Wijethunge v Australian Rail Track Corporation Limited (No.2)
[2016] FCCA 3014
•25 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WIJETHUNGE v AUSTRALIAN RAIL TRACK CORPORATION LIMITED (No.2) | [2016] FCCA 3014 |
| Catchwords: INDUSTRIAL LAW – Allegation of adverse action in breach of general protection right – allegation of adverse action based on discrimination and in contravention of workplace right – nexus between protected attribute and adverse action – reverse onus – why was adverse action taken – evidence from decision-makers concerned – no breach found – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.12; 340; 341(1); 351(1); 342; 342(1); 360; 361; 545(2) Evidence Act (1995) (Cth), s.140 |
| Cases cited: Fox v Percy (2003) 214 CLR 118 Ermel v Duluxgroup (Australia) Pty Ltd (No2) [2015] FCA 17 Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 Hadgkiss v Sunland Constructions Pty Ltd & Ors (2007) 158 FCR 193 Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399 Board of Bendigo Regional Institute of Technology and Further Education v Barclay [No1] (2012) 248 CLR 500 Board of Bendigo Regional Institute of Technical and further Education v Barclay & Anor [1] (2012)248 CLR 500 Construction, Forestry Mining & Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 Shortv Ambulance Australia [2015] FCAFC 55 |
| Applicant: | UDYOGA LUCIAN SHILANDINI WIJETHUNGE |
| Respondent: | AUSTRALIAN RAIL TRACK CORPORATION LIMITED |
| File Number: | ADG 344 of 2015 |
| Judgment of: | Judge Brown |
| Hearing date: | 1 & 2 September 2016 |
| Date of Last Submission: | 2 September 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 25 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Mr Manos |
| Solicitors for the Respondent: | Henry Davis York Lawyers |
ORDERS
The application filed on 14 September 2015 is dismissed.
| 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
The applicant, in these proceedings, Udyoga Lucian Shilandini Wijethunge,[1] claims that she was subject to “adverse action” in contravention of section 340(1)(a) of the Fair Work Act (2009) (Cth),[2] during the course of her employment with the respondent, The Australian Rail Track Corporation Limited.[3] The adverse action complained of by Ms Wijethunge was the termination of her employment.[4]
[1] Hereinafter referred to as Ms Wijethunge or the applicant. In addition, in some of the affidavit material, Ms Wijethunge is referred to by her given name Shilandini.
[2] Hereinafter referred to as the FWA or the Act.
[3] Hereinafter referred to as the ARTC or the respondent
[4] See section 342(1) of the FWA at item 1
Essentially, Ms Wijethunge claims the ARTC infringed various of her “workplace rights”, as defined by section 341(1) of the FWA by dismissing her shortly after she allegedly declined a request, by her immediate supervisor, Edith Campbell, to work overtime on the weekend of 20 & 21 June 2015. It is Ms Wijethunge’s case that she declined this request because she had carer’s responsibilities in respect of her son, Geshan.
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 gastrostomy. 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.
It is further Ms Wijethunge’s case that the ARTC has further contravened protective provisions, within the FWA, by taking adverse action against her, as a consequence of her carers’ responsibilities, in contravention of section 351(1) of the Act. This section 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.
As a consequence of this alleged adverse action, Ms Wijethunge seeks compensation for loss of wages and monetary damages for the distress, hurt and personal injury she has suffered as a consequence of her dismissal of her employment pursuant to section 545(2) of the Act. She also seeks to be reinstated into her position.[5]
[5] See applicant’s claim filed 14 September 2015 at section H
In its response,[6] the ARTC seeks that Ms Wijethunge’s application be dismissed. It denies that it took adverse action against the applicant because of her carer’s responsibilities or because she refused to work overtime.
[6] See response filed 29 January 2016
In these circumstances, the ARTC denies that it has, in any way, contravened the general protection provisions contained in part 3-1 of the FWA. Rather, the respondent submits that it lawfully terminated Ms Wijethunge’s employment, during a period of probation, because her skillset did not align with the role to which she had been originally recruited.
Background
Ms Wijethunge has undergraduate qualifications in accounting and is a certified practising accountant. She has worked as an accountant since at least 2001, in various fields of industry.
ARTC is primarily, a maintainer of railway infrastructure. It has responsibility for the management of over 8,500 kilometres of railway track in South Australia, Victoria, Western Australia, Queensland and New South Wales. The value of the fixed assets, for which the ARTC is responsible, is valued at approximately $4.5 billion. The ARTC is effectively owned by the Commonwealth of Australia.
From the perspective of the ARTC, the management of its fixed assets is extremely important. Its management of these assets is subject to regular external audit. Information has to be regularly collated as to the value of these assets from time to time.[7]
[7] See affidavit of Edith Campbell filed 4 August 2016 at paragraphs 24-30
Ms Wijethunge was interviewed for the position of fixed asset accountant, with the respondent, in mid-December of 2014. She was interviewed by Ngaire Walkinshaw and Paul Harrison. Ms Walkinshaw is the general manager, corporate accounting for the respondent, whilst Mr Harrison, at the time, was acting corporate accountant. Edith Campbell, who ordinarily held this position was on maternity leave at the time.
Ms Wijethunge was successful in her application for the position and commenced employment in February of 2015. Her responsibilities included updating and maintaining ARTC’s fixed assets register for accounting and taxation purposes.
The terms of Ms Wijethunge’s employment, with the ARTC, are contained in the Australian Rail Track Enterprise Agreement 2014.[8] Pursuant to clause 4.2 of the workplace agreement, employees of the ARTC are entitled to ten days carer’s leave per year. Carer’s leave is defined as leave required for the purpose of caring for an immediate family member, who requires the employee concerned to provide care and support for his/her relative due to illness.
[8] See annexure EC1 of the affidavit of Edith Campbell filed 4 August 2016 hereinafter referred to as the workplace agreement.
The workplace agreement provided that employees of the ARTC might be required to work reasonable overtime in order to meet its business requirements.[9] However the ordinary hours of work of employees of the ARTC were specified to be an average of 38 hours per week but not exceeding 152 hours in 28 days.[10]
[9] See workplace agreement at clause 3.3.1
[10] Ibid at clause 9.2.1
Ms Wijethunge signed an employment agreement with the ARTC on 15 January 2015. Her total remuneration package was $104,250.00. Her employment was specified to be subject to a probationary period of six months, during which either party to the agreement could terminate the agreement on the giving of one week’s notice or by the ARTC paying the employee concerned one week’s pay in lieu of notice.[11]
[11] See annexure SW2 to the applicant’s affidavit filed 20 July 2016 at clause 2.5
The employment agreement between the parties specified, as follows, under the heading Hours and Days of Work:
“The employees ordinary hours and days of work will be in accordance with the applicable workplace agreement. The corporation may require the employee to work additional hours which are reasonable and necessary to do the job without additional remuneration.”[12]
[12] Ibid at clause 4.1
On 29 June 2015, the applicant was provided with a letter, under the hand of Ms Walkinshaw, headed termination of employment during probationary period. The letter specified that Ms Wijethunge’s ongoing employment with the ARTC was subject to the satisfactory completion of a six month probationary period.
The letter went on to indicate that Ms Walkinshaw had formed the view that Ms Wijethunge’s “skill set aligned against the role is not beneficial for all parties”. As a consequence, the respondent had decided to terminate Ms Wijethunge’s employment, within the probationary period, effective from 29 June 2015.
In addition, the letter made reference to a performance review, which had taken place on 19 June 2015, at which it was indicated that it had been felt by the senior management of the ARTC that Ms Wijethunge was not meeting the expectations of the respondent in the performance of her position as the fixed asset accountant.
Ms Wijethunge agrees that there was a performance review meeting, in respect of her employment up to that stage, held on 19 June 2015. The meeting was attended by Ms Campbell and Ms Walkinshaw, as well as the applicant herself. It is Ms Walkinshaw’s position that, following discussion between all concerned, the meeting was adjourned for a period of approximately three weeks to enable her to begin the process of rectifying any identified deficits in her employment performance. It is Ms Wijethunge’s evidence that subsequently a meeting was scheduled for 13 July 2015.
In these circumstances, Ms Wijethunge is dubious that her performance was the actual reason for her dismissal on 29 June 2015. It is her case that in early May of 2015 she had been asked by Ms Campbell to work an additional 10 hours of overtime per week in order to complete year end tasks in respect of the fixed asset register.[13]
[13] See paragraph 41 of the applicant’s affidavit filed 20 July 2016 and initiating claim at paragraphs 29-30
In this context, it is Ms Wijethunge evidence that she had worked, from home, each evening of the week commencing 22 June 2015 and had consistently worked additional hours, on weekends and evenings beforehand.
ARTC offers its employees flexibility arrangements.[14] It is Ms Wijethunge’s evidence that she negotiated flexible hours for herself in February of 2015, shortly after she had commenced her employment with ARTC. Ms Walkinshaw acknowledges that it was agreed that Ms Wijethunge would work between 7:30am and 4:30pm with a half hour lunch break, Monday to Friday, although it was also specified that, if there was a late afternoon meeting, requiring her attendance, Ms Wijethunge would attend it.
[14] See workplace agreement at clause 8
It is further Ms Wijethunge’s evidence that, on 18 May 2015, she was authorised by Ms Walkinshaw, following a request from Ms Campbell, to book out a laptop computer to enable her (the applicant) to work from home. In these circumstances, it is the applicant’s position that she was given both active and tacit approval and indeed direction to work additional hours from home. Ms Campbell does not accept that this was the case.
At 3.52pm, on Friday, 26 June 2015, an email chain regarding Ms Wijethunge’s intentions so far as overtime originated with Ms Campbell. Ms Wijethunge replied to this email in the following terms:
“Hi Edith,
This week I have worked from home every day each night to catch up additional hours as you requested.
This week end I would not be able to week [sic] have family commitments. For your information whole last week end worked from home.
Regards,
Shilandini”[15]
[15] See annexure SW14 to the applicant’s affidavit filed 20 July 2016
After briefly acknowledging this email at 3.56pm on the same day, eight minutes later at 4.04pm Ms Campbell replied in the following terms:
“Shilandini
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.
Thanks.”[16]
[16] Ibid
It is Ms Wijethunge’s case that there is a connection between her refusal to perform additional hours, on the weekend of 27 & 28 June 2015 and the decision of the ARTC to terminate her employment on 29 June 2015, ostensibly for reasons relating to her performance, particularly given that her performance or probationary review had been deferred until mid-July.
Ms Wijethunge is further suspicious that her termination letter bears the date of 28 June 2015. Given its date, it is her submission that the decision to terminate her employment was made prior to Monday, 29 June 2015 and therefore can only relate to the overtime issue and her decline of it, for reasons relating to her obligations to care for Geshan and so is a decision vitiated by illegality because it was motivated by a protected reason, namely Ms Wijethunge’s carer responsibilities.
On the other hand, it is the respondent’s position that it was supportive of and sympathetic to Ms Wijethunge’s responsibilities allowing her carer’s leave on 19 March 2015; 8 April 2015; 4 June 2015; 5 June 2015 for 3.5 hours; 9 June 2015 for 3 hours and on 10 June 2015.[17]
[17] See affidavit of Ms Walkinshaw filed 4 August 2016 at paragraph 162.
Rather, it is the evidence of Ms Campbell and Ms Walkinshaw that, from April of 2015 onwards, they began to have significant reservations that Ms Wijethunge did not have the necessary skills to acquit her role as a fixed asset accountant and was not coping with the demands of her position.
It is their evidence that these concerns coalesced following the performance review meeting of 19 June 2015 after which it was their perception that Ms Wijethunge’s work performance and attitude further deteriorated.
It is the evidence of both Ms Walkinshaw and Ms Campbell that there was no explicit or tacit direction that Ms Wijethunge should work significant hours of additional duties, for which she was not remunerated. In these circumstances, both testify as to being astonished and disturbed on learning that Ms Wijethunge was apparently working such excessive hours from home.
In these circumstances, it became apparent to them that Ms Wijethunge was simply not coping with the demands of the position, in the normal hours in which it was anticipated those duties would be discharged and therefore her termination, during the probationary period, was justified on performance grounds.
Ms Campbell, as corporate accounting manager was the applicant’s direct line manager from April of 2015 onwards, when she returned from maternity leave. Prior to this time, Ms Campbell’s role was undertaken by Paul Harrison, who became taxation manager, when Ms Campbell returned from maternity leave. As previously indicated, Mr Harrison was part of the interview panel, which approved Ms Wijethunge’s employment.
At relevant times, both Ms Campbell and Mr Harrison reported to Ms Walkinshaw, who was the general manager, corporate accounting for the respondent. Ms Walkinshaw did not have authority to terminate the employment of any person within the accounting team. This authority lay with Andrew Bishop, who at relevant times was the chief financial officer of the ARTC and so responsible for 70 employees within the ARTC finance team.
It is Ms Walkinshaw’s evidence that she recommended to Mr Bishop that Ms Wijethunge’s employment be terminated and, on her advice, Mr Bishop made the necessary decision on 29 June 2015. In these circumstances, Mr Bishop is to be regarded as the ultimate decision-maker so far as issues to do with termination of Ms Wijethunge’s employment, with the respondent, are concerned.
It is the evidence of both Mr Bishop and Ms Walkinshaw that the formal letter terminating Ms Wijethunge’s employment was drafted by a person within the HR department of the respondent, which dated the letter in error. For reasons, upon which I will elaborate in due course, it seems more probable that the date was an administrative error rather than providing evidence of a premediated plan to terminate Ms Wijethunge without proper cause.
The evidence
Ms Wijethunge was the only witness called in the applicant’s case. Ms Wijethunge relied on the following document:
i)An affidavit of herself filed on 20 July 2016.
The respondent called each member of the management team who had made decisions in respect of Ms Wijethunge’s employment and interacted with her from 3 February 2015 until her determination on 29 June 2015. In these circumstances, the ARTC relies on the following documents:
i)An affidavit of Edith Campbell, filed 4 August 2016;
ii)An affidavit of Paul Harrison filed, 4 August 2016;
iii)An affidavit of Ngaire Walkinshaw, filed 4 August 2016;
iv)An affidavit of Andrew Bishop, filed 4 August 2016.
In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observations of the demeanour of each of the witnesses concerned.[18] I have tried to reach my conclusions as to credibility and reliability, on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[19]
[18] See Evidence Act (1995) (Cth) at section 140
[19] See Fox v Percy (2003) 214 CLR 118 at 129 [31] per Gleeson CJ, Gummow & Kirby JJ
In addition, I bear in mind section 140(2) of the Evidence Act, which indicates that in applying this standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matters alleged.
For reasons on which I will elaborate when considering the legal considerations applicable to the case, the central evidentiary issue arising for the court is why the relevant decision-makers, within the ARTC, decided to terminate Ms Wijethunge’s employment and whether it was for a reason prescribed by the FWA.
Necessarily, this task will involve the court’s assessment of the credibility of Ms Wijethunge on the one hand and the various witnesses of the ARTC on the other, particularly in regards to the following issues:
·did the ARTC have reason to question the professional capacity of Ms Wijethunge, during her probationary period;
·was Ms Wijethunge directed, either explicitly or implicitly, to perform significant unpaid overtime, from April/May 2015 onwards, which was outside the ostensible parameters of both her employment agreement and the applicable workplace agreement;
·were Ms Walkinshaw and Ms Campbell aware that Ms Wijethunge was apparently performing significant overtime prior to 26 June 2015;
·what did Ms Campbell intend to convey in the email exchange between her and Ms Wijethunge, which commenced on 26 June 2015;
·what occurred, in the workplace, vis-à-vis Ms Wijethunge and ARTC management, following the meeting of 19 June 2015;
·what was the substantial and operative reason for Ms Wijethunge’s dismissal.
In her affidavit material and related oral submissions, Ms Wijethunge has attested to her pride in her professional qualifications and her achievement as an accountant, since she commenced employment, in Australia, in 2001. I accept that Ms Wijethunge was anxious to succeed in her position at the ARTC and committed herself whole-heartedly to her role as a fixed asset accountant.
As such, it was a cause of grave disappointment and shock, which persists to this day, for Ms Wijethunge, when she was terminated from her position by the ARTC. In these circumstances, after working very hard to secure the position and succeed in it, I accept that Ms Wijethunge feels shabbily treated by the ARTC, particularly as she perceives that she was not given an adequate opportunity to prove herself in the role.
In addition, I accept that Geshan is significantly disabled and, as a consequence, requires significant levels of care and extraordinary devotion by both his parents. In these circumstances, Ms Wijethunge is entitled to be proud of her achievements in combining onerous career and caring obligations, over many years.
As a consequence of these matters, it is only to be expected that Ms Wijethunge would feel aggrieved at her dismissal from the ARTC and perceive that she was not given an adequate opportunity to present her case to retain her position.
At this stage, it is appropriate to point out that these proceeding are not a generic inquiry into the fairness or overall probity of the process which led to Ms Wijethunge’s termination. In particular, I am not inquiring into whether the decision of the ARTC to terminate Ms Wijethunge’s employment was procedurally fair or the correct one. This is not a broad inquiry as to whether Ms Wijethunge has been “subjected to a procedurally fair or substantially unfair outcome.”[20]
[20] See Ermel v Duluxgroup (Australia) Pty Ltd (No2) [2015] FCA 17 at [48] per Bromberg J
Rather, it must also be borne in mind that the issue, in an adverse action claim, arising under Part 3-1 of the FWA, 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[21]
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[22] 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. ...”
[21] Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740 at [16]
[22] Khiani v Australian Bureau of Statistics [2011] FCAFC 109 per Gray, Cowdroy & Reeves JJ
In this particular case, the ARTC accepts that it took adverse action against Ms Wijethunge, when she was dismissed from its employ. The ARTC also accepts that Ms Wijethunge was, at material times, Geshan’s carer. Accordingly, although the expression carer’s responsibilities, arising in section 351(1) of the Act is not expressly defined in the FWA, Ms Wijethunge did have such responsibilities for Geshan and accordingly the applicant possessed the protected attribute arising under the section.
However, it is the ARTC’s position that the applicant was not terminated because of any alleged workplace right or because of her carer responsibilities. In addition, it denies that Ms Wijethunge was directed to perform overtime, on the weekend of 27 & 28 June 2015. Accordingly, it refutes that any workplace right pertaining to Ms Wijethunge’s entitlement to decline such overtime has been infringed.
The onus is on the ARTC to establish why it terminated Ms Wijethunge’s employment. As befits experienced professional and managerial witnesses, Ms Campbell, Ms Walkinshaw, Mr Harrison and Mr Bishop each presented as a polished and confident witness. They each gave their evidence logically and coherently. Significantly, each was able to muster relevant documentary evidence to support their respective recollection of material events. I assess each to be credible.
On the other hand, I found salient aspects of Ms Wijethunge’s evidence to be improbable, particularly in respect of issues to do with areas of controversy regarding her professional expertise and particularly what was expected of her in respect of working additional hours to complete end of year tasks, so far as the fixed asset register, was concerned. In respect of these matters, in general terms, I find the various ARTC witnesses, who are consistent with one another, to be reliable and credible ones.
In Hadgkiss v Sunland Constructions Pty Ltd & Ors[23] Kiefel J summarised the considerations relevant to establishing facts, on the balance of probabilities, in civil proceedings, particularly those involved in civil penalty proceedings. Her Honour indicated as follows:
·The strength of the evidence necessary to establish a fact or facts, on the balance of probabilities, may vary according to the nature of what it is sought to be proved;
·The conventional perception is that people do not ordinarily engage in conduct prescribed by legislation and, as such, a court should not lightly make a finding to this effect, in civil litigation.
[23] Hadgkiss v Sunland Constructions Pty Ltd & Ors (2007) 158 FCR 193 at 195 [11]
The evidence of both Ms Campbell and Ms Walkinshaw, which I accept, is that they found it extraordinarily difficult to reach the decision that, as Ms Wijethunge’s employment was not working out, either for her or the ARTC, it was for the best, for all concerned, that it be terminated.
In this context, I found both to be conscientious and punctilious managers, who would be mortified at any perception that they had not discharged their professional responsibilities, other than in a manner which was entirely legally appropriate. As such, in the terms identified by Kiefel J, it is not a light matter to find that they have behaved with any sort of impropriety towards Ms Wijethunge.
In addition, I accept their evidence that they felt sympathetically disposed towards Ms Wijethunge, particularly when it became apparent to them that she was greatly distressed that the position was not working out as had been hoped. On a number of occasions, when Geshan was ill, Ms Campbell indicated her concern for Ms Wijethunge and urged her to prioritise his needs over work matters.
In these circumstances, I accept that neither Ms Campbell nor Ms Walkinshaw is to be regarded as a capricious or arbitrary decision maker or one who was insensitive to the personal circumstances of Ms Wijethunge. Nor is Mr Bishop, who acted on their advice.
In my view, all concerned discharged their responsibilities carefully and sensitively, so far as Ms Wijethunge is concerned. In all these circumstances, in respect of matters of controversy, particularly in respect of issues to do with Ms Wijethunge allegedly working overtime, I find their evidence to be preferable to that of the applicant.
The legal principles applicable
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.
In addition, pursuant to section 351(1) of the FWA:
(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.
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
As previously indicated, Mr Manos, counsel for the ARTC concedes that his client took adverse action against Ms Wijethunge, within the meaning of the Act, when it terminated her employment. It is also conceded that because of Geshan’s significant special needs, Ms Wijethunge had carer’s responsibilities.
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 suffered by the holder of the relevant workplace right. The expression workplace right is defined by section 341(1) of the FWA;
(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.
Section 12 of the Act defines workplace law and workplace instrument. Relevantly, workplace law means the FWA itself or any other law of the Commonwealth or a State, which regulates the relationships between employers and employees (including by dealing with occupational health & safety matters). A workplace instrument is any document made pursuant to a workplace law, which concerns the relationship between employers and employees.
Ms Wijethunge must establish what is the specific workplace right alleged to have been breached by the ARTC, which has led to her termination. It is the position of the ARTC that she has not done so. It denies that the applicant was asked to work overtime on the relevant weekend and, as there was no request, there could be no refusal and therefore no transgression of any workplace right applicable to the applicant.
Similar considerations arise in respect of Ms Wijethunge’s claim of adverse action on the basis of unlawful discrimination. Ms Wijethunge must establish that her employment was terminated because of her protected attribute as a carer.
Given the structure of section 340, the central evidentiary issue in the case is the reason or reasons why the ARTC acted in the manner in which it did, in respect of matters relevant to Ms Wijethunge’s employment.
Was its actions taken for illegal reasons or legitimate ones, relating to the operation of its business, particularly in respect of its views regarding the professional capacity of the applicant. Necessarily, this issue involves an examination of why particular decision makers, at the ARTC, did what they did.
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.
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.
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.
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, after the applicant in question has established the existence of a workplace right pertaining to him or her. If this onus is not discharged, it is to be assumed that the action in question was taken for a prohibited purpose.
Collier J in Jones v Queensland Tertiary Admissions Centre Limited (No 2)[24] 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).
[24] Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399 at [10]
In the case of Ms Wijethunge’s complaint regarding adverse action arising from a workplace right, it is the submission of Mr Manos that, in objective terms, the applicant has not established any transgression of any identified workplace right. As a consequence the ARTC is not subject to the reverse onus arising under section 361(1).
Mr Manos does, however, accept that Ms Wijethunge has the attribute of a carer and she was subject to adverse action. Accordingly, in these circumstances, Mr Manos accepts that the onus is on his client to establish why Ms Wijethunge’s employment was terminated, particularly that it was not for a reason related to her responsibilities to provide care for Geshan.
In Bendigo Regional Institute of Technology and Further Education v Barclay & Anor[25] the High Court, in the context of section 346 of the Act, which provides protection for employees against adverse action motivated by an employer in respect of industrial activities, discussed the application of the onus arising under section 361. In the case, Gummow and Hayne JJ said as follows:
“In determining an application under s 346 [it is necessary to] 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.”[26]
[25] Board of Bendigo Regional Institute of Technology and Further Education v Barclay [No1] (2012) 248 CLR 500
[26] Ibid at 542[127]
French CJ & Crennan J said as follows in respect of the onus:
“There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?
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.”
Ms Wijethunge’s case is posited on the basis that, at relevant times, she was the carer of a disabled child, which necessarily placed significant demands on her time, whilst at the same time she was holding down a demanding professional position, which similarly demanded much of her attention. As such, she contends that the realisation, by the ARTC, of these competing factors in her life must have influenced in some, perhaps amorphous way, its decision to terminate her employment.
In Barclay Heydon J expressly prohibited the court from attempting to illicit any unconscious reason as to why an employer took the particular adverse action in question. His Honour rejected any notion that there could be a difference between “what actuated the conduct in question and what the person in question thought he or she was actuated by.”[27]
[27] See Board of Bendigo Regional Institute of Technical and further Education v Barclay & Anor [1] (2012)248 CLR 500 at 545-6 [144]
Construction, Forestry Mining & Energy Union v BHP Coal Pty Ltd [28] concerned a more nuanced or potentially ambiguous factual situation, which raised issues relating to the nexus between the actions of a decision maker and the purported rationale for the impugned decision. It was also a case concerned with an allegation of adverse action taken in contravention of general protection, arising under section 346, which relates to industrial organisation and activity within the workplace.
[28] Construction, Forestry Mining & Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243at [19] per French CJ and Kiefel J
The case was concerned with the actions of a decision-maker, who had terminated the employment of a person, a long standing union member, who had held up a sign bearing the word scab during an industrial demonstration outside a workplace. It was the evidence of the decision-maker concerned that the use of the word scab, on the placard in question, offended a workplace conduct policy and the employer’s charter of values. On this basis, the employee was dismissed.
In BHP Coal Pty Ltd[29] French CJ and Kiefel J said as follows:
“Section 346 does not direct a court to enquire whether the adverse action can be characterised as connected with the industrial activities which are protected by the Act. It requires a determination of fact as to the reasons which motivated the person who took the adverse action.”
[29] Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd (supra) at 252 [19]
In Shortv Ambulance Australia[30] the Full Court of the Federal Court (Dowsett, Bromberg and Murphy JJ) provided an erudite and useful summary, in respect of the application of section 361 and the authorities which relate to it, as follows:
When an employee alleges that an employer has taken action against him or her because the employee exercised a workplace right s 361 casts the onus on the employer to “prove otherwise”. Under s 360, while there may be multiple reasons for an employer to have taken the adverse action, the employer takes action for a prohibited reason if the reasons for the action include that reason. The rationale for the presumption was explained by Mason J in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 617 per Mason J as being to throw on to the employer the onus of proving that which lies peculiarly within its own knowledge (cited with approval in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [50] (French CJ and Crennan J)).
Where adverse action is taken by one person against another, the task of a court in a proceeding alleging contravention of s 340 or s 351 is to determine why the person took the adverse action and to ask whether it was for a prohibited reason or reasons which included a prohibited reason (Barclay at [5], [44] per French CJ and Crennan J). The question is whether a prohibited reason was a “substantial and operative” reason for the respondent’s action (Barclay at [104] per Gummow and Hayne JJ, see also [59] per French CJ and Crennan J). The relevant inquiry is therefore into the “particular reason” of the decision-maker for taking action (Barclay at [42] per French CJ and Crennan J, [102] per Gummow and Hayne JJ), which is a determination of fact to be made by the court taking account of all the facts and circumstances of the case and available inferences (Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 88 ALJR 980 at [7] per French CJ and Kiefel J, Barclay at [45] per French CJ and Crennan J, [79] per Gummow and Hayne JJ).
To displace the presumption created by s 361 in light of the effect of s 360, the respondent must prove that its conduct was not motivated in whole or in part by the prohibited reason alleged. A failure to displace the presumption enables the allegation by an applicant of adverse action for a prohibited reason to stand as sufficient proof of that fact: Davids Distribution Pty Ltd v National Union of Workers (1991) 91 FCR 463 at [109] per Wilcox and Cooper JJ.
[30] Shortv Ambulance Australia [2015] FCAFC 55 at [54] – [56]
In summary, the following principles can be gleaned from the authorities outlined above:
·The central question, as to why adverse action was taken, is neither objective nor subjective. It is a question of fact;
·This question is to be answered by reference to all the facts established in the case;
·The court is required to determine the actual reason or reasons which motivated the decision-maker. As such, it is not to be distracted by suggestions that some proscribed reason has subliminally or subconsciously influenced the decision in question;
·The effect of section 361 is to place an onus on the relevant respondent to establish that a proscribed characteristic was not a substantial and operative factor for the adverse decision in question;
·As such, it will usually be necessary, for the statutory onus to be displaced, for the relevant decision-makers concerned to provide evidence;
·If the evidence of the decision-maker(s) concerned is accepted as being reliable, it will discharge the onus imposed by section 361.
As previously indicated, proceedings under Part 3-1 of the Act, are not analogous to unfair dismissal proceedings or judicial review of administrative decisions. As such, the court should not be distracted by issues such as the overall fairness of the decision in question or whether it was based on flawed information. In particular, the court’s function is not to determine whether the outcome was procedurally or substantially unfair.
Chronology and findings
Ms Wijethunge commenced work at the ARTC on 3 February 2015. As previously indicated, her employment was subject to a six month probationary period. In the first week of her employment, Ms Wijethunge sent an email to Mr Harrison requesting that she be permitted to work “flexible hours”.
Ms Walkinshaw confirms that it is ARTC policy to be flexible in its stipulation of working hours for employees. Accordingly, Ms Wijethunge was permitted to work from 7:30am until 4:00pm from Monday to Friday, with a half hour lunch break. It is Ms Walkinshaw’s recollection that, during her employment interview, Ms Wijethunge did not allude to her responsibilities in respect of Geshan. In my view nothing turns on this.
Mr Bishop is the chief financial officer for ARTC. He is the direct manager of Ms Walkinshaw, who is the general manager of corporate accounting. Mr Bishop manages over 70 employees. He had very little to do with the applicant during the period of her employment with ARTC. He was not involved in the interview process, which led to Ms Wijethunge’s appointment. As such, he was unaware of her home situation or of her carer responsibilities for Geshan.
Ms Campbell is a manager within the corporate accounting section. She reported to Ms Walkinshaw, whose position is described as general manager, corporate accounting. Ms Campbell was the direct line manager for Ms Wijethunge. Ms Campbell was not directly involved in the interview process, which led to the recruitment of Ms Wijethunge, as she was on maternity leave at the time. She returned to work on 13 April 2015.
Mr Harrison is currently a taxation manager at ARTC. At relevant times, he held Ms Campbell’s position, whilst she was on maternity leave. As such, he was involved in the recruitment of Ms Wijethunge, in conjunction with Ms Walkinshaw. He reported to Ms Walkinshaw, whilst he supervised the applicant.
Both he and Ms Walkinshaw depose that the topic of Ms Wijethunge’s carer responsibilities for Geshan was not raised at the interview. It is Mr Harrison’s evidence that, at interview, Ms Wijethunge struggled to explain some relevant concepts of fixed asset accounting but she was regarded by him and Ms Walkinshaw to be the best candidate.
Mr Harrison supervised Ms Wijethunge from early February until mid-April of 2015. It is Mr Harrison’s evidence, which I accept, that initially Ms Wijethunge was called upon to do accounting work relating to ARTC’s budget and analysis of its finances. The more onerous responsibilities of a fixed asset accountant, at the respondent, relate to year end work, which begins in mid-April and continues through to July each year.
It is the tenor of Ms Campbell’s evidence and that of Mr Harrison and Ms Walkinshaw that, as the fixed term accounting team came under more pressure with having to deal with its year end responsibilities, it became apparent to management that Ms Wijethunge did not have the relevant skills to deal with this aspect of her position, which the ARTC regarded as being a core part of her responsibilities. This is a fundamental aspect of their evidence, which I accept.
Ms Wijethunge was assisted in her work by Mr Nathan Joyce. Mr Joyce is described as an assistant fixed asset accountant. In general terms, Ms Wijethunge was expected to oversee his work, as she was superior to him and was paid more as a consequence. Mr Joyce had been employed at ARTC prior to Ms Wijethunge’s commencement.
Initially, Ms Campbell regarded Ms Wijethunge’s work, in respect of budgeting, to be generally of a high standard. It is Ms Wijethunge’s evidence that she received positive feedback from Ms Walkinshaw and Mr Harrison at a meeting, which was held in early April 2015. From her perspective, this indicates that approximately 50% of her probation period was completed successfully.
In April of 2015, I accept that emphasis in the fixed term accountancy section shifted onto year end work. In general terms, Ms Wijethunge was required to supply ARTC’s auditors with examples of addition and disposal of assets to the fixed asset register for audit purposes. Given the nature of ARTC’s business – the management of rail assets – this was a fundamental part of its business. Mr Joyce, under Ms Wijethunge’s supervision, was responsible for preparing reconciliation statistics for review by these auditors.
Ms Wijethunge is generally critical of the level of Mr Joyce’s professional skills and his attitude for the work in the fixed asset team. It is her position that she was called upon to do more and more of Mr Joyce’s work because of his ineptitude and this had implications for her own work performance. She is critical that management did not take her concerns about Mr Joyce seriously. Mr Harrison and Ms Campbell do not agree.
Mr Harrison deposed that Mr Joyce, in his view, had “stepped up a lot” in the fixed asset team. He also asserts that he became concerned that Ms Wijethunge did not understand some core concepts regarding fixed asset accountancy. It is Ms Campbell’s evidence that she observed that Mr Joyce was “providing Ms Wijethunge with lots of advice and guidance about accounting processes. This surprised me, as Ms Wijethunge was the senior member of the fixed asset team.”
In this context, it is Ms Campbell’s evidence that she too became concerned about some aspects of Ms Wijethunge’s work with the external accountants. In particular, she became concerned that Ms Wijethunge was not able to describe accurately the information which she had provided to the external auditors for the year end soft audit.
In this context, I accept that Ms Campbell informed Ms Wijethunge of the importance of this aspect of her work, from the perspective of the ARTC. Accordingly, it is my finding that both Mr Harrison and Ms Campbell had some concerns about Ms Wijethunge’s professional capacity, in the context of year end fixed asset accounting from mid-April of 2015 onwards and Ms Campbell informed Ms Wijethunge of those concerns, emphasising to her the need for accuracy in her accounting practices.
It is Ms Campbell’s further evidence that, later in April 2015, another set of external auditors, who were examining matters relating to information technology, came across an error in the formulae utilised in the fixed asset register. It is Ms Campbell’s evidence that this particular spreadsheet had been reviewed by Ms Wijethunge prior to the audit concerned. As such, she was disappointed that Ms Wijethunge had not identified it.
Again, from Ms Campbell’s perspective, this was a significant error, which should have been identified by Ms Wijethunge. She raised the error and the concerns surrounding its oversight with Ms Walkinshaw. In these circumstances, I do not accept Ms Wijethunge’s evidence that she never had any performance issues raised with her, by Ms Campbell, prior to 19 June 2015. It is likely that Ms Campbell raised her concerns with Ms Wijethunge tactfully, but this does not mean that she did not raise them or refer them on to her direct supervisor, Ms Walkinshaw.
It is Ms Campbell’s evidence, which I accept, that one of the roles of the fixed asset accountant, at ARTC, was to run regular update meetings with the entirety of the financial services team to update that side of the business about the importance of fixed assets and their financial treatment in an accountancy sense.
This had both an educatory role for the rest of the business about what the fixed asset team did, as well as raising the profile of the team generally. I accept that, from the perspective of Ms Campbell, this was an important aspect of the role of the fixed asset accountant.
One such meeting was scheduled for 28 April 2015, which Ms Wijethunge was expected to chair and generally direct so far as the meeting’s agenda was concerned and the speaking points to be raised in it. Ms Campbell describes the meeting as follows:
“I attended the fixed asset meeting which was to be run by Ms Wijethunge. I considered that the meeting was a disaster. It was clear to me that Ms Wijethunge had not prepared for the meeting. The agenda was circulated late and no material had been prepared. Ms Wijethunge clearly had not prepared herself to lead the discussion. At times, I observed Ms Wijethunge to simply be silent.” [31]
[31] See Ms Campbell’s affidavit filed 4 August 2016 at paragraph 60
I accept Ms Campbell’s evidence that the meeting was highly embarrassing to her personally, particularly as during it Ms Wijethunge indicated that she was not a fixed asset accountant. From Ms Campbell’s perspective, this comment was mortifying, as this was in fact what Ms Wijethunge had been employed to do. From Ms Campbell’s perspective, the comment made it appear to the financial services team that her team did not know what it was doing.
As a consequence of the meeting, Ms Campbell, in conjunction with Ms Walkinshaw, decided to defer all future fixed asset meetings. As a consequence, Ms Campbell had a conversation with Ms Wijethunge, in which she advised Ms Wijethunge that she needed to focus on her preparation for such meetings in future.
It is the tenor of Ms Wijethunge’s evidence that, due to the deficiencies of Mr Joyce, which were well known to management at the ARTC, she was called upon to do many additional hours of work. It is her case that these extra hours were not what she was directly employed to do but came about because she was compelled to support Mr Joyce in completing his year end work.
In this context, Ms Wijethunge has deposed that she advised Ms Campbell that she could not do the additional hours of work required of her in the office at ARTC but would work from home. As a consequence, Ms Wijethunge asserts that Ms Campbell organised a work laptop for her so that she could work from home.
Ms Campbell agrees that she authorised Ms Wijethunge to have a laptop, which she could take home with her. However, from Ms Campbell’s perspective, the approval of the laptop was to allow Ms Wijethunge flexibility in how and where she did her work. Ms Campbell categorically denies that there was any formal direction given to Ms Wijethunge that she had either to cover for Mr Joyce or directly do up to 10 hours extra overtime per week in respect of his work.
The use of the laptop for Ms Wijethunge was not formally minuted. It was Ms Campbell’s evidence that she did not regard the provision of the laptop to be a significant matter. From her perspective, it was appropriate that a senior accounting person have access to a laptop so that he or she could access files readily. I accept this evidence. The provision of the laptop did not come with any direction to Ms Wijethunge, either implicit or direct, that she was expected to use it to do a significant number of hours of unpaid overtime.
It is Ms Campbell’s evidence that there was a general expectation, within the fixed asset team, that end of year work would be done in conjunction with the end of the financial year and this would necessarily result in the team working longer than it ordinarily did in the remainder of the year.
It was part of the nature of the business that the end of year work was crucial and had to be completed around the end of the financial year. This meant everyone had an expectation that they would be busy because this work could not be deferred. I accept that this was recognised as being part of the ebb and flow of work within the section, with the earlier and later part of the calendar year being generally quieter and the nature of the accounting work required different.
However, I also accept Ms Wijethunge’s evidence that there was no specific directive given to Ms Wijethunge (or anyone else) that she personally had to work around 25% unpaid overtime in addition to her other hours of work. In particular, I accept that relevant management within the ARTC were aware that May/June would be busier for the fixed asset team but had an expectation that this increased workload would be accommodated by the team with a little give and take.
In fact, the team prior to the arrival of Ms Wijethunge had been increased in number. Previously only one accountant had the role of fixed asset accountant. The position was divided into two between Ms Wijethunge and Mr Joyce. This is important, as a consequence of what transpired later, in June of 2015, when Ms Campbell and Ms Walkinshaw became aware that Ms Wijethunge was in fact working to an extent much greater than the ordinary hours of work specified in the relevant workplace agreement.
At best, I consider that there was some significant level of miscommunication between Ms Campbell and Ms Wijethunge about how the end of year work was to be accomplished. More likely, it seems to me, that Ms Wijethunge was struggling with this aspect of the work and was of her own volition performing more and more of it outside working hours, without the knowledge of her immediate supervisors.
The evidence available to me indicates that Ms Wijethunge’s requests to take carer’s leave for Geshan were sympathetically viewed by Ms Campbell and universally granted. In particular, on 15 May, Ms Campbell received an email from Ms Wijethunge informing her that Geshan was unwell and seeking her approval to work from home.
Ms Campbell responded to this request promptly, reassuring Ms Wijethunge that her responsibilities for Geshan were to take priority over work. Ms Wijethunge responded with “thanks” indicating that she was trying her best to balance.
The one exception to the universal approval of Ms Wijethunge’s carer’s leave applications concerns her application to take carer’s leave in advance of taking it. Ms Campbell consulted with Ms Walkinshaw in respect of the issue and was told that carer’s leave could not be booked in advance and, as such, Ms Wijethunge should take annual leave.
It is Ms Walkinshaw and Ms Campbell’s evidence that they had initially misunderstood the provisions of the award relating to carer’s leave and subsequently Ms Walkinshaw accepted that her advice had been mistaken. I accept that this was the case and can understand why there could have been a misconception about the issue. In my view, there is nothing untoward about the matter. In any event, Ms Wijethunge was able to take carer’s leave for the day sought.
It is Ms Walkinshaw’s evidence that she was embarrassed that she had initially given Ms Campbell incorrect advice in the light of what she subsequently learnt from the HR team at ARTC. In these circumstances, she took it upon herself to personally apologise to Ms Wijethunge. I accept her evidence that she spoke to Ms Wijethunge with the following effect:
“As a senior employee, you can manage your own leave, including annual, carer’s and sick, as a pool. Whenever you need leave to care for your son, you should always take it.”[32]
[32] See Ms Walkinshaw’s affidavit filed 4 August 2016 at paragraph 93
In my view, this statement encapsulates the general attitude of both Ms Walkinshaw and Ms Campbell to Ms Wijethunge’s need to take leave to attend to Geshan’s needs. They were both sympathetic and supportive of those needs. In this context, I reject any implied assertion that they formally said one thing, whilst actually doing another.
In addition, I accept that Ms Wijethunge was treated as a senior executive at ARTC, who could be trusted as to where and how she did her work. As such, it was expected that she would be able to accomplish her duties within the time parameters envisaged in the workplace agreement with a few limited exceptions related to the specific pressures of the business.
It is Ms Campbell’s evidence that, as the end of the financial year approached, the professional pressures on the fixed asset team intensified, which in turn caused an escalation in her concerns that Ms Wijethunge was not discharging her responsibilities, as had been anticipated. Essentially, Ms Campbell began to consider that Ms Wijethunge did not have the necessary skills and experience to make the correct accountancy decision quickly and without recourse to others within the team.
Ms Campbell deposes that, throughout June, the need for Ms Wijethunge to make challenging accounting decisions became more regular and more important. The number of fixed asset additions increased and these needed to be accurately recorded. It is the tenor of Ms Campbell’s evidence that as the year end approached, it became more and more apparent that Ms Wijethunge was struggling with the position.
In mid-June of 2015, it is Ms Walkinshaw’s evidence that she was approached by Mr Joyce, who complained to her that Ms Wijethunge was micro-managing his work and asking him questions, which he perceived Ms Wijethunge should have had the expertise to answer herself rather than having to come to him.
Mr Joyce further complained that he had been forced to go to Ms Campbell, with his work queries, rather than to Ms Wijethunge, who was his direct supervisor. In these circumstances, Mr Joyce indicated to Ms Walkinshaw that he was feeling frustrated and concerned that the fixed asset department was not getting enough work done.
At this time, Ms Campbell deposed that she found one of Ms Wijethunge’s spreadsheets to contain a number of errors, which she (Ms Campbell) considered to be basic. When challenged, Ms Wijethunge dismissed Ms Campbell’s concerns as being trivial, as the statement concerned was only out by a dollar. From Ms Campbell’s perspective, this missed the point, as the spreadsheet needed to reconcile exactly as the items raised in it would otherwise remain outstanding from an accounting perspective, which would be a problem at audit.
Ms Campbell deposes as follows, in respect of her perception of Ms Wijethunge’s work performance at this time:
“Ms Wijethunge continued to have real problems when weighing up considerations and making financial decisions. I also observed that Ms Wijethunge was skipping me and going straight to Ms Walkinshaw to have her worked reviewed or ask questions. This was not appropriate.”[33]
[33] See Ms Campbell’s affidavit filed 4 August 2016 at paragraph 99
These concerns led to Ms Walkinshaw scheduling a meeting with Ms Campbell and Mr Harrison to discuss Ms Wijethunge’s work performance. These concerns centred on Ms Wijethunge’s relationship with Mr Joyce; how effectively Ms Wijethunge communicated with others in the business about her professional role; and the rationale adopted by her (Ms Wijethunge) for making particular accountancy decisions, in the context of the fixed asset register.
In mid-June of 2015, I accept Ms Walkinshaw’s evidence that she formed the view that Ms Wijethunge was not performing in her role as financial accountant fixed assets. She reached this view because of issues raised with her by Ms Campbell, Mr Harrison and Mr Joyce.
In addition, she had had her own experience of what she regarded as a professional shortcoming of Ms Wijethunge, when she had not been personally able to categorise an item of capital expense, which Ms Walkinshaw regarded to be an elementary aspect of fixed asset accounting.
In all these circumstances, Ms Walkinshaw determined to confer with the HR department regarding what should occur in respect of Ms Wijethunge’s ongoing employment. Ms Walkinshaw was advised by the HR advisor to convene a meeting with Ms Wijethunge and Ms Campbell to discuss the former’s performance in the workplace.
This meeting was scheduled for 19 June 2015. The parties have different views as to the nature of this meeting – whether it was a performance review or a probation review. In my view, not a great deal turns on this distinction. I am satisfied that the focus of the meeting was on perceived shortcomings in Ms Wijethunge’s work performance and how these could be rectified.
From Ms Walkinshaw and Ms Campbell’s perspective, the emphasis in the meeting was on Ms Wijethunge’s communication skills, her technical capacity and how she supported her team. In this context, I accept Ms Walkinshaw’s evidence that she said to Ms Wijethunge words to the effect of “We think there is a technical gap, we don’t feel like you’re understanding them or developing them.” This was said in respect of a discussion regarding how an asset should be classified for accounting purposes.
From Ms Walkinshaw and Ms Campbell’s perspective, the meeting was a tense and unhappy one. They did not raise any issues regarding either Ms Wijethunge working extra hours or being expected to. From their perspective, the problem in the fixed asset team did not centre on the logistics of the time available to do the job, rather it turned on Ms Wijethunge’s technical abilities to make the correct accounting judgement. However, they acknowledge that Ms Wijethunge did obliquely raise the issue of extra hours with them.
Ms Wijethunge asked how many extra hours her predecessor in the role had been working. Ms Campbell replied to the effect that it had been “maybe 10 extra hours”. However, she also indicated that this was prior to the role being split between Ms Wijethunge and Mr Joyce. In addition, during her oral evidence, Ms Campbell indicated that the person concerned had been something of an eccentric with a pedantic and perhaps obsessive interest in fixed asset accounting. As such, she regarded it as being a particular peccadillo of the individual concerned that he relished being at his desk.
Both Ms Campbell and Ms Walkinshaw vehemently refute any suggestion that there was any specific discussion about the requirement for Ms Wijethunge personally to work additional hours, as her predecessor had done, or that she was given any indication that she was required to do so.
Both Ms Wijethunge, on the one hand and Ms Campbell and Ms Walkinshaw on the other agree that there was some discussion about the applicant’s strengths in the workplace, which included her strong work ethic and good analytical skills, in respect of reporting and budget – the duties which she discharged in the early part of her probation. However, in my view, the meeting was clearly a difficult one, with areas regarding Ms Wijethunge’s competence remaining at large from management’s perspective, particularly in the context of year end work.
Ms Walkinshaw ended the meeting with words to the effect of “let’s give it three weeks and see how you’re progressing.” Thereafter, Ms Walkinshaw and Ms Campbell have slightly differing views as to Ms Wijethunge’s response. Ms Walkinshaw believes that Ms Wijethunge said words to the effect of “if you think you don’t want to retain me, tell me, I don’t want to waste my time here, tell me straight away.”
On the other hand, Ms Campbell recollects Ms Wijethunge saying words to the effect of:
“I’ve already put in a whole pile of effort, I don’t want to put in more effort if it’s not going to work.”
However, I accept Ms Wijethunge’s evidence that there was no clear decision regarding whether her probation would be regarded as successful or otherwise. In this context, it was agreed that Ms Wijethunge and Ms Campbell would meet every few days. Ms Wijethunge describes these as mentoring meetings; Ms Campbell as feedback sessions, to discuss technical standards.
What is clear to me is that it was apparent that management raised a number of serious concerns with Ms Wijethunge regarding her technical accountancy skills. As such, she was not given to understand anything other than that her probation was in doubt.
In addition, I accept that there was no direct discussion about overtime or any raising of issues, either directly or indirectly by anyone at the meeting, including Ms Wijethunge about her carer’s responsibilities and their interface with her work responsibilities.
It is Ms Campbell’s evidence that, following this meeting, relations between her and Ms Wijethunge became increasingly strained, particularly in the context of Ms Campbell attempting to give Ms Wijethunge technical feedback about accountancy issues. There was one such session on 24 June.
It is Ms Campbell’s evidence that she believed Ms Wijethunge was defensive and argumentative in this feedback session. Ms Wijethunge was also critical of Mr Joyce’s performance, which Ms Campbell regarded as unwarranted. Ms Campbell acknowledges that Ms Wijethunge did ask of her, at this meeting, in words to the effect of “How is my performance going?” To which she replied “It is too early to discuss this Shilandini.”
On 26 June 2015, at approximately 1:00pm, Ms Campbell and Ms Walkinshaw met to discuss progress since the meeting with Ms Wijethunge on 19 June 2015. At this meeting, Ms Campbell reported her impression that Ms Wijethunge seemed to be withdrawing from the team and to be disinterested in the work it was doing.
I accept the evidence of both Ms Campbell and Ms Walkinshaw that there was no discussion between them, at this meeting, regarding the performance of overtime work by Ms Wijethunge. Rather, I accept that the discussion was about Ms Wijethunge’s overall competence and her demeanour and attitude in the workplace. In fact, I accept that how much work Ms Wijethunge was or was not doing at home was not an issue which was on their radar at the time, as they were unaware of it.
In this context, I accept the tenor of Ms Walkinshaw’s evidence that she was shocked at the vehemence of Ms Wijethunge’s statement, at the conclusion of the 19 June meeting that she would not be willing to waste her time in the position, if she was not wanted.
Ms Walkinshaw summarised her perception of the situation, regarding the applicant’s situation in the fixed asset team, in the following terms:
·She was receiving almost weekly complaints, either individually or in combination, from Mr Joyce, Mr Harrison and Ms Campbell regarding Ms Wijethunge’s work performance;
·Year end was approaching and the fixed asset team was significantly behind. As such, she thought there was a serious risk that year end tasks would not be completed, if Ms Wijethunge remained in the fixed asset team;
·She, Ms Campbell and Mr Harrison were spending far too much time either directly supervising Ms Wijethunge or checking her work, rather than focussing on their own responsibilities;
·The professional relationship between Ms Wijethunge and Mr Joyce appeared to be completely dysfunctional;
·Given Ms Wijethunge’s attitude expressed at the end of the 19 June meeting and what had been reported to her by Ms Campbell, she was concerned in respect of Ms Wijethunge’s emotional status in the workplace;
·As a consequence of all these issues, from her perspective, the situation appeared to be untenable and incapable of being turned around.
As previously indicated, in determining why an employer elects to take adverse action against a particular employee, it is necessary to look at the actual motivation of the relevant decision maker or decision makers involved. It is in this context that the controversial exchange of emails between Ms Wijethunge and Ms Campbell, which commenced at 3.52pm on 26 June 2015, must be examined.
The first email of the chain emanated from Ms Campbell and was directed to Ms Wijethunge. I accept that this was a routine email from her perspective, completely without any ulterior purpose. It read as follows:
“Can I just check what your intentions are for overtime over this weekend/this evening?”
I accept Ms Campbell’s evidence that she did not regard this as a direction to Ms Wijethunge to work overtime. Rather, the email originated because Mr Joyce had indicated to Ms Campbell that he would be in the office, over the weekend, dealing with year end issues and Ms Campbell wanted to know if Ms Wijethunge had similar plans, in this regard. The question was asked because there were security issues relating to individuals being in the office at weekends and management wished to know.
A few minutes later, Ms Wijethunge sent Ms Campbell and email in the following terms:
“This week I have worked from home every day each night to catch up additional hours as you requested.
This week end I would not be able to week [sic] have family commitments. For your information whole last week end worked from home.”
I accept Ms Campbell’s evidence that she was both surprised and worried at the contents of this email. Surprised because she had not made any particular requests to Ms Wijethunge to work such overtime and worried at the extent of the hours apparently indicated, which Ms Campbell viewed as excessive.
In this context, at 3:56pm, Ms Campbell sent a brief response thanking Ms Wijethunge for the “update”. Thereafter, she discussed the issues raised by Ms Wijethunge with Ms Walkinshaw, who directed her to tell Ms Wijethunge to stop working from home forthwith. As a consequence, at 4:04pm, Ms Campbell wrote an email to Ms Wijethunge in the following terms:
“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.”
26 June 2015 was a Friday. The following Monday morning, at 8:20am, Ms Wijethunge sent Ms Campbell an email in the following terms:
“Since you asked me early May to work 10 plus additional hour and to borrow laptop from IT, I have been working from home.
Also due to the workload in our team for the year end to be completed, I am working on capitalisations and costs adjustment including follow up queries, therefore I am intending to continue working from home. Should you have any concern, please advise.”
At 9:02am, Ms Campbell replied to Ms Wijethunge in the following terms:
“I am concerned that the home working is proving not to be productive. There seems to be a lot of errors occurring and a lot of re-work 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 all.
If you wish to work from home, please provide me with details of what work you wish to undertake to discuss if it is a something that can be worked on from home. Any home working from now on will have to be explicitly agreed before occurring.”
On 9:42am on 29 June 2015, Ms Wijethunge replied to Ms Campbell in the following terms:
“With respect I have to disagree in this instant. All work I have done if you call had errors, seems to have not done any work. When I work from home, not work with the family around. I would not take journal description on a 900 line journal as an error, and this is purely my perspective. Also some processes I am still learning, that’s why comes through you.
And all of these as Nary and you mention short term to help out team.
Just for your information, this is not the first posting I have worked from home.”
In my view, this email exchange indicates that Ms Campbell and Ms Wijethunge were at complete cross purposes regarding the reasons for the provision of a laptop to Ms Wijethunge earlier in the year and their respective understanding of what was meant by the concept of “flexible hours”.
From Ms Campbell’s perspective, I accept that she wished Ms Wijethunge to be able to work, within reason, at home, whilst utilising the laptop. However, I accept that Ms Campbell did not envisage Ms Wijethunge working the hours, which she (Ms Wijethunge) professed to have done.
In this context, I reject any assertion by Ms Wijethunge that she had formally been directed to work extensive overtime or that she had been provided, with the laptop, as a form of tacit direction that she was required to do so. Rather, on balance, I am satisfied that Ms Wijethunge elected to approach her work, in this way, of her own volition, most likely because she was not coping with her duties, particularly in the lead up to the end of financial year.
Ms Walkinshaw was copied into this email exchange between Ms Campbell and Ms Wijethunge. She deposes to being flabbergasted that Ms Wijethunge stated that she was working 10 hours overtime per week and further that she had been directed to do so. I accept that both Ms Campbell and Ms Walkinshaw were genuinely shocked on learning that Ms Wijethunge was apparently working such long hours outside of the office. Both considered that this was highly inappropriate and not in keeping with the employment policy of the ARTC.
I am satisfied that the atmosphere within the ARTC accounting section, on the morning of 29 June 2015, was extremely tense. This period coincided with the corporate accounting team’s regular section meeting called a pod meeting. From management’s point of view, the situation, so far as Ms Wijethunge, was concerned was reaching a point of crisis. At the same time, I accept that Ms Wijethunge was likely to have felt personally at the end of her tether.
A pod meeting was scheduled for that Monday morning. Ms Campbell, Ms Wijethunge and others attended this meeting at around 9.00 am. The meeting overlapped with the exchange of emails outlined above. Ms Campbell had described Ms Wijethunge’s affect, at the meeting, as being rude and irritable. She seemed disinterested in the meeting. Ms Campbell was shocked by her presentation. She reported her concerns to Ms Walkinshaw, she says after her email to Ms Wijethunge at 9.02 am but prior to her reading Ms Wijethunge’s responding email of 9.42 am.
Ms Campbell raised with Ms Walkinshaw her concerns about Ms Wijethunge’s presentation at the pod meeting. Ms Campbell provided Ms Walkinshaw with her opinion that Ms Wijethunge was not “handling the pressure of year-end at all” and her relations with Mr Joyce seemed to be getting worse.
Ms Walkinshaw was copied into the relevant email chain regarding Ms Wijethunge purportedly working excess hours from home a short time later at 9.56 am. I accept her evidence that this information, in conjunction with what Ms Campbell had told her about the pod meeting and her perception that Ms Wijethunge was not coping caused Ms Walkinshaw’s view to crystallise that something needed to be done.
In this difficult atmosphere, Ms Wijethunge independently sought out Ms Walkinshaw and had a meeting with her, at some time around the middle of the morning. Ms Wijethunge was crying and said words, to Ms Walkinshaw, to the effect of “I don’t think I can do the role”. From Ms Walkinshaw’s perspective this was patently the case.
I accept Ms Walkinshaw’s evidence that she was powerfully affected by Ms Wijethunge’s presentation and, as a consequence, reached the conclusion that the workplace situation was extremely detrimental for Ms Wijethunge personally. As such, she reached the conclusion that things needed to be brought to a head promptly. In this context, she contacted the relevant HR manager to inquire as to the practical requirements to bring Ms Wijethunge’s probation to an end.
Ms Walkinshaw was advised by HR that, in practical terms, only Mr Bishop was authorised to dismiss an employee of the corporate accounting team. As a consequence, HR arranged for Ms Walkinshaw to brief Mr Bishop in respect of her views on Ms Wijethunge’s performance in her position up to that stage. This meeting happened around lunchtime.
I accept that Ms Walkinshaw indicated to Mr Bishop that she had had concerns about Ms Wijethunge’s performance for the past six weeks and her perception was that there had been no improvement in this regard.
As such, Ms Walkinshaw indicated to Mr Bishop that she was not confident that Ms Wijethunge could rise to the challenges required of her position, particularly given that year end was approaching. Ms Walkinshaw also indicated that she did not assess Ms Wijethunge to have the technical skills required to fulfil the fixed asset accountant role.
In respect of what had occurred over the past few days, Ms Walkinshaw reported to Mr Bishop her perception that Ms Wijethunge was not currently coping. In this context, she indicated to Mr Bishop that Ms Wijethunge had indicated her preference to know sooner rather than later whether her probation was successful or otherwise. On the basis of these factors, Ms Walkinshaw recommended to Mr Bishop that Ms Wijethunge’s employment be terminated forthwith.
It is Mr Bishop’s evidence, which I accept, that he approved Ms Walkinshaw’s recommendation. He is to be taken as the ultimate decision maker in respect of the decision to end Ms Wijethunge’s employment. He kept notes of his conversation with Ms Walkinshaw, which corroborate her account of what was said and the reasons which were proffered for her recommendation to him concerning Ms Wijethunge.
In these circumstances, I accept Mr Bishop’s evidence that issues relating to Ms Wijethunge’s responsibilities as a carer or any purported request of her or refusal by her, arising in respect of Ms Wijethunge possibly working overtime, were not factors motivating Mr Bishop’s decision to terminate Ms Wijethunge’s employment with ARTC.
Ms Walkinshaw instructed the HR team to draw up the relevant letter terminating Ms Wijethunge’s probation, which she signed, although the decision was the ultimate responsibility of Mr Bishop. This was done on 29 June 2016. As previously indicated, I accept her evidence that it was an error, on the part of the person who typed the letter, to date it 28 June. The relevant passages of the letter read as follows:
“As you would be aware, ongoing employment with ARTC is subject to satisfactory completion of a six month probationary period.
I refer to discussions with you on 19 June 2015 regarding your performance in the position of Fixed Assets Accountant. During this discussion a review of your work performance was undertaken and ARTC’s expectations were explained. You were advised that your work performance at that time did not meet ARTC’s expectations.
Following careful consideration of the role requirements it is my considered view that your skill set aligned against the role is not beneficial for all parties. Consequently, ARTC has decided to terminate your employment within the probationary period. This will take effect from today, 29 June 2015.
In addition to any accrued annual leave entitlements that may be owed, you will be paid one week’s pay in lieu of notice.”[34]
[34] See Exhibit SW15 to the applicant’s affidavit filed on 20 July 2016
The letter was handed to Ms Wijethunge, at a meeting, which was scheduled for 2.30 pm on 29 June, attended by Ms Walkinshaw, Ms Campbell, as well as Ms Wijethunge. I accept that in conjunction with the letter, Ms Walkinshaw said to Ms Wijethunge that the basis of the decision was the view taken by her and management at the ARTC that the respondent was not satisfied that she could meet the requirements of her role.
I reject Ms Wijethunge’s assertion that she herself called a meeting, with either Ms Campbell or Ms Walkinshaw, to discuss what she alleges was her perception that ARTC had unreasonably restricted her ability to work from home, as a consequence of the email to her on the afternoon of 26 June, which told her not to work from home and its asserted connection to her carer responsibilities.
I also reject emphatically her assertion that the first time any technical shortcomings were pointed out to her in respect of her work was in Ms Campbell’s email to her of 9.02 am on 29 June 2015.[35] This is patently not correct. Both Ms Campbell and Ms Walkinshaw had been pointing out concerns, which they had, in respect of technical matters, since May. The focus of the 19 June meeting was on these matters.
[35] Ibid at paragraph 76
In my view, the evidence is clear that management initiated the meeting because of its concerns that Ms Wijethunge was not coping in her role and it would be more appropriate and perhaps kinder to her, in the long run, that her probation be ended sooner rather than later.
In my assessment, the assertion that Ms Wijethunge initiated the meeting and it was as a direct consequence of her email of late 26 June, in which she raised her inability to do overtime because of family commitments, is an incorrect reconstruction of what actually happened. The only person who ever raised the issue of family commitments, in the context of her work at the fixed asset team, from May onwards, was Ms Wijethunge herself. She did so obliquely in her email of 26 June.
I accept the evidence of Ms Campbell and Ms Walkinshaw that Ms Wijethunge had never been directed to perform unpaid overtime, either on the weekend of 27/28 June 2015 or otherwise. As such, I do not consider that Ms Wijethunge had any workplace right to decline to do this overtime, which she had voluntarily and clandestinely assumed.
In this context, when Ms Wijethunge specifically raised the issue of her past overtime, she was directed not to do any further overtime because management was concerned that it was inappropriate that she perform overtime, to the extent, which she had purported to do, in the overall context of her work performance. As such there was no causal connection between this direction and the raising of family commitments by the applicant.
Ms Wijethunge has deposed as to what she believes was the connection between the meeting of 29 June and the earlier email chain:
“On the morning of Monday 29 June 2015, I verbally requested a meeting with Edith and Ngaire to discuss working arrangements as I was unable to perform overtime in the office due to my carer responsibilities, as ARTC had restricted my ability to work from home as of the evening of Friday 26th June 2015.h
A meeting took place later in the day on Monday 29 June 2015 with Edith and Ngaire following a meeting request send by Edith with heading of ‘working discussion’ that I later felt was very misleading. I prepared myself to discuss future working arrangements that required additional overtime hours; work location; as well as my performance update.
At the meeting on Monday 29 June 2015 I was handed a letter of dismissal dated Sunday 28 June 2015 terminating my employment due to unsatisfactory performance. Annexed hereto and marked ‘SW15’ is a true copy of the termination letter.
Ngaire said words to the following effect to me at the Monday 29 June 2015 meeting:
‘We have to let you go because of your performance’,
‘I was thinking the whole weekend about this decision’ and
‘You have the option of resigning instead of being dismissed"’
I was shocked that since my first probationary review on Friday 19 June 2015, within 5 working days ARTC had decided my performance was not satisfactory. ARTC had not addressed any performance issue during the first 20 weeks of my employment and within 5 days had made a decision. Only 3 working days earlier Edith had told me that it was ‘too early’ to comment on whether I had addressed the 3 performance areas raised in my probation meeting.
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.”
In my view, this final conclusion is not open on the evidence available to me. The email exchange in question had the effect of informing management that Ms Wijethunge was working excessive hours of overtime, a state of affairs of which it had previously been ignorant. This event, which coincided with an apparent change of attitude of Ms Wijethunge, following the meeting of 19 June and the subsequent pod meeting caused a coalescence of the views of both Ms Campbell and Ms Walkinshaw that Ms Wijethunge did not have the appropriate set of skills for the position in respect of which she was on probation.
Conclusions
As I am at pains to point out, it is not my function to inquire as to whether Ms Wijethunge is entitled to feel hard done by in respect of the manner in which ARTC ended her probation – as she perceives it peremptorily – or whether ARTC is or is not a model employer, which has behaved in a procedurally fair way to her.
Rather, it is my responsibility, within the statutory framework provided by the FWA, to determine whether there is a casual connection between the adverse action taken by the ARTC, in terminating Ms Wijethunge’s employment, and any workplace right pertaining to her, which falls within the purview of either section 341 or 351 of the Act.
There is no controversy that Ms Wijethunge has suffered adverse action as defined by section 342(1) of the FWA. The central question, for the court, is whether that adverse action occurred because of one of Ms Wijethunge’s workplace rights or because she held one of the protected attributes in section 351(1). The operative word being because which requires a causal connection between the two.
In theoretical terms, I accept that the entitlement to refuse to perform overtime work may amount to a workplace right. As previously indicated, the applicable workplace agreement stipulates that ARTC can require its employees to work additional hours which are reasonable and necessary to do the job without additional remuneration. In this context, I accept that this agreement falls within the definition of workplace instrument contained within section 12 of the FWA.
Conceivably, therefore, Ms Wijethunge may be said to have had the benefit, under a relevant workplace instrument, to refuse to perform unreasonable additional unpaid hours, without additional remuneration or otherwise. However, that is not the case in the current matter. Ms Wijethunge was in fact directed not to perform overtime, in the email about which she complains. This direction arose when management was informed, by the applicant, that she had apparently been working unpaid overtime.
In addition, for the reasons provided above, I am satisfied that Ms Wijethunge was never directed, either directly or implicitly, to perform unpaid additional work, prior to 26 June. The understanding, which she had with ARTC, was that she would have flexible hours, which gave her the liberty to perform her duties, to some extent, as she saw fit, provided she was in the office for the hours nominated by her. This entitlement rested on the fact that her remuneration exceeded $75,000.00.
On both sides, the entitlement to flexibility, both in terms of the form the hours of work could take and any additional hours required to be performed to complete tasks, depended on considerations of what was reasonable and necessary in the circumstances prevailing, given Ms Wijethunge’s level of remuneration.
In my view, it was neither necessary nor reasonable for Ms Wijethunge to elect to work up to ten hours per week, in addition to her office hours, without seeking the formal imprimatur of her managerial superiors. Under the applicable workplace agreement, she was under an obligation to be accountable and responsible to her employer, for decisions made by her in respect of her employment.[36]
[36] See workplace agreement at clause 1.2.2
It was as a result of her own decision, not in response to the requirement of the employer, that she undertook additional hours of work. Fundamental to this finding, it is my determination that management at the ARTC, in the form of Ms Campbell and Ms Walkinshaw, was oblivious to the fact that Ms Wijethunge was working such long, additional hours, until she chose to tell them about it.
In these circumstances, I do not consider that the ARTC has infringed any workplace right, pertaining to Ms Wijethunge, in respect of overtime. She was not directed to work overtime. As such her declining to do so cannot infringe any workplace right pertaining to her. In any event, I find that her refusal to do so, conveyed in the emails of 26 June 2013, was not the operative reason for her termination.
The expression carer’s responsibilities is not defined by the FWA. However, there is no controversy that the expression carer is to be given its ordinary or common usage in these proceedings as a person who provides care, in the sense of protection, sustenance and support for another person who is infirm, whether because of illness, old age or disability.
In these circumstances, it is apparent that Geshan is a person who requires extensive care and by virtue of being one of his parents, Ms Wijethunge has the responsibility to provide this care. Accordingly, I accept that Ms Wijethunge is entitled to the general protection arising under section 351(1) of the FWA.
The ARTC is prohibited from taking adverse action against Ms Wijethunge for a reason relating to her responsibility to provide care for Geshan. In these circumstances, as a consequence of section 361(1) the onus switches to the ARTC and an examination must be made of what was the substantial and operative reason why the adverse action in question was taken. This is a question of fact, which turns on the reason why a particular decision maker or makers did what they did.
As French CJ & Crennan J indicated in Barclay ordinarily this question will be answered in the light of all facts established in the case concerned. In this case, in my view, the relevant decision-makers concerned – Ms Campbell; Ms Walkinshaw; and Mr Bishop; – have given reliable and direct evidence as to why ARTC decided to terminate Ms Wijethunge’s probation. I accept this evidence.
In all these circumstances, I accept that the fact which motivated the respondent to take the adverse action, which it did in respect of Ms Wijethunge, was that it considered that she did not have the required skills to fulfil the demands of the probationary position to which she had been appointed not for any reason connected to her carer responsibilities for her child.
Accordingly, Ms Wijethunge’s application is not made out and must be dismissed by the court. 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 two hundred and two (202) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 25 November 2016
Key Legal Topics
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Civil Procedure
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Negligence & Tort
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Causation
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Damages
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Duty of Care
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Negligence
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Standing
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