Wibowo v Vehicle Monitoring Systems Pty Ltd
[2022] FedCFamC2G 23
•25 January 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wibowo v Vehicle Monitoring Systems Pty Ltd [2022] FedCFamC2G 23
File number(s): MLG 2987 of 2020 Judgment of: JUDGE RILEY Date of judgment: 25 January 2022 Catchwords: INDUSTRIAL LAW – Alleged adverse action – dismissal – failure to redeploy – Small Business Fair Dismissal Code – Occupational Health and Safety Act 2004 (Vic). Legislation: Fair Work Act 2009, ss.340(1), 341(1), 342(1)
Federal Circuit and Family Court of Australia Act 2021, s.141
Federal Circuit Court of Australia Act 1999, s.16
Occupational Health and Safety Act 2004 (Vic), ss.21 and 35
Small Business Fair Dismissal CodeCases cited: Alam v National Australia Bank (2021) 33 ALR 629; (2021) 310 IR 71; [2021] FCAFC 178
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 32Division Division 2 General Federal Law Number of paragraphs: 66 Date of hearing: 3 December 2021 Place: Melbourne Advocate for the applicant: In person Solicitor for the applicant: None Counsel for the respondent: Ella Dalrymple (by direct brief) Solicitor for the respondent: None ORDERS
MLG 2987 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ERWIN WIBOWO
ApplicantAND: VEHICLE MONITORING SYSTEMS PTY LTD
(ACN 107 396 136)
Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
25 JANUARY 2022
THE COURT DECLARES THAT:
1.The respondent contravened s.340(1) of the Fair Work Act 2009 (“the Act”) by dismissing the applicant because he had exercised his workplace right to make a complaint in relation to his employment.
2.The questions of the quantum of any compensation, and the quantum of any penalty, be addressed by the parties at a further hearing.
Note:The form of the order is subject to the entry in the court’s records.
Note:This copy of the court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE RILEY:
INTRODUCTION
This is, firstly, an adverse action claim brought under the Fair Work Act 2009 (“the Act”). The alleged adverse actions were dismissing the applicant, and failing to redeploy him.
This is, secondly, an application for declarations that the respondent breached the Small Business Fair Dismissal Code and the Occupational Health and Safety Act 2004 (Vic). The applicant did not provide any particulars of those alleged breaches and he did not seek any compensation for them. The only compensation he sought was for the civil remedy breaches, which basically means the adverse action claims. However, pursuant to s.141 of the Federal Circuit and Family Court of Australia Act 2021, and s.16 of the former Federal Circuit Court of Australia Act 1999, the court can grant a declaration even if no consequential relief is claimed.
BACKGROUND
The applicant (“Mr Wibowo”) was employed by the respondent, Vehicle Monitoring Systems Pty Ltd (ACN 107 396 136) (“VMS”), as a data analyst from 4 December 2017 until 10 March 2020. VMS designs and installs car parking sensors in car parking spaces to assist with car parking guidance and car parking enforcement. VMS was incorporated on 15 December 2003. At the time of Mr Wibowo’s dismissal on 25 February 2020, with effect from 10 March 2020, VMS had 10 employees. At the time of the trial, VMS had seven employees.
Initially, Mr Wibowo was employed part-time, for 15 hours per week. He was only available to work part-time because he was undertaking a Master’s degree in IT. After finishing his Master’s degree, from 2 July 2018 until his dismissal on 10 March 2020, Mr Wibowo was employed full-time.
On 24 February 2020, at 6.37pm, Mr Wibowo sent an email to his manager and to one of the directors of VMS, Fraser Welch, saying that:
Hi Fraser and Chris,
I have some concerns regarding my current role’s duty, responsibilities, and expectation in the company. I believe that I have been working on a significant portion of tasks falling well outside of my scope of role as a data analyst. At the same time, there is an expectation for me to do all of these tasks to the standard set beyond the expectation for the role for which I am contracted by the company to perform.
This has impacted my work-life balance, while also compromising my commitment to my original role. Hence, I would like to highlight the following points:
1.From now onwards, I would like to focus more on my core data analyst responsibilities as outlined in my original contract, dated Dec 2017. If the company would require me to do some reasonable amount of work outside my role, I would do my best to carry on. However, I could not provide guarantee in regard to the quality standard of my work and the timeliness of the task delivery.
2.If the company would plan to allocate a significant amount of job outside of my current role, I would be happy to renegotiate the terms of my contract. Otherwise, I would no longer be able to complete all of the additional works allocated to me.
3.In the past, I might have willingly taken a significant amount of additional tasks to the standard above and beyond what is required for my role, ranging from system maintenance, software engineering, and A1 development. Those tasks were completed purely out of my goodwill to the company and thus, I make no guarantee of my commitment to these additional tasks in the future, unless we renegotiate my duties and responsibilities set out in my contract.
Please be reminded that my employment contract as “data analyst” has not been updated since the first time I was employed by the company in Dec 2017. Therefore, my role responsibilities and expectations should be set according to the standard of such role.
Thank you for your cooperation.
Sincerely,
Erwin
On the following day, 25 February 2020, at about 11.30am, Mr Welch told Mr Wibowo that his position as a data analyst was redundant and his position would be terminated with effect from 10 March 2020.
Mr Wibowo said that VMS:
(a)dismissed him; and
(b)injured him in his employment by refusing to redeploy him,
because he made a complaint in relation to his employment, being his email dated 24 February 2020.
VMS said that the company had been operating at a loss for some years, and it had insufficient work to give to Mr Wibowo. VMS said that Mr Wibowo’s email did not contribute to the decision to dismiss him, or in the decision to not redeploy him. VMS said that it dismissed Mr Wibowo and did not redeploy him solely because the company had insufficient work for him.
MATERIAL RELIED UPON
Mr Wibowo relied on his affidavits dated:
(a)7 May 2021;
(b)22 June 2021; and
(c)27 August 2021.
VMS relied on the affidavits affirmed by:
(a)Fraser John Welch on 9 June 2021;
(b)Saxon John Hill on 5 August 2021; and
(c)Lindsay John Phillips on 6 August 2021.
All of the deponents of affidavits were cross-examined.
LEGISLATION
Subsection 340(1) of the Act provides that:
Protection
A person must not take adverse action against another person:
(a)because the other person:
…
(ii)has … exercised a workplace right;
… .
Subsection 341(1) of the Act provides that:
Meaning of workplace right
(1) 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.
Subsection 342(1) of the Act provides that:
Meaning of adverse action
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.
…
Section 360 of the Act provides that:
Multiple reasons for action
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 as follows:
Reason for action to be presumed unless proved otherwise
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took … action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was … taken for that reason or with that intent, unless the person proves otherwise.
As can be seen, it is for VMS to prove that it did not take the adverse action against Mr Wibowo for the reason he alleged. If VMS is unable to discharge that burden of proof, the court must accept that the adverse action was taken for the reason Mr Wibowo alleged.
If there were multiple reasons for the adverse action, Mr Wibowo will succeed if the reason Mr Wibowo alleged was only one of the reasons for the adverse action, provided that it was a substantial and operative reason: 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 at [104].
MR WELCH’S EVIDENCE
Mr Welch said in his affidavit that:
(a)VMS had operated at a loss from 2018;
(b)VMS was able to continue to trade due to Mr Welch and his co-directors, Mr Hill and Mr Phillips, providing financial support to VMS;
(c)at the Board meeting on 6 December 2019, it was decided that three of the 10 roles at VMS were no longer needed, including Mr Wibowo’s role;
(d)Mr Wibowo’s role was unnecessary because it did not relate to the core business of VMS, which required software engineers and management;
(e)the Board delegated Mr Welch to tell Mr Wibowo that his role was redundant;
(f)however, Mr Welch “felt awful” about it and kept putting it off;
(g)the Board met again on 24 January 2020, and pressured Mr Welch to tell Mr Wibowo his role was redundant;
(h)however, Mr Welch did not do so;
(i)the Board met again on 18 February 2020, and it was clear that Mr Welch had to action the Board’s decision and tell Mr Wibowo his role was redundant;
(j)Mr Welch did not consider Mr Wibowo’s email dated 24 February 2020 to be a complaint, and it did not contribute to his decision to terminate Mr Wibowo’s employment; and
(k)the decision to terminate Mr Wibowo’s employment had previously been made by the Board.
THE BOARD MINUTES AND THE BOARD PAPERS
Mr Welch supported his claims with what he described as the minutes of Board meetings on 6 December 2019, 24 January 2020 and 24 February 2020. The documents described as Board minutes were not signed. Mr Welch said in his oral evidence that the Board minutes were not normally. In his oral evidence, Mr Hill said that he prepared the Board minutes and circulated them amongst the directors.
The three bundles of documents, one for each Board meeting, that were provided to the court are not Board minutes in the conventional sense. They do not state what resolutions were passed. They are headed “VMS Board Meeting” and then set out the date and time, location and attendees of the meeting on that particular date.
However, they then contain a one page table which is described as the minutes of the previous meeting. The table lists item numbers, the description of a task, who is responsible for it and when the task is to be completed by.
Mr Hill described the three bundles of documents, which run to about seven pages in each case, as Board papers. Except for the table, which serves as the minutes of the previous meeting, the Board papers are in the nature of reports on various topics, and could be used as an agenda.
The Board papers for the Board meeting on 6 December 2019 begin with a table, which is described as the minutes of the Board meeting on 5 November 2019. The minutes for 5 November 2019 say nothing about any redundancies, consistently with Mr Welch’s evidence that redundancies were first discussed by the Board on 6 December 2019.
However, the Board papers for the meeting on 6 December 2019 say, on the last page:
Redundancies – have analysed the cost of making the following three employees redundant:
Gross Termination Costs (excluding final weekly pay) are:
[name blacked out] $5,347.37 (Annual Leave accrued)
[name blacked out] $26,419.92 (Annual Leave/LSL accrued) + 3 weeks additional notice required
Erwin Wibowo $2,585.70 (Annual Leave accrued)
Total: $34,352.99
We are considered a Small business (i.e. less than 15 employees) and are not required to pay redundancy.
The Board papers for the meetings on 24 January 2020 and 18 February 2020 have exactly the same entry on the last page.
The Board papers for 24 January 2020 contain on the first page the minutes of the meeting on 6 December 2019. The minutes of the 6 December 2019 meeting say nothing about any redundancies. That is inconsistent with Mr Welch’s evidence that it was decided at the meeting on 6 December 2019 that Mr Wibowo’s role was redundant and that Mr Welch would have to tell him.
The Board papers for 18 February 2020 contain on the first page the minutes of the meeting on 24 January 2020. The minutes of the 24 January 2020 meeting say nothing about any redundancies. That is inconsistent with Mr Welch’s evidence that it was confirmed at the meeting on 24 January 2020 that Mr Wibowo’s role was redundant and that Mr Welch would have to tell him.
The court was not provided with the minutes of the Board meeting on 18 February 2020.
Mr Hill said in his oral evidence (Tr. p.67, l.27) that the minutes for the Board meetings on 6 December 2019 and 24 January 2020 did not contain any reference to any redundancies because the directors had not reached agreement on the redundancies on those dates. Mr Hill said things only appeared in the minutes if the Board had agreed to take action on or by a specific date.
Mr Hill confirmed that VMS had not provided to the court the minutes of the Board meeting on 18 February 2020. Moreover, Mr Hill said in his oral evidence that, at that meeting, it had not yet been decided which of the three employees’ roles was to be made redundant: Tr. p.68, l.23. Mr Hill said further that the decision to make Mr Wibowo’s role redundant was made soon after the meeting on 18 February 2020, and was made by Mr Welch alone, because the three roles were in his team.
Therefore, the Board minutes provided to the court do not support Mr Welch’s claim that the Board had decided to make Mr Wibowo’s role redundant prior to Mr Wibowo’s email of 24 February 2020. Any such decision ought to have been in the minutes. The absence of a decision about redundancy in the minutes of 6 December 2019 and 24 January 2020 strongly suggests that the Board did not decide to make Mr Wibowo’s role redundant at the Board meetings on either of those dates. That is entirely inconsistent with Mr Welch’s claims in his affidavit.
More importantly, Mr Hill’s unequivocal oral evidence was that the Board had not decided on 6 December 2019, or 24 January 2020 or 18 February 2020 to make Mr Wibowo’s role redundant. That oral evidence is entirely inconsistent with Mr Welch’s claims in his affidavit.
Mr Hill’s oral evidence was also entirely inconsistent with his own affidavit evidence, which was that Mr Welch and Mr Phillips agreed with him on 6 December 2019 that the roles of three staff members, including Mr Wibowo’s, would have to be made redundant.
Mr Hill’s oral evidence was also entirely inconsistent with Mr Phillips’ affidavit evidence, which was to the effect that the decision to make redundant three roles, including Mr Wibowo’s, was taken on 6 December 2019.
These inconsistencies in VMS’s evidence make it very difficult to accept its claim that the decision to make Mr Wibowo’s role redundant was made before he sent his email on 24 February 2020.
While, in accordance with Mr Hill’s oral evidence, it is theoretically possible that Mr Welch decided to make Mr Wibowo’s role redundant after the meeting on 18 February 2020, but before Mr Wibowo’s email dated 24 February 2020, that is not what Mr Welch, Mr Phillips or VMS claimed. They all claimed that the decision was made on 6 December 2019. That was also what Mr Hill said in his affidavit. In these circumstances, it is just not possible to believe that Mr Welch decided to make Mr Wibowo’s role redundant after the meeting on 18 February 2020 and before Mr Wibowo’s email dated 24 February 2020.
The Board papers certainly show that redundancies were on the agenda on 6 December 2019, 24 January 2020 and 18 February 2020. However, on the evidence before the court, no decision had been made before Mr Wibowo’s email was received on 24 February 2020.
It is also noteworthy that, although three redundancies were on the agendas for 6 December 2019, 24 January 2020 and 18 February 2020, only Mr Wibowo’s position was made redundant. The other two employees continued to be employed by VMS, even during the pandemic.
WAS THE 24 FEBRUARY 2020 EMAIL A COMPLAINT?
VMS argued in its outline of submissions that the complaint that Mr Wibowo relied on had to be one that he was able to make, and that he had not identified the source of his ability to make the complaint in his pleadings. In Alam v National Australia Bank (2021) 33 ALR 629; (2021) 310 IR 71; [2021] FCAFC 178, the Full Court of the Federal Court considered the disparate authorities concerning complaints, and decided, unanimously, at [97], that, for reasons of judicial comity, it should follow the unanimous decision of the Full Court of the Federal Court in Cigarette and Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46; (2019) 285 IR 290; [2019] FCAFC 16.
In Alam, the Full Court said the following about Whelan:
74.In Whelan v Cigarette & Gift Warehouse Pty Ltd (2017) 275 IR 285; [2017] FCA 1534, Collier J found that the workplace right exercised by the employee was the making of inquiries in the weeks prior to, and on the day of, his dismissal about either payment of a bonus or the establishment of a bonus plan. Her Honour stated the principles she was applying in the following terms:
[33]Section 341(c)(ii) defines a workplace right in an employee as being the entitlement of the employee to make a complaint or inquiry in relation to his employment. In such cases as Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346; 242 IR 1; [2014] FCA 271 (Shea), Murrihy v Belezy.com.au Pty Ltd (2013) 238 IR 307; [2013] FCA 908 and Walsh v Greater Metropolitan Cemeteries Trust (No 2) (2014) 243 IR 468; [2014] FCA 456 (Walsh), s 341(c)(ii) was interpreted broadly. In Walsh [41], Bromberg J observed that the requirement in s 341(c)(ii) that a complaint or inquiry by the employee be “in relation to” his employment means that there must be a relationship between the subject matter of the complaint and the complainant’s employment. As Dodds-Streeton J further observed in Shea, a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise.
[34]As a general proposition, a complaint or inquiry to the employer by an employee in relation to his or her entitlement to an incentive bonus, or the failure of the employer to prepare an incentive bonus plan, where the terms of employment of that employee make provision for payment of such bonuses or the preparation of such plans, would fall within the scope of s 341(c)(iii) of the FW Act.
75.It is evident that, in applying the approach of Dodds Streeton J in Shea v TRUenergy, Collier J proceeded on the basis that a complaint or inquiry to an employer about an entitlement for which the contract of employment makes provision is within the scope of s 341(1)(c)(ii). Her Honour did not proceed on the basis that either s 341(1)(c) or Shea v TRUenergy required that the right or entitlement to make a complaint or inquiry be itself found in the contract of employment: it is sufficient if the complaint or inquiry relates to a subject matter for which the contract of employment makes provision. It is also to be noted that Collier J did not purport to state exhaustively the kinds of complaints or inquiries which would be within, and without, s 341(1)(c).
(emphasis added)
76.On the appeal (Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46; [2019] FCAFC 16 (Whelan)), the Full Court (Greenwood, Logan and Derrington JJ) at [28] described the statement of principle by Collier J in [33]–[34] as “unremarkable and correct” and held that the pleaded complaint or inquiry in relation to a bonus constituted, for the reasons given by Collier J, the exercise of a workplace right for the purposes of the FW Act.
Based on Alam and Whelan, and contrary to what appears to have been VMS’s submission, it is not necessary that the ability to make the complaint have an instrumental source. Rather, as noted in Alam:
… it is sufficient if the complaint or inquiry relates to a subject matter for which the contract of employment makes provision.
The employment contract dealt with the applicant’s duties and remuneration. The applicant’s email dated 24 February also dealt with his duties and remuneration. That satisfies Alam. It seems to me that the pleadings were more than sufficient in relation to the complaint.
THE REASONS FOR THE DISMISSAL
I accept VMS’s claim that it was making significant losses from 2018 onwards, and required the financial support of its directors to remain in business. I also accept that the three directors of VMS had considered making three employees redundant at the 6 December 2019 Board meeting and following. However, on the evidence before the court, neither the three directors jointly, nor Mr Welch individually, had made a definite decision to make any position redundant prior to Mr Wibowo’s email dated 24 February 2020.
On the evidence, I consider that Mr Welch decided to make Mr Wibowo’s position redundant after Mr Welch received Mr Wibowo’s email dated 24 February 2020, partly because VMS was in some financial difficulty, but also because of Mr Wibowo’s complaint. Without that complaint, it is possible that Mr Welch would have decided to make one of the other two roles redundant, rather than Mr Wibowo’s, or none of them at all.
Obviously, VMS had managed to get by with its financial difficulties for at least two years. As demonstrated by Uber, it is possible to remain in business for a long time, without making a profit, if investors are willing to continue to invest. The fact that the other two roles considered for redundancy were not made redundant suggests that VMS’s financial position was not as dire as they would have the court believe.
As discussed above, the reason alleged by Mr Wibowo does not have to be the sole reason for the adverse action. It only needs to be a substantial and operative reason. In my view, the complaint was such a reason. I consider that it was a tipping point.
It follows that Mr Wibowo’s adverse action claim in relation to dismissal succeeds.
THE REFUSAL TO REDEPLOY
Mr Wibowo said that VMS injured him in his employment by refusing to redeploy him as a software engineer. Mr Wibowo said that VMS had work available as a software engineer, because a software engineer at VMS told him in February 2020 that he had a one year backlog. VMS objected to that evidence on the grounds of hearsay. I accept that.
Mr Wibowo did not call the software engineer to give evidence, and he did not extract any relevant concessions from Mr Welch, Mr Phillips or Mr Hill in cross-examination. However, the onus of proof in adverse action matters is not on the applicant. It is on the respondent.
VMS extracted an admission from Mr Wibowo that he had not seen any advertisements for software engineer positions at VMS at around the time his position was terminated. It was not disputed that VMS had 10 employees at the time Mr Wibowo was dismissed, and that it had seven employees at the time of the trial.
Mr Welch said little in his affidavit about the possibility of redeployment, only that Mr Wibowo’s role as a data analyst was no longer required and there were no other roles available. Mr Hill and Mr Phillips said nothing in their affidavits about the possibility of redeployment.
However, looking at the evidence as a whole, I am satisfied that there was not a viable possibility of Mr Wibowo being redeployed as a software engineer. That is, on the evidence, I accept that VMS has discharged the reverse onus, and that it did not redeploy Mr Wibowo as a software engineer because it did not have appropriate work to give him in that field.
SMALL BUSINESS FAIR DISMISSAL CODE
Section 388 of the Act permitted the then Minister for Employment and Workplace Industrial Relations to declare by legislative instrument a Small Business Fair Dismissal Code. Subsection 388(2) of the Act provided that:
A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a)immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b)the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
The Small Business Fair Dismissal Code provides for summary dismissal in the event of serious misconduct, such as theft, fraud, or violence. There was no suggestion that the applicant engaged in serious misconduct.
The Small Business Fair Dismissal Code also provides for dismissal based on an employee’s misconduct or incapacity to do the job. In such cases, the employer must give the employee a warning and a chance to rectify the problem. There was no suggestion that the applicant engaged in conduct warranting his dismissal, or that he was not capable of continuing to discharge the duties of a data analyst.
The Small Business Fair Dismissal Code does not deal with alleged redundancy, or adverse action. The circumstances of this case do not fall within the ambit of the Small Business Fair Dismissal Code. Therefore, I cannot make the declaration that the applicant sought.
OCCUPATIONAL HEALTH AND SAFETY ACT 2004 (VIC)
Mr Wibowo said in his statement of claim that VMS had breached the Occupational Health and Safety Act 2004 (Vic):
… due to the inappropriate response to the applicant’s work-life balance concern. A sudden termination would not resolve the psychological health issue of the applicant and was more likely to exacerbate the issue instead.
Mr Wibowo sought in the statement of claim a declaration that VMS:
… has contravened the Occupational Health and Safety Act 2004 for failing to consult to the applicant while resolving health or safety issues at a workplace under the employer’s management and control or arising from the conduct of the undertaking of the employer.
Mr Wibowo did not provide particulars of what VMS did that might have constituted a breach of the Occupational Health and Safety Act 2004 (Vic).
Section 21 of the Occupational Health and Safety Act 2004 (Vic) requires employers to maintain a safe working environment. Mr Wibowo did not allege that the working environment at VMS was not safe.
Section 35 of the Occupational Health and Safety Act 2004 (Vic) also requires employers to consult with employees in certain circumstances. Mr Wibowo did not identify any circumstance that required VMS to consult with him.
Mr Wibowo’s complaint seems to be that being dismissed from his employment harmed his mental health. However, he did not identify how that breached the Occupational Health and Safety Act 2004 (Vic).
Also, Mr Wibowo did not provide any admissible evidence that any conduct of VMS harmed his mental health. Mr Wibowo did provide a psychiatrist’s report as an exhibit to his own affidavit. However, that was not admissible for present purposes and, in any event, did not establish that VMS’s conduct was the cause of Mr Wibowo’s difficulties.
Consequently, I am unable to make the declaration Mr Wibowo sought in relation to the Occupational Health and Safety Act 2004 (Vic).
CONCLUSION
Mr Wibowo has succeeded on the adverse action claim in relation to dismissal. A declaration will be made accordingly. I will hear the parties on the quantum of any compensation and the quantum of any penalties.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Dated: 25 January 2022
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