Vukovic v Myer Pty Ltd
[2014] FCCA 985
•2 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VUKOVIC v MYER PTY LTD | [2014] FCCA 985 |
| Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 – Disability Discrimination Act 1992, Sex Discrimination Act 1984, Australian Human Rights Commission Act 1986 not workplace laws. |
| Legislation: Fair Work Act 2009, ss.340, 341, 342, 351, 352, 360, 361, 539, 545, 546 Work Health & Safety Act 2011(NSW), s.28 |
| Cases Cited: Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 Rojas v Esselte Australia Pty Ltd (No 2) (2008) 177 IR 306 Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (1999) 140 IR 131 Randall v Greyhound Australia Pty Ltd[2008] FMCA 1191 United Firefighters Union of Australia v Easy [2013] FCA 763 Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500 Klein v Metropolitan Fire & Emergency Services Board (2012) 208 FCR 178 Hodkinson v Commonwealth (2011) 248 FLR 409 |
| Applicant: | MITCHELL VUKOVIC |
| Respondent: | MYER PTY LTD |
| File Number: | SYG 1758 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing dates: | 5 and 6 May 2014 |
| Date of Last Submission: | 6 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2014 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr J. McLeod |
| Solicitors for the Respondent: | Lander & Rogers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1758 of 2013
| MITCHELL VUKOVIC |
Applicant
And
| MYER PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
From 3 April 2013 until 13 June 2013, when he was dismissed, the applicant, Mr Vukovic, was employed by the respondent (“Myer”) as a sales manager at its Macquarie Centre store at North Ryde in Sydney. On 29 July 2013 Mr Vukovic commenced this proceeding alleging that as a result of his sex, a disability from which he suffered, his exercise of workplace rights and his proposal to exercise his workplace rights, Myer had taken adverse action against him, principally by terminating his employment, in breach of ss.340 and 351 of the Fair Work Act 2009 (“FW Act”).
Allegations
Mr Vukovic’s allegations were contained in his Form 2 form filed with his application and in his points of claim filed on 4 October 2013.
Issues raised by the pleadings
Mr Vukovic alleged that he suffered from anxiety, which had manifested itself on a number of occasions at work, and that this amounted to a disability for the purposes of s.351 of the FW Act. He also relied on the fact that he was a male. He further alleged that during his employment he had raised certain issues of concern with his superior.
Alleged contraventions
Mr Vukovic alleged that as a result of the above facts he had had a workplace right to:
a)initiate or participate in a process or proceeding under the Disability Discrimination Act 1992 (“DDA”) and the Sex Discrimination Act 1984 (“SDA”);
b)make a complaint or enquiry to the Australian Human Rights Commission under the DDA and SDA;
c)initiate or participate in a process or proceeding under the Work Health & Safety Act 2011 (NSW) (“WHS Act”)
and that:
d)as a sales manager he had had a role or responsibility under s.28 of the WHS Act to ensure as far as reasonably practicable the health and safety of staff members whose activities were influenced or directed by him. He alleged that he had therefore had a responsibility to escalate health and safety concerns; and
e)he had been entitled to the benefit of the Workers Compensation Act 1987 (NSW) (“WC Act”) and the Workplace Injury Management & Workers Compensation Act 1998 (NSW) (“WIMWC Act”) because of his work-related disability.
Mr Vukovic alleged that Myer had taken adverse action against him by:
a)dismissing him from his employment;
b)injuring him in his employment by terminating his employment without warning; and
c)discriminating between him and other employees.
He alleged that the adverse action had been taken against him because of his sex and disability and because he had had workplace rights and had proposed to exercise them.
Mr Vukovic sought a declaration that Myer had contravened ss.340 and 351 of the FW Act, compensation for future economic loss and pain and suffering and reinstatement to his job. He also sought pecuniary penalties to be imposed on Myer and paid to him.
Myer contested Mr Vukovic’s claims and said that he had been dismissed during his probation period because he had not performed sufficiently well in his employment for that employment to be continued.
For the reasons which follow, the application will be dismissed.
Relevant legislation
General protections
Part 3-1 of chapter 3 of the FW Act provides for employees’ general protections. Division 3 of pt.3-1 provides for the protection of workplace rights and the exercise of those rights. Sections 340-342 of the FW Act are found in div.3 of pt.3-1 and relevantly provide:
340 Protection
(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. …
341 Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment. …
342 Meaning of adverse action
(1)The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...
Column 2
if ...
1 an employer against an employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
…
Division 5 of pt.3-1 provides for other protections. Section 351 of the FW Act is found in that division and at the time of Mr Vukovic’s employment relevantly provided:
351 Discrimination
(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. …
Section 361 of the FW Act is concerned with proof of the reason for action alleged to be contrary to a provision of pt.3-1 of the FW Act. At the time Mr Vukovic commenced this proceeding, it relevantly provided:
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. …
Section 360 provides:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Penalties and compensation
Section 539 of the FW Act provides that ss.340(1) and 351(1) are civil remedy provisions. In combination, ss.539(2) and 546(2) provide that the maximum pecuniary penalty for a corporation’s contravention of those civil remedy provisions is 300 penalty units. At the time of the alleged breach a penalty unit was worth $170: s.4AA Crimes Act 1914.
Section 545(2)(b) of the FW Act provides that the Court may award compensation for loss suffered because of a contravention of any of the FW Act’s civil remedy provisions.
Contract
Mr Vukovic’s employment was governed by a contract dated 9 April 2013 which he signed on 26 April 2013. That contract relevantly provided:
2. Probation
You are employed on a probationary basis for a period of 3 months, during which time either you or the Company may terminate your employment by the giving of 1 week’s notice or payment in lieu of notice.
Evidence
Mitchell Vukovic
Mr Vukovic commenced work at Myer’s Macquarie store on 3 April 2013. He deposed that he had worked in the retail industry for approximately fourteen years before joining Myer.
First meeting with Ms Denina
On or around 13 April 2013, in the first week of his employment, Mr Vukovic had a meeting with the Macquarie store manager, Susanna Denina, at the Macquarie store’s café. He deposed that during the meeting Ms Denina said to him:
Mitchell, we expect you to be professional when working with female staff and we do not allow you to be friends or play around outside work with the female staff as this has happened in the past with other managers and they have been dismissed.
Mr Vukovic deposed that after Ms Denina made those comments, he was unable to breathe, his face became red from blushing, his body temperature increased, he became sweaty, fidgety, uncomfortable and was unable to concentrate. He deposed that he felt a release of adrenaline and had heart palpitations from a fear that his job was at risk when he had done nothing wrong. He deposed that he also felt that he had to get himself out of danger and that he was being victimised and “set up”. Mr Vukovic deposed throughout the meeting Ms Denina had stared intently at him and looked directly at his forehead as he wiped his face continuously but did not acknowledge his distress. He deposed that his symptoms lasted between two and four minutes.
Mr Vukovic deposed that his anxiety attacks continued to occur when Ms Denina was present at morning management meetings because he felt uncomfortable in her presence. He deposed that Jane Stephens, the operations manager, had asked him several times during those meetings whether he was alright as he would look hot and sweaty.
Anxiety and depression
Mr Vukovic deposed that after he left work on 13 April 2013 he visited Dr Afsaneh Cheheinabi. Attached to his affidavit was a medical certificate dated 21 June 2013 from Dr Cheheinabi diagnosing him with depression and anxiety. Mr Vukovic said that during his employment with Myer he never told anyone there that he suffered from anxiety.
Regional conference
In April 2013 Mr Vukovic attended a regional conference held for all of Myer’s store managers in New South Wales (“NSW”) and the Australian Capital Territory (“ACT”). Each manager was allowed to invite two or three sales managers or other staff members to the conference. Mr Vukovic deposed that during the conference he sat with Ms Denina, Saba Qureshi, the Macquarie store assistant manager, and Jaser Shahidzadeh, another sales manager from the Macquarie store. He deposed that he felt extremely uncomfortable because he was new and only knew Ms Denina and Ms Qureshi and, at the start of the conference when all the attendees were asked to stand up, dance and greet each other, he did not participate as he felt ill. He deposed that several store managers entered the room dressed in costumes and dancing to extremely loud music. Mr Vukovic deposed that the room was hot and he began having symptoms of an anxiety attack so he went to the toilets and took some medication.
Mr Vukovic deposed that at the beginning of the conference, Tony Sutton, Myer’s Executive General Manager Stores, encouraged the participants to pay attention to the speakers rather than take notes. He deposed that at some point during the conference Ms Denina asked Ms Qureshi and Mr Shahidzadeh to take notes and that Ms Qureshi did so but Mr Shahidzadeh did not. Mr Vukovic also said that he had taken some notes and adduced a copy of the conference papers which he had annotated.
Mr Vukovic deposed that during the conference he did not feel comfortable or well and when it ended at around 5.30pm he told Ms Denina that he was leaving. He deposed that she said that there was a “Staff Awards Night” in another part of the hotel. Mr Vukovic deposed that he then attended the awards event until 8pm when he told Ms Denina that he was tired and was going home. He deposed that when he told Ms Denina that he was leaving, she had an expression of anger and he felt that she was angry at his leaving.
Sales manager duties
Mr Vukovic deposed that when he returned to work after the conference he was responsible for the entire ground floor of the Macquarie store by himself because the other ground floor sales manager, Stuart Gill, was on leave. He deposed that at any given time there were about forty-five to sixty-five staff members on the ground floor and that, in his experience, that number required at least four sales managers. Mr Vukovic deposed that in Mr Gill’s absence he had to organise and deal with customer issues as well as answer his telephone fifty to eighty times a day. He deposed to the various tasks he was required to perform.
Allegation by female employees
Mr Vukovic deposed that on 1 May 2013 he attended a meeting with Ms Denina during which the following conversation occurred:
Ms Denina:Mitchell we have had some allegations from a number of females that you are looking at their breasts.
Mr Vukovic: I have always adopted the process of looking at colleagues name badges to address them by their first name. This may be why they think that.
Mr Vukovic deposed that he was shocked by the allegation. He deposed that he began experiencing symptoms of an anxiety attack in Ms Denina’s presence, which included shaking. Mr Vukovic deposed that some time after the attack, and after he had attempted to continue with his duties, he felt that he could not continue to work and asked Ms Denina if he could go home. He deposed that she said:
Mitchell that’s not how we do business around here, you are a young successful guy and at this stage this is only an allegation. It is not going to look good if you go home when you only just started working here.
Performance
Mr Vukovic deposed that he had not had an induction with Ms Denina.He deposed that in May 2013 he had a conversation with her during which he said to her:
I feel that I have too much pressure being the only Sales Manager on the ground level, as Stuart has not yet returned to work. The communication is very poor from Senior Management regarding what’s happening in the store and organisation of day to day activities is not clear. We still have not had any discussions regarding my team, department and work expectations or job description. I have only worked a few shifts with you as we are on separate rosters and I feel like you are not supporting me as my training, induction, safety and register training is behind or I was late in completing them as I was not signed up by yourself or Saba on time.
Mr Vukovic deposed that in response Ms Denina told him that she had spoken to the ladies’ fashion team leader about also taking on the team leader role in the cosmetics department but that that person had refused.
Mr Vukovic deposed that in another meeting with Ms Denina she had raised issues with his customer service. He deposed that he explained to her that he had not yet been trained on how to use the registers and therefore could not serve customers.
Mr Vukovic deposed that on one morning in early May 2013 he opened the store at 9am and provided staff members with sales figures. He deposed that as was his usual practice, he left the store at 9.30am to buy water and morning tea. Mr Vukovic deposed that prior to that morning, his practice had never been raised as an issue. He deposed that before he left he would usually tell the staff to contact him if they needed him.
Ms Mehta
Mr Vukovic deposed that on 1 May 2013 while conducting a floor walk with Ms Qureshi, the latter approached Nimisha Mehta, a staff member, and asked her to wipe the bottoms of some dusty stands using paper towels. Mr Vukovic deposed that he noticed that Ms Mehta seemed to be upset and so he asked Ms Qureshi if it was appropriate for Ms Mehta to conduct the task with paper towels and raised his concern that it was a health and safety issue. He deposed that Ms Qureshi said that she had done it at the Sydney CBD store all the time. Mr Vukovic deposed that approximately thirty minutes later Ms Mehta approached him crying and said she felt victimised by Ms Qureshi and Ms Denina and that they had been punishing her since she had stepped down from a sales manager role. He deposed that he went to see Ms Qureshi about the matter and she advised him to contact Suzanne Cleall, a service support team leader in the store’s general office.
Mr Vukovic deposed that he went on to have the following conversation with Mrs Cleall:
Mr Vukovic: Nimisha from menswear has just approached me crying and she expressed concerns that she feels she is being victimised by Saba and Suzy. Saba has told me to see you because you are her “case worker” and I want to let you know that I don’t feel comfortable with her being on the sales floor as she fears coming to work because of them.
Mrs Cleall:Leave it with me. I am not allowed to speak with you, because this is private.
May 2013 workshop
In May 2013 Mr Vukovic attended what he called a “Delight the Customer” workshop for sales managers at Myer’s Roselands store. He deposed that before the workshop commenced he asked a colleague, Katarzyna Giersz, to go outside with him and suffered an anxiety attack in her presence. He deposed that Ms Giersz called Lynn Howarth, a human resources manager, who asked him what was wrong. Mr Vukovic deposed that after he told Ms Howarth that he did not feel well, she said that he did not look well and offered him some Panadol tablets.
Mr Vukovic said that he had been shaking, red in the face, perspiring on his face and upper body, and had suffered heart palpitations and chest pains. He said that the physical manifestations of his anxiety attack were observed by Ms Giersz and Ms Howarth but Ms Giersz would not have known that he was suffering a panic attack. He said that although Ms Giersz and Ms Howarth knew the symptoms he was suffering, they were unaware of the condition which prompted them.
Floor walks
Mr Vukovic deposed that Ms Denina had always “sprung” “floor walks” on him without prior arrangement and they were always conducted when he was already working on the shop floor. He deposed that he experienced anxiety attacks and hot flushes when Ms Denina conducted unscheduled floor walks.
Mr Vukovic deposed that whenever Ms Denina approached him for a floor walk, he would take some receipt roll from a register to take notes because Ms Denina did not allow him to return to his office to collect a notebook. However, he conceded in cross-examination that Ms Denina had not prevented him from returning to his office to collect a notebook. He said that although he had been asked to, he had not always taken notes when undertaking floor walks but that, contrary to Ms Denina’s evidence, he did take notes during a walk which took place on 11 June 2013.
Mr Vukovic deposed that if the floor walks had been scheduled then he would have been more prepared.
Termination
Mr Vukovic deposed that on 13 June 2013 Ms Denina invited him to a meeting and told him that he would need a witness. Mr Vukovic asked Ms Giersz to be his witness. He deposed that he told her repeatedly that he thought he was about to lose his job and suffered another anxiety attack. Mr Vukovic then attended the meeting with Ms Giersz, Ms Denina and Ms Qureshi. He deposed that during the meeting, Ms Denina’s hands were shaking and she read, in a shaky voice, from a small piece of paper which appeared to have been torn from the corner of a larger piece of paper and which fitted in the palm of her hand. She told him that the probationary clause in his contract was being invoked and his employment terminated immediately because he had not engaged enough, especially at the regional conference and at the workshop in May 2013. Ms Denina said that she had received feedback from Louise Pearson and Brett Dyson, Myer’s general managers for stores in NSW and the ACT, that Mr Vukovic had not taken notes on either occasion. Mr Vukovic deposed to the following conversation:
Mr Vukovic: Your [sic] firing me for not putting pen to paper.
Ms Denina:Yes.
Mr Vukovic: I told you Kate, I was going to loose [sic] my job didn’t I, Kate tell her how much effort I put into my job and what I do.
Ms Giersz:I can’t, I’m not allowed to talk I’m just a witness.
Mr Vukovic: I was sick at both those events which you say I’m disengaged. I’m sitting down focusing and concentrating on the presentations, why would I want to write down anything? Suzy, I come every day on time even early, I complete every task you set me even the unrealistic ones, I’m running the entire ground level on my own, you don’t train me, you don’t support me, it’s absolute chaos on the sales floor, you interrupt my work day and give me things to do that are not my job, you try and bring me down. I fixed that mess of a cosmetics department, it’s running and making money. The staff are happy and the team leaders like me. I received my induction late and my register training late, I don’t know how to even use a register I do everything Saba wants me to do straight away. Kate tell her what I do around here, tell her, don’t be afraid to talk, who cares about her just say it.
Ms Giersz:Mitchell has been the best Sales Manager in that department since I can remember he shows initiative and he implements things that other managers never did or would do.
Mr Vukovic: I told Kate weeks ago this would happen I knew I was going to loose [sic] my job, she laughed at me, didn’t I Kate, tell her.
Ms Giersz: Yes.
Ms Denina:That’s another reason why you’re not suited for the position. So I will print out a letter now saying that your termination is effective now and you must leave the building.
Mr Vukovic said in cross-examination that, when discussing with Ms Denina the extent to which he took notes on floor walks, he had said:
Why shouldn’t I write things down? Only educated people don’t write things down.
Mr Vukovic deposed that during the conversation he could not breathe and had heart palpitations and that after the meeting concluded he was extremely upset, tearful, flushed and shocked. Mr Vukovic deposed that he went to Ms Denina’s office fifteen minutes later and she handed him a piece of paper. He deposed that Ms Denina was very pale and Ms Qureshi, who was also present, looked shocked and disheartened.
Later that day Mr Vukovic sent an email to Ms Pearson claiming that he had been unfairly dismissed and seeking review of his termination.
Susanna Denina
Ms Denina was the Macquarie store manager during Mr Vukovic’s period of employment with Myer.
First meeting with Mr Vukovic
Ms Denina deposed that it was her standard practice to invite new management employees for coffee during their first week of employment. She deposed that she had a coffee meeting with Mr Vukovic within the first couple of days of his employment, on or about 3 or 4 April 2013, during which she welcomed him to the store and provided him with general information about it. She deposed that the meeting did not include any conversation about her expectations of Mr Vukovic regarding his interaction with female staff members.
Ms Denina deposed that Mr Vukovic appeared calm and relaxed throughout their meeting, although he became animated when talking about a friend. She deposed that he did not appear unwell and she had not observed him experiencing any of the symptoms of an anxiety attack. Ms Denina deposed that if she had, she would have taken immediate steps to assist him, such as getting him some water, asking him to lie down and calling an ambulance or other people in the café to assist her. She deposed that she would also have completed a store incident report and telephoned her general managers and the safety team. Ms Denina deposed that during his employment Mr Vukovic had never advised her that he suffered from anxiety or any other medical condition, had never provided a medical certificate, had not indicated that he had seen a doctor and had never taken sick leave.
Regional conference
Each year Myer holds a regional conference for the NSW and ACT region which is attended by Myer’s Chief Executive Officer (“CEO”), its directors, members of the executive management group, all store managers and assistant store managers in the region and two or three selected sales managers from each store. Ms Denina attended the 2013 conference on 18 April with Mr Vukovic, Ms Qureshi and Mr Shahidzadeh. She deposed that at the start of the conference she participated in some light-hearted entertainment during which she and other Myer employees entered the meeting room dressed up and dancing to a song. Ms Denina deposed that when she returned to her allocated table, Mr Vukovic appeared calm and relaxed. She deposed that at some stage during the morning, he left the table, possibly to go to the toilet and she followed him as she had noticed that he appeared to be disengaged and uninterested in the conference. Ms Denina deposed that she found Mr Vukovic outside the door stretching his legs and he said he was not used to sitting down for so long but did not indicate that he was feeling unwell. She deposed that she told him that the CEO was speaking and that they needed to return to the conference room.
Ms Denina deposed that she considered it important to be an active participant at the regional conference and encouraged her team to speak up at question time and to take notes. She deposed that she told Mr Vukovic and Mr Shahidzadeh to take notes and had asked Ms Qureshi to encourage Mr Vukovic to take notes because he was not doing so and appeared disengaged. However, Mr Vukovic did not take notes during the remainder of the conference and continued to look disengaged. Ms Denina deposed that during breaks in the conference she noticed that Mr Vukovic stood on his own without engaging with anyone.
The conference finished at approximately 5.30pm and was followed by an “Inspirational People Awards” night. Ms Denina deposed that she mentioned to Mr Vukovic that the awards night was in a different part of the conference venue. She deposed that Ms Vukovic subsequently attended the awards nights with Ms Qureshi and Mr Shahidzadeh and stayed for the greater part of the evening, before advising her that he was leaving. She deposed that she was not angry with Mr Vukovic when he left and although she was concerned about his lack of engagement and did not understand why he did not want to be there, did not express those concerns at that time.
Ms Denina deposed that after the conference she received feedback from other managers who had attended, to the effect that Mr Vukovic had appeared uninterested and disengaged.
Ms Denina also deposed that she had received feedback from Ms Howarth and Ms Pearson that Mr Vukovic had appeared disengaged and had not participated at the May 2013 “Delight and Inspire” workshop for sales managers.
Sales manager duties
At the time Mr Vukovic was employed, the Macquarie store’s management team included Ms Denina, Ms Qureshi, an operations manager, four sales managers (including Mr Vukovic) and a trainee sales manager. Sales managers were supported by team leaders who in turn were directly responsible for the floor staff known as team members. Ms Denina deposed that when she was the Macquarie store manager, each of the store’s two floors was allocated two sales managers who were responsible for certain departments, with Mr Vukovic responsible for managing the cosmetics, womenswear and accessories departments on the ground floor. She deposed that both sales managers were rostered to work on the floor during peak periods and that only one was rostered during non-peak periods. The sales managers were also assisted by the rest of the management team during busy times.
Ms Denina deposed that on average a sales manager on the ground floor of the Macquarie store oversaw twenty-seven to forty team members and received at least thirty telephone calls. The typical duties of a sales manager included ensuring that team members arrived on time and had allocated areas of responsibility, ensuring customers were served, ensuring that there was stock on the floor, placed in accordance with visual merchandising standards, and ensuring that ticketing was correct. During busy periods, such as lunch-time, sales managers were also required to approach and serve customers, in addition to their other duties.
Ms Denina deposed that while at the Macquarie store she conducted management team meetings every day which started at 8.15am and lasted thirty to forty-five minutes. She deposed that the room in which the meetings were held was often quite hot and it was not uncommon for Mr Vukovic and others to visibly perspire during the meetings. Ms Denina deposed that she had observed that when Mr Vukovic was running late for the meetings or had the responsibility of opening the store doors he would perspire, which she did not think was unusual.
Allegation against Mr Vukovic
Ms Denina deposed that on 1 May 2013 a team member with one of the concession businesses within the store came into her office and told her that some of the female staff members felt that Mr Vukovic looked at their breasts when talking to them, which made them uneasy and uncomfortable. Ms Denina deposed that the team member indicated that she did not want to initiate a formal complaint but wanted the behaviour to stop and also to remain anonymous.
Ms Denina deposed that after the team member left her office, she telephoned Mr Dyson to seek his guidance on how to manage the issue. Mr Dyson told her to talk to Mr Vukovic but to make it clear that it was just an allegation of which he needed to be aware and that there was no formal complaint. Ms Denina also telephoned Eliza Jordan, a human resources officer at the Myer support office in Melbourne, who advised her to inform Mr Vukovic of the allegation, indicate that Myer did not have evidence to substantiate it but that he should be aware of the issue when interacting with female staff members and that, even if inadvertent, such behaviour should not occur.
Ms Denina deposed that at approximately 6.30pm on that day, she invited Mr Vukovic to her office and told him about the allegation. She deposed that she repeatedly stressed that it was only an allegation because she wanted Mr Vukovic to understand that she was not accusing him of anything. Ms Denina deposed that she told Mr Vukovic that if such behaviour had occurred it should stop. He responded by saying:
I can’t believe this.
Maybe it is because I am only new and I am probably looking at their name badges and don’t know anyone’s name.
Ms Denina deposed that Mr Vukovic appeared embarrassed and blushed, which she thought was understandable given the awkward nature of the conversation, but did not appear to have reacted in the manner he described in his affidavit. She deposed that they went over the allegation several more times as Mr Vukovic sought further clarity on what had occurred and she emphasised that it was just an allegation. Ms Denina deposed that Mr Vukovic said “OK” before leaving her office and returning to work. She deposed that she telephoned Mr Dyson to inform him of the outcome of the discussion and informed him that Mr Vukovic appeared to be fine at the conclusion of their discussion.
Ms Denina deposed that the store was conducting a “scan count” that night, effectively a stock take, which required all staff members, including Mr Vukovic, to work after the store closed. She deposed that at approximately 7.30pm Mr Vukovic approached her and said that he wanted to go home because of what had happened. Ms Denina deposed that she took Mr Vukovic to her office and said to him:
Mitchell, it won’t be a good look if you go home because it is your first scan count, and you have just started at the store. No one is accusing you of anything, it is just an allegation.
Ms Denina deposed that she believed that it was important for Mr Vukovic to be present at the scan count because it was a team effort. She deposed that she again repeatedly emphasised that the issue with the female staff members was just an allegation which would not be taken further. Ms Denina deposed that Mr Vukovic visibly “perked up” and said:
Oh OK, I thought I was in trouble.
Mr Vukovic returned to work and stayed until the scan count was complete. Ms Denina deposed that later that night she reviewed the store’s CCTV footage of the scan count for an unrelated matter and observed Mr Vukovic actively and positively engaging with other team members and performing his duties.
Performance issues
Ms Denina deposed that during the course of Mr Vukovic’s employment she had been concerned about his long-term suitability for the role of sales manager. She deposed that her overall impression of his demeanour and attitude towards his job was that he did not want to be at work, that he was not engaged and that he was not a team player.
Ms Denina deposed that on one morning in early May 2013, prior to the store opening she attended the cosmetics counter and noticed that it was unstaffed. She deposed that she tried to page Mr Vukovic a few times but he did not answer. Ms Denina deposed that the store opened at 9am and at 9.15am she saw Mr Vukovic enter the store through the front door with a bag of groceries and a bottle of water. She deposed that when she asked him where he had been, Mr Vukovic replied, with a smirk on his face, that he liked to get his lunch early in the morning so that he did not have to queue at lunchtime.
Ms Denina deposed that the conversation said by Mr Vukovic to have occurred in May 2013, about the pressure he was allegedly feeling, had not occurred. She deposed that on 16 May 2013 she had the following conversation with him:
Ms Denina:Mitchell, help me to understand how you have come from a retail environment when I don’t see you doing anything to service the customers? You don’t acknowledge customers. I’ve seen you just stand there and stare into thin air and customers walk right past you and you don’t acknowledge them. I’ve seen customers looking at the directory board and you are doing nothing and you don’t even approach them.
Mr Vukovic: Can you give me more examples of what you are talking about?
Ms Denina:I don’t see you move. I don’t see you engaged. You don’t walk the floor and you don’t talk to customers. You stay in the one spot.
She deposed that she told Mr Vukovic that his performance was below what she expected of a sales manager. Ms Denina deposed that Mr Vukovic did not say much in response but she subsequently observed that he improved his interaction with customers. She deposed that, however, he was still not sufficiently customer focused and performed below the level of a sales manager.
Ms Denina deposed that on 5 June 2013 Mr Vukovic was the only staff member who witnessed a male person enter the store before it opened and walk through the back of the store. She deposed that he only advised her of the fact thirty minutes after he observed the man. Ms Denina deposed that she immediately made enquires and found out that the person was a visitor who had signed in to fix the store’s air conditioning. She deposed that Mr Vukovic had failed to follow the proper procedure in raising the alert and should have made the same enquiries she made on his own. She deposed that when she explained that to Mr Vukovic he said that he did not know what “the big deal” was. Ms Denina deposed that she found his response unsatisfactory.
Ms Denina deposed that each day she or Ms Qureshi conducted “floor walks” to check on each department in the store. She deposed that the walks were always unscheduled because they depended on the store’s activity on each day. Ms Denina deposed that during the walks sales managers were expected to take notes and carry a “things to do” checklist and she or Ms Qureshi would provide feedback about any changes that needed to occur on the shop floor. She deposed that Mr Vukovic had been informed by her and Ms Qureshi on several occasions that he was required to take notes during the floor walks and ensure that the “things to do” checklist was up to date.
Ms Denina deposed that on 11 June 2013 she told Mr Vukovic that he was required to attend a floor walk with her and Jason Garcia, a visual merchandise manager. Ms Denina deposed that during the walk she observed that sales tickets were missing, there were empty stock towers and stock needed to be replenished. About five to ten minutes into the walk, she told Mr Vukovic that he needed to compile a list of the matters that needed to be remedied. Mr Vukovic then proceeded to the nearest register and took out some paper used to print customer receipts but did not take any notes when the floor walk continued. Ms Denina deposed that she asked Mr Vukovic to not continue the walk because he had clearly disregarded her instructions.
Ms Denina deposed that she often interacted with Mr Vukovic during floor walks and had never observed him suffering symptoms of an anxiety attack.
Termination
Ms Denina deposed that on 11 June 2013, after taking into account Mr Vukovic’s performance issues, she decided to terminate his employment by invoking the three month probationary period clause in his contract. She deposed that she formed the view that given Mr Vukovic’s performance and lack of enthusiasm, it was not appropriate for Myer to continue to employ him.
Ms Denina deposed that at around 8am on 13 June 2013 she asked Mr Vukovic to attend a meeting about his probationary period and told him that he would need a witness. At approximately 8.15am Ms Denina held a meeting with Mr Vukovic, Ms Qureshi and with Ms Giersz as Mr Vukovic’s witness. Ms Denina deposed that she took with her to the meeting a standard Myer “Invoking Probationary Period – Discussion Script” which she had filled out prior to the meeting. The document described the reasons for the termination as being Mr Vukovic’s disengagement at the regional conference and sales manager’s workshop, his unsatisfactory customer performance as discussed at the 16 May 2013 meeting and his behaviour during the floor walk on 11 June 2013. Ms Denina deposed that she read directly from that document without deviating from the script because she thought it was important to conduct the meeting in a professional manner and in accordance with Myer’s policies and procedures. She deposed that after she finished reading the script, Mr Vukovic became aggressive, put his hands on the table and in a raised voice said:
Why should I write things down? Only uneducated people write things down.
Ms Denina deposed that she responded by telling him that that was another reason why he was not suited to the business, a response which was predicated on her view that it is professional to write things down and take notes. She deposed that she was also offended by his comment because he was effectively saying that she and the other staff in the store were uneducated. Ms Denina deposed that Mr Vukovic also said:
I knew four weeks ago that I wouldn’t make probation. I told Kate I wouldn’t and she laughed. Tell her Kate.
Ms Denina deposed that Ms Giersz did not say anything. She deposed that at that stage she considered that the meeting had ended because she thought that there was no benefit in continuing the discussion when Mr Vukovic was visibly angry and upset. Ms Denina deposed that Mr Vukovic had not made any statements in his defence during the meeting.
Ms Denina deposed that after the meeting she returned to her office and fifteen minutes later gave Mr Vukovic his letter of termination. Mr Vukovic left the store shortly afterwards. Ms Denina deposed that she had not observed Mr Vukovic experiencing symptoms of an anxiety attack during or after the meeting. She deposed that when she handed him the termination letter he appeared calm.
Ms Denina deposed that she had not terminated Mr Vukovic’s employment because of his sex, his alleged disability or because he had a right to initiate or participate in a process or proceeding under a relevant law or a supposed role, responsibility or entitlement to a benefit under a relevant law.
Katarzyna Giersz
Ms Giersz is a sales manager at Myer’s Macquarie store. She deposed that when Mr Vukovic commenced work Ms Qureshi asked her to be his “buddy” and to teach him the basics of working at Myer, including matters relating to how the store operated, compliance and safety.
Ms Giersz deposed that as a sales manager at the Macquarie store she also undertook the tasks described by Mr Vukovic, such as managing between forty-five to sixty-five staff members, dealing with customer issues, answering telephones fifty to eighty times a day, preparing break sheets, communicating sales figures daily, providing feedback to staff members as part of their monthly assessments, completing daily safety check lists and calculating hourly gap targets. She deposed that when she was the only sales manager rostered to work, she was responsible for approximately fifty to sixty staff members and that it was not uncommon for her to receive constant telephone calls relating to store and customer issues.
Ms Giersz deposed that she attended the “Delight and Inspire” workshop on 31 May 2013 with Mr Vukovic. She deposed that there were about one-hundred attendees and the room they were in had been very hot and quite small. Ms Giersz deposed that when they arrived, she and Mr Vukovic sat in the middle of the room but after a few minutes Mr Vukovic said that it would be difficult for him to stay in the room because it was very hot. She deposed that she suggested to Mr Vukovic that he follow her to the back of the room because she had noticed that there was a door open and thought there might be better ventilation. Ms Giersz deposed that as they were walking to the back of the room they ran into Ms Howarth in the aisle. Ms Giersz explained to Ms Howarth that Mr Vukovic was hot and asked if he could sit at the back of the room or at the end of a row where there was better ventilation. Ms Howarth arranged a seat at the back of the room for Mr Vukovic. Ms Giersz deposed that she observed that Mr Vukovic appeared to be hot and was a little red in the face but did not think that that was unusual because the room was hot and he also often perspired and appeared hot at work. She deposed that Mr Vukovic did not indicate to her that he was otherwise feeling unwell. Ms Giersz deposed that she returned to her seat at 9am and that during the workshop’s morning tea break at approximately 11.30am she found Mr Vukovic outside and, when she asked him how he was feeling, he said “much better”.
Ms Giersz deposed that at around 8am on 13 June 2013 she was approached by Mr Vukovic who asked her to be a witness at a meeting he was scheduled to attend with Ms Denina. She deposed that Mr Vukovic said that he did not know what the meeting was about and that he was nervous about it but did not explain why he was nervous.
Ms Giersz deposed that Ms Denina commenced the meeting by telling Mr Vukovic that the purpose of the meeting was to discuss his probationary period. She deposed that Ms Denina read directly from a standard discussion record document used by Myer managers for performance related discussions with employees and told Mr Vukovic that his employment was being terminated. Ms Giersz deposed that Ms Denina said that Mr Vukovic’s employment was being terminated because:
a)he had not followed her instructions to take notes at the regional conference and other managers present at the conference had given feedback that he had not been taking notes;
b)she had received feedback that he had not shown any interest at the “Delight and Inspire” workshop, had not participated and had not shown initiative; and
c)he was not meeting her expectations.
Ms Giersz deposed that Mr Vukovic appeared to be surprised and upset and said words to the following effect:
You are firing me for not putting pen to paper! I told you Kate, I was going to lose my job didn’t I? Kate, tell her how much effort I put into my job”.
Ms Giersz deposed that in response she shook her head to indicate that she could not speak because she was just a witness to the meeting. She deposed that she did not speak at all during the meeting. Ms Giersz could not recall if Ms Denina responded to Mr Vukovic’s statements but deposed that she was professional during the meeting and followed the discussion record script at all times.
Ms Giersz deposed that Ms Denina advised Mr Vukovic that his termination was effective immediately and took his name badge and security pass. Mr Vukovic then left the room. Ms Giersz deposed that Mr Vukovic was upset and angry before he left the room.
Suzanne Cleall
Mrs Cleall is employed part-time at Myer’s Macquarie store as a service support team leader in the general office. Amongst her tasks in that role she operates the switchboard, acts as the rehabilitation co-ordinator, undertakes roster scheduling and deals with the payroll. Since March 2003 Mrs Cleall has also been the equal opportunity contact officer at the Macquarie store and in that role provides support and advice to staff members if they feel that there has been a breach of Myer’s equal opportunity policy.
Mrs Cleall deposed that on 1 May 2013 she received an internal telephone call from Ms Mehta. Ms Mehta asked to be transferred to Ms Qureshi but when Mrs Cleall attempted to transfer the call Ms Qureshi did not answer her phone. Mrs Cleall deposed that approximately five to ten minutes later Mr Vukovic telephoned her and said that Ms Mehta was very upset and wanted to speak to Ms Qureshi. Mrs Cleall deposed that she arranged to meet Mr Vukovic in the menswear department so they could speak privately and did so shortly thereafter. She deposed that they had the following conversation:
Mr Vukovic: Nimisha from Menswear has just approached me and she is upset and expressed some concerns that she feels as if she has been picked on by Saba.
Mrs Cleall:I am a Contact Officer and I understand the sensitivities around these matters. Mitchell can you please try and find Saba to let her know about the matter raised by Nimisha and give her the heads up about this?
Mrs Cleall deposed that both she and Mr Vukovic subsequently tried to contact Ms Qureshi by telephone without success. She deposed that shortly afterwards Mr Vukovic spoke to Ms Qureshi. Mrs Cleall also spoke to Ms Qureshi and found out that Ms Mehta had already spoken to Ms Qureshi. Mrs Cleall deposed that Ms Qureshi said that everything was fine after her conversation with Ms Mehta but did not discuss the details of the conversation. She deposed that she told Ms Qureshi to contact Ms Denina or human resources if she had any concerns or thought that the issue would escalate. Mrs Cleall deposed that when conducting a routine floor walk later that day she approached Ms Mehta and asked her how she was. Ms Mehta responded that she was “good”.
Mrs Cleall deposed that she had interacted with Mr Vukovic several times each day during his employment and had never witnessed him suffering the symptoms of an anxiety attack.
Jane Stephens
Ms Stephens is the operations manager at the Macquarie store. She deposed that she interacted with Mr Vukovic several times each day during his employment with Myer, including on the shop floor and at management meetings held at 8.15am each day.
Ms Stephens deposed that prior to the commencement of this proceeding, she had not been aware that Mr Vukovic claimed to have suffered from anxiety while employed with Myer. She deposed that from time to time she had observed Mr Vukovic perspiring but had believed that he was just a person who perspired heavily. She deposed that he came across as a well presented and confident young man and she had not thought that his perspiring had anything to do with anxiety or nerves. Ms Stephens deposed that she did not recall having conversations with Mr Vukovic at management meetings during which she asked him if he was alright because he was perspiring and looked hot.
Lynn Howarth
Ms Howarth is a team leader in Myer’s NSW and ACT human resources department. As part of her role she was required to organise and help run the “Delight and Inspire” workshop for sales managers on 31 May 2013. Ms Howarth deposed that Mr Vukovic was seated at the back of the room in which the workshop was held and about an hour into the workshop she noticed him leave the conference room and go outside whilst coughing and looking unwell. She deposed that she followed Mr Vukovic to check on him and when she asked him if he was alright they had the following conversation:
Mr Vukovic: I have the flu or something. I have a bad headache. I woke up today and wasn’t feeling well. I wasn’t going to come in, but I decided to come in because it is an important day.
Ms Howarth: Yes, it is an important day. I have some Panadol in my pocket, have you taken any?
Mr Vukovic: No.
Ms Howarth: Would you like some?
Mr Vukovic: Yes, Thank you.
Ms Howarth deposed that she then gave Mr Vukovic two Panadol tablets. She deposed that after he had taken them she told him to remain at the back of the room so that it would be easier for him to leave if he needed some fresh air. Ms Howarth deposed that she was not surprised by Mr Vukovic’s claim to be suffering from flu because it was winter and she was aware that other attendees at the workshop were also suffering from it.
Ms Howarth deposed that when she followed Mr Vukovic outside she did not observe him being unable to breathe or concentrate. She deposed that Mr Vukovic had not said that he was having an anxiety attack and that she had had no reason to believe that he had suffered one. She deposed that if she had believed that Mr Vukovic was suffering an anxiety attack, she would have taken steps to check on his welfare or seek medical advice and would not have simply handed him some Panadol tablets.
Consideration
The essence of Mr Vukovic’s case was that he had not performed poorly as Myer asserted and that, as there was no legitimate performance-based reason for his dismissal, his employment must have been terminated for other, prohibited reasons.
In order for Mr Vukovic’s case to be made out, the Court must be satisfied that:
a)Myer took adverse action against him;
b)he had one of the attributes described in and protected by ss.340(1)(a) and 351(1); and
c)Myer took the adverse action because he had one or more of those attributes.
Adverse action
Mr Vukovic’s allegation that Myer took adverse action against him turned on his dismissal from his employment. The alleged injury to him in his employment and discrimination against him, as species of adverse action, do not need to be considered separately because they too were concerned with the dismissal. Indeed the outline of submissions Mr Vukovic filed in Court on 5 May 2014 acknowledged as much at paras.42, 50, 51, 57 and 58.
There was no dispute that Mr Vukovic had been dismissed from his employment with Myer. Consequently, the adverse action element of Mr Vukovic’s cause of action has been made out.
Protected attributes
When it came to having attributes described in ss.340(1)(a) and 351(1), Mr Vukovic’s written submissions made reference to his claim to have had a disability arising out of anxiety attacks, to the fact that he was a male and that as a result of those personal characteristics, he had had the right to initiate or participate in a process or proceeding under the DDA and SDA and to make a complaint to the Australian Human Rights Commission, under the Australian Human Rights Commission Act 1986 (“AHRC Act”). Mr Vukovic also referred to the possibility that he could have been entitled to workers’ compensation benefits in connection with his anxiety condition and to a duty, which he said s.28 of the WHS Act had imposed on him as a sales manager, to ensure the health and safety of the staff for whom he had supervisory responsibility.
Mr Vukovic observed in his written submissions that he was entitled under the WHS Act to ask WorkCover to resolve a work, health and safety issue at the Macquarie store but he did not suggest he had exercised or had foreshadowed exercising that workplace right. Nor did he submit that his dismissal was connected with that right. Consequently, it will not be considered further.
Workplace rights – s.340
Although the DDA, the SDA and the AHRC Act did potentially provide Mr Vukovic with certain rights, they were rights of a general nature with no particular link to the workplace. Those statutes are not workplace laws and thus do not provide the basis for any workplace right of the sort protected by s.340 of the FW Act.
In relation to Mr Vukovic’s claimed rights under s.9 of the WC Act and ss.65 and 66 of the WIMWC Act I accept, based on the medical certificate which was part of annexure B to Mr Vukovic’s affidavit of 29 November 2013 that, from at least 13 April 2013, he suffered from an anxiety condition. Notwithstanding the date of what may have been the first diagnosis of the condition, the evidence does not support a conclusion that that condition arose from any work-related cause. However, because of certain directions I made at the trial I will accept for the sake of argument that it did.
On the basis of the assumption that Mr Vukovic’s anxiety condition was caused by his employment at Myer, it can be accepted that he had certain rights under s.9 of the WC Act and ss.65 and 66 of the WIMWC Act in connection with that condition. These were rights to at least seek and possibly to be paid compensation and to be provided with an injury management plan.
Finally, although Mr Vukovic alleged that he had certain responsibilities under s.28 of the WHS Act, the wording of that provision does not bear out that allegation:
28 Duties of workers
While at work, a worker must:
(a)take reasonable care for his or her own health and safety, and
(b)take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and
(c)comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and
(d)co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.
Disability – s.351
Related to Mr Vukovic’s compensation and injury management rights was the allegation that he suffered a disability in the form of his anxiety condition. Mr Vukovic alleged that this condition caused him to perspire, to become red in the face, to shake and to suffer chest pains and heart palpitations.
I am willing to accept that Mr Vukovic’s anxiety condition created difficulties for him at the regional conference and at the “Delight and Inspire” workshop. I therefore also accept that it amounted to a disability. However, I am not persuaded that it had any appreciable impact on the discharge of his duties or that it manifested itself other than as perspiration and a flushed face, discomfort when in hot, crowded and noisy rooms and discomfort when interacting with Ms Denina. Specifically, the evidence does not persuade me that Mr Vukovic shook in a way which was perceptible to other people.
Findings
I find that at the time he was dismissed, Mr Vukovic possessed the following protected attributes:
a)he had a workplace right in the form of his rights under the WC Act and the WIMWC Act in relation to his anxiety condition;
b)he was a male; and
c)he had a disability in the form of an anxiety condition.
Reasons for adverse action
The remaining issue is whether such adverse action as was taken was taken for a reason prohibited by ss.340 or 351. Mr Vukovic submitted that s.361 of the FW Act required Myer to rebut the presumption that he had been dismissed for a prohibited reason. However, as Myer pointed out, the onus of proof will only shift to a respondent by virtue of s.361 if an applicant demonstrates that the respondent took adverse action against the applicant and that the applicant had, depending on the particular allegation, one of the attributes described in ss.340(1)(a), 351(1) or 352: Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at 501 [109]; Rojas v Esselte Australia Pty Ltd (No 2) (2008) 177 IR 306 at 321-322 [49]; Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (1999) 140 IR 131 at 167 [161]-[162]; Randall v Greyhound Australia Pty Ltd[2008] FMCA 1191; United Firefighters Union of Australia v Easy [2013] FCA 763 at [41]. Myer submitted that Mr Vukovic had not made out important elements of his allegations in respect of which he bore the onus of proof with the consequence that it was not called upon to prove that its dismissal of him had not been for a prohibited reason.
Because of the findings I have made concerning the protected attributes possessed by Mr Vukovic, I conclude that s.361 of the FW Act is engaged and that its rebuttable presumption that the relevant adverse actions was taken for a prohibited reason applies to this case in relation to the attributes I have identified.
In Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500 the High Court considered the proper approach to determining whether adverse action has been taken for a prohibited reason. In Klein v Metropolitan Fire & Emergency Services Board (2012) 208 FCR 178 at 205 [100] Gordon J summarised in the following terms that part of the ratio of Barclay’s case relevant to these proceedings:
1.the test of whether action was because of a proscribed reason was neither a subjective nor an objective test … ;
2.direct evidence of the decision-maker as to state of mind, intent or purpose, will bear upon the question of why adverse action was taken … ;
3.direct evidence from the decision-maker which is accepted as reliable is capable of discharging the burden on the employer … ;
4.it is wrong to inquire into the “unconscious” state of mind of the decision-maker … ; and
5.the question is whether the asserted proscribed reason is a “substantial and operative” reason for taking the adverse action … .
Workplace rights
No evidence was adduced to suggest that Mr Vukovic had ever sought to exercise such rights as he may have had under state workers compensation legislation. Further, I am satisfied by Ms Denina’s evidence that the matters which were of concern to her regarding Mr Vukovic were related to his performance of his duties and were quite unrelated to any workers compensation rights he might have had.
Sex
I am also of the view that Mr Vukovic’s sex had nothing to do with his dismissal. It was agreed that Ms Denina had raised with Mr Vukovic female staff members’ perceptions that he had been looking at their breasts but he provided what appears to have been accepted as an adequate explanation and the issue did not arise again. Mr Vukovic also said that Ms Denina had told him at their initial café meeting to not “play around” with female staff members. I think it unlikely that Ms Denina made a statement to that effect but, even if she had, it was not suggested that Mr Vukovic had pursued friendships outside work with female staff members of Myer Macquarie in breach of that alleged instruction or that Myer had ever believed or suspected that he had. Again Ms Denina’s evidence satisfies me that she dismissed Mr Vukovic based on her assessment of his work performance and not for any reason associated with his sex.
Disability
Mr Vukovic’s anxiety-related disability does raise questions concerning whether Ms Denina’s decision was based, if only in part, on the fact that Mr Vukovic suffered from anxiety. I accept that Mr Vukovic believed his work performance did not justify his dismissal but I found Ms Denina to be an impressive and convincing witness. Further, in light of Mr Vukovic’s evidence concerning what he had said at his termination interview about people who do and do not take notes, which I am not prepared to accept was accurate, I have doubts as to the accuracy of his evidence more generally and consequently prefer Ms Denina’s evidence where it differs from his. In reaching that conclusion I have also had regard to the evidence of Ms Giersz, whom I also found to be an impressive and convincing witness, and the fact that she contradicted Mr Vukovic’s evidence that she had spoken up for him at the termination interview.
Consequently, I find that Ms Denina did ask Mr Vukovic to take notes at the regional conference, as well as on the 11 June 2013 floor walk, and that Mr Vukovic failed to comply with those directions. In making that finding I have had regard to the annotated conference papers adduced by Mr Vukovic but do not consider those annotations to amount to notes. I am also satisfied that Ms Denina was not angered by Mr Vukovic’s departure from the conference’s awards night.
Further, I find that at the termination interview Ms Denina read from the script of which a copy was annexed to her affidavit. I accept Ms Denina’s evidence when she says that the script reflected her reasons for dismissing Mr Vukovic and I therefore find that that document recorded the bases for Mr Vukovic’s dismissal. I note that none of those issues reflected a concern that Mr Vukovic suffered from anxiety, a condition which Mr Vukovic conceded he had not disclosed to Myer, or that he was disabled in some way because of that condition. To the extent that Mr Vukovic suggested that any perceived inadequacies in his performance arose out of his condition, I refer to my reasons above at [96] to the effect that such a proposition has not been made out.
Other issues – human rights legislation
Mr Vukovic’s written submissions suggested that the DDA and the SDA had some role to play in this proceeding. However, for the reasons expressed in Hodkinson v Commonwealth (2011) 248 FLR 409 at 442-444 [138]-[146], conduct which contravenes the DDA does not, by reason of that contravention, also contravene the FW Act. For analogous reasons, conduct which contravenes the SDA does not, by reason of that contravention, also contravene the FW Act.
Further, to the extent that Mr Vukovic’s claims were based on the DDA or the SDA themselves, they also fail for the reasons expressed in Hodkinson at 452-453 [188].
Conclusion
I find that Ms Denina terminated Mr Vukovic’s employment for the reasons she stated and that those reasons did not include a prohibited reason.
In those circumstances, Mr Vukovic’s application will be dismissed.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 2 June 2014
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