Wang v Sceats and Anor
[2018] FCCA 2426
•30 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WANG v SCEATS & ANOR | [2018] FCCA 2426 |
| Catchwords: INDUSTRIAL LAW – Workplace rights under the Fair Work Act 2009 (Cth) – whether adverse action was taken against the applicant contrary to ss.340 and 351 of the Act – claims misconceived – no breach of the Act by respondent – application dismissed. |
| Legislation: Fair Work Act 2009, ss.44, 65, 76, 80, 340, 341, 342, 351, 539, div.2 of pt.4-1 |
| Cases cited: Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500 |
| Applicant: | JINGDA WANG |
| First Respondent: | JEANETTE SCEATS |
| Second Respondent: | INSTYLE WATCHES PTY LTD |
| File Number: | SYG 2481 of 2017 |
| Judgment of: | Judge Smith |
| Hearing dates: | 16 and 17 May 2018 |
| Date of Last Submission: | 17 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 30 November 2018 |
REPRESENTATION
| The applicant appeared in person. |
| Solicitors for the Respondents: | Mr R Hassall, Sparke Helmore Lawyers. |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2481 of 2017
| JINGDA WANG |
Applicant
And
| JEANETTE SCEATS |
First Respondent
| INSTYLE WATCHES PTY LTD |
Second Respondent
REASONS FOR JUDGMENT
Jingda Wang, also known as Linda Wang, was employed as a finance manager by Instyle Watches Pty Ltd under an employment agreement executed by her on 26 November 2010. Her employment was terminated summarily by notice dated 13 April 2017. Ms Wang claims that she was subjected to “adverse action” contrary to ss.340 and 351 of the Fair Work Act 2009 (Cth).
These proceedings were brought by Ms Wang against both Instyle Watches Pty Ltd and Jeanette Sceats. The claim against Ms Sceats was based solely on the allegation that she was the employer of Ms Wang. There is no allegation against her that she has some accessorial liability for the actions of Instyle. However, Ms Sceats is the managing director of Instyle and never has been the employer of Ms Wang. The contract of employment entered into by Ms Wang named Instyle as the employer and not Ms Sceats. There is nothing to suggest that that was a sham or that in reality Ms Sceats, rather than Instyle was in fact Ms Wang’s employer. As both ss.342 and 351 of the FW Act relevantly address action taken by an employer, the proceedings against Ms Sceats are misconceived and must be dismissed.
The allegations made by Ms Wang in support of her claim against Instyle are detailed and broad ranging. It is convenient to consider them by first setting out the relevant factual matters. Most of the facts in question are not in issue between the parties. Where there is a factual issue, I will first resolve that in the chronology that follows and then determine which, if any, of Ms Wang’s claims have been made out.
Relevant factual background
Instyle conducts a business of managing brands through wholesale and online sales and the distribution of brand name watches and accessories. Ms Sceats took over the control of that company and its business from her parents in around 2001. The second business run by her, with the assistance of her daughter Amber Sceats, involves the design and sale of jewellery. Both businesses are conducted from the same premises in Waterloo, Sydney, and share management, governance and the majority of staff and other resources.
Ms Wang commenced employment with Instyle on or around 26 November 2010 pursuant to an employment contract entered into between her and Instyle dated 25 November 2010[1]. In that contract, Ms Wang’s position was classified as Finance Manager but the clauses dealing with her duties included the following:
[1] As executed by the parties on 26 November 2010: [1] of this judgment.
You will be required to be flexible in this position and must be prepared to undertake such other work as may be assigned to you by the employer from time to time. Such work may be outside the area of your normal duties.
The employer aims to reach agreement to changes, but if agreement is not possible, the employer reserves the right to insist on changes to your job title, reporting arrangements and, within reasonable bounds, changes in the other relationships relevant to the job and in duties, accountabilities, key result areas and specific responsibilities.
...
In around July 2012 the second business conducted at the Waterloo premises was transferred to Prestige Watches Pty Ltd which then changed its name to Amber Sceats Pty Ltd. From that time, all of the financial and accounting work for Amber Sceats Pty Ltd was carried out by Instyle’s finance team which included Ms Wang.
In or about June 2015, at the suggestion of Ms Wang, the employees of Instyle who worked predominantly for Amber Sceats Pty Ltd were transferred to the books of that company.
At some point between March and April 2014, Ms Wang informed Ms Sceats that she was pregnant. Ms Wang then made an application to take parental leave in the period between July and December 2014 and that application was granted. While Ms Wang was on parental leave in that period, her position was covered by a temporary employee. At the end of her parental leave in December 2014, Ms Wang then used her accrued annual leave so that she did not return to work until March 2015.
In an email dated 9 January 2015 concerning her return to work, Ms Wang wrote to Ms Sceats seeking approval for her to work from home on each Monday for the first six months of her return. Ms Sceats replied by email on 11 January 2015 indicating that she had a strict policy about staff working from home however, as she valued Ms Wang as an employee she was willing to trial this “new structure with you working from home on Mondays for three months”. Ms Sceats noted that if at the end of the period they were both happy it would be extended for another 3 months after which Ms Wang would agree to return to work at the office 5 days per week.
Ms Sceats also agreed to a number of other requests made by Ms Wang to assist her in her return to work such as the installation of a blind and a lockable door to allow her to breastfeed or express milk for the first 9 months of her return.
After her return to work in early March 2015, Ms Wang made a request that she be allowed to work from home for 2 days a week. Ms Sceats gave evidence that, while she was doubtful about Ms Wang’s ability to do 2 full days of work while looking after a baby without childcare, she did not have an alternative option and did not want to lose Ms Wang as an employee. For those reasons, she agreed to continue with the 3 month trial period and authorised Ms Wang to work from home for 2 days per week until June 2015. That period was ultimately extended by agreement until November 2015.
On or about 8 December 2015, Ms Wang informed Ms Sceats that she was pregnant again and subsequently applied for parental leave for the period 9 May 2016 to 2 December 2016. That application was granted.
None of the facts up to this point in the narrative are in dispute. However, there is some dispute about what occurred next.
In her evidence, Ms Sceats states that Ms Wang approached her at the premises of Instyle in mid to late December 2015 and they had a conversation in words to the following effect:
Ms Wang: I want to work from home again after I return from maternity[2] leave. Only for about 6 months.
[2] Ms Wang has used the phrase “maternity leave” throughout these proceedings in place of “parental leave” which is dealt with in s.70 of the FW Act.
Ms Sceats: I don’t know about that Linda, I will think about it.
Ms Sceats said that the office was very busy at that time because they were about to close for the Christmas period and she knew that Ms Wang would argue with her if she said “no” immediately. She denied that she ever agreed that Ms Wang could work from home after her second period of parental leave, and that she had had serious reservations about that possibility in view of the experience she previously had when Ms Wang had worked from home.
In her evidence under cross-examination, Ms Wang said that Ms Sceats had agreed to her working from home upon return from her second period of parental leave. She said:
... And then I ask her if I can work from home, this time again, if she required me to come back early in December, and she agreed. She said, “Amber would hate me for agreeing this, but it’s okay”. ...
Ms Wang said that it was after that agreement that she completed her application for parental leave and submitted it to Ms Sceats for approval. However, she agreed that that application did not include any reference to a return to work on the condition that she work from home.
Later in her evidence[3] Ms Wang explained that during this conversation Ms Sceats said, referring to Amber:
... “She would hate me for agreeing you this” but she think about it and then she said “Yes” to me. “Okay” she said that “Okay”.
[3] Transcript, page 39, line 45.
As will become evident later in these reasons, the difference between the evidence of Ms Sceats and that of Ms Wang will not have an impact upon these proceedings; however, I accept Ms Sceats’ version of events. It was not contested that the conversation took place at a busy time of the year for the business and it seems to me unlikely that a decision of that nature, about something that might occur well into the future, would be taken with such little or no thought by the principal of the business. Further, as acknowledged by Ms Wang, there was nothing in writing at that time about her ability to return to work on the basis that she would work, at least partly, from home.
Although there had been extensions to the original agreement in March 2015 which were also not in writing, the original agreement concerning Ms Wang’s ability to work one day from home was in writing. Further, the agreement in March 2015 and the subsequent extensions were based upon specific reasons being given by Ms Wang for the requirement that she worked from home. That is, that although her husband had initially been given leave by his employer to work from home one day per week, that had been withdrawn by his employer requiring Ms Wang therefore to work more from home. There was no such reason given by Ms Wang in respect of her need to work from home upon return from her second period of parental leave.
While I accept Ms Sceats’ version of events, it is not because I find in this respect that Ms Wang was dishonest in her evidence. However, I do find that she was mistaken in her belief to what had occurred some 2½ years before she gave oral evidence. I am fortified in that view by the fact that Ms Wang’s own affidavit evidence did not include any reference to the conversation to which she deposed under cross-examination. That fact enhances the probability that Ms Wang’s recollection of events was inaccurate. On the other hand, Ms Sceats’ evidence is consistent with what she says was the policy of the company. Ms Sceats in fact had expressly stated in writing at the time to Ms Wang the policy of the company concerning employees working from home, together with the fact that it was a busy time of year. These matters make it less likely that she made a snap decision about the future work of an employee about to leave on parental leave.
For those reasons, I conclude that there was no agreement reached at that time that Ms Wang would be entitled to work from home upon her return from parental leave in 2016.
On 17 December 2015 Ms Wang made a request for a salary review. That request was refused by Ms Sceats in an email on the same day. Ms Wang replied to that email and to each of the comments made by Ms Sceats in it by requesting, in turn, an immediate $5,000 pay rise with another salary review upon return from parental leave in the following year. However, Ms Sceats replied by email later in the day that she was not in a financial position to offer another pay rise but that once Ms Wang resumed full-time employment after her parental leave period they could re-evaluate her request.
Ms Sceats gave evidence that after her refusal of a pay rise she observed that Ms Wang’s attitude towards her and her work changed significantly. For instance, from mid-December 2015 Ms Wang stopped saying “hello” to Ms Sceats on her arrival at the office each day and would only speak to Ms Sceats if necessary for work related issues.
In an email dated 8 February 2016 Ms Wang wrote to Ms Sceats concerning the conversation that she had with Amber Sceats. The effect of that conversation appears to have been that Amber Sceats had told her that working from home was “no longer an option” for Ms Wang. In her email, Ms Wang wrote:
...
We have reached a mutual agreement in Dec 2015 between you and me which allows me to work from home 2 days per week after I return to work in Dec 2016 (which is time that you request for me to return). How can Amber break this deal all of sudden? And in what position can Amber make this decision? And because it is a mutual agreement between two of us, even as the owner and manager of the business, you can’t just breach this agreement unilaterally! A deal is a deal. Hence, our original agreement on working from home 2 days per week still stands.
What Amber did is obviously Workplace Bullying, especially when I am now pregnant and in an disadvantaged position.
...
Ms Sceats responded to that email by an email of the same date stating:
...
We did not reach a formal agreement in December 2015 that allows you to work from home 2 days a week.
Working from home is not a option.
Please respect my decision as Managing Director.
In the meeting on Friday Amber was in no way displaying “workplace bullying”. She simply asked for your maternity leave dates so she can place the advertisement on Seek for your temporary maternity leave replacement, bringing attention to the fact that working from home was not an option at this time.
...
Ms Wang wrote a further email to Ms Sceats on the following day:
This is to notify you that I won’t be able to do any work for Amber Sceats PL (Amber PL) any more, which has never been my duty.
As you know, I was hired by Instyle Watches PL (Instyle) for the position as Finance Manager. My job description has never included any task for Amber PL. After the start of Amber Sceats PL, I voluntarily helped with all finance matters as a favour for you. Please note all the work I’ve done for Amber PL was never part of my job duties according to the employment contract between Instyle and me. For all the works I have done for Amber PL, I have never received any payment.
...
(Without alteration)
Ms Sceats replied to this email later on 9 February 2016 saying relevantly:
I require you to continue to perform the same duties as you have been doing for the past 3 or more years.
No additions.
No subtractions.
...
As you are aware you are not the only staff member who has been denied the option of working from home.
This is a blanket policy within my businesses which I try never to contravene.
Following this email exchange, Ms Sceats and Ms Wang had a conversation in words to the following effect:
Sceats: Linda we need you to process the payroll for Amber Sceats, this is ridiculous.
Wang: I am not working for Amber Sceats anymore, it is no longer my work, I have told you that already.
Sceats: Linda, you can’t just choose not to do it anymore. Working for Amber Sceats has always been, and still is, part of your role!
Wang: I won’t do it, it isn’t part of my contract, you can’t make me.
Sceats: OK, if you won’t do it, can you please train Nat, Dan or me to do it instead? This is causing us a lot of issues!
Wang: No, why should I? You have never given me a pay rise since that first one, nothing, not a bonus, absolutely nothing have you given to me. Then you lied to me, you approved my working from home and now you let Amber take that away.
Sceats: Linda, we never agreed to that, it did not work last time. I did not lie to you Linda, have I ever lied to you before?
Wang: I trusted you 100% until this.
Sceats: Linda, this is part of your job, you can’t refuse to do anything for Amber Sceats, it has always been part of your job.
Wang: It isn’t in my contract, I will not do it anymore.
Sceats: Fine, if you won’t do your Amber Sceats duties, you will only need to work part time for Instyle Watches. I will have to hire a part time employee to be the Finance Manager for Amber Sceats if you don’t want to do it. There is not enough work for Instyle Watches alone to make a full time role.
Wang: I will be the judge of that.
There followed further correspondence and conversations which it is not necessary to set out. Ms Sceats then sought legal advice.
At about this time, Ms Sceats wanted to advertise for Ms Wang’s position for the period of her parental leave. This was to be done using an online account that required a password. Ms Sceats discovered that the login details were not in the register kept by her and, as Ms Wang had been the last person to access that account, Ms Sceats attempted to log in to Ms Wang’s computer to find the required password. However, the password in the register for Ms Wang’s computer was incorrect and Ms Sceats had to ask her IT consultant to change the password to access the computer. Eventually, Ms Sceats placed the advertisement using the account of Amber Sceats Pty Ltd.
As a consequence of the allegation of bullying made by Ms Wang against Amber Sceats, Instyle appointed an independent investigator, Mr Danny Scott, to take a statement from Ms Wang concerning her allegations. It notified her of this by letter dated 12 February 2016.
By email dated 13 February 2016, Ms Wang refused to participate in the independent workplace investigation regarding her complaints of bullying and discrimination.
On 16 February 2016 on instructions from Instyle, John F Morrissey & Co, Lawyers, sent a letter to Ms Wang about recent events. After summarising the events up to and including 13 February 2016, the lawyers wrote:
...
18. Whilst you have denied our client’s offer to provide you with an independent investigator to assist you with particularising your allegations by taking a statement from you, our client would like to invite you to identify the alleged bullying & discrimination and to resolve the issues by either of the following to options:
a) By mediation. Our client would arrange a neutral mediator to carry out a mediation early next week ...; or
b) By providing us, in writing, a detailed list/breakdown of the allegations of how you say you have been bullied, harassed or unfairly treated in the workplace. ...
(Without alteration)
Ms Wang said under cross-examination that she did not read that letter. I do not accept that. It was obviously an important document and Ms Wang had, in other respects including what she perceived to be her workplace rights, shown herself to be a person with great attention to detail. She did not respond to the letter.
On 17 February 2016 Ms Wang provided Instyle with a medical certificate to the following effect:
This is to inform that Ms Jingda Wang, age 39 yrs, is currently pregnant at 25 weeks, 5 days. She had medical complications. She will be unfit to work from 17/02/2016 to 27/05/2016.
By letter dated 27 February 2016 Ms Sceats wrote to Ms Wang stating relevantly:
...
Under the Fair Work Act, you are entitled to take unpaid special maternity leave if you are not fit for work because of a pregnancy-related illness. This does not impact your entitlement to unpaid parental leave which is currently agreed for the period from 9 May 2016 to 2 December 2016. You may take paid personal leave and annual leave during any unpaid special maternity leave period however you may not take paid personal leave during your unpaid parental leave period.
...
Could you also confirm the intended end date for your parental leave which we currently have confirmed for 2 December 2016.
...
On 1 November 2016 Ms Wang requested an extension to her period of parental leave until 6 March 2017. That request was approved.
In or around the middle of November 2016, Ms Wang made several requests of Instyle for an “employment verification letter”. This was to enable her to obtain a home loan. Those requests were denied. Ms Sceats explained in her evidence that she would not, as a matter of policy, provide employees with verification of their employment for the purpose of obtaining loans or incurring other debts. She explained that that was to protect herself by avoiding any liability arising from the employee’s failure to make repayments.
Ms Sceats also gave evidence that she received a number of threats connected to her refusal to provide this verification; however, once again this is unnecessary to examine for the purposes of resolving the issues in these proceedings.
On 15 January 2017 Ms Wang requested a second extension to her parental leave until 6 September 2017. There was then some correspondence between the two concerning this request.
On 25 January 2017 Ms Sceats wrote to Ms Wang saying that the company was unable to approve the extension in its current form but offered to meet on 14 February 2017 to discuss options.
Ms Wang replied by email of 3 February 2017 stating, in summary, that there was no reasonable business ground for a refusal of the extension request and saying that if the request was not approved by 10 February 2017 she would report to the Fair Work Ombudsman. Instyle responded to that email by letter dated 9 February 2017 stating, amongst other things, that it was presently liaising with the employee currently engaged as parental leave cover for the extension of her contract. Ms Wang replied to that letter in a lengthy email dated 10 February 2017 and Instyle replied in turn, to that email by letter dated 22 February 2017. In that letter Instyle confirmed that it was unable to accommodate the request for an extension at that time but stated:
…despite not being in a position to extend your period of parental leave until September 2017, we are in a position to extend your parental leave until 31 March 2017.
...
Ms Wang was asked to agree to the compromise offered by close of business 24 February 2017. Ms Wang replied to this letter by email dated 27 February 2017 thanking Ms Sceats for the agreement to extend her parental leave until 31 March 2017, responding to the other points made in the letter of 22 February 2017 and requesting a further extension to 6 September 2017.
On 5 March 2017 Instyle wrote to Ms Wang in response to her email of 27 February 2017. The letter had two subject headings: first, “Invitation to disciplinary meeting” and second, “Response to Request for Parental Leave Extension”. The first was obviously a mistake because there was no invitation in the letter to a disciplinary meeting. Ms Sceats explained in her evidence[4] that this letter was drafted using a template and that the words “Invitation to disciplinary meeting” was automatically generated and was not, by reason of clerical oversight, deleted. I accept that explanation, although it is not clear why Instyle had a template letter designed as an invitation for an employee to attend a disciplinary meeting.
[4] Affidavit of Jeanette Anne Sceats affirmed 15 February 2018 at [152].
In the letter of 5 March 2017 Ms Sceats responded briefly to the content of Ms Wang’s email and then made the following offer for flexible working arrangements:
1. Extension of your parental leave until 31 March 2017; and
2. Option to start work any time between either 9:15am – 10am and finish any time up until 6:45pm
Ms Wang was asked to advise whether she would agree to the compromise by close of business 13 March 2017.
By email dated 8 March 2017 Ms Wang responded to the letter of 5 March 2017. In it she wrote, amongst other things:
...
5. As to your compromise offered, I would like to stick to my initial request, i.e. extending my maternity leave and come back to work on 06 Sep 2017, since the company doesn’t have reasonable business grounds to refuse this request. Extension to 31/03/2017 and flexible working hours between 9:15am and 6:45pm are appreciated. However, it just could not help me manage my work and carer’s responsibilities basing on my current situation as mentioned in details in my previous emails.
...
This was, in both form and substance, a rejection of the offer made by Instyle.
At this point, Ms Sceats contacted an employment consultant, Employsure, with whom she had been dealing since April 2016, and liaised with them about the best course of action to manage Ms Wang’s failure to return to work and her performance issues prior to taking leave related to her pregnancy from February 2016.
On 16 March 2017 Instyle sent a further letter to Ms Wang. Given the errors apparent in it, it is necessary to set it out in full, omitting formalities:
We refer to our previous letter to you dated 5 March 2017.
We confirm that the bold type heading on the letter, specifically “Invitation to Disciplinary meeting” was an administration error only.
The Compnay confirms that it is not taking any disciplinary action against you and confirmns that as per the body of the letter, the Compnay was writing to you in relation to your request to extend your parental leave.
The Company wishes to inform you that we have not received any further correpsondance from you in relation to your return to work date and therefore confirms that your parental leave will end on 31 March 2017 and that the Company expects you will be back at work on 3 April 2017.
The Company would appreciate your confirmation and you will resume full-time employment on 3 April 2017 so that the necessary preparations can be made.
(Errors in original, emphasis in original)
Ms Sceats’ evidence was that that letter was sent by her by mistake and that it had the wrong return to work dates. She said, and it is not in dispute, that she then sent a letter the next day in the following terms, omitting formalities:
We refer to our previous letter to you dated 5 March 2017.
We confirm that the bold type heading on the letter, specifically “Invitation to Disciplinary meeting” was an administration error only.
The Company confirms that it is not taking any disciplinary action against you and confirmns that as per the body of the letter, the Company was writing to you in relation to your request to extend your parental leave.
The Company further wishes to confirm the following in relation to parental leave:
- you initially applied for parental leave ending on 2 December 2016
- you then requested to extend this period further until the 9 March 2017, which was subsequently approved by the Company
- you then submitted a second request to extend your parental leave further again until 6 September 2017.
The Company confirms that it reserves the right not approve more than one extension of parental leave, however in accomodating your request to further extend the Compnay offered to extend your leave until 31 March 2017 and you were asked to respond confirming this offer by 13 March 2017.
The Company notes that you have not responded to this offer and confirmed this offer, therefore the Company confirms that you were required to return to work on the 10 March as per original request.
We note that you are not on a period of approved leave at this point in time and we therefore require you to contact the Compnay to notify and confirm the reason for your absence.
(Errors in original, emphasis in original)
There was no response by Ms Wang to either of these letters. Ms Sceats again wrote to Ms Wang on 22 March 2017 in the following terms (formalities omitted):
So you are clear, your request to extend your maternity leave again until 6 September has not been granted.
We did offer to extend your maternity leave from 9 March 2017 to 31 March 2017 if you could confirm this by 13 March 2017, which you have failed to do.
This compromise offer was sent to you three times – in attached letters dated 22 February 2017, 6 March 2017 7 [sic] and reminding you again on 17 March 2017.
As the Company was not advised of your acceptance of the offer to extend your maternity leave until 31 March, you were due back at work on 10 March 2017. You are therefore now on unapproved leave and we require you to contact the Company to explain your absence.
Ms Wang replied to this letter in her email dated 23 March 2017. She stated that she had replied and confirmed her acceptance of the offer in her email dated 27 February 2017 and asserted then that she was not on unapproved leave until 31 March 2017. Ms Wang then referred to the letter dated 16 March 2017 and confirmed that she would return to work on 3 April 2017. She then made a further request to consider extending her parental leave until 26 May 2017 and asked for a reply by 25 March 2017.
By letter dated 28 March 2017 Ms Sceats summarised a number of allegations concerning misconduct by Ms Wang and invited her to a disciplinary meeting to be conducted on 30 March 2017. The misconduct was, in summary, that Ms Wang had failed to return to work from 9 March 2017 and that she had refused to complete any work for Amber Sceats Pty Ltd. Ms Wang wrote to say that she could not attend that meeting.
In a further letter dated 30 March 2017 to Ms Wang, Ms Sceats amended the earlier letter to include a further allegation concerning the provision by Ms Wang of incorrect passwords in February 2016. The letter indicated that the disciplinary meeting would now be held on 3 April 2017.
There followed some correspondence concerning this invitation before, by email dated 2 April 2017, Ms Wang indicated that she had decided not to attend the “so called disciplinary meeting”.
The following day, 3 April 2017, Ms Wang returned to work. Things moved quickly from there.
As had been advised in the letter of 30 March 2017, a meeting was held on 3 April 2017 for the purposes of discussing the allegations set out in that letter and the earlier letter. Ms Wang did not attend the meeting. Ms Sceats, Amber Sceats and an employee of Instyle did attend and discussed the allegations. As a result of those discussions, a letter of warning was sent to Ms Wang on 5 April 2017. The letter noted that the allegations had been substantiated and included a formal written warning that Ms Wang’s conduct as outlined in the letter was unacceptable.
In the meantime, by email dated 4 April 2017, Ms Wang complained to Ms Sceats about certain conduct of Ms Sceats’ husband on the previous day. She wrote:
...
Yesterday, 03/04/2017, the first day I returned to work from maternity leave, your husband Phil followed me the moment I entered the main entrance downstairs shouting “where are you going”, then forbad me to go upstairs where my office is located shouting “You sit here, wait for Jeanette”. After I tried to make my way to upstairs, he stood right in front of me to block my way and shouted at me saying “You can’t go upstairs”, “Why you make things so fucking difficult”, “you are fired, don’t you know you are fired”. ...
And I don’t know what Phil meant that I made things “so fucking difficult”. The only thing I might make ‘difficult’ is that I stick to my return to work right from maternity leave, and I stick to my employment contract with the company.
...
(Without alteration)
Ms Wang took personal leave from 5 April 2017.
On 5 April 2017 Ms Sceats asked staff at the premises if they were present at the office between 8:30am and 9:00am on 3 April 2017 and, in light of what she was told, she came to a decision that Ms Wang’s allegations against her husband were not substantiated. She informed Ms Wang of the outcome of her investigation by email of 5 April 2017. By email dated 7 April 2017 Ms Sceats invited Ms Wang to further discuss her concerns at a meeting on 10 April 2017 at 3:30pm.
Ms Wang returned to work from personal leave on the following Monday, 10 April 2017 and was handed a copy of the warning letter dated 5 April 2017 which had already been emailed to her.
Later that morning there occurred an incident between Ms Wang and Ms Sceats. There is some dispute about what occurred and why, but there is no question that there was some slight physical altercation between the two at Ms Wang’s workstation. Given the importance of this incident to the balance of the proceedings, it is necessary to deal with it in some detail.
Ms Sceats’ version of events was as follows.
She said that between approximately 9:00am and 12:00pm on 10 April 2017 she walked past Ms Wang’s desk approximately 5 times when going in and out of her office, or walking to another area in the premises. She observed that each time she approached Ms Wang’s desk, Ms Wang would click onto another window on her computer so that whatever Ms Wang had had on her screen was no longer visible.
At approximately 12:15pm that day she walked past Ms Wang’s desk and could see that her computer had frozen on a report being generated from the accounting software used by Instyle (Pastel) and that there was a large amount of printing on Ms Wang’s desk. She noticed that the documents that had been downloaded and printed related to a customer who bought old stock from the company and she was concerned that Ms Wang was printing the information to use against the company.
Ms Sceats said that she walked towards Ms Wang’s desk and picked up her mouse to exit the stalling document. When she touched the mouse Ms Wang attempted to pull the mouse out of her hand with force and pushed her against the edge of the desk, still pulling on the mouse cord. Ms Sceats said that she said words to the following effect:
Take your hands off me
You are hurting me
Ms Sceats then took the mouse from Ms Wang and emailed a copy of the document that she had been working on to her email address at 12:34pm. At the time she was sending that email Ms Sceats had a conversation with Ms Wang to the following effect:
Wang: If you come near my desk again or ask me what I am doing, I will just sit here and I won’t do any work at all.
Sceats: Linda, I am your Managing Director, I can check that any of my staff are doing the duties assigned to them at any stage, that is not harassment.
In reply, Ms Wang gave evidence that Ms Sceats came to her workstation on 10 April 2017 talking to her more than 10 times and that each time she walked past her, she peeked over Ms Wang’s shoulder which made her feel uncomfortable and unable to focus on her work. She also denied that she was clicking between windows on her computer and said that she was checking transactions in the accounting software and running a customer report. However, that took a very long time to run. She explained[5]:
[5] Ms Wang’s second affidavit affirmed 15 March 2018 at [99].
... All the time Jeanette was standing behind me staring at my screen from my back and all of a sudden she decided to interfere my work by approaching me from my left, grabbed my mouse out of my hand and forced exit the report running in Pastel and force quit Pastel completely. Then Jeanette started to check my work PC without my consent and saw the reply documents I saved on my desktop, which I prepared during the weekend before Monday 10/04/2017 to dispute the unfair and unreasonable warning letter sent to me on 05/04/2017. When I was trying to reach my mouse, Jeanette suddenly moved my mouse swiftly and drastically from side to side and shouted “Don’t you touch me”, and pushed me aside to the right from my work station with her arm and shoulder while I was sitting in the chair. I then raised both my hands in the air, and let Jeanette do whatever she wanted. Jeanette briefly went through the reply documents, and sent my unfinished reply documents to her email addresses from my email account, which was without my consent and against my will. While she was going through the reply documents and then emailing the documents to herself, Jeanette and I had a conversation with words to the following effect:
Sceats: You can’t reply to this warning letter during the business hours, because I only sent the warning letter to your personal email! This is personal! (Shouting at me angrily)
Wang: No, that’s not true. You sent the warning letter to both my personal email and my work email. You can check your original email to find out.
Sceats: You can’t reply to the warning letter during the business hours! It’s not work related! (Shouting at me angrily)
Wang: They are of course work related. I am replying to the warning letter issued to me regarding my work performance, and the warning letter was sent to my work email.
Sceats: I am going to send these documents to my email as proof that you are using business hours for your personal matters! (Shouting at me angrily)
Wang: These documents are not completed as yet. I will send them to you anyway once they are completed shortly.
Sceats: You wish!
Wang: Please don’t keep coming to my work station so frequently. I can’t concentrate on my work with you interrupting me like this. You are distracting me. Actually you have come to my work station for at least 10 times just two hours.
Sceats: I didn’t notice I’ve already come here for so many times.
(Without alteration)
Ms Wang said that during the whole event except for the time that Ms Sceats grabbed the mouse out of her hand and pushed her aside from the workstation, she did not have any other physical contact with Ms Sceats. Her evidence was that at the time there were only two other employees at the scene: Dan and Stacey Lamble and possibly Natalie.
Two other witnesses gave evidence about what they saw and heard about the incident. They were both Ms Sceats’ daughters. The first, Amber Sceats, deposed as follows[6]:
[6] Affidavit of Amber Sceats affirmed 15 February 2018 at [65], [66].
65. On 10 April 2017, I walked into the office and heard my mother saying words to the effect of “Linda stop it!” I recall thinking ‘what on earth is going on?’, and looked toward where my mother was standing. As I did, I saw Linda push my mother up against the desk and try to pull the mouse she was holding out of her hand. Then Jeanette said words to the effect “don’t touch me’ and “get your hands off me”. Then my mother walked away and into her office.
66. I then ran to my mother’s office to console her as she was shaking and very upset.
The next witness was Claudia Sceats. Her evidence was as follows[7]:
[7] Affidavit of Claudia Sceats affirmed 14 February2018 at [8]-[11].
8. On or around 10 April 2017, I was working at my station at the premises. I stood up out of my chair to go to the printer and I saw Linda sitting at her station with Jeanette standing close by. My attention was drawn to them because Linda was speaking loudly. I heard a conversation between Linda and Jeanette, and words to the following effect were said:
Jeanette: What are you waiting for Linda?
Linda: My computer isn’t working, I can’t do anything.
Jeanette: What do you mean it’s not working?
Linda: The mouse is just spinning around, it won’t work.
Jeanette: Let me have a look, I can try to help.
9. I then saw Jeanette move towards Linda’s computer and put her hand on the mouse and heard the conversation continue with words to the following effect:
Linda: What are you doing, you can’t open that?
Jeanette: Linda, what are you doing? This is not work related.
10. I saw Linda stand up out of her chair, try to snatch the computer mouse from Jeanette’s hand and push Jeanette on the lower arm towards the side of Linda’s desk. Jeanette’s hip hit the side of the table. Jeanette shouted words to the following effect:
Linda, do not touch me, get your hands off me.
11. I then heard Linda mumble but I could not hear the words that she said. I saw Jeanette continue to use Linda’s computer for roughly 10 seconds and then walk away into her own office.
(Emphasis in original, emphasis added [shouting])
Ms Wang was not challenged on her version of events in cross-examination. Both Claudia and Amber Sceats were cross examined by Ms Wang. Claudia Sceats said under cross-examination that she recalled that there were two other employees present at the time of the incident: Dan and Lee Clarke. However, she said that Lee Clarke was sitting in a different area and although she could not see anything, she could hear. She did not say that Amber was present.
Amber Sceats was also cross examined and said that Dan and Stacey were at the scene as well as Ms Wang and Ms Sceats. She said that she did not see her sister Claudia during the incident. She said that she was behind Ms Wang and Ms Sceats but directly and diagonally in sight of what occurred. She explained that she saw Ms Wang attempting to pull the mouse from Ms Sceats’ hand by pulling on the cord. However, she said that she believed that Ms Wang used her body weight and arms and sort of pushed her.
I am troubled by the evidence of Amber Sceats and Claudia Sceats. It does not seem likely to me that they did not see each other in the small space of the office. There is a photograph of the area in question in evidence and Claudia Sceats gave evidence that she was no more than 3 or 4 steps away from Ms Wang when it occurred. Anybody else in the vicinity would have been within her vision at the time, at least within her peripheral vision. Further, I accept the point Ms Wang attempted to make in cross-examination that both witnesses were sisters and lived with their mother. Although this is not a necessary indication of fabrication, it might be a reason to believe that the witnesses’ recollection of events has been affected by the close relationship with their mother and, indeed, with each other. Further, it would have been reasonable to expect that the other witnesses to the events might have been called to give evidence. Their absence was not explained by the respondents and leads me to infer that their evidence would not or could not have assisted the respondents.
That said, given that the incident was very brief and was in a confined space and took place sometime ago, I am willing to accept that all of the witnesses were attempting to give their best recollection of events.
The most probable occurrence then, was that there was a slight tussle between Ms Wang and Ms Sceats over the mouse when Ms Sceats took control of the mouse from behind Ms Wang. Ms Wang then, as she said in her evidence, attempted to wrest control of the mouse by pulling on the mouse cord. I find that she also probably came into contact with Ms Sceats but that it was no more than incidental to her attempt to regain control of the mouse.
I would add that, while I had the opportunity to observe each of the witnesses giving evidence, as well as to see the evidence unfold, there was no indication in what I observed that I should not accept each of the witnesses were being honest in their attempts to give evidence of the incident as they recalled it.
After the incident Ms Sceats made a call to Employsure about the incident. Later, at approximately 1:40pm she went back to Ms Wang’s desk to see if she had started any of the tasks that she had been assigned for the day. Ms Wang told her that she was working on a reply to the letter of 5 April 2017.
Shortly afterwards Ms Sceats received an email from Ms Wang replying to the letter of 5 April 2017[8].
[8] Affidavit of Jingda Wang affirmed 13 December 2017, Part G, pp.110-15.
At 3:00pm on 10 April 2017, Ms Sceats sent an email to Ms Wang requesting a list of tasks that she had completed because Ms Sceats had formed a preliminary view that she had not been doing any of her employee duties. In her reply later that day Ms Wang included in the list of tasks completed “Reply to the unfair and unreasonable warning letter” given on 5 April 2017.
Ms Sceats then sent a letter to Ms Wang inviting her to a further disciplinary meeting to be conducted at 4:15pm on 11 April 2017. In that letter Ms Sceats stated:
...
On an ongoing basis and most recently on 10th April 2017, it is alleged that you wilfully and deliberately failed to perform the duties of your role and you physically and aggressively pushed and removed the Employer after checking your computer. Specifically, it is alleged that you are failing to perform the duties directed to do by the Company and further, when the Employer looked at your computer to look at what was causing your PC to stall, and opened a document open on your screen, you physically and aggressively grabbed the Employer and pushed the Employer against the desk. This was in direct site of other employees.
...
If proven, this matter is viewed as serious misconduct which may result in the termination of your employment without notice.
(Error in original)
On 11 April 2017 Ms Wang did not attend work due to personal leave. The disciplinary meeting was accordingly postponed. In the afternoon of that day, Ms Wang wrote, by email, to Ms Sceats outlining a number of complaints including that the physical contact mentioned in her letter was false. Ms Wang invited Ms Sceats to withdraw the invitation letter, as well as the allegations against her, and to cancel the disciplinary meeting. Ms Sceats then confirmed that the second disciplinary meeting would be held the following day on 12 April 2017. Ms Wang again took leave on that day and the meeting was once again postponed.
On 13 April 2017 Ms Wang wrote to Ms Sceats indicating that she was still waiting for a reply to her email concerning the withdrawal of the false allegations and warning letters. Ms Sceats replied by email of the same day that the warning letter would not be withdrawn and that the disciplinary meeting would proceed at 2:50pm on 13 April 2017.
The meeting took place on 13 April 2017 in Ms Wang’s absence. The outcome of the meeting was that Ms Wang’s employment was to be terminated.
Shortly after the meeting, Ms Wang and Ms Sceats had a conversation. Ms Sceats’ recollection of the conversation was as follows:
Sceats: Linda, I would like to have a without prejudice conversation with you regarding your employment. Please read that definition of without prejudice. Will you have a without prejudice discussion with me?
Wang: Can I record the conversation?
Sceats: No, Linda. It is without prejudice and not to be recorded.
Wang: No. I won’t have this discussion with you.
The “without prejudice” document referred to was the product of a Google search conducted by Ms Sceats prior to the conversation.
Although Ms Wang denies Ms Sceats’ evidence, she did not give her own version of what occurred and I accept Ms Sceats’ evidence with respect to this conversation.
Ms Sceats then says that she finalised a letter terminating Ms Wang’s employment that had been prepared in consultation with Employsure and handed a copy of the letter to Ms Wang. The letter of termination states, omitting formalities:
We refer to our letter concerning allegations of serious misconduct dated 12 April 2017
A subsequent disciplinary meeting was proposed to be convened on 11th April, 2017, however you were unable attend. The Company then postponed to meeting for 12th April, 2017, however again you were unable to attend due to personal unpaid leave. The Company then postponed to meeting for when you returned to work on the 13 April 2017, however you chose not to attend. The meeting was for the purposes of allowing you an opportunity to respond to those allegations of serious misconduct.
As such, the Company received your responses in writing.
Those allegations, together with our findings, are noted following:
I. On an ongoing basis and most recently on 10th April 2017, it was alleged that you failed to comply with reasonable management instruction. Specifically, it was alleged that you are failing to complete your duties as directed. Further, when asked by the Employer what you were doing, you failed to provide an answer. This is in breach of your employment obligations which require you to comply with reasonable management directions given to you and to act in the best interests of the Company. Such conduct has the potential to detrimentally impact the operational efficiency of the business and undermine the relationship of mutual trust and confidence between you and the Company.
You denied the above allegation and stated that it was a false accusation.
II. On 10th April 2017, it was alleged that you wilfully and deliberately made aggressive physical contact with the Employer. Specifically, it was alleged that when the Employer was using your computer, looking into the reason as to why it was stalling and opened a document, you aggressively grabbed and pushed the Employer away. Further, this has resulted in physical pain and the Employer’s arm bruising. This is in breach of your employment obligations which require you to exhibit a professional and courteous attitude when dealing with the Company and its employees. Such conduct has the potential to cause serious and imminent risk to the health and safety of others, adversely impact harmonious relationships and morale in the workplace and severely undermine the relationship of mutual trust and confidence between you and the Company.
You denied to the above allegation. You stated the Employer wilfully and deliberately hurt themselves in order to frame you.
Taking our discussion, your responses, and the available evidence into account, it is the business’ view that the above allegations of serious misconduct have all been substantiated.
At that meeting you were advised that, in view of the above matters, that we proposed to terminate your employment summarily and you were provided with an opportunity to respond to that proposal.
In the circumstances, and for the reasons as outlined above, we maintain the view that is appropriate that your employment should be terminated with immediate effect and without notice.
Your outstanding and accrued (if any) entitlements will be paid to you in due course.
A separate letter will confirm the amount and components of that payment.
(Without alteration)
It will be noted that some aspects of that letter were inaccurate. In particular, there was no letter of 12 April 2017 but one dated 10 April 2017 and no meeting had taken place in which there was a discussion of the allegations with Ms Wang.
Ms Sceats’ evidence was that she had terminated Ms Wang’s employment due to her failure to follow her directions since February 2016, Ms Wang’s continuous refusal to do her work and attending to personal obligations during work hours and her pushing and hurting her on 10 April 2017. By that time she said, the relationship was so badly damaged that she had no trust in Ms Wang at all and could not continue to employ her in her business and had lost all hope that the relationship could be rebuilt.
Ms Sceats denied that her decision to terminate Ms Wang’s employment was in any way impacted by her pregnancy, application for a pay review, application for a flexible work arrangement, taking personal or carer’s leave, making complaints, requesting extensions to parental leave, returning to work or disputing the allegations raised against her.
The parties’ contentions
Against that factual background Ms Wang claims that Instyle took adverse action against her in each of the ways described in Item 1 to s.342 of the FW Act: see [80] to [84] in Part G of the application.
First, she alleges that Instyle dismissed her. The respondents do not contest this. Ms Wang was summarily dismissed on 13 April 2017.
Secondly, Ms Wang alleges that Instyle injured her in her employment by:
a) treating her substantially differently after 4 February 2016;
b) denying her application for a work from home arrangement;
c) refusing her pay review/pay rise request;
d) refusing a second extension request of her parental leave;
e) refusing to provide an employment verification letter to her bank; and
f) issuing a written warning.
Instyle submitted that none of these matters amounts to an injury in employment because they were not compensable injuries which involve a “loss or alteration of a legal right” or a “depravation [sic] of one of the more immediate practical incidents of (her) employment”. In addition, Instyle argued that, as the application for flexible working arrangements and the request for an extended period of parental leave were covered by ss.65(5) and 76(4) of the FW Act respectively, s.44(2) of the FW Act prevented any order being made in relation to a contravention of those provisions under div.2, pt.4-1.
Thirdly, Ms Wang argued that Instyle altered her position to her prejudice by:
a) threatening to change her full time position to part time;
b) directing her to alternative duties after returning from parental leave; and
c) denying a “proper handover”.
Instyle accepted that a threat to the security of employment or allocation of alternative duties might fall within the description of s.342, item (1)(c) but argued that on the facts of this case they did not. Further, it argued that the context of disciplinary processes meant that the allocation of restricted duties did not in a real and substantial way alter Ms Wang’s position to her prejudice. It did accept however, that facing allegations that could lead to disciplinary action did satisfy the requirements of s.342, item (1)(c).
Fourthly, Ms Wang argued that Instyle discriminated between her and other employees by:
a) refusing her pay review or pay rise request; and
b) taking disciplinary action in relation to job performance and conduct matters as compared to the replacement contractor.
In relation to s.351 of the FW Act, Ms Wang alleges that Instyle took adverse action by discriminating against her on the ground of family or carer responsibility and pregnancy by:
a) refusing her pay review or pay rise request because she was pregnant;
b) applying bullying and harassment after 4 February 2016 through the conduct of Amber Sceats accusing her of doing something wrong, making unreasonable work demands and accusing her of making mistakes;
c) refusing her second parental leave extension request;
d) refusing to provide an employment verification letter;
e) violating the return to work right; and
f) dismissing her.
With the exception of the claim concerning dismissal, Instyle refutes each of those allegations. Instyle argues that the dismissal was not for a prohibited reason.
Consideration
The Court’s role in an application such as this is not to engage in a broad ranging enquiry into any allegations that an employee has been, or feels as though she has been, treated unfairly. It is limited by the issues that arise under the legislative regime provided by the FW Act and, in particular, the general protections afforded by that Act. In light of that, it is necessary first to consider the relevant provisions in that regime.
Section 340 of the FW Act provides:
...
(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.
...
Section 351 of the FW Act provides:
...
(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 orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
…
Both of those sections are civil remedy provisions within the meaning of pt.4-1 of the FW Act: s.539(2), item 11.
Section 342 defines the term “adverse action” for the purposes of the FW Act. The relevant provision is item 1 which provides:
…
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.
…
(Emphasis in original)
First issue: was there adverse action within the meaning of s.342?
Section 342 item 1(a) - dismissal
Instyle accepted that it had taken adverse action by dismissing Ms Wang but denied that any of its other conduct amounted to adverse action.
Section 342 items 1(b) and (c) - injures employee or alters the position of the employee
The requirements of these particular categories of adverse action were explained by Perry J in Transport Workers Union of Australia v Premier Motor Service Pty Ltd [2015] FCA 650 at [33]-[37]:
33Secondly, it is important to distinguish between an injury to the employee in her or his employment, on the one hand, and an alteration to the employee’s position to her or his prejudice, on the other hand, within the definition of “adverse action”. As the High Court held in Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia (No 3) (1998) 195 CLR 1 (Patrick Stevedores) at 18 [4] with respect to subs 298K(1)(a), (b) and (c) of the Workplace Relations Act 1996 (Cth):
…par (b) covers injury of any compensable kind; par (c) is a broad additional category which covers not only legal injury but any adverse affectation of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.
Subsections 298K(1)(a), (b) and (c) were relevantly in the same terms as their successor provisions in item 1 of the table in s 342(1) of the FW Act.
34Thus it has been said that “injury” “refers to deprivation of one of the more immediate practical incidents of his employment, such as loss of pay or reduction in rank”: Smithers J in Childs v Metropolitan Transport Trust (1981) IAS Current Review 946 at 948 (quoted with approval in, e.g., Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441; (2006) 160 IR 1 (Qantas) at [14] (Tracey J) and Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 at 290–292 (Evatt J)). Similarly, Finkelstein J in Community and Public Sector Union v Telstra Corporation Ltd [2000] FCA 844; (2000) 99 IR 238 at 244 [20] explained that:
Injury is concerned with actual adverse effect, usually by the loss or alteration of a legal right, in the position of an employee, in his capacity as an employee.
(His Honour’s decision was overturned on appeal, but not on this issue.)
35By contrast, as Tracey J held in Qantas at [15], the concept of prejudicial alteration is “apt to comprehend prejudice extending beyond legal injury”, giving as examples “reneging by an employer on an assurance…, corporate restructuring which reduces the solvency of the employer… and discriminatory allocation of less congenial shifts or rosters” (citations omitted). It has also been held to extend to expectations of re-employment raised by an employer: Australian Meat Industry Employees’ Union v Belandra Pty Ltd [2003] FCA 910; (2003) 126 IR 165 (Belandra) (discussed below at [48]).
36Thirdly, it is necessary to compare the position of the employee(s) before the impugned conduct and their position after that conduct in order to determine whether their position had been altered to their detriment, as the primary judge held at [26]: see also Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18; (2007) 157 FCR 329 at 350 [127] (Branson J); Construction, Forestry, Mining and Energy Union v Pilbara Iron Company(Services) Pty Ltd (No 3) [2012] FCA 697 at [49] (Katzmann J); BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 102 FCR 97; [2000] FCA 430 (BHP v AWU) at 112 (the Court).
37Finally, action which has an indirect or consequential impact on the position of employees may constitute prejudicial alteration where that impact is real and substantial. For example, in Patrick Stevedores, the majority of the High Court found that the corporate reorganisation within the group companies left the security of the employer companies’ business “extremely tenuous”, with a consequential alteration to the security of the employees’ employment to their prejudice (at 20 [7]): see also e.g. Community and Public Sector Union v Telstra Corporation Ltd [2001] FCA 267; (2001) 107 FCR 93 (CPSU v Telstra) (discussed at [50] below).
(Emphasis in original)
None of the actions taken by Instyle complained of by Ms Wang under this item effected a loss or alteration of any of Ms Wang’s legal rights. Ms Wang argued that the following actions injured her:
a) treating her differently after 4 February 2016;
b) denying her application for a work from home arrangement;
c) refusing her pay review/pay rise request;
d) refusing a second extension request of her maternity leave;
e) refusing to provide an employment verification letter; and
f) issuing a written warning.
In brief, Ms Wang had no legal entitlement to be treated in a consistent manner, to work from home, to any pay review or pay rise at the time she requested it[9], to have her parental leave extended, or to be provided an employment verification letter. The warning letter did not deprive her of any rights or any immediate practical incident of her employment. It served only to put her on notice of her own conduct which, it was said, might give Instyle cause to take some action in respect of her.
[9] There was, by contrast, provision in the employment agreement for a pay review at the commencement of each calendar year.
Further, Ms Wang based her claims in respect of the refusal of her request to work from home and an extension of her parental leave on the allegation that there were no reasonable business grounds for those refusals. As such, they were based on ss.65(5) and 76(4) of the FW Act. However, as submitted by Instyle, an order cannot be made under div.2 of pt.4-1 of the FW Act in respect of breaches of those provisions. As Ms Wang is seeking an order under s.539 of the FW Act, and that provision is in div.2 of pt.4-1 of the FW Act, the Court is prevented from making the orders sought: s.44(2).
Ms Wang claimed that Instyle had altered her position to her prejudice in the following ways:
a) threatening to change her full time position to part time;
b) effectively giving her alternative duties after her return from maternity leave:
c) refusing a proper handover;
d) locking her out of her original office and computer;
e) blocking her access to the accounting system, email accounts, finance and HR filing cabinets, necessary logins;
f) instructing her subordinates and other colleagues not to talk or communicate with her; and
g) requesting her to only do work under either Ms Sceats’ or Amber Sceats’ instructions.
The threat to change Ms Wang’s position to a part time position is said to have been made in the conversation between Ms Sceats and Ms Wang on or around 10 February 2016. Ms Sceats’ evidence of that conversation is set out at [29] above. In her reply affidavit, Ms Wang said[10] that Ms Sceats “said there was a problem for (Ms Wang) now since (her) work for Instyle was no longer full-time job so she would like to change (her) role to part-time, threatening that she would hire two part-time employees”.
[10] Affidavit of Jingda Wang affirmed 15 March 2018 at [43].
This did not constitute any alteration of Ms Wang’s position by Instyle. The only thing that had altered was Ms Wang’s willingness to perform work that she was engaged to perform and had, in fact, been performing for over 3 years. Ms Wang was wrong to act on the basis that she was not obliged to continue doing work for Amber Sceats Pty Ltd. It was the same work she had performed when that company’s business had been conducted by Ms Sceats alongside Instyle’s business and the formal change did nothing to alter Instyle’s right, under the contract of employment, to direct Ms Wang to continue to do that work. Indeed, Ms Wang had acted on that basis for several years and only took a different view when the relationship between her and Ms Sceats deteriorated in late 2015.
On her return to work on 3 April 2017 Ms Wang found that her old office was locked. Ms Sceats’ evidence was that, in Ms Wang’s absence, Amber Sceats had taken over that office. While that is an alteration of workplace, there is nothing to indicate that it was to Ms Wang’s prejudice.
The complaint about the lack of proper handover is also rejected. While Ms Wang may have felt she needed more assistance to understand what had happened in her absence, and what work was required on her return, there was nothing that affected her position or entitlements to her detriment in the sense discussed in the authorities.
The same must be said in respect of Ms Wang’s computer and her access to parts of Instyle’s computer hard drives and email system. She was given a new computer on her return to work and complained that it was slow and that she had no access to the F-Drive. However, Ms Sceats, who professed no technical ability with computers, immediately organised for a consultant to attend to deal with the issues.
There was no evidence at all to support the suggestion that Instyle had directed other employees not to talk to or communicate with Ms Wang.
There was no dispute that Ms Wang was directed to perform more restricted duties on her return to work in April 2017. However, her previous position remained essentially unaltered: she was paid the same, the title of her position and overall responsibilities remained the same and she continued to report to Ms Sceats and Amber Sceats. The limitation of her duties was in the context of disciplinary proceedings arising, amongst other things, out of her failure to return to work by the required date rather than from a durable and substantial alteration to her position.
Instyle accepts, and I find, that those disciplinary proceedings did, themselves, alter Ms Wang’s position to her prejudice and I will return to consider the reasons for them later in this judgment. Apart from that one matter, however, I am not satisfied that Instyle altered Ms Wang’s position within the meaning of item 1(c) in the table in s.342 of the FW Act.
Section 342 item 1(d) – discriminates between the employee and other employees of the employer
An employer discriminates “between the employee and other employees” when it targets that employee and treats her differently from other employees: Sayed v Construction, Forestry, Mining & Energy Union (2015) 327 ALR 460 at [160].
Ms Wang argued that Instyle discriminated against her in the following 4 ways:
a) refusing her request for a pay review/pay rise in December 2015;
b) making serious allegations and taking disciplinary action against her;
c) isolating her in the office and instructing other staff not to talk or communicate with her after her return to work in April 2017; and
d) deliberately issuing new company policies tailored to target her.
There is no evidence that any other employee asked for, and was given, a pay review or pay rise in December 2015. For that reason, there was no discrimination involved in Instyle’s failure to accede to Ms Wang’s request at that time.
Instyle accepts that the disciplinary proceedings taken against Ms Wang could amount to discrimination. The reason for those proceedings are considered in the next part of this judgment.
There was, as I have already noted, no evidence of any instructions to staff about communicating with Ms Wang after her return to work in April 2017. Similarly, there is no evidence that any of the company’s policies differentiated at all between Ms Wang and any other employee.
Summary: adverse action taken by Instyle
I find that Instyle took the following adverse action against Ms Wang: first, it took disciplinary action against her; and secondly, it dismissed her.
Second Issue: the reason or reasons for the adverse action
The FW Act only prohibits the taking of adverse action for certain reasons. Section 340 relevantly specifies the existence or exercise of a “workplace right” as two of those reasons. Section 351 specifies as prohibited reasons, amongst other things, carer’s responsibilities and pregnancy.
However, once an applicant has established the necessary factual background in respect of a claim of adverse action, there is a presumption that that action was taken for the prohibited reason claimed by the applicant and the onus falls on the employer to prove otherwise.
Section 361 of the FW Act provides as follows:
Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
(Emphasis in original)
Flick J explained this provision in Stephens v Australian Postal Corporation [2014] FCA 732 at [13]:
[13] … Neither s 361 nor its predecessor provisions remove the need for an applicant to establish the “objective facts” which form the basis of the respondent’s conduct: Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531 at [162], (1999) 140 IR 131 at 167 per Branson J; Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585 at [49], (2008) 177 IR 306 at 321-322 per Moore J. Once those “objective facts” are made out by an applicant and where an allegation is made that a respondent has taken action for a particular reason or with a particular intent, s 361 then shifts the onus to the respondent to prove the contrary. The impact of s 361 “is simply to alleviate the evidentiary difficulty facing the applicant of providing proof of the intent or reason which motivated, or formed part of the motivation for, the respondent’s conduct…”: cf. Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531 at [162], (1999) 140 IR 131 at 167 per Branson J. When addressing the terms of s 361, French CJ and Crennan J in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, (2012) 248 CLR 500 at 517 observed:
[44] … The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”
[45] This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or
member of an industrial association and engage in industrial activity.
(Emphasis in original)
Ms Wang claims that Instyle took adverse action against her because she had exercised, and proposed to exercise, a number of workplace rights and because she had been pregnant and taken parental leave. Ms Wang claimed that the following were the reasons for the actions taken by Instyle[11]:
[11] See Part G of the originating application filed on 4 August 2018 at [81], [83.3] and [84.6].
a) she was pregnant twice and was considered a burden;
b) she applied for a pay review/pay rise while she was pregnant;
c) she applied for work from home arrangements after returning from parental leave;
d) she took personal/carer’s leave for her pregnancy and carer’s responsibility;
e) she proposed to work only for Instyle and not Amber Sceats Pty Ltd;
f) she lodged complaints about the discrimination she received from the respondent and her family members due to her pregnancy and carer’s responsibilities;
g) she lodged complaints about workplace bullying and harassment while she was pregnant;
h) she asked for a safe and healthy workplace by requesting the respondent and her family members to stop the discrimination, bullying and harassment which caused medical complications to her pregnancy;
i) she was forced to start unpaid special maternity leave due to medical complications caused by Ms Sceats and her family members while she was pregnant;
j) she was refused an employment verification letter when on unpaid parental leave;
k) she requested a second extension of parental leave;
l) there was no reasonable business grounds for refusing that request;
m) she exercised her right to return to work after parental leave;
n) she refused to resign under unduly and unjust pressures;
o) she requested a proper handover to resume her original duties; and
p) she disputed all the allegations of misconduct and serious misconduct in the disciplinary meetings and the warning letter.
The respondent argued that many of these matters are not “workplace rights” within the meaning of s.341 of the FW Act. However, it is unnecessary to resolve that issue because I accept two matters: first, Ms Sceats made both the decision to undertake disciplinary proceedings against Ms Wang in the letters of February and April 2017 and to dismiss Ms Wang summarily; and, secondly, that the reasons for those actions did not involve any of the matters raised by Ms Wang.
The question for determination is why the adverse action was taken: Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441 at [32]. That is a question of fact that must be answered in light of all the facts established in the proceeding: Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500 at [45].
There was no contest that Ms Sceats was the relevant decision maker. Her evidence was that she was the Managing Director of Instyle with responsibility for a wide range of matters including the management of employees.
Ms Sceats gave evidence that she took the disciplinary processes against Ms Wang for the reasons given in the letters addressed to Ms Wang. I accept that evidence.
The context and the content of the disciplinary letters is important. The broader context is that, in early 2016, Ms Wang had reacted angrily to being told that she would not be working from home on her return to work from parental leave. She alleged that she had been bullied by Amber Sceats and refused to undertake any further work for that company (even though she had been doing that work for years). Ms Sceats’ immediate reaction to this was to seek legal advice and, on that advice, to appoint an independent investigator and then to offer a neutral mediator or, alternatively, for Ms Wang to further particularise her complaints. Ms Wang did not respond to this offer, but took special maternity leave[12]. There was no complaint made about that by Instyle and, indeed, when Ms Wang requested an extension to her leave in November 2016 it was granted.
[12] See s.80 of the FW Act.
Ms Wang’s return to work in the following year was controversial. As it stood in early 2017, Ms Wang was to return to work on 6 March 2017. The parties corresponded about the date of that return, Ms Wang requesting a further extension, Instyle making a counter-offer to extend leave up to 31 March 2017 (meaning a return to work the following Monday, 3 April 2017). Ms Wang made a further request for an extension. Ms Wang may well have thought that this meant that, absent some other indication, the extension offered by Instyle was an agreed position. She was wrong about that. Instyle acted on the basis that its offer had been rejected.
Instyle wrote to Ms Wang on 22 March 2017 that she was due back at work on 10 March 2017 and, as she had not returned, was on unapproved leave. It was only after Ms Wang’s insistence that she was due back at work on 3 April 2017, that Instyle sent a disciplinary letter to her. There were reasonable bases for the two complaints: Ms Wang had failed to return to work by the date required and she had refused to undertake work for Amber Sceats Pty Ltd. Although that refusal had been a year earlier, it will be recalled that Ms Wang had not in fact been at work since the time of her refusal. Similarly, the complaint about the passwords in the 30 March 2017 disciplinary letter, although relating to February 2016, must be understood in the same context. Effectively, given Ms Wang’s sudden departure from work at that time, those two issues had not been able to be resolved between the parties.
The disciplinary letter of 11 April 2017 added the complaint about the computer mouse incident that had occurred on 10 April 2017. That was a valid issue. Although I have found that the events that took place were slightly different to the evidence given about them, I find that they were sufficient to warrant some concern for an employer and that there was a reasonable basis to formally put Ms Wang on notice about that concern and, importantly, to give her an opportunity to address that concern.
In that context, I am satisfied that the disciplinary proceedings taken by Instyle were undertaken for the reasons given in them. None of those reasons included any of the reasons posited by Ms Wang. In particular, they were not undertaken because Ms Wang had been pregnant and taken parental leave or because she had asked for employment confirmation and a pay rise.
I accept Ms Sceats’ evidence of her reasons for dismissing Ms Wang: her refusal to do her work, attending to personal obligations during work hours and her pushing and hurting Ms Sceats on 10 April 2017. Up to that point, Ms Sceats had, on a number of occasions in writing and in conversations, expressed concerns with Ms Wang’s conduct. None of those concerns included any of the matters prohibited by the FW Act as reasons for adverse action. In particular, she had never complained about Ms Wang’s pregnancy or parental leave. Rather, she had shown herself willing to be flexible in terms of both the extent of that leave and the terms on which Ms Wang would return to work.
Conclusion
For those reasons, I find that the adverse action taken by Instyle against Ms Wang was not for any of the reasons put forward by Ms Wang. The consequence of that conclusion is that Ms Wang has not established any breach of ss.340 or 351 of the FW Act and so her application must be dismissed.
I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 30 November 2018
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