Watson v Uniting Care
[2017] FCCA 126
•30 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WATSON v UNITING CARE | [2017] FCCA 126 |
| Catchwords: INDUSTRIAL LAW – Adverse action – application dismissed. |
| Legislation: Evidence Act 1995, 140 Fair Work Act 2009, ss.340, 341, 342, 343, 344, 345, 346, 347, 349, 351, 360, 361, 570 |
| Cases cited: Annear v Spotless Facility Services Pty Ltd [2015] FCCA 1335 Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another [2012] HCA 32 |
| Applicant: | SARAH JANE WATSON |
| Respondent: | UNITING CARE NSW.ACT T/AS UNITING CARE CHILDREN YOUNG PEOPLE & FAMILIES |
| File Number: | SYG 2475 of 2014 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 4, 5, 6, 7 and 12 October 2016 |
| Date of Last Submission: | 12 October 2016 |
| Delivered at: | Wollongong |
| Delivered on: | 30 January 2017 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondent: | Mr Stewart |
| Solicitors for the Respondent: | Williamson Barwick |
ORDERS
The Application filed 4 September 2014 is dismissed.
Liberty is granted to the parties to re-list the matter on 7 days’ notice by joint application to the Court in Chambers for the purposes of making directions in relation to any costs application, provided such request is made within 28 days.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2475 of 2014
| SARAH JANE WATSON |
Applicant
And
| UNITING CARE NSW.ACT T/AS UNITING CARE CHILDREN YOUNG PEOPLE & FAMILIES |
Respondent
REASONS FOR JUDGMENT
Introduction
On 4 September 2014, Sarah Jane Watson, the Applicant in this case, filed an Application in this Court, alleging that her former employer, Uniting Care Children, Young People and Families (the Respondent) had contravened the Fair Work Act 2009 (‘the Act’). The Respondent denied the Applicant's claims.
At the outset, it is important to recognise that the Applicant represented herself for most of these proceedings, including at the hearing. There is no question about the Applicant's good faith in bringing the claim. She was passionate about her work and the children who were under her care. The claim she brought, however, was a complex one, and both the Court, and the Respondent, found it very difficult at times to understand the precise basis of the Applicant’s claim. She struggled to articulate it either verbally, or in writing, despite requests to do so. What was needed of her was some clarity about the precise statutory basis of her claim. All she could do was to refer to certain facts which, if established in her favour, might constitute contraventions of the Act. It was, therefore, largely left to the Respondent to try to articulate an understanding of the statutory basis of the Applicant’s claim. It was also left to the Court to, independently, seek to understand the basis of the Applicant’s claim, including what she intended, even if not clearly articulated. The Court expresses its appreciation to Counsel for the Respondent for preparing the document entitled “Respondent’s Understanding of the Applicant’s Case”, which is reproduced in the first schedule to these reasons.
Having reviewed all of the material presented before the Court, as extensive as it was, the Court finds that the Respondent’s understanding of the Applicant’s case in fact represents the most generous interpretation of what the Applicant’s claim could possibly be under the Act.
Background
On 29 January 2013 the Applicant commenced employment with the Respondent as a caseworker based in the Port Macquarie office of the Respondent. She reported to Tracy Hinchcliffe as her immediate supervisor. On 17 July 2014 the Respondent terminated the Applicant’s employment. The events that took place between these two dates largely form the basis of the Applicant’s claim. In very general terms, the Applicant alleges that she was dismissed because of concerns that she had raised in relation to a number of issues including:
·The provision of adequate supervision or management of staff;
·The management of workloads in accordance with the conditions of the relevant award;
·Responding appropriately to reports of workplace stress and failing to comply with obligations under relevant workplace laws;
·Failing to adhere to requirements of procedural fairness;
·Failing to respond appropriately to workplace bullying;
·Failing to respond appropriately to victimisation;
·Failing to adhere to carer responsibilities; and
·Failure to ensure that employees were treated equally.
The Respondent denies those allegations and, in effect, alleges that it terminated the Applicant for good reason, which reason was quite independent of any of the alleged matters raised by the Applicant.
All attempts at mediation in this matter were unsuccessful.
At the request of the parties, particularly the Applicant, the matter was heard as a special fixture using the Local Court at Wauchope. This was convenient to the Applicant, and to some of the Respondent’s witnesses. The final day of the hearing was held in Sydney.
The Applicant represented herself. The Court found her to be an intelligent person, very passionate about her work with children, and the claim before the Court. The Court also found her to be an intelligent woman who was able to articulate her concerns clearly, but who struggled with the technical aspects of her claim. Indeed, she struggled to even understand why it was necessary for the Court, and the Respondent, to know the technical basis of her claim when, according to her, the facts that she alleged so clearly indicated the injustice that she suffered.
Regrettably, there was such an emotional overlay to the presentation of the Applicant’s case that it was not possible for her to be objective in relation to the evidence. This is not a personal criticism of the Applicant, who was always exceedingly courteous in Court. It simply reflects the reality that the Applicant brought her own view of the world into these proceedings, though it was often a view that did not accord with fact.
The Respondent was represented by Mr Stewart of Counsel. His assistance to the Court was invaluable in the circumstances. The Respondent’s frustration with the proceedings no doubt reflected the considerable cost it had to incur in defending the case. An application for summary dismissal, and then an application for security of costs, were both refused by the Court. The Respondent’s preparation for the hearing, and the presentation of its case, including accommodation of the Applicant’s ambiguous claim, was exemplary.
The Material Relied On
The Applicant relied on the following material:
a)Affidavit of the Applicant, dated 21 May 2015.
b)Affidavit of the Applicant, dated 24 September 2015.
c)Affidavit of the Applicant, dated 14 June 2016.
d)Affidavit of Jane Maree Fazio, dated 9 September 2016.
e)Affidavit of Jamie Nelson, dated 9 September 2016.
f)Affidavit of the Applicant, dated 22 September 2016.
The Respondent relied on the following material:
a)Affidavit of Tracy Ann Hinchcliffe, dated 25 February 2016.
b)Affidavit of Timothy James Bishop, dated 10 February 2016.
c)Affidavit of Kay Freudenstein-Hayes, dated 26 February 2016.
d)Affidavit of Kim Alexandra Strachan, dated 1 March 2016.
e)Affidavit of Alison Mary Jones, dated 22 February 2016.
f)Affidavit of Linda Patricia Mondy, dated 5 February 2016.
The exhibits were as follows:
| Exhibit No. | Description of Exhibit/MFI |
| R1 | Bundle of correspondence |
| A1 | Email to Mr Bishop enclosing invoice |
| A2 | Email from Mr Bishop |
| A3 | Minutes of meeting from August 2013 |
| A4 | Email correspondence between the Applicant and Ms Strachan |
| A5 | Outlook calendar for 12 to 18 May 2014 |
| A6 | Response to Invitation dated 23 May 2014 |
| A7 | Email correspondence between the Applicant and Ms Jones |
| A8 | Tender bundle |
The Employment Agreement
The employment agreement was, for the most part, not a contentious issue. By way of a letter dated 16 January 2013 from the Respondent to the Applicant, the offer of employment, and its basis, were set out. The letter was in evidence, and is an annexure to the affidavit of Tracy Hinchcliffe who was the Applicant’s immediate supervisor. The letter contains details of the Applicant’s terms and conditions of employment, salary packaging information, and work related vehicle information.
The Court finds that the letter incorporated a number of attachments including, for example, policies about mobile phones, motor vehicles, and social media. The Applicant signed the agreement on 29 January 2013.
The Applicant’s Case
Having regard to the comments made by the Court in the introduction to these reasons for judgment, and doing the best the Court can, the Applicant’s case was as follows:
a)That adverse action was taken against the Applicant, namely that she was dismissed because she had exercised a workplace right by making a complaint or inquiry in relation to her employment. The complaints that the Applicant made will need to be discussed below. There is no issue, as such, that the Applicant made the complaints, or that she was dismissed, and thus the focus is on whether the dismissal was because of the complaints that the Applicant made.
b)That the Respondent took adverse action against the Applicant, namely dismissed her, because she suffered from a mental disability and/or had family or carer’s responsibilities. Again, the Respondent does not deny that the Applicant was dismissed, but does deny that the Applicant either suffered from a mental disability and/or had family or carer’s responsibility, and certainly denies that the Applicant was dismissed because of these things, in any event.
c)That there are other aspects of the Applicant’s claim discernible from the materials she put before the Court. However, the Court accepts the Respondent’s submissions that the concerns the Applicant raised do not amount to a workplace right for the purposes of s.340(1) of the Act.
Thus, for example, where the Applicant alleged that the Respondent did not provide adequate supervision or management of staff, and did not manage workloads of staff in accordance with the conditions of an award, or did not respond appropriately to workplace stress including failures to comply with obligations of workplace laws, or did not adhere to procedural fairness process, or did not respond appropriately to workplace bullying, and so forth (as articulated in the dot points summarising the Applicant’s concerns, above) these matters were not identifiable workplace rights.
The Court accepts the Respondent’s submission that the onus was on the Applicant to identify how her generalised concerns fitted within the statutory scheme of general protections contained in the Act. Quite apart from this, however, the Court records its finding that there is no evidence before the Court which supports the Applicant’s contention about these matters.
Specifically, the Court finds, based on all the evidence before it, that the Respondent did provide adequate supervision and management of staff, did manage workloads appropriately, did respond appropriately to workplace issues, did comply with relevant occupational health and safety requirements, did adhere to procedural fairness processes, did respond appropriately to concerns about workplace bullying, did respond appropriately to the Applicant’s carer’s responsibilities, and did in fact treat all of its employees, including the Applicant, fairly and equally. The basis of these findings, as will be discussed below, is that the Court prefers the evidence of the Respondent’s witnesses over that of the Applicant and her witnesses.
The Respondent’s Case
In short, the Respondent’s case is that the Applicant was dismissed because her performance and conduct was unacceptable, and that she failed to properly respond to the legitimate concerns that had been raised by the Respondent. The Respondent acknowledges that the Applicant expressed concerns by way of complaints, but these were in response to legitimate performance and conduct concerns raised with the Applicant. Thus, there was no adverse action taken against the Applicant.
Issues to be Determined
The Court would have been greatly assisted by a statement of agreed facts, law and questions to be determined but accepts, under the circumstances, that this was not possible. Again, doing the best the Court can do, it will need to carefully review all of the evidence to ascertain the precise reason why the Applicant was dismissed and whether those facts indicate a contravention of any provision of the Act.
The Applicable Law
The Court respectfully adopts the statement of applicable law by Judge O’Sullivan in Annear v Spotless Facility Services Pty Ltd [2015] FCCA 1335 (6 July 2015) at paragraphs 31 to 54:
The legislation
The applicant’s claims raised for consideration the general protection provisions in Division 3-1 of the FW Act. The provisions of ss.340, 341, 342, 343, 344, 345, 349, 351, 360 and 361 of the FW Act are relevant.
Section 340(1) of the FW Act provides:
“(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.”For the purposes of s.340(1) of the FW Act, the term ‘workplace right’ is defined in s.341(1) of the FW Act:
“(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.”
A ‘workplace law’ is defined in s.12 of the FW Act and includes the FW Act and any other statutory law which regulates the employment relationship.
The circumstances in which “adverse action” is taken by an employer against an employee is set out in s.342(1) at Item 1 as follows:
“(1) 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. |
| 2 | a prospective employer against a prospective employee | the prospective employer: (a) refuses to employ the prospective employee; or (b) discriminates against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee. |
| 3 | a person (the principal ) who has entered into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor | the principal: (a) terminates the contract; or (b) injures the independent contractor in relation to the terms and conditions of the contract; or (c) alters the position of the independent contractor to the independent contractor's prejudice; or (d) refuses to make use of, or agree to make use of, services offered by the independent contractor; or (e) refuses to supply, or agree to supply, goods or services to the independent contractor. |
| 4 | a person (the principal ) proposing to enter into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor | the principal: (a) refuses to engage the independent contractor; or (b) discriminates against the independent contractor in the terms or conditions on which the principal offers to engage the independent contractor; or (c) refuses to make use of, or agree to make use of, services offered by the independent contractor; or (d) refuses to supply, or agree to supply, goods or services to the independent contractor. |
| 5 | an employee against his or her employer | the employee: (a) ceases work in the service of the employer; or (b) takes industrial action against the employer. |
| 6 | an independent contractor against a person who has entered into a contract for services with the independent contractor | the independent contractor: (a) ceases work under the contract; or (b) takes industrial action against the person. |
| 7 | an industrial association, or an officer or member of an industrial association, against a person | the industrial association, or the officer or member of the industrial association: (a) organises or takes industrial action against the person; or (b) takes action that has the effect, directly or indirectly, of prejudicing the person in the person's employment or prospective employment; or (c) if the person is an independent contractor--takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; or (d) if the person is a member of the association--imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to money legally owed to the association by the member). |
Section 343 of the FW Act provides as follows:
“(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(i) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(ii) exercise, or propose to exercise, a workplace right in a particular way.”Section 344 of the FW Act provides as follows:
“An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:
(a) make, or not make, an agreement or arrangement under the National Employment Standards; or
(b) make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or
(c) agree to, or terminate, an individual flexibility arrangement; or
(d) accept a guarantee of annual earnings; or
(e) agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.”Section 345 of the FW Act provides:
“(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.”
Section 349 of the FW Act provides:
“(1) A person must not knowingly or recklessly make a false or misleading representation about either of the following:
(a) another person's obligation to engage in industrial activity;
(b) another person's obligation to disclose whether he or she, or a third person:
(i) is or is not, or was or was not, an officer or member of an industrial association; or
(ii) is or is not engaging, or has or has not engaged, in industrial activity.
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.”
Section 351(1) of the FW Act provides:
“(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”
In relation to the applicant’s claims of adverse action the FW Act provides that once an applicant has established either that they have a workplace right or an attribute (for the purposes of s.351) and that they have been subject to adverse action s.361 of the FW Act operates to reverse the normal onus of proof.
Section 361 provides:
“(1) If:
(a) In an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) Taking that action for that reason or with that intent would constitute a contravention of this Part;
It is presumed, 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.(2) Subsection (1) does not apply in relation to orders for an interim injunction.”
By virtue of s.360 of the FW Act a person takes action for a particular reason if the reasons for the action include that reason.
It is also necessary to note that s.140 of the Evidence Act 1995 (Cth) deals with the question of the standard of proof in these proceedings and provides:
“(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into court in deciding whether it is so satisfied, it is to take into account;
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.”Approach to adverse action allegations
The leading authority on the approach to the adverse action provisions of the FW Act is Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another [2012] HCA 32; (2012) 290 ALR 647 (‘Barclay’). The High Court (French CJ, Gummow, Hayne, Heydon and Crennan JJ) upheld an appeal against a majority decision of a Full Court of the Federal Court that adverse action had been taken “because” the respondent had engaged or proposed to engage in industrial activities, an attribute proscribed by s.346 in conjunction with s.347 of the FW Act.
In that case, the High Court confirmed that the question of whether a particular action or decision was taken because of a proscribed reason, or for reasons which included a proscribed reason, is a question of fact to be determined on the whole of the evidence.
What their Honours describe as the “correct approach” is set out at paragraphs [41]-[45] of their reasons:
“41. The question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act. These provisions must be construed together in accordance with the principles of statutory construction established by this Court, which must begin with a consideration of the text of the relevant provisions and may require consideration of the context including the general purpose and policy of the provisions.
Determining why a defendant employer took adverse action against an employee involves consideration of the decision-maker's "particular reason" for taking adverse action (s 361(1)), and consideration of the employee's position as an officer or member of an industrial association and engagement in industrial activity ("union position and activity") at the time the adverse action was taken (ss 342, 346(a), 346(b), 347 and 361(1)).
Clearly a defendant employer interested in rebutting the statutory presumption in s 361 can be expected to rely in its defence on direct testimony of the decision-maker's reason for taking the adverse action. The majority in the Full Court correctly rejected an argument put by the respondents that the introduction of the statutory expression "because" into a legislative predecessor to s 346, in place of the previous statutory expression "by reason of", rendered irrelevant the state of mind of the decision-maker.
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 enquiry 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?"
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.”
French CJ and Crennan J also considered the effect of s.360 of the FW Act at [57] to [59]. Their Honours adopted the reasons of Mason J in General Motors Holden Pty Ltd v Bowling (1976) 136 CLR 676.
At paragraphs [100] to [104], Gummow and Hayne JJ discuss the meaning of “because” in s.346 which is in similar terms to s.340 of the FW Act:
“100. The application of s 346 turns on the term "because". This term is not defined. The term is not unique to s 346. It appears in s 340 (regarding workplace rights), s 351 (regarding discrimination), s 352 (regarding temporary absence in relation to illness or injury) and s 354 (regarding coverage by particular instruments, including provisions of the National Employment Standards).
The use in s 346(b) of the term "because" in the expression "because the other person engages ... in industrial activity", invites attention to the reasons why the decision-maker so acted. Section 360 stipulates that, for the purposes of provisions including s 346, whilst there may be multiple reasons for a particular action "a person takes action for a particular reason if the reasons for the action include that reason". These provisions presented an issue of fact for decision by the primary judge.
Reference was made in argument to Purvis v New South Wales. That litigation concerned the application of the Disability Discrimination Act 1992 (Cth) to the suspension and expulsion of a disabled student from a State school. Section 5(1) used the expression "because of the disability". Gummow, Hayne and Heydon JJ emphasised that s 10 of the statute stated that if an act is done for two or more reasons, one of which is the disability of a person, even if it not be the dominant or a substantial reason for doing the act, the act is taken to be done for that reason. This provision may be compared with s 360 of the Act just described.
With respect to what became s 346 of the Act, paragraph 1458 of the Explanatory Memorandum to the Fair Work Bill 2008 stated:
"Clause 360 provides that for the purposes of Part 3-1,
a person takes action for a particular reason if the reasons for the action include that reason. The formulation of this clause embodies the language in existing section 792 which appears in Part 16 of the WR Act (Freedom of Association) and includes the related jurisprudence. This phrase has been interpreted to mean that the reason must be an operative or immediate reason for the action (see Maritime Union of Australia v CSL Australia Pty Limited). The 'sole or dominant' reason test which applied to some protections in the WR Act does not apply in Part 3-1." (emphasis added)The phrase "operative or immediate reason" used in CSL is relevantly indistinguishable from the phrase "a substantial and operative factor" used by Mason J in Bowling.
In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised "a substantial and operative" reason, or reasons including the reason, for the employer's action and that this action constitutes an "adverse action" within the meaning of s 342.”
Their Honours warn at paragraph [121] of the dangers of an enquiry contrasting “objective” and “subjective” tests in applying s.346 of the FW Act. They conclude at paragraph [126]-[128]:
“126. The relevant frame of reference in this case is a statutory provision in which neither the words "objective" nor "subjective" appear. There is an inherent risk of misguidance when seeking to imply tests or requirements in the application of a statutory provision absent some persuasive basis to do so. Nothing was put in argument, nor are there any decisions of this Court, to provide such a basis. Indeed, no direct challenge was made to what had been said by Mason J in Bowling.
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a "substantial and operative factor" as to constitute a "reason", potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
Whilst it is true to say, as do the respondents, that there is a distinction between discharging the onus of proof and establishing that the reason for taking adverse action was not a proscribed reason, there is nothing to suggest that the conclusions drawn by the primary judge, and the findings and reasons upon which these were based, did not take this into consideration. As Lander J concluded, if the reasons for the conclusions and the facts for which they were formulated are not challenged, then the contravention of s 346 cannot be made out. This proposition should be accepted. To hold otherwise would be to endorse the view that the imposition of an onus of proof on the employer under s 361(1) creates an rebuttable presumption at law in favour of the employee.”
Heydon J said at [146]:
“To search for the "reason" for a voluntary action is to search for the reasoning actually employed by the person who acted. Nothing in the Act expressly suggests that the courts are to search for "unconscious" elements in the impugned reasoning of persons in Dr Harvey's position. No requirement for such search can be implied. This is so if only because it would create an impossible burden on employers accused of contravening s 346 of the Act to search the minds of the employees whose conduct is said to have caused the contravention. How could an employer ever prove that there was no unconscious reason of a prohibited kind? An employer's inquiries of the relevant employees would provoke, at best, nothing but hilarity. The employees might retort that while they could say what reasons they were conscious of, they could say nothing about those they were not conscious of.”
Given the nature of the applicant’s claim(s) it is important to note that Collier J in Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399 (“Jones”) explained the nature of the onus cast upon an applicant in an application, such as this as follows:
“10. That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason, was explained by Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531; (1999) 140 IR 131 at [161]- [162] and Moore J in Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; [2008] 177 IR 306 at 321-322 [49]- [50]. To paraphrase observations of Moore J in Rojas [2008] FCA 1585; [2008] 177 IR 306 at 322, it is not sufficient for Ms Jones to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that Ms Jones is able to prove these allegations, the burden is then cast on to QTAC to prove that adverse action was not taken against Ms Jones because of her workplace right for the purposes of s 340 and s 361 of the Act.”
Finally in State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 the Full Court of the Federal Court said:
“32. As the trial judge recognised the leading authority on the operation of ss 360 and 361 of the Fair Work Act in the context of Part 3-1 of that Act (which includes s 351) is Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500. The principles which informed this decision were recently reaffirmed by a majority of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41. Relevantly, these authorities establish that:
The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
That question is to be answered having regard to all the facts established in the proceeding.
The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
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.”
Even if the decision-maker gives evidence that he or she acted solely for non-prescribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable. If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.”
Those ‘principles’ have since been considered in a number of Full Court decisions.
The Evidence Generally
Oral evidence was given by the Applicant, Jane Fazio, Daniel Baumann (pursuant to a subpoena issued by the Applicant), Theresa Smith (also pursuant to a subpoena issued by the Applicant) and Jamie Nelson, in the Applicant’s case. Each of these witnesses was cross‑examined. In the Respondent’s case evidence was given by Timothy Bishop, Kay Freudenstein-Hayes, Kim Strachan and Alison Jones. Ms Linda Monde and Tracy Hinchcliffe were not required for cross‑examination.
The Court did not form the view that any of the witnesses in this case were lying, or that they deliberately set out to mislead the Court.
The Applicant’s evidence was presented in good faith. What was clearly apparent to the Court, however, was that the Applicant’s belief in relation to key factual issues was a subjective one with no objective basis. She was firm in her view, indeed very certain about the correctness of her view and maintained that despite the preponderance of evidence before the Court which was inconsistent with her view. Her subjectivity, and emotion, permeated her evidence. Some of her evidence was simply not plausible. The explanations that she gave in evidence, for example, for not completing her motor vehicle logbook, or the sick leave records, are not accepted by the Court.
Her protestation that the breakdown of her personal relationship with her partner - which coincided with the period of employment with the Respondent - was not particularly stressful, is not accepted by the Court. Indeed, some of the Applicant’s own behaviour at the relevant times is most easily explained by reference to the circumstances of a stressful breakdown in the relationship with her partner. The report produced by her EAP provider confirmed the likelihood of this, notwithstanding the Applicant’s denial of the same.
Her re-conceptualisation of what took place is simply unrealistic. For example, one of her substantive complaints to the Court was unmanageable workloads, but when the Respondent sought to address the Applicant’s concern by taking some of the files off her, she construed this in some conspiratorial manner, and asserted that for the benefit of the children concerned, the file should not have been taken off her.
Where the evidence of the Applicant conflicts with the evidence of the Respondent’s witnesses, the Court prefers the evidence of the Respondent’s witnesses. Each of the Respondent’s witnesses gave their evidence objectively, and conscientiously. They impressed as doing the best they could to recall past events, without seeking to reinterpret history in the same way as the Applicant did.
It was interesting to observe the interaction between the Applicant and some of the Respondent’s witnesses when the latter were in the witness box being cross‑examined by the Applicant. Some of these people clearly had close workplace relationships, but the witnesses consistently came across as being genuinely concerned about the Applicant during the relevant period of her employment, and not in the least confrontational. The Court prefers their objective evidence to the Applicant’s highly subjective evidence.
Ms Fazio’s evidence is contained in her affidavit of 9 September 2016. This evidence could be broadly described as supportive and corroborative of the Applicant’s concerns, but not necessarily of assistance to the Applicant in her technical claim under the Act. She too was a caseworker. She confirmed the importance of ensuring that the files were completely up to date. She acknowledged the pressure of the workplace, the importance of working as a team, and the importance of communication both between the caseworker and clients and as between the caseworkers and the management.
It was clear that Ms Fazio was of the opinion that an injustice had been done to the Applicant through her dismissal. She thought it was unfair that the Applicant was so closely scrutinised in relation to the inadequacy of her case notes when she, Ms Fazio, felt that her case notes were just as far behind. Ms Fazio confirmed that the Applicant was frequently upset at work, and did not feel adequately supported. She could not, however, state that she was upset because of her treatment by the Respondent and she agreed that the Applicant was upset at times when her relationship with her partner, Mr Stanley, was breaking down including for reasons involving family violence in the relationship.
Ms Fazio’s evidence was clearly subjective. She felt that an injustice had been done, and saw part of her role as assisting the Applicant to rectify that injustice. Where her evidence conflicts with evidence of the Respondent’s witnesses, the Court prefers the evidence of the Respondent’s witnesses. In any event, there is no evidence that Ms Fazio gives that advances the Applicant’s technical claim.
Ms Jamie Nelson gave evidence in the Applicant’s case. Her evidence is contained in her affidavit of 9 September 2016. She too was a caseworker, working in the same team as the Applicant. Ms Nelson’s evidence bears the same hallmarks as that of Ms Fazio.
In the same way as Ms Fazio confirms the importance of keeping up to date and adequate file notes, Ms Nelson confirmed the importance of completing a motor vehicle logbook and keeping that up to date. She also knew the importance of completing timesheets and leave records. In cross‑examination it appeared to the Court that she had no problems with the motor vehicle logbooks, or recording leave. She sometimes found the casework challenging, and thus the record keeping sometimes lagged behind. She understood the importance of prioritising the casework, and discussing issues with her supervisor.
Ultimately, Ms Nelson agreed that she was advocating on behalf of the Applicant, and she applauded the Applicant’s bravery in “taking on a huge organisation” who, she feels, had treated both the Applicant and herself badly.
Ms Nelson’s evidence was of little assistance to the Applicant’s case and, indeed, was probably of more assistance to the Respondent’s case.
Theresa Smith gave evidence in the Applicant’s case. She too was a caseworker with the Respondent at the relevant time. She attended a meeting on 6 August 2013, the notes of which became Exhibit ‘A3’. Whilst the minutes of the meeting are consistent with the Applicant’s concerns, they really do not advance her technical case. In any event, Ms Smith acknowledged the sense of frustration that she felt as a result of attending the meeting and, in particular, and in effect, that the caseworkers’ concerns were not heard. The witness was cross‑examined about the meeting in question, but neither the meeting in question nor the cross-examination really informs the legal outcome of this case.
In any event, Ms Smith acknowledged that she was dismissed by the Respondent in January 2014 for actions which the Respondent construed as stealing, and which she agreed was such. She denied that she felt any animosity to the Respondent, but would call her feelings towards the Respondent as being anxious. She readily agreed that her role was to support the Applicant in her claim, based on what she (the witness) had been through.
Ms Smith’s evidence was of very little assistance to the Court.
Mr Daniel Baumann gave evidence on behalf of the Applicant. He is a caseworker with the Department of Family and Community Services in Port Macquarie and attended Court to give evidence in response to a subpoena to do so issued by the Applicant. His evidence was that he rang the Applicant during a training session that she was attending. He knew that she was in a training session at the time. He needed the Applicant to sign a report relating to a children’s matter before the Children’s Court that day. He went to where the Applicant was attending the training, met her, went through the report with her, and then the Applicant signed it. Mr Baumann was not cross-examined. His evidence adds little, if anything, to the Applicant’s case.
The real focus must, therefore, be on the Applicant’s evidence, subject to the general observations made above.
The Applicant’s Evidence
The affidavits filed by the Applicant have been referred to above. The material is voluminous and is, with no disrespect meant to the Applicant – who was representing herself in a complex case – poorly organised. In very simple terms, her case seems to be that as a result of complaints that she made on 31 July 2013, 21 January 2014, and 31 March 2014, she was dismissed on 17 July 2014.
She challenged the grounds set out in her termination letter of 17 July 2014, not only providing her perspective on the concerns raised by the Respondent as being the basis of her termination, but, at least inferentially, asserted that those reasons were not the real reasons for her termination, in any event. It is useful to examine the reasons, and the applicant’s perspective on the same.
The first ground of termination contained in the letter relates, in effect, to failure to adequately maintain confidential files and update case notes in accordance with her position description as a caseworker. The Applicant’s response to this was, in effect, that her notes and records were more up to date than many other workers. The fact is, however, and the Court finds, that the Applicant was habitually behind with her case notes and case plans. In his affidavit affirmed 10 February 2016, Timothy Bishop on behalf of the Respondent recalls at paragraph 17 that:
…in relation to two files regarding siblings that were to be transferred to a new caseworker, Ms Watson had not completed a single case note in respect of either child, even though she had been involved with them for months. She acknowledged this in the handover meeting.
Mr Bishop annexes to his affidavit the email exchange between the Applicant and himself relating to this issue. Neither the Applicant’s email to Mr Bishop, nor her evidence in Court, denied the assertion that she failed to maintain the files in question. The email contains the assertion that the Applicant had “the highest and most intensive caseload in the whole team.” That is not borne out by the evidence – indeed, the opposite is true.
In her email the Applicant contends that both Jamie Nelson, and Jane Fazio had stated that their case notes were behind. Even if it were the case, it does not detract from the fundamental finding of the Court, based on merely one factual example (there are others), that the Applicant did in fact fail to adequately maintain confidential records, as asserted by the Respondent.
The significance of the Applicant’s failure to do so, in the context of her work, should not be minimised. The reasons that Mr Bishop gave, for example, at paragraph 18 of his affidavit as to the importance of record keeping are compelling. The failure to keep adequate records was not just a trivial matter, having regard to the importance of the Applicant’s position, and her role in the lives of the children whose cases she managed. It was, the Court observes, indeed ironic that a person who was so passionate about the care of the children for whom she was responsible could not see the importance of adequate record keeping. Mr Bishop was not the only witness in the Respondent’s case about the failure to keep adequate records.
The second basis for her termination was failure to provide timesheet records of hours worked on a fortnightly basis. Doing the best the Court can to understand the Applicant’s evidence about this, it seemed that she conceded that she struggled with the electronic system that was in place to record her time. The concerns the Respondent had in this regard are clearly particularised in the letter of 17 July 2014. The Applicant’s evidence in her affidavit does not systematically address the issue. The cross-examination of the Applicant in this regard merely demonstrated to the court that as regards some record keeping of hours worked and attendances, leave taken, etcetera, the Applicant was simply overwhelmed and found it too hard, often despite the assistance that was extended to her. The Court finds that there was an adequate basis for terminating the Applicant on this ground.
The third basis of the termination was the Applicant’s failure to meet logbook requirements in relation to the motor vehicle she drove. The Respondent contends, and the Court accepts, that this was not a minor, technical breach of policy with minimal, or no consequences either for the Applicant, or the Respondent. The totality of the evidence before the Court suggests that there were fringe benefit tax implications, potentially for both. Again, the strong impression formed by the Court following the cross-examination of the Applicant in relation to this issue is that she was overwhelmed by the seeming complexity of this task, despite the assistance that was given to her, and despite what appears to be the absence of any difficulty on the part of other staff.
It must be remembered that the present application is not an unfair dismissal case. It is an adverse action claim, initiated by the Applicant. The Court finds she failed to comply with the motor vehicle policy requirement for the maintenance of a logbook in circumstances where it was clearly part of the terms of her employment. It may well be that the evidence given to the Court about the Respondent’s motor vehicle policy given by Ms Freudenstein-Hayes was confusing. If that confusion permeated the rest of the organisation, that might be of concern. However, the evidence before the Court is that it was the Applicant who struggled with keeping logbooks and other records, and not others. The basis for the Applicant’s termination in this regard is established.
The fourth basis for dismissal was ultimately found not to have been substantiated and did not, therefore, inform the decision made to terminate the Applicant. The allegation was that she had engaged in inappropriate conduct and language in the workplace on 29 May 2014, constituting a breach of the Respondent’s code of conduct and core values. Ultimately, the Respondent’s conclusion that there was insufficient evidence to substantiate the complaint formed no basis of the decision to terminate her.
The evidence before the Court, however, would, if relevant, have led to a finding that on 29 May 2014 the Applicant did in fact say to Kim Strachan “you’re all a bunch of cunts”. The Applicant’s conduct, therefore, did amount to the inappropriate conduct and language in the workplace that was asserted by the Respondent, but not ultimately acted on.
It is important to record that whilst the Court has dealt with these issues in global terms, the Applicant gives detailed evidence of her perspective, particularly in her affidavit affirmed 24 September 2015. The difficulty for the Applicant is that her evidence-in-chief in this regard is, in parts, corroborative of the Respondent’s case. In any event, her cross‑examination merely resulted in further concessions on her behalf. The Court prefers the evidence given on behalf of the Respondent.
There are a number of aspects of the cross-examination of the Applicant that should be specifically mentioned, as highlights, but by no means as a comprehensive recount of her evidence.
For example, in relation to the failure to keep motor vehicle logbooks, the Applicant conceded she had not even read the motor vehicle policy, but asserted that even if she had, she would have found it unhelpful. She acknowledged that she had difficulty completing the logbook correctly. She accepted, quite plainly, that there were times when the logbooks were not completed correctly by her. She would write down odometer readings on scraps of paper, and then not enter it on the system. She accepted the importance, both to the Respondent, and to her, of completing the logbook accurately.
When the Applicant was cross-examined about her failure to provide timesheet records, again the consistent theme of her answers was that she struggled with the online system known as Preceda, and would either make a note for herself, or alternatively record it in her Outlook diary. Her attitude in relation to the hours she worked was that she “just did what [she] had to do with the children” – a commendable philosophy, but she then acknowledged herself that it was difficult to keep track of her flexitime and leave, including sick leave. When presented with the inconsistency between being able to log sick leave, but not being able to log start and finish times, she really did not have a plausible explanation. Indeed, she agreed that in her previous work as a caseworker she had to record her time.
When cross‑examined about her logbook she agreed that she had never completed the logbook satisfactorily – it was always returned to her for completion. In cross‑examination she agreed that she had been told by Alison Jones that her failure to properly complete the logbook had resulted in a tax liability to the Respondent of $5,000, though the Applicant described it as a potential debt. In any event, she conceded that it was waived.
Other aspects of the Applicant’s evidence will be dealt with below. Suffice it to say, for present purposes, that the evidence before the Court establishes that the matters of concern articulated in the termination letter dated 17 July 2014 were clearly based on facts. Indeed, on the evidence before the Court the Respondent would have been entitled to terminate the Applicant on the basis of her inappropriate conduct and language with Ms Strachan on 29 May 2014.
The Respondent’s Evidence
Alison Mary Jones
Ms Jones was the former manager of people, learning and culture, of the Respondent. Paragraph 3 of her affidavit refers to the Applicant’s affidavit sworn 24 September 2015, and states:
The affidavit makes a range of allegations and assertions in such a way that, without logical sequence, it portrays a perception of linkage between events where there is none and makes it impossible to determine what the key issues are upon which an adverse action case could be based.
With the benefit of having all of the evidence before the Court, this opinion of Ms Jones is entirely correct.
Ms Jones was clearly part of the decision-making process undertaken by the Respondent that led to the Applicant’s employment being terminated. Her affidavit exhaustively sets out the history of the Applicant’s employment, and the events and findings that led to the decision to dismiss her. The affidavit makes it clear that there was no connection at all between the Applicant’s complaints and the termination of her employment.
There was no challenge to the evidence that Ms Jones gave. The Court accepts the evidence of Alison Jones. Not only does it disclose the very proper basis on which the decision to terminate was made, but her evidence speaks volumes about the Respondent’s institutional patience, persistence, and support of the Applicant.
Linda Patricia Monde
Ms Monde was a director of the Respondent at the relevant time. She supervised a number of other offices of the Respondent, and reported direct to the Chief Executive Officer (CEO). She was aware of the investigation conducted by Ms Jones, and the recommendations made. When Ms Jones recommended that the Applicant’s employment be terminated, Ms Monde approved the same, made the decision, which was then ratified by the CEO. Ms Monde was present at the meeting that preceded the Applicant’s termination. Her view was that the allegations that formed the basis of her termination were borne out.
She denied that the termination of employment was for reasons unrelated to those contained in the termination letter. Her evidence was that the Applicant was simply not able to properly complete the duties associated with being a caseworker. In cross-examination she agreed that legal advice had been sought in relation to the decision to terminate. She was not challenged in cross-examination about the basis of her decision. There is no reason for the Court not to accept the evidence of Ms Monde.
Curiously, Ms Monde was cross-examined by the Applicant in relation to an email exchange involving Ms Monde, Maryanne Jacobs, Kim Strachan and the Applicant, being a series of emails between 2 June 2014 at 12.44 pm, and 4 June 2014 at 3.19 pm. To put this email chain in context, Ms Monde had annexed it to her affidavit as an example of the types of performance issues relating to the Applicant that were being reported to her.
The Applicant confronted Ms Monde with the question: “what is so terrible about this email?” Ms Monde provided a fulsome answer, which can only be understood by referencing the Applicant’s initiating email. The Applicant’s email is to Raelene Mann but was copied to Kim Strachan and Alison Jones, amongst others. The subject line was: “Re: Transport to Help Vicky Haydon.” The email states:
Hi, Raelene,
I am aware that you are on flex today and will text your mobile these details.
Tomorrow you are doing a contact that ends with a transport to Macksville at approximately 12.45.
Child, X and child, Y had respite with Sue Hindmarsh organised so as the children would not be at Vicky’s when their sibling Child, Z was being moved to a new placement in order to assist everyone emotionally.
I was going to meet Sue (who lives in Coffs Harbour) halfway to help by transporting child, X and child, Y back to Vicky Haydon’s in Kempsey. As you will be there anyway and this is on your way back, could you please contact child, X and child, Y from Sue after the drop-off in Macksville (of the other case) and take Miley and Bailey to Vicky in Kempsey on your way back to the office in Port.
I will CC Vicky Haydon and Sue Hindmarsh into this email.
I am sorry, I will be unavailable to do this on this day.
Both child, X and child, Y need car seats, if there are none in the office you can collect them from Vicky’s house.
Thanks,
Sarah.
What is not in doubt is that the Applicant was the responsible caseworker for these children. It was her responsibility for them to be transported. She sought to delegate that to Raelene Mann.
Kim Strachan was one of the people who received a copy of the said email. What transpires from her email is that Raelene Mann had contacted her in connection to the email sent by the Applicant. Raelene was, apparently, at home sick. Thus, Raelene was off on a flexiday on the Monday that the email was sent. She was sick the next day. Ms Strachan rang Raelene because the carer, Sue Hindmarsh, had contacted her.
In short, and without getting bogged down in the minutiae of the detail of this incident, as a result of the Applicant’s phone call to Raelene, she took it upon herself (on her flexiday) to go into the office to obtain details of the children and the carers’ telephone numbers (the details not being on the file as they should have been). The carers did not know what was going on with the transport of the children.
Ms Strachan states in her email:-
I feel everyone is picking up the pieces in regards to Sarah’s caseload, and if it had not been for Raelene’s integrity and work ethic these two children would not have been transported back to their primary carer.
I have thanked Raelene for giving up her flexiday and for coming into the office and having to scratch around for the information she needed.
This is all very messy but I think the fact remains not only is Jane picking up Sarah’s work so too is Raelene and we really need a contingency in place should Sarah remain away from work. While this continues to be an unclear process this will continue to be messy.
With that background, Ms Monde responded to the Applicant’s challenge by explaining that what was so terrible about this incident is that a lot of people were inconvenienced as a result of the complex arrangements the Applicant had made, but which could not carry through with.
What is of most interest to the Court is the Applicant’s inability to understand that, objectively, the manner in which she dealt with this was less than optimal.
Timothy Bishop
Mr Bishop was initially engaged by the Respondent as a caseworker, but later promoted to carer assessor. He deposes to what he described as “some upheaval in the office” as a result of the Applicant’s breakdown in her relationship with her partner, who was a co-worker. It will be recalled that the Court has already found that the Applicant’s evidence about the emotional impact of this separation on her was greatly minimised.
In his role as acting coordinator the Applicant was one of six caseworkers he supervised. He found the Applicant to be inconsistent in the quality of the work she produced, her attendance at work was poor, as was her capacity to present on time. She was the least able of his direct reports to meet the expectations of the role. She was habitually behind with case notes and care plans. At paragraph 17 of his affidavit affirmed 10 February 2016, for example, he recalls the matter in relation to siblings who were being transferred to a new caseworker from the applicant. The Applicant:
…had not completed a single case note in respect of either child, even though she had been involved with them for months. She acknowledged this in the handover meeting.
His experience of the Applicant was that she rarely took responsibility for her actions or inactions, always having an excuse. His evidence was that the Applicant’s workload was not excessive for a caseworker. He deposed to her inability to deal with what he described as “even the most basic of job function, such as keeping a proper logbook for the motor vehicle supplied by the organisation…”.
The Applicant cross-examined Mr Bishop. Much of the cross‑examination was focused on the Applicant’s concerns, rather than the issues before the Court. There is nothing in the Applicant’s cross‑examination of Mr Bishop that would cause the Court to be in any way concerned about his evidence. The Court accepts the evidence of Mr Bishop.
Kay Freudenstein-Hayes
Ms Freudenstein-Hayes is currently the manager of quality, risk and compliance for the Respondent, but at the relevant time was the manager of business administration, with the responsibility for the management and administration of the Respondent’s fleet. She gave relevant evidence about how the fleet operated, and the arrangement that existed in relation to the Applicant’s motor vehicle.
The relevant evidence that she gave was to the effect that the Applicant had been requested to submit her logbook but did not do so. Assistance was extended to the Applicant, but this did not seem to assist her. The information was important both for the Respondent and the Applicant because the vehicle was also used for personal use, and there were fringe benefit tax implications.
In response to the Applicant’s allegation that different employees of the Respondent were managing logbooks in a different fashion, Ms Freudenstein-Hayes explained that was because there were different arrangements with employees about their vehicles. The Applicant, who was described as a category 1 allocation, was managed in precisely the same way as all other category 1 allocation motor vehicles.
Ms Freudenstein-Hayes was categorical in her evidence that the Applicant never completed the 13 week logbook for 2013 despite several opportunities, despite considerable support, and with many concessions. At paragraph 38 she deposes:
The reality is that Ms Watson was, for whatever reason, unable to put together a string of 13 weeks of logbook entries. There was a $5000 payback due from her for undeducted contributions for private use of the category 1 allocation motor vehicle. This loss was absorbed by Uniting. Having had the benefit of this waiver, Ms Watson then did not meet her 13 week logbook obligations for 2014.
Ms Freudenstein-Hayes was cross-examined by the Applicant. She was not the most coherent of witnesses during cross-examination. Her evidence about the calculation of private versus business use was confusing. Ultimately, however, it was irrelevant to the issues before the Court. Nothing was put to the witness in cross-examination which would cause the Court to doubt the evidence that she gave. The Court accepts the evidence of Ms Freudenstein-Hayes.
Kim Alexandra Strachan
Ms Strachan is currently a manager of out of home care, and responsible for the Port Macquarie and Coffs Harbour offices of the Respondent. The Applicant was one of the employees who she managed. She commenced in the role in March 2014. At paragraph 8 she deposes that when looking at the caseloads of the caseworkers she could see that the Applicant was not filing case plans and there were virtually no case notes in respect of the children and foster carers under her supervision. She agreed that some of the other caseworkers were behind in their record keeping “but not to the same degree as Ms Watson”.
At paragraph 9 she deposes to a physical examination she undertook of the caseworkers’ desks in the Port Macquarie office. She states:
My physical examination of the Port Macquarie office also revealed that there were some confidential papers concerning children left on caseworkers’ desks. This was particularly so with respect to Ms Watson. Her desk was a mess and there were many documents unfiled and left loose including original birth certificates and court orders. Files that should have been in the compactors were not. Some files were empty and there was no order or logic to her work methods.
She explains at paragraph 10 her concerns that if the out of home care team had been audited at that time, the organisation’s accreditation status would have been at risk. She also deposed to concerns about legal issues that could arise as the result of absence of documentation supporting the supervision.
She later deposes to the Applicant’s practice of not submitting timesheets. At paragraph 31 she deposes:
I only ever saw a handful of completed timesheets, maybe two or three.
She also gives evidence about “chasing Ms Watson for the logbooks for the motor vehicle that the Respondent had supplied to her.”
She gives evidence about the attempts that were made with the Applicant to manage her workplace performance issues. Ms Strachan’s evidence about the verbal abuse that the Applicant perpetrated on her on 29 May 2014 has already been referred to.
The Applicant’s cross-examination of Ms Strachan was extensive. The Applicant put it to Ms Strachan that her evidence about the absence of electronic case notes was plainly wrong. Ms Strachan refuted that and, indeed, confirmed that there were neither case notes on the hard files in respect of the cases allocated to the applicant, nor were there electronic file notes on the system used for that purpose.
At one stage it was suggested by the Applicant in cross-examination that someone else had accessed the electronic file system or, indeed, that she might have accessed the system using another name. Ms Strachan refuted that, pointing out that the feature of the electronic file system was that the caseworker was uniquely identified and only that caseworker could add to the electronic file.
Ms Strachan confirmed that there were no case notes entered by the Applicant, and that the system clearly identifies who accesses it and what is added on. The Applicant then sought to complain that she had received inadequate training in the system, a matter that Ms Strachan refuted.
There was further cross-examination about timesheets, and about the performance management meetings that took place but, in the end result, the Court finds that nothing arose in the cross-examination that would cause the Court to be concerned about Ms Strachan’s evidence. The court accepts Ms Strachan’s evidence.
Tracy Anne Hinchcliffe
Ms Hinchcliffe’s affidavit was affirmed 25 February 2016. She was not required for cross-examination. She was initially a caseworker for the Respondent, and then the coordinator of out of home care at the time when the Applicant became a member of her team. She later became a projector officer.
She deposes that, in her opinion, given the nature of the work undertaken by the out of home care team in Port Macquarie, she believed that a reasonable workload for a full-time caseworker was 12 cases. Indeed, that was her caseload when she was a caseworker. She acknowledged that sometimes, if siblings were involved in the cases, the numbers might be slightly higher, but with siblings there was an amount of overlapping work, so she felt it evened out.
When she was the coordinator of the Applicant’s team, there were four caseworkers, and the Applicant’s caseload generally did not exceed 10 cases. She explained why:
…quite frankly, she took time to settle in and she could not manage more due to her level of ability, her disorganisation, and her inability to complete tasks required of the role on time. For example, case notes and child care plans… (paragraph 8).
She described the Applicant’s work performance as at the lowest end of what was expected from a caseworker. She was unable to complete timesheets and logbooks. She could not use the human resources management system correctly, and thus was not recording leave, and flexidays. The Court accepts Ms Hinchcliffe’s evidence. Again, it is abundantly clear that there was ample reason for the Respondent to make the decision that it made.
Submissions
The Applicant’s submissions were short, and inadequate, but reflected her lack of understanding of the legal issues that she had to establish. She tendered a bundle of documents (507 pages) which, supposedly, supported the establishment of her claim. The Court has reviewed this material. What becomes apparent, however, is that the Applicant relies on documents, many of which are relied on by the Respondent, and the effect of which is to either confirm the Respondent’s case, or to present the Applicant’s highly subjective view of what took place and why.
The Applicant was both tired, and emotional, by the time of her submissions. She explained that she thought that she had done her job really well, and did more than was expected of her. When she complained, she was bullied and harassed. She maintained that she had in fact submitted timesheets, and she had in fact entered leave. She did seem resigned to the fact, however, that the witnesses in the respondent’s case presented a very different perspective on the events in question.
On behalf of the Respondent, Mr Stewart conceded that the Applicant was dismissed, and therefore adverse action was taken against her. However, he submitted, and the Court accepts, that the adverse action was not taken because the Applicant exercised a workplace right – indeed the dismissal was quite unrelated to the complaints the Applicant made. Moreover, he submitted, and the Court accepts, that the adverse action was not taken for any of the reasons described in s.351, there described as discrimination.
Section 361 does not assist the Applicant in this case. The statutory presumption has been rebutted by the clear evidence of the decision-makers which was, for the most part, unchallenged. Even putting aside the fact that the Applicant represented herself, and thus may not have appreciated the importance of challenging the decision-maker’s evidence, the fact remains that the Court has itself critically evaluated their evidence, and accepts it. Whilst they were aware of the Applicant’s complaints, that as not the basis of their decision.
The Applicant’s case based on discrimination under s.351, whether based on mental disability, or family or carer’s responsibilities, also fails. There was no evidence of mental disability. The Court accepts the Applicant was probably distressed and visibly upset at times. The Applicant was probably on anti-depressants or anti-anxiety medication. This does not establish a disability. Moreover the cause for the Applicant’s condition was, probably as much (if not more) attributable to her relationship breakdown than workplace stress.
There was, moreover, no evidence of her dismissal being in any way attributable to the Applicant’s family or carer’s responsibilities. Indeed the totality of the evidence creates a strong impression that the Applicant worked in a family friendly workplace, and that she specifically received the benefits of flexibility notwithstanding that she agreed to work full-time.
It is possible, of course, that the obscurity of the Applicant’s claim masks some other basis for the Court’s intervention. The Court was at all times vigilant about this, whilst being conscious of the need to be fair to the Respondent as well. Doing the best the Court can in these circumstances, the Court cannot discern any other basis for upholding the Applicant’s claim.
The Application must be dismissed. Directions will be made to facilitate any costs application, though the Court reminds the Respondent that s.570 appears to set a high threshold for costs, and the Court has found the Applicant acted in good faith in bringing the claim, albeit a misconceived claim.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 30 January 2017
Schedule 1
Respondent’s Understanding of the Applicant’s Case
FEDERAL CIRCUIT COURT OF AUSTRALIA, FAIR WORK DIVISION, SYDNEY REGISTRY, NO. (P)SYG 2475/2014
SARAH JANE WATSON v UNITING CARE NSW.ACT TIAS UNITING CARE CHILDREN YOUNG PEOPLE AND FAMILIES
RESPONDENT'S .UNDERSTANDING OF THE APPLICANT' S CASE
The respondent takes the applicant's case to be that her dismissal by the respondent on 17 July 2014, was adverse action within s. 342(1)(Item l(a)) of the Fair Work Act (2009) and:
a.contravened s. 340(1)(a)(ii) of the Fair Work Act (2009), in that the applicant had exercised a workplace right as defined in s. 341(1)(c)(ii) of the Fair Work Act (2009), when:
i.she and two (or three) other co-workers lodged a complaint by email from Ms Jane Fazio to Ms Angela Adams of the respondent on 31 July 2013;
ii.she provided her input into the Supervision Notes of Mr Tim Bishop of the respondent dated 21 January 2014;
iii.she sent an email to Ms Alison Jones of the respondent, copied to Mr Tim Bishop, on 26 February 2014;
iv.she lodged by email two Complaint Report Forms with the respondent on 31 March 2014;
v.she was interviewed by Ms Claudia Maio and Ms Alison Jones of the respondent on 8 April 2014;
vi.Mr Mark Smith, a Registered Nurse, sent a letter to Ms Alison Jones of the respondent on 17 June 2014; and/or
vii.she attended the disciplinary interview with her support person, and Ms Alison Jones and Ms Kim Strachan of the respondent on 24 June 2014; and/or
b.contravened s. 351(1) of the Fair Work Act (2009) because of the applicant's:
i.mental disability; and/or
ii.family or carer's responsibilities.
The respondent denies that it contravened the Fair Work Act (2009) as set out above, or at all.
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