WATSON v Romlin Investments Pty Ltd
[2017] FCCA 1345
•21 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WATSON v ROMLIN INVESTMENTS PTY LTD | [2019] FCCA 1345 |
| Catchwords: INDUSTRIAL LAW – FAIR WORK – Adverse action – whether the applicant was dismissed or whether she resigned from her employment – whether the applicant was dismissed because of complaints she had made – whether statutory presumption rebutted. |
| Legislation: Fair Work Act 2009, ss.340(1), 341(1), 342(1), 351(1), 360, 361(1), 386(1) |
| Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; (2012) 290 ALR 647; (2012) 86 ALJR 1044; (2012) 220 IR 445; [2012] HCA 32 General Motors-Holdens Pty Ltd v Bowling (1976) 12 ALR 605; (1977) 51 ALJR 235 Khiani v Australian Bureau of Statistics (2010) 199 IR 281; [2010] FCA 1059 Sallehpour v Frontier Software Pty Ltd (2005) 139 IR 457; [2005] FCA 247 |
| Applicant: | WENDY WATSON |
| Respondent: | ROMLIN INVESTMENTS PTY LTD (ACN 121 237 009) AS TRUSTEE FOR THE ROMLIN FAMILY TRUST T/AS ALL GREEN NURSERY & GARDEN SUPPLIES (ABN 14 423 819 778) |
| File number: | MLG 1600 of 2016 |
| Judgment of: | Judge Riley |
| Hearing dates: | 10 and 11 April 2017 |
| Date of last submission: | 26 April 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 21 June 2017 |
REPRESENTATION
| Counsel for the applicant: | Maya Rozner |
| Solicitors for the applicant: | McDonald Murholme |
| Counsel for the respondent: | Mark Rinaldi |
| Solicitors for the respondent: | CCI Lawyers |
ORDERS
The application filed on 27 July 2016 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1600 of 2016
| WENDY WATSON |
Applicant
And
| ROMLIN INVESTMENTS PTY LTD (ACN 121 237 009) AS TRUSTEE FOR THE ROMLIN FAMILY TRUST T/AS ALL GREEN NURSERY & GARDEN SUPPLIES (ABN 14 423 819 778) |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Fair Work Act 2009 (“the Act”). The applicant alleged that:
a)the respondent took adverse action against her for reasons that included:
i)her age, in breach of s.351 of the Act; and
ii)her exercise of her workplace right pursuant to s.341(1)(c) of the Act to make complaints in relation to her employment; and
b)the adverse action consisted of actually or constructively dismissing her.
The respondent denied that it dismissed the applicant from her employment, or left her with no option but to resign. The respondent claimed that the applicant resigned of her own free will. In the alternative, the respondent denied that it dismissed the applicant for a prohibited reason.
Background
The applicant is 62 years old.
The respondent is a family company that operates a plant nursery and garden supplies business. The respondent company was established by Romeo and Linda Fragapane (“Ms Fragapane”). Their son, Samuel Fragapane (“Mr Fragapane”), became a manager of the business in 2010. He took over the role of general manager from his father in 2014. As general manager, Mr Fragapane was responsible for hiring and firing employees.
Mr Fragapane’s mother remains a director of the respondent. His sister, Emma Hughes (“Ms Hughes”), is the respondent’s dispatch team leader. His sister, Laura Tringale (“Ms Tringale”), is the respondent’s sales team leader. His mother’s sister, Patricia Nelson (“Ms Nelson”), is the respondent’s payroll officer with responsibility for human resources. Melinda Mark (nee Bennett) is the accounts receivable team leader.
On 3 or 4 December 2007, the applicant commenced employment with the respondent. She initially worked on a casual basis as a sales assistant, pursuant to an oral contract, for a total of 20 hours per week on Saturdays and Sundays. Her responsibilities included processing retail and wholesale transactions and customer service.
The applicant commenced full-time, permanent employment with the respondent in or around November 2010. The applicant and respondent signed a written contract of employment reflecting that arrangement on 23 May 2011. The applicant and the respondent agreed at the time that the applicant’s working hours would be 7am to 5pm, Monday to Friday. That amounted to 50 hours per week, inclusive of breaks.
In October 2011, the applicant complained to Mr Fragapane about Ms Hughes. The applicant alleged that Ms Hughes had repeatedly made public and private humiliating remarks about her, and alleged that Ms Hughes had told her to be more of a bitch to people (“the first complaint”). Ms Hughes denied those allegations, but said that she may have told the applicant to stop babysitting staff. Mr Fragapane recalled that the applicant complained to him about Ms Hughes at about that time but said he could not recall the details of the complaint.
In 2013, the applicant obtained another job. She gave a letter of resignation letter to Mr Romeo Fragapane. However, he persuaded her to stay with the respondent.
In September 2014, Mr Fragapane (that is, Samuel) reprimanded the applicant about making one or more errors. The applicant said that she was making mistakes due to her age and long working hours. The applicant asked that her working hours be reduced (“the second complaint”). The respondent reduced the applicant’s hours to 40 hours per week with her consent. She continued working from 7am to 5pm but only from Monday to Thursday.
In October 2014, the applicant began working on a trial basis in the respondent’s accounting department as the “Book Up Person”. The applicant did not do well in her new position. Mr Fragapane counselled the applicant on 13 and 21 November 2014 about errors she had made and for not following proper procedures.
On 24 November 2014, Mr Fragapane gave the applicant a written warning about her work performance. On 26 November 2014, Mr Fragapane again counselled the applicant about errors she was making as the Book Up Person. In a memorandum of that meeting, Mr Fragapane noted:
… My views on Wendy’s performance in this role are that she could not handle the stress involved. This was not the direction that I wanted this area to work towards. Wendy was informed that if these errors continued changes would need to be made. …
At around this time, the applicant completed a performance review questionnaire at the request of the respondent. In response to the question, “Is there anything management could have done better in the last 6 months?” the applicant wrote:
… Less sarcastic comments from some management within public forum – this is demeaning and demoralising and counterproductive.
Mr Fragapane conceded that the applicant’s comment may have been a reference to his own conduct in the workplace. He conceded that he had realised at around this time that he had problems with “people management skills” and had become more aware “… of the importance of promoting a work environment that was free of bullying and harassment.”
Mr Fragapane carried out the applicant’s annual performance review on 27 November 2014. Mr Fragapane’s note of the meeting included the following:
Firstly I would like to start by saying that I in particular am not happy with the way that I managed the office area over the past 6 months. I apologise mostly for my attitude towards dealing with particular questions and issues. I cannot change the past but can assure you that I am working extremely hard to get it right.
On 3 December 2014, Mr Fragapane told the applicant that she would not be remaining as the Book Up Person because she had continued to make errors. His note of the meeting stated that:
… As a manager I could no longer continue with Wendy in this role. I informed Wendy that she still had a role to play at All Green, however it would be in the retails service area and she would need to follow the new changes that have been implemented there. (error in original)
On 4 December 2014, the applicant complained to Ms Fragapane (Mr Fragapane’s mother) that Mr Fragapane’s conduct in the meeting on 3 December 2014 had been bullying and intimidating (“the third complaint”). Ms Fragapane made a note of the applicant’s complaint on her file.
Mr Fragapane said that, after the applicant’s complaint about his conduct on 4 December 2014, he realised that he:
… had to be more sensitive to how Wendy received my criticism of her performance.
In April 2015, the applicant asked Ms Fragapane to remove the note of her complaint against Mr Fragapane from her file.
On 17 August 2015, Mr Fragapane counselled the applicant in the presence of Ms Tringali for making an error with an account customer. The memorandum of this meeting was signed by Mr Fragapane and Ms Tringali. It stated:
All Green Nursery & Garden Supplies
Diary Notes
Date – 17/8/15 Time – 4.45pm
Staff Member – Wendy
Present- Wendy, Laura and Samuel
Issue – Wendy made an error with an account customer, Samuel called her in and explained that all these errors are not good enough. Laura had been dealing with it and we were going to wait until the end of the month to reduce Wendy’s hours to 7am – 3.30pm, however with all these errors it is now taken out of Laura’s hands and Samuel has had to get involved. The new hours will start Tues 18/8. It was made clear to Wendy by Samuel that we have been persisting with all her errors for too long and we just can’t do it anymore, hopefully by not working as many hours, she will be able to concentrate on and not make as many errors. Wendy said that she can’t cut her hours and she would prefer to resign, Samuel said that is a decision you have to make, but this is happening. Wendy said she would think about it and let him know what she decides, as she was leaving Samuel said he wouldn’t be back until Thursday afternoon but Wendy can discuss it with Trish or Laura, Wendy said she would rather discuss it with Samuel only.
Details
Wendy did not approach Samuel the next day. On Wednesday she came to Laura and said she will not resign and was waiting for Samuel to call her. Laura explained that the meeting ended with Wendy saying she would speak to Samuel not that he would schedule a meeting.
Name – Laura Fragapane
Signed – [signed]
Name – Samuel Fragapane
Signed – [signed]
Mr Fragapane conceded that he had decided to reduce the applicant’s hours from 40 hours per week to 32 hours per week during the course of the meeting on 17 August 2015. The applicant agreed to work the reduced hours, being 7am to 3:30pm, Monday to Thursday.
In October 2015, the applicant and respondent agreed that the applicant would work from 6am to 2:30pm, Monday to Thursday. That is, the applicant still worked 32 hours per week, but started and finished one hour earlier.
In about February 2016, Mr Neil Schreiber commenced employment with the respondent as a sales assistant, and worked in the same area as the applicant. The applicant alleged that Mr Schreiber made frequent derogatory comments to her. In particular, she said that he referred to her as a “GILF”[1] in front of a long-standing customer. In addition, she said that Mr Schreiber often kicked her on the buttocks, by bending his knee and flicking his foot up behind him as he passed her.
[1] “Grandmother I’d like to f***”
From February 2016, the applicant made a number of complaints to Ms Tringali about the conduct of Mr Schreiber (“the fourth complaint”). In her affidavit, Ms Tringali said that the applicant’s interactions with Mr Schreiber amounted to nothing more than workplace joking and banter. The applicant said that, when she complained to Ms Tringale about Mr Schreiber, Ms Tringale would just roll her eyes.
On 19 March 2016, the applicant, on behalf of a customer, mistakenly ordered 85m of instant turf rather than 35m. The applicant offered to pay for the excess turf but the respondent did not require her to do so.
On 5 April 2016, the applicant failed to comply with correct procedure when she did not ask another employee to check orders above $500.
On 6 April 2016, Ms Tringali gave the applicant her first written warning. The letter said:
Dear Wendy,
First written warning
I refer to our meeting on the 19th March 2016 between you and myself, which was held to discuss matters relating to your not following correct procedures for checking orders.
Unfortunately another instance of not following correct procedure occurred yesterday we have carefully considered your responses to the first instance and as a consequence, this letter serves as a formal first written warning. Your performance and conduct in relation to the following of correct procedures is unacceptable.
During the meeting on 19th March several issues were raised in relation to your performance, which included the following:
·Having a second staff member check and sign off on orders over $500
·Having a second staff member check orders prior to be emailed
You were provided with the opportunity to provide your account of the situation, which included the following responses:
· You would pay for the excess grass on the order which I explain was not necessary that we just need to ensure this does not happen again. I asked if you clearly understood the problem and you told me you did.
Your compliance with each of the above actions will be formally reviewed in two weeks time on 20th April We expect to see an improvement in your performance in each of the areas outlined above. Please be advised that should your performance not improve, further disciplinary action may be taken against you, which may include the termination of your employment. We trust that you will respond positively and that further disciplinary action will not be necessary.
Please do not hesitate to contact me should you have any questions.
Yours sincerely,
[signed]
Laura Fragapane
Customer Service Team Leader
(errors in original)
In fact, the review meeting was held on 21 April 2016. As Ms Tringale was on leave, Mr Fragapane conducted the meeting. Ms Nelson also attended. Ms Nelson took handwritten notes of the meeting. The notes were not discovered or annexed to any affidavit. However, when Ms Nelson said during cross-examination that she had made handwritten notes of the meeting, they were called for production. Ms Nelson’s handwritten notes were produced. They said:
21/4/16
feedback – improvement
many conversations /meeting
improved then gone backwards
last chance
sales orders /phone directions not followed
need to report to Samuel if Team Leader is being unreasonable
W- does follow instructions unless ½ way through sales order
Laura
feels victimised – Neill – sexual
Rowena
Lily
Following the meeting on 21 April 2016, Ms Nelson typed up a memorandum of the meeting. It is as follows:
…
Issue – Review of meeting 6 April 2016
Details Samuel told Wendy there had been an improvement since the last meeting but after having had many conversations and meeting about various matters unfortunately Wendy slips back into old ways and mistakes and negative issues soon raise their heads.
He informed Wendy this was her last chance. That she needed to stop being negative and to follow directions given to her from her Team Leader. He pointed out to her that she had not followed directions regarding sales orders / phone calls. Wendy said that all sales team members did the same thing; that team member’s came to her saying negative things and she told them they needed to talk to Laura. She also said Laura seems to brush her off when she raises any issues with her, that she has issues with Neill’s behaviour at times but feels there is no point to go to Laura with it. Samuel asked why he had not heard of this prior to our meeting and these issues should have been raised with him, that we have a great structure now for complaints to be raised with management or payroll. Trish explained that any issues of bullying or harassment should immediately be reported to management or payroll.
Outcome Wendy seemed very defensive and left at the end of the meeting a 2.25pm.
A newsletter will be sent to all staff reminding them of our policy regarding bullying and harassment and the procedure to follow in making complaints.
Trish called Laura and let her know the details of the meeting, she asked Trish to talk to Jasmine as temporary Team Leader as she felt Wendy could be very disruptive on Tuesday when she returns after the weekend
Name – Trish Nelson
Signed –
(errors in original)
In cross-examination, Mr Fragapane said he disagreed with some aspects of the typed memorandum of the meeting of 21 April 2016. He said that neither he nor Ms Nelson had signed it because he had not yet approved it for the file. Nevertheless, Mr Fragapane did exhibit the memorandum to his affidavit.
At paragraph 41 of his affidavit, Mr Fragapane said:
I refer to a memo of a meeting held with Wendy and Trish Nelson on 21 April 2016 to review Wendy’s performance. I informed Wendy at this meeting that while there had been some improvement in her following procedures, there were ongoing issues with respect to her following directions and with her making negative comments. I informed her that this was her last chance to show that she could follow directions, not make negative comments and comply with our procedures. …
At the meeting on 21 April 2016, the applicant said that she complained to Mr Fragapane that:
a)Mr Schreiber conducted himself inappropriately towards her and other women in the office;
b)Mr Schreiber had called her a “GILF” in front of a customer; and
c)Mr Schreiber often kicked her on the buttocks.
(“the fifth complaint”)
The applicant said that she told Mr Fragapane at the meeting on 21 April 2016 that she had not complained to him previously about Mr Schreiber’s conduct because:
a)the applicant was afraid of losing her job;
b)Ms Tringali and Mr Schreiber were friendly and the applicant felt that it was unlikely that any formal complaint would be taken seriously; and
c)whenever she told Ms Tringali about it, Ms Tringali would just roll her eyes.
Mr Fragapane and Ms Nelson claimed that the applicant said at the meeting on 21 April 2016 that Mr Schreiber had described a female customer, and not the applicant, as a GILF, albeit in the applicant’s presence. Mr Fragapane also said that he told the applicant during the meeting that the company had a procedure for raising issues of that nature and asked the applicant why she had not used that procedure when the incidents occurred. Mr Fragapane said that the applicant said that:
a)she was aware of the procedures for making a complaint;
b)she had not wanted to make a complaint;
c)she was just making a passing comment; and
d)she was not making a complaint at this time.
After the meeting on 21 April 2016, Mr Fragapane directed Ms Nelson to contact VECCI[2] to find out how to handle the situation when there were allegations of harassment but no official complaint. Ms Nelson said that VECCI said that, without a formal complaint, Mr Schreiber could accuse the respondent of bullying him if anyone raised the accusations with him. Ms Nelson said that VECCI advised that the respondent should circulate its harassment and bullying policy.
[2] Victorian Chamber of Commerce and Industry
The applicant acknowledged in cross-examination that she had received the respondent’s bullying and harassment policy, which had been circulated on 8 October 2015. Among other things, it said:
…
All Green will not tolerate unlawful sexual harassment in the workplace.
“Unlawful Sexual harassment” is unwelcome sexual behaviour which could be expected to make a person feel offended, humiliated or intimidated in breach of Commonwealth, state or territory law.
…
All employees who feel they have experienced unlawful discrimination, bullying, victimisation and/or harassment at work are strongly encouraged to raise their concerns to an appropriate person within
All Green. An appropriate person may be a manager or supervisor.
All complaints will be treated seriously by All Green. Where a complaint may involve offences under the criminal law (such as sexual assault, indecent exposure or stalking) the matter may be referred to police.
Management has instructed all Team Leaders to report any instances of discrimination, harassment or bullying immediately. This behaviour could occur via email, 2 way, UHF or personally. It can also be between work colleagues outside of work.
A copy of this policy in full can be found on the noticeboard outside the tea room.
Mr Fragapane directed Ms Nelson to remind staff of the respondent’s bullying policy. Ms Nelson sent an email to staff on 22 April 2016 at 10.30am, which included a staff newsletter that said:
Staff Newsletter
Policy reminder
All Green Nursery & Garden Supplies has a duty of care and responsibility to all employees, customers and contractors. Equally, each employee has a responsibility to each other ensuring they act in a manner which provides an environment free of discrimination, harassment and bullying. Additionally, the health and safety of individuals must be considered at all times.
Please be aware of what you are saying and doing in front of our customers and others – the person you are talking to might not take offense but someone hearing it might.
The first person you need to take any concerns to is your Team Leader, if you feel your concerns are not being taken seriously or being dealt with in a timely manner you can talk to any member of our Management Team or to Payroll.
21 April 2016 was a Thursday. The applicant left work shortly after the meeting. Friday 22 April 2016 was the applicant’s regular day off. Monday 25 April 2016 was a public holiday, and the applicant did not work on that day. The applicant did not see the email sent by Ms Nelson about the company policy on workplace bullying until she returned to work on Tuesday 26 April 2016.
On 26 April 2016, Mr Schreiber approached Mr Fragapane and said that he had been told that the applicant had complained about him on 22 April 2016. Mr Fragapane was concerned that someone had divulged the contents of a private meeting. Mr Fragapane arranged meetings with the applicant and Mr Schreiber to find out what happened.
On 26 April 2016, the applicant was required to attend a meeting without notice with Mr Fragapane and Ms Nelson. Ms Nelson gave oral evidence that she may have taken handwritten notes in the meeting on 26 April 2016. However, the handwritten notes could not be found.
A typed file note of the meeting of 26 April 2016 was prepared by Ms Nelson. It was not discovered or annexed to any affidavit. However, it was called for and produced at the trial. Counsel explained that it had been “overlooked”. The typed file note was not signed by Mr Fragapane or Ms Nelson. Mr Fragapane said that he had not approved its contents.
Ms Nelson’s typed file note said:
Issue – Neill approached Samuel informing him that he was told Friday 22nd morning about meeting between Samuel, Trish and Wendy on Thursday afternoon and that a complaint had been made about him.
Details
Samuel called in each team member on duty (Lily; Maddie; Jasmine;) and asked how the day had been in the sales area, each person said the same thing that it had been extremely busy with little chance to talk. Lily said there had been a little talk about Laura’s wedding.
Samuel then called in Neill to ask when he was told what had been discussed at Thursday’s meeting. Neill told us it had been early morning and when he received the newsletter reinforcing our bullying and harassment policy he believed it was pointed at him.
Samuel called Wendy into the office and asked her if she had discussed Thursday’s meeting with any staff members, she stated that she hadn’t talked to anyone; that she had not had time between the end of the meeting and finishing the day. Samuel asked how anyone would have known pretty much word for word what had been said. He said that he has been working hard to build trust between employees to which Wendy replied that she had no trust in AGN and never had. Samuel asked how that could be as anytime she had raised an issue it has been dealt with as quick as possible. That in this instance she actually never raised a complaint about Neill just made a comment in conversation that we had ensured was sent as a reminder on Company Policy to all staff on the Friday. He stated that he was at a loss as to how she can feel victimised when we try all we can to do what we can to deal with any issue she raises; that he was at the end of it. Wendy then said that we should just call it a day, to which Samuel said that is for the best. She asked if he wanted her to work her 2 week’s notice or just pay her out. He told her that AGN would pay her out and for her to leave immediately.
Name – Trish Nelson
Signed – (emphasis added) (errors in original)
There was some dispute about precisely what was said at the meeting on 26 April 2016. However, the applicant and respondent were both clear that the applicant’s employment with the respondent was at an end. The applicant said that she understood that she had been dismissed. Mr Fragapane said that he believed the applicant had offered to resign and he had accepted her resignation.
It was common ground that the applicant did not provide a written letter of resignation and the respondent did not provide a written letter of dismissal, notwithstanding that the applicant’s contract of employment required notice to be given in writing by the employee or employer.
At the applicant’s request, the respondent provided to the applicant a Centrelink separation certificate dated 27 April 2017. It was prepared by Ms Nelson. The form gave various options for the reason for separation. They were:
a)shortage of work;
b)unsuitability for this type of work;
c)end of season or contract;
d)redundancy;
e)unsatisfactory work performance;
f)misconduct as an employee;
g)employee ceasing work voluntarily; and
h)other.
The box for employee ceasing work voluntarily was checked. In the section asking for the reason and further details, Ms Nelson wrote, mutual agreement.
The applicant provided the separation certificate to Centrelink. An officer of Centrelink told the applicant that they could not give her a health care card or any other benefits because her cessation of employment was for reasons of mutual agreement. The applicant did not ask Ms Nelson to amend the separation certificate to show that she had been dismissed. Nor did the applicant seek to explain to the respondent that she had not meant to resign and, if that was how it had appeared, she wished to withdraw her resignation.
Age discrimination
Section 351(1) of the Act provides that:
An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Although the applicant raised an assertion of age discrimination in her documents, it was not pursued in final submissions. I assume that the applicant withdrew that claim.
Was the applicant dismissed?
It was common ground that, if the respondent had dismissed the applicant from her employment, the dismissal would have constituted adverse action as defined in s.342 of the Act.
The first substantive issue is whether the applicant was dismissed from her employment, actually or constructively. The applicant alleged that she was dismissed. The respondent alleged that the applicant offered to resign and the respondent accepted her resignation.
Section 386(1) of the Act provides that:
A person has been dismissed if:
…
(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.
In Spencer v Dowling [1997] 2 VR 127 at 160, Hayne JA said:
… But the fundamental question presented by these so-called “constructive dismissal” cases is whether the employer has evinced an intention no longer to be bound by the contract of employment, i.e. whether the employer has repudiated the contract of employment. No doubt the question whether conduct does evince such an intention is to be judged objectively.
While there was some dispute in the evidence about who said what, and who said certain things first, I accept the applicant’s submission that Ms Nelson’s file note of the meeting on 26 April 2016 accurately reflects the significant statements made at the meeting. It was the respondent’s own contemporaneous, written record of the meeting, albeit one that Mr Fragapane had not signed off on.
That is, I accept that, at the meeting on 26 April 2016:
[The applicant said] that she had no trust in AGN and never had. … [Mr Fragapane said] that he was at the end of it. [The applicant] then said that we should just call it a day, to which [Mr Fragapane] said that is for the best. She asked if he wanted her to work her 2 week’s notice or just pay her out. He told her that AGN would pay her out and for her to leave immediately. (error in original)
This conversation occurred five days after Mr Fragapane had told the applicant in the meeting on 21 April 2016 that:
this was her last chance.
Having given the applicant her last chance on 21 April 2016, Mr Fragapane saying that he was at the end of it on 26 April 2016 could only have meant that the employment relationship was over.
The applicant then saying, we should just call it a day, simply meant that she was accepting the reality.
The respondent submitted that the applicant enquiring whether she should work out her two weeks’ notice indicated that she was the one who had initiated the cessation of employment. However, in all the circumstances of this case, I consider that is reading too much into the possessive pronoun. The applicant was simply asking whether she had to present herself to work during the notice period. That interpretation is supported by the subsequent words, where the applicant asked whether, as an alternative, the respondent would just pay her out. That enquiry is more consistent with the applicant believing the respondent was terminating the employment relationship.
Mr Fragapane denied in his oral evidence that he said during the meeting on 26 April 2016 that he was at the end of it and said that the applicant was the one who said, we should finish this now. However, the applicant said in her oral evidence, before the memorandum of the meeting on 26 April 2016 was produced, that Mr Fragapane said that we should finish this now. I prefer the applicant’s evidence on this point. It is more consistent with the respondent’s written, contemporaneous record of the meeting, and it strikes me as being more plausible and consistent with the presentations of the applicant and Mr Fragapane in the witness box.
The applicant denied in her oral evidence that she said in the meeting of 26 April 2016 that she had no trust in AGN and never had. The applicant claimed that it was Mr Fragapane who said that he had no trust in the applicant. However, Mr Fragapane maintained that the applicant did say that she had no trust in AGN and never had.
I prefer Mr Fragapane’s evidence on this point. It is consistent with the contemporaneous, written memorandum of the meeting. Mr Fragapane’s version is also consistent with what followed in the memorandum, namely:
[The applicant] replied that she had no trust in AGN and never had. [Mr Fragapane] asked how that could be as anytime she had raised an issue it has been dealt with as quick as possible. That in this instance she actually never raised a complaint about Neill just made a comment in conversation that we had ensured was sent as a reminder on Company Policy to all staff on the Friday. He stated that he was at a loss as to how she can feel victimised when we try all we can to do what we can to deal with any issue she raises; that he was at the end of it.
It is implausible that the subsequent eight lines of the memorandum would have been inserted if the applicant had not said that she had never trusted the respondent. The applicant had no explanation for those eight lines.
All in all, I am satisfied that the typed file note of the meeting on 26 April 2016 accurately reflects the significant statements that were made at that meeting. I am satisfied that the effect of the conversation was that the respondent no longer wished to have an employment relationship with the applicant, the respondent was terminating the applicant’s employment and the applicant accepted that termination.
I consider that the separation certificate said the separation was by mutual agreement because it was more gracious than saying that the applicant had unsatisfactory work performance, and because the applicant communicated her acceptance that her employment would be terminated. On balance, I do not consider that the applicant’s failure to have the separation certificate amended outweighs the other evidence, as discussed above.
I am satisfied that the respondent dismissed the applicant from her employment. I consider that the dismissal was an actual dismissal, rather than a constructive dismissal. Although the respondent’s words of dismissal were somewhat roundabout, they were clear enough.
Consequently, I am satisfied that the respondent took adverse action against the applicant.
What was the reason for the dismissal?
Section 340(1) of the Act provides that:
A person must not take adverse action against another person:
(a)because the other person:
…
(ii) has … exercised a workplace right … .
…
Section 341(1) of the Act provides that:
A person has a workplace right if the person:
…
(c)is able to make a complaint or inquiry:
…
(ii)if the person is an employee—in relation to his or her employment.
Section 360 of the Act provides that:
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Subsection 361(1) of the Act provides that:
If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
It is well established that, while the reason for adverse action need not be the only reason, it must be a substantial and operative factor: General Motors-Holden’s Pty Ltd v Bowling (1976) 12 ALR 605 at 612 and 616; (1977) 51 ALJR 235.
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; (2012) 290 ALR 647; (2012) 86 ALJR 1044; (2012) 220 IR 445; [2012] HCA 32, French CJ and Crennan J said:
44.There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”.
45.This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. (citations omitted)
There is clear authority, [3] which I follow, that adverse action claims do not involve questions of fairness and reasonableness, except perhaps to the extent that they cast doubt on the claimed reasons for an action.
[3] Khiani v Australian Bureau of Statistics (2010) 199 IR 281; [2010] FCA 1059, Sallehpour v Frontier Software Pty Ltd (2005) 139 IR 457; [2005] FCA 247.
In the present case, the applicant alleged that the respondent dismissed her from her employment because she had made complaints in relation to her employment. In her pre-hearing outline of argument, the applicant said that the complaints that she relied upon were:
a)in October 2011 the Applicant complained about humiliation by Mrs Hughes (the First Employment Complaint);
b)in September 2014 the applicant complained about excessive working hours (the Second Employment Complaint);
c)in December 2014 the applicant complained about bullying and harassment by Mr Fragapane (the Third Employment Complaint);
d)in February 2016 the applicant complained about Mr Schreiber’s inappropriate conduct towards her (the Fourth Employment Complaint); and
e)on 21 April 2016 the applicant complained about Mr Schreiber’s inappropriate conduct towards her (the Fifth Employment Complaint).
It was alleged in this proceeding that the respondent dismissed the applicant from her employment because she had made the complaints. Therefore, by force of s.361(1) of the Act, the respondent is presumed to have dismissed her for that reason unless the respondent proves otherwise.
Because the respondent’s case was that it did not dismiss the applicant from her employment, the respondent did not give evidence that contained an express statement of why it dismissed the applicant. However, the respondent argued that, on the evidence, the court should find that the reasons for the respondent dismissing the applicant from her employment were that:
a)Mr Fragapane believed that the applicant had divulged the contents of the private meeting on 21 April 2016; and
b)Mr Fragapane was shocked and dismayed by the applicant saying that she had never trusted the respondent.
I note that, in Barclay, French CJ and Crennan J said at [45]:
… Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. …
The fact that Mr Fragapane, as the decision-maker, did not give direct evidence about why he dismissed the applicant from her employment is likely to be, but is not necessarily, fatal to the respondent’s case. As French CJ and Crennan J said at [45]:
This question is one of fact, which must be answered in the light of all the facts established in the proceeding.
That is, the court must look at all of the evidence to see whether the respondent has rebutted the statutory presumption.
In this regard, it is particularly significant that Mr Fragapane said that he accepted what he understood to be the applicant’s resignation on 26 April 2015 because she had made it clear that she had no trust in the respondent and never had. That statement can fairly be taken as Mr Fragapane’s evidence of his reason for the applicant’s dismissal. It is also significant that Mr Fragapane said, without challenge, that the applicant offered to resign after nearly every performance meeting, but he did not accept any of her offers until 26 April 2015.
The applicant’s oral evidence was that Mr Fragapane was the first to use the word trust. The applicant said that the sequence was:
Mr Fragapane: I don’t think we can trust you any longer.
Applicant: Well, maybe that works both ways.
Mr Fragapane: I don’t think we can trust you any longer.
However, having seen the applicant, Mr Fragapane and Ms Nelson in the witness box, I prefer the evidence of Mr Fragapane and Ms Nelson on this issue. I consider that Mr Fragapane was very shocked when the applicant said that she had never had trust in the respondent, and, primarily for that reason, he felt that the employment relationship could not continue.
Nevertheless, it is necessary to consider whether the applicant’s complaints were a substantial and operative reason for her dismissal.
In relation to the first complaint, which occurred in October 2011 and was about Ms Hughes, the fact is that the dismissal did not occur until almost five years later. Moreover, following the first complaint, the applicant tendered her resignation to Mr Romeo Fragapane but he persuaded her to remain in the respondent’s employment. The applicant’s offers of resignation, after nearly every performance meeting before 26 April 2016, were refused. In September 2014, Mr Fragapane reduced the applicant’s working hours, at her request. In October 2014, Mr Fragapane gave the applicant the opportunity to work as a Book Up Person. In November 2014, during a meeting, Mr Fragapane formally apologised to the applicant for his treatment of her. In December 2014, when the applicant did not work out in the Book Up role, Mr Fragapane reassigned her back to the retail area. Notwithstanding a number of admitted mistakes being made by the applicant, Mr Fragapane continued to provide the applicant with counselling until the respondent gave the applicant her first written warning on 6 April 2016. In these circumstances, I do not accept that the applicant’s complaint about Ms Hughes was a substantial and operative reason for the respondent dismissing the applicant on 26 April 2016.
The second complaint was made in September 2014 and was to the effect that the applicant was required to work excessive hours. Following that complaint, Mr Fragapane reduced the applicant’s working hours, as she had requested. Also, following that complaint, Mr Fragapane gave the applicant the opportunity to work as the Book Up Person. When that did not work out, Mr Fragapane returned the applicant to her previous role in the retail area. As mentioned above, Mr Fragapane continued to provide the applicant with counselling, notwithstanding her various admitted mistakes. In all the circumstances of this case, I do not accept that the applicant’s complaint in September 2014 about her excessive working hours was a substantial and operative reason for her dismissal.
The third complaint was that in December 2014, Mr Fragapane verbally bullied and harassed the applicant during a performance review. This complaint was documented and placed on the applicant’s file. However, Mr Fragapane had previously, on 27 November 2014, given the applicant what appears to have been a formal and genuine apology for his management style. He also said, without challenge, that in 2014, he had engaged external consultants to assist with his people management skills and he had sought professional assistance for severe anxiety. He said, without challenge, that after the applicant’s complaint in December 2014, he realised that he needed to be more sensitive to the applicant in performance reviews.
In April 2015, the applicant asked for her December 2014 complaint about Mr Fragapane to be removed from the file. I infer from this that Mr Fragapane’s management style had improved, and that the applicant was no longer concerned about it.
From this evidence, it seems that Mr Fragapane accepted the applicant’s criticism of his behaviour, apologised for it and sought professional assistance to help him manage people better in the future. In these circumstances, I do not accept that the applicant’s complaint about Mr Fragapane in December 2014 was a substantial and operative reason for his decision to dismiss her.
The fourth complaint was that, in February 2016, the applicant complained about Mr Schreiber’s conduct towards her. These complaints were made to Ms Tringale. I accept Mr Fragapane’s evidence that he knew nothing about these complaints until the applicant repeated them at the meeting on 21 April 2016. Consequently, I consider that the complaints about Mr Schreiber in February 2016 were, in effect, subsumed in the complaint of 21 April 2016 to Mr Fragapane regarding Mr Schreiber. That is, I do not consider that the applicant’s complaints in February 2016 to Ms Tringale about Mr Schreiber were a substantial and operative reason for the applicant’s dismissal.
The fifth complaint was the complaint the applicant made during the meeting on 21 April 2016 to Mr Fragapane about Mr Schreiber’s conduct towards her. The applicant declined to formalise her complaint. However, for the purposes of s.340(1)(a) and s.341(1)(c) of the Act, the applicant had still exercised her workplace right to make a complaint.
The complaint on 21 April 2016 was made very shortly before Mr Fragapane decided to dismiss the applicant. However, that does not of itself establish a causal relationship. The context of the complaint was that it was made at a meeting called for the purpose of addressing the applicant’s poor performance. The meeting on 21 April 2016 followed a first written warning dated 6 April 2016 which included the sentence:
Please be advised that should your performance not improve, further disciplinary action may be taken against you, which may include the termination of your employment.
That is, the fifth complaint occurred after the applicant had been told in writing that her employment may be terminated for performance reasons. In addition, I accept Mr Fragapane’s evidence that, during the meeting on 21 April 2016, he told the applicant that it was her “last chance” before she raised the issue of Mr Schreiber’s harassment. Clearly, Mr Fragapane was already thinking that dismissal was a distinct possibility before the applicant’s complaints about Mr Schreiber came to his attention.
Taking into account all of the evidence in this case, I consider that the fifth complaint was not a substantial and operative factor in Mr Fragapane’s decision to dismiss the applicant. By the time of the fifth complaint, Mr Fragapane was already so concerned about the applicant’s performance that he had made it clear to her that she was facing the possibility of termination. In this context, the applicant’s statement on 26 April 2016 that she had never trusted the respondent was the last straw and the primary reason for her dismissal. I do not consider that the applicant’s complaints about Mr Schreiber were a substantial and operative reason for Mr Fragapane’s decision to dismiss the applicant.
Nor do I consider that the five complaints, taken cumulatively, were a substantial and operative reason for the applicant’s dismissal. For the reasons expressed above, they were either historical or of no particular significance.
All in all, I consider that the substantial and operative reasons for the applicant’s dismissal were that she said that she had never trusted the respondent, in the context of her being on her last chance due to her poor performance. The applicant’s complaints were not substantial and operative reasons in Mr Fragapane’s decision to dismiss the applicant. On the evidence, I consider that the statutory presumption has been rebutted.
Consequently, the application must be dismissed.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 21 June 2017
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