Ward v Owners of Strata Plan 53158 Observatory Tower
[2023] FedCFamC2G 1087
•24 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ward v Owners of Strata Plan 53158 Observatory Tower [2023] FedCFamC2G 1087
File number(s): SYG 363 of 2022 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 24 November 2023 Catchwords: INDUSTRIAL LAW – Practice and Procedure – application for summary dismissal of claims for relief based on alleged contraventions of s 340(1) and s 343(1) of the Fair Work Act 2009 (Cth) and for “unfair dismissal” – proceeding dismissed. Legislation: Fair Work Act 2009 (Cth) ss 12, 14(1), 340(1), 341(1), 342(1), 343, 360, 361, 385, 386, 387, 536(1), 789FF
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143(1)
Federal Court of Australia Act 1976 (Cth) s 31A
Workplace Relations Act 1996 (Cth) s 298K(1)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13(a)
Federal Court Rules2011 (Cth) rr 16.02(2)(d), 16.21
Industrial Relations Act1991 (NSW) ss 170CA, 170EA(1), 245
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Amalgamated Collieries of W.A Ltd v True (1938) 59 CLR 417
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435
Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284
Bartlett v Swan Television and Radio Broadcasters Pty Ltd [1995] FCA 1429
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Briginshaw v Briginshaw (1938) 60 CLR 336 at 361
Brown v New South Wales Trustee and Guardian (2012) 10 ASTLR 164
Building Workers’ Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104
Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941
Byrne v Australian Airlines Ltd [1995] HCA 24
Childs v Metropolitan Transport Trust (1981) 29 AILR 24
Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157
Cook v CFP Management Pty Ltd (2006) 152 IR 358
Crescendo Management Pty Ltd v Westpac Banking Corporation(1988) 19 NSWLR 40
Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721
Esso Australia Pty Ltd v The Australian Workers' Union; The Australian Workers' Union v Esso Australia Pty Ltd [2017] HCA 54
Fair Work Ombudsman v Austrend International Pty Ltd [2018] FCA 171
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32
Humberstone v Northern Timber Mills (1949) 79 CLR 389
Jones v Dunkel (1959) 101 CLR 298
Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555
Maritime Union of Australia & Ors v Geraldton Port Authority & Ors (1999) 165 ALR 67
Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200
Przybylowski v Australian Human Rights Commission(No 2) [2018] FCA 473
Sayabath v Willowdale Nominees Pty Ltd, Williams, Cooper, Notley [2023] FedCFamC2G 104
Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456
Smith v Director-General School Education (1993) 31 NSWLR 349
State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160; (2013) 218 FCR 172
Union Pacific Railroad Company v Public Service Commission 248 US 67 (1918)
Division: Fair Work Number of paragraphs: 137 Date of hearing: 30 May, 13 July, and 9 August 2022 Place: Sydney The Applicant: Appeared in person, by telephone Counsel for the Respondent: Ms J Jaffray, by telephone Solicitor for the Respondent: Kennedys (Australasia) Partnership ORDERS
SYG 363 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SALLY WARD
Applicant
AND: OWNERS OF STRATA PLAN 53158 OBSERVATORY TOWER (ABN 73 138 184 225)
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
24 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The proceeding is dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.The respondent has liberty to apply for costs, such liberty to be exercised within five weeks after the date of these orders.
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
INTRODUCTION
The respondent (OOSP) applies for an order that this proceeding commenced by the applicant, Ms Ward, be dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Rules) 2021 (Cth) (GFL Rules) or, in the alternative, an order, pursuant to r 16.21 of the Federal Court Rules (Cth) 2011 (FC Rules), that a number of paragraphs of the statement of claim filed by Ms Ward be struck out.
PROCEDURAL HISTORY
Ms Ward commenced this proceeding on 14 March 2022 by filing an application, a Form 2, and a statement of claim, seeking relief under the Fair Work Act 2009 (Cth) (FW Act).
The matter came before me on a first court date on 5 April 2022. On that day I made orders permitting OOSP to request particulars of the statement of claim, and requiring Ms Ward to respond to that request by 19 April 2022. I also directed that OOSP file and serve its response and defence by 3 May 2022, and listed the matter for a further directions hearing on 10 May 2022.
By letter dated 14 April 2022 OOSP’s lawyers (Kennedys) requested Ms Ward provide them a copy of each document referred to in the statement of claim, and the particulars requested in the letter. Ms Ward responded by email sent to Kennedys on 16 April 2022. OOSP did not file a response and defence. Instead, at the directions hearing on 10 May 2022, Mr Le Blond, OOSP’s lawyer, informed me that OOSP intended to file an application in a proceeding for an order requiring Ms Ward to provide further and better particulars or, in the alternative, to dismiss the proceeding. On 10 May 2022 I made orders permitting OOSP to file and serve an application in a case that would be made returnable for hearing before me on 30 May 2022; and I further ordered that Ms Ward file and serve any affidavit on which she intended to rely.
The application in a proceeding came before me for hearing on 30 May 2022. OOSP appeared by counsel, and Ms Ward appeared on her own behalf. The hearing proceeded by telephone. After I explained to Ms Ward the procedure that would be followed on the application, counsel for OOSP sought to read an affidavit that did no more than attach Kennedys’ letter dated 14 April 2022, and Ms Ward’s email of 16 April 2022. Ms Ward said that she had not received the affidavit. After discussion with Ms Ward and counsel for OOSP, I decided that the proceeding should proceed only up to counsel for OOSP reading the affidavit on which OOSP relies, and counsel making submissions, but adjourn the matter to a future day to provide Ms Ward an opportunity to respond to OOSP’s counsel’s submissions.
After she had read the affidavit on which OOSP relies, counsel for OOSP made detailed submissions in relation to paragraphs 10, 12, 14, 16, 20, 21, and 23-27 of the statement of claim, and in relation to 25 separate paragraphs of the particulars to paragraphs 2, 5, and 24 of the statement of claim. Counsel submitted that the paragraphs either did not state material facts, or they failed to articulate a case that was understandable to OOSP. At the conclusion of counsel’s submissions, I explained to Ms Ward the effect of counsel’s submissions, namely, that the statement of claim was in a form that makes it impossible for OOSP to understand the case it must meet. Ms Ward said that she understood what an affidavit was, and that it might be easier for her to prepare and file her evidence, rather than be required to file another statement of claim. Counsel for OOSP submitted that OOSP was entitled to have notice of how the evidence on which Ms Ward intends to rely relates to the contraventions of the FW Act on which she relies. After further discussion, I indicated that I proposed to adjourn OOSP’s application in a proceeding part heard to a date for directions; order that Ms Ward file and serve the affidavit or affidavits on which she intends to rely; and further order that Ms Ward complete a document titled “statement of applicant’s case” which I would formulate in chambers and I arranged to be distributed to the parties together with the sealed copy of the orders I propose to make.
At the conclusion of the hearing I pronounced the following orders:
1.The application in a proceeding is adjourned part heard for a directions hearing at 9:30 am on 13 July 2022, such directions hearing to proceed by telephone.
2.By 27 June 2022 the applicant file and serve all her affidavit evidence on which she relies for all her claims for relief.
3.By 27 June 2022 the applicant file and serve a document titled “Statement of applicant’s case” in which she identifies by reference to her affidavit the elements of each cause of action on which she relies, the form of the statement of the applicant’s case to be that which will be formulated by Judge Manousaridis in chambers and distributed to the parties.
4.The parties have liberty to apply on such notice as the circumstances warrant.
After the hearing I drafted in chambers a form titled “Statement of applicant’s case” which, together with the sealed copy of the orders I made on 30 May 2022, was sent to the parties. A copy of the “Statement of applicant’s case” as drafted by me is reproduced as a schedule to these reasons.
By 13 July 2022, when the matter was next before me, Ms Ward had not filed an affidavit or a Statement of applicant’s case. On that day, therefore, I ordered that Ms Ward do so by 27 July 2022, and I listed OOSP’s application in a proceeding part heard for directions on 2 August 2022, which was later changed to 9 August 2022.
At 5:33 am on 9 August 2022 Ms Ward lodged for filing a Statement of the Applicant’s Case (SAC). The SAC had not, however, been accepted for filing by the time the directions hearing commenced at 9:30 am on 9 August 2022. At the directions hearing, being ignorant that Ms Ward had in fact lodged for filing the SAC, I suggested that I list the matter to hear oral submissions from Ms Ward about what she submitted her case is about. Counsel for OOSP opposed that course. Ms Ward then informed me that she had in fact lodged the SAC.
I explored with Ms Ward whether, assuming she had lodged the SAC, she wished to say anything further in opposition to OOSP’s application. Ms Ward said she believed she has stated everything she wants to state in the affidavit she had filed, and in the SAC. After further discussion, I indicated to the parties that I proposed to review the material on which Ms Ward relies to determine whether the material does not disclose a reasonable cause of action. I informed the parties that, although OOSP has not yet had an opportunity to read the SAC, I would proceed on the basis that OOSP’s position is that the material on which Ms Ward relies, including the SAC, does not articulate an understandable claim and otherwise has no reasonable prospects of success; but that OOSP will be at liberty to file material in response to the material Ms Ward has filed, if OOSP so wishes.
The hearing concluded by my making an order reserving judgment on OOSP’s application for dismissal, and granting the parties liberty to apply. I also made an order permitting Ms Ward to file an affidavit to correct what she said are errors in the affidavit she made on 27 July 2022. Ms Ward lodged for filing a further (short) affidavit on 21 August 2022. OOSP has not filed any further material.
APPROACH
I will first set out the alleged facts to which Ms Ward deposes in her affidavits. I will then consider whether the SAC and the statement of claim articulate with reasonable precision any case or purported case based on contraventions of the provisions of the FW Act on which Ms Ward relies; and, to the extent either or both of the SAC and statement of claim articulate a case or purported cased based on the contravention of such provisions, whether Ms Ward has no reasonable prospects of successfully prosecuting all or any of her claims for relief.
ALLEGED FACTS
Ms Ward’s employment
Ms Ward was employed by OOSP as a concierge from September or October 2012 until around 23 November 2020. Ms Ward was a concierge at a building known as “Observatory Tower” (OT).
Ms Ward was initially employed on a casual basis; but she was later offered, and she accepted, the position of part-time employment.[1] Ms Ward’s job as a casual, and then part-time concierge was her second, and sometimes third job; she already had full-time employment, which continued until 2020.[2]
[1] S Ward affidavit 25.07.2022, [2]
[2] S Ward affidavit 25.07.2022, [9]
Ms Ward’s usual roster was Thursday night from 23:00 to 07:00, although there were frequent instances of staff holidays or sick days when she would work.[3] This often occurred at very short notice.[4]
[3] S Ward affidavit 25.07.2022, [13]
[4] S Ward affidavit 25.07.2022, [14]
Persons to whom Ms Ward reported and work environment
From the time she commenced her employment with OOSP until April 2016, Ms Ward reported to Ms EK, the assistant building manager of OT.[5] Until 2017 Mr GW was the building manager.[6] Sometime later, Mr DS was appointed the building manager for OT.[7]
[5] S Ward affidavit 25.07.2022; annexure 1
[6] S Ward affidavit 25.07.2022, [19], [20]
[7] S Ward affidavit 25.07.2022, [3]
On 3 April 2018 Ms Ward found out that Ms GS was the assistant building manager.[8] This occurred when Ms GS sent a text message stating that she is “taking over for [A]”, and asking whether Ms Ward was able to take over some evening shifts. Ms Ward responded by welcoming Ms GS, and asking whether Ms GS wanted Ms Ward to work on three nights.
[8] S Ward affidavit 25.07.2022, [22], [23]; annexure 2
When Mr GW and Ms EK were managing OT, the work environment was positive, friendly, and harmonious; Ms Ward saw them regularly; and when there was a change in policy or procedure, a memorandum would be issued to concierges informing them of the change.[9] This state of affairs changed when Mr DS and Ms GS began managing the concierges.[10] They were rarely present at OT; and this led to residents increasingly directing enquiries to the concierges, and to the consequent expansion of the tasks concierges were performing.[11] These tasks included coding keys for new residents, administering insurance requirements for new residents, confirming access for trades people, updating the residents directory, updating the mandatory list of people with mobility issues to comply with fire safety regulations, and resolving regular car parking issues.[12]
[9] S Ward affidavit 25.07.2022, [31], [32]
[10] S Ward affidavit 25.07.2022, [35]
[11] S Ward affidavit 25.07.2022, [39]
[12] S Ward affidavit 25.07.2022, [41]-[50]
Incident on 24 June 2020
Ms Ward says that on 24 June 2020 she was “subjected to a particular nasty attack from the bully involving swearing, intimidation, threats, and false accusations”.[13] The “bully” is a reference to Mr PG, another concierge OT employed at the time Ms Ward was employed as concierge.[14] At 8:03 am Ms Ward sent a text message to Mr DS in which she stated that Mr PG abused her by stating that Ms Ward thought she knew everything, and he further stated: “stop making my fucking job harder”.[15] This statement was made “about some keys he misplaced”. Ms Ward continued:
This abuse was in front of a resident, the . . . guys, and the . . . . Unwarranted and unnecessary. Apparently you left some keys at desk to be labelled, he forgot, . . . said nothing to me, . . . sent a garbled message msg, then accused me of losing said keys and demanded to know why i wasn’t at desk at 5am (i was doing papers, and cameras back me up!). I would like to make a formal complaint later.
[13] S Ward affidavit 25.07.2022, [108]
[14] S Ward affidavit 25.07.2022, [3]
[15] S Ward affidavit 25.07.2022, [111]; annexure 6
Ms Ward’s text message was ignored. That is so even though, on 25 June 2020, when she was leaving work, Ms Ward asked Mr DS whether he had received Ms Ward’s message, and whether he intended to respond. Mr DS said he had not received Ms Ward’s text message. Ms Ward said she would send Mr DS an email.[16]
[16] S Ward affidavit 25.07.2022, [114], [115]
25 June 2020 – Ms Ward complains about incident
On 25 June 2020 Ms Ward sent an email to Mr PG, Ms GS, and Mr DS.[17] Ms Ward stated she wished to “lodge a formal complaint against [PG] under the Worksafe Act and the General Protections Act”. After making a number of complaints about Mr PG, Ms Ward set out details of an incident that occurred on 24 June 2020, which she referred to as “Workplace Bullying”:
[PG] verbally abused me loudly at concierge desk for several minutes, accusing me of losing some new keys he had forgotten to label which I knew nothing about as no diary notes were made and he (apparently, I have tried to piece together his rant) had forgotten to inform [J], accused me of being “..a f..king bitch, we are supposed to be helping each other, why I am I deliberately making his f..king job hard, I think I f..king know everything, I am not his boss, how about being f..king honest, I don’t need this shit”. The tirade was witnessed by . . . Even if I was in error (which I do not believe I was) I did not deserve this aggressive attack, or being sworn at, in front of others, and ridiculed. I am dreading every shift change now. The bullying behaviour combined with the lying is creating a toxic environment for myself and others, and [PG’s] continued lack of discretion is making everything worse. I dread having to deal with him every morning in case he launches more abuse at me, and I cannot help feeling paranoid about what lies he will make up next about me. If he is willing to lie over his petty minor errors, what will happen if there is a serious incident or safety issue and I am not able to defend myself against bigger lies he is willing to tell to cover his mistakes?
It was not a 30 minute verbal attack, it started when he walked in, I directed him to the staff room to calm him down, then he returned and resumed the abuse
If you require further information please ask me, and I believe other concierges (and residents and contractors, but surely this does not have to escalate) can confirm other very similar incidents to those outlined above.
I request you issue a formal warning to [PG] regarding the above behaviour within the next seven (7) days. I did indicate to [PG] I am ready to hear his apology for the bullying incident, but I see no point in asking you to direct him to do so.
Please advise me within seven (7) days if you intend to address/act on my complaint.
[17] S Ward affidavit 25.07.2022, [117]; annexure 7
Ms Ward says OOSP appointed Mr A, “an HR person”, to investigate Ms Ward’s complaint. At a time Ms Ward does not identify, Mr A spoke to Ms Ward, and said to her that “it would be a very foolish decision” for her to complain to the “FW; that Ms Ward would not be successful”; and that “it is a very complex process you will not succeed”.[18] Ms Ward was not informed of the outcome of the investigation.[19]
[18] S Ward affidavit 25.07.2022, [123]
[19] S Ward affidavit 25.07.2022, [124]
On 25 June 2020 Mr DS sent Ms Ward the following email:[20]
I sent your email to [M] and we have discussed it.
Whilst we investigate we think it better that you and [PG] do not interact [illegible] morning.
[20] S Ward affidavit 25.07.2022, [147(g)]; annexure 9
On 26 June 2020 Mr DS sent another email to Ms Ward.[21] The copy of the email that is in evidence appears to be incomplete and, to some extent, is illegible. The email is as follows:
Therefore from Friday 26 June, can you please leave by 6.35 pm
The desk will be unattended until [PG] arrives.
Please leave the keys on my desk, and [PG] will collect them from there.
You may have to wait in the morning for him to open the unit and let you out but I’ll arrange to get a remote control to you on Monday.
[21] S Ward affidavit 25.07.2022, [147(g)]; annexure 9
On 2 October 2020 Ms Ward sent an email to Ms GS, Mr DS, and [S] as follows:[22]
I have been more than patient waiting for you to act or even reply to my repeated complaints of bullying and hostile workplace [PG] is forcing us to endure.
So far all I see is that you rewarded his actions with a bonus and have repeatedly given him liberties and privileges that no other concierge would ever expect or request.
. . . . Your lack of support is baffling, disappointing, adds to my discomfort, and is also unlawful.
I advise you after receiving legal advice I am lodging an adverse action claim and a bullying complaint with the Fair Work Commission.
Note that the FWC is not as patient as I have been. I urge you to seek legal advice, as the applicable laws require a detailed response from you within 7-14 days.
[22] S Ward affidavit 25.07.2022, [135]; annexure 8
October 2020 – Ms Ward lodges bullying complaint with FWC
In October 2020 Ms Ward lodged a bullying complaint with the Fair Work Commission (FWC).[23] Ms Ward says that her application to the FWC detailed more than 50 instances of workplace bullying.[24] Ms Ward has not included in her evidence any document she filed with the FWC, or any document she prepared in connection with the bullying application she made to the FWC.
[23] S Ward affidavit 25.07.2022, [137]
[24] S Ward affidavit 25.07.2022, [138]
In her affidavit Ms Ward sets out what she describes as a “brief chronological summary of the proceeding” before the FWC.[25] Ms Ward, however, does not provide a chronology; she instead makes a number of general and otherwise unparticularised assertions about the course of the FWC proceeding. Ms Ward says that OOSP “repeatedly made unsupported false statements verbally and in writing and repeatedly implied [Ms Ward] was dishonest”; OOSP “mislead FW proceeding and claimed they had received no other complaints about the bully”; the complaints of another concierge, Ms GK, were “for almost identical behaviour by” PG; although Mr DS had promised to issue Ms Ward protection against “the bully [PG’s] games of locking me in and out of the OT building”, OOSP did not provide Ms Ward with a remote;[26] the FWC “repeatedly allowed [Ms Ward] to feel outnumbered and further victimized by allowing unlimited parties to attend hearings/conferences/mentions on behalf of” OOSP;[27] Ms Ward’s “legal advocate . . . repeatedly acted with misconduct”;[28] “the Respondents perjure themselves and deny misconduct”;[29] OOSP’s solicitor “demanded and received from the Commission a private audience with the Member”, and, in a conversation to which Ms Ward was not privy, OOSP’s solicitor “somehow convinced the Member the Respondents should not be required to conduct any investigation and suddenly the Commission vacated its previous directions for an independent investigation (which the Respondents had defaulted on anyway)”.[30] The proceeding before the FWC was adjourned to “sometime April/May” 2021.[31]
[25] S Ward affidavit 25.07.2022, [147]
[26] S Ward affidavit 25.07.2022, [147(g)]
[27] S Ward affidavit 25.07.2022, [147(h)]
[28] S Ward affidavit 25.07.2022, [147(k)]
[29] S Ward affidavit 25.07.2022, [147(l)]
[30] S Ward affidavit 25.07.2022, [147(p)]
[31] S Ward affidavit 25.07.2022, [147(t)]
Ms Ward also says that, for the duration of the proceeding before the FWC, “the bully discussed openly and freely with residents and colleagues the FW proceedings despite repeated directions from the Members and complaints from [Ms Ward] and to” OOSP.[32] Ms Ward says that “the bully publicly accused Ms Ward of lying in [her] FW claim”.[33] Ms Ward and two other “colleagues” “complained to the assistant manager SF of the indiscreet and inappropriate gossip about my FW application from the bully”;[34] and, through her solicitor, Ms Ward asked whether OOSP would take any action to stop the “gossip and the disobedience of a least two directions to the bully for confidentiality from the Commission”.[35] Ms Ward received no reply.[36]
[32] S Ward affidavit 25.07.2022, [148]
[33] S Ward affidavit 25.07.2022, [149]
[34] S Ward affidavit 25.07.2022, [150]
[35] S Ward affidavit 25.07.2022, [151]
[36] S Ward affidavit 25.07.2022, [152]
30 April 2021 – “informal chat” with Ms AK
On 30 April 2021, shortly after the FWC proceeding had been adjourned, Ms AK, a member of OOSP’s strata committee, invited Ms Ward to an “informal chat”. According to Ms Ward, the following occurred:[37]
[37] S Ward affidavit 25.07.2022, [159]-[176]. At [177] Ms Ward said: “Since this ultimatum was an illegal threat that I would be dismissed if I did not drop my complaint it is not privileged.”
On April 30 I had to stay back unpaid and wait two (2) hours (from memory) after finishing work having worked all night in order to attend a supposed “informal chat” AK had initiated.
. . .
AK had brought along [K] to be a witness and “take notes of everything said”, or so I was told. I do not know [K] well, I only know her to be a resident of OT.
. . . .
AK’s tone was hostile and accusatory from the start to the finish of the so-called “chat”. Within 60 seconds the “chat” descended into a barrage of angry ranting by AK at me in a raised voice.
[Ms AK’s] first words were “You deliberately attacked Observatory Tower” or very similar words.
In an angry raised voice I was repeatedly told by [Ms AK] “You should leave, you are not happy here.” This was not a constructive suggestion. This was not advice from a considerate employer interested in my well-being. The tone of AK made it clear this was an order more or less, and it was repeated throughout the “meeting” at least five (5) times by AK, I believe more than that.
There was an occasional question, but when I tried to respond I was repeatedly interrupted and cut off after getting a few words out by more accusations or angry loud claims that my statements were “rubbish”. The tone of AK was dismissive and combative to whatever words I tried to get out.
After nine (9) years of a happy workplace, at that moment, after suffering bullying, no support and repeated false accusations from the Respondents that I was lying, ineffective Fair Work proceedings, bad health issues becoming more severe due to the stress caused by the hostile attitude from my employers, and having worked all night before the meeting… I agree I was definitely “not happy” to be there at that moment – I was in tears.
[AK’s] hostile tirade against me went on a little longer, then an ultimatum was put to me at least twice, words to the effect – “withdraw your complaint or leave – because you will not have a job here”.
I had been interrupted repeatedly whenever I tried to speak. I said “there is no point continuing this meeting as you do not intend to listen to me.” I rose to leave and despite the rude attack I had just suffered at the hands of AK, I thanked AK and [K] for their time.
[Ms AK] told me she would email me to confirm the “options open to me”. (exact words). My exit from the library in tears will be on camera footage. Conveniently the Respondents claim to have no CCTV footage.
On 1 May 2021 Ms AK sent the following email to Ms Ward:[38]
Dear Sally,
Thank you for your time yesterday.
I have calculated the average of your last three annual income certificates to be $15,947. The offer I made to you on behalf of the owners corporation yesterday was 6 months of that average which is $7,974.00.
Before I contact our solicitor to draft a document for you to sign, I would like to know if you have considered our offer. I’d like an indication by cob Monday. If you accept the offer the deed will be sent to you. You will of course, have time to consider it and to seek legal advice if you feel you need it. It will, however, be conditional upon your leaving our employment as I made clear yesterday.
Yours sincerely,
[AK]
[38] S Ward affidavit 25.07.2022, [178]; annexure 10
17 May 2021 – Ms Ward withdraws bullying complaint
On 17 May 2021 Ms Ward withdrew her bullying complaint to the FWC. Ms Ward says that she did so “so I could keep my job”. Ms Ward further says, however, that she notified the FWC member and OOSP that she intended to lodge an adverse action claim at a later time.[39]
[39] S Ward affidavit 25.07.2022, [184]
OOSP’s alleged treatment of Ms Ward before and after Ms Ward applied to the FWC
Ms Ward annexes to her affidavit two tables. One (Annexure 11a) purports to compare “the treatment from [OOSP] and other incidents and working conditions in [OOSP’s] employment BEFORE [Ms Ward] exercised [her] workplace right, to complain about workplace bullying, to after [Ms Ward] exercised [her] workplace rights”.[40] Annexure 11a consists of a table that has three main columns. The first is headed “event”, the second is headed “Before my FW Complaint”, and the third is headed “After FW Bullying Complaint 2020-2021”. The second column is subdivided into eight columns headed, respectively, 2012, 2013, 2014, 2015, 2016, 2017, 2018, and 2019. The table headed “event” includes “workplace bullying”, “missing payslips”, “incorrect/late/missing pay”, “extra shifts offered to me”, “my food and drinks disappearing”, “accusations of dishonesty”, “hostile text messages and emails from management”, “formal warnings”, “show cause” threats”, and “sick leave taken”. In the rows next to each of the matters listed in the “events” (other than for “sick leave taken”), there is included under each of the columns 2012-2019 “never” or “rarely”; but under the heading “After my FW Bullying Complaint” there are the words “escalated and increased” (in relation to “workplace bullying”), “repeatedly” (in relation to, among other events, “missing payslips” and “accusations of dishonesty”), and “infrequently” (in relation to “extra shifts offered to me”).
[40] S Ward affidavit 25.07.2022, [187]; annexure 11a
The second table (Annexure 11b) Ms Ward annexes to her affidavit purports to identify the “treatment by DS [Ms Ward] was subjected to after [she] exercised [her] workplace right and complained of workplace bullying”.[41] Annexure 11b is a table that contains two main columns. One is headed “Conduct”, and the other “Inconsistent Discriminatory Response from DS”. The second column is subdivided in three sub-columns headed “Other Concierges”, “The Bully PG”, and “Me”. Under the heading “conduct” there is stated certain activities. These included “using personal devices”, “feeding a food scrap to resident’s dog”, “calling in sick”, “sleeping on shift”, “workplace bullying”, and “repeated inability to complete basic concierge duties”. In the column headed “Other Concierges” there appear next to the relevant item in the “Conduct” the words or letters “No action” or “N/A”; in the column headed “The Bully PG”, there appears the words “no action”, and in the column headed “Me” there appear the letters N/A or actions taken against Ms Ward. These include “dishonestly accused of unsatisfactory conduct, summoned to “show cause” meetings” (in relation to “using personal devices”, “feeding a food scrap to resident’s dog”, and “smoking outside on a footpath”), and “dishonestly accused of abandoning shifts” (in relation to “calling in sick”).
[41] S Ward affidavit 25.07.2022, [188]; annexure 11b
Ms Ward says that she feels “these tables articulate and sum up the adverse actions from [OOSP] far more clearly than the paragraphs below”.[42] Ms Ward then identifies what she claims is the adverse action OOSP had taken against her. Ms Ward says that OOSP’s behaviour to her “abruptly changed” “after AK’s illegal coercion in 2021”. Mr DS “started cc’ing AK into all his harassing correspondence with” Ms Ward.[43]
[42] S Ward affidavit 25.07.2022, [189]
[43] S Ward affidavit 25.07.2022, [191]
First stage of the campaign to get rid of Ms Ward
Ms Ward says she believes there were two stages to OOSP’s “campaign by DS and AK to get rid of” her.[44] The first stage consisted of “seemingly small but deliberate and repeated injuries”.[45] Ms Ward says as follows:[46]
The first stage of [OOSP’s] campaign included but was not limited to: missing payslips, missing pay, late pay, incorrect pay, inflicting on me a barrage of work related emails sent to my personal email outside work hours with demands I respond unpaid in my own time, demands I obtain a police check and WWCC at my own cost, injuring me alone by removing my food from the workplace, reducing my work hours, repeatedly and erratically adjusting my and only my shift start/finish times, significantly reducing the number of shifts offered to me (while simultaneously rewarding the bully PG for his workplace bullying by doubling the number of shifts offered to him), singling me out for refusal to dry clean my uniform, singling me out and inventing fake pretexts for imposing disciplinary action on me alone while imposing zero disciplinary action on colleagues for exact same conduct.
[44] S Ward affidavit 25.07.2022, [195]
[45] S Ward affidavit 25.07.2022, [196]
[46] S Ward affidavit 25.07.2022, [198]
Ms Ward says that, between November 2020 and August 2021, she was “repeatedly injured as follows”:
(a)OOSP altered Ms Ward’s position to her prejudice because she was suddenly singled out, and her expected duties altered, when she was expected to constantly monitor her personal emails outside working hours (unpaid) and respond (unpaid) to emails from Mr DS, Ms AK, and Ms GS.[47] Ms Ward says that “the attached comparative table in Annexure 11a tells it all”.[48]
[47] S Ward affidavit 25.07.2022, [201]
[48] S Ward affidavit 25.07.2022, [202]
(b)On at least six occasions OOSP underpaid or missed paying Ms Ward’s wages.[49]
[49] S Ward affidavit 25.07.2022, [204]
(c)There was a “[s]ignificant reduction in the number of shifts offered to” Ms Ward, although she says that she would need “access to rosters to show exactly how much work” she lost.[50] Ms Ward asserts that OOSP was so determined to deprive her of shifts that it offered PG 30 shifts in 28 days on more than one occasion.[51] Ms Ward annexes rosters covering the period 23 August 2021 to 19 September 2021 which, she says, shows that Mr PG was offered 30 shifts in 28 days, whereas Ms Ward worked only four shifts (“from memory”).[52]
[50] S Ward affidavit 25.07.2022, [208]
[51] S Ward affidavit 25.07.2022, [209]
[52] S Ward affidavit 25.07.2022, [210]; annexure 12
(d)Ms Ward’s food and drinks started disappearing from the staffroom. Ms Ward “complained a couple of times (from memory) to Ms GS and Mr DS”, but her complaints were ignored. [53] Ms Ward annexes the following email she sent on 20 August 2021 to “[email protected]”, copying Ms GS:[54]
[53] S Ward affidavit 25.07.2022, [222]
[54] S Ward affidavit 25.07.2022, [223]; annexure 13
While I appreciate the miracle of someone other than myself cleaning the fridge in the staffroom, I do not appreciate my food disappearing. Can you please ask whoever took my food to replace it or reimburse me? Namely my woolworths cauliflower pieces, woolworths potato leek soup, and mogu mogu plain coconut water x 2, very difficult to obtain in Australia). I was under the impression the staffroom and fridge were available for use by all concierge, not just a privileged few.
(e)Ms Ward’s shift finish times were constantly disrupted. Ms Ward says that from July 2020 she was “repeatedly singled out to be given directions to finish early under the guise of “avoiding contact between [Ms Ward] and the bully”” in circumstances where “[t]he bully was allowed to continue his shifts.[55] Ms Ward annexes what she says are “various directions [Ms Ward] and only [Ms Ward] received from [OOSP] concerning changes to [her] shift changeover procedures”.[56] Ms Ward annexes three text messages she received from Mr SF, who was the assistant building manager, and Ms Ward’s immediate supervisor.[57] One text message states that Ms Ward would be “handing over to” Mr EF; the second text message states that Ms Ward would be handing over to Ms AF, not to Mr EF; and the third is a text message asking whether Ms Ward could work on Easter Monday. Ms Ward also annexes the following email she sent to Mr DS on 29 June 2020:
[55] S Ward affidavit 25.07.2022, [224]
[56] S Ward affidavit 25.07.2022, [225], annexure 14
[57] S Ward affidavit 25.07.2022, [225], annexure 14
Please reconsider my shift finish time:
1. The lendlease and cleaners all arrive between 0615 and 0700 and I cannot very well refuse to help them at 06.30 which is what happened last friday. Subsequently [PG] walked in and made a big deal about the time, and then I had to run to the bathroom which made me late anyway.
2. On reflection I think it unfair that after I make a complaint I am singled out to adjust my shift time while Peter can show up 30 minutes early for his shift and prepare himself leisurely. To everyone else it gives the impression I am the problem, which I do not believe I am. Further, anyone kept waiting before 7am will assume I abandoned my shift early and I will attract criticism. He has already made the workplace environment feel hostile, this will possibly make my situation even more uncomfortable.
3. When I tried to lock up at 06.30 the lendlease guy asked me why I was leaving and who would be on the desk. I told him I had another job in the interests of discretion, but it is a bit pointless since [PG] has clearly said something to them, people were asking me if I was okay and said he had bragged that he invited you to pay him out and make him redundant. (I have no idea if this is true).
(f)Ms Ward and Ms GK were rostered on the same day. Ms GK informed Ms GS of the double rostering, and asked Ms GS who should be working, and that Ms GS needed to tell Ms Ward she was not required to work on the relevant day. Ms GS ignored all messages. That led to Ms Ward turning down other work, and attending OT to work. Ms Ward did so because she suspected that, if she did not turn up, she would be accused of abandoning her shift.[58]
[58] S Ward affidavit 25.07.2022, [231]-[233]
(g)On 25 December 2020 Ms Ward was ordered “off the property”. Ms Ward says that at approximately 6:20 am on 25 December 2022 a resident came downstairs, stood in front of her and held out his hand. The resident told Ms Ward to hand him the keys and leave; but he did not bother to introduce himself, although “from memory” his name “may be [E]”. Ms Ward explained to Mr E that she had received different instructions from Mr SF, and that she had not finished her building inspection and night audit. Mr E kept holding his arm out with his palm open, and repeatedly ordered Ms Ward to hand over the keys to him and leave.[59]
(h)Sometime around or after August 2021, while finishing her shift, “an unknown male” summoned Ms Ward into the office. The male tried to hand Ms Ward what appeared to her to be “some kind of warning”. Ms Ward says she had “never received any written warning in [her] entire life so [she had] no idea what it should look like”.[60] Ms Ward asked the man who he was, but he refused to answer. Ms Ward refused to sign anything without understanding what it was, and she left work.[61] Ms Ward says she realised this was “the latest persecution from AK and DS”; they had “apparently singled [Ms Ward] out yet again for unfounded punishment”.[62]
(i)From October 2020, after Ms Ward exercised her workplace right by lodging a bullying complaint to the FWC, “on no less than sixteen (16) occasions [her] payslips were missing”.[63] Ms Ward says she “complained several times about missing payslips in writing and verbally”.[64] Ms Ward further says that (“from memory”) she received no payslips from 2021 until her dismissal.[65]
(j)From December 2020 until she was dismissed, OOSP singled her, and only her out “and refused to dry clean [her] unform”.[66]
(k)On “23 [month not stated]” Ms Ward received an email from Ms GS requiring her to obtain a Working With Children Check at Ms Ward’s own cost, circumstances where she did not need any such document.[67] The email to which Ms Ward appears to be an email Ms GS sent to the “Concierge Team” on 26 October 2021, which was as follows:
Could you please provide the following documents as we are updating our records.
1. Police Check certificate (Basic Check is about $15.00)
2. Working with Children certificate
[59] S Ward affidavit 25.07.2022, [237]-[239]
[60] S Ward affidavit 25.07.2022, [248]
[61] S Ward affidavit 25.07.2022, [249]
[62] S Ward affidavit 25.07.2022, [250]
[63] S Ward affidavit 25.07.2022, [259]
[64] S Ward affidavit 25.07.2022, [263]
[65] S Ward affidavit 25.07.2022, [265]
[66] S Ward affidavit 25.07.2022, [274]
[67] S Ward affidavit 25.07.2022, [287]-[296]; annexure 16
Second stage of campaign to get rid of Ms Ward
Ms Ward says she “had many weeks off due to illness”.[68] Ms Ward further says:[69]
Up until August 2021 the adverse action and the singling me out for injury from the Respondents was somewhat covert and subtle: the repeated underpayment and late pay “errors”, the “missing” food from the staffroom, the repeated “missing” payslips the apparent roster “mix-ups”, the constantly changing finish times for my shifts, the conflicting instructions on where to leave keys at the end of each shift, the sneaky denial of access to dry cleaning for my uniform.
. . . .
In August 2021 the Respondents started to escalate their campaign to get rid of me. DS began creating false pretexts and a fake evidence chain of accusatory emails to supports his flimsy and dishonest accusations of unsatisfactory conduct. DS repeatedly singled me out and accused me of unsatisfactory conduct, misconduct and dishonesty.
[68] S Ward affidavit 25.07.2022, [299]
[69] S Ward affidavit 25.07.2022, [305], [307]
On 12 August 2021 Mr PG, although not on the roster, showed up much earlier than his start time. Ms Ward was unprepared for the encounter, and she was “unprepared to flee the desk which is what [she] wanted to do”.[70] After she left work, Ms Ward messaged Ms GS stating that she would be unable to do the following day’s shift.[71]
[70] S Ward affidavit 25.07.2022, [312], [313]
[71] S Ward affidavit 25.07.2022, [315]
In August 2021 Mr DS “began actively trying to create a paper trail of fake pretext to give him an excuse to dismiss [Ms Ward] in November 2021”.[72]
[72] S Ward affidavit 25.07.2022, [317]
“Harassing email from DS #1 dated 26 August 2021”
On 26 August 2021 Mr DS sent to Ms Ward the following email:[73]
[73] S Ward affidavit 25.07.2022, [320]; annexure 17
Dear Sally,
After your shift on Saturday 15 August, you sent a text message at 18:23 to my assistant [G], which contained two statements and one demand all of which I need to address with you.
“After a nightmare shift battling a migraine with no meal break I could not even pack up and do my job without [PG] walking in and 3 committee members hovering over me”.
Whilst you had a few issues to deal with during this shift, issues like these are not unusual on a concierge shift in any large building. There was nothing of particular note that would lead to it being called a “nightmare shift”. You say you didn’t take a meal break, but a review of CCTV footage shows that there were few interruptions between 12pm and 3pm and you therefore had a constant opportunity to place the “desk unattended” sign on the desk and go to the staff room for an uninterrupted meal break.
With regard to the latter part of your statement a review of the video footage does not support this claim.
At no time was [PG] anywhere near you. He knocked on the door, committee member [KC] opened it and gave him access to the garage. ([K] kindly offered to be there to avoid a handover of keys which should normally occur between the two concierges.) No contact was made with you by [PG], nor was he near you. The footage then shows you departing the lobby through the rear stairs as [PG] descended the front staircase. Again, no contact with you.
The “3 committee members” to which you refer could only have been [KC], who was there to effect the handover. The footage shows [K] waiting, not near you, but on the sofa some metres from your desk. It then shows a social exchange between [MW] and her husband on their way out for their daily walk. No one was “hovering over you”.
“This has happened before. Or I was ordered to leave. That is stress”
Another concierge or resident arriving early to effect the handover, relieving you and allowing you to leave early, can hardly be deemed stressful and you were not “ordered to leave”
In your text message you said “I cannot help you tomorrow or any shift where [PG] shows up when he feels like it and cannot be avoided”
[PG] did not turn up “when he felt like” He was due to start at 4:30 and arrived on site at 4:15.
You vacated your shift on Sunday with twelve hours’ notice because [PG] was working the shift before you, even though you knew you would not have any contact with him. With three of our concierge staff living in lockdown suburbs, rostering to get coverage has been difficult as you know. As a consequence, the building was left without a concierge making deliveries etc very problematic.
We have previously been very accommodating of your requests but with the present difficulties in rostering we cannot give anyone a guarantee of who will be rostered on the shift before or after theirs. We hereby advise that [PG] is currently rostered on every shift prior to yours for the foreseeable future.
Ms Ward says that this email was “combative”, was “dishonestly accusing [Ms Ward] of abandoning [her shift]”, and was “so laughably hostile, incorrect, and full of false claims [Ms Ward] did not bother to reply”.[74] Ms Ward says that she could not see how Mr DS’s statement that “every shift of mine in the foreseeable future will overlap with the shifts of the bully PG” “could not be intended as a threat, which is certainly how I interpreted it”.[75]
[74] S Ward affidavit 25.07.2022, [320]
[75] S Ward affidavit 25.07.2022, [324]
“Harassing email #2 dated 29 September 2021”
On 29 September 2021 Ms Ward received the following email from Mr DS:[76]
[76] S Ward affidavit 25.07.2022, [334]; annexure 18. Ms Ward has not included in her evidence any warning letter from OOSP dated 16 September 2021
Dear Sally
Notice of interview to enquire into unsatisfactory conduct
The purpose of this letter is to formally advise you that following the Owners Corporation warning letter to you dated 16 September 2021, it is alleged that further instances of misconduct have been committed by you as follows:
•15 August 2021: you [illegible] your shift at 7:00 am
•10 September 2021: you were smoking on common property
•10 September 2021: you were feeding a dog at your desk
•17 September 2021: you were using personal devices at your desk
•23 September 2021: you abandoned your shift at 11:00 pm and failed to notify your manager as required
You have previously been informed that further misconduct may result in a further written warning, a final written warning, or the termination of your employment.
Prior to any decision being made, and to enable a full investigation of the matter, we request your attendance at an inquiry meeting which has been specifically convened to provide a suitable opportunity for you to respond to the above allegations.
The disciplinary meeting is to be conducted in the [OT] Library on Friday 1 October 2021 at 8:30 am.
You are expected to make every effort to attend this meeting and are hereby placed on notice that the Owners Corporation reserves the right to to make a determination in your absence if you fail to attend this meeting without a satisfactory reason.
[EF] will have responsibility for the conduct of the meeting, together with any resulting decision which is to be made. [AK] will als be attending the meeting on behalf of the Owners Corporation.
You are welcome to bring a support person to the meeting should you choose.
Definition of a Support Person
. . . .
All matters and information relating to this allegation are confidential and you are directed not to discuss them with any other person other than your support persons or adviser without any express prior consent. . . .
You should be aware that there is a possibility of a further formal warning being issued after the meeting.
. . . .
Ms Ward responded by sending the following email on 30 September 2021:[77]
Apologies I only just read this letter, I am still unwell so I cannot make that meeting tomorrow. Please pass on my apologies to all parties. I appreciate you scheduling a meeting at 0700 after my shift. But less than 48 hours’ notice means due to other commitments I can not always accommodate. On this occasion I am still suffering from a bad reaction to my second vaccine. (And of course have plenty of supporting medical evidence.)
We can reschedule if it is intended to be a constructive meeting, but it appears to be an ambush. And perhaps we can be respectful. [D] I have never disrespected you publicly or otherwise.
I did not abandon any shift and any discussion suggesting that I did is dishonest. It appears to be a deliberate effort to create an accusatory hostile environment.
I have kept the events of last year confidential and was prepared to look forward with no ill-will.
[77] S Ward affidavit 25.07.2022, [334]; annexure 18
As will appear in the continuation of this narrative, Ms Ward did not attend any meeting with any representative of OOSP to discuss the matters raised in Mr DS’s email. Ms Ward, however, in her affidavit, addresses or purports to address each alleged instance of misconduct identified in Mr DS’s email of 29 September 2021:
(a)As to the first alleged instance, Ms Ward says “DS is lying or is so incompetent he does not know the meaning of abandonment”; he had “provided more than 12 hours’ notice and was unwell the previous day”; and “this was not a usual rostered shift, [Ms Ward] had every right to refuse to accept additional shifts offered to” her.[78] Ms Ward does not say when or how she gave notice; or in what respect she was feeling unwell.
(b)As to the second alleged instance, Ms Ward says she was smoking outside the building on the pavement, but she “possibly cross over onto the part of the driveway that leads onto a public street . . . on occasion as [Ms Ward] sometimes pace[s] or chat[s] for the delivery guys [she] was checking the entrance lights, which is part of [Ms Ward’s] duties”; and, therefore, it “is entirely possible [Ms Ward inadvertently stepped on to technically, “private property””.[79] Ms Ward, however, says that “every concierge” who has smoked in the exact same place with no complaint, and Ms Ward is “the only one singled out and targeted and accused of misconduct”.[80]
(c)As to the third alleged instance, Ms Ward says she gave a resident’s dogs “a couple of scraps and [Ms Ward] was NEAR the desk”; and there exists no policy against feeding dogs.[81] Ms Ward also says she knows of at least one other concierge who fed the same dog during “their” shift.[82]
(d)As to the fourth alleged instance, Ms Ward says that every concierge uses personal devices, yet she was the only one targeted “for such a ridiculous charge”.[83] Ms Ward further says that in 2019 Ms GS had permitted Ms Ward to use her personal laptop during her shift. That is supported by a text message Ms Ward annexes to her affidavit.[84]
(e)As to the fifth alleged instance, Ms Ward said she “does not recall the particular date”, but she “never” abandoned her shift. “DS is lying again”. Ms Ward says she “suspects” she had arranged for time off and they (GS/DA/SF) had forgotten”.[85] Ms Ward then says she recalls “one night a concierge [J] calling” Ms Ward accusing her of not showing up, and that she informed [J] that she had already arranged the time off.[86]
[78] S Ward affidavit 25.07.2022, [336]
[79] S Ward affidavit 25.07.2022, [337]
[80] S Ward affidavit 25.07.2022, [338]
[81] S Ward affidavit 25.07.2022, [345]
[82] S Ward affidavit 25.07.2022, [347]
[83] S Ward affidavit 25.07.2022, [352]
[84] S Ward affidavit 25.07.2022, [356]; annexure 19
[85] S Ward affidavit 25.07.2022, [376]
[86] S Ward affidavit 25.07.2022, [377]
“Harassing email from DS #3 dated 1 October 2021”
Mr DS responded to Ms Ward’s email of 30 September 2021 with a letter dated 1 October 2021.[87] After acknowledging receipt of Ms Ward’s email of 30 September 2021, Mr DS said:
[87] S Ward affidavit 25.07.2022, [393]; annexure 20
Whilst you are under no obligation to attend a rescheduled meeting outside your normal working hours, we would appreciate you attending such a meeting on Tuesday 5 October 2021 at 10:10 am or any other time of your choosing.
The meeting is intended to be constructive and you will be given ample opportunity to respond to the issues raised.
Should you be available, [OT] will pay for your attendance and travel time at overtime rates, and we will reimburse you for any expenses incurred.
We request that you bring to any reschedule meeting:
1. Medical Certificates for the recent shifts that you have not worked due to illness
2. Medicare Proof of Vaccination status
Again, you are welcome to bring a support person to this meeting should you choose.
Further, we note you are currently in arrears with your Personal Leave entitlements and therefore you will not be paid any further Personal leave until the overpaid amount has been cleared.
Ms Ward, in her affidavit, makes the following observations about this letter:[88]
Again it was sent outside my working hours and I was expected to reply, unpaid, in my personal time. Again DS scheduled his lynch mob meeting with no consideration of what may be convenient or possible for me. Again he ensured very little notice to make it impossible for me to attend with a support person.
[88] S Ward affidavit 25.07.2022, [393]
Ms Ward further says that:[89]
Following the email 29 September 2021 from DS I was repeatedly ordered to attend such meetings on very little notice, often less than 48 hours. This made it impossible to attend with a support person which I felt I would definitely need because of DS’s history of lying and hostility towards me and because of AK’s previous illegal coercion ultimatum.
[89] S Ward affidavit 25.07.2022, [394]
“Harassing email from DS #4 dated 5 October 2021”
On 5 October 2021 Mr DS sent an email to Ms Ward which states it is in response to an email Ms Ward sent at 14:21 on 4 October 2021.[90] The letter stated:
The disciplinary meeting will be reschedule to Friday 8 October 21 [sic] at 6:30 a.m. and will be conducted in the Observatory Tower Library.
[EF] will have responsibility for the conduct of this meeting, together with any resulting decision which is to be made. [AK] will also be attending this meeting on behalf of the Owners Corporation.
You are welcome to bring a support person to the meeting should you choose.
. . . .
[90] S Ward affidavit 25.07.2022, [395]; annexure 21
“Harassing email from DS #5 dated 15 October 2021”
Ms Ward does not say whether the meeting that had been scheduled on 8 October 2021 proceeded, or whether she attended any such meeting. Ms Ward instead refers to, and annexes, what she describes as “Harassing email from DS #5 dated 15 October 2021”, which is as follows:[91]
[91] S Ward affidavit 25.07.2022, [398]; annexure 22
So that OT can properly consider the current set of circumstances, and indeed whether any payments need to be made to you, and also so that OT can fully understand the reasons why you have been unable to attend work, OT asks that you please provide by no later than 12:00 midday on Monday 18 October 2021 documentary evidence of the reasons why you have been unable to attend. You say that you are “an expert witness in a civil trial”. OT quite reasonably requires evidence of this, including the following:
i.The dates and times you have been required to attend the civil trial;
ii.The names of the parties of the civil trial;
iii.The court number of the civil trial (the details in (i), (ii) and (iii) must surely have been recorded in a document provided to you, and you have attended that civil trial, you must know those details);
iv.Any court documents of the civil trial which have been sealed/stamped by the court registry;
v.The subpoena (if you were served with one) requiring you to attend as an expert witness;
vi.Any documents recording the request for you to attend voluntarily (if that is the case) for the civil trial; and
vii.Your email says “They usually give us a letter” – please explain who is “They”, including their contact details.
Please do provide all this information/documents by no later than Monday 18 October 2021 at 12:00 midday.
In her affidavit, Ms Ward asserts that Mr DS “dishonestly demands information of my providing evidence in the FCFCOA despite me already providing this to him in June 2021”.[92] Ms Ward further asserts that Mr DS’s demands “was near impossible to accommodate”. Ms Ward says:[93]
Even if I spent all my unpaid time outside work monitoring my email for the latest demand from DS, unpaid, (which I did not) he expected me to
401. A. drop everything I was doing
402. B. interrupt solicitors who were in Court
403. C. demand they immediately drop everything and provide DS an absurd amount of information he was not wholly entitled to have
404. D. demand the solicitors put it in a signed letter and send it to me before noon the next day (assuming I had checked my email before 5pm Friday and contacted the solicitors also before 5pm Friday and the solicitors had also read my email before Friday 5pm, a window of less than 17 minutes.)
in the three (3) business hours DS irrationally and maliciously imposed on us all. (the solicitors and myself.)
405. DS created this impossible deadline to create an excuse to harass me further and accuse me of being evasive and dishonest and continue creating his fake paperwork trail of pretexts to justify his adverse action in retaliation for me exercising my workplace right to complain about workplace bullying.
[92] S Ward affidavit 25.07.2022, [398]
[93] S Ward affidavit 25.07.2022, [400]-[405]
“Harassing email from DS #6 dated 19 October 2021”
Ms Ward did not respond to Mr DS’s letter of 15 October 2021. That is apparent from the following letter dated 19 October 2021 Mr DS sent to Ms Ward by email and registered post:[94]
. . . . I refer to my email to you sent Friday, 15 October 2021 at 4:43 pm. A copy of that email is attached.
That email required the provision of information/documents by no later than Monday 18 October 2021 by 12:00 midday.
Not only did OT not receive the information/documents by that time, but as at the time of sending this letter, still nothing has been received.
I cannot overemphasis how important it is you provide this information. This is your final opportunity to provide the information/documents so that it is received by OT (you can email the information/documents to me) by no later than Friday, 22 October 2021 at 4 pm. if [sic] the information/documents are not provided or no response is received from you, then OT will proceed on the basis that you do not intend to comply with this request and there is no information/documents that you can provide.
[94] S Ward affidavit 25.07.2022, [407]; annexure 23
In her affidavit Ms Ward asserts that this letter was designed to harass and stress her; and that it contained lies, including that it had been sent by registered post, and that Mr DS required the information as a matter of urgency.[95] Ms Ward also stated that Mr DS lied in his letter to the extent the letter stated that OOSP had not received “information about my Court requirements”. Ms Ward refers to “annexure 27”, being the following letter from “Connect Legal” dated 15 June 2021:[96]
[95] S Ward affidavit 25.07.2022, [408], [410]
[96] S Ward affidavit 25.07.2022, [409]; annexure 27
RE: Sally Ward Evidence for Court
Dear Sir/Madam
We confirm that Ms Ward is required to provide evidence in a matter listed before the Federal Circuit Court of Australia and is required to attend our office on Tuesday 15th June 2021, Wednesday 16th June 2021, Thursday 17th June 2021 and Friday 18th June 2021 to prepare her evidence.
We appreciate you accommodating Ms Ward with this matter
Ms Ward says that she had left this letter in the office of GS “with my lighting audit”, and that “CCTV would prove that DS already had the solicitors’ communication in his possession, which showed contact information and proves that DS was already well aware of my Court obligations”.[97]
[97] S Ward affidavit 25.07.2022, [441]
Ms Ward also annexes the following letter dated 21 October 2021 from Connect Legal dated 21 October 2021:[98]
To whom it may concern,
My name is . . . . Solicitor
[redacted]
The proceedings are at a critical stage, whereby Ms Ward has a requirement to file evidence with the Court, and that process has and will involve considerable time and effort on the part of Ms Ward, including the literal review and consideration of thousands of pages of documents.
That process has been ongoing for the past several months, and will continue into November 2021.
If you have any questions, please contact the writer.
[98] S Ward affidavit 25.07.2022, [442]; annexure 27b
Ms Ward does not say she had provided this letter to, or to any person on behalf of, OOSP.
“Harassing email from DS #7 dated 25 October 2021”
On 25 October 2021 Mr DS sent to Ms Ward another letter.[99] The letter noted that OOSP had on a number of occasions written to Ms Ward about attending a meeting regarding aspects of her performance, but, for one reason or another, Ms Ward had declined or was unable to attend. Mr DS continued:
These circumstances cannot continue indefinitely. OT now directs you to attend a meeting at [OT] Library on Friday 29 October 2021 to explain why OT should not consider disciplinary action as a result of the following issues:
[99] S Ward affidavit 25.07.2022, [413]; annexure 24
The letter then describes a number of issues, these being Ms Ward smoking on common property; Ms Ward using personal devices at her desk; and Ms Ward being absent due to her claims that she is an expert witness in a trial. The letter continues as follows:
Next steps
At the meeting you are directed to attend you [illegible] explain your side of the story and anything you would like OT to consider, including why OT should not consider disciplinary action, including possible termination of employment.
Ms Ward responded with an email she sent on 28 October 2021:[100]
Firstly, my response to yet another suggestion from you that I am lying: In my experience in many different supervisory positions I quickly learnt unless 100% certain, it is best not to voice one’s suspicions of someone’s integrity or truthfulness. Because you risk needlessly insulting and upsetting someone when you are proven wrong. You can also look foolish and demonstrate that leaping to conclusions outweigh actual facts in your evaluation process. This is not the first time you have implied I am dishonest. I am not the liar here so I kindly request you stop questioning my integrity as I and many others know it is above reproach.
I have the letter from the solicitors. It is dated last week. But he was a bit unclear on dates so I asked him to correct it. If I do not receive it soon I will send this letter. I do not know why your previous letters sent to me try to lay blame on me and imply I am delaying some urgent need that you have to contact the solicitors to “verify” my “claim.” (Again you insinuate I am lying.) This implication is untrue. If you are genuinely in such urgent need to speak to the solicitors you can simply refer to the information you already have: all information is on the earlier letters I have previously supplied to OT when I have been required to give evidence.
I hope this situation is not as it appears: It certainly looks as if you are suddenly sending me all these letters alleging unsatisfactory conduct with the purpose of creating a false narrative for an excuse to terminate my employment. I cannot help wondering if you wish to dismiss me, and have put a plan in place, and are now executing it: and creating a deceptive paper trail to support your plan. I hope it is not your aim to try provide yourself deniability and avoid the obvious link between my bullying complaint last year and this sudden issue with my performance (despite me never having any issue during the previous eight years of employment with several previous building managers).
If at our meeting you show me it was not just me singled out for such rigorous and detailed camera scrutiny followed by accusations before asking any questions then I will happily apologise for being in error. If you show me the other concierges that smoke repeatedly on the property, the other concierges that use their phones or computers on shift at the desk, and the two concierges that fall asleep at least once during every shift were all subjected to the same amount of letters, threats of disciplinary action, demands for immediate meetings, and written suggestions they are liars…. Well, it will be very clear that I am not being subjected to adverse action in retaliation for exercising my workplace right to not work in bullying conditions. I will feel very silly, owe you an apology, and happily provide one.
If you are genuine in your respect to my right to a support person for this meeting that you are demanding I attend, then I require more notice than you have previously provided to me. On two occasions with unreasonably little advance warning you ordered me to attend meetings at times decided by you with no consult to me whether possible or not. I do not recall you ever offered me any input or chance to select a mutually convenient time for this meeting. I may be mistaken. As mentioned I am quite frustrated and limited trying to use my phone to action my emails. I also note that since I am not available to work for the next few weeks due to court demands there is no sense of urgency whatsoever for this meeting about alleged bad performance. Because OT is in no immediate danger of exposure to my alleged unacceptable conduct. So if you wish to suggest (not order me to a pre-determined time as previously) alternative meeting time I can confer with my support and respond. Alternatively if you wish I can confer and send you some suggested times I am confident I can commit to. Note that I expect my present evidence demands in court to finish around 11 November, but also noting that court proceedings seem very unpredictable to me as they often change.
I repeat, I will be unable to work until after 11 November. This is not “abandoning my shifts” as I was recently (falsely) accused of.
I will try reminding the solicitors again of my request to update the letter, or if I receive nothing in the next few days I will send the letter I have now.
[100] S Ward affidavit 25.07.2022, [420]; annexure 25
“Harassing email from DS #8 dated 5 November 2021”
On 5 November 2021 Mr DS sent the following email to Ms Ward:[101]
I am following up your email sent 8 days ago which concluded with the sentence “I will try reminding the solicitors again of my request to update the letter, or if I receive nothing in the next few days I will send the letter I have now”.
Despite that sentence, I received no response. I have not received the specific information requested in my communication of 15 October 2021, or for that matter, the letter referred to in your most recent email.
Can I please request that what information and documents you do have relevant to my request be emailed to me by COB Tuesday 9 November 2021.
[101] S Ward affidavit 25.07.2022; [424] annexure 26
In her affidavit Ms Ward asserts that, although Mr DS’s email referred to her not providing the information he had previously requested, the email did not address any other part of Ms Ward’s email of 28 October 2021. Ms Ward asserts that Mr DS did not do so because “he knew they were true, because he had no defence, and because he was taking great care while creating his paper trail of fake pretexts to support his goal of dismissing me in retaliation for my workplace complaints”.[102] Ms Ward further asserts:[103]
The only flaw in their plan was that despite workplace bullying, despite the illegal coercion, despite the attempts of constructive dismissal, despite the constant attacks and accusations and adverse action from DS, he still had no good reason to dismiss me because I somehow managed to continue to do my job well and there existed no real reason to discipline me for anything.
[102] S Ward affidavit 25.07.2022, [426]
[103] S Ward affidavit 25.07.2022, [428]
Ms Ward, in her affidavit, refers to matters she says should be considered in relation to OOSP’s request for information. Ms Ward says she does not live her life online, including checking her emails daily; at the time “DS chose to bombard” Ms Ward with emails, her laptop was awaiting repairs, and she could not read attachments on her phone; and “since [Ms Ward] was not working during October/November 2021 due to illness and Court obligations there was no urgent need to address any alleged misconduct even if there was any. [sic] (which there was not.)”[104] Ms Ward does not identify the illness from which she was suffering, and otherwise provides no evidence of any illness; and Ms Ward does not identify the court commitments she apparently says prevented her from attending work.
[104] S Ward affidavit 25.07.2022, [430]
End of Ms Ward’s employment
On 18 November 2021 Ms Ward sent the following email to Mr DS:[105]
I note I continue to wait for a response from you in relation to issues I raised in my previous email. I cannot help wonder if you choose to ignore my issues because you do not have any acceptable excuse for your targeted attacks on me.
I have since confirmed with several concierges that as suspected it is only myself being subjected to your false accusations and deceptive narrative. I have also been advised to consult Fair Work Act.
I will respond to the fabricated accusations in your recent letters including the alleged “work performance issues”, the “abandoning my shifts” in Federal Court. I will also address the illegal coercion from [Ms AK] 30 April 2021. I note since the coercion was illegal as a means to settle my bullying complaint, her emails relating to the coercion are not privileged.
I will be issuing subpoenas to concierge staff, Ms [AK], and several residents.
I will not be available to work my rostered shifts for fear of further retaliation and adverse action from you. And I wish to avoid accusations of trying to influence witnesses. I will be including the loss of pay of those shifts in my claim for remedy.
You can expect communication from the [sic]
[105] S Ward affidavit 25.07.2022, [449]; annexure 28
In her affidavit Ms Ward says she “recently discovered” she had sent this email which she “think[s]” she sent. Ms Ward says it was “sent in error”, and she was “unaware of it until a few day ago”.[106] Ms Ward further says:[107]
I am not clear of the purpose of the email. I believe I intended to:
remind DS he was not responding to my email dated 28 October 2021 detailing his campaign of adverse action;
advise DS of my intention to lodge an adverse action claim because of his intentional injury in retaliation for me;
but I am not clear on what several sentences in the email mean.
The email is not very cohesive, has unfinished sentences, and only has half a signature. I believe it would be crystal clear to the Respondents it was sent in error for these reasons.
The Respondents will be unable to provide any other email from me with half signatures and half sentences so they are lying if they dispute this email was clearly sent in error.
Since the sentiment of the email is not entirely clear to me, the author (I suspect some auto-fill and auto-correct were at play) I cannot believe it could possibly be clear to the Respondent DS.
[106] S Ward affidavit 25.07.2022, [448]
[107] S Ward affidavit 25.07.2022, [451]-[457]
On 23 November 2021 Mr DS responded to Ms Ward’s email of 18 November 2021 as follows:[108]
I confirm receipt of your 18 November 2021 email stating that you “will not be available to work my rostered shifts [you then provide a reason which OT rejects]. You have therefore indicated in your email that you will not be providing the services for which you are engaged to perform and therefore are not ready, willing and able to perform your contractual obligations.
In any event, this email confirms the termination of your employment with OT on the basis of aspects of your performance and conduct as a concierge. Your employment with OT is at an end effective today, 23 November 2021.
On 25 October 2021, I wrote to you on behalf of OT regarding allegations of unsatisfactory performance, being you smoking on common property and using personal devices at your desk in breach of your employment and OT’s Smoke Free Workplace Policy.
You also did not attend for work on 7, 14 and 21 October 2021. The reason you gave for not attending was because you are an expert witness in a trial. OT has asked on several occasions for information /documents to verify that what you informed OT is factually correct. That information/documents have not been provided. In the circumstances, the failure to provide this information (in light of your absence which required OT to replace your shifts with another individual), is also inconsistent with your obligations of good faith and fidelity to your employer and this conduct alone also makes the continuation of an employment relationship impossible.
Although OT could take the option of not providing you notice of termination because of your refusal to provide services, OT will nevertheless make a payment in lieu of termination to you of five (5) weeks plus any accrued but untaken leave . . .
[108] S Ward affidavit 25.07.2022, [462]
I now turn to the SAC.
THE SAC
In the SAC Ms Ward relies on three broad claims.
Claim based on contravention of s 340(1) of the FW Act
The first broad claim Ms Ward makes is that OOSP contravened s 340(1) of the FW Act.
Provisions and principles
Subsection 340(1) of the of the FW Act provides:
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.
Three matters must be established before a person will be held to have contravened s 340(1) of the FW Act.
Adverse action
First, the person has taken “adverse action against another person”. That expression is defined in a table contained in s 342(1) of the FW Act, which relevantly provides as follows:
The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...Column 2
if ...1 an employer against an employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
Ms Ward does not, in the SAC, allege OOSP took adverse action against her by terminating her employment. I will, however, assume Ms Ward intends to make such a claim, and will consider later whether she does not have reasonable prospects of succeeding on such claim.
Dismissal of employee[109]
[109] I repeat here what I said in Sayabath v Willowdale Nominees Pty Ltd, Williams, Cooper, Notley [2023] FedCFamC2G 104, at [43]-[61]
The FW Act does not define the expression “dismisses the employee” that appears in the 342 table. The word “dismissed”, however, appears in s 12 of the FW Act, after which appear the words “see section 386”. Section 386 is contained in Part 3-2 of the FW Act, which deals with unfair dismissal. Subsection 386(1) provides:
A person has been dismissed if:
(a)the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
It has been assumed that the definition of a “person has been dismissed” in s 386(1) of the FW Act applies to the expression “dismisses the employee” as it appears in the 342 table;[110] and I will proceed on the basis that that assumption is correct.
[110] Fair Work Ombudsman v Austrend International Pty Ltd [2018] FCA 171 (Gilmour J)
The Explanatory Memorandum to the Fair Work Bill 2008 explained the purposes of what became enacted as s 386(1) of the FW Act as follows:
1528.This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529.Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530.Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
•where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
•where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.
Although this extract from the Explanatory Memorandum provides useful background to the purposes for which s 386(1) of the FW Act was enacted, the legislative intention behind s 386(1) must be ascertained by construing its text, having regard to the statutory context in which it appears. That task “must begin with a consideration of the text itself”, with the “language which has actually been employed in the text of legislation” being “the surest guide to legislative intention”.[111] The meaning of the text, however, “may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy”.[112]
[111] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, at [47] (Hayne, Heydon, Crennan and Kiefel JJ), cases referred to omitted
[112] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, at [47] (Hayne, Heydon, Crennan and Kiefel JJ), cases referred to omitted
Subsection 386(1) of the FW Act provides for two sets of circumstances in which a person “has been dismissed”. The first set is specified in s 386(1)(a), and this is where a “person’s employment” has been “terminated” on the “employer’s initiative”. Paragraph (a) of s 386(1) contains three elements. First, there is that which must be terminated, namely, a “person’s employment”. That implies an employment relationship between an employee and an employer which, in turn, implies a contract between the employee and the employer. An “employee” is a person who stands in a particular relationship with another person, an “employer”, being a relationship that “always depends on the existence of an agreement between them”.[113] The agreement consists of one person to the agreement – the employee – agreeing to perform work for the benefit of the other person to the agreement[114] – the employer – and the employer agreeing to pay to the employee, as and when the work is performed, an amount or an amount calculated by reference to an agreed rate.[115]
[113] Amalgamated Collieries of W.A Ltd v True (1938) 59 CLR 417, at page 423 (Latham CJ). See also Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555, at page 587 where Lord Radcliffe said that “in modern times the relationship between master and servant, between employer and employed, is inherently one of contract”.
[114] “The essence of a contract of service is the supply of the work and skill of a man.” – Humberstone v Northern Timber Mills (1949) 79 CLR 389, at pages 404-405 (Dixon J)
[115] Building Workers’ Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104, at page 114 (Wilcox, Burchett, Ryan JJ).
The cases distinguish between the employment relationship and the contract of employment on which such relationship is based, at least in the context of an employer’s wrongful termination of an employee. It has not been doubted “in this country that a wrongful dismissal terminates the employment relationship notwithstanding that the contract of employment may continue until the employee accepts the repudiation constituted by the wrongful dismissal and puts an end to the contract”.[116] The judgments of Latham CJ and Dixon J in Automatic Fire Sprinklers Pty Ltd v Watson are often referred to as authority for this principle.[117] Latham CJ said:[118]
But if a dismissed servant, as in the present case, does not accept his dismissal as a breach entitling him to regard the contract as discharged, he cannot ignore the wrongful dismissal and claim still to be the servant of his employer with the rights of a servant. The dismissal, though wrongful, is not a nullity. . . . Thus the wrongful dismissal determines the relationship of master and servant created by the contract, even though the servant may not have accepted his dismissal as entitling him to regard the contract as discharged.
[116] Byrne v Australian Airlines Ltd [1995] HCA 24, at [23]
[117] Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435; [1946] HCA 25
[118] Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435, at pages 450-451
The statement of claim does not sufficiently state any claim based on adverse action by means other than OOSP’s alleged dismissal of Ms Ward; and that is because each class of alleged adverse action is stated in conclusory terms. The statement of claim does, however, sufficiently state a claim under s 343(1) of the FW Act, and also a claim under s 340(1) of the of the FW Act to the extent it relies on OOSP’s alleged dismissal of Ms Ward’s employment.
SUMMARY DISMISSAL – PRINCIPLES
OOSP relies on r 13.13(a) of the GFL Rules, which provides:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim . . .
This rule repeats the language of s 143(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) which, in turn, is substantially similar to s 31A(2) of the Federal Court of Australia Act 1976 (Cth). The principles governing the exercise of the power conferred by s 31A were set out by Perry J in Przybylowski v Australian Human Rights Commission(No 2):[162]
[162] Przybylowski v Australian Human Rights Commission(No 2) [2018] FCA 473, at [7]
The principles governing the application of s 31A are well established and can be summarised as follows:
(1)The respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J).
(2)With respect to the scope of s 31A, French CJ and Gummow J explained in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [22], that the section:
… will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.
(3)Section 31A sets a lower threshold than the previous test for summary dismissal which required that the claim be “manifestly groundless” or “hopeless”: Spencer at [52]-[53] (Hayne, Crennan, Kiefel and Bell JJ). Nonetheless, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)).
(4)An assessment of whether a proceeding has no reasonable prospects of success for the purposes of s 31A involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [28] (the Court).
(5) Consistently with this, Reeves J in Cassimatis explained at [46] that:
…the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.
(6)To illustrate the application of these principles, Reeves J explained at [47] that the moving party is more likely to succeed if she or he demonstrates that the applicant’s success relies on a question of fact that is fanciful, trifling, implausible, improbable, tenuous, or contradicted by all the available documents or evidence. Conversely, his Honour explained that, as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter, in his Honour’s view, is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.
NO REASONABLE PROSPECTS OF PROSECUTING CLAIMS?
Claim under s 340(1) of the FW Act based on the alleged non-dismissal adverse action
I have concluded that neither the SAC nor the statement of claim sufficiently articulates causes of action under s 340(1) of the FW Act based on adverse action, other than adverse action constituted by OOSP’s alleged dismissal of Ms Ward from her employment. I have also concluded that the affidavit on which Ms Ward relies is not reasonably capable of proving any alleged adverse action that is not constituted by OOSP’s alleged dismissal of Ms Ward’s employment. For these reasons, I am satisfied that Ms Ward does not have reasonable prospects of successfully prosecuting her claims based on OOSP having taken adverse action other than the OOSP’s alleged dismissal of Ms Ward from her employment.
Claim under s 340(1) of the FW Act based on the alleged dismissal of employment
The first question is whether Ms Ward does not have reasonable prospects of establishing that Mr DS’s email, of 23 November 2021, constituted OOSP’s dismissal of her employment.
It is the case that in his email to Ms Ward, Mr DS confirmed the termination of Ms Ward’s employment with OOSP, and he gave reasons for that confirmation; but Ms Ward does not have reasonable prospects of establishing that her employment was terminated on the initiative of Mr DS, or on the initiative of any other person on behalf of OOSP. Mr DS sent the email of 23 November 2021 in response to the email Ms Ward sent on 18 November 2021 in which she stated that she “will not be available to work [her] rostered shifts for fear of further retaliation and adverse action from you”. Ms Ward has no reasonable prospect of resisting a finding that by this statement, viewed in the context of her email of 18 November 2021 as a whole, and the circumstances in which Ms Ward sent the email, that Ms Ward manifested an intention that she would no longer report for work.
As I have already noted, Ms Ward, in her affidavit, says that she had only “recently” discovered she had sent the email of 18 November 2021; that she had sent the email “in error”; that she is not clear what was the purpose of the email; that her email “is not very cohesive”’; and that it would have been “crystal clear” to OOSP that Ms Ward had sent the email in error. Ms Ward has no reasonable prospects of successfully submitting that OOSP ought to have realised that Ms Ward had sent her email of 18 November 2018 in error; and Ms Ward has no reasonable prospect of resisting the conclusion that a reasonable person in the position of Mr DS would have understood Ms Ward’s email as representing that Ms Ward had decided she would not report for work.
Nor does Ms Ward have reasonable prospects of establishing that she was forced to send her email of 18 November 2021 because of conduct, or a course of conduct engaged in by Mr DS or by any other person on behalf of OSP. It is true that in her email, and in her affidavit, Ms Ward asserted and asserts OOSP has made targeted attacks on Ms Ward; and that she had been subjected to false accusations, and to a false and deceptive narrative; and it is also true that Ms Ward asserts in her affidavit that OOSP mounted a campaign to terminate her employment, and treated her differently from other concierges, and in particular Mr PG. Although Ms Ward repeats these assertions throughout her affidavit, what Ms Ward says is nothing more than assertion. The correspondence from OOSP commencing on 15 August 2021 that Ms Ward annexes to her affidavit is incapable of supporting a finding that OOSP victimised, or harassed, or levelled accusations against Ms Ward that OOSP believed to be untrue, or that OOSP sent correspondence to create a false narrative; or that OOSP’s sending the communications formed part of a campaign to terminate Ms Ward’s employment; or that OOSP singled out Ms Ward and treated her differently from Mr PG or other concierges. Ms Ward has no reasonable prospect of resisting findings that the communications from OOSP related to matters about which OOSP, as Ms Ward’s employer, was entitled to raise with Ms Ward; and that OOSP sought to raise these matters in a manner that was intended to provide Ms Ward fair notice of the matters that concerned OOSP, and a fair opportunity for Ms Ward to address those matters, an opportunity Ms Ward chose not to take up.
What would be the position if, contrary to what I have concluded, Ms Ward has reasonable prospects of establishing that, by Mr DS sending the email of 23 November 2021, OOSP dismissed Ms Ward from her employment? Would Ms Ward have reasonable prospects that the Court would not find that OOSP terminated her employment for a reason, other than Ms Ward having exercised her workplace right by lodging a bullying complaint with the FWC, or for reasons that did not include as an operative factor Ms Ward having exercised such workplace right? The starting point is the email Mr DS sent to Ms Ward on 23 November 2021, where Mr DS stated the reasons on which he relied for confirming the termination of Ms Ward’s employment. The question is whether Ms Ward has reasonable prospects of the Court not finding that Mr DS, on behalf of OOSP, confirmed the termination of Ms Ward’s employment for the reasons Mr DS stated in his email of 23 November 2023. That question is to be answered in the negative.
(a)Mr DS sent his email in response to Ms Ward’s email of 18 November 2021. As I have already found, by sending her email of 18 November 2021 Ms Ward manifested an intention that she would no longer report to work.
(b)The evidence on which Ms Ward relies makes it plain that Ms Ward chose not to attend any of the meetings at which OOSP had requested she attend to discuss matters concerning her performance as a concierge. I have already found that OOSP, Ms Ward’s employer, had a legitimate interest in discussing these matters with Ms Ward.
(c)Ms Ward has not given any evidence that, contrary to what Mr DS stated in his email of 23 November 2021, she did attend for work on 7, 14, and 21 October 2021.
(d)Ms Ward has not given evidence that, contrary to what Mr DS stated in his email of 23 November 2021, Ms Ward had not given as a reason for not attending work that she was required to give expert evidence in a court, and that she had provided the information OOSP had requested she provide.
(e)Ms Ward, on 17 May 2021, had withdrawn the bullying complaint she lodged with the FWC. It is highly improbable that on 23 November 2021 Mr DS would have had as a reason or a substantial reason, for confirming the termination of Ms Ward’s employment, that Ms Ward had lodged a bullying complaint which she had withdrawn some five months earlier.
For these reasons, I am satisfied Ms Ward does not have reasonable prospects of succeeding on a claim based on the allegation that Mr DS’s email of 23 November 2021 constituted OOSP’s dismissal of Ms Ward’s employment, and for that reason constituted adverse action, or, assuming the 23 November 2021 email constituted OOSP’s dismissal of Ms Ward from her employment, that OOSP did so in contravention of s 340(1) of the FW Act because Ms Ward had a workplace right to lodge a bullying complaint with the FWC, or because Ms Ward exercised her workplace right to do so.
Claim under s 343(1) of the FW Act based
Whether Ms Ward does not have reasonable prospects of succeeding, on her claim based on s 343(1) of the FW Act turns on whether Ms Ward does not have reasonable prospects of her evidence of what was said at the “informal chat” she had with Ms AK on 30 April 2021 being accepted. That is so because, if Ms Ward’s evidence is accepted, she would have reasonable prospects of establishing that she had been coerced into not continuing to exercise her workplace rights.
Before I consider whether Ms Ward’s evidence would be accepted, it would be useful to refer to the following passage from the judgment of the plurality in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore:[163]
A court is not bound to accept uncontradicted evidence. Uncontradicted evidence may not be accepted for any number of reasons including its inherent implausibility, its objective unlikelihood given other evidence, or the trier of fact simply not reaching the state of “actual persuasion” which is required before a fact may be found[164]. “To satisfy an onus of proof on the balance of probabilities is not simply a matter of asking whether the evidence supporting that conclusion has greater weight than any opposing evidence ... It is perfectly possible for there to be a scrap of evidence that favours one contention, and no countervailing evidence, but for the judge to not regard the scrap of evidence as enough to persuade him or her that the contention is correct.”[165] The evidence must “give rise to a reasonable and definite inference” to enable a factual finding to be made; mere conjecture based on “conflicting inferences of equal degrees of probability” is insufficient[166]. As Dixon CJ said in Jones v Dunkel[167], the law:
“does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.”
[163] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32, at [60]
[164] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361.
[165] Brown v New South Wales Trustee and Guardian (2012) 10 ASTLR 164, at 176 [51].
[166] Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5.
[167] Jones v Dunkel (1959) 101 CLR 298 at 305.
I have set out above the evidence Ms Ward gives in her affidavit about what occurred at her meeting with Ms AK on 30 April 2021. The critical part of Ms Ward’s evidence, so far as her claim based on s 343(1) of the FW Act is concerned, is Ms AK’s stating: “withdraw your complaint or leave – because you will not have a job here”. The following matters may be noted about Ms Ward’s evidence:
(a)First, on 1 May 2021, the day after the meeting Ms AK had with Ms Ward, Ms AK sent an email to Ms Ward that refers to “the offer” Ms AK made to Ms Ward “yesterday” on behalf of OOSP. Ms AK implies that she had offered Ms Ward the equivalent of 6 months wages, which she calculated to be $7,974. Ms AK, in her email, explains the basis on which that amount was calculated, namely, the average of Ms Ward’s last three annual income certificates, being $15,947. Ms Ward does not, in her account of the meeting with Ms AK, refer to Ms AK having made any offer for the payment of money.
(b)Second, in her email of 1 May 2021 to Ms Ward, Ms AK confirms an offer that OOSP pay Ms Ward six months’ worth of wages in return for Ms Ward’s agreeing to leave her employment with OOSP. That is something very different from what Ms Ward says Ms AK stated in the meeting, namely, that Ms Ward should either withdraw her complaint to the FWC, or she leave her employment.
(c)Third, although Ms Ward annexes to her affidavit a copy of Ms AK’s email of 1 May 2021, Ms Ward does not say in her affidavit that Ms AK made no offer at the meeting of 30 April 2021 to pay Ms Ward six months’ worth of wages in return for Ms Ward agreeing to leave her employment. On the contrary; in her affidavit Ms Ward stated that Ms AK sent her the email “referring to the illegal grounds for settlement, coercion, of [Ms Ward’s] FW complaint . . . put to [Ms Ward] by the Respondent AK”.[168] In this part of her affidavit, therefore, it appears that Ms Ward identifies as the coercion that has been exerted against her the offer Ms AK made in her email of 1 May 2021.
(d)Fourth, Ms Ward does not say what, if anything, she did in response to the offer Ms AK confirmed or made in her email of 1 May 2021. Given that Ms Ward remained with OOSP, it may be inferred that she did not accept the offer, and elected, instead, to maintain her employment with OOSP.
(e)Fifth, Ms Ward says that she withdrew her claim with the FWC on 17 May 2021, sixteen days after she received Ms AK’s email of 1 May 2021. Ms Ward, however, gives no evidence about what, if anything, occurred between 1 May 2021, when she received Ms AK’s email, and 17 May 2021, when Ms Ward says she withdrew her bullying complaint; and Ms Ward otherwise says very little about the status of the proceeding before the FWC at the time she decided to withdraw her complaint. The little Ms Ward does say about the FWC proceeding, however, suggests that Ms Ward was unlikely, and she understood she was unlikely, to have any success before the FWC. That is apparent from the general unparticularised and unsubstantiated assertions Ms Ward makes about the FWC proceeding, to which I have referred in paragraph 28 of these reasons. Of particular relevance is Ms Ward’s assertion that OOSP’s solicitor “somehow convinced the Member the Respondents should not be required to conduct any investigation and suddenly the Commission vacated its previous directions for an independent investigation (which the Respondents had defaulted on anyway)”.[169] In the absence of evidence that it is within the power of Ms Ward to adduce about the status of the FWC proceeding at the time she decided to withdraw her FWC application, Ms Ward does not have a reasonable prospect of showing that, at the time she decided to withdraw her FWC complaint, she believed she had some tangible prospect that she would obtain some order from the FWC in her favour. That, by itself, would tend to show that the more probable explanation for Ms Ward’s deciding to withdraw her FWC complaint is that she was of the view that she did not have a tangible prospect of a favourable outcome in the FWC proceeding; and this, in turn, renders less likely that Ms AK informed Ms Ward that she either had to leave her employment or withdraw her bullying complaint she had made to the FWC.
(f)Sixth, in her affidavit Ms Ward says that she withdrew her bullying complaint, and she notified “the FW member and the Respondents [Ms Ward] intended lodging an adverse action claim at a later date”.[170] This has a tendency to undermine Ms Ward’s evidence that she withdrew her bullying complaint because Ms AK had coerced her by stating that Ms Ward either withdraw her bullying complaint to the FWC or cease her employment with OOSP. If Ms Ward had been coerced to withdraw her FWC claim, it is improbable that she would have notified OOSP that she in any event intended to lodge a general protections claim.
[168] S Ward affidavit 25.07.2022, [178]
[169] S Ward affidavit 25.07.2022, [147(p)]
[170] S Ward affidavit 25.07.2022, [184]
I am therefore satisfied that:
(a)Ms Ward does not have reasonable prospects of establishing at a final hearing that, at the meeting she had with Ms AK on 30 April 2021, Ms AK said “withdraw your complaint or leave – because you will not have a job here”; and
(b)Ms Ward has no reasonable prospects of resisting a finding that at the meeting of 30 April 2021 Ms AK made a without prejudice offer that OOSP would pay Ms Ward six months’ worth of wages in return for Ms Ward resigning from her employment with OOSP.
The next question is whether Ms Ward has reasonable prospects of resisting a finding that Ms AK’s offer to pay Ms Ward six months’ worth of wages in exchange for Ms Ward’s agreement to leave her employment with OOSP does not constitute OOSP’s organising or taking, or threatening to organise or take action, with intent to coerce Ms Ward not to exercise her rights to maintain her bullying complaint before the FWC. That question is to be answered the negative. The offer that Ms AK made to pay Ms Ward six months’ worth of wages was not in terms conditional on Ms Ward agreeing to withdraw or otherwise not to pursue her bullying complaint before the FWC; the offer was conditional on Ms Ward agreeing to leave her employment with OOSP.
Even if Ms AK’s offer could be interpreted as impliedly being conditional on Ms Ward and OOSP mutually releasing each other of all claims arising from the employment relationship, such an offer would be incapable of being characterised as OOSP’s organising or taking, or threatening to organise or take action, with intent to coerce Ms Ward not to exercise her rights to maintain her bullying complaint before the FWC. AK’s offer, if accepted, would have conferred a benefit on Ms Ward to which she was not otherwise entitled. In other words, Ms AK’s conduct in making the offer to pay Ms Ward six months’ worth of wages in exchange for Ms Ward ceasing her employment with OOSP, and on the basis of mutual releases, cannot be characterised as having placed Ms Ward in the position where she would have “to choose the lesser of two evils”.[171] Ms AK’s offer placed Ms Ward in the position where she was free to choose between continuing with her employment and maintain her bullying complaint with the FWC and all other rights she might have against OOSP, and accepting something to which she was not otherwise entitled, six months’ worth of wages (without having to work for those wages) on the basis that she would cease her employment with OOSP and release rights she might have against OOSP, including her rights to maintain her bullying complaint.
[171] Union Pacific Railroad Company v Public Service Commission 248 US 67 (1918) , at page 70 (Holmes J)
For these reasons, I am satisfied that Ms Ward does not have reasonable prospects of succeeding on her claim based on a contravention of s 343(1) of the FW Act.
CONCLUSIONS AND DISPOSITION
Ms Ward does not have any reasonable prospects of succeeding on her claims against OOSP based on s 340(1) or s 343(1) of the FW Act; nor does she have any reasonable prospects of succeeding on a claim in this Court based on unfair dismissal under s 387 of the FW Act.
I therefore propose to dismiss the proceeding. I will also reserve to OOSP liberty to make an application for costs within five weeks after I pronounce my orders. My proposing to grant liberty to apply should not be taken to reflect a view that OOSP would be entitled to obtain an order for costs.
I certify that the preceding one hundred and thirty-seven (137) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 24 November 2023
SCHEDULE
Statement of Applicant’s Case
No. SYG 363 of 2022
Federal Circuit and Family Court of Australia (Division 2)
Registry: Sydney
SALLY WARD
Applicant
OWNERS OF STRATA PLAN 53158 OBSERVATORY TOWER ABN 73 138 184 225
Respondent
INTRODUCTION(1)This Statement of the Applicant’s Case is filed:
(a)pursuant to the orders made on 30 May 2022; and
(b)with the applicant’s affidavit (Affidavit) on which she relies in support of the applicant’s claims that the respondent contravened s 340(1) and s 343(1) of the Fair Work Act 2009 (Cth) (FW Act), and that the respondent unfairly dismissed the applicant within the meaning of s 385 of the FW Act.
PURPOSE
(2)This Statement of the Applicant’s case is intended to identify the paragraphs in the Affidavit the applicant submits supports each element of the respondent’s alleged contraventions of s 340(1) and s 343(1) of the FW Act, and each element of the applicant’s allegation that the respondent unfairly dismissed the applicant.
CONTRAVENTION OF s 340(1) OF THE FW ACT
(3)The applicant alleges the respondent engaged in the following adverse action:
(a)The respondent [describe the adverse action the applicant alleges the respondent had taken]. The applicant relies on paragraph(s) [specify paragraph number(s)] of the Affidavit for contending the respondent took such adverse action.
(b)[Continue as in (a) for any additional alleged act of adverse action, identifying each alleged adverse action in a separate paragraph]
(c). . . .
(4)The respondent:
(a)Took the adverse action referred to in paragraph 3(a) of this Statement of the Applicant’s Case because [state the reason or reasons the applicant alleges the respondent took the adverse action]. The applicant relies on paragraph(s) [specify paragraph number(s)] of the Affidavit for contending the respondent took the adverse action for such reason or reasons.
(b)Took the adverse action referred to in paragraph 3(b) of this Statement of the Applicant’s Case because: [Continue as in paragraph 4(a) for any additional alleged act of adverse action, identifying in a separate paragraph each reason for which the applicant alleges the respondent took adverse action]
(c). . .
(5)As a consequence of the adverse action referred to in paragraph 3(a) the applicant [describe any loss or damage alleged to have been suffered because of the adverse action referred to in paragraph 3(a)]. The applicant relies on paragraph(s) [specify paragraph number(s)] of the Affidavit for contending the applicant suffered such loss or damage.
(6)As a consequence of the adverse action referred to in paragraph 3(b) the applicant [Continue as in paragraph 5 for each loss or damage the applicant alleges she suffered in because of each act of adverse action, identifying in a separate paragraph each alleged loss and damage arising from each alleged act of adverse action]
CONTRAVENTION OF s 343 OF THE FW ACT
(7)The applicant alleges the respondent took action or threatened to take action, namely, [describe the conduct it is alleged the respondent engaged in which the applicant contends constituted the respondent’s taking or attempting to take action to coerce the applicant]. The applicant relies on paragraph(s) [specify paragraph number(s)] of the Affidavit for contending that this conduct constituted the taking or the attempted taking of action by the respondent to coerce the applicant.
(8)The applicant alleges the respondent engaged in the conduct referred to in paragraph 7 with the intention of coercing the applicant to exercise or not to exercise a workplace right, namely [describe the workplace right it is alleged the respondent by its conduct intended to coerce the applicant to exercise or not to exercise].
(a)The applicant relies on paragraph(s) [specify paragraph number(s)] of the Affidavit for contending that the applicant had such workplace right.
(b)The applicant relies on paragraph(s) [specify paragraph number(s)] of the Affidavit for contending that the applicant engaged in the conduct referred to in paragraph 7 for the purpose of coercing the applicant to exercise or not to exercise the workplace right referred to in (a).
(c). . .
(9)The applicant suffered loss and damage because of the conduct referred to in paragraph 7, such loss and damage being [specify the loss and damage the applicant alleges she suffered because of the conduct referred to in paragraph 7]. The applicant relies on paragraph(s) [specify paragraph number(s)] of the Affidavit for contending that the applicant suffered such loss and damage.
UNFAIR DISMISSAL
(10)The applicant alleges she was unfairly dismissed. The applicant relies on the following matters for claiming the Federal Circuit and Family Court of Australia (Division 2) has jurisdiction to determine whether the respondent unfairly terminated the applicant. [State the matters on which the applicant relies for so contending]
(11)The applicant relies on the following matters for contending the respondent unfairly dismissed the applicant:
(a)[Specify in separate paragraphs each matter on which the applicant relies for contending the respondent unfairly dismissed the applicant].
(b). . . .
(12)The applicant relies:
(a)on paragraph(s) [specify paragraph number(s)] of the Affidavit in support of the matter stated in paragraph 11(a);
(b)on paragraph(s) [specify paragraph number(s)] of the Affidavit in support of the matter stated in paragraph 11(b);
(c)[continued as in (b) for each additional matter identified in paragraph 11 on which the applicant relies for claiming the respondent unfairly dismissed her].
OTHER CLAIMS
This section is to be completed if the statement of claim contains claims not covered above(13)The applicant also claims [specify any further any further provisions of the FW Act or any other laws the applicant in her statement of claim contends the respondent breached. In relation to each alleged breach identify:
(a)the provision(s) of the law or the law the respondent is alleged to have breached;
(b)the conduct the applicant alleges the respondent engaged in that constituted the breach; and
(c)the paragraph number(s) of the Affidavit on which the applicant relies to prove the conduct referred to in (b)].
0
24
7