Wijethunge v Australian Rail Track Corporation Limited

[2016] FCCA 2023

FEDERAL CIRCUIT COURT OF AUSTRALIA

WIJETHUNGE v AUSTRALIAN RAIL TRACK CORPORATION LIMITED [2016] FCCA 2023

Catchwords:
INDUSTRIAL LAW – General protection – discrimination on the basis of carer’s responsibility – subpoena seeks internet records of co-worker – application to set aside provisions of subpoena – relevance – whether terms of subpoena oppressive – subpoena set aside.

Legislation:

Fair Work Act 2009, s.340(1); 342(1); 351; 360; 361

Federal Circuit Court Rules 2001: r.15A.09

Cases cited:
Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399
Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740
Khiani v Australian Bureau of Statistics [2011] FCAFC 109
Ermel v Duluxgroup (Aust) Pty Lty (No 2) [2015] FCA 17
McIlwain v Ramsey Food Packaging Pty Ltd & Ors (2006) 221 ALR 785

Applicant: UDYOGA LUCIAN SHILANDINI WIJETHUNGE

Respondent: AUSTRALIAN RAIL TRACK CORPORATION LIMITED

File Number: ADG 344 of 2015

Judgment of: Judge Brown

Hearing date: 25 July 2016

Date of Last Submission: 25 July 2016

Delivered at: Adelaide

Delivered on: 8 August 2016

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: Mr Reaburn

Solicitors for the Respondent: Henry Davis York Lawyers

ORDERS

1. The trial scheduled for 1 & 2 September 2016 is confirmed.

2. The objection to subpoena is upheld. 

3. The provisions of the subpoena directed to the respondent requiring it to supply its internet policy and internet usage logs of Mr Joyce is discharged.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 344 of 2015

UDYOGA LUCIAN SHILANDINI WIJETHUNGE

Applicant

And

AUSTRALIAN RAIL TRACK CORPORATION LIMITED

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment concern objections taken to the scope and relevance of documents sought by an applicant, in Fair Work proceedings, pursuant to subpoena. 

2. The applicant, in both the substantive proceedings and in respect of the production of documents, is Shilandini Wijethunge.  She was employed, as a fixed asset accountant, by the respondent, Australian Rail Track Corporation Limited (“ARTC”) between approximately 15 January 2015 and 28 June 2015.  Her employment was expressed as being subject to a probation period of six months.[1]

   [1]  See Employment Agreement at clause 2.5

3. It is ARTC’s contention that Ms Wijethunge’s employment was terminated, during the probationary period, because her work did not meet its expectations.  Ms Wijethunge asserts that her termination was illegal as it was motivated for a reason proscribed by legislation.

4. On 14 September 2015, Ms Wijethunge commenced proceedings in this court.  She alleges that ARTC has taken adverse action against her in contravention of section 351 of the Fair Work Act 2009 (Cth) (“FWA”) by terminating her employment “due to her carer responsibilities”.[2]

   [2]  See Fair Work claim at paragraph 65

5. Ms Wijethunge’s son, Geshan suffers a debilitating condition known as Pelizaeus Merzbacher Disease.  As a consequence of his disability, he is wheelchair bound and breathes through an oxygen line and is fed through a gastrotomey.  He needs constant assistance and a carer, on hand, at all times, to assist him.  Mostly his care is provided by the applicant and her husband, augmented by professional carers.

6. Section 340(1) of the FWA provides as follows:

   “(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.”

7. The expression adverse action is defined by a table set out in section 342(1) of the FWA. Relevantly, in the present matter, item 1 of the table reads as follows:

Meaning of adverse action
Item	Column 1 Adverse action is taken by …	Column 2 if …
1	an employer against and 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

1. Given that Ms Wijethunge has been terminated by ARTC, there is no controversy between the parties that she has suffered adverse action. However, given the terms of section 340, particularly the use of the conjunction because it is necessary for there to be a nexus between any adverse action of the relevant workplace right and particularly because of such a right.  Essentially, the adverse action must be causally related to the taking of the adverse action.

2. In this case, the workplace right relied upon by Ms Wijethunge arises because of the application of section 351(1) of the Act, which reads as follows:

   (1)     An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

3. Employers can take a particular action, against one of their employees, for a combination of reasons, some potentially illegal, under the FWA, some potentially not. In this context, the question arises as to who has the onus of establishing why adverse action has occurred and how any such onus is to be discharged. 

4. In this context, sections 360 and 361 of the FWA are relevant. Section 360 is headed Multiple reasons for action and reads as follows:

   “For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.”

5. Section 361 provides as follows:

   “Reason for action to be presumed unless proved otherwise

   (1)If:

   (a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

   (b)taking that action for that reason or with that intent would constitute a contravention of this Part;

   it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

   (2)Subsection (1) does not apply in relation to orders for an interim injunction.”

6. Section 361 creates a reverse onus. The onus is on the employer rather than the employee to establish why a person was adversely affected, in the workplace. If this onus is not discharged, it is to be assumed that the action in question was taken for a prohibited purpose.

7. Collier J in Jones v Queensland Tertiary Admissions Centre Limited (No 2)[3] explained the operation of section 361 of the FWA in the following terms:

   “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 … it is not sufficient for [an applicant] to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that [an applicant] is able to prove these allegations, the burden is then cast on to [the employer] to prove that adverse action was not taken against [an applicant] because of [her] workplace rights for the purposes of section 340 and 361 of the Act.” (citations removed).

   [3]  Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399 at [10]

8. It must also be borne in mind that the issue, in an adverse action claim, arising under section 340 of the Act, is not whether the employee concerned was unfairly dismissed or otherwise unreasonably or poorly treated. The task is to determine, if it is found that adverse action has been taken against the person concerned, what is the reason for that action and whether it was for a proscribed reason. As White J said in Tsilibakis v Transfield Services (Australia) Pty Ltd[4]

   It is necessary to keep in mind that the focus in a case like the present must be on whether the employer has taken the adverse action for a proscribed reason. It is not a review generally of the fairness of the employer’s conduct. The Full Court made this point in Khiani v Australian Bureau of Statistics[5] when it said:

   “... A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3–1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts. In the present case, the question is whether the respondent has taken adverse action against the appellant because she had a workplace right to be on sick leave, or because she had exercised that right.

   The first question to be addressed in such a case is whether adverse action was taken. Determining this question requires identification of the adverse action alleged. ...”

   [4]  Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740 at [16]

   [5]  Khiani v Australian Bureau of Statistics [2011] FCAFC 109 per Gray, Cowdroy & Reeves JJ

9. Nor is an application under section 340 of the FWA an opportunity for an applicant to raise any type of grievance, arising from his/her employment. Accordingly these proceedings are not a broad inquiry as to whether Ms Wijethunge has been “subject to a procedurally fair or substantially unfair outcome.”[6]

   [6]  Ermel v Duluxgroup (Aust) Pty Lty (No 2) [2015] FCA 17 at [48] per Bromberg J

10. In her affidavit,[7] filed in anticipation of the final hearing of her application scheduled for 1 & 2 September 2016, Ms Wijethunge has complained about the work attitude of an accountant, who was junior to her at ARTC, Mr Nathan Joyce. 

    [7]  See affidavit of the applicant filed 20 July 2016 at paragraph 20

11. Ms Wijethunge asserts that Mr Joyce was resentful that she was successful in obtaining the fixed asset accounting position and he did not, notwithstanding that he had acted in the position for a number of years.  Ms Wijethunge asserts that Mr Joyce was not helpful towards her.

12. It is Ms Wijethunge’s case that she completed the first three months of her probationary period successfully.  However, in the latter half, she felt that she and other team mates had to cover for Mr Joyce or redo his work, because he had not done it competently.  It is further Ms Wijethunge’s case that she spent significant periods of time doing accounting work, which Mr Joyce should have accomplished. 

13. The applicant further complains that Mr Joyce spent excessive time on the internet pursuing his personal social affairs, rather than performing his required tasks.  In this context, Ms Wijethunge complains that she completed overtime, requested by ARTC, which arose to complete the backlog of tasks that Mr Joyce had not completed on time.  This overtime was not paid.  Some of this overtime was apparently done from Ms Wijethunge’s home.

14. It seems to be the case that, at some stage, the applicant arranged with her immediate supervisor, Edith Campbell that she would work some additional hours from home.  It also seems to be the case that it is Ms Wijethunge’s perspective that some of the additional hours, which she was required to work, related to the inadequacies of Mr Joyce.  It also seems to be the case that working from home suited Ms Wijethunge because of her responsibilities to care for her son. 

15. Dispute seems to have arisen regarding the quality of work done by the applicant, whilst at home.  Other issues have arisen regarding the extent of unpaid overtime, worked by the applicant and the circumstances, which necessitated it. 

16. Between Friday 26 June and 29 June 2015, an email chain passed between Ms Campbell and Ms Wijethunge under the heading evening and weekend work.  The email chain can be summarised as follows:

    ·26 June 2015 (3:52pm) from Ms Campbell to Ms Wijethunge – inquiring what the latter’s intentions were for overtime and/or weekend work;

    ·26 June 2015 (3:55pm) from Ms Wijethunge to Ms Campbell – applicant had worked from home each evening that week to catch up.  This weekend would not be able to work as a consequence of family commitments;

    ·26 June 2015 (3:56pm) from Ms Campbell to Ms Wijethunge – thanks for the update;

    ·26 June 2015 (4:04pm) from Ms Campbell to Ms Wijethunge – “given this, please do not do any more work from home.  If you wish to work from home, please discuss with me prior to doing any work from home.  I think we need to consider if this is the right approach.”

    ·29 June 2015 (8:20am) from Ms Wijethunge to Ms Campbell – Ms Wijethunge advised Ms Campbell that she intended to continue working from home due to the workload in our team;

    ·29 June 2015 (9:02am) from Ms Campbell to Ms Wijethunge – “I am concerned that the home working is proving not to be productive.  There seems to be a lot of errors occurring and therefore a lot of rework which is then consuming time during the day.  I am happy for you to work longer hours in the office where you have support, but as of now please do not do any further work at home.  If you wish to work from home, please provide me with details of what work you wish to undertake to discuss it if it is something that can be worked on from home.  Any home working from now will have to be explicitly agreed before occurring.”

17. As previously indicated, at a performance review meeting held on 29 June 2015, it was determined that Ms Wijethunge’s work performance was unsatisfactory.  In this context, the applicant deposes as follows: 

    “I can only conclude that my carer responsibility which precluded me from working on the weekend of Saturday 27 and Sunday 28 June 2015 was the reason for the decision to dismiss me.”[8]

    [8]  See affidavit of Ms Wijethunge filed 20 July 2016 at paragraph 82

18. A significant theme of the applicant’s case is that inefficiencies at ARTC, relating to the poor performance of Mr Joyce, necessitated her having to work overtime, both in the workplace and at her home.  In this context, she contends that it is unfair that she, in her perception, was terminated because of the inadequacies of Mr Joyce.

The subpoena in question

1. On 7 July 2016, the applicant, who has been acting on her own behalf throughout these proceedings, issued a subpoena directed to Ngaire Walkinshaw, the General Manager, Corporate Accounting of ARTC requesting the following documents:

   ·ARTC information technology & internet use policy;

   ·Mr Joyce’s daily internet and LYNC system use log from 31 January 2015 to 30 June 2015.

2. The respondent has objected to producing these documents on the basis that they are not relevant to the applicant’s claim for breach of a general protection under the FWA, as Mr Joyce was not directly involved in the managerial decision to terminate Ms Wijethunge’s employment.

3. In this context, the respondent contends as follows:

   “A general protections claim does not involve a general consideration of the fairness of the Applicant’s dismissal.  To extent that the Applicant might allege that Mr Joyces’ use of the internet and LYNC impacted upon her performance is, in the context of her general protections claim, irrelevant.  The extent that the Applicant might allege that her conduct and performance was managed differently than the conduct and performance of Mr Joyce is, in the context of her general protections claim, irrelevant.”

4. In addition, the respondent objects to the production of records relating to Mr Joyce’s internet usage over a period of approximately five months as being oppressive, given the length of period involved. 

5. Pursuant to rule 15A.09 of the Federal Circuit Court Rules 2001 on application, the court may make an order setting aside all or part of a subpoena.  The respondent makes such an application in respect of the subpoena directed to both the company’s internet use policy and the specific internet records of Mr Joyce. 

6. In McIlwain v Ramsey Food Packaging Pty Ltd & Ors[9] Greenwood J summarised a number of principles governing the issue of subpoenas and by necessary implication when a subpoena could be set aside.  His Honour said as follows:

   “The documents must be relevant to an issue raised on the pleading and be used to illicit documents to support the applicant’s existing case.  It cannot be used for purposes of ‘fishing’ or for the purpose of determining a preliminary question as to whether the party has a supportable case, or to investigate the character of the opposing parties’ evidence.”

   [9]  See McIlwain v Ramsey Food Packaging Pty Ltd & Ors (2006) 221 ALR 785 at [33]

7. In respect of the issue of any potentially oppressive impact on the recipient of a subpoena, His Honour said as follows:

   “The issue of the subpoena must not, in all the circumstances, be oppressive in terms of its impact on the recipient.  That is, the issue of the subpoena must not be ‘seriously unfairly burdensome, prejudicial or damaging’ and ‘productive of serious and unjustifiable trouble and harassment’.”

8. In this particular case, I accept that Ms Wijethunge feels that she was unfairly burdened by Mr Joyce’s work, which she alleges that he (Mr Joyce) was either unwilling to do or was distracted from because of the internet.  However, I cannot see any obvious connection between this assertion and the applicant’s allegation that she was subject to adverse action because of her carer’s responsibilities. 

9. Ms Wijethunge may have had to do more work because of Mr Joyce’s alleged failings. This state of affairs may also be unfair to the applicant. However, I cannot see its connection to her dismissal, particularly in terms of any connection with the general protection created by section 351.

10. In addition, I am satisfied that it would be oppressive to the ARTC to require it to produce an individual’s internet records for a period of approximately five months, particularly when the forensic value attached to those records appears to be extremely limited.  For these reasons, I uphold the objection made by the respondent to the subpoena issued by Ms Wijethunge. 

11. These proceedings were originally listed, on Ms Wijethunge’s application, to change the trial listing of the matter.  The final hearing is scheduled for 1 & 2 September 2016.  For reasons provided orally at the time, I declined that application.  It was convenient to deal with the subpoena issue at the same time.

12. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding thirty seven (37) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 8 August 2016