United Workers' Union v Bervar Pty Ltd
[2022] FedCFamC2G 418
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
United Workers' Union v Bervar Pty Ltd [2022] FedCFamC2G 418
File number(s): MLG 3047 of 2020 Judgment of: JUDGE BLAKE Date of judgment: 31 May 2022 Catchwords: INDUSTRIAL LAW – adverse action – where applicant’s partner complained about bullying on behalf of the applicant – where employer did not speak to applicant directly – where employer accepted statements by applicants partner and treated the applicant as having resigned from employment and accepted resignation – where applicant never resigned from employment directly to her employer – applicant’s partner not party to the contract – applicants partner having no authority to end the contract on behalf of the applicant – no resignation given which was capable of being accepted – employment terminated by the employer – adverse action taken against employee
INDUSTRIAL LAW – adverse action – workplace right – where applicant’s partner threatened to take the matter to ‘Fair Work’ – where employer said reason for dismissal was because it considered the employee had resigned – where employer concerned about a drawn out process upon hearing of complaint to Fair Work – onus under section 361 not discharged by employer – adverse action taken against employee because of a workplace right under section 341(1)(b) of the Fair Work Act 2009 (Cth)
INDUSTRIAL LAW - claims arising under section 343, 351 and 352 of the Fair Work Act 2009 (Cth) – claims dismissed.
Legislation: Fair Work Act 2009 (Cth) ss 62(1), 62(2), 62(3), 340, 341(1), 341(1)(c), 341(1)(b), 340(1)(c), 342, 342(1), 343, 343(1), 351, 351(1), 352, 360, 361, 550, 550(1), 550(2), 550(2)(a), 550(2)(c).
Fair Work Regulations 2009 (Cth) r 3.01.
Cases cited: Alam v National Australia Bank Ltd [2021] FCAFC 178
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299
Construction, Forestry, Mining and Energy Union v Endeavour Coal (2015) 231 FCR 150
Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17
Esso Australia v Australian Workers Union [2016] FCAFC 72
Ezy Accounting 123 Pty Ltd v Fair Work Ombudsman (2018) 360 ALR 261
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605
Khiani v Australian Bureau of Statistics [2011] FCAFC 109
PIA Mortgage Services Pty Ltd v King [2020] 274 FCR 225
Shea v TRU Energy Services Pty Ltd (No 6) (2014) 314 ALR 346
Trevena v Thiess Pty Ltd [2016] FCA 468
Yorke v Lucas (1985) CLR 661
Division: Division 2 General Federal Law Number of paragraphs: 105 Date of last submission: 2 March 2022 Date of hearing: 28 February 2022, 1-2 March 2022 Advocate for the Applicant: Ms Ablett Solicitor for the Applicant: United Workers Union Counsel for the Respondents: Ms Bingham Solicitor for the Respondents: Davies Lawyers
Table of Corrections 3 June 2021 The heading above paragraph 33 has been amended from ‘arsing’ to ‘arising’. ORDERS
MLG 3047 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: UNITED WORKERS' UNION
Applicant
AND: BERVAR PTY LTD (T/AS DELLA ROSA FRESH FOODS)
First Respondent
PASCUAL GIGLIOTTI
Second Respondent
CAMERON BLEWETT
Third Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
31 MAY 2022
THE COURT DECLARES THAT:
1.The First Respondent contravened section 340(1) of the Fair Work Act 2009 (Cth) (‘Act’) on 6 May 2020 by dismissing the Applicant from employment for the reason that the Applicant had a workplace right or proposed to exercise a workplace right, or to prevent the exercise of a workplace right.
2.The Third Respondent was involved, within the meaning of section 550 of the Act, in the First Respondent’s contravention set out in paragraph 1 above.
THE COURT ORDERS THAT:
3.The parties are directed to submit to chambers within 21 days of these orders a proposed minute of consent orders which contains directions for filing material for the hearing on penalty and compensation.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
The United Workers Union (‘Union’) brings this action on behalf of Talwinder Kaur (‘Ms Kaur’). Ms Kaur initially alleged that the First Respondent, Bervar Pty Ltd (‘Bervar’) contravened section 340, 343, 346, 351 and 352 of the Fair Work Act 2009 (‘Act’) in relation to her employment. Ms Kaur also alleged that the Second Respondent, Mr Pascual Gigliotti (‘Mr Gigliotti’) and the Third Respondent, Mr Cameron Blewett (‘Mr Blewett’) were involved in the contraventions of the Act committed by the Bervar. At trial, the claim under section 346 was not pressed, but the remaining claims were pressed. All Respondents deny the alleged contraventions.
For the reasons that follow, I have decided that Bervar contravened section 340 of the Act. It took adverse action against Ms Kaur by dismissing her from employment because she had a workplace right, or proposed to exercise a workplace right, or to prevent the exercise of a workplace right, being her ability to initiate or participate in proceedings under a workplace law. For the reasons that follow, I have also decided that the Third Respondent was involved in the contravention by the First Respondent noted above. The claims against the Second Respondent are dismissed.
BACKGROUND
The parties helpfully prepared a statement of agreed facts (‘agreed facts’). I am grateful to the parties for that assistance. What follows is taken largely from the agreed facts.
Ms Kaur is 31 years of age. She is married to Mr Sandeep Singh and emigrated from India to Australia in 2013.
Bervar operates a ready-made pizza production business at 36-52 National Boulevard, Campbellfield, Victoria (‘the Factory’). It produces ready-made topped pizzas, flat bread and focaccias. It distributes these items to wholesalers and food retailers.
On 11 August 2015, Ms Kaur commenced work with Bervar as a level 1 production worker on a casual basis Monday to Friday.
On 23 September 2015, Ms Kaur was engaged as a Level 2 production worker on a part time basis working 22.8 hours per week.
On or around 9 December 2015, Ms Kaur commenced working nightshift as a level 2 production worker on a part time basis working 30.4 hours per week.
On 24 August 2016, Ms Kaur commenced working as a level 2 production worker on a part time day basis working 30.4 hours per week.
On 5 July 2017, Ms Kaur commenced working as a level 2 production worker on a full time basis.
From in or around at least August 2017, Mr Gigliotti was employed by Bervar and continues to be employed by Bervar as the Production Manager.
From 21 March 2018, Ms Kaur was employed as a level 3 full time production worker.
From 16 December 2019, Mr Blewett was employed by Bervar as its Human Resource Manager.
On or around 26-27 March 2020, an exchange occurred between Mr Gigliotti and Ms Kaur regarding whether Ms Kaur was able to work overtime on 28 March 2020. The content of the conversation is in dispute and I return to it later. Ultimately, Ms Kaur worked the overtime shift on 28 March 2020. Mr Gigliotti agreed that Ms Kaur had the right to refuse to work on 28 March 2020.
On 6 May 2020:
(a)At or around 5.26am, Ms Kaur commenced her shift;
(b)At or around 6.00am, a meeting was held between Ms Kaur, Mr Blewett, Mr Gigliotti, Ms Aleman and Mr Kohli. What occurred at that meeting is in dispute and I return to it later in these reasons. Following the meeting, Ms Kaur returned to work;
(c)At or around 8.00am, Ms Kaur left work part way through her shift. As Ms Kaur was leaving work, she saw Mr Gigliotti and Mr Giuseppe Cutrale (Assistant Production Manager). An exchange occurred between Ms Kaur and Mr Gigliotti. Ms Kaur did not clock off as she left work;
(d)At 1.15pm, Mr Blewett called Ms Kaur’s mobile phone. Ms Kaur gave the phone to her husband, Mr Singh. Mr Singh and Mr Blewett had a conversation. Mr Blewett says Mr Singh told him, among other things, that Ms Kaur was never coming back. Mr Singh denies making such a statement;
(e)At 3.10 pm, Ms Kaur received a letter from Mr Blewett dated 6 May 2020. In that letter, Mr Blewett advised Ms Kaur, among other things, that her resignation from employment had been accepted;
(f)At 6.25 pm, Ms Kaur sent an email to Mr Blewett. In that email, Ms Kaur stated among other things that she had not resigned from employment;
(g)At 6.34 pm, Ms Kaur sent an email to Ms Blewett attaching a copy of a medical certificate.
On 11 May 2020, Ms Kaur sent an email to Mr Blewett asking for confirmation that she remained employed by Bervar.
At 8.44am on 12 May 2020, Mr Blewett sent an email to Ms Kaur in which he confirmed that her resignation had been accepted and that she was no longer employed.
Ms Kaur did not return to work at Bervar after 6 May 2020.
THE LAW
Three claims are advanced under section 340 of the Act. Section 340 of the Act relevantly provides that a person must not take adverse action against another person because the person has a workplace right, has or has not exercised a workplace right, or proposes or proposes not to, or has at any time proposed or proposed not to exercise a workplace right, or to prevent the exercise of a workplace right. The term ‘adverse action’ is defined in section 342(1) of the Act. Relevantly, ‘adverse action’ includes the dismissal of an employee from employment, injury to the employee in his or her employment, altering the position of the employee to the employee’s prejudice or discriminating between the employee and other employees of the employer.
Section 341(1) of the Act identifies the circumstances in which a person might be understood to have a ‘workplace right’.
Insofar as the workplace right is said to be a complaint or inquiry under section 341(1)(c), not all complaints and inquiries that an employee makes in connection with his or her employment are complaints or inquiries made in the exercise of a workplace right or rights. As to what is a ‘complaint’, see Shea v TRU Energy Services Pty Ltd (No 6) (2014) 314 ALR 346 (‘Shea’) at [29]. As to what constitutes an ‘inquiry’, see PIA Mortgage Services Pty Ltd v King [2020] 274 FCR 225 (‘PIA’) at [136] per Snaden J. As to the need for the ability to make a complaint or inquiry to be underpinned by a right or entitlement, see Alam v National Australia Bank Ltd [2021] FCAFC 178 (White, O’Callaghan and Colvin JJ) (‘Alam’).
Section 343(1) of the Act provides that a person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person to, exercise or not exercise, or propose to exercise or not exercise a workplace right; or to exercise or propose to exercise a workplace right in a particular way. Coercion requires the satisfaction of two elements: negation of choice and the use of unlawful, illegitimate or unconscionable means: Esso Australia v Australian Workers Union [2016] FCAFC 72 (Buchanan J).
Section 351(1) of the Act relevantly provides that an employer must not take adverse action against a person who is an employee because of the person’s race, colour, national extraction or social origin.
Section 352 of the Act provides that an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. Regulation 3.01 of the Fair Work Regulations 2009 sets out what may constitute an illness or injury of the prescribed kind.
Section 360 of the Act recognises that adverse action might be taken for a variety of reasons, including reasons unrelated to reasons that Part 3‑1 of the Act proscribes. In order to be actionable under Part 3‑1 of the Act, it is sufficient that adverse action is taken for reasons that include such proscribed reasons.
Section 361 of the Act creates a rebuttable presumption concerning the proof, in any given case, of the reasons for which adverse action was taken. If, in an action alleging conduct was engaged in in contravention of Part 3‑1 of the Act, it is alleged that a person took or is taking action for a particular reason or with a particular intent, and taking that action for that reason or with that intent would constitute a contravention of Part 3-1 of the Act, it is presumed that the conduct was engaged in for that reason, unless or until the person who engaged in it proves otherwise.
In order to rebut the presumption in section 361 of the Act, an employer must typically lead evidence to show that the proscribed reason or circumstance that is alleged did not factor in any substantial or operative way as a reason for the conduct that an applicant seeks to impugn: General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605, 612 (Gibbs J), 619 (Mason J, with whom Stephen and Jacobs JJ agreed). It falls to the Court to determine ‘the actual reason of the decision-maker, in his or her own mind’: Construction, Forestry, Mining and Energy Union v Endeavour Coal (2015) 231 FCR 150 at [32] (Jessup J, with whom Perram J agreed at [77], Bromberg J dissenting).
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 (“Barclay”), the High Court considered how an employer might rebut the presumption contained in section 361 of the Act. In this respect, I refer to the judgment of French CJ and Crennan J at [44]-[45].
Where an employer gives evidence of why it engaged in the conduct the employee complains about, the inquiry starts and ends with whether, in fact, those reasons relevantly actuated that conduct. It is not necessary for an employer to prove that the reasons that actuated its conduct were procedurally or substantively fair: Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [33] (Gray, Cowdroy and Reeves JJ). A claim under Part 3‑1 of the Act ‘…is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome’: Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17, [48] (Bromberg J).
The Full Court in Alam also recently summarised the principles bearing upon the application of section 361 of the Act to section 340 of the Act: see paragraph [14] of Alam.
THE WITNESSES
The Union filed two affidavits from Ms Kaur, one from her husband Sandeep Singh and one from a former co-worker, Sarvjeet Kaur. Each of these witnesses was subject to cross-examination. The Respondents filed affidavits from Pascual Gigliotti and Cameron Blewett. Each of these witnesses was also cross-examined. Both parties also filed an outline of submissions prior to the trial, along with a Court Book.
The claims in this matter relevantly arise from three specific incidents. One incident occurred on 27 March 2020. Two incidents occurred on 6 May 2020. In each case, there is a significant factual contest as to what actually took place. Resolving that contest largely turns on the oral evidence given by each of the participants at those incidents together with some contemporaneous documents. Given that circumstance, each of the parties endeavoured to focus on what was said to be inconsistencies in evidence given by the witnesses for the other party, or on what a particular witness may have omitted from their respective affidavits. I have considered these matters in the course of assessing the evidence. Minor inconsistencies in the evidence are to be expected given the events occurred around two years ago, and the affidavits were prepared around one year after the incident. As a general observation, each of the key witnesses largely stood by their accounts of what occurred. Those accounts were, as will become clear, significantly different in many respects.
THE CLAIMS ARISING ON 27 MARCH 2020
Ms Kaur says that on 27 March 2020, Mr Gigliotti told her and her colleague Sarvjeet Kaur that they were required to work overtime on Saturday, 28 March 2020. Ms Kaur says she told Mr Gigliotti that it was difficult for her to work overtime on a Saturday because she needed to care for her children. She claims that in response, Mr Gigliotti said words to the effect that he could make life very difficult for her and it would not be good for her if she did not come in on Saturday, and that if she did come in Saturday, life would be good for her. Ms Kaur says Mr Gigliotti told her it would be very bad for her personal life and very bad for her in the workplace if she did not work on Saturday. Ms Kaur says Mr Gigliotti behaved in an aggressive and threatening manner. Ms Kaur says she was distressed by this conversation and had trouble sleeping at night. She eventually worked the overtime on the Saturday and said Mr Gigliotti spoke to her on that day and said ‘very nice- now I am happy’. She largely stood by this account of events in cross examination.
Sarvjeet Kaur gave evidence about what occurred in respect of this incident. Sarvjeet Kaur worked alongside Ms Kaur as a production worker at the relevant time. Sarvjeet Kaur stated that Mr Gigliotti approached her and Ms Kaur on the production line and asked them to work overtime the next day. Sarvjeet Kaur deposed that Mr Gigliotti had an angry face and said words to the effect of ‘you have to come, and if you don’t come I will make your personal life and professional life hell’. Sarvjeet Kaur says that both she and Ms Kaur nodded to which Mr Gigliotti said ‘now I am happy’. Sarvjeet Kaur says she also worked overtime on 28 March 2020. Cross-examined about these matters, Sarvjeet Kaur stood by her account of what occurred, including Mr Gigliotti visiting them on the production line and stated that Mr Gigliotti was shouting at Ms Kaur.
Mr Gigliotti says that around the time of this incident, there had been a requirement to increase production because of the onset of the COVID-19 pandemic. He says he was approached by the supervisor of production line 6, Akhter Rasool, who informed him that Ms Kaur did not want to work overtime. Mr Gigliotti says he made a personal approach to Ms Kaur and asked her to work overtime on a Saturday. He says the discussion occurred in an office. Mr Gigliotti says that Ms Kaur told him she preferred not to and that she made no mention of her childcare commitments. Mr Gigliotti then says he effectively pleaded with Ms Kaur to work the shift, and told her it would help them greatly, and that he would consider it a favour to him if she worked and that it would be in return for favours that he had done for her in the past. The favours in the past to which he referred were, apparently, his approval of additional leave for Ms Kaur in January 2020 when she had not accrued enough personal leave. Mr Gigliotti says that Ms Kaur eventually worked overtime on the Saturday. He denied threatening Ms Kaur or behaving in an aggressive manner toward her.
In considering these competing accounts, the following matters stand out. First, it is likely Mr Gigliotti would have been desperate to have workers fill the shift. The onset of the pandemic and the demands it placed on supply chains is a matter of public record. Second, I accept Mr Gigliotti visited Ms Kaur and Sarvjeet Kaur on the production line. Two employees place him at that spot and I accept that is where the discussion occurred.
There is then the content of the conversation between Mr Gigliotti, Ms Kaur and Sarvjeet Kaur. Each of Mr Gigliotti, Sarvjeet Kaur and Ms Kaur spoke with notable accents when giving evidence. Further, I note that Ms Kaur and Sarvjeet Kaur had difficulty understanding questions put to them in English in the relatively quiet confines of a court room environment. In my view, particularly having observed her, Ms Kaur clearly has difficulties at times understanding English. The discussion that occurred between the three of them on 26 or 27 March took place on the production floor, which I expect would not be as quiet as the court room environment, and may very well have been quite noisy given that production was busy in March 2020. This combination of factors to which I have referred, in my view, led to a serious miscommunication between those involved.
Mr Gigliotti approached Ms Kaur and Sarvjeet Kaur because he needed employees prepared to work that Saturday. He clearly approached them with the intent of persuading or encouraging them to work Saturday. He asked Ms Kaur to work. When she refused, he pleaded with her, saying he would consider it a personal favour and it would be in return for the favours he had given her. I consider this plea from Mr Gigliotti and his mention of favours he had done in the past was, given the matters I have referred to above, interpreted or understood by Ms Kaur as a threat to make her personal and professional life difficult. I am satisfied that she understood or felt that if she did not accede to Mr Gigliotti’s request, she may find her life made more difficult. While that may have been what Ms Kaur understood or took away from the conversation, I am not persuaded that Mr Gigliotti said the words attributed to him by Ms Kaur or Sarvjeet Kaur. In this context, I place little weight on the evidence given by Sarvjeet Kaur. Sarvjeet Kaur was, by her own admission, busy working when the conversation occurred and was not a participant in the conversation. She may well have been close to where the conversation occurred, but I have real doubts she could have heard or understood everything that was occurring given the matters to which I have referred including that the discussion occurred on the production line.
There is the separate issue about whether Mr Gigliotti behaved in a ‘threatening or aggressive’ manner during the conversation, or was angry. The evidence in support of Mr Gigliotti behaving in a threatening or aggressive manner is thin and amounts to little more than an assertion that his behaviour was threatening or aggressive. Simply saying that behaviour is threatening or aggressive does not make it so; evidence of what actually took place is necessary. I am prepared to accept that Mr Gigliotti raised his voice and emphasised his words to Ms Kaur in order to make himself understood to her given the language barriers and the likely noise from the production environment. In my view, however, Mr Gigliotti was not angry.
Mr Gigliotti’s statements to Ms Kaur were in my view nothing more than an attempt to persuade her to undertake overtime. He did so by asking for a favour from Ms Kaur in return for the favours he had performed for her. He did not make this request in a threatening or aggressive manner nor did he otherwise threaten her. That Ms Kaur may have misunderstood what was said for the various reasons I have set out earlier does not change that fact. In my view, Mr Gigliotti did not intend to coerce Ms Kaur within the meaning of section 343 of the Act. There was no pressure placed at a level that negates choice, and there was no pressure placed on her that was unlawful, illegitimate or unconscionable. Further, the statements made by Mr Gigliotti were merely attempts by him to persuade Ms Kaur to work. They do not constitute adverse action or a threat of adverse action as contemplated by section 340 of the Act.
Both section 340 and 343 of the Act are engaged if, among other things, the employee has a ‘workplace right’ as that term is defined in section 341 of the Act. The Union contended that the relevant workplace right in the present circumstances is to be found in section 62(2) of the Act. Section 62(1) relevantly provides that an employer must not require or request a full-time employee to work more than 38 hours per week unless the additional hours are reasonable. Section 62(2) provides that an employee may refuse to work additional hours if those hours are unreasonable. Section 62(3) sets out matters that are to be considered in assessing whether additional hours are reasonable.
It is pertinent to point out that section 62(2) is not an unqualified right. The right to refuse overtime only exists if the additional hours are unreasonable. In this matter, while some reference was made to the need to increase production and Ms Kaur’s need to look after her children, the question of whether the additional hours Ms Kaur was being asked to work were unreasonable were not fulsomely addressed. Critically, no evidence was placed before the Court as to the exact number of hours Ms Kaur had worked that week and how many additional hours she was being asked to work on the Saturday. In the absence of that evidence, not to mention other information to which section 62(3) refers, the Court cannot be satisfied that the additional hours Ms Kaur was being asked to work were unreasonable. That being the case, it cannot be said that Ms Kaur had a workplace right under section 62(2) to refuse the additional hours. That is the case in my view irrespective of the views proffered by Mr Gigliotti and Mr Blewett under cross examination that Ms Kaur had a right to refuse overtime. The questions asked of them and answers given by them were put and obtained using the most general of terms, and did not engage with the matters contemplated by section 62 of the Act.
For the above reasons, the claims advanced on behalf of Ms Kaur under sections 340 and 343 of the Act in connection with the events of 27 March 2020 must fail.
THE CLAIMS ARISING FROM THE EVENTS OF 5 AND 6 MAY 2020
5 May 2020
Ms Kaur deposed that on 5 May 2020, she was instructed by another employee, Yeni Aleman, to move to production line 4 and help another employee pack pizzas. Ms Kaur deposes that she was subsequently instructed to take the place of the other employee on line 4 who was going home. Ms Kaur says that she told Ms Aleman that it was a difficult task for her because the speed of the production line was fast. Ms Kaur says that Ms Aleman seemed angry and told her ‘ok go away and check the pizza’. Ms Aleman was not called to give evidence. The only evidence before the Court in respect of this conversation is that of Ms Kaur. I accept Ms Kaur’s evidence. Mr Gigliotti, for his part, says that on 5 May 2020, Ms Aleman came to him and told him that Ms Kaur was not rotating through the positions on the production line and that she was refusing to load boxes onto pallets. I accept Mr Gigliotti’s evidence in this respect.
6 May 2020
The following day, Ms Kaur says she presented for work at around 5.20am. She says that at around 6.30am, a meeting took place between her, Mr Blewett, Mr Gigliotti, Ms Aleman and Mr Kohli. Mr Gigliotti’s evidence is that he arranged the meeting to discuss Ms Kaur’s failure to perform all the tasks of a production worker, and that he asked Mr Kohli to attend the meeting to act as an interpreter.
Ms Kaur says that when she entered the meeting, Mr Gigliotti was angry and aggressive. She says Mr Gigliotti asked her what happened yesterday and whether she had said ‘no’ to Ms Aleman. Ms Kaur says she was confused before realising that Mr Gigliotti was referring to her interaction with Ms Aleman the previous day. Ms Kaur says that she tried to explain what happened, but that Mr Gigliotti kept speaking over her. Ms Kaur says Mr Gigliotti said words to the effect of ‘that he is the soul of [Ms Aleman’s] body, that [Ms Aleman] is the ultimate boss and that she had to obey’ Ms Aleman. Ms Kaur says she began to cry. At that point Ms Kaur says Mr Gigliotti said ‘these bloody Punjabi girls can’t even understand English properly’ before asking Mr Kohli to translate what he had said regarding following Ms Aleman’s instructions. Ms Kaur says that when Mr Kohli finished translating, Mr Gigliotti said to him ‘you always act as a shield for Punjabi girls here’ before he also said ‘these bloody Indian girls working here’ ‘bloody Punjabi girls don’t deserve to work here’ and ‘Suvraj should’ve never made you full-time, you don’t deserve to be full-time, all you bloody Punjabi girls shouldn’t be working here’. Ms Kaur says she was crying, Mr Gigliotti was getting angrier and angrier and she feared she would be slapped. Ms Kaur then says that Mr Gigliotti then asked Ms Aleman if she was happy with how he had spoken to Ms Kaur, and Ms Aleman said ‘yes’. Ms Kaur says she felt embarrassed by this comment. Ms Kaur then deposed that Mr Gigliotti turned to her and told her she would be moved to Line 1 and further told her ‘you have to pack the pizza-if you don’t pack the pizza I will kick you like a ball’.
Ms Kaur deposes that the meeting then ended, but she was unable to stop crying and was too upset to finish the rest of her shift. She says she told Mr Kohli that she wanted to go home because effectively her health was not good. She says she called her husband and told him what happened. She says as she left the premises, she saw Mr Gigliotti smoking with another employee. She says Mr Gigliotti asked where she was going and in doing so, came close to her and blew smoke onto her face. She says she told Mr Gigliotti that she was going home because she felt unwell. She subsequently left for home.
Cross examined about these matters, Ms Kaur largely stood by her version of events. She agreed, however, that during the meeting, Mr Blewett had drawn her attention to an earlier meeting she had had with Mr Gigliotti in March regarding the role of a production worker. She did not refer to that conversation in her evidence.
Mr Gigliotti’s version of events is set out in his affidavit and is as follows:
15.I said to Ms Kaur has Mr Kohli asked you to perform duties other than paperwork on the production line? Ms Kaur said yes he had. I then said to Ms Kaur did you refuse to perform those other duties and she said yes. I then said to her was there a reason why she refused to perform the other tasks. Ms Kaur said to me that she liked doing the paperwork only.
16.Mr Blewett said to Ms Kaur did she remember a discussion that took place in the same office, around mid-March 2020 with me where I had spoken to her about the same thing. Ms Kaur said that she did remember this meeting. Mr Blewett then said to Ms Kaur was she aware that as a production worker, it was a requirement of her role to perform all the duties that are part of it. Ms Kaur said yes she was.
17.I then said to Ms Kaur do you remember yesterday when Ms Aleman asked you to load boxes onto the pallet. Did you refuse to do that? Ms Kaur said that yes she did . I said that Ms Aleman was following my directions in moving her and others around the line cycling the tasks, by implementing my directive, Ms Aleman by doing so was in effect another junior version of myself. Ms Kaur said that she understood and would do things better from now on.
18.I asked Ms Kaur if she needed any part of what he said translated Ms Kaur said that she did not. Nothing was translated. The meeting ended and everyone left the room
19. At no point in time did I get angry, raise my voice, or step towards Ms Kaur.
20.At no point during the meeting did I say any of the things mentioned in paragraph 54 of the Ms Kaur' s affidavit. Further, she did not get upset, cry or appear distressed in any way . Ms Kaur returned to her job on the line.
21.Later on in the morning at approximately 08:00am, I was outside having a cigarette with Assistant Production Manager, Giuseppe Cutrale, when I saw Ms Kaur leave the building. Ms Kaur was approximately 10 metres away from Mr Cutrale and I. I asked Ms Kaur if she was on break and she replied, "No, I’m going home". I then asked her if she had informed her supervisor that she was going home. Ms Kaur told me that she had. Mr Cutrale and I finished our cigarettes and went back to our jobs.
Cross-examined about these matters, Mr Gigliotti largely stood by his version of events. He conceded, however, that some parts of the meeting had been translated despite what he says in his affidavit. Also, in cross examination, he stated he could not recall whether Ms Kaur cried, but in his affidavit, he stated that she did not get upset, cry or appear distressed in any way.
Mr Blewett gave evidence about the meeting on 6 May 2020. His evidence is largely consistent with the evidence given by Mr Gigliotti. He stood by that evidence in cross-examination. His evidence was also that the meeting had concluded by 6.15am.
At the outset, I am satisfied that the meeting was convened to discuss the interaction between Ms Kaur and Ms Aleman on 5 May 2020. I am satisfied that Mr Gigliotti called the meeting because he believed that Ms Kaur was not performing all of the work of a production worker.
It is then necessary to consider what occurred at the meeting. When the evidence of all of these witnesses is weighed and considered, it becomes clear that there are aspects of the meeting about which all witnesses agree, as well as there being areas of significant disagreement. For example, while there are discrepancies, it is largely agreed between Mr Gigliotti, Mr Blewett and Ms Kaur that:
(a)The discussion commenced with Mr Gigliotti asking Ms Kaur about what had occurred the previous day between Ms Kaur and Ms Aleman;
(b)Mr Gigliotti told Ms Kaur that Ms Aleman was a ‘junior’ version of himself. On this issue, I consider Ms Kaur’s evidence that Mr Gigliotti said ‘he was the soul of [Ms Aleman’s] body’ to be Ms Kaur’s understanding of what was being conveyed to her by Mr Gigliotti about Ms Aleman being a junior version of himself. The difference in recollections is once again explained by Ms Kaur’s difficulty understanding English, the accents used by both participants in the conversation, and the other matters to which I have referred earlier.
In addition to the above, Ms Kaur acknowledged when cross examined that Mr Blewett had spoken to her in the meeting about the prior conversation she had had in March 2020 about the work required of a production worker, a matter she failed to mention in her affidavit.
There are then those aspects of the meeting that are in dispute. The most significant of these are the allegations by Ms Kaur that she was subjected to racial abuse or racist remarks by Mr Gigliotti, and that he threatened to ‘kick’ her like a ball. I have considered this matter closely but ultimately come to the conclusion that Mr Gigliotti did not make racist remarks to or about Ms Kaur, and that he did not threaten to kick her like a ball. My reasons for this finding are as follows.
First, Ms Kaur sent an email to Mr Blewett at around 6.25pm on 6 May 2020 after she had received the letter from him in which he purported to accept her resignation. In that email, Ms Kaur set out an account of what she had been subjected to or experienced. There is nothing in that email which records Ms Kaur as having been subject to racial abuse, racist remarks, or being subject to a threat to be kicked like a ball. Given the other matters to which Ms Kaur refers in the email, one would have expected her to record the racist comments to which she was subjected in the email and that this would feature prominently. She has not done so. The account of the meeting that she gives in her evidence is therefore inconsistent with her own more contemporaneous record of events.
Second, Ms Kaur claims to have called her husband from work immediately after the meeting and informed him of what occurred. He did not, however, give any detailed evidence of what he was told. His affidavit is largely silent on the specific details of the alleged racist remarks. One would expect to see that in his affidavit had it been conveyed to him at the time.
Third, Ms Kaur attended a doctor who provided her with a medical certificate excusing her from attending work. The doctor was not called to give evidence. His certificate, however, records that Ms Kaur had been subjected to ‘harassment’. The certificate does not mention that Ms Kaur was subjected to ‘racial’ harassment or other forms of racial abuse or racist remarks, or that she was physically threatened.
Fourth, Mr Gigliotti had previously permitted Ms Kaur to take leave even though she did not have enough leave credited to her. That action is inconsistent with a person who would subsequently engage in the type of racist behaviour attributed to Mr Gigliotti.
Fifth, I consider Mr Gigliotti and Mr Blewett to be more reliable witnesses in relation to what occurred at the meeting. Each gave a more fulsome account of what occurred. The account given by Ms Kaur is somewhat piecemeal, even allowing for the fact that English is not her first language. Moreover, it became clear during cross examination that she had omitted from her evidence various details of what occurred.
Sixth, it was Mr Gigliotti’s unchallenged evidence that he arranged a meeting and invited each of Mr Blewett, Mr Kohli and Ms Aleman to attend. I consider it highly unlikely that Mr Gigliotti would specifically ask each of these people to attend (but in particular Mr Blewett who had HR responsibilities, and Mr Kohli, who had the capacity to translate every word said) and effectively witness what took place if he was going to engage in any form of racial abuse or make racist remarks, or threaten to kick Ms Kaur.
Ms Kaur alleges that Mr Gigliotti raised his voice during the course of the meeting, spoke over her and was angry. I am not persuaded that Mr Gigliotti behaved as alleged. I consider it unlikely that he would behave in such a way having asked Mr Blewett and Mr Kohli to attend the meeting. I consider it likely that Mr Gigliotti spoke forcefully and directly to Ms Kaur. The context of the conversation, the participants in it, the fact that Ms Kaur had been spoken to previously about performing all the tasks of a production worker, support a conclusion that Mr Gigliotti spoke to Ms Kaur directly.
None of this is to say that Ms Kaur was not distressed by the meeting. I find that she was upset. She was effectively summoned without notice into a meeting with not only her immediate supervisors, but the managers above. It does not appear she was given the opportunity to have someone present in the meeting to support her. All of that would have conveyed to Ms Kaur a feeling of distress and that she was in trouble. That feeling would have been compounded by what I regard as Ms Kaur’s sensitivity – watching her in the witness box, I formed the view she is a person who is sensitive and that might be a product either of her nature, her culture, or the difficulty she sometimes has in understanding the English language.
When the above matters are considered, I find what occurred in the meeting is consistent with the account of the meeting given by Mr Gigliotti and Mr Blewett. Ms Kaur was summoned to the meeting to ask why she had refused to perform duties the previous day as instructed by Ms Aleman. She was asked why she refused and she gave an explanation. She was told it was a requirement of her role to perform all the duties of a production worker. She was also told that she was required to follow directions given by Ms Aleman to cycle through the various tasks in the production area because Ms Aleman was a ‘junior’ version of Mr Gigliotti. These messages were delivered to Ms Kaur in a direct and serious manner. Mr Gigliotti was not, however, angry or aggressive. Furthermore, Mr Gigliotti did not make any racist remarks to or about Ms Kaur or engage in any other form of racist abuse toward her, or threaten to kick her like a ball.
In light of the findings above, the claims made on behalf of Ms Kaur in connection with the meeting on 6 May 2020 must fail. Mr Gigliotti did not make the remarks attributed to him, or behave in the manner alleged. He did not take adverse action against Ms Kaur. He did not make racist remarks to or about Ms Kaur, nor direct racial abuse to Ms Kaur, nor threaten to kick her. No adverse action was taken against Ms Kaur in the meeting on 6 May 2020. Accordingly, the claims under section 340 and 351 of the Act arising from the events of the meeting on 6 May 2020 must fail.
The phone conversation of 6 May 2020
The participants in this conversation were Mr Singh and Mr Blewett, except for a short period at the start where Ms Kaur was involved. The participants agree on much of what occurred during the discussion including the following. First, that Mr Singh complained that Ms Kaur had been bullied and harassed, without providing any specifics. Second, that Mr Singh said Ms Kaur had come home upset and she was too upset to look after the kids. Third that Mr Singh said words to the effect that what was happening to his wife was illegal, or that bullying and harassment in Australia is a ‘no’. Fourth, that Mr Blewett said he did not know anything about any alleged bullying or harassment. Fifth, that Mr Blewett asked when Ms Kaur would be returning to work. Sixth, that Mr Singh said words to the effect that he and Ms Kaur would take the matter to ‘Fair Work’.
The issue between the parties during the hearing in respect of this conversation is whether Mr Singh told Mr Blewett at least twice that Ms Kaur would not be returning to work. Mr Blewett says Mr Singh told him this twice in response to his (Mr Blewett’s) questions as to when Ms Kaur would return to work. Mr Singh denies making any such statement. His evidence, given in cross examination for the first time, is that he told Mr Blewett that Ms Kaur would be returning to work. The issue attracted prominence because Mr Blewett treated the words allegedly said by Mr Singh to him as Ms Kaur having resigned from employment. The Respondents’ submission was, therefore, that Ms Kaur had resigned from employment and had not been dismissed. As there was no dismissal, it was submitted that Ms Kaur was not subjected to adverse action as a result of the telephone conversation of 6 May 2020.
In my view, for reasons I will come to, it is not necessary to resolve the factual contest over whether Mr Singh told Mr Blewett that Ms Kaur was never coming back. For present purposes, I am prepared to assume that Mr Singh made such a statement twice to Mr Blewett. Had I been required to determine the matter however, I would find Mr Singh made statements to Mr Blewett that Ms Kaur was never coming back. Such a remark would, in my view, be entirely consistent with the behaviour one would expect of a husband or wife who had just learned that his or her partner had been subjected to workplace bullying.
I am unable to conclude that Ms Kaur resigned from employment with Bervar. In my view, she was dismissed from employment. My reasons for this are as follows.
The contract of employment was between Bervar and Ms Kaur. Under clause 10 of the contract of employment, the only parties able to terminate the contract are Bervar and Ms Kaur. That is unsurprising. It is a generally accepted principle of contract law that only the parties to the contract are able to terminate the contract.
The question that then arises is whether Mr Singh was authorised to terminate the contract of employment on behalf of Ms Kaur. There is no evidence before the Court of any written authority under which Ms Kaur conferred authority on Mr Singh to terminate the contract on her behalf. Mr Blewett’s evidence is that he ‘assumed’ Mr Singh had the authority to speak on behalf of Ms Kaur. Asked in the witness box why he made that assumption, Mr Blewett stated ‘Because Ms Kaur, when I introduced myself, told me that I had to speak to her husband, so I reasonably believed that, you know, whatever he said, that she agreed with’.
There are various difficulties with this answer. First, in so far as there was any authority for Mr Singh to speak on behalf of Ms Kaur, Mr Blewett ‘assumed’ the authority existed. He acted on assumption. He took no step to verify the existence of any authority. Mr Blewett had been informed by Mr Singh that Ms Kaur was upset, and had been crying. Asking another person to take a telephone call in that circumstance is hardly unusual. Second, any authority given by Ms Kaur to Mr Singh to speak on her behalf on the telephone in the circumstances described could not extend to any authority to terminate the contract of employment. Third, it was not reasonable in these circumstances for Mr Blewett to believe that whatever Mr Singh said, Ms Kaur agreed with. It is difficult to think in the modern age of any circumstances in which a wife can be assumed to agree with what her husband says. The days of husband’s making decisions for their wives, or determining contractual relations on behalf of their wives, are long gone.
Mr Blewett says Mr Singh uttered words to the effect of ‘she’s never coming back’. It can be seen how such words may be interpreted as notice of resignation by some people, particularly by persons inexperienced in employment and human resources matters. The circumstances here, however, are far removed from that situation. Mr Blewett was an experienced human resources professional. He was calling to conduct a welfare check. In the course of that welfare check, he learned not only that Ms Kaur was apparently so upset she could not look after her children or speak on the phone, but also that she had allegedly been subject to bullying and harassment. Despite that, it seemingly never occurred to him that whatever Mr Singh may have said may have been said in the heat of the moment. It seemingly never occurred to Mr Blewett to speak to Ms Kaur directly, notwithstanding, that Mr Blewett agreed that Mr Singh had never said Ms Kaur ‘resigned’ from employment. Instead, it seems that Mr Blewett was content to rely on the statements ‘she’s never coming back’ as constituting a resignation, or notice given under the contract of employment.
In summary, Mr Singh was not authorised to end the employment of Ms Kaur. In that circumstance, notice of termination under the contract of employment was not given by Ms Kaur to Bervar. Ms Kaur did not resign from employment. There was not any notice of resignation for Bervar to accept. By acting as it did, Bervar terminated the contract of employment with Ms Kaur. To this I would add that while Mr Singh may have said the words ‘she’s never coming back’ those words were clearly said in the heat of the moment. They are not words which in all the circumstances could be taken as conveying a resignation from employment. Accordingly, Ms Kaur was dismissed by Bervar. Bervar took adverse action against Ms Kaur pursuant to section 342 of the Act.
The issue that then arises is whether Ms Kaur’s dismissal from employment constitutes a contravention of section 340 or section 352 of the Act.
The Union contends two workplace rights were engaged as a result of the conversation between Mr Blewett and Mr Singh. First, by raising the prospect of making a complaint to ‘Fair Work’, Ms Kaur was a person who was able to initiate, or participate, in a process or proceedings under workplace law in accordance with section 341(1)(b) of the Act. Second, by complaining of bullying and harassment to Mr Blewett, Ms Kaur was making a complaint in relation to her employment for the purposes of section 341(1)(c) of the Act.
The Respondents contended that if Mr Singh was not authorised by Ms Kaur to end her employment, she could not have authorised Mr Singh to make the complaints on her behalf, or foreshadow taking the matter to ‘Fair Work’. The matter was not the subject of detailed argument before me. Having considered it, however, I am unable to accept the Respondent’s submission. It confuses two concepts. Only Ms Kaur or Bervar could exercise the rights and obligations under the employment contract. The right to end the contract could only have been ended by Mr Singh if Ms Kaur had delegated or assigned her rights to do so to him. She did not do so and in any event, it is difficult to see how she could have done so given this was a contract for personal service.
In contrast, section 341 is not concerned with contractual rights. Section 341 is not concerned with who may communicate the existence of a right. Rather, its focus is on whether the person ‘has’ a right, and whether a person ‘is’ able to initiate, or participate, in a process or proceedings under a workplace law or workplace instrument (section 341(1)(b)) and whether the person ‘is’ able to make a complaint or inquiry (section 341(1)(c)). The issue for the Court, therefore, is whether Ms Kaur ‘has’ the workplace rights she claims, not who may have communicated the matter to Mr Blewett. I observe that in Trevena v Thiess Pty Ltd [2016] FCA 468, Tracey J considered that nothing turned on the fact that the complaint agitated by the Applicant in that matter had been made on his behalf by his brother.
I am satisfied that Ms Kaur had a workplace right within the meaning of section 341 of the Act. Mr Blewett was told that Ms Kaur faces racist bullying and harassment. He was told she was going to take the matter to ‘Fair Work’. The reference to ‘Fair Work’ is somewhat ambiguous and could encompass any of the Fair Work Commission, the Fair Work division of this Court or the Fair Work Ombudsman. For present purposes, it is sufficient to note that Part 6-4B of the Act permits workers to apply to the Fair Work Commission for an order that bullying stop. Ms Kaur clearly possessed that right, and potentially other rights. I am therefore satisfied that Ms Kaur possessed a workplace right within the meaning of section 341(1)(b) of the Act.
While Ms Kaur possessed a workplace right within the meaning of section 341(1)(b), I am not persuaded she possessed a workplace right pursuant to section 341(1)(c) of the Act. I accept that a complaint was made to Mr Blewett during the telephone call about bullying and harassment. The question is whether that was a complaint Ms Kaur ‘is able to make’. The Union did not identify the source of the entitlement to make the complaint in the sense contemplated by the Full Court in Alam. I note there is nothing in the contract of employment which is of assistance, and there is not in evidence before me any other documents such as a policy which may assist the Union.
Ms Kaur also contended that she exercised a workplace right by making a complaint or inquiry to Ms Aleman on 5 May 2020. It was submitted that Ms Kaur made a complaint or enquiry to Ms Aleman about the duties assigned to her, and that she had a right to refuse duties that were not within her capability under her contract of employment. I do not accept that submission. The language used by Ms Kaur does not give rise to the making of any complaint or enquiry in the sense contemplated by Dodds-Streeton J in Shea.
The next question is whether adverse action was taken against Ms Kaur because of her workplace rights. It was Mr Blewett who made the decision to end Ms Kaur’s employment. In his affidavit, he gives the following reasons for ending the employment relationship:
27.The telephone call ended. Because Ms Kaur did not appear distressed when she answered the telephone and requested that I speak with her husband I assumed that he had authority to speak on her behalf. I asked Mr Kaur twice during the conversation when the Respondent could expect Ms Kaur to return to work and on those two occasions he said that she was never coming back. I believed in these circumstances she was terminating the employment relationship with Respondent and effectively resigning.
28.Due to Mr Kaur's aggressive manner towards me over the telephone which was for all intents and purposes a welfare check on Ms Kaur and the definite manner in which he stated that Ms Kaur would not be returning to work for the Respondent I decided that I should confirm that the Respondent accepted Ms Kaur's resignation in writing. …
Mr Blewett maintained the views above in cross examination.
As the authorities make clear, the Court is required to enquire into the actual reason and to make a determination in light of all the circumstances established in the proceeding. It is to that task that I now turn.
I am required to assess the totality of the evidence before me including that given by Mr Blewett. Mr Blewett made the call to Ms Kaur in order to conduct a ‘welfare check’ and to find out when she was ready to come back to work. It is his evidence that at the time he placed that call, he did not know that Ms Kaur was upset. All he knew was that Ms Kaur had left work early.
During the call, Mr Blewett learned at least two things. The first thing he learned was that that Ms Kaur was complaining of facing ‘racist bullying and harassment every day’. Mr Blewett accepted in cross examination that it was his responsibility to make sure that bullying and harassment at work did not happen. He also accepted that bullying is a serious issue. Yet, having heard that Ms Kaur was complaining of suffering racist bullying and harassment every day, and having heard that she was upset, and having agreed in cross examination that he was concerned about what he was hearing, he took no step to initiate any form of comprehensive investigation into her allegations. He did not speak with Ms Kaur either then or later. He did not invite Ms Kaur to put the allegations in writing. He did not speak to any employee on the shop floor about it. He did not invite Mr Singh to expand on the general allegations he made. Asked about this during cross examination, he claimed to have spoken to some of the other managers. His manner of giving this evidence was most unconvincing and I am not satisfied that it occurred. Even if it did occur, however, the fact remains he did nothing to enquire into any specific allegations made by Ms Kaur, so he could not have had the basis for making any proper or detailed inquiries with others about what might have occurred at the workplace.
The second thing Mr Blewett learned during the conversation was that Ms Kaur was upset. Mr Singh told him that Ms Kaur was upset, too upset to look after their children and had been crying all day. Whatever Mr Blewett may have thought about Ms Kaur’s emotional state at the time he initiated the call, he could not have been in any doubt about it once he had spoken to Mr Singh. He also could not have been in any doubt that Ms Kaur was upset about the bullying and harassment of which Mr Singh was speaking.
Upon receiving this information, it is relevant to consider what Mr Blewett then did or did not do. Having initiated a ‘welfare check’, having heard a serious allegation being made, and having heard Ms Kaur was extremely upset, on his own evidence he took no step to understand why Ms Kaur was upset. On his own transcript of the conversation, he did not ask Mr Singh to provide further details. He never invited Ms Kaur to inform him in writing as to why she was upset. In short, despite initiating a call to undertake a welfare check, and hearing Ms Kaur appeared upset, he did very little if anything to genuinely enquire about her welfare when confronted with news that she was bullied and that she was upset.
What occurred next is in my view, utterly surprising. Mr Blewett knew that Ms Kaur had attended a serious meeting that morning to discuss her work. He knew that she left work. He knew that she was upset. He knew that she was complaining of bullying and harassment. He knew Ms Kaur’s husband was extremely upset. In the face of all of that, he says he elected to accept Mr Singh’s words (which were clearly said in the heat of the moment when Mr Singh himself was upset) as bringing Ms Kaur’s employment to an end. He did so quickly-within two hours of the discussion with Mr Singh, he had purported to accept the purported resignation. He did so without even seeking confirmation in writing from Ms Kaur that she wished to resign from employment. In cross examination, Mr Blewett admitted that he usually asks employees to confirm their resignations in writing. Mr Blewett also accepted under cross examination that it was ‘unusual’ in a situation such as this that someone else would tender a resignation for the employee. Despite all of this, the purported resignation was accepted by Mr Blewett, and accepted quickly.
Regrettably, that is not the end of this issue. From the Respondents’ perspective, matters deteriorated further. Ms Kaur sent an email to Mr Blewett at 6:25pm on 6 May 2020 in which she stated she was not resigning. She followed this up by sending a medical certificate to Mr Blewett ten minutes later in which she was certified as being unfit for work from 6 May 2020 until Sunday, 17 May 2020. I accept Mr Blewett did not read these emails until the following day. Nevertheless, it is relevant to ask what Mr Blewett did upon receipt of this, bearing in mind this was his first direct communication with Ms Kaur regarding the situation, and bearing in mind he now had some form of independent evidence that supported Ms Kaur’s claim that she was unwell. One might expect that Mr Blewett would telephone Ms Kaur to clarify matters. Or that he might now be concerned enough to commence an enquiry into allegations of bullying. Or that he might reconsider the circumstances in which any purported resignation had been given. Mr Blewett did none of these things. What he did do was call the medical practice because he had concerns about what was contained in the medical certificate. So the medical practice received a call over and above Ms Kaur, a person making serious allegations about a workplace that Mr Blewett was responsible for. While I accept these matters all occurred after Mr Blewett purported to accept the resignation, they are relevant in providing insight into the situation and Mr Blewett’s state of mind.
In all of this, it needs to be borne in mind that Mr Blewett is an experienced and qualified human resources professional. While he may have the qualifications and experience, it is apparent that he did not do any of the basic things, or make any of the basic inquiries, an experienced human resource professional might be expected to in the circumstances which confronted him.
Mr Blewett’s evidence is that he did not accept the purported resignation from Ms Kaur because she had a workplace right, was proposing to exercise a workplace right, or to prevent her exercise of a workplace right. His evidence is that employment came to an end because she resigned. The substantive and operative reason for his action is submitted to be because he considered that Ms Kaur had resigned by both her actions and the statements made on her behalf. In the circumstances which I have outlined above, I do not accept Mr Blewett’s evidence as to the reasons for his action, which led to Ms Kaur’s employment ending. I do not accept that a person of Mr Blewett’s experience would act in the way I have outlined above, or genuinely believe a resignation had been given. In my view, when all of the evidence is considered, and despite his denials, Mr Blewett was concerned that Ms Kaur would exercise her workplace right to initiate process or proceedings in ‘Fair Work’. He was aware she was complaining. His response to that was not to enquire into what had occurred. His response, rather, was to avail himself of the first opportunity to remove her from the business. Asked why he didn’t confirm Ms Kaur’s resignation in writing, Mr Blewett stated, inter alia, it could lead to a further drawn out process. He was, in my view, keen to avoid a drawn out process. He had been informed about potential bullying. He had been informed about the potential for a claim in ‘Fair Work’. All of this would have drawn matters out. Presented with an opportunity to avoid a drawn out process, he grasped it. That reason is amply supported by the various matters to which I have referred above and Mr Blewett’s action and inaction in the circumstances.
For all of the above reasons, Bervar has failed to discharge the onus in section 361 of the Act.
In the circumstances, it follows that Bervar breached section 340 of the Act. Ms Kaur was dismissed from employment. She had a workplace right being the ability to initiate, or participate in, a process or proceedings under a workplace law, being at least the commencement of proceedings in the Fair Work Commission. She was dismissed either because she had that right, or had proposed to exercise that right, or to prevent the exercise of that right. The elements of section 340 have been satisfied.
The claim under section 352 of the Act
Ms Kaur was dismissed from employment. The question raised by this claim is whether Ms Kaur was dismissed because she was temporarily absent from work because of illness or injury of a kind prescribed by Regulation 3.01. The reverse onus of proof in section 361 of the Act is engaged.
The Respondents contended that the reason the employment came to an end was because Ms Kaur resigned from employment. I have rejected that as a reason and set out above the real reason the First Respondent terminated Ms Kaur’s employment.
Accordingly, the claim under section 352 of the Act must fail. Ms Kaur was not dismissed because she was temporarily absent from work because of illness or injury. She was dismissed for the reasons set out above.
THE ACCESSORIAL LIABILITY CLAIMS
The Union contends that Mr Gigliotti and Mr Blewett are liable as accessories in respect of the contravention of section 340 by the First Respondent.
Section 550 of the Act deals with what is commonly termed accessorial liability. Section 550(1) provides that a person who is involved in a contravention of a civil remedy provision of the Act is taken to have contravened that provision. Section 550(2) provides that a person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a)has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d)has conspired with others to effect the contravention.
The general principles relating to accessorial liability were discussed by the High Court in Yorke v Lucas (1985) CLR 661.
The Full Court of the Federal Court of Australia in Ezy Accounting 123 Pty Ltd v Fair Work Ombudsman (2018) 360 ALR 261 referred to the discussion of subsections 550(2)(a) and 550(2)(c) by Justice White in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 (‘Devine Marine’). In that matter, Justice White stated:
[176]Although the general principles relating to accessorial liability are settled, their application in a case such as the present is not without difficulty. In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the requisite intention: Yorke v Lucas (1984) 158 CLR 661 at 667. In order to have the requisite intention, the person must have knowledge of “the essential matters” which go to make up the events, whether or not the person knows that those matters amount to a crime: Yorke v Lucas at 667. Although it is necessary for the person to be an intentional participant and to have knowledge of the matters or things constituting the contravention, it is not necessary for the person to know those matters or things do constitute a contravention: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236 at [159]-[160]. That is to say, it is not necessary that the accessory should appreciate that the conduct in question is unlawful. The Full Court in Rafferty v Madgwicks [2012] FCAFC 37; (2012) 287 ALR 437 summarised the position in this respect at [254]:
[W]hile the identification of the elements of a contravention requires careful legal analysis, “[i]n order to know the essential facts, and thus satisfy s 75B(1) … and like provisions, it is not necessary to know those facts are capable of characterisation in the language of the statute” … This is another aspect of the longstanding principle that it is not necessary for a person to “recognise” the contravention as such, or explicitly to think about the relevant legislation that their actions may contravene …
[177]Actual, rather than imputed, knowledge is required. So much was made clear in Giorgianni v The Queen (1985) 156 CLR 473 at 506-7 by Wilson, Deane and Dawson JJ:
… [Offences of aiding and abetting and counselling and procuring] require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts. …
[178]The notion of being “knowingly concerned” in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring” a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention: Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; (2007) 164 IR 299 at [26]; Qantas Airways Ltd v Transport Workers’ Union of Australia [2011] FCA 470; (2011) 280 ALR 503 at [324]-[325].
[179]As indicated, these principles are not in doubt. The more difficult question arises from their application to the circumstances of this case and, in the identification of the essential facts about which an accessory must have actual knowledge.
In Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299, the Full Court of the Federal Court of Australia stated in relation to accessorial liability:
‘Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct-the accessory should be linked in purpose with the perpetrators (per Gibbs CJ in Giorgianni v The Queen (1985) 156CLR 473 at 479 – 480; see also Mason J at 493 and Wilson, Deane and Dawson JJ at 500). The words “party to, or concerned in” reflect that concept. The accessory must be implicated or involved in the contravention (Ashbury v Reid [1961] WAR 49 at 51; R v Thomas (1987) 10 NSWLR 303 per Lee J at 307E- 308D (agreed with by Street CJ at 304 and Finlay J at 310)) or, as put by Kenny J in Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 117 FCR 588 at [34], must participate in, or assent to, the contravention.’
In this matter, Mr Gigliotti is not an accessory to any contravention. I have found that the First Respondent did not contravene the Act in respect of what occurred on 27 March 2020 and the meeting of 6 May 2020. These were the incidents in which Mr Gigliotti was involved. Given Bervar did not contravene the Act in respect of each of these incidents, Mr Gigliotti cannot be found to be liable as an accessory to any contravention.
In my view, Mr Blewett is an accessory to the contravention of section 340 of the Act. In this respect, I refer to all the matters I have already mentioned above. Mr Blewett was the only participant to the telephone call with Mr Singh on the 6 May 2020. He had knowledge of all of the matters to which I have already referred. He was the person who decided to bring Ms Kaur’s employment to an end in the circumstances with which he was confronted. He communicated with Mr Singh and Ms Kaur and purported to accept the resignation. In doing so, he had knowledge of all of the constituent parts of each of the contraventions. He was clearly, in my view, a person involved in the contraventions committed by Bervar.
DISPOSITION
I have found that Bervar contravened section 340 of the Act when it dismissed Ms Kaur from employment. I have found also that Mr Blewett was an accessory to those contraventions. The Court will make declarations and orders reflecting these reasons. The parties are invited to submit an agreed minute of orders within 21 days of the date of these reasons as to how the matter should proceed. If no minute is submitted, the Court will list the matter for further directions.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 31 May 2022
2