the first respondent (TMC), her former employer, took two adverse actions against her within the meaning of s.342 of the Fair Work Act 2009 (Cth) (FW Act). The first was to request from other employees of TMC to put into writing complaints they had about Ms Storey, and other information employees had in relation to Ms Storey, with a view to using those complaints to effect a decision TMC had already made to terminate Ms Storey’s employment. The second adverse action was TMC’s dismissal on 14 February 2013 of Ms Storey’s employment.
Ms Storey claims TMC took these adverse actions because:
a)by letter dated 28 January 2013 Ms Storey made complaints in relation to her employment and, thus, exercised a workplace right within the meaning of s.341(1)(c)(ii) of the FW Act;
b)by email sent on 16 January 2013, when she was twelve weeks pregnant, Ms Storey made an inquiry in relation to her employment about whether TMC had a paid maternity leave policy, and thus exercised a workplace right within the meaning of s.341(1)(c)(ii) of the FW Act; and
c)Ms Storey was pregnant.
Ms Storey, therefore, claims that, by taking these adverse actions against her for the first two of these three reasons, TMC contravened s.340 of the FW Act; and that, by taking the adverse actions for the third of these three reasons, TMC contravened s.351 of the FW Act. Section 340 of the FW Act prohibits an employer from taking adverse action against an employee because, among other things, the employee has exercised a workplace right; and s.351 of the FW Act prohibits an employer from taking adverse action against an employee because, among other things, the employee is pregnant.
Ms Storey also claims that the second respondent, Mr Muino, and the third respondent, his wife, Ms Muino, were involved in TMC’s contraventions of s.340 and s.351 of the FW Act. Mr Muino was the sole director of TMC and Ms Muino, although not an officer of TMC, was involved in the management of TMC.
Ms Storey also claims TMC failed to pay her certain amounts that had become owing under her contract of employment before TMC terminated that contract.
TMC itself makes a claim against Ms Storey; it claims Ms Storey was paid amounts beyond what she was entitled to receive under her employment contract.
Before I consider the parties’ claims and submissions, I will:
a)identify the principal events or claimed events in chronological order;
b)in relation to each event, set out the relevant evidence; and,
c)to the extent there is a conflict or lack of clarity in the evidence, set out my findings of fact, and state my reasons for those findings.
Facts
TMC and its management
TMC’s principal business was the wholesale supply of alarm monitoring services. Most of its customers, who were known as “bureaus”, installed alarm systems on premises. TMC monitored signals from those alarm systems and kept up to date databases TMC maintained of the signals TMC monitored.[1]
[1] T63.20
Mr Muino was the sole director of TMC. He was known within TMC, and to those with whom he dealt, as the “technical director”.[2] He was the “face” of TMC. He met with bureaus, he spoke to suppliers about new products, he prepared quotes, undertook technical work on sites, and supervised TMC’s accounts personnel.[3] Ms Muino, although not a director or employee of TMC, from time to time exercised de facto managerial powers over TMC’s employees, at least in conjunction with Mr Muino.
[2] T67.10
[3] T67.30
March 2000 – Ms Storey commences employment with TMC
Ms Storey commenced her employment with TMC in March 2000 as a control room operator.[4] In that position Ms Storey was responsible for monitoring signals from alarm systems TMC received via the telephone network.[5] In 2005 Ms Storey was promoted to control room manager.[6] She remained in that position until March 2008, when she left to join her husband in Darwin.[7]
[4] T48.20
[5] T48.45
[6] T49.45
[7] T50.5
October 2008 – Ms Storey employed as manager
In around October 2008, when she was living in Darwin, Ms Storey had a telephone conversation with Ms Muino in which Ms Storey said she would discuss with her husband the possibility of her working with TMC for six months.[8] In an email sent to Ms Muino on 7 October 2008 Ms Storey said she had a “good think” about coming back as the “Manager of the Monitoring Centre”.[9] Ms Storey said that, in that role, she would undertake the duties she had previously undertaken as control room manager “plus extra duties including getting new bureaus and TMC direct clients and obviously anything else to help build the company and also pick the service level back up so that we excel in the security industry”. Ms Storey suggested an annual salary of $100,000 together with the share entitlements described in her email.
[8] T52.35
[9] Exhibit A, tab 1
On 12 October 2008, after two further emails were exchanged, Ms Muino sent the following email:[10]
[10] Exhibit A, tab 1
Hi Maree
*100k – you will be in charge of everything – manager of “TMC” not just control room.
*Company Profits – 1% starting from 1st July 2009 and paid at the end of 2010 financial year and 1% every following year that you are with the company (up to 5%)
*Bureaus and lines direct needed urgently.
*Saf has decided to stay on as your supervisor.
*If your [sic] happy with this please let me know so we can get started.
Ms Storey must have agreed with the terms of Ms Muino’s email because, on 13 October 2008, Ms Muino sent to Ms Storey the following email:[11]
[11] Exhibit A, tab 1
Hi Maree
Congratulations! You are now the manager of “TMC” please organise a contract and forward it to me.
Ms Storey gave evidence that she prepared a draft contract which she was “pretty sure” she signed, and she left it on Mr Muino’s work desk.[12] It is unnecessary to make a finding about whether Ms Storey left any draft contract with TMC, or otherwise provided a draft contract to any person on behalf of TMC. I only note that it is doubtful that Ms Storey signed any contract of employment. In her letter dated 14 February 2013 to TMC, Ms Storey said that because she had “not been given the security of an employment contract”, she withdrew her “previous offer to execute one”.[13]
[12] T54.20
[13] Exhibit A, tab 9
As manager, Ms Storey’s tasks included the management of the day-to-day operations of the control room. Ms Storey was also responsible for hiring, training, and supervising staff; and she oversaw the entry of data into TMC’s computer system, prepared quotations, and met with bureaus.[14]
[14] T63.15
On 7 October 2011 Ms Storey sent a letter to TMC in which she stated:[15]
[15] Exhibit F
To Whom It May Concern
This is to give notice that I am resigning from employment at The Monitoring Centre and my final day will be 1st November, 2013. This will honour the 5 year agreement that was in place and I have given over 2 years notice so a replacement can be found for me and trained up in my role. After this time Nathan and I will be heading back to Darwin to live permanently.
Until around early January 2013 the relationship between Ms Storey, on the one hand, and Mr and Ms Muino, on the other, was marked by mutual affection. This state of affairs, however, unravelled swiftly; and it unravelled within two weeks of Ms Storey’s announcing she was pregnant.
16 January 2013 – Ms Storey announces she is pregnant
Ms Storey announced she was pregnant on 16 January 2013. She did so by sending an email to Mr Muino which was copied to Ms Muino. Ms Storey said she was almost 12 weeks pregnant, with the baby being due around the first week of August 2013.[16] Ms Storey said she was planning to take maternity leave from August 2013 and return to the workforce part time in January or February 2014. She said she will keep working for as long as she can before the baby is born, and she “was happy to come back after maternity leave for the year if you still want me, as I know my contract is due to expire in November 2013”. Ms Storey also enquired whether TMC had a policy of paid maternity leave:
I know Nidia received paid maternity leave from TMC back when she had baby I was just wondering what the policy is and how long TMC’s paid maternity leave is for?
“Nidia” was a reference to Nidia Azavido, who was an office manager before Ms Storey was appointed general manager.[17]
[16] Affidavit of J Muino, 8.8.2013, Annexure M
[17] T64.5
16 January 2013 – Ms Muino informs Ms Storey no paid maternity leave
According to Ms Storey, Mr Muino congratulated her on her pregnancy by telephone.[18] Ms Muino called Ms Storey and also congratulated Ms Storey.[19] In that, or perhaps in a different conversation, Ms Muino informed Ms Storey “there’s no maternity leave entitlements”.[20] Ms Storey said to Ms Muino that “Nidia got paid maternity leave”, but Ms Muino said Nidia did not; she had “a lot of holidays saved up”.[21] Ms Storey says that she had become aware that Nidia Azavido had been given paid maternity leave during a conversation she had with Ms Yin Choy who worked in accounts.[22]
[18] T72.20
[19] T72.25
[20] T72.30
[21] T72.45-73.5
[22] T72.35; T236.45
Ms Storey was annoyed at Ms Muino’s stating Ms Storey would not be getting paid maternity leave.[23]
I was annoyed. And then when I had a second conversation with Elle – well, there’s nothing I could do about it. If they weren’t going to give me paid maternity leave, they weren’t going to give me paid maternity leave. But I wasn’t happy about it, and I told Elle that on the phone.
[23] T237.20
The “second conversation” to which Ms Storey referred in this part of her evidence is the telephone conversation Ms Storey had with Ms Muino on 23 January 2013 to which I refer below. Ms Storey says she did not recall speaking to anyone else about paid maternity leave, apart from Ms Yin Choy, and “I did make it known to her that I wasn’t happy . . . in the tone of my voice”.[24]
[24] T237.30
According to an employee of TMC, Ms Otilia Sale, on the day Ms Storey announced by email she was pregnant, Ms Sale and Ms Storey had a conversation to the following effect:[25]
Now, did at any stage Ms Storey talk to you about her employment conditions and once that she was pregnant did she discuss anything with you?‑‑‑Yes.
What did she say to you?‑‑‑On the day that she told me when I found out, she did tell me that – when she told me, that was actually the day that Elle and Jose found out because she told me that she had emailed them advising them that she was pregnant. And we were talking in general about what was going to happen because she mentioned something about her – that her contract was coming to an end.
Yes?‑‑‑And that – so I said, “So what are you going to do? What’s going to happen?” And she said, well, she was hoping to stay a bit longer. And I said, “And what happens if you don’t,” and she goes, “Well, I don’t know but I really don’t care.” And then I remember her going on she wasn’t happy. I don’t know why but the way she was speaking she wasn’t happy. And then she did mention that if anything – if she didn’t get what she wanted like maternity leave or something like that, she was hoping that Elle and Jose were going to fire her for unfair dismissal is what she told me.
[25] T472.5-25. There is in evidence an email from Ms Sale to Ms Muino sent on 29 January 2013 (it is part of Exhibit 4). Exhibit 4 was received into evidence only for the purpose of identifying the materials Mr Muino and Ms Muino received before the meeting of 14 February 2013 to which I refer below and also for the purpose of proving the matters they considered when deciding to terminate Ms Storey’s employment – see T330.30
Under cross-examination, and after being taken through text messages and emails exchanged between Ms Storey and Ms Sale, Ms Sale agreed that Ms Storey had maintained a good relationship with Ms Sale,[26] although Ms Sale said “I had to be nice to her. She was my boss”.[27] Ms Storey, for her part, did not recall whether she had a conversation with Ms Sale about paid maternity leave.[28] Ms Storey also gave evidence she did not at any stage in 2013, just after she became aware she was pregnant, make any comments about seeking to be fired so that she could make an unfair dismissal claim.[29]
[26] T476.25
[27] T477.5
[28] T236.35
[29] T236.10
It is unnecessary to make any finding about whether Ms Storey said she was hoping she would get fired so she could sue for unfair dismissal. The respondents do not contend that Ms Storey set in train the events that led to TMC dismissing her for the purpose of engineering that very outcome. Further, even if such claim were made, the evidence would not satisfy me that Ms Storey engineered her own dismissal so that she could mount a lawsuit against TMC and Mr and Ms Muino.
Complaints before 23 January 2013
According to Ms Muino, during the 2012 Christmas lunch at TMC’s premises, Ms Muino asked Ms Sale how she was doing, and why she had not yet obtained her security licence. Ms Sale said she did not want to do her course “because of Maree”. In answer to Ms Muino’s question “why?” Ms Sale said: “she didn’t want to work in a place like that where she was called a monkey, where she was belittled and felt useless”.[30]
[30] T490.35
Ms Sale gave evidence that was consistent with Ms Muino’s evidence. Ms Sale said Ms Muino approached Ms Sale and asked how work was, if she was enjoying work, and why Ms Sale had not yet obtained her security licence. Ms Sale responded by saying she was not happy and was looking to leave.[31] Ms Sale said nothing further because Ms Storey was still in the office.[32] After Ms Storey left the office, Ms Muino approached Ms Sale and asked her what was wrong. Ms Sale said “a few things that Maree has done to me and other staff”.[33] Ms Sale said that “Maree has humiliated me in front of other staff members”, that she “heard her call other staff members “Monkeys” and that she made me feel incompetent, that I was unable to do the job”.[34] Ms Sale said that she heard Ms Storey say during a telephone conversation with Carlos Muino “I’m working with a bunch of monkeys”.[35] Ms Sale also heard Ms Storey call another employee a monkey because she made a mistake.[36]
[31] T469.20
[32] T469.30
[33] T469.35
[34] T470.20
[35] T470.30
[36] T470.30
Mr Muino gave evidence that, during the Christmas party, he observed Ms Sale approached Ms Muino and said that she wanted to talk to her in private about Ms Storey.[37] He did not, however, participate in the conversation between Ms Sale and Ms Muino.[38] Mr Muino has otherwise given no evidence that he heard what was said in the conversation between Ms Sale and Ms Muino.
[37] T323.30
[38] T323.35
I am satisfied that, at the Christmas lunch in 2012, Ms Sale complained to Ms Muino about Ms Storey; in particular, that Ms Storey had belittled staff, including by calling them or referring to them as “monkeys” when they made mistakes. My finding is supported by the fact that, during the telephone conversation between Ms Muino and Ms Storey on 23 January 2013 to which I refer later in these reasons, Ms Muino informed Ms Storey that Ms Muino had been told that Ms Storey had called staff monkeys, and that this had offended them. It is conceivable that Ms Muino could have been so informed on or after 16 January 2013 as a result of a specific inquiry Ms Muino made of staff after 16 January 2013. That, however, is unlikely. As I set out below, the evidence reveals that Ms Muino sought from staff information relating to Ms Storey after Ms Muino became aware of the letter dated 28 January 2013 to which I also refer below.
Ms Muino also gave evidence that she received complaints about Ms Storey from other employees.[39] Ms Muino, however, was unclear about when the complaints were made, other than to say “throughout January”,[40] and noting that Karina Harris had made a complaint in early December 2012 and Ms Sale had made a complaint at the Christmas lunch.[41] Ms Muino said that another employee, Ms Susan Tate, complained that Ms Storey “belittled them”, and that Ms Storey did not want to show Ms Susan Tate specifically what to do because she was going to be the control room manager when Ms Storey was to leave.[42] In other words, Susan complained Ms Storey “didn’t want to show her anything and basically belittled her”.[43] Ms Muino said that another employee, Sharon Brown said:[44]
basically the same thing. But I remember Sharon once she said that Maree had a habit of when someone had made a mistake she would go into the receiver room where the voice recorders are kept and there was a door there so you could easily go in there, close the door, and no one would be able to hear it. So she would go in there, leave the door open, put the tape on and make a production out of the whole thing basically to belittle the person that had made the mistake.
[39] T491.10-T491.40
[40] T491.40
[41] T491.40
[42] T491.20
[43] T491.20
[44] T491.25
Ms Muino also gave evidence that the “girls did tell me that Maree had said to them that if I wasn’t going to give her maternity pay or maternity leave that she was going to try and do everything that she could for us to sack her so she can sue us and get money”.[45]
[45] T493.25
I find that by 23 January 2013 Ms Muino received complaints about Ms Storey that included the matters Ms Muino raised with Ms Storey in the telephone conversation of 23 January 2013 to which I refer below, and the incident Ms Harris experienced with Ms Storey that Ms Harris related to Ms Muino in early December 2012 to which I also refer below. That is, before 23 January 2013 Ms Muino had heard Ms Storey was not happy about her not having been granted paid maternity leave, that Ms Storey had stated that she was trying to do everything that she could do so that Ms Muino can get rid of her, and that Ms Storey had been calling employees monkeys. I also find that it is likely that the employees who informed Ms Muino that Ms Storey had called them monkeys informed them of that matter in the broader context of a complaint that Ms Storey belittled them. I make that finding because it is likely that a complaint by employees that they were being called “monkeys”, being belittling in itself, would have also led employees to complain they were belittled by Ms Storey. Further, Ms Muino’s not mentioning to Ms Storey in their telephone conversation on 23 January 2013 the incident Ms Harris had related to Ms Muino about the incident in December 2012 indicates that Ms Muino, at least at that stage, did not consider the incident to be sufficiently serious to raise it with Ms Storey in their telephone conversation on 23 January 2013.
Mr Muino gave evidence that, before he received news of Ms Storey’s pregnancy, Ms Muino informed Mr Muino that Ms Muino has instructed staff who had complained about Ms Storey to put their complaints in writing.[46] I do not accept that evidence. For the reasons I give below, I find Ms Muino requested employees to put into writing their complaints only after Ms Storey sent to Mr Muino her letter of 28 January 2013.
[46] T323.45
22 January 2013 – alleges “baby brain” conversation
According to Ms Storey, on 22 January 2013 Ms Muino visited the office and had a conversation with Ms Storey:[47]
At that time, Elle [i.e., Ms Muino] came in and sat down next to me. It was all very friendly and we had a chat, and Elle kind of said, “Oh, how’s everything going with the pregnancy” and I said “well”, and Elle said, “Are you getting baby brain?” and I said “no”, and she goes, “Oh, because I remember when I was pregnant, I had baby brain” and I said, “No, nothing has changed. Same, same, same.” And she said, “Oh, you’re not forgetting things?” and I said, “Why? What have you heard? I don’t think I’ve forgotten anything.” and it was all very friendly, as I said. And Elle was like, “Oh, no, no. It’s” – like it was fine. It was friendly and then Elle ended up – at the end of it, Elle left and Kathy Ferguson was sitting in a workstation opposite me with, like, a grass divider and heard everything – I think, anyway. She took phone calls, like, during it but she probably heard bits and pieces of it. At the end of it, she kind of looked at me like this and I said “weird” and she went “yeah”.
[47] T73.15
I am not satisfied a conversation to this effect occurred. The basis of my not being satisfied are the findings I make below about the lack of accuracy of the assertions Ms Storey made in her letter dated 28 January 2013 about the contents of the conversation she had with Ms Muino on 23 January 2013. Further, Ms Muino raised the possibility of Ms Storey’s perhaps being forgetful because of her pregnancy in her telephone conversation of 23 January 2013 to which I refer below. If Ms Storey had a conversation with Ms Muino on 22 January 2013 to the effect Ms Storey recalls, it is likely she would have referred to that conversation when Ms Muino raised the possibility of Ms Storey being forgetful.
23 January 2013 - telephone conversation between Ms Muino and Ms Storey
On 23 January 2013 Ms Muino telephoned Ms Storey. This conversation was recorded, as were all telephone conversations made to persons working in the control room. The audio recording of the conversation is in evidence, and I have listened to it.[48] There were a number of subjects discussed in that conversation.
[48] Exhibit 1
The first subject was the roster:
MS M. STOREY: Hey, it’s Maree.
MS MUINO: Hi, love. How are you going?
MS STOREY: Good. How are you?
MS MUINO: Good, good, good. I sort of looked at the roster yesterday ‑ ‑ ‑
MS STOREY: Yep.
MS MUINO: ‑ ‑ ‑ and we’ve got a lot of doubling up.
MS STOREY: What do you mean?
MS MUINO: Like, two people on and sometimes three people on, and it never used to be before Christmas.
MS STOREY: Yeah. So I can get things done. You’ll notice that there’s three people on because I’m here.
MS MUINO: It’s too early. It’s too early for people to start. Like, you and Kathy doubling up ‑ ‑ ‑
MS STOREY: Yeah. Because it’s the only time I can get work done, Elle.
MS MUINO: Yeah.
MS STOREY: You come in for a day and sit in here with me. Every second phone call they ask for me. Every single person. I can’t get anything done.
MS MUINO: Yeah. 6 o’clock in the morning, Maree; that’s too early for two people. I’m losing – I’m losing people. And I’m looking at the roster, and I’m thinking why – like, for example ..... coming in at 8 o’clock.
MS STOREY: Yep.
MS MUINO: Kathy can handle it. It wasn’t that busy yesterday. Kathy can handle the shift.
MS STOREY: Okay. Well, when do you want me to work?
MS MUINO: Well, a little bit later than 6 o’clock.
MS STOREY: Well, I can’t. It’s either six or two ‑ ‑ ‑
MS MUINO: .....
MS STOREY: ‑ ‑ ‑ because it takes me two and a half hours to get to work if I leave any later than 6.
MS MUINO: All right. Can you fax me – email me the roster?
MS STOREY: Yeah, sure. You can do the rosters from now on. I don’t care. You do them.
MS MUINO: Well, it’s your job. You can do it. I’ll just have a look at them, and I’ll just let you know.
MS STOREY: There’s no point in me doing them if I’m not doing the job that you want me to do.
MS MUINO: Maree, your job is to do the rosters, and continue to do the rosters.
MS STOREY: Yeah. But you’re not in here, so you don’t know what it’s actually like ‑ ‑ ‑
MS MUINO: Maree ‑ ‑ ‑
MS STOREY: ‑ ‑ ‑ because we’re not just putting clients online like we used to. It’s – like, I’ve got to do camera instructions. I’ve got to set up instructions for everything.
MS MUINO: ..... did it before Christmas.
MS STOREY: No, it’s always been like this for the last couple of years.
MS MUINO: What, you starting at 6 o’clock?
MS STOREY: Yes.
MS MUINO: The last couple of years ‑ ‑ ‑
MS STOREY: Yes.
MS MUINO: ‑ ‑ ‑ you’ve started at 6 o’clock .....
MS STOREY: Yeah, I have. Yes.
MS MUINO: I don’t think so.
MS STOREY: I have. Ask him. Go back on the sheets.
MS MUINO: ..... give me the rosters.
MS STOREY: Yep.
MS MUINO: Just email me the rosters, and I’ll have a look at it. But you ..... I’m not too concerned about. But I had a look, and there’s a few others that I’ve seen – like, for example, there’s a Monday, I think, there’s Mina, there’s – who else was it? I think there was Susan. And there’s, like, a two hour .....
MS STOREY: There’s ‑ ‑ ‑
MS MUINO: And I’m ..... people, what .....
MS STOREY: There’s only two people on on Mondays. There’s always only two people on except me, if I’m the third person.
MS MUINO: All right. Let me have a look at the roster.
MS STOREY: Yeah, I’ll email it to you.
MS MUINO: Just email it to me and I’ll have a look.
MS STOREY: Okay.
MS MUINO: Okay.
Ms Storey hung up. Ms Muino telephoned again, and the conversation about rosters continued as follows:
MS STOREY: Sorry. I thought you’d finished talking. I was just calling you back.
MS MUINO: .....
MS STOREY: Sorry.
MS MUINO: No. That’s all right. Yeah. Yeah. If you could email me that – those rosters, that would be great.
MS STOREY: Yeah. Okay.
MS MUINO: With working in there, are you – are you having problems with the roster?
MS STOREY: No. It’s just busy. Like, I – like, it may be the same amount of clients that we had, like, 10 years ago. Like, I completely understand that, but it’s different. It’s not like it used to be. Like, every – like, you know, probably one out of every three clients that we put on is, like, direct wireless multi-path or ..... so it’s not, like, just setting a client up basically. The operator has to spend, like, 10, 15 minutes commissioning the ..... like, asking them things like is it a serial cable? Is it a ..... lead? Is it this? Is it that? Is it single? Is it dual? Choose a plan. Like, it’s time-consuming.
MS MUINO Yep. Okay.
MS STOREY: And – and we’ve got – like, things like ..... cameras as well, so some mornings, like, Kathy can be in here – yes, sure – from 8 – 8 o'clock by herself and it will be fine, but if the police call she’s gone for 15 minutes.
MS MUINO: Yeah. Yep.
MS STOREY: Do you know what I mean? Like, it’s ‑ ‑ ‑
MS MUINO: Yeah. I’ll – I’m – I need to let – I need to see you anyway.
MS STOREY: And the car park has problems as well. So some mornings there’s no tickets and, you know, you can have, like, 30 phone calls in a matter of, like, two hours, like, extra.
The second subject was Ms Storey’s contentment with her work:
MS MUINO: Are you – are you not happy working .....
MS STOREY: It’s just stuff like this.
MS MUINO: Stuff like what?
MS STOREY: Like, I’m getting – like, I’m doing the work of, like, three operators in here.
MS MUINO: Okay. But is that it?
MS STOREY: And ‑ ‑ ‑
MS MUINO: Because I’ve been hearing other stuff as well.
MS STOREY: I’m not happy about it. Like, I send, you know, emails to Jose. I get no response and then I get ‑ ‑ ‑
MS MUINO: .....
MS STOREY: ‑ ‑ ‑ I’m getting abused from people because Jose’s not doing things that he’s promising clients and stuff.
MS MUINO: Okay.
MS STOREY: So it’s really frustrating.
MS MUINO: Okay. That’s not what I’m talking about. I’m talking about inside the control room itself.
MS STOREY: What do you mean?
At this point, Ms Muino informed Ms Storey she had heard that Ms Storey was unhappy about maternity leave; and that is the third subject discussed:
MS MUINO: Well, what – this is what I’ve been hearing. I’m just trying to clear the air. That (1) you’re not happy with the maternity leave.
MS STOREY: Yep. True.
MS MUINO: That is – okay. You know we don’t give maternity leave. We don’t ‑ ‑ ‑
MS STOREY: I was told – listen, I’ve been told differently.
MS MUINO: Okay. I don’t ‑ ‑ ‑
MS STOREY: And I remember differently, so ‑ ‑ ‑
MS MUINO: I don’t know who you’ve been told by ‑ ‑ ‑
MS STOREY: That’s – that’s fine, if that’s ‑ ‑ ‑
MS MUINO: ‑ ‑ ‑ but that’s not true.
MS STOREY: That’s the premise – if that’s the premise you’re going off, that’s fine, but I don’t believe it.
MS MUINO: No. That’s ‑ ‑ ‑
MS STOREY: And you can’t change my mind because I – I overheard conversations in here, but that’s fine. That’s your decision. It’s your business. That’s fine. I’m leaving anyway, so it doesn’t matter.
The fourth subject is Ms Muino’s having heard that Ms Storey was trying to do everything she can so that TMC would get rid of her:
MS MUINO: Yeah. But that’s fine. Now, (2) is that you’re trying to do everything that you can so I can get rid of you.
MS STOREY: No, I’m not.
MS MUINO: Okay. This is what I’m hearing. I’m just asking.
MS STOREY: Why would I be put ‑ ‑ ‑
MS MUINO: .....
MS STOREY: Why would I be busting my arse getting things done?
MS MUINO: Well, that’s another thing – that you’re not really doing – you’re just ..... and whatever ‑ ‑ ‑
MS STOREY: Are you joking?
MS MUINO: This – look ..... letting you know. That’s why I said – Jose said to me, “Look, you need to speak to Maree. If this is how she feels then, you know, this is not good. This is not good for her to be in there.” Also, because you are pregnant and we don’t want you to – you know ‑ ‑ ‑
MS STOREY: I’m trying to – I’m – I’m the one actually trying to make things be okay for when I go so that you guys don’t lose customers, you don’t lose bureaus. Normally there are so many mistakes, Elle, that I don’t – if I – if I put notes in their lockers I will spend all day just writing notes and doing nothing else.
MS MUINO: Okay.
MS STOREY: So ‑ ‑ ‑
MS MUINO: There’s ‑ ‑ ‑
MS STOREY: ‑ ‑ ‑ because I’m leaving what I’ve started doing – rather than just fixing their mistakes all the time, I’m leaving them notes telling them to fix it.
MS MUINO: Okay ‑ ‑ ‑
MS STOREY: So if people think I’ve got a bee in my bonnet, I don’t have a bee in my bonnet. I don’t have attitude with them. I’m just trying to make ‑ ‑ ‑
MS MUINO: No, no .....
MS STOREY: people take accountability for the errors and stuff.
MS MUINO: We’re not saying anything about – about you having attitude with them.
MS STOREY: Yep.
MS MUINO: They’re just saying that you’re doing everything that you can so I can sack you and – and I said to Jose, “Why would she – why would she want to do something like that? Why would I want to sack Maree? She’s been with me for 10,000 years. Why would she want to do that to – to us?” What is it that Jose and I have done to you, Maree, that you dislike us so much?
MS STOREY: I don’t ---
MS MUINO: I don’t understand.
The fifth subject was Ms Storey’s complaint she was not being given support:
MS STOREY: It’s not a dislike thing. It’s just I’ve had – feel like I don’t get any support ‑ ‑ ‑
MS MUINO: Support?
MS STOREY: ‑ ‑ ‑ at all in the workplace and, like, the only time I hear from you is, like, when you come in and out or, you know, you’re try ‑ ‑ ‑
MS MUINO: Maree ‑ ‑ ‑
MS STOREY: ‑ ‑ ‑ and put the boot in, but you’re not here.
MS MUINO: It’s always been like that. It’s always been like ‑ ‑ ‑
MS STOREY: ..... I used to talk to you guys all the time. Jose used to come in a minimum of, like, one or two times a week.
MS MUINO: He’s busy. He’s busy and I – you know, I haven’t been in there for – since James has been born.
MS STOREY: Yep.
MS MUINO: I go in there from time to time, come in and do a few ..... with you. That’s it. That’s what I do. I do more work from home with Karina and ..... that’s my job. We employ ‑ ‑ ‑
MS STOREY: I know, but you call up and you’re blasting me about the rosters and ‑ ‑ ‑
MS MUINO: ..... not blasting.
MS STOREY: ‑ ‑ ‑ you’re not even in here. You don’t even know what the activity level is.
MS MUINO: Maree ‑ ‑ ‑
MS STOREY: You come in for an hour and you’re basing it on that.
MS MUINO: Maree, I’m not blasting you. I’m ringing you because I’ve heard stuff, so the – the – the thing to do is to give you a call and – and speak – speak to you in regards to this to try and clear the air because I’ve never had a problem with you and I don’t think you’ve had a problem with us either and then all of a sudden I’m hearing that there are problems, but this is even before you – you announced that you were pregnant that I’ve been hearing all these things.
The sixth subject was Ms Muino’s having heard that Ms Storey has been calling staff “monkeys”:
MS MUINO: So, you know, there’s, you know – and another thing that I’ve heard as well which – which is – you know, like, you’re calling everyone in there monkeys and – and all that. It’s just – just not nice. You know ..... the girls are – the girls are coming up to me and saying this and I think they want it stopped.
MS STOREY: Okay. Well ‑ ‑ ‑
MS MUINO: ..... offended. That’s another thing why, you know, I need to clear that air with you – because I can’t – the girls can’t be called that.
MS STOREY: It was, like, a couple of times, Elle.
MS MUINO: .....
MS STOREY: And it’s not said, like, in a nasty way.
MS MUINO: Well, they got offended ‑ ‑ ‑
MS STOREY: Okay. Well, my apologies. You let me know who it is and I’ll apologise.
MS MUINO: I don't know who it is. It was just someone making the – saying it. The – it wasn’t just one girl. It was a few girls that you had said it to.
MS STOREY: Okay.
MS MUINO: Okay. Now, another thing as well ‑ ‑ ‑
MS STOREY: And I don’t think I ever actually said it to anyone ‑ ‑ ‑
MS MUINO: Okay. Well ‑ ‑ ‑
MS STOREY: ‑ ‑ ‑ I’ve said it, like, as a ‑ ‑ ‑
MS MUINO: Look, I don't know. I wasn’t ‑ ‑ ‑
MS STOREY: ‑ ‑ ‑ as .....
MS MUINO: I wasn’t there. I don't know. This is what I’m just – I’m just hearing. Okay?
MS STOREY: Okay.
MS MUINO: This is why I’m ringing you now – because I know that you’ve got to leave at 12 o'clock today and yesterday when I was hearing all these I was like, “Oh my God. This is – this is not the Maree that I know.”
MS STOREY: ..... Susan can say whatever she wants. I don’t really care.
MS MUINO: No. It wasn’t – it wasn’t Susan. It wasn’t Susan. It – look, it was – it was a bit of everything. Okay?
The seventh subject was Ms Muino’s having heard Ms Storey might be forgetful because she is pregnant:
MS MUINO: Now, another thing as well, Maree, is do you want Susan to – because I said to Susan – I said, “Look – look, Maree’s probably busy.” I said – and, look, I’ve been pregnant. I’ve been there. I’ve done that, so I know that it can get a little bit stressful when you’re pregnant, you know, forgetful and the rest of it. Now – and yesterday you were saying that you do forget, but you’ve got Kathy there to remind you. Is that true?
MS STOREY: No.
MS MUINO: Okay. Well, yesterday that came up.
MS STOREY: Yesterday I said to you, and it’s the first time ever – and you can ask Kathy – yesterday I set an alarm, like, when I went to bed and it came up in the morning and I had a reminder in there that I needed to call that guy.
MS MUINO: Okay.
MS STOREY: And as I was walking into the office I said to Kathy in passing, “Don’t let me forget blah, blah, blah.”
MS MUINO: Okay. Well, I just ‑ ‑ ‑
MS STOREY: So it’s not like I forget anything ‑ ‑ ‑
MS MUINO: Okay. I’m just saying I just.....Kathy was there to remind you.
MS STOREY: No.
MS MUINO: Well, anyway, when I was pregnant I was very, very forgetful. That’s why I – I asked the question. What else was there? Okay. So – so you’re cool in there? Because if you’re not, let me know.
MS STOREY: I’m fine.
MS MUINO: Are you sure?
MS STOREY: Yeah.
The eighth subject was Ms Storey’s claiming that she was being made a second operator again:
MS STOREY: Just – I don't know how making – how it’s going to make it better if you make me a second operator again.
MS MUINO: Make you a what?
MS STOREY: Make me a second operator again for ‑ ‑ ‑
MS MUINO: What do you mean?
MS STOREY: ‑ ‑ ‑ 24/7.
MS MUINO: I’m not saying – I’m not saying that.
MS STOREY: Well, you are. You’re saying that there’s three people on the roster and there should only be two.
MS MUINO: Well, there should be only two.
MS STOREY: So that’s fine.
MS MUINO: .....
MS STOREY: I can be the second person, but – stuff this. I’m not busting my balls any more.
MS MUINO: ..... I’m not ‑ ‑ ‑
MS STOREY: I come in and I just, like ‑ ‑ ‑
MS MUINO: Maree. Maree.
MS STOREY: .....
MS MUINO: I’m not saying you. I’m talking about other people being on – like, three people on. Look, I might – I might’ve been mistaken, but when I ..... at the roster I thought, “Huh? How come there’s overlap?” You there?
MS STOREY: Yeah, yeah, yeah.
MS MUINO: Yeah. There was – I’m not talking about you.
MS STOREY: There probably is occasionally, like, an hour, two hours overlap, but it’s not like they’re sitting in here doing nothing.
MS MUINO: Can you have a look at it?
MS STOREY: They’re doing things all the time.
MS MUINO: Can you have a look at it?
MAREE: Yeah. Sure.
MS MUINO: Have a look at it and just, you know, don’t – don’t – make sure that there is no overlaps. I don’t want to pay people, you know, two, three – three people on for what?
MS STOREY: Okay. Well, I’m not staying back any more. I’m not staying back any more than I already do to finish shit because ‑ ‑ ‑
MS MUINO: I’m not ‑ ‑ ‑
MS STOREY: ‑ ‑ ‑ they don’t have time ‑ ‑ ‑
MS MUINO: I’ve never asked you to stay back, Maree. I’ve never asked you to stay back. You just come in, do what you need to do and – you know, you need to be home and you need to rest as well. Go home and rest. That’s what you should be doing while you’re pregnant. Okay?
MS STOREY: Okay.
MS MUINO: I’m not asking you to stay back. I’m – I’m – I’m actually trying to tell you to take it a little bit easier.
The final subject was Ms Storey’s complaint that staff could not do anything, and Ms Muino’s suggesting that Ms Storey begin delegating:
MS STOREY: I can’t, Elle. No one ..... can fricking do anything.
MS MUINO: Well, you’re going to have to start delegating some jobs to people.
MS STOREY: I do, Elle.
MS MUINO: Okay. And another thing that you brought up as well – like, Kathy – that she wanted to be some sort of a supervisor. Is that still the case?
MS STOREY: I don't know. Have you spoken to her?
MS MUINO: No, I haven’t. That’s why ..... try and talk to her to try and see if she can alleviate some of your – you know, like, help you out a little bit more because I did see you yesterday and you were sort of like a little bit, you know, stressed.
MS STOREY: I’m like that all the time because I’m going at 200 per cent.
MS MUINO: Okay. Well, that’s why I’m going to speak to Kathy and see what – what – you know ‑ ‑ ‑
MS STOREY: .....
MS MUINO: ..... help you out.
MS STOREY: ..... till you’re blue and black in the face, but, like – just everything. Like, she can’t even update a contact person without putting it past me, Elle. She can’t even send a bureau pack out. Like, just everything that comes through she dumps.
MS MUINO: Okay. Why ‑ ‑ ‑
MS STOREY: That’s what I’ve been trying to tell you.
MS MUINO: Yeah. Why is she sending out a bureau pack? Bureau packs should be written down and given to – given to Karina to do.
MS STOREY: Yeah.
MS MUINO: Just leave it like that. The – she’s not going to take over your position, Maree.
MS STOREY: I don’t care if she does ‑ ‑ ‑
MS MUINO: ..... I’m just saying she’s not – that’s not going to be her role.
MS STOREY: .....
MS MUINO: No one is going to be general manager again. The ..... positions aren’t going to be – she’s not going to be general manager, so that’s what I’m saying. Susan can do a few interviews with me or whatever, but I’m going to take that responsibility myself and the bureau packs and all that – she shouldn’t be sending it out. It should go to Karina to send out anyway, so I’ll have to speak to Karina and see if she knows how to and if she doesn’t ..... they’re the office girls. They should be doing it .....
MS STOREY: Okay.
MS MUINO: All right? Okay. Let me speak to Kathy.
MS STOREY: Okay. I’ll put you through.
MS MUINO:All right
I make the following findings. First, the telephone conversation confirms that, before it occurred, Ms Muino had been informed that Ms Storey was unhappy she was not going to be granted paid maternity leave, that she had said that she would do all she could to get TMC to terminate her employment, and that she had offended employees by calling them monkeys. Second, the information Ms Muino received about Ms Storey portrayed Ms Storey to be a different person and employee to what Ms Muino had previously imagined Ms Storey to be, and this surprised and unsettled Ms Muino. That is evidenced by Ms Muino’s asking: “What is it that Jose and I have done to you, Maree, that you dislike us so much? . . . I don’t understand”, and Ms Muino’s stating: “Oh my God. This is – this is not the Maree that I know”. Third, Ms Muino’s purpose in talking to Ms Storey about the matters that had been reported to Ms Muino was “to clear the air”, to use Ms Muino’s words. That is, the purpose of the conversation, so far as Ms Muino was concerned, was to bring to the attention of Ms Storey for her comment matters Ms Muino had heard concerning Ms Storey. Fourth, the telephone conversation ended with what appears to have been an amicable agreement: Ms Storey said she would apologise to the employees she offended; Ms Muino asked Ms Storey whether “you’re cool in there? Because if you’re not, let me know”; Ms Muino suggested Ms Storey speak with “Kathy” to see if she could “help you out a little bit more because I did see you yesterday and you were sort of like a little bit, you know, stressed”; and Ms Storey agreed to provide the rosters to Ms Muino. Fifth, Ms Muino did not, at least at that stage, have in mind to undertake any further inquiry in relation to the matters that had been reported to her about Ms Storey, and which Ms Muino discussed with Ms Storey in their telephone conversation of 23 January 2013.
28 January 2013 – Ms Storey sends letter of complaint
The conversation Ms Storey had with Ms Muino upset Ms Storey. In the afternoon of the day she had the conversation, Ms Storey attended her first appointment at a birth centre. Ms Storey did not sleep that night and, the following day, she decided not to go to work.[49] Ms Storey obtained a medical certificate to the effect that she “will be unfit to attend work today and tomorrow due to personal stress”.[50]
[49] T78.25
[50] Exhibit G
On 28 January 2013 Ms Storey sent an email to Mr Muino to which she attached the medical certificate and a “formal letter I would like you to take the time to read”.[51] Ms Storey said:
I have been embarrassed enough in front of staff and colleagues due to Helia. Please send me an email back with a time you can meet with me to discuss. . . . I think it is best to meet in person and not have this conversation over the phone. This is what should have been done in the first place by Helia.
[51] Exhibit A, tab 5
Ms Storey’s letter to Mr Muino stated she wanted “to make a formal complaint about being discriminated against for being pregnant in the workplace”.[52] It appears Ms Storey complained of two specific acts of discrimination. The first was that, after Ms Storey advised she was pregnant, “another employee has apparently advised Helia [i.e., Ms Muino] that I am not carrying out my duties any more since becoming pregnant”. The second act of discrimination was an employee’s telling technicians that Ms Storey was pregnant, it being “not their news or place to tell anyone my personal information”.
[52] Exhibit A, tab 6
Ms Storey then made a number of assertions, including the following:
a)Ms Storey found it “astounding that Helia is implying that I am not coping when I have seen her once since being pregnant and probably 3 times in the last year all up”; and there was “no evidence to support this claim and I feel like for the first time in 13 years I was verbally attacked over the phone about my role as General Manager which has never been in question before”.
b)Ms Storey found Ms Muino “to be very unprofessional”; that Ms Muino “advised that two persons could not start work at 6am any more”; that this had been changed by Ms Muino “all of a sudden”; that Ms Muino told Ms Storey “to reduce staff within the control room so there was only two persons in the control room (including me) at any one time” which meant that Ms Storey would “always be doing operations” and could not do her general manager duties; and that “effectively means I have been demoted after13 years working for the company”.
c)Ms Storey was advised she “was forgetting things due to implied ‘baby brain’ but Helia could not give a valid example”; that Ms Storey “was given a lot of criticism about” her responsibilities and Ms Storey “did not feel that it was warranted and that” her “replies were even heard”.
d)Ms Storey advised Ms Muino that for a long time she has been lacking any kind of support from upper management, “getting abused on a regular basis due to upper management not attending to appointments/returning calls etc.”
e)The way in which Ms Storey was spoken to last week brought her to tears, and, when she attended an antenatal appointment, her blood pressure was higher and this was “most likely linked to the fact that” Ms Storey “was accosted on the phone and treated in a highly unprofessional manner by” Ms Muino.
f)Over the past year, Ms Storey had been trying to get the control room ready for her departure “so that you will actually have a business when I go”, but the “only thing that has changed in this time is that I am trying to get operators to take ownership of their own mistakes and fix them because I will not be here to do that for them for much longer”.
g)Ms Storey has “had technicians highly concerned about” Ms Storey’s departure “as they think the rest of the staff show incompetence and in my option [sic] they do”; Ms Storey had been “trying to address this issue and it is an ongoing battle”; she has “followed up so many mistakes from operators and they just keep making the same mistakes time after time”; that it was “no surprise that they do not respect my notes about their errors as I do not feel like management has any respect for me either”; and that staff were “simply mirroring that of management”.
h)Since becoming pregnant, management was leaving Ms Storey out of decision making in which Ms Storey was once included, namely, “Star of the Year”. Ms Storey was disappointed that that award “was given to a staff member that was attending work 30 minutes late or more every day”.
i)Management was telling operators about things that involved Ms Storey without informing her.
j)Ms Storey found it disheartening that Mr Muino and Ms Muino treated Ms Storey as “a thorn in your side”; that Mr Muino had forgotten “that it was only 4 years ago that I left a life that I built in Darwin to come back to salvage your business for you when no one else would”; that, in return to having been invited to her wedding, “I get mistreatment by Helia”; that “at most social gatherings over the years I have found Helia to be rude to my husband”; and “this year I found myself being put down by her in front of bureaus and again in front of staff”.
k)Although an agreement had been made about “a yearly percentage of profits”, every year Ms Storey felt she had to “beg and plead for this to be paid into my account”.
Ms Storey concluded her letter as follows:
I would like to arrange a meeting with you only Jose to discuss these matters and several other issues that I think require your grave concern. I do not want Helia to be present as I would like a [sic] open forum with you where my views can be expressed professionally and carmly [sic] so this can be resolved. I would prefer you do not show this letter to Helia in fear of further verbal attack.
There are a number of observations that may be made about some of the assertions Ms Storey made in her letter.
a)Ms Storey’s assertion that she had been “verbally attacked over the phone about my role as General Manager” cannot reasonably be supported either by the substance of what Ms Muino said to Ms Storey during their telephone conversation of 23 January 2013, or by the manner in which Ms Muino spoke.
b)Ms Storey’s assertion that she found Ms Muino “to be very unprofessional” cannot reasonably be supported either by what Ms Muino said to Ms Storey during their telephone conversation on 23 January 2013, or by the manner in which Ms Muino spoke.
c)Ms Storey’s assertions that Ms Muino “advised that two persons could not start work at 6am any more”; that this had been changed by Ms Muino “all of a sudden”; that Ms Muino told Ms Storey “to reduce staff within the control room so there was only two persons in the control room (including me) at any one time” which meant that Ms Storey would “always be doing operations” and could not do her general manager duties; that that “effectively means I have been demoted after 13 years working for the company” are not an accurate reflection of what Ms Muino said to Ms Storey. Ms Muino did express the view there should be only two persons rostered at the same time. Ms Muino, however, gave no directions to Ms Storey that there be no more than two operators at any shift. Ms Muino said:
I’m not saying you. I’m talking about other people being on – like, three people on. Look, I might – I might’ve been mistaken, but when I ..... at the roster I thought, “Huh? How come there’s overlap?”
The conversation ended by Ms Muino asking Ms Storey to “have a look at it”.
d)Ms Muino did not claim Ms Storey “was forgetting things due to implied ‘baby brain’”. Ms Muino informed Ms Storey that on the previous day it had been reported to Ms Muino that Ms Storey said that she did forget, but that she had Kathy to remind her. Ms Muino asked whether that was true. Ms Storey said it was not and Ms Muino apparently accepted Ms Storey’s response. Ms Muino did refer to Ms Muino’s having been forgetful when she was pregnant. Ms Muino did not, however, say Ms Storey was forgetting things because of “baby brain”.
e)Ms Storey’s assertion that she was “given a lot of criticism” about her responsibilities is not an accurate characterisation of what Ms Muino said during the telephone conversation of 23 January 2013. Further, although Ms Storey may have felt Ms Muino did not hear Ms Storey’s replies, that was an inaccurate characterisation of Ms Muino’s conversation with Ms Storey. Ms Muino apparently listened and overtly acknowledged what Ms Storey said during the conversation.
Mr Muino’s reaction to Ms Storey’s letter of complaint
Mr Muino was shocked after he read Ms Storey’s letter of 28 January 2013:[53]
Would you be able to inform the court of your feelings at the time or your observations as to your position in respect of that complaint letter?‑‑‑At first when I first received that – that email I was in shock. I just – I couldn’t believe what I was reading. I basically said to my wife at the time – I said, “What is this?” I was concerned about what – the accusations that have been made and that it was an attack on – on us personally as well as in terms of our behaviour in the business. And it – when I first read it I was gobsmacked – gobsmacked, I suppose.
And why were you gobsmacked?‑‑‑Because that’s not the way Maree behaves. That’s not her normal way of doing things. We normally would talk it out. Normally she would say, “Jose, I need to talk to you”, pull me aside. You know.
And then what was your feelings on a personal level as – in relation to that complaint letter?‑‑‑I was hurt – I was very hurt when I read that, absolutely.
[53] T324.10
Mr Muino gave evidence that, after he received that letter, he spoke to Ms Muino.[54]
We were – we were mulling over it, I guess, and talking about it. Reading it. Rereading it. Wondering what was going on. Why. And, basically, it was, you know, asking us to investigate, and using words that were, you know, I don’t – we were scared. We – we were worried what was going on, so we – we contacted our lawyer.
[54] T353.40 (emphasis added)
Mr Muino was asked in chief what occurred after he read Ms Storey’s letter of 28 January 2013:[55]
So if you could tell the court, Jose, what proceeded after that? What were the events that proceeded after that in relation to Ms Storey?‑‑‑Well, basically I – in the letter it basically said that – I needed to investigate, I guess, as to what – what was going on. I then continued to look into it further. I – due to the nature of the letter and the way that it was written that it was actually attacking, Elle and I felt that there was something seriously wrong and that we seeked – we seeked legal advice after that.
And then following that, what was proposed? Or was there anything – what was the next ‑ ‑ ‑?‑‑‑Well, we – we wanted to meet with Maree. We tried to – we kept ringing the control room to find out when she was in, and to no avail. So we basically at that point found out when her next shift was after her time away and sent her a letter or basically organised to have a meeting to discuss this and to talk about other things that have come to light due to ‑ ‑ ‑
[55] T326.20
Ms Muino also gave evidence of her reaction to reading Ms Storey’s letter:[56]
And then, subsequently, did you then receive, or Jose received a letter on 28 January – sorry, from the – it was after that conversation on the phone. What happened next?‑‑‑I read the letter and I was very shocked reading it. I was saying to Jose, “Oh, my God, I can’t believe this is Maree, this is the Maree that we know.” It didn’t sound like her at all. It was out of character. And that was it.
Was it something that then you thought was very serious?‑‑‑Yes, definitely, and that’s when I did speak to the girls and asked them to put everything down in writing, what they had told me – their complaints in regards to Maree.
[56] T493.40-494.5 (emphasis added)
Ms Muino also said:[57]
When I received – when I read Maree’s complaint letter, I was shocked. I could not believe what was in that letter. I was upset.
[57] T528.20
Ms Muino requests information about Ms Storey
After Mr and Ms Muino became aware of Ms Storey’s letter of 28 January 2013, seven employees provided written complaints and other information about Ms Storey. In the next few paragraphs, I describe those complaints and information. It is important to note, however, that whether or not the matters complained of were true is not an issue I have to determine. The complaints were received into evidence for the limited purpose of proving the matters of which Mr and Ms Muino became aware. I admitted the complaints for that limited purpose because the respondents had produced the documents only after the hearing had commenced, even though Ms Storey, well in advance of the hearing, had requested that the respondents discover the complaints.
First, there were the complaints provided by Ms Sale. On 29 January 2013 she sent an email to Ms Muino’s email address, but it was addressed to “To Whom it may concern”. Ms Sale complained Ms Storey had called her and the rest of the staff “monkeys”; that the last time Ms Storey said that to Ms Sale was two weeks before “inregards [sic] to Sharon”; and that on one occasion when Ms Sale made a mistake, Ms Storey said “I don’t know about your grandmother but my grandmother will understand this”. Ms Sale also claimed Ms Storey said “she wants Elle and Jose to fire her so she can sue them for unfair dismissal”, and that Ms Storey “really doesnt [sic] care about the job no more because they will not pay her maternity leave after all that she has done for them over the past 10 years”.[58]
[58] Exhibit 4
Second there was Ms Yin Choy. She sent an email to Ms Muino on 29 January 2013.[59] She claimed, among other things, that Ms Storey called “everyone” in the control room “monkeys in general when speaking”; that she made “[r]acial remarks”; Ms Storey “[t]old everyone else if she doesn’t get maternity leave she perfer [sic] to be sacked so she can go for unfair dismissal”; if Ms Storey “doesn’t like someone she makes their life difficult”; and Ms Storey spoke “to our tech as if they are dumb”.
[59] Exhibit 4
Third, there was Ms Sharon Brown. She, too, sent an email to Ms Muino on 29 January 2013.[60] The email lists a number of incidents and complaints. These include Ms Storey having been heard to give the names of operators to technicians if a mistake had been made; Ms Storey using the “monkey comment”; and Ms Brown having witnessed Ms Storey making “a production of listening to the voice tapes” when a mistake was made.
[60] Exhibit 4
Fourth, there was Ms Karina Harris. She sent an email to Ms Muino on 29 January 2013 in which she related an incident that occurred in early December 2012 where Ms Storey accused Ms Harris of having scratched Ms Storey’s car .[61]
[61] Exhibit 4
Fifth, there was Ms Mina Kaplan. She sent an email to Ms Muino on 9 February 2013.[62] Ms Kaplan said she had been working with TMC for almost eight years but had not mentioned anything to Ms Muino because she was afraid Ms Muino would not believe her, or that her complaining might have caused problems to her position within the company. Ms Kaplan stated she believed a “majority of staff have had problems with [Ms Storey] mainly being either racist or prejudice [sic] or somewhat back stabbing”. Ms Kaplan said Ms Storey “has called staff members “monkeys” on several occassions [sic] for the simple fact that we make mistakes”. Ms Kaplan made other statements in relation to Ms Storey.
[62] Exhibit 4
The sixth employee was Ms Susan Tate. On 12 February 2013 Ms Tate sent an email to Ms Muino in which she said “I send you this in the highest confidence”. I infer that the “this” to which Ms Tate referred in her email is a thirteen-page document beginning with the words “Well, where to start”.[63] In the document that is in evidence (as is the case with the other documents employees provided to Ms Muino), certain passages are highlighted or marked which, I infer, were made by Mr or Ms Muino. Those passages included Ms Storey’s “spruiking off unprofessionally about other staff to whoever was there” even “in front of the trainee’s [sic] and this was and is very embarrassing”; Ms Tate’s having been “told that before I started Maree told staff that the $100k she got a year was not enough to put up with all the uselessness of the operators”; that Ms Kaplan told Ms Tate that Ms Storey had told Ms Kaplan that staff were doing themselves out of a job because they did not care about TMC, and that Mr Muino would sell the business after Ms Storey leaves because staff did not care, and that Ms Storey knew more than Mr Muino; and that after Ms Tate returned from holidays she was told Ms Storey “was trying to get the sack because she was super irate at being denied maternity leave, so she was on a go slow and only doing what she had to, to try and force their hands so she could have them up for unfair dismissal”.
[63] Exhibit 4
Finally, there is a typed but undated document with the word “Tracey” written on the top of the first page. That appears to be, and I infer it is, a document prepared by Ms Tracey Tabai, another employee of TMC. That document contains a number of assertions including Ms Storey’s being “nasty and rude and is forever backstabbing other staff members”; Ms Storey having called Ms Tabai a liar; over the years “a lot of staff have departed and have left unsatisfied and frustrated and have a lot of hate towards TMC”, and that was “because of one person named Maree Storey our General Manager”; and that Ms Storey informed Ms Tabai about how her husband made what Ms Tabai considered to be rude remarks at a speech Mr Muino gave at the 2012 Christmas party by saying words such as “bull shit”, “tight ass” and many other things. Although this document is undated, I find that the document was prepared after 28 January 2013. I so find because, for the reasons I set out below, I find that it was after Ms Muino became aware of Ms Storey’s letter of 28 January 2013 that Ms Muino requested employees to put in writing complaints they had about Ms Storey.
As I understand her evidence, Ms Muino said, or at least intended to imply, that the complaints in relation to Ms Storey Ms Muino requested TMC employees put in writing were the complaints employees had communicated to Ms Muino before Ms Muino’s conversation with Ms Storey on 23 January 2013. That that was the intent of Ms Muino’s evidence is made clear in the following evidence of Ms Muino:[64]
By the end of December I had already spoken to all of them and the only thing I did on the 29th and after that was said, “Please, everything that we’ve spoken about, that you guys have complained to me, about Maree, put it into writing.” That’s what I needed from them. I wanted everything in writing.
[64] T532.5
That is what counsel for the respondents submitted occurred. Counsel submitted that the effect of what Ms Muino requested was as follows: “What you’ve said to me, that was the basis for me to raise these issues with the applicant in that phone conversation, we will need now in writing because this is now serious”.[65] I cannot accept this evidence and counsel’s submission; at least, not without substantial qualification.
[65] T656.5
There is evidence, which I accept, that Ms Muino asked Ms Harris to put in writing the complaint she had previously made about Ms Storey in early December 2012 in which Ms Harris claimed Ms Storey had accused her of scratching Ms Storey’s car.[66] Ms Harris said that on 29 January 2013 Ms Muino telephoned Ms Harris and asked Ms Harris “if I remembered the incident with the car and if I could put it in writing and email her and I did”.[67] On the other hand, there is evidence that Ms Muino did not only ask employees to put in writing the complaints they previously made to Ms Muino about Ms Storey, but also asked for information in relation to Ms Storey or the office in general. That can be seen in the evidence of Ms Sale. Ms Muino telephoned Ms Sale when she was on her way to her shift[68] and asked Ms Sale to put in writing “everything that’s happened in the office” to Ms Sale, and what she heard, and to email it to Ms Muino.[69] It was in response to that request that, on 29 January 2013, Ms Sale sent her email to Ms Muino.[70] That Ms Muino requested information that went beyond matters of which Ms Muino was informed can also be seen in the other responses Ms Muino received. They were wide ranging, and included matters, such as racism, that Ms Muino did not raise with Ms Storey during their telephone conversation of 23 January 2013.
[66] T463.45-T464.10
[67] T467.15
[68] T479.35
[69] T479.25
[70] Exhibit 4
In cross-examination Ms Muino said that, after her conversation with Ms Storey on 23 January 2013, Ms Muino was “still looking” into the matters she had raised with Ms Storey in her telephone conversation with Ms Storey. Ms Muino said she “was still talking to the staff in regards to that and I needed it in writing” and that “I needed the girls to put it in writing before we had the meeting with Maree”.[71] That implies that as at 28 January 2013, before they became aware of Ms Storey’s letter of 28 January 2013, Mr and Ms Muino were in the process of investigating complaints that had been made in relation to Ms Storey before 23 January 2013 and, in fact, 28 January 2013. If that is the intended effect of Ms Muino’s evidence, I do not accept it.
[71] T511.40
In her telephone conversation with Ms Storey of 23 January 2013, Ms Muino raised with Ms Storey complaints that had been made about Ms Storey. The purpose of Ms Muino’s raising those matters was, in Ms Muino’s words, to “clear the air”. That is what occurred. Ms Storey offered to apologise to the persons she may have offended by using the expression “monkeys”; Ms Storey acknowledged she was upset at TMC’s not making available to Ms Storey paid maternity leave; and Ms Storey denied making a statement to the effect that she intended to engineer her dismissal so that she could mount an unfair dismissal claim. The conversation ended with conciliation when Ms Muino suggested that Ms Storey talk to an employee named Kathy [Ferguson] to “try and see if she can alleviate some of your – you know, like, help you out a little bit more because I did see you yesterday and you were sort of like a little bit, you know, stressed”. I find that the telephone conversation of 23 January 2013 constituted the end of the action Ms Muino intended to take in relation to whatever complaints had come to her attention in relation to Ms Storey before that conversation.
There is evidence that before 23 January 2013 Ms Muino requested one employee to put in writing complaints in relation to Ms Storey. The employee is Ms Kaplan, who gave the following evidence in chief about the circumstances in which she sent her email of 9 February 2013:[72]
[72] T445.15
And can I ask you about that, the circumstances surrounding you sending that email? If you want me to be more specific, what was the reason you did this – that you provided this email?‑‑‑Okay. So, first of all, Elle approached me and was face-to-face, and I told her, and then she asked me to put it in writing, and that’s what I did.
And had you spoken to Elle – when did you first have discussions with Elle, or did you have any discussions with Elle ‑ ‑ ‑?‑‑‑Yes, I did.
‑ ‑ ‑ prior to sending this email?‑‑‑Prior to sending that email, yes.
And when were they, to the best of your recollection?‑‑‑It would have been after – I don’t know exact dates – it would have been after 21 December, early January. So it was in that two-week period but I really don’t remember a date.
In cross-examination, Ms Kaplan said she took “a few weeks to actually maybe get the courage to write that email” after she had a face-to-face meeting with Ms Muino. [73] During her meeting with Ms Muino, Ms Muino asked Ms Kaplan whether she had any problems with Ms Storey.[74] Ms Muino wanted to know what problems Ms Kaplan had with Ms Storey in the past and “she wanted me to open up and tell her”.[75]
[73] T450.40
[74] T451.10
[75] T451.30
I do not accept Ms Kaplan’s evidence to the extent she says that it was in December or early January 2013 that Ms Muino requested Ms Kaplan put in writing complaints in relation to Ms Storey. The evidence Ms Kaplan gave in chief is inconsistent with the email she sent to Ms Muino on 9 February 2013. In her evidence in chief, Ms Kaplan said Ms Muino “approached me and was face-to-face, and I told her, and then she asked me to put it in writing, and that’s what I did”.[76] As I understand this evidence, Ms Kaplan expressed to Ms Muino complaints she had about Ms Storey; and Ms Muino then asked her to put that in writing, and she did that by sending to Ms Muino her email on 9 February 2013. In the email she sent to Ms Muino, however, Ms Kaplan said she did not previously express any complaint about Ms Storey because she was afraid Ms Muino would not believe her, or that it might cause problems to her position within the company.
[76] T445.20
I find Ms Muino approached Ms Kaplan and requested Ms Kaplan to put in writing problems Ms Kaplan had with Ms Storey. I do not accept Ms Muino approached Ms Kaplan for that purpose before 28 January 2013. I find Ms Muino approached Ms Kaplan on or shortly after 29 January 2013. I so find for two reasons. First, it was on 29 January 2013 that Ms Muino approached Ms Sale and Ms Harris with a request that they provide information about Ms Storey in writing. It is likely Ms Muino approached all other employees at around the same time. Second, before 28 January 2013, there was no reason for Ms Muino to make any request of any employee to put in writing complaints the employee had about Ms Storey; in her telephone conversation with Ms Storey on 23 January 2013, Ms Muino had raised the substance of the complaints relating to Ms Storey of which Ms Muino had by then become aware. As I have found, Ms Muino’s discussion of those complaints constituted the end of the action Ms Muino intended to take in relation to those complaints.
I find, therefore, that Ms Muino requested at least seven employees to put in writing information in relation to their experience in the workplace involving Ms Storey; that Ms Muino made those requests after she became aware of Ms Storey’s letter of 28 January 2013; and she and Mr Muino did not decide to make those requests in the course of, or for the purposes of any ongoing investigation Mr and Ms Muino had been undertaking before 28 January 2013 in relation to complaints that had been made about Ms Storey.
Why did Ms Muino request from employees written information about Ms Storey?
At this point it is necessary to consider the reason or reasons for which Ms Muino and Mr Muino decided to obtain from employees in writing information in relation to Ms Storey. That is so because, as I discuss later in these reasons, the identification of the “particular reason” for which Mr and Ms Muino acted is a central issue in determining whether TMC contravened s.340 and s.351 of the FW Act and, if so, whether Mr and Ms Muino were involved in TMC’s contraventions of those provisions. Before I consider Mr and Ms Muino’s reasons for deciding to obtain from employees written information in relation to Ms Storey, it would be useful to say something about the concept of a person “acting for a reason”.
A person’s acting for a reason implies at least two things: a decision by the person to take a particular action; and facts or other circumstances on which the person relies in arriving at his or her decision to take that action. The facts or circumstances on which a person relies for deciding to take a particular action are the reasons for the person’s taking the action. Stated another way, a reason for acting implies a relation between a person’s deciding to undertake a particular action, and the facts or circumstances – in other words, the reason or reasons – on which the person relies for deciding to take an action. A person’s acting for a reason also implies the person’s being conscious, to some degree, at the time he or she decides to take the action in question, that he or she has relied on the reason in deciding to take the action. Actions “directed by responsiveness to reasons involves awareness, at some level, of what there is reason for self to do now”.[77]
[77] J Skorupski The Domain of Reasons Oxford University Press 2010 page 59 (emphasis in original)
There are inherent difficulties in determining the reasons for which a person has taken a particular action. Ordinary action “takes place under conditions of everyday unreflectiveness: within accepted frameworks of belief, projects, intentions, taken for granted environments”. And, although it is possible for a person to examine after the event the reasons for which he or she has taken a particular action, and, therefore, give evidence of the reasons for which the person has taken that action, the person “may not have perfect recall”, or the person “may be prone to self-delusion, and the line between recall and retrospective hypothesis can be difficult to draw”.[78] In most cases, however, the facts or circumstances – that is, the reasons - on which a person has relied in deciding to take a particular action may be ascertained by answering the question why the person decided to take that action.[79] And even in the absence of direct evidence from the person about the reasons for which that person had taken a particular action, or even in the face of evidence given by that person which is not accepted as credible, the reason or reasons for which a person had taken a particular action may often be ascertainable circumstantially, and in particular, from what the person has or has not done.
[78] J Skorupski The Domain of Reasons Oxford University Press 2010 page 58
[79] “The notion of a reason is embedded in at least three other notions, and the four can only be understood together as a family. The other notions are “why”, “because”, and “explanation”. Stating a reason is typically giving an explanation or part of an explanation. Explanations are given in answer to the question “Why?” and a form that is appropriate for the giving of a reason is “Because . . .”” (J. R. Searle Rationality in Action Cambridge Massachusetts 2001 at page 100
The reason or reasons for which Mr and Ms Muino decided to request employees to provide information they had in relation to Ms Storey, therefore, is to be determined by answering the question: why did Mr and Ms Muino decide to undertake that course of conduct? It is to that question I now turn.
Ms Storey alleges in her statement of claim that: following receipt of Ms Storey’s letter dated 28 January 2013, Mr and Ms Muino determined to terminate her employment;[80] without notice to Ms Storey, Mr and Ms Muino embarked on an exercise designed to achieve the outcome of the prompt termination of Ms Storey’s employment;[81] and without notice to Ms Storey, Mr and Ms Muino resolved to carry out an “investigation” of Ms Storey with the ulterior motive of achieving the pre-determined result of Ms Storey’s termination of employment.[82] In short, Ms Storey claims that the reason Ms Muino requested employees to put in writing complaints they may have had in relation to Ms Storey was to execute a fixed intention Mr and Ms Muino formed shortly after they read Ms Storey’s letter of 28 January 2013 to terminate Ms Storey’s employment contract. Ms Storey, however, does not explain why, if they had already decided to terminate Ms Storey’s contract, Mr and Ms Muino considered it necessary to obtain complaints in writing from employees. If, on reading Ms Storey’s letter of 28 January 2013, Mr and Ms Muino had in fact determined to terminate Ms Storey’s contract, why did they not do so at the time Ms Storey submits Mr and Ms Muino so determined?
[80] Statement of claim [23]
[81] Statement of claim [24]
[82] Statement of claim [25]
Perhaps what Ms Storey intends to claim is that Mr and Ms Muino did not believe they had valid, or sufficiently secure grounds for terminating Ms Storey’s contract and, therefore, Ms Muino’s seeking written information from the employees was an attempt to obtain information that would disguise Mr and Ms Muino’s absence of a belief they had valid grounds for TMC’s terminating Ms Storey’s contract of employment. No such case, however, has been articulated or put to Mr or Ms Muino. Quite apart from that, however, the evidence could not reasonably sustain such a finding. There is no suggestion Mr and Ms Muino intended to, or did coerce or encourage employees to put in writing false or exaggerated information in relation to Ms Storey. If anything, the evidence suggests Ms Muino requested in a non-leading way that employees provide information in relation to Ms Storey. It is, therefore, possible that employees could have given information that would have portrayed Ms Storey in a positive light.
Why, then, did Mr and Ms Muino decide to obtain from its employees written information concerning Ms Storey? I begin by repeating some of my findings: before 23 January 2013 Ms Muino became aware of information relating to Ms Storey that indicated that Ms Storey was not the person Ms Muino imagined her to be; Ms Muino dealt with that information by discussing it with Ms Storey during their telephone conversation on 23 January 2013; the purpose of the conversation, so far as Ms Muino was concerned, was to “clear the air” – that is, bring into the open the matters concerning Ms Storey; and, again so far as Ms Muino was concerned, the conversation had cleared the air to Ms Muino’s satisfaction, so that Ms Muino intended to do nothing further in relation to the information she received concerning Ms Storey.
I find, however, that Mr and Ms Muino’s reading Ms Storey’s letter of 28 January 2013 induced in them a mixture of emotions that included surprise, dismay, outrage, hurt, and anger. That was a predictable response, given the matters Ms Storey asserted in the letter, and when viewed against what, until no more than a few weeks before, was in the eyes of Mr and Ms Muino a mutually loving and respectful relationship they shared with Ms Storey. Fuelled by the emotions induced by Ms Storey’s letter, Mr and Ms Muino decided to terminate Ms Storey’s contract. They sought legal advice. Mr and Ms Muino, however, did not believe TMC had, or had sufficiently secure, valid grounds to terminate Ms Storey’s contract; at least not without obtaining in writing complaints that staff had in relation to Ms Storey that would justify TMC terminating Ms Storey’s employment contract, and without Mr and Ms Muino first meeting with Ms Storey to put to Ms Storey the effect of the written complaints they expected to obtain from employees. These findings are supported by the following evidence Ms Muino gave under cross-examination:[83]
Were matters which are raised due to the fact she had made this complaint which upset you?‑‑‑No, I had already spoken to the staff before that, Mr Williams. I just asked them to put it all into writing so when we did go to this meeting I didn’t want to be guessing, you know, someone said this, or someone said that. I wanted to be certain. They’re serious allegations. I wanted to be certain. I wanted to be 100 per cent sure that what I had in front of me is what I was going to tell Maree.
So following her complaint, that’s why you commenced this investigation?‑‑‑I was already speaking to the girls in December 2012.
But you wanted to be sure, you said?‑‑‑I had already spoken – no, I wanted to be sure. I wanted everything in writing, what the girls had spoken to me about. I wanted to be 100 per cent sure what I was going to say to Maree was what the girls were telling me.
[83] T529.20
TMC claims it was entitled to terminate Ms Storey’s employment contract because of the matters on which it relied for terminating her employment. The difficulty with TMC’s claim, however, is that it did not attempt to prove at the hearing the truth of the matters on which TMC relied for terminating Ms Muino’s contract. That was due to TMC not having discovered until the second day of the hearing the written complaints Mr and Ms Muino received from employees. I permitted TMC to rely on those documents, not as evidence of the truth of the matters that were stated in them, but as evidence of the matters on which Mr and Ms Muino relied for terminating Ms Storey’s contract. Further, even if TMC had proved the truth of the matters on which TMC relied for terminating Ms Storey’s contract, it should not be assumed that that would have entitled TMC to terminate Ms Storey’s contract of employment.
It follows, therefore, that by TMC terminating Ms Storey’s contract on the basis it would pay her four weeks wages in lieu of notice, TMC repudiated Ms Storey’s contract of employment. In assessing the damages Ms Storey would be entitled to for that breach, it is necessary to determine what would have occurred had TMC not repudiated the contract, with what Ms Storey actually did after she left TMC. Had TMC not repudiated the contract, Ms Storey would have worked until 2 August 2013 and taken unpaid maternity leave until the end of the term of the contract. What Ms Storey in fact did after she left TMC was to work with UniMet until 2 August 2013. Accordingly, the damages to which Ms Storey is entitled for TMC’s repudiation of the employment contract is $5,898.35, being the difference between the $33,370.35 Ms Storey would have earned had she remained with TMC up to 2 August 2013, and the wages Ms Storey in fact earned during that period.
Share of profits
Ms Storey claims that her contract of employment provided that Ms Storey would be paid a percentage of the profits TMC would make. The rate was 1% for the first year, 2% for the second year, 3% for the third year, 4% for the fourth year, and 5% for the fifth year. Ms Storey claims she received her 1% profit share entitlement for the year ending 30 June 2010, and her 2% profit share entitlement for the year ending 30 June 2011. She claims she did not receive her 3% profit share entitlement for the year ended 30 June 2012 or her 4% profit share entitlement for the year ended 30 June 2013.
There is no dispute TMC made profits for the years ended 30 June 2012 and 2013 and that, assuming Ms Storey was entitled to a 3% and 4% share respectively, TMC should have paid, but did not pay Ms Storey $4,320 and $1,555 respectively. In its defence, however, TMC denies that Ms Storey was entitled to a share in the profits; TMC alleged that she was only entitled to a bonus. At the hearing, TMC submitted that Ms Storey’s entitlement to a payment based on TMC’s profitability was conditional on Ms Storey securing new bureaus. The basis of that submission appears to be the following evidence given by Ms Muino in cross examination:[208]
[208] T505.20-T506.15
Yes?‑‑‑Yes. And the company profits, that was based on the company profits. It was a bonus based on the company profits provided that she bring in the TMC lines, direct lines and bureaus, and she never did.
Well, you didn’t say that in your emails, did you?‑‑‑We spoke about it, but, in the emails it does say that, that “Bureaus and lines needed urgently.” And then we did speak on the phone in regards to that as well.
In none of those emails is the – what was described in the emails as a profit described as a bonus, is it?‑‑‑The wording, Mr – Mr Williams. I’m not – not very good with words.
That’s the word?‑‑‑But we did have a conversation about that.
. . . .It was always described as a percentage of profit, was it not?‑‑‑Bonus based on the company profits. That was what was discussed with Maree, providing she brings the clients in, and none of it was done. Clients and bureaus. She didn’t bring any clients in.
Would you agree with me that that is not mentioned in the emails?‑‑‑About the clients?
And that, in your email – in that chain of emails there was no mention ‑ ‑ ‑?‑‑‑You ‑ ‑ ‑
‑ ‑ ‑ of the profits being conditional upon her bringing in – people in?‑‑‑There was the – it’s in the email. That says clients – what she needed to do to get the money. It says there, “Clients needed urgently,” and that was what was discussed with Maree, and she even says in her email, “My head’s buzzing with ideas.”
I do not accept Ms Muino’s evidence to the extent she says that during her conversation with Ms Story at the time Ms Storey agreed to be appointed general manager, Ms Muino said words to the effect that “bonus based on the company profits provided that she bring in the TMC lines, direct lines and bureaus”.
a)First, Ms Muino composed the email of 12 October 2008 in which she stated “Company Profits – 1% starting from 1st July 2009 and paid at the end of 2010 financial year and 1% every following year that you are with the company (up to 5%)”. Although the email also states “[b]ureaus and lines direct needed urgently”, Ms Muino did not state that the payments out of company profits were conditional on Ms Storey obtaining bureaus and lines. I do not accept this was due to Ms Muino not being very good with words. Ms Muino, when giving evidence before me, had the capacity to express the notion that the payments were conditional; there is nothing to suggest Ms Muino did not have that capacity when she prepared and sent to Ms Storey the email of 12 October 2008.
b)Second, on Ms Muino’s account, nothing was said about how many bureaus and lines Ms Storey was expected to bring in before she would have become entitled to a share of TMC’s profits. In those circumstances, it is difficult to imagine that Ms Storey and Ms Muino agreed that the payment of amounts by reference to TMC’s profitability would depend on Ms Storey obtaining an unspecified number of bureaus.
c)Third, TMC had paid Ms Storey an amount reflecting a percentage of TMC’s profits for the 2010 and the 2011 financial years; yet, there is no evidence that this was done because Ms Storey had brought in new bureaus and lines. On the contrary, Ms Muino’s evidence was that Ms Storey did not secure any new bureaus or lines.
The contract of employment does not specify by when TMC was required to pay the amounts that were to be calculated by reference to TMC’s profits. I find that the employment contract was subject to an implied term that TMC would pay such amounts within a reasonable time of TMC ascertaining whether it had made a profit in a given financial year. On this analysis, the amount payable for the 2012 financial year had accrued before Ms Storey’s employment had been terminated, but no such amount accrued in relation to the 2013 year because, at the time Ms Storey’s employment contract had been terminated, the 2013 financial year had not ended and, therefore, TMC’s profit for that year had not by then been determined. That does not mean, however, that Ms Storey is not entitled to any compensation in relation to the 2013 financial year. Had TMC not repudiated Ms Storey’s employment contract, she would have remained employed for the entire five year term of the contract, with the last eighteen or so weeks being taken as maternity leave. During that time, Ms Storey would have become entitled to 4% of the profit TMC had earned for the year ended 30 June 2013.
Accordingly, Ms Storey is entitled to be paid $4,320, being 3% of the profit TMC earned for 2012, and damages of $1,555, being 4% of the profits TMC earned for the financial year ended 30 June 2013.
Cross-claim
In its amended cross claim, TMC claims the recovery from Ms Storey of two amounts. The first is $38,557.66. This represents what TMC claims are amounts TMC paid Ms Storey by mistake beyond the $100,000 salary Ms Storey and TMC agreed would be paid to Ms Storey. The second amount TMC seeks to recover is $9,849. TMC claims this represents the difference between the final pay TMC made to Ms Storey, namely $17,472, and the amount Ms Storey should legally have been paid, namely, $5,343.
Claimed mistaken overpayment of wages
TMC’s claim for mistaken payments is based on the evidence of Mr and Ms Muino. Mr Muino gave evidence that on 20 August 2014 he was requested by TMC’s solicitor to provide information regarding the wages TMC had paid to Ms Storey. As a result of that request, Mr Muino calculated the wages TMC had paid to Ms Storey. The calculations are set out in a spread sheet which is annexure “C” to Mr Muino’s affidavit of 16 October 2014. That spread sheet showed, among other things, the agreed gross wages Ms Storey and TMC agreed be paid to Ms Storey, less the 9% superannuation contribution, and the actual gross amounts TMC paid. Mr Muino deposed as follows:[209]
To date I am unable to exactly explain how the increases of pay to the applicant occurred. I am aware that the MYOB system requires a pay roll rollover and financial year rollover at the end of the financial year. This rollover also alters any changes in taxation scales. I have performed this rollover for the relevant years and can only assume that this has been performed mistakenly by me.
At no stage was it my intention to pay the applicant more or less than the agreed salary of $100,000 inclusive of superannuation. At no stage did I agree to the extra salary that has been paid to the applicant.
[209] J Muino affidavit 16.10.2014, [12], [13]
Ms Muino gave evidence that her usual policy in relation to pay increases was to require employees to put in writing any request for a pay increase. That enabled her to take the request to Mr Muino to discuss the request with him.[210]
[210] H Muino affidavit 16 October 2014, [4]
Ms Storey gave the following evidence. For the first 19 months of her employment as general manager, she received a gross weekly salary of $1,765 and a gross weekly superannuation contribution of $158.85. That translated to the $100,000 package on which Ms Storey and Ms Muino agreed in October 2008.[211] In the first pay period following 1 July 2010, Ms Storey’s gross weekly pay was increased to $1,823 and her weekly superannuation contribution was increased to $164.07 a week.[212] In the first pay period following 1 July 2011, Ms Storey’s gross weekly period increased to $1,913 and her weekly superannuation contribution increased to $172.17.[213] And in the first pay period after 1 July 2012, Ms Storey’s weekly gross pay increased to $1,950 and her weekly superannuation pay increased to $175.50.[214] Ms Storey also deposed that the increases were made without any prior notification, but after Ms Storey became aware of them she thanked Mr Muino.[215]
[211] M Storey affidavit 27.10.14, [6], [7]
[212] M Storey affidavit 27.10.14, [8]
[213] M Storey affidavit 27.10.14, [9]
[214] M Storey affidavit 27.10.14, [10]
[215] M Storey affidavit 27.10.14, [13], [14], [15]
I do not accept Mr Muino’s evidence. He was responsible for entering data into the MYOB system TMC used. The data he inputted included pay rises.[216] That is made clear in the evidence Mr Muino gave in answer to questions I asked of him:[217]
[216] 28.10.14 T21.5
[217] 28.10.14 T35.35-T36.45
HIS HONOUR: I have a few questions, subject to objections from counsel.
Mr Muino, I think you said that you’re the one who inputted annually the figures that were used to calculate salaries and wages?‑‑‑Correct.
And I think you said you had to call up a card file?‑‑‑Yes. Within MYOB, each employee has a card file.
And does the card file show the annual income, annual wage?‑‑‑It does, yes.
It does. And when you call that up, you would have to decide whether what the card file showed as the annual income would remain the annual income for the following period?‑‑‑Correct. Yes.
So when it came to Ms Storey, you undertook that process in relation to her every year?‑‑‑Yes.
And you would have observed, every time you did that, what her current salary was?‑‑‑Pretty much, yes.
You had to make a decision whether that remained the same or whether some different figure should be put in?‑‑‑Correct.
And some different figure was put in on more than one occasion?‑‑‑Correct.
And you say that that was a mistake on each occasion you did it?‑‑‑Well, because MYOB changed the tax table, or when we asked for MYOB to be upgraded, we get a new tax table. I then process the – the payroll to see what the actual final figure would be, and then I would round out the gross figure to reflect a round figure on her net.
But you would have been confronted with Ms Storey’s annual salary as at that time?‑‑‑Yes.
So you would have seen it was 100,000, for example?‑‑‑Correct.
And then you had the choice of it remaining at 100,000 or it going to 105,000, for example?‑‑‑Yes.
And on more than one occasion, it didn’t remain the same; it went to a higher figure?‑‑‑Correct.
And you say that was a mistake?‑‑‑I wasn’t referring back to the previous year. So when I actually entered the data, I was assuming it was correct.
Well, let me just go through that again. The first [thing] that you would do is call up an employee’s card file?‑‑‑Correct.
That would show that employee’s salary as at that time?‑‑‑That’s correct.
Then you had to make a decision whether, for the ensuing year, that salary would remain or would be different?‑‑‑That’s right.
So you made a positive decision, if it didn’t remain the same, for it to be something different?‑‑‑Correct. I would make adjustments.
And you did that on more than one occasion with Ms Storey?‑‑‑Yes.
And you say that that was a mistake on each occasion you did it?‑‑‑Yes.
Mr Muino also signed payment summaries of employees, including payment summaries that were issued in relation to Ms Storey.[218]
[218] 28.10.14 T21.25
On the basis of these matters alone, it is impossible to find that Mr Muino was unaware that TMC had increased Ms Storey’s salary. I do not accept Mr Muino increased Ms Storey’s salary as a result of any mistake. I also accept Ms Storey’s evidence that she had thanked Mr Muino for the pay increases as soon as she became aware of them. This part of the cross-claim, therefore, fails.
Overpaid termination payment
On 18 February 2013 TMC paid into Ms Storey’s bank account the sum of $17,472.[219] That was the sum of two amounts. The first was accrued annual leave of $2,280. The second was $15,192. That is the “net amount” specified in a “Payroll Advice” that was prepared at around the time TMC paid $17,472 to Ms Storey.[220] The $15,192 is the sum of three amounts. The first is $7,800. That represents four weeks gross pay. The second amount is $3,639, which is described as “PAYG Withholding”. The third amount is $3,753, and is described as “Sick Pay” for 76.97 hours. TMC submits that:
a)TMC ought not to have paid to Ms Storey the sick pay of $3,753, because it represented untaken sick pay;
b)TMC ought not to have paid to Ms Storey the $3,639, because any PAYG ought to have been retained by TMC; and
c)TMC should have withheld from the $7,800 PAYG tax of $2,457.
[219] J Muino affidavit 16.10.2014, annexure D, page 198
[220] J Muino affidavit 16.10.2014, annexure D, page 196
Accordingly, TMC submits it overpaid Ms Storey $9,849, being the sum of $3,753, $3,639, and $2,457.
Ms Storey does not submit she was legally entitled to the $9,849. Ms Storey submits there is no evidence of what Mr Muino thought when he made the payment; and there is, therefore, no evidence on the basis of which it could be found Mr Muino made a mistake.
It is true there is no direct evidence of what Mr Muino thought. That, however, is not necessary. TMC made the payment after Mr and Ms Muino terminated Ms Storey’s employment contract. It is impossible to find that, given the circumstances in which Mr and Ms Muino decided to terminate Ms Storey’s contract, Mr Muino intended to make a gift to Ms Storey of $9,849. The only rational explanation for TMC having paid to Ms Storey $9,849 more than TMC was legally obliged to pay is that Mr Muino mistakenly believed TMC was in fact legally obliged to pay to Ms Storey the $17,472. This conclusion brings the facts surrounding the overpayment of $9,849 within the principle stated by the plurality in David Securities Pty Limited v Commonwealth Bank:[221]
So, the payer will be entitled prima facie to recover moneys paid under a mistake if it appears that the moneys were paid by the payer in the mistaken belief that he or she was under a legal obligation to pay the moneys or that the payee was legally entitled to payment of the money. Such a mistake would be causative of the payment.
[221] (1992) 175 CLR 353 at page 378
Accordingly, this part of the cross-claim should be upheld.
Conclusions and disposition
My conclusions may be stated as follows:
a)TMC contravened s.340 of the FW Act on or about 29 January 2013 by requesting employees of TMC to put in writing complaints in relation to Ms Storey for reasons that included as a “substantial and operative factor”, or as an “operative or immediate reason”, Ms Storey’s sending the letter dated 28 January 2013.
b)TMC also contravened s.340 of the FW Act on 14 February 2013 by purporting to terminate Ms Storey’s employment contract for reasons that included as a “substantial and operative factor”, or as an “operative or immediate reason”, Ms Storey’s sending the letter dated 28 January 2013.
c)Mr and Ms Muino were each involved in TMC’s contraventions of s.340 of the FW Act and thus are taken to have also contravened s.340 of the FW Act in the manner in which TMC has contravened the FW Act.
d)TMC repudiated Ms Storey’s contract of employment by purporting to terminate the contract without cause before the expiry of the five year term of the contract.
e)As a consequence of TMC’s and Mr and Ms Muino’s contraventions of s.340 of the FW Act:
i)Ms Storey suffered economic loss in the form of loss of salary in the amount of $5,898.35 and her not receiving the profit share of $1,555 being the payment calculated by reference to TMC’s profits for the financial year ending 30 June 2013 that TMC would have become obliged to pay had TMC not repudiated Ms Storey’s employment contract; and
ii)Ms Storey suffered hurt, distress, and humiliation for which it is appropriate to award compensation in the amount of $10,000.
f)As a consequence of TMC’s repudiation of Ms Storey’s employment contract, Ms Storey suffered economic loss in the form of loss of salary in the amount of $5,898.35, and damages in the sum of $1,555, being the payment calculated by reference to TMC’s profits for the 2013 financial year that TMC would have become obliged to pay had TMC not repudiated Ms Storey’s employment contract.
g)TMC is liable under Ms Storey’s contract of employment to pay to Ms Storey $4,320 which represents 4% of the profits TMC made for the 2012 financial year.
h)On 18 February 2013 TMC mistakenly overpaid $9,849 to Ms Storey which TMC was not liable to pay to Ms Storey.
Thus, Ms Storey is entitled to:
a)an order for compensation under s.545(2)(b) of the FW Act in the amount of $17,453.35, which represents the sum of lost salary of $5,898.35, the $1,555 share of profits, and the $10,000 for hurt, distress, and humiliation; and
b)judgment in the amount of $11,773.35, being the sum of the $4,320 profit entitlement for the 2012 financial year that accrued before Ms Storey’s employment contract was terminated, and the loss of salary of $5,898.35 and the loss of profit entitlement of $1,555 that would have accrued under Ms Storey’s employment contract had TMC not repudiated her employment contract.
To avoid double recovery in relation to the loss of salary of $5,898.35 and the loss of the profit entitlement of $1,555, only one judgment for these two amounts may be entered. This may be achieved by deducting the $5,898.35 and the $1,555 from the judgment to which Ms Storey would otherwise be entitled on her contract claim. Thus, Ms Storey should be entitled to judgment on her contractual claims in the amount of $4,320.
Ms Storey is also entitled to interest on both the $17,453.35 compensation to which she is entitled, and on the $4,320. As to the amount of $17,453.35, the source of the Court’s power is s.547 of the FW Act which requires the Court to include an amount of interest in such sum as the Court orders be paid pursuant to s.545(2)(b) of the FW Act. As to the amount of $4,320, the source of the Court’s power is s.76(3) of the Federal Circuit Court of Australia Act 1999 (Cth). I propose to order that interest be calculated by applying to the sum of these two amounts, namely, $21,773.75, the rates prescribed by Practice Note CM16 issued by the Federal Court of Australia. Those rates of interest should be applied to the $21,773.75 from 14 February 2013. That interest is as follows:
Period
Interest Rate
Interest Amount
14 February 2013 – 30 June 2013 – 136 Days
7%
$567.91
1 July 2013 – 31 December 2013 – 184 days
6.75%
$740.90
1 January 2014 – 30 June 2014 – 181 days
6.5%
$701.83
1 July 2014 – 31 December 2014 – 184 days
6.5%
$713.46
1 January 2015 – 30 June 2015 – 181 days
6.5%
$701.83
1 July 2015 – 11 December 2014 – 164 days
6%
$587
$4,012.93
Ms Storey is, therefore, entitled to judgment in the amount of $25,786.68 in relation to her claims.
TMC is entitled to judgment of $9,849 together with interest. I propose that interest be calculated by applying to that amount the rates prescribed by Practice Note CM16 issued by the Federal Court of Australia from 18 February 2013 to 11 December 2015. That interest is as follows:
Period
Interest Rate
Interest Amount
18 February 2013 – 30 June 2013 – 132 Days
7%
$249.33
1 July 2013 – 31 December 2013 – 184 days
6.75%
$335.13
1 January 2014 – 30 June 2014 – 181 days
6.5%
$317.46
1 July 2014 – 31 December 2014 – 184 days
6.5%
$322.72
1 January 2015 – 30 June 2015 – 181 days
6.5%
$317.46
1 July 2015 – 11 December 2014 – 164 days
6%
$265.52
$1,807.62
TMC, therefore, is entitled to judgment for $11,656.62.
It would be in the interests of justice that I exercise the power conferred by r.28.09 of the Federal Circuit Court Rules 2001 (Cth) to give judgment in favour of Ms Storey for the difference between $25,786.68 and $11,656.62. That will result in my ordering the entry of judgment in the amount of $14,130.06 in favour of Ms Storey. I propose, therefore, to order that judgment be entered in favour of Ms Storey against the respondents in the sum of $14,130.06. I will grant the parties liberty to apply for an order for costs. I will also set the matter down on a date to be fixed for the purpose of hearing submissions on penalties.
I certify that the preceding one hundred and ninety-nine (199) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 11 December 2015
Key Legal Topics
Areas of Law
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Employment Law
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Contract Law
Legal Concepts
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Breach
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Intention
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Remedies
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Statutory Construction
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