Tran v Macquarie University (No.2)
[2019] FCCA 2049
•31 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TRAN v MACQUARIE UNIVERSITY (No.2) | [2019] FCCA 2049 |
| Catchwords: INDUSTRIAL LAW – Contravention of s 340 Fair Work Act 2009 – applicant exercised a work place right – complaints – redundancy – contravention of s 50 Fair Work Act – failing to redeploy in accordance with Enterprise Agreement – failure to rebut presumption in s 361 Fair Work Act. |
| Legislation: Fair Work Act 2009 (Cth), ss.40, 50, 76, 340, 341, 342, 360, 361, 545, 546, 547 |
| Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 |
| Applicant: | HEIN MINH THI TRAN |
| First Respondent: | MACQUARIE UNIVERSTITY |
| File Number: | SYG 3084 of 2017 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 1 - 4, 9 July 2019 |
| Date of Last Submission: | 9 July 2019 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Doust |
| Solicitors for the Applicant: | Mr Forsyth, Hall Payne Lawyers |
| Counsel for the Respondents: | Mr Brotherson |
| Solicitors for the Respondents: | Ms Zadel, HWL Ebsworth Lawyers |
ORDERS
A declaration that the respondent has contravened s 340 of the Fair Work Act 2009 by dismissing the applicant because of, or because she exercised, her workplace right(s).
A declaration that the respondent has contravened s 340 of the Fair Work Act 2009 by refusing to redeploy the applicant to a positon for which she had the necessary skills causing injury in her employment.
A declaration that the respondent contravened s 50 of the Fair Work Act by contravening clause 6.2.8 of the Macquarie University Professional Staff Enterprise Agreement 2015.
A declaration that the respondent contravened s 50 of the Fair Work Act 2009 by contravening clause 6.2.9 of the Macquarie University Professional Staff Enterprise Agreement 2015.
The matter will be listed for further submissions as to the appropriate orders that should be made in light of the above declarations, including orders for reinstatement and penalties.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 3084 of 2017
| HEIN MINH THI TRAN |
Applicant
And
| MACQUARIE UNIVERSTITY |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by Ms Hein Minh Thi Tran (“Ms Tran”) seeking relief under relevant provisions of the Fair Work Act 2009 (“FW Act”), following the termination of Ms Tran’s employment from Macquarie University (“the University”) as a System Accountant Level HEW8 on 19 June 2017. The stated reason for the termination of Ms Tran’s employment was that of redundancy.
The applicant sought the following final orders in her application to the Court.
1. A declaration that the respondent has contravened s. 340 of the FW Act by dismissing the applicant because of, or because she exercised, her workplace right(s).
2. Further and/or in the alternative, a declaration that the respondent has contravened s. 340 of the FW Act by refusing to redeploy the applicant to a position for which she had the necessary experience and skills causing her injury in her employment.
3. A declaration that the respondent has contravened s. 50 of the FW Act by contravening clause 6.2.8 of the Macquarie University Professional Staff Enterprise Agreement 2015.
4. A declaration that the respondent has contravened s. 50 of the FW Act by contravening clause 6.2.9 of the Macquarie University Professional Staff Enterprise Agreement 2015.
5. An order pursuant to s. 545 of the FW Act for the reinstatement of the applicant to her position with the respondent.
6. An order pursuant to s. 545 of the FW Act awarding compensation to the applicant for the loss and damage suffered because of the respondent’s contraventions of s.50 and/or s. 340 of the FW Act.
7. An order pursuant to s 547 of the FW Act, and, or in the alternative, s 76 of the Federal Circuit Court Act 1999, that the respondent pay interest at the rate of 6.75% calculated on a simple basis on the amounts of compensation ordered by the Court.
8. An order pursuant to s. 546 of the FW Act that penalties be imposed upon the respondent for its contravention of s. 340 of the FW Act.
9. An order pursuant to s. 546 of the FW Act for any penalties imposed be paid to the applicant.
10. An order that the applicant have liberty to apply on 7 days’ notice in the event that any of the preceding orders are not complied with.
11. Such further or other orders as to the Court seem appropriate.
The applicant challenged the genuineness of the state of reasoning of her termination. The applicant submitted that her employment was terminated as she exercised her work place rights by complaining about her treatment by her supervisors and others. The applicant also submitted that in proceeding to give effect to her termination, the University failed to comply with their obligations under the Macquarie University Staff Enterprise Agreement 2015 in relation to its obligations to take genuine steps to redeploy the applicant to other suitable positions.
The matter was heard over five days with evidence given during the period 1 - 4 July 2019. Counsel’s submissions took a further day on 9 July 2019. Documentary evidence in the matter was voluminous. Oral evidence was called from Ms Tran as the applicant. For the respondent, Mr David Lovelace (“Mr Lovelace”) Director of Planning and Performance and Ms Nicole Gower (“Ms Gower”) Director of Human Resources at the University were called as well as Ms Janice McLeay (“Ms McLeay”), an Independent Dispute Management Specialist.
Fair Work Act 2009
Part 3(1) Division 3 of the FW Act sets out various work place rights for employees. Section 340 provides as follows:
(1) A person must not take adverse action against another person:
a) because the other person:
i. has a workplace right; or
ii. has, or has not, exercised a workplace right; or
iii. proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1)
S 341 relevantly defines a work place right to include:
(1) A person has a workplace right if the person:
…
(c) is able to make a complaint or inquiry:
…
(ii) if the person is an employee--in relation to his or her employment.S 342 relevantly sets out the meaning of adverse action. This includes:
1. Adverse action is taken by an employer against an employee if the employer:
a) dismisses the employee or…
c) alters the position of the employee to the employees prejudice.
The definition of s 341(c)(ii) of the FW Act is one that might be satisfied by an employee making a complaint to their employer as per Murrihy v Betezy.com.au Pty ltd (2013) 238 IR 307 at [351], paragraph 141. There must be a relevant connection between the complaint and the employee’s employment, albeit it may be an indirect one as per Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No. 3) [2012] FCA 697 at paragraphs [61] – [64].
Where an applicant alleges a contravention of s 340 of the FW Act, to be established, they bear no burden of proving the reasons for the adverse action. Section 361 of the FW Act provides as follows:
Reason for action to be presumed unless proved otherwise
(1) If:
(a) In an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
It is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
This must, however, be read in conjunction with s 360 of the FW Act which states as follows:
Multiple Reasons for Action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Thus although under s 360 of the FW Act, the prohibited reason need only be one of multiple reasons for acting, in order to be a contravention, the prohibited reasons must be “substantial or operative factor” in influencing the adverse action, all or alternatively, an operative or immediate reason for acting – Board ofBendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (“Board of Bendigo”) at paragraphs [62] per French CJ and Crennan J, [104] per Gummow and Hayne JJ, [140] per Heydon J.
This requires that the Court, at a minimum, conduct an enquiry to the state of mind of the decision maker. Where multiple people are involved in the decision making process, such an enquiry may involve taking into account all these decision maker’s reasons – Construction Forestry Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014 per Reeves J at paragraphs [103]- [104].
See Board of Bendigo at paragraph [45] per French CJ and Crennan J:
Generally it will be extremely difficult to displace the statutory presumptions in s 361 if no direct testimony is given by the decision maker acting on behalf of the employer.
The Enterprise Agreement
The applicant’s employment with Macquarie University was governed by a 31 December 2010 to 4 June 2015 Macquarie University Enterprise Agreement 2010 (“2010 Agreement”).
The termination of the applicant’s employment on 5 June 2015, was governed by the Macquarie University Professional Staff Enterprise Agreement 2015 (“2015 Agreement”). The following clauses are relevant to the matter before the Court.
a)Clause 4.2.1 in both the 2010 Agreement and the 2015 Agreement, which provided hours of work and associated conditions:
4.2.1 The ordinary hours of duty for full time staff members are 70 per fortnight (excludes meal breaks and inclusive of Saturday and Sunday). Ordinary hours for part-time Staff Members will be their contracted hours per fortnight (inclusive of weekends). The maximum ordinary hours of work are eight hours per day. However, up to ten hours may be worked by mutual agreement between the Staff Member and their Supervisor. A Staff Member will be entitled to four non-working days each fortnightly cycle. Staff Member’s workloads must be equitable, transparent and realistic between the seventy hour fortnight.
b)Clause 4.2.5 in both the 2010 Agreement and 2015 Agreement provided overtime payable as follows:
4.2.5 – The University may require full time Staff Members to work reasonable additional hours (overtime) in excess of their ordinary hours of work each fortnight. Hours in excess of ordinary hours on any day or over the fortnight will be paid at overtime rates.
c)Clause 4.2.8 in both 2010 Agreement and 2015 Agreement provided:
4.2.8 A full time Staff Member whose salary does not exceed the maximum rate of salary for HEW level 8 will be paid overtime as follows:
a) All over time work between Monday and 12 noon Saturday will be paid at one and half times the ordinary rate of pay for the first two hours and double the ordinary rate thereafter;
b) Overtime worked on Saturday after 12 noon will be paid at double the ordinary rate of pay;
c) Overtime work between midnight Saturday and midnight Sunday will be paid at double the ordinary rate of pay with a minimum payment of four hours. Where overtime is performed for essential work of feeding and watering animals etc., the minimum payment will be three hours. Minimum payments do not apply where over time worked on Sunday follows ordinary hours worked on a Sunday; and
d) Overtime worked on a public holiday will be paid at the rate of two and half times the ordinary rate of pay with a minimum payment of 4 hours. Where overtime is performed for essential work of feeding and water animals etc., the minimum payment will be three hours.
Clause 6.2 of the 2015 Agreement provided as follows:
Voluntary Redundancy
6.2.1 Where, as a consequence of the managing change process (clause 4.13), it has been determined to make a specific position redundant, the University will provide six months’ notice of retrenchment and associated redeployment period to the Staff Member (Notice Period).
6.2.3 Staff Members will have six weeks from the date of the invitation to submit an application for voluntary redundancy to the University... The University may reject any applications for voluntary redundancy where it considers that the position is necessary to its ongoing operations.
Redundancy, Redeployment and Retrenchment
6.2.8 The University will take all reasonable steps during the notice period to identify positions to which the Staff Member may be redeployed including giving priority consideration to the placement of Staff Members seeking redeployment. Priority consideration includes a right to interview for any position that the Staff Member identifies as a potential redeployment opportunity.
6.2.9 Where the University identifies a position that may be suitable, it will:
(a) review the skills needed to perform the essential requirements of the position;
(b) assess if the Staff Member has the necessary skills and relevant experience or is able to be retrained to perform in the position;
(c) where it is assessed that the Staff Member is able to be retrained, provide such training as is necessary; and
(d) offer to redeploy accordingly.
6.2.10 The Staff Member will not refuse a reasonable offer of redeployment or training and may only be redeployed to a lower classified position by agreement.
6.2.11 Where a Staff Member is redeployed to a lower classified position, the Staff Member will receive maintenance of salary payments from the date of transfer for a period of 12 months. The salary maintenance will not include payment of Allowances that were particular to the previous position and not relevant to the new position.
6.2.12 Where appropriate, the University will consider a substitution process (‘job swap’) to allow an exchange of positions between an affected Staff Member and another continuing employee who has indicated they may accept a voluntary redundancy. This process will be managed on a case by case basis and must be approved by the Director, Human Resources or Manager, Employee Relations.
6.2.13 A Staff Member will be allowed up to one day's time off without loss of pay for each week of notice to attend necessary employment interviews. The Staff Member, at the request of the University, will be required to provide proof of attendance at an interview or payment will not be made for the time absent.
6.2.14 If at the end of the relevant notice period the University has been unable to redeploy the Staff Member then, as a last resort, the Staff Member's employment will be terminated and the retrenchment benefit paid.
Section 50 of the FW Act obliges employees to abide by the terms of Enterprise Agreements that they are a party to. Section 50 of the FW Act relevantly provides as follows:
Contravening an enterprise agreement
A person must not contravene a term of an enterprise agreement.
Note 1: This section is a civil remedy provision (see Part 4-1).
Note 2: A person does not contravene a term of an enterprise agreement unless the agreement applies to the person: see section subsection 51(1).
As for the term “civil penalty provision”, the Court is empowered by s 546 of the FW Act to order a person to pay a pecuniary penalty if it is satisfied a person has contravened the provision. The principles for the interpretation of an enterprise bargaining clause or industrial agreement were set out by Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182, 184.
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon … But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.
In relation to job security provision, which is relevant here, the following clause was considered in National Tertiary Education Union v La Trobe University (2015) 254 IR 238 per Jessup Bromberg & White JJ:
The University is committed to job security. Wherever possible redundancies are to be avoided and compulsory retrenchment used as a last resort. The University reserves the right to use the agreed redundancy procedures and provisions set out in this Agreement when all reasonable attempts to mitigate against such action and to avoid job loss have been unsuccessful.
It was submitted by the applicant’s counsel that the majority (Bromberg at 258 to 259 [71]-[77] and White JJ at 264 [110] and 265 [117]) concluded that the terms of the clause were not merely hortatory or aspirational but had work to do.
The Facts
The applicant, Ms Tran, commenced employment with Macquarie University as a Systems Accountant on 25 September 2007, on a fixed-term three year contract. On 25 September 2009, Ms Tran was offered and accepted permanent employment in the same role on a full-time continuing basis in a HEW Level 8 grading.
Ms Tran worked within the office of Financial Services Systems Team which consisted of nine employees. Ms Tran had one employee reporting to her in a HEW Level 6 grading. Ms Tran reported to Ms Eswari Chellappah (“Ms Chellappah”), the Systems Manager. Ms Chellappah in turn reported to the Deputy Chief Financial Officer, Mr Robert Tongue (“Mr Tongue”), until his retirement in February 2015. Ms Chellappah thereafter reported to Mr Lovelace, who was recruited to a new position of Director of Planning and Performance. Mr Lovelace commenced work with the University in early 2015. Mr Lovelace was responsible for approximately 25 staff members embedded within the various university faculties; 3 staff members undertaking forecasting strategy modelling duties and the Systems Team, totalling approximately 37 staff at any one time.
The Systems Team was responsible for the effective administration, development, maintenance and employment of the University core financial management systems, financial aspects of “Student One” and user experience.
In about 2010, Ms Tran lodged a grievance against Ms Chellappah concerning her workload and Ms Chellappah’s management of the HEW Level 6 role that reported to Ms Tran. The grievance was mediated. The outcome was that Ms Tran continued to start her working day at 8am, usually finishing at 3.45pm but staying back till 5pm for a maximum of two days per week. Further, Ms Chellappah was not to load Ms Tran with HEW Level 6 tasks. Ms Tran was to be allowed to manage the work load of her Level 6 report.
In August 2014, Mr Tongue announced his retirement with effect at the end of 2014. In October 2014, Ms Chellappah emailed Ms Tran asking that she consider changing her work hours from those previously agreed to in 2010 to 8.45am till 5pm daily. In her email, Ms Chellappah stated that the current arrangements from 8am till 3.45pm were not suitable. No reasons were given as to why Ms Tran’s hours of work were no longer suitable. I note that no evidence was called from Ms Chellappah by the respondent in relation to this or any other issue in the proceedings.
Ms Tran identified that meal breaks under Clause 4.2.17 of the 2010 Agreement, were limited to between 30 minutes minimum and one hour maximum. Ms Chellappah’s request required her to work an additional 45 minutes per day above the required 7 hours per day as set out in the 2010 Agreement. Ms Tran alleges she asked Ms Chellappah if she would be paid overtime for the additional time worked or be given time off in lieu and Ms Chellappah answered “No”.
On 14 November 2014, Ms Tran states she complained to Ms Maria-Rigas Gotts (“Ms Gotts”) a Human Resources advisor within the University. Ms Gotts instructed her via email to work from 8am to 4.20pm, which if a 30 minute lunch break were taken, would require Ms Tran to work an additional 20 minutes of unpaid work per day over the normal 7 hours required under the 2010 Agreement. The applicant continued to complain to Ms Gotts and Ms Chellappah about the directions as to her hours of work.
On 13 January 2015, Ms Tran was provided with a letter from Ms Chellappah directing her to work from March 2015 from 9am to 5pm. This direction was endorsed by Mr John Gorman (“Mr Gorman”), the University’s Chief Financial Officer by letter dated 14 January 2015. I also note that Mr Gorman has not been called to provide any evidence in relation to this or any other matter on behalf of the University.
Ms Tran then complained to her union, the National Tertiary Education Union (“NTEU”). After negotiations on her behalf by the NTEU, Ms Tran was advised of the option of working either 9am till 4.30pm with a 30 minute lunch break or from 8.30pm till 4.30pm with a one hour lunch break. Ms Tran alleges that Ms Chellappah then instructed her to work from 8.30am to 4.30pm with effect on 16 March 2015.
Ms Tran alleges that following the resignation of Mr Pramod Hewakopara (“Mr Hewakopara”), a HEW Level 8 staff member, who reported directly to Ms Chellappah, Ms Tran was assigned part of his work and that these tasks were out of mid cycle to her performance development reports.
Ms Tran alleges that in late 2015 she was directed by Ms Chellappah to perform the work of a HEW Level 6 person who reported to her and to teach an external contractor, Mr Talha Syed (“Mr Syed”), how to perform his duties.
On 7 May 2015 Ms Tran had a meeting with Mr Lovelace. Ms Tran alleges she raised her concerns about her treatment at the hands of Ms Chellappah. Mr Lovelace allegedly informed Ms Chellappah about the meeting subsequently. Mr Lovelace’s notes of the meeting (Exhibit P) include the following:
Eswari (Ms Chellappah) controlling of what she does.
She is bullied by Eswari.
A further meeting took place between Mr Lovelace and Ms Tran on 17 June 2015. Ms Tran alleges she again complained to Mr Lovelace about Ms Chellappah’s conduct, her daily hours and whether Mr Lovelace would consider flexible working hours. Ms Tran took carers leave in July 2015.
On 14 August 2015, Ms Tran made further complaints to Mr Lovelace via email and sought a further meeting. Mr Lovelace replied that he was not available for regular meetings with Ms Tran but could meet with her regarding specific issues.
A meeting between Ms Tran and Mr Lovelace took place on 1 September 2015. Ms Tran alleges she sought specific assistance in creating a plan for her performance development. During the meeting, Ms Tran acknowledges Mr Lovelace raised a number of issues in respect of Ms Tran’s performance. Ms Tran alleges she asked him to put those concerns in writing. Ms Tran also alleges she told Mr Lovelace words to the effect of:
You have been misinformed by Eswari about me…if you only listen to her, how will you know the truth.
Mr Lovelace declined to put in writing his concerns. On 1 September 2015, Ms Tran requested a meeting with Ms Min-Ha Choo (“Ms Choo”), a Human Resources Manager within the University, to discuss her concerns about the conduct of Ms Chellappah, including bullying. Following that meeting, Ms Tran alleges she did not receive any follow up from Ms Choo.
On 2 November 2015, Ms Chellappah sent an email to Mr Lovelace (Exhibit 4). In the email Ms Chellappah sought approval to increase the hourly rate paid to Mr Syed from $40 to $46 per hour. Additionally, Ms Chellappah complained to Mr Lovelace that he had sought suggestions from Mr Syed about how Ms Chellappah’s team could be improved. Ms Chellappah suggested if he was not satisfied with the way she was managing her team then “he should openly discuss this with me”. Ms Chellappah then went on to say:
As you are aware Hein (Ms Tran) and Fouzia (“Ms Zia”) are difficult individuals and are poisonous to a team environment. I advised you some time back in the presence of Min-Ha that I am concerned if Hein would physically harm me. The university has known about Hein’s behaviour for a while and has not acted upon it. Hein has taken me to the union twice and has approached HR a number of times to make complaints that are unfounded.
Fouzia has had conflicts with a Student One team and HR were advised of this and suggested conflict resolution. I have been at the receiving end of Fouzia’s behaviour when Fouzia was reporting directly to me.
Mr Lovelace’s response was simply as follows:
“Eswari
$46 per hour is approved as discussed.”
On 15 November 2015, Ms Tran met with Mr Lovelace. Ms Tran complained that since Mr Mak, a contractor who had replaced Mr Hewakopara, had left the University in October 2015, Ms Chellappah had allocated his unfinished work to her. Ms Tran stated that she was doing the work of another Level 8 employee as well as her own.
Ms Tran alleges that Mr Lovelace said words to the effect:
“In one of my past roles I did not like my manager and so I left the company.”
Ms Tran alleges Mr Lovelace later said words to the effect of:
“If you’re not happy with Eswari, you should leave the university. You will hate me and Eswari but that’s life.”
In March 2016, Mr Zoltan Szentirmay (“Mr Szentirmay”) commenced with the University as a contract employee in the systems team under Ms Chellappah’s supervision. On 15 July 2016, Ms Tran emailed Mr Lovelace raising a concern that Mr Szentirmay had copied or plagiarised her work.
On 2 August 2016, Ms Chellappah told Ms Tran that Mr Lovelace had informed her of a complaint about Mr Szentirmay.
On 9 August 2016, Mr Lovelace emailed Ms Tran advising her that she should raise her complaints about Mr Szentirmay with Ms Chellappah and that he was supportive of sharing work. On 11 August 2016, Ms Tran emailed Ms Choo again to discuss her complaint about Mr Szentirmay.
On 6 October 2016, Mr Lovelace released a proposed change paper to all effective staff within the Systems Team under Ms Chellappah. The change paper proposed to disestablish Ms Tran’s position. The change paper also proposed to disestablish a position within the Student One group, potentially affecting Ms Zia.
On 7 October 2016, Ms Tran arrived at work and found that her access to the University’s computer servers, excluding email and personal folders, had been blocked including access to all financial production servers. Ms Tran alleges this action was profoundly humiliating and prevented her from undertaking her normal duties. Ms Tran alleges no one informed her that these changes were being made.
On 14 October 2016, Ms Tran emailed Ms Choo requesting that a series of issues be formally investigated into the University conduct and certain staff members conduct against her.
On 18 October 2016, Ms Tran’s IT access was increased following representations from the NTEU but not to the level prior to the issue of the change paper.
On 21 October 2016, Ms Choo advised Ms Tran her complaints were being referred back to Mr Lovelace for investigation. On 26 October 2016, a meeting took place between Ms Tran, Mr Lovelace, Ms Choo and Mr Rob Davis from the NTEU. Ms Tran alleges she again raised the issue of her working hours and requested greater flexibility. On 23 November 2016, Mr Lovelace wrote to Ms Tran advising her working hours would not change from those previously agreed to.
On 6 February 2017, Ms Chellappah emailed Ms Tran requesting her to “update wiki with targets advised by end of tomorrow”. The following morning, Ms Tran advised Ms Chellappah she was unable to comply with her request as her access to Wiki had been removed along with the other access that she had previously complained about. In the interim, on 18 October 2016, the NTEU wrote to Ms Spartalis complaining about Ms Tran’s removal of access to the IT system and alleging she had been targeted in the proposed restructure due to her complaints about workplace issues.
On 19 October 2016, Ms Tran wrote to Mr Lovelace objecting the genuineness of her redundancy and providing comments on the proposed restructure pointing out, in her view, that it contained an insufficient basis to justify the disestablishment of her position.
On 4 November 2016, Mr Lovelace issued a letter advising that following feedback relating to the purposed restructure, Ms Tran’s position as Systems Accountant would be disestablished as he was in the view that the role could be redistributed to the Finance Systems Operation Manager, Business Systems Analyst and Administrator and System Support Officers as appropriate.
On 28 November 2016, Ms Tran applied for the positions of Finance Systems Operations Manager and Business System Analyst and Administrator, being the new positions established in the restructure.
On 13 December 2016, Ms Tran attended an interview for the two new positions that she had applied for. The interview panel consisted of Mr Lovelace, Miss Dale Griffin (“Ms Griffin”) - Student Systems Manager, Mr Greg Robinson (“Mr Robinson”) - Associate Director of IT Applications and HR Consultant Miss Samantha Rego. Ms Tran was advised that the interview process wold take one hour and that she would have 30 minutes in relation to each position.
Ms Tran alleges that during the interview she produced written documentation which showed a table summarising her experience against the key accountabilities of both positions. Ms Tran alleges that as she attempted to pass that information to Mr Robinson, Mr Lovelace said words to the effect of “we do not have time for that, you have three minutes to answer the question”. Ms Tran alleges that she gave detailed answers to the key accountabilities of the two new proposed positions by reference to her existing experience as set out in the documents that she provided.
Ms Tran also alleges that it was clear during the interview that the only person with any particular knowledge of financial systems was Mr Lovelace. Ms Tran alleges that Mr Robinson said words to her when she outlined her experience in relation to the Financial Systems Operation Manager, Mr Robinson said:
“You work for Eswari you cannot have that experience”.
Ms Tran alleges that she responded it is true that she worked for Eswari but that Eswari was not capable of managing the entire system by herself and that as a result, she undertook various changes by herself. Ms Tran alleges that she brought some samples of her work with her prior to the University and asked to show them to the committee and Mr Lovelace replied:
“Stop, it is not necessary we are short of time”.
Ms Tran alleges that she produced further documentation and asked if she could explain it to the committee and Mr Lovelace replied:
“We are short of time, we need to stop here”.
At the end of the interview process, Ms Tran alleges that Mr Robinson asked “do you have any questions” Ms Tran alleges she said: “What is the next step? Mr Robinson said word to the effect that:
It’s up to Dave to make a decision.
On 19 December 2019, Ms Tran attended a meeting with Mr Lovelace, Mrs Leonie Verzeletti and Mr Rob Davies, who was her support person. At the meeting Ms Tran alleges Mr Lovelace said words to the effect that she did not have the “practical experience” to be considered for the new Level 8 and Level 9 positions. Ms Tran alleges that she asked Mr Lovelace to put the reasons in writing why he did not appoint her to one of the newly created positions and was advised by Ms Verzeletti that there was no requirement for the University to put reasons in writing.
On 21 December 2016, Ms Tran sent an email to Ms Gower, the University’s HR Director, requesting a formal review of the University’s determination to make her position redundant in accordance with clause 6.2.21 of the 2015 Agreement.
On 10 February 2017, Ms Tran attend a meeting with Ms McLeay, the appointed redundancy reviewer, Mr Lovelace and Mr Sean O’Brien of the NTEU to discuss the review. During the course of the meeting, Ms Tran alleges that she indicated that she had been unfairly chosen for redundancy because of her fractured working relationship with Ms Chellappah, that the University did not explore all options open to her to avert the proposed redundancy and that the University had an obligation under 6.2.12 of the 2015 Agreement to consider, where appropriate, a job swap between affected staff. Ms Tran alleges that this option had never considered.
On 14 February 2017, Ms McLeay provided her report to the university
On 20 February 2017, Ms Tran alleges that Mr O’Brien and Mr Daly from the NTEU requested that the University consider “a job swap” in accordance with 6.2.12 of the 2015 Agreement. On 20 February 2017, Mr Nick Crowley, Deputy Director Human Resources, refused this request.
On 22 February 2017, Mr Lovelace sent an email to everyone in the Office of Finance that the Level 9 position, Finance Systems Operation Manager, was advertised on the University website. Ms Tran alleges that unlike that position, the Business System Analyst and Administrator role was never advertised on the University website during her redeployment period. Ms Tran alleges to the best of her knowledge, it was only advertised after her employment terminated when West Recruitment commenced advertising her role in August 2017.
On 3 March 2017, the applicant met with Ms Melissa Mesiti, a HR Consultant with the University, and was advised by Ms Mesiti that she had:
Checked with Nick Crowley and he said that you will not be considered for the two positions because you have already been interviewed and rejected.
On 23 March 2017, Ms Mesiti emailed the applicant about some administrator positions (Level 6 positions which were lower than the current grade of the applicant) and Departmental Manager positions (Level 8 positions) and asked Ms Tran if she would like to express an interest. Ms Tran states as she had no experience in managing a department, she could not express interest in those potions.
On the evening of 27 April 2017, the applicant consulted her general practitioner who advised her to see a psychologist. Ms Tran advises that she was told to take time off work. The 27 April 2017, was her last working day at the University.
In May 2017, while Ms Tran was on sick leave, the University advertised the following two positons on their website; Faculty Finance Manager, Human Sciences (Level 9 positon); Learning Technology Systems and Support Coordinator (Level 8 position). Ms Tran alleges she had all the required qualifications and experience to be considered for one of those roles but was not informed of those positons by any one from the University.
Ms Tran alleges that at a meeting on 14 June 2017, she requested to be interviewed for those roles consistent with her right to priority consideration under clause 6.2.12 of the 2015 Agreement. Ms Tran alleges that the request was denied by the University’s Deputy Human Resources Director, Mr Crowley.
Ms Tran alleges that during the period of August through to December of 2017, she applied for a number of positions within the University through private recruitment agencies. All of these were Systems Accountant positions. Ms Tran alleges that when she was asked why she had left the University, she indicated she was made redundant. Ms Tran’s applications for those positions did not progress further than her expressing an interest with the recruitment agencies.
The Evidence at Trial
The Applicant’s Case
The only witness called in the applicant’s case was the applicant herself. Ms Tran was cross examined for approximately 1.5 days.
The applicant came to Australia in 1975 as a 17 year old Vietnamese refugee. Since then, Ms Tran has amassed a series of tertiary qualifications including engineering, teaching and accounting. Ms Tran impressed as a person who has a superior grasp of English in the written form and is capable of producing high quality documents as evidenced in some of the materials presented to the Court by way of exhibits.
What was clear however, was that Ms Tran did not have the same mastery of English in the oral form as she did in the written form. Ms Tran’s answers to questions under cross examination tended to be very long-winded and included detail that was unnecessary to answer the questions. On many occasions Ms Tran had to be directed to answer the question that was put to her and not provide irrelevant and unnecessary detail.
Ms Tran’s answers to a number of questions indicated there was considerable antipathy towards Ms Chellappah, who she saw was a bully and someone who had taken advantage of her in terms of allocating her additional work and asking her to train others in her role. It was put to Ms Tran that she reacted badly when told her performance was not up to standard. Ms Tran replied that she was a very calm person but did acknowledge that she was a nervous person.
Ms Tran recounted an incident where she said in a previous job she had been harassed by a male colleague who was intoxicated. Ms Tran said that she liked to leave work early so that she could be home before dark. Ms Tran agreed that her first dispute with Ms Chellappah had been in 2010, in regards to her hours of work. This had been mediated and an acceptable arrangement had been agreed to. Ms Tran agreed however, that under the enterprise bargain, her hours of work were flexible and needed to be agreed with her supervisor.
When it was put to Ms Tran that she would not accept negative feedback, her response was that she was always willing to accept negative feedback and that she would not be in the position that she was, with the qualifications that she had, if she was not prepared to accept feedback to improve her performance.
Ms Tran’s account of Ms Chellappah’s request for her to alter her working hours, after Mr Tongue announced his retirement, indicates on her part, that she felt that this was an attempt by Ms Chellappah to undo an agreement Ms Chellappah was not happy with. Ms Tran suggested that there was nothing that she was required to do in the afternoon from 4.00pm - 4.30pm that could not be done in the morning when she came in at 8.00am rather than coming in at 8.30am.
Ms Tran agreed that Mr Lovelace was always calm when he spoke to her and never raised his voice. It was put to Ms Tran that she had an inflated view of her own performance when she indicated she was a “super performer”. Ms Tran suggested that this was in response to her performance in 2015 when she was taking on additional work and extra roles.
In relation to the restructure proposal, Ms Tran agreed with the proposition that nothing would convince her that the proposal was right. However, Ms Tran was prepared to accept that people may have different views on the correct structure. Ms Tran remained convinced that the restructure was designed to push her out of the University, but was unable to give a reason why that would be the case. Ms Tran was asked if she ever became angry and her response was that she was a very calm person.
Notwithstanding the extended cross examination, Ms Tran gave the impression of being a person who focuses on detail and has a very good recall of events. Whilst Ms Tran’s evidence tended to be long winded, and went into excessive detail, she was not shaken during an extended cross examination as to the essentials of her claim, that being that she was restructured out of the University because she had made complaints against Ms Chellappah.
The Defence Case
Three witnesses were called on behalf of the University being Mr Lovelace, Ms McLeay, who conducted the review of the restructure proposal, together with Ms Gower, who now holds the position of Vice President of Human Resources within the university.
It is significant that Ms Chellappah was not called on behalf of the University to rebut the presumption that actions taken against Ms Tran were for a prohibited reason. The Court was told that Ms Chellappah had subsequently left the University following a subsequent restructure and the breaking up of the Systems Team into various other areas within the University. It was not suggested to the Court that Ms Chellappah was unavailable for other reasons.
Other witnesses who were in the Executive Management Group, who ultimately approved the restructure, were also not called. No member of the panel who interviewed Ms Tran following her expression of interest for the newly created positions within the Systems Team were called. No explanation was offered as to why these potential witnesses were not available.
Mr Crowley was also not called to rebut the allegation that Ms Tran was denied an interview for the positions of Faculty Finance Manager, Human Services (Level 9 position) and Learning Technologies Systems and Support Coordinator (level 8 position). No explanation was given for his unavailability.
Ms McLeay’s evidence was simply that she carried out a review of the restructure proposal and found that it complied with the necessary requirements. Ms McLeay’s evidence was admitted on the basis that it was evidence of compliance with the procedural requirement under the University 2015 Agreement.
Ms Gower’s evidence was very short. Ms Gower confirmed that there was a body called the Executive Group which included the Vice Chancellor, the Deputy Chancellor, the Chief Operating Officer, the Chief Financial Officer and the Director of Human Resources and the Executive Dean. Ms Gower agreed that the University Registrar of Delegations included that it was the Executive Group and members of it, who were responsible for the ultimate approval of the establishment and disestablishment of positions. Whilst Mr Lovelace may have been the author/ or the originator of the restructure proposal, it ultimately required the approval and was “run by” the Executive Group.
Mr Lovelace was cross examined also for approximately 1.5 days. Mr Lovelace agreed that as a result of the restructure there were two employees who were made redundant being the applicant, Ms Tran and Ms Zia. Mr Lovelace reiterated that he was solely responsible for the development for the workplace change proposal.
During what was a long cross examination, Mr Lovelace remained calm and composed in his evidence. On a number of occasions, materials were put to Mr Lovelace which was seemingly in contradiction to the evidence contained within his affidavit. For example, in the 7 May 2015 meeting, the notes Mr Lovelace made (Exhibit P) included the notes as follows:
Hein one on one
Last Monday Eswari very controlling at what she does – agreed on PDR but has concerns – she is bullied by Eswari.
Mr Lovelace’s account of the meeting in his affidavit as set out in paragraphs 46 - 55, was suggested by Counsel for the applicant, impossible to reconcile with the note that he made in Exhibit P. It was suggested that in his affidavit, Mr Lovelace was attempting to minimise the seriousness of the issues raised by the Ms Tran in the meeting.
It was suggested in submissions by Counsel for Ms Tran that Mr Lovelace’s denials that Ms Tran had raised serious issues of bullying in relation to Ms Chellappah at that meeting were inconsistent and the Court would be persuaded that his evidence was not accurate and truthful. This then affected the creditability of Mr Lovelace’s other evidence.
During the course of his evidence, Mr Lovelace was very firm in his view that when he was involved in meetings with members of staff, he did not take action items away from those meetings for him to attend to:
So generally speaking I would not accept an action point from someone of my team coming out of a meeting.
The Court was left with the impression that Mr Lovelace was a ‘hands off manager’ and was not prepared to actively engage in the resolution of issues that arose between members of this staff including, Ms Chellappah and the Ms Tran.
During the course of this cross examination Mr Lovelace was shown the email of 13 October 2015 from Ms Chellappah which has been set out above, in which he sought an increase of $6 per hour from Mr Sayed and went on to say:
As you are aware Hein and Fauzia are difficult individuals and are poisonous to the team environment…the university has known about Hein’s behaviour for a while and has not acted upon it. Hein has taken me to the union twice and has approached HR on a number of times to make complaints that are unfounded
During submissions Counsel for Ms Tran suggested that the untroubled response by Mr Lovelace to this communication, simply that the increase was approved, was indicative of his overall attitude to Ms Tran and it could be inferred that he agreed with the comments. Mr Lovelace also confirmed Ms Chellappah had made similar comments on other occasions.
Mr Lovelace’s accounts of how the proposal for workplace change was developed is set out at paragraphs 107 – 125 of his affidavit. While maintaining he was the sole author of the restructure proposal, Mr Lovelace confirmed at paragraph 122 that he had “discussed the ideas for reorganising the team with Ms Chellappah”.
From the metadata of the workplace change proposal, it is clear that it was Ms Chellappah who drafted the reasons for the disestablishment of the two positions including that of Ms Tran. Mr Lovelace conceded in cross examination that he and Ms Chellappah “were working on this together” and he “had to make sure she was part of the process” [Transcript Lovelace cross examination page 322 at [5]-[10]] In an email from Ms Chellappah (Exhibit Y1) to Mr Lovelace, Ms Chellappah relevantly states “thanks for sending this through. I have read the Change Proposal and it reflects what we propose to achieve”.
Considerations
There are essentially two matters that need to be determined. The first is whether or not there is a breach of s 340 of the FW Act in that adverse action was taken against Ms Tran on the basis that she had exercised a work place right and complained in respect of her treatment of the hands of Ms Chellappah and then subsequently in relation to other matters.
It was put to the Court that a proposed workplace restructure which alters the positon of the employee to the employer’s prejudice, falls under the term of adverse action. I was referred to Ellicott J in Squires v Flight Stewards Association of Australia (1982) 2 IR 155, where Ellicott did not limit that term to financial injury or deprivation of rights. Ellicott J at 164 regarded the term as:
… applicable to any circumstances where an employee in the course of his employment is treated substantially different to the matter in which he or she is ordinary treated and where that treatment can be seen to be injurious or prejudicial.
Ellicott J concluded that an employee stood down from his duties unpaid, subsequently injured their employment, notwithstanding any absence of any financial disadvantage.
In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 18, it was held a corporate reorganisation which resulted in security of an employer’s businesses becoming tenuous and the employment of employees also becoming tenuous, constituted an alteration of the employee’s position to their prejudice because it left the employee’s positon less secure not withstanding that their legal rights were not directly affected.
I am reasonably satisfied that a proposed restructure that disestablishes an occupant’s positon amounts to adverse action within the meaning of s 340 and 342 of the FW Act.
As set out above, where there is an allegation of adverse action, the burden of proof falls to the employer to satisfy the Court that the adverse action has not been taken for a prohibited reason. In this case the prohibited reason is relevantly Ms Tran making complaints about her supervisor, Ms Chellappah.
Whilst the applicant was long winded in her answers, the Court was of a view that her recollection of detail and attention to detail was such that where her evidence was at variance to that of Mr Lovelace, her version should be preferred.
Whilst Mr Lovelace maintained, in the face of cross examination that the fact that the applicant was a difficult employee who had made complaints about her supervisor, formed no part of the decision to undertake the restructure. It is difficult to accept this assertion based on the fact that from the first iteration of the restructure, it targeted not only the applicant but also Ms Zia, both of who were described by their supervisor, Ms Chellappah, as ‘poisonous to the team environment’.
What is clear from that email, is that Ms Chellappah had raised this adverse view of Ms Tran and Ms Zia with Mr Lovelace on other occasions. The Court bases this view on Mr Lovelace lack of response to the comments raised within the emails and his concessions during cross examination. It is clear that Ms Chellappah had a substantial role in the restructure proposal and it was essential from Mr Lovelace’s view that Ms Chellappah was happy that it would achieve the desired outcome.
I am reasonably satisfied the desired outcome included from Ms Chellappah’s point of view, the removal of Ms Tran and Ms Zia from employment with the University and that a substantial and operative part of that reason is that Ms Tran had made complaints about Ms Chellappah.
In making a finding that the adverse action taken against the applicant included as a substantial and operative reason, the fact that she made complaints against her supervisor, the Court is mindful of the fact that the University’s case consisted principally upon the evidence of Mr Lovelace. The failure to call Ms Chellappah and/or any other members of the Executive group means that the burden of proof has not been rebutted as to the presumption that the action was taken for a prohibited reason. Further where there is any variance between Ms Tran’s evidence and Mr Lovelace’s as regards to the actions of others who were not called, the Court is entitled to prefer the evidence of Ms Tran – Jones v Dunkel (1959) 101 CLR 298 at 312 per Menzies J.
The Court is also reasonably satisfied that there has been a breach of s 50 of the FW Act in that there was a breach of the Enterprise Bargain in terms of the redeployment positions. Clause 6.2.8 of the 2010 Agreement required the University to give priority considerations for the placement of staff members seeking redeployment including a priority interview. Ms Tran had clearly indicated she wished to be redeployed. Such consideration included the right to interview for any position that the staff member identified as being a potential redeployment opportunity.
Clause 6.2.9 of the 2010 Agreement, requires that where the University identified a positioned that may be suitable, it was required to review the skills needed to perform the essential requirements of the position, assess that the staff member had the necessary skills and relevant experience or is able to be retrained to perform the position.
Nowhere in the entire redeployment process, is there evidence that the University, except on one occasion, actively sought to look for positions where Ms Tran may have relevant skills and could be retrained.
There is unchallenged evidence at paragraph 293 of the applicant’s affidavit that in May 2017 the University advertised two positions on their website being Faculty Finance Manager, Human Sciences (Level 9 positon) and Learning Technology Systems and Support Coordinator (Level 8 position). I am reasonably satisfied that these were positions which, had the University informed Ms Tran about them, she would have made an application and would have been entitled to a priority interview.
Ms Tran was not informed of these positions by anyone from the University and in so doing I am satisfied that they did not comply with the requirements under the relevant clauses of the 2015 Agreement to actively seek positions for which Ms Tran should be redeployed to. When Ms Tran became aware of the positons and asked to be interviewed, this was refused by Mr Crowley. I am satisfied that this was a clear breach of the relevant provision of the 2015 Agreement that entitled her to a ‘priority interview’
I am reasonably satisfied that the University actively sought to manage Ms Tran out of her employment with it by the use of a redundancy and in so doing took adverse action under the FW Act and breached their requirements under the 2015 Agreement to seek to redeploy Ms Tran.
I certify that the preceding hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Date: 31 July 2019
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