Wang v MTC Australia Ltd
[2017] FCCA 2840
•27 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WANG v MTC AUSTRALIA LTD | [2017] FCCA 2840 |
| Catchwords: INDUSTRIAL LAW – FAIR WORK – Dismissal from employment – whether respondent took adverse action for a prohibited reason considered – dismissal followed an investigation into complaints and concerns about the applicant’s performance – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.341, 361, 570 |
| Cases cited: Cross v Harbour City Ferries Pty Ltd (No.2) [2017] FCCA 1713 Henry v Leighton Admin Services Pty Ltd (2015) 252 IR 26 |
| Applicant: | ANNIE (RAN) WANG |
| Respondent: | MTC AUSTRALIA LTD |
| File Number: | SYG 2946 of 2016 |
| Judgment of: | Judge Driver |
| Hearing dates: | 26 and 27 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr I Latham |
| Solicitors for the Respondent: | Gilchrist Connell |
ORDERS
The application is dismissed.
There is no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2946 of 2016
| ANNIE (RAN) WANG |
Applicant
And
| MTC AUSTRALIA LTD |
Respondent
REASONS FOR JUDGMENT
Introduction and background
On 27 October 2017, I dismissed with no order as to costs, Ms Wang’s application brought under the Fair Work Act 2009 (Cth) (Fair Work Act) alleging dismissal in contravention of a general protection.
The following are my reasons for those orders.
Ms Wang was formerly employed as a trainer with the respondent (MTC). MTC commenced as a community organisation in 1989, providing skills, training and work experience to assist people to gain meaningful employment. In 2015, MTC registered with ASIC as a public company limited by guarantee. MTC now employs over 350 staff over 20 sites.
Ms Wang commenced her employment with MTC on 23 September 2014 at its Bankstown site as a Skills for Education and Employment trainer (SEE).
In early 2016, Ms Wang transferred to the Redfern site of MTC. At around the same time, MTC implemented a system of quarterly lesson observations to observe the provision of training by trainers. This enabled coaching to be provided where required.
It appears that the conduct of these lesson observations by Ms Wang’s manager Radwan Kassir brought her into conflict with him. In May 2016, Ms Wang made an oral complaint to MTC of bullying by Mr Kassir. That complaint was made in writing the following month and was investigated by Samantha Elkins and Joanna Mallon. The investigation brought to light a number of matters concerning the conduct and work performance of Ms Wang. Concerns had been expressed by her co-workers and also by students.
A disciplinary investigation ensued. In July 2016, Ms Wang was given a letter calling upon her to show cause why her employment should not be terminated. Ms Wang provided a written response on the morning of 14 July 2016. The issues were discussed between Ms Mallon and others and, later that day, Ms Elkins and Ms Mallon met with Ms Wang to inform her of the termination of her employment.
The evidence and submissions
Ms Wang relies upon her application, including the Form 2 claim annexed to it and three affidavits made by her on 24 July 2017, 9 October 2017 and 12 October 2017. She was cross-examined on those affidavits. Ms Wang also led oral evidence from one of her former students (Rebecca Anne Austin). That evidence was general in nature and was supportive of Ms Wang’s abilities as a trainer.
MTC relies upon its response to the application and its defence filed on 6 March 2017. MTC relies upon the affidavits of Chloe Miller, Ms Mallon, Ms Elkins, Mr Kassir and Colin James Lloyd, the Chief Executive Officer of MTC, all filed on 22 September 2017. All but Ms Elkins were required for cross-examination.
Ms Wang and MTC through its counsel made oral submissions on the second day of the trial of the matter on 27 October 2017, following the completion of evidence.
Consideration
MTC admits that it took adverse action against Ms Wang by dismissing her. MTC denies, however, that it took adverse action against Ms Wang for the reasons alleged by her or for any reason proscribed by Part 3-1 of the Fair Work Act. MTC asserts that it dismissed Ms Wang for the sole reason of her unsatisfactory behaviour and work performance.
I accept that on 16 June 2016 Ms Wang made a complaint to MTC of bullying and harassment. MTC investigated that complaint but that investigation uncovered matters of concern about Ms Wang’s work performance and her conduct. MTC sought to address its concerns with Ms Wang between about 16 June 2016 and 4 July 2016. The allegations of bullying and harassment were not substantiated. MTC found that Mr Kassir had taken reasonable steps in attempting to manage Ms Wang’s performance.
The matters uncovered during the course of the investigation included:
a)during the period of March – June 2016, MTC had received seven complaints from students and a colleague of Ms Wang’s relating to her behaviour and approach towards students;
b)various students had requested to be transferred out of Ms Wang’s class;
c)Ms Wang had shown poor judgement when, on or about 18 May 2016, she provided sexual health education material in the form of a worksheet to students from diverse religious and cultural backgrounds; and
d)Ms Wang had failed or had refused to accept MTC’s directions given during performance management sessions on 10 March 2016 and 31 March 2016.
Ms Mallon held a meeting with Ms Wang on 8 July 2016, during which Ms Mallon informed Ms Wang of the matters of concern. The meeting was adjourned until 11 July 2016 in order to give Ms Wang time to consider her response to those matters.
There was a further meeting between Ms Wang and Ms Mallon on 11 July 2016. Ms Mallon told Ms Wang that MTC had lost trust and confidence in her ability to perform her role and was considering dismissing her. Ms Mallon asked Ms Wang to show cause in writing why her employment should not be terminated. This was confirmed in a letter dated the same day.
Ms Wang provided a written response on 14 July 2016. That was considered by MTC and on the same day, Ms Wang’s employment was terminated. The decision was made by Ms Mallon in consultation with Mr Lloyd and Peter Price (who did not give evidence).
The adverse action provisions of the Fair Work Act prohibit injury because of the exercise or proposed exercise of workplace rights. The relevant provisions are set out in Chapter 3, Part 3-1 of the Fair Work Act. That chapter states in broad terms that a person may not take adverse action against another person who has a workplace right or who has exercised that right. Workplace rights are defined in s.341 as to include the right to make a complaint or inquiry in relation to one’s employment.
Section 361 reverses the onus of proof applicable to civil proceedings for a contravention of Part 3-1. Generally, a civil action places the onus on a complainant to establish on the balance of probabilities that the action complained of was carried out for a particular reason or with a particular intent. However, s.361(1) provides that once a complainant has alleged that a person’s action is motivated by a reason or intent that would contravene the relevant provision of Part 3-1, that person has to establish that the conduct was not carried out for that reason or with that intent.
I accept that the complaint of bullying and harassment made by Ms Wang constitutes the exercise of a workplace right for the purposes of the Fair Work Act.[1]
[1] see Walsh v Greater Metropolitan Cemeteries Trust (No.2) (2014) 243 IR 468 and Henry v Leighton Admin Services Pty Ltd (2015) 252 IR 26
I accept, from the evidence of Ms Wang, that there was a connection between her complaint and her dismissal. That was because the investigation of her complaint threw up other matters of concern to MTC. That is sufficient to reverse the onus of proof. I am satisfied, however, that the evidence led by MTC convincingly shows that Ms Wang’s complaint formed no part of the reason for her termination.
As noted earlier, the claim brought by Ms Wang was a claim of unlawful dismissal on the basis that she was subjected to adverse action, namely, her dismissal for a prohibited reason (ie, her complaint of bullying). I accept that she made a complaint of bullying. I accept that she genuinely believes that she was bullied. However, her subjective appraisal does not establish a relevant link between her complaint and her dismissal.
Also, as noted earlier, the complaint was investigated but in the course of the investigation it became apparent that there were issues concerning Ms Wang’s performance and behaviour which required investigation. That investigation was conducted and the outcome of it was that adverse findings were made which led to Ms Wang’s dismissal. That was the reason for her dismissal, not her complaint.
The only link between the dismissal and the complaint was that the investigation of the complaint stimulated the investigation of Ms Wang herself. It is abundantly clear from the available material that MTC has discharged its onus to establish that the adverse action was not undertaken for a prohibited reason. There is no doubt in my mind that the reason for Ms Wang’s dismissal was the outcome of the investigation of her, based upon complaints about her and other concerns which were numerous, manifest and from a number of people, not simply those against whom Ms Wang had concerns.
It is possible that if Ms Wang had not made a complaint, the investigation of her may not have occurred as quickly as it did, but it seems to me inevitable that her employment would have been terminated as a result of an investigation which must have occurred at some point.
For those reasons I dismissed the application.
I ordered that there be no order as to costs. My reasons were three-fold. First, there is a general doubt about the capacity of the Court to award costs in Fair Work proceedings, as set out in Cross v Harbour City Ferries Pty Ltd (No.2).[2] That doubt should not prevent the Court from making a costs order, but should cause the Court to be cautious in departing from the general principle set out in s.570 of the Fair Work Act that parties bear their own costs. Secondly, I was satisfied that the proceedings were properly brought. Ms Wang was entitled to agitate in court her belief that there was a real connection between the complaint of bullying she made, and her dismissal. Indeed, there was a link, which I indicated earlier, although it was not such a link as to establish a reason for her dismissal.
[2] [2017] FCCA 1713
Thirdly, the claim for costs was based substantially on settlement offers properly made by MTC. While it was unwise, probably exceptionally unwise, of Ms Wang to refuse the offers made to her, particularly the final offer made by letter on 29 September 2017, I take into account her medical condition, as established by a medical certificate she provided, and my own observation of her as a person who has a fixation about the strength of her grievances and the rightness of them. While Ms Wang had the capacity to conduct the proceedings, I have real doubt that she was able to focus objectively on the offers that were put to her.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 27 November 2017
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