Waknin v Servcorp Administration Pty Ltd
[2023] FedCFamC2G 634
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Waknin v Servcorp Administration Pty Ltd [2023] FedCFamC2G 634
File number(s): SYG 207 of 2022 Judgment of: JUDGE D HUMPHREYS Date of judgment: 19 July 2023 Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 – exercise of workplace right to take unpaid parental leave – adverse action – Applicant’s employment terminated – failure to provide written notice of termination – determination of liability. Legislation: Fair Work Act 2009 (Cth) ss 117, 340, 341, 342, 351, 361 Cases cited: Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526
Board ofBendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697
Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014
Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307
Qantas v Transport Workers’ Union of Australia (2022) 292 FCR 34
Tattsbet and Morrow (2015) 233 FCR 46
Division: Division 2 General Federal Law Number of paragraphs: 94 Date of last submission/s: 30 June 2023 Date of hearing: 30 June 2023 Place: Parramatta Counsel for the Applicant: Ms Perigo Solicitor for the Applicant: Haywards Solicitors Counsel for the Respondent: Ms Thew Solicitor for the Respondent: Holman Webb Lawyers ORDERS
SYG 207 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DANIEL WAKNIN
Applicant
AND: SERVCORP ADMINISTRATION PTY LTD ACN 102 643 667
Respondent
order made by:
JUDGE D HUMPHREYS
DATE OF ORDER:
19 July 2023
THE COURT ORDERS THAT:
1.A declaration be made pursuant to s 545 of the Fair Work Act 2009 (Cth) (“the Act”) that the Respondent contravened s 117 of the Act by failing to provide the Applicant with written notice of his termination before the minimum period of notice.
2.The Applicant’s claim in relation to adverse action is dismissed.
3.The Applicant is to file and serve written submissions with respect to penalties of no more than 10 pages before 4:00pm on 24 July 2023.
4.The Respondent is to file and serve written submissions with respect to penalties of no more than 10 pages before 4:00pm on 31 July 2023.
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 D HUMPHREYS
INTRODUCTION
Mr Daniel Waknin, the applicant, works in the sales area. On 16 November 2020, he commenced employment with the respondent, Servcorp Administration Pty Ltd, as a sales Director in relation to the provision of serviced and virtual offices.
The applicant is in a same sex relationship with his partner. They were married in 2021. In March 2021, the couple entered into surrogacy agreements with two gestational carriers in the United States. Their first child was due to be born on in late January 2022, with the second in March 2022. Mr Waknin agreed that he would be the primary carer.
Mr Waknin alleges that on the morning of 29 October 2021, he had a conversation with his supervisor, Mr John Henderson, the Chief Operating Officer of Servcorp, in which he told Mr Henderson that he and his husband were expecting children and that after his return from annual leave over Christmas he would be applying for parental leave.
That afternoon, after he returned from lunch, Mr Waknin alleges he was terminated from his position on the basis of redundancy. Mr Waknin subsequently commenced proceedings in this Court claiming that Servcorp breached ss 117, 340 and 351 of the Fair Work Act 2009 (Cth) (“the Act”) by taking adverse action against him on the basis that he exercised a workplace right and by not providing him with a written notice of his termination.
For the reasons set out below, the application succeeds only in relation to the claim pursuant to s 117 of the Act for the failure to provide written notice.
THE LAW IN RELATION TO ADVERSE ACTION
Part 3(1) Division 3 of the Act sets out various work place rights for employees. Section 340 of the Act provides as follows:
1) A person must not take adverse action against another person:
a)because the other person:
i.has a workplace right; or
ii.has, or has not, exercised a workplace right; or
iii.proposes or proposes not to, or has any time proposed not to, exercise a workplace right; or
b)to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).
2) A person must not take adverse action against another person (the second person ) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4-1).
Section 341 of the Act relevantly defines a work place right to include:
1) A person has a workplace right if the person:
…
c)is able to make a complaint or inquiry:
…
ii.if the person is an employee--in relation to his or her employment.
Section 342 of the Act relevantly sets out the meaning of adverse action. This includes:
Adverse action is taken by an employer against an employee if the employer:
a) dismisses the employee; or…
c) alters the position of the employee to the employees prejudice…
The definition of s 341(c)(ii) of the Act is one that might be satisfied by an employee making a complaint to their employer: Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307 paragraph [141]. There must be a relevant connection between the complaint and the employee’s employment, albeit it may be an indirect one: Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [61]-[64].
Where an applicant alleges a contravention of s 340 of the Act, to be established, they bear no burden of proving the reasons for the adverse action. Section 361 of the Act provides as follows:
Reason for action to be presumed unless proved otherwise
1) If:
a)In an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
b)taking that action for that reason or with that intent would constitute a contravention of this Part;
It is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
This must, however, be read in conjunction with s 360 of the Act which states as follows:
Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Thus, although under s 360 of the Act the prohibited reason need only be one of multiple reasons for acting, in order to be a contravention, the prohibited reasons must be a “substantial or operative factor” in influencing the adverse action, or alternatively, an operative or immediate reason for acting: Board ofBendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (“Board of Bendigo”) at [62] per French CJ and Crennan J, [104] per Gummow and Hayne JJ, [140] per Heydon J.
This requires that the Court, at a minimum, to conduct an enquiry to the state of mind of the decision maker. Where multiple people are involved in the decision making process, such an enquiry may involve taking into account all these decision maker’s reasons: Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014 per Reeves J at [103]- [104]. In Board of Bendigo at paragraph [45] per French CJ and Crennan J it is stated:
Generally it will be extremely difficult to displace the statutory presumptions in s 361 if no direct testimony is given by the decision maker acting on behalf of the employer.
Section 351 of the Act prohibits an employer from taking adverse action against an employee for a number of reasons, including family or carer’s responsibilities and pregnancy.
Section 117(1) of the Act provides as follows:
An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the notice is given).
THE APPLICANTS CASE
Evidence of the Applicant
The applicant swore two Affidavits, the first dated 17 August 2022 and the second 24 March 2023. In his first affidavit Mr Waknin deposes he was initially employed in the position of sales Director with oversight of nine sales locations in Sydney and Melbourne. From late February 2021, he states that he took over the role of Sales Director. Australia and New Zealand. In this role, he supervised 22 Sales Managers across 21 locations.
As part of his remuneration package, Mr Waknin received discretionary bonuses. There were three different criterion for bonuses, each with $5,000.00, so the maximum bonus he might earn each month was $15,000.00.
He claims to have received a bonus of at least $5,000.00 every month from March 2021, except for the month of September 2021, which was heavily affected by COVID-19 lockdowns.
In the month of October 2021, Mr Waknin claims his team delivered the highest monthly sales of serviced offices that the company had ever seen.
Mr Waknin claims he was put under pressure to achieve sales outcomes by Mr Henderson. From June 2021, his base pay increased from $190,000.00 to $220,000.00 per annum.
Mr Waknin had been in a relationship with his partner for two and a half years as at the date of his first Affidavit. In March 2021 they entered into surrogacy agreements with two gestation carriers in the United States. Their first child was due to be born in late January 2022 with the second child around a month later.
It was agreed between Mr Waknin and his partner that Mr Waknin would be the primary carer of the children. Both children were safely born in early 2022 and Mr Waknin has assumed the role of primary carer.
On 29 October 2021, Mr Waknin deposes he sent an email to Mr Henderson with points for discussion relating to his role, his increased responsibilities and a proposal for an increase in his pay outlined in a letter of 27 May 2021.
At about 8:30am on 3 November 2021, Mr Waknin deposes that he was walking past Mr Henderson’s office. He claims to have had a conversation with Mr Henderson regarding a number of matters, including the company and the actions of the Chief Executive Officer of Servcorp, Mr Alfred Moufarrige.
The following words were said in that conversation:
Mr Waknin: … I’m also concerned about my future in the business. I was going to wait ‘til our one on one on Friday to tell you but Aaron (Mr Waknin’s husband) and I are doing surrogacy in America. We’re expecting two babies, one mid-January and another mid-March. Once I return from my leave I will be applying for parental leave as I will be the primary carer – there is no way Aaron will be able to be the primary carer.
Mr Henderson: Daniel, what you do with your personal life is not my business. The man (Mr Moufarrige) is on a rampage, this is his business. Tell your managers he’s passionate about it! People gotta understand that. He’s looking at the sales numbers in Japan and the rest of the world and he’s concerned about the future of business as well. I’m meeting with him at 12pm and I’m about to jump on another meeting now. We’ll have to discuss this later.
Mr Waknin deposes that he had already requested a period of annual leave from 25 December 2021 to 22 January 2022. He wanted to take that leave before the talk of unpaid parental leave.
When Mr Waknin returned from lunch the same day, he received a request for a meeting with Mr Henderson at 2:30pm. The following conversation occurred at that meeting:
Mr Henderson: I’m also concerned about my future in the business. I’ve hired you as a catalyst of change but AGM (Mr Moufarrige) doesn’t want anyone to change his business and for that reason, we’re letting you go.
Mr Waknin states he was then handed a Deed of Release.
Mr Henderson said: I know it might come as a shock to you, but this is a very generous offer from AGM and I suggest you take it. Can you sign it? I’ll then need to take back your computer. You’re released from all duties and can go home. I’ll walk you to the lift.
Mr Waknin: It does come to me as a shock, particularly on the back of the conversation we had this morning.
Mr Henderson: It’s not got anything to do with this morning, I just need you to sign it.
Mr Waknin: I’m actually feeling sick due to anxiety. Can I please take the rest of the day as sick leave and come back to you by tomorrow?
Mr Waknin deposes that he then left the building and telephoned his husband to advise him of what had happened. He then made a telephone call to make an appointment with his legal advisors. As at the time of his termination.
Mr Waknin claims that as a result of his termination from Servcorp, he suffered hurt, humiliation and loss. He has sought assistance from a psychologist. He has applied for three positions with other employers but has been unsuccessful.
In his second Affidavit, Mr Waknin denies Mr Henderson raised various complaints with him regarding his interaction with sales staff. He denies saying anything about any parental leave before 3 November 2020 and understood he did not need to give more than 10 weeks’ notice of an intention to take parental leave. As the first child was not due to be born until late January the 10 weeks period had not arrived. The Court also notes at this point of time, Mr Waknin had not competed 12 months service with Servcorp, which is the minimum period before an entitlement for parental leave arises. This would have occurred on 16 November 2021.
Mr Waknin claims he would have submitted a formal parental leave request after communicating it verbally. He states he never said anything about resigning from Servcorp and had no intention of resigning prior to his termination.
Mr Waknin does not recall Ms Luck being at her desk, near Mr Henderson’s officer, at the time of his initial conversation with him at 8.30am on 3 Nov 2021. As at the date of his second Affidavit, Mr Waknin states he had not applied for any other jobs and is still the primary carer for his two children.
In an annexure to his first Affidavit, Mr Waknin attaches a letter sent by Haywards Solicitors to Mr Henderson dated 3 November 2021. That letter includes the following:
My client has given me initial instructions in relation to his notice today to you that he proposes to commence on parental leave in the New Year.
I also understand that this afternoon you proposed that he terminate his employment and execute a deed of release, surrendering his rights against Servcorp Pty Ltd.
In cross examination, Mr Waknin conceded he had not completed 12 months service at the time of his termination. He agreed he had been paid a bonus of $5,000 on four occasions, but that this was not the full amount that was available. He stated that some of the criteria for the payment of the full amount were unattainable. He disagreed he was paid a bonus in October that he had not qualified for.
Mr Waknin stated that he had applied pressure on the sales staff as Mr Henderson had told him to ‘crack the whip”. He disagreed there were complaints about his management style with the sales staff. He disagreed he had threatened a staff member in relation to their visa status.
Mr Waknin agreed he had not formally applied for parental leave as he had to wait for 12 months of service before he could make that application. He disagreed he had been untruthful in his application for annual leave in that he would have been unable to return to Australia with his children in January 2021. He was not sure if he would have returned without the babies. He disagreed he filled in his annual leave application knowing he intended to resign in January 2021.
Mr Waknin denied he said on 3 November 2020 that he intended to resign anyway. He agreed he did not immediately make any notes of his conversation with Mr Henderson regarding his termination. He denied the conversation he says he had with Mr Henderson on the morning of 3 November 2021 was incorrect, and that he did not tell Mr Henderson him and his husband were expecting children.
Evidence of Dr Tessa Dawes
Dr Dawes is a General and Forensic Psychiatrist. She provided an expert report in which she stated the applicant appeared to be suffering from a major depressive disorder with anxious stress from at least May 2020, and that his termination from his employment from Servcorp exacerbated his symptoms.
His condition has since improved with treatment.
Evidence of Aaron Boekstein
Mr Boekstein is the husband of the applicant. He gives evidence in an Affidavit affirmed 17 August 2022 that the applicant was concerned as to how and when he should approach telling his employer about the impending arrival of their children. He states that the applicant told him on the evening of 2 November 2021 that he was going to have a ‘baby chat’ with Mr Henderson on 3 November 2021.
In the afternoon of 3 November 2021, Mr Boekstein received a telephone call from the applicant who advised him that he was ‘no longer needed’ by his employer.
In cross examination, Mr Boekstein denied fabricating the conversation of 2 November 2021.
THE RESPONDENT’S CASE
Evidence of Douglas Henderson
Mr Henderson swore an Affidavit on 14 November 2022. As at the time of swearing his Affidavit he was the Chief Operating officer of Servcorp, but has since left the organisation, having resigned on 27 February 2022.
Mr Henderson deposes that he discussed on a number of times with Mr Waknin that he was not happy with Mr Waknin’s approach to the management of staff. He claims that a number of complaints were made about him by members of the sales team.
Mr Henderson was aware that Mr Waknin had married his partner but states that he was unaware the couple were expecting the birth of children in 2022. He agrees Mr Waknin was paid for bonus payments of $5,000.00 each. In one month, he was paid not withstanding he did not achieve targets because Mr Henderson believed that he had worked hard and there were mitigating factors beyond his control.
At no time during his employment did Mr Waknin apply for a period of parental leave to commence in January 2022. Servcorp did not have a paid parental leave policy. Mr Waknin formally requested, on 27 September 2021, a period of annual leave commencing on 29 December 2021, for16 days, with him to return on 22 January 2022.
Mr Henderson claims that at no time did Mr Waknin tell him he was expecting two children in January and February 2022. In order to apply for a period of parental leave, Mr Waknin would have been required to complete another leave request form with the anticipated start and finish dates of his leave.
Mr Henderson claims that as a result of COVID-19, Servcorp suffered significant losses with the result that the company chose to reduce its number of employees. Between 2021 and early 2022, Mr Henderson states approximately 18 employees were terminated due to redundancy, or otherwise resigned from the employment and were not replaced.
Mr Henderson deposes that in around early 2021, he commenced a review of the sales team headed by Mr Waknin. He was concerned that the team were not producing adequate sales volumes and the business needed more from the sales team in terms of performance as the company started to recover from the impacts of COVID-19.
Mr Henderson claimed he had concerns about the structure of the deals that Mr Waknin was making with new clients and that the sales were not as beneficial to the company as he believed they could be.
In around late October 2021, Mr Henderson deposes that he decided to make Mr Waknin’s role redundant in the context of the companywide restructure that was occurring. He deposes that no aspect of his decision included any reasons relating to Mr Waknin’s parental responsibilities, care responsibilities or pregnancy. He deposes that Mr Waknin’s role remained unfilled in the form that it was in at the time Mr Waknin held it.
On the morning of 3 November 2021, Mr Henderson states he attended work at approximately 7:00am in order to redo a board report that he had completed the previous night but had lost due to a computer glitch. Early in the morning, he emailed Ms Luck and asked her to commence reviewing the reports. He claims he felt under pressure to complete the Board reports as they needed to be provided to Mr Moufarrige prior to being given to other Board Directors.
During the course of the morning, Mr Waknin attended Mr Henderson’s office, stood at the door and indicated that he wanted to speak to him. Mr Henderson states that as he was busy completing the board reports he told Mr Waknin he would speak to him later in the day.
At approximately 2:30pm, Mr Henderson states he met with Mr Waknin and had the following conversation with him:
Mr Henderson: Unfortunately I am making your role redundant. Mr Moufarrige is unhappy with the structuring of sales deals and wants me to take over control of the sales for the business. Additionally and as you know, the performance of the sales team is not where it needs to be.
Mr Waknin: I’m surprised, I wasn’t expecting this. I was intending on resigning in January because I hadn’t been given my second salary review. Really, I only stayed because of you and my mentoring relationship with you. I appreciate your support and mentoring. I hope we can stay in touch after this.
Mr Henderson states that he handed Mr Waknin a deed of release, however Mr Waknin said he did not want to read or sign the deed. At the conclusion of the meeting, Mr Henderson advised Mr Waknin that his employment was being terminated by reason of redundancy. Accordingly, his employment terminated at approximately 3:00pm that day.
On 9 November 2021, Mr Henderson sent a letter to Mr Waknin confirming his termination of employment.
Mr Henderson denies that any conversation took place on the morning of 3 November 2021 with Mr Waknin in which he advised that he was expecting children or anticipating a period of parental leave. Attached in an annexure to Mr Henderson’s Affidavit is a letter dated 9 November 2021 which confirms that Mr Waknin’s employment ended on 3 November 2021 due to redundancy.
In cross examination, Mr Henderson stated that structural changes to the organisation was something that happened quite quickly and may not have been the subject of a written business case.
Mr Henderson agreed that Mr Waknin had been paid a number of bonuses in April, June, July and October, however stated that it was his decision to pay the October bonus notwithstanding that Mr Waknin did not meet the relevant targets in order for the bonus to be paid.
During the relevant period, Mr Henderson stated that the focus was not on virtual offices but on re-establishing occupancy in serviced offices. Sales volume was one consideration, however the sales needed to be profitable. He stated that he had constant conversations with Mr Waknin as regards to sales. He agreed that he had encouraged Mr Waknin to get sales results but could not recall using the term “crack the whip”. He reiterated he had a conversation with Mr Waknin about him threatening an employee in relation to their visa status if sales did not improve. He denied that he was aware of every sale negotiated by Mr Waknin. He agreed that at no time until 3 November did he inform Mr Waknin that his job may be in jeopardy.
Mr Henderson claims that he consulted an external Human Resources consultant regarding the process to make Mr Waknin redundant. He denied having any conversation, other than as set out above, on the morning of 3 November 2021. He agreed, however, that he told Mr Waknin during the afternoon meeting that he was taking direct control of the sales area. He denied the suggestion put to him that Mr Waknin did not say that he was intending to resign anyway.
Mr Henderson agreed that there was no direct line of sight between his office and Ms Luck’s desk. He denied that he terminated Mr Waknin because he told him that he was expecting children.
Mr Henderson agreed that the deed of release that he handed to Mr Waknin was not reflective of the situation, in that the recitals included the parties agreed to a cessation of employment. He agreed that as Mr Waknin had less than 12 months service, he was not entitled to any redundancy payment, yet the deed of release provided for a four month payment. He denied the suggestion put to him that the four month payment was due to Mr Waknin being dismissed for a prohibited reason.
Evidence of Juliet Luck
Ms Luck affirmed an Affidavit on 11 November 2022. She also no longer works for Servcorp, having resigned on 17 April 2023. She commenced work with Servcorp in December 2020 and worked as the Executive Assistant to Mr Henderson.
Ms Luck’s desk was located immediately outside Mr Henderson’s office. When the door was open, she could often hear conversations taking place in his office.
On 3 November 2021, Ms Luck arrived at work at 8:25am. On instructions from Mr Henderson, she began to review two Board reports that were due that day. She was at her desk between 8:25am and 10:08am.
Ms Luck deposes that she saw Mr Waknin approach Mr Henderson’s office after she arrived at work. Mr Waknin stood in the open doorway to Mr Henderson’s office. She heard Mr Waknin say “Hey John, do you have time for a quick chat?’. Mr Henderson replied, “Not right now, I am working on the board reports that have to get to AGM (Mr Moufarrige)’. Later that day she received instructions to send a meeting request to Mr Waknin for 2:30pm.
Ms Luck deposes that she was aware that Mr Henderson intended to terminate Mr Waknin’s employment as on 27 October 2021, he had asked her to use a template to prepare a Deed of Release for Mr Waknin.
Ms Luck deposes she did not hear any conversation between Mr Henderson and Mr Waknin that afternoon.
Ms Luck was not aware that Mr Waknin was expecting children. In the conversation that took place in the morning between Mr Henderson and Mr Waknin, she did not hear any mention by Mr Waknin of children.
In cross examination, Ms Luck agreed her desk did not face the doorway of Mr Henderson’s office. She denied she was not at her desk between 8:30am to 8:45am.
FINDINGS OF FACT
This matter will turn to a large extent on the findings of fact that the Court must make. The Court is presented with two different and inconsistent accounts of the events leading up to the termination of Mr Wakin’s employment with Servcorp on 3 November 2021.
On Mr Waknin’s account, he was terminated in a sham redundancy after indicating in a conversation with Mr Henderson on the morning of 3 November 2021 of his intention to take parental leave in 2022. Mr Waknin contends that he was unlawfully dismissed for a prohibited reason.
Mr Henderson denies any conversation with Mr Waknin on the morning of 3 November other than him indicating he was busy and unable to talk. Further, he deposes that a decision had been taken prior to 3 November 2021 to terminate Mr Waknin by redundancy as part of a restructure of the company due to some concerns as to the results being achieved by the sales team Mr Waknin supervised and downsizing, due to the effects on the business of COVID-19.
Mr Henderson’s version of events is supported by Ms Luck, who further states she was asked some days earlier to prepare a Deed of Release in relation to Mr Waknin.
Each of the witnesses gave the evidence in a forthright fashion and was not shaken in cross examination. There is some support to Mr Henderson’s version of events in the form of various Director’s reports that were attached to his Affidavit.
While the applicant’s Counsel sought to gain some forensic advantage by asking questions of Ms Luck about the metadata of the Deed of Release she prepared in relation to Mr Waknin, the attack went no further than that. No evidence was sought to be produced by way of subpoena or otherwise as to when the document was first created and/or modified.
The Court has considered the evidence of Mr Boekstein as to the conversation he claims he had with Mr Waknin on the night of 2 November 2021, but places no great weight on his evidence.
The Court is satisfied Servcorp was under some financial strain due to the pandemic. The Court accepts Mr Henderson’s evidence that the company was downsizing. The Court is not required to find that the redundancy was genuine, only that it was not made for a prohibited reason.
The evidence of Mr Henderson and Ms Luck is consistent and corroborates each other’s version of events. Both Mr Henderson and Ms Luck no longer work for Servcorp and have no motivation to other than tell the truth.
The Court has considered the timing and sequence of the various versions of events but is not able to determine that this supports one version as against the other.
The Court has considered the letter of 3 November 2021 from Mr Waknin’s solicitors which raises the issue termination for a prohibited reason. However, noting this letter was sent after the termination occurred, the Court places no great weight on its contents and assertions. The letter is self-serving at best.
The Court has considered the claim that Mr Waknin told Mr Henderson he was planning to resign anyway when the children arrived. The Court finds this plausible, noting Mr Waknin has assumed the responsibility as primary carer of the children.
The Court has also considered the issue that, as at the date of termination, Mr Waknin only had a future contingent right to parental leave, as he had not put in any formal leave request for unpaid parental leave.
The Court prefers the version of events put forward by Mr Henderson and supported by Ms Luck. That is, Mr Waknin was genuinely terminated by reason of redundancy and not for seeking to access parental leave.
WAS THERE A BREACH OF PART 3-1 GENERAL PROTECTIONS OF THE ACT?
Given the findings of fact set out above, it is not necessary for the Court to determine whether a future intent to access unpaid parental leave created any rights that accrued to Mr Waknin. The Court notes it has been advised that the issue of a future contingent workplace right is under appeal to the High Court in Qantas v Transport Workers’ Union of Australia (2022) 292 FCR 34 at [120].
Section 361 of the Act creates a rebuttable presumption in relation to the reasons for an action. The applicant has the onus of establishing the objective facts upon which he relies before the Court turns its attention as to whether the respondent contravened ss 340 or 351 of the Act, and the onus is placed on the respondent under s 361 of the Act: Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 at [368]; Tattsbet and Morrow (2015) 233 FCR 46 at [119].
Even if Mr Wakinin overcomes the evidentiary hurdle, such that s 361 of the Act is engaged, he must also show that the prohibited reason was a ‘substantial and operative’ reason for the termination. The Court is not satisfied that his termination resulted from a prohibited reason.
In the Court’s view, Mr Waknin has not reached the evidentiary threshold such that s 361 of the Act is engaged. Accordingly, the General Protection claim must be dismissed.
WAS S117 CONTRAVENED?
Section 117 of the Act requires an employer to provide written notice of their termination to the employee. It is common ground that the decision to terminate Mr Waknin’s employment was only conveyed to him orally on 3 November 2021 in his meeting with Mr Henderson.
It is not disputed that the only written notice that Mr Waknin was provided with was a confirmation of the termination by email dated 4 November 2021 and a letter dated 9 November 2021.
The Court is satisfied that Mr Waknin was provided with payment of his statutory notice in lieu.
However, as no written notice was provided, as required by the section, before Mr Waknin was terminated, only a verbal notification, the contravention is made out.
The Court will hear from the parties as to the appropriate penalty to be imposed in respect of this breach. The Court, however, would need to be persuaded that that Mr Waknin has suffered any economic or non-economic loss as a result of the breach of s 117 of the Act, noting that none has been pleaded.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 19 July 2023
7
0