Willis v Capital Radiology Pty Ltd

[2015] FCCA 2475

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILLIS v CAPITAL RADIOLOGY PTY LTD [2015] FCCA 2475

Catchwords:
INDUSTRIAL LAW – Adverse action – proceeding dismissed for applicant’s non-appearance – application for reinstatement – whether adequate explanation for non-appearance – prejudice – whether reasonable prospects of success in substantive application.

Legislation:

Fair Work Act 2009 ss.340, 360, 361, 570(2)(b), 789FC
Federal Circuit Court Rules 2001 rr.13.03C(1)(c), 16.05(2)(a)

Cases cited:
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, (2012) 86 ALJR 1044, (2012) 220 IR 445, (2012) 290 ALR 647, [2012] HCA 32

Applicant: JAMES SYDNEY WILLIS

Respondent: CAPITAL RADIOLOGY PTY LTD

File number: MLG 192 of 2015

Judgment of: Judge Riley

Hearing date: 4 September 2015

Date of last submission: 4 September 2015

Delivered at: Melbourne

Delivered on: 4 September 2015

REPRESENTATION

Counsel for the applicant: The applicant appeared in person

Solicitors for the applicant: The applicant was not represented

Counsel for the respondent: Ms C Symons

Solicitors for the respondent: Service Industry Advisory Group (Legal) Pty Ltd

THE COURT ORDERS THAT:

1. The application filed on 16 July 2015 for reinstatement of the proceeding be dismissed.

2. The applicant pay the first respondent’s costs of today under s.570(2)(b) of the Fair Work Act 2009 fixed in the sum of $2,730.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 192 of 2015

JAMES SYDNEY WILLIS

Applicant

And

CAPITAL RADIOLOGY PTY LTD

Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application for reinstatement of a Fair Work proceeding that was dismissed for the non-appearance of the applicant on 7 July 2015 pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.  On 16 July 2015, the applicant filed an application in a case seeking the “setting aside of the summary dismissal for

   
   

   non-appearance”. I take that to be an application pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules 2001 for the reinstatement of the proceeding. 

2. The application in a case was listed for hearing on 28 July 2015.  On that occasion, the applicant appeared without the benefit of legal representation and sought an adjournment.  He said that he wished to obtain legal representation and thought he had a reasonable prospect of obtaining assistance from Justice Connect or another free legal service.  He also said that he wished to file further material.  The respondent opposed the application for an adjournment.  However, the court did grant the adjournment and also ordered that the applicant file and serve any further material on or before 25 August 2015. 

3. The applicant did not file and serve any further material on or before 25 August 2015.  When the matter came on for hearing today,

   
   

   the applicant was not represented.  The applicant sought leave to hand up two documents to the court.  He said that he had not had the opportunity to put them in the form of an affidavit. 

4. The first document is a medical certificate dated 20 May 2015.  It said that the applicant was unfit for work from 20 April 2014 to 20 May 2015 due to acute nervous collapse and that the applicant needed more time to prepare points of claim for his submission.  The applicant was allowed to tender that document. 

5. The second document was an email which the applicant said he intended to send to the executive director and chief financial officer of the respondent on 14 July 2015.  However, the email ultimately was not sent until 21 July 2015.  The applicant was also permitted to tender that email.  It said, among other things, that the applicant had suffered from suicidal thoughts and had sought professional help for his psychological condition. 

6. On the hearing of an application for reinstatement of a proceeding that has been dismissed for non-appearance, there are a number of issues that the court is required to consider.  The issues are: 

   (a)

   whether there is an adequate explanation for the

   
   

   non-appearance;  

   (b)the prejudice to the various parties of granting or not granting the reinstatement;  and

   (c)whether the substantive application has reasonable prospects of success. 

7. The applicant swore an affidavit in support of his application in a case.  In that affidavit, the applicant said that he did not attend the hearing on 7 July 2015 because he forgot the date due to his mental condition and associated stress and anxiety.  He attached a medical certificate which indicated that he would be unfit for work from 7 July 2015 to 17 July 2015.  That medical certificate was dated 15 July 2015, well after the hearing in this court on 7 July 2015.  The medical certificate did not say that the applicant would be unfit to attend court. It did not describe the nature of the applicant’s medical condition. 

8. The affidavit had exhibited to it another statement from a doctor referring to a typographical error in a medical certificate.  The affidavit also had exhibited to it a mental health assessment.  That said, among other things, that:

   (a)the applicant had experienced long periods of unemployment, mostly as a result of bullying; 

   (b)the applicant had moved from Melbourne to Sydney early in 2014 for work; 

   (c)he had been fighting a bullying case from a previous employer; 

   (d)he had started a new job in Melbourne in February 2014;

   (e)issues had commenced in that employment from March 2014; 

   (f)he was now going through the court process; 

   (g)the applicant had some insight; and

   (h)in relation to memory, “no ABN noted” (which I understand to be mean no abnormalities noted). 

9. The assessment was made on 10 July 2015. It included a mental health plan for the applicant to see a psychologist and to continue on Cymbalta, which I understand to be a medication. 

10. The applicant also said in his affidavit that he attended a mediation on 3 July 2015 and the registrar did not mention the hearing on 7 July 2015.  The hearing on 7 July 2015 fell on a Tuesday and the mediation occurred on the previous Friday, 4 July 2015. 

11. The applicant also said in his affidavit that he had alerted the court and relevant parties to his intention to seek the reinstatement of the proceeding on 8 July 2015.  He said that he was informed that the matter had been dismissed for non-appearance by an email which he received from my chambers on 8 July 2015. 

12. The applicant said in his affidavit that he would be severely prejudiced if the matter were not reinstated.  He also said that there would be no prejudice to the respondent if the matter were reinstated. 

13. The respondent argued that the excuse for non-attendance given by the applicant was wholly inadequate.  The respondent said that forgetfulness is not an adequate reason for non-attendance at a court hearing.  The respondent also said that the medical evidence did not indicate that the applicant had any particular problems with his memory and did not substantiate that the applicant had a good reason for failing to attend the hearing on 7 July 2015.  The respondent also said that the respondent would be substantially prejudiced by the reinstatement of this matter. 

14. The respondent pointed to previous delays and prevarication on the part of the applicant.  The respondent also pointed to the applicant’s application for an adjournment on 28 July 2015 for the purposes of obtaining legal assistance and putting on further material.  The respondent noted that, notwithstanding that the adjournment was granted, the applicant did not obtain legal assistance and did not put on further material by way of affidavit.  However, he did seek to hand up documents to the court today.  The respondent tentatively suggested that the applicant’s conduct of this case constituted an abuse of process. 

15. In relation to the question of whether there are reasonable prospects of success in the substantive application, I note that the application was filed on 4 February 2015 by the applicant in person.  The applicant sought, by way of interim relief, an injunction restraining the respondent from terminating his employment until the hearing of the application or further order.  The situation is that the applicant’s employment was terminated on 14 July 2015. That was after the proceeding was dismissed for the applicant’s non-appearance and before the application for reinstatement was filed. Consequently, there would be no utility in granting the first order that the applicant has sought.  There would be no reasonable prospect of the applicant being able to obtain such an injunction because the applicant’s employment has already been terminated. 

16. The application also sought a declaration that the respondent had breached s.340 of the Fair Work Act 2009 (“the Act”) by taking the actions described in the application.  Those actions were that the respondent had advised the applicant that his employment was suspended in January 2015 and had advised the applicant on

    
    

    28 January 2015 that it would make a decision with respect to his ongoing employment on 4 February 2015.  The applicant said in his application that the respondent had taken adverse action against him because the applicant had exercised a workplace right, being his right to make a complaint to the Fair Work Commission (“FWC”). 

17. The applicant said that the suspension of his employment and the suggestion that the respondent might terminate his employment on

    
    

    4 February 2015 constituted adverse action.  The respondent argued that the suggestion that the respondent might terminate the applicant’s employment was not adverse action as defined but conceded that the suspension of the applicant’s employment could constitute adverse action.  Consequently, there would potentially be some utility in reinstating the applicant’s application for a declaration. 

18. The respondent suggested to the court today that the declaration sought by the respondent would be of no utility because all that was sought was a bare declaration.  However, I do note that, in Part I of the

    
    

    Form 4, the box in relation to pecuniary penalty is crossed. From that, I take it that there was, in fact, in addition to the application for a declaration, an application for a pecuniary penalty.  That means that, if the matter were reinstated, there would be some utility in making the declaration that was sought.

19. The applicant also sought in his application a restraint on the respondent breaching or continuing to breach s.340 of the Act. As the applicant’s employment has been terminated, there would be no utility in granting such an injunction or reinstating this proceeding for the purposes of ventilating an argument about such an injunction.

20. The history of the matter before this court is that the respondent gave the court an undertaking, pending final determination of the matter or further order, to give the applicant seven days notice of any decision to terminate his employment.  That undertaking was automatically discharged when the proceeding was dismissed on 7 July 2015.  Subsequently, the applicant was dismissed from his employment on

    
    

    14 July 2015.  If the proceeding were reinstated, that would not of itself result in a reinstatement of the applicant’s employment.  Indeed, the existing application does not seek reinstatement of the applicant’s employment. That is not surprising, because the applicant’s employment had not been terminated at the time the initial application to this court was filed.  The only matters that would be before the court if the proceeding were reinstated would be the application for a declaration and the application for pecuniary penalties. 

21. The applicant said in his Form 4 claim that, in September 2014, he had applied to the FWC under s.789FC of the Act, alleging that he was being bullied by employees of the respondent.

22. In January 2015, the applicant’s employment with the respondent was suspended. The applicant alleged that he was suspended because he had complained to the FWC.  The respondent alleged that the applicant was suspended in January 2015 because the applicant’s relationship with the alleged bullying employees had broken down irreparably. 

23. The applicant said that the adverse action was taken because he had exercised his workplace right to make the application to the FWC. I note that s.360 of the Act provides that a person takes action for a particular reason if the reasons for the action include that reason. However, the High Court said in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, (2012) 86 ALJR 1044, (2012) 220 IR 445, (2012) 290 ALR 647, [2012] HCA 32 that, to constitute a breach of s.340 of the Act, the prohibited reason must be a substantial and operative reason. Section 361 of the Act reverses the onus of proof such that if an applicant alleges adverse action was taken for a prohibited reason, that reason is taken to be the reason for the action, unless the respondent proves otherwise.

24. In this reinstatement application, an assessment needs to be made of the applicant’s prospects of successfully arguing in the substantive application that adverse action was taken against him for a prohibited reason, bearing in mind the reverse onus of proof.  The evidence before the court includes Annexure 1 to the affidavit of Dominik Kucera affirmed on 27 July 2015. That annexure is a disciplinary letter was sent to the applicant on 4 September 2014.  That letter was signed by Peita Carroll, the Human Resources Manager of the respondent, and said the following:

    Dear James,

    Disciplinary Process

    On Friday 30^th May, Marie Gibson and I dropped in to your clinic to discuss some issues that had arisen involving your performance and attitude in your first few months with us.  We felt these issues were resolved at the time but we have now received complaints from your Supervisor at Dandenong, the local marketing representative, and from the Office Manager at your clinic.

    The issues in all of these complaints are consistent with each other and are as follows:

    1.     Efficiency

    The time taken to do many x-rays are lengthy and longer than expected.  It has been reported that a simple lumbar spine x-ray can take up to 45 mins to perform.  This is normally done in around 15 mins with extra time allowed for difficult patients.  There have now been numerous complaints from patients who have had to wait a long time to have their x-ray and a few have been sent away to have their exam at the larger Dandenong site as the wait was too long.  This is not a problem that we have had with any other staff members that have worked at this site.

    2.     Following Direction

    When asked to perform only the views asked for on the referral, you stated that you sometimes make a decision to do more depending on the patient’s medical history. When asked not to make this judgment and do only the views asked, you were rude and stated that you wanted to do them so you would not “get sued”.  Although our protocols were clearly stated you continued to disagree with your Supervisor and the Radiologist who were directing you.

    3.     Attitude and rudeness

    A number of staff and patients have complained that you are rude and sometimes make racist and condescending comments, creating a tense relationship with those who need to communicate with you.

    The above behaviors do not meet the standards that we expect of our employees, and do not comply with the requirements in your Contract of Employment and Position Description as a qualified radiographer.

    In order to afford you due process, we would like to provide you with an opportunity to respond in detail to the above concerns before we take any further action.

    I therefore request that you attend a meeting with Marie Gibson and myself, on Tuesday 9^th September at 12.00pm at your clinic.  The meeting will be your opportunity to respond to the matters in this letter.  You are welcome to attend with a representative or support person.

    If at the conclusion of the disciplinary process we are not satisfied with your response, Capital Radiology may take disciplinary action against you, which may include a written warning.

    You are required to keep the details of the disciplinary process confidential, and are requested not to discuss this matter with any employees of Capital Radiology other than Marie Gibson or myself.

    If you have any questions prior to the meeting please contact me.

    Yours sincerely

    Peita Carroll

    Human Resources Manager

25. As stated, the letter requested the applicant to attend a disciplinary meeting on 9 September 2014 at midday.  The applicant did not attend that meeting.  On 11 September 2014, he filed a complaint in FWC alleging bullying and naming the respondent to this proceeding,

    
    

    Ms Carroll and Ms Gibson as respondents.  It was the lodging of that complaint in the FWC that the applicant said was the reason for the adverse action taken against him.

26. Mr Kucera’s affidavit also included as Annexure 3 his letter dated

    
    

    15 January 2015 to the applicant. That letter stated that there was an FWC interim hearing on 19 December 2014, at which the Commissioner stated that he was not satisfied at that stage that the applicant had been bullied or that there was a risk of him being bullied.  That letter also set out parts of an email dated 9 January 2015 from the applicant to the respondent’s managing director. The full email is contained in Annexure 1 to the affidavit of Alexandra Klimovics affirmed on 31 August 2015. The email was as follows: 

    Dear Mr Conidi,

    As you may or may not be aware, I, as one of your recently employed Medical Imaging Technologists, has had no recourse but to lodge an application to the Fair Work Commission for an Order to Stop Workplace Bullying against Peita Carroll and Marie Gibson. This action is being taken against them, due to matters they initiated. As I see it, it is not against the Company.

    As you may, or may not be aware, they have retained a lawyer to, quite frankly, assist them to save their own skins. This may be done with, or without, Company funds.

    They, and their lawyer, have already lost in their bid to challenge the jurisdiction of the Fair Work Commission, based on their contention that they had only been acting as fair and reasonable managers in constructing all of their unsubstantiated allegations against me. Doctors, staff, and patients, get on very well with me, except for the disguised actions of the other bully involved, Debbie Welsh, the Head Receptionist at Dandenong City Medical Centre, where I work in your sole charge practice (given that we all have our critics in life. Patients often complain to me about doctors, staff, etc, but you do get that).

    The evidence submitted by Peita and Marie, has actually worked against them. I don’t know if you have seen it, but their scrawled comments on my work emails are absurd, ridiculous, and bizarre to the point of eccentricity. It is highly likely that it will work against them when matters resume in late February at the Fair Work Commission.

    I am on annual leave until this coming Monday 12 January 2015. But, my leave has been interrupted by Peita, in her efforts to force a meeting with me on Monday. I stated in the last Hearing at the Commission on 19 December 2014, that I would consider their last minute hand delivered documents offering “Counselling” after I return to work from leave. I have not even read the document properly, such is my disgust with both of these women [namely, Ms Gibson and Ms Carroll]. I note since Peita has started harassing me again over the last three days, that she and the lawyer managed to sneak in a time and date on the document for this “Counselling” as being 1100hrs on the day I return work. She is using this date, and a further offer of considering a deferment (after no doubt consulting the lawyer following my emails) to try and force a meeting before February. It is quite obvious by this force, that she and Marie are in no conciliatory mood at all. They only want to save themselves. The document is carefully constructed to make it appear to be Conciliatory, in order to appeal to the Judiciary’s leaning toward Conciliation.

    These women have used every talent in their Machiavellian little minds to initially harass with unsubstantiated and/or vexatious allegations, and lately, to try and save themselves. Long term staff have said that it would probably have started because Marie did not like me cc’ing other staff in internal emails, as one normally does when the matter involves those staff.

    It is a fresh experience for me to be harassed because of this, but opinion is that it is because Marie does not like other staff being informed, as it reflects badly on her performance. Marie prefers contact on her work mobile, so there is no written record. Cross examination by the Commissioner showed there were gaps in her knowledge about her role. Marie and Peita are obviously friends, who travel together to back each other up as witnesses, when they deny Substantive and Procedural Fairness, and drop in on staff on some other pretext, to bully in person about work performance matters. These matters are sometimes quite pathetic (eg:using the wrong font in emails). Marie struts about officiously laying down the law, while Peita sits back and smirks as she enjoys the show. Marie is even known to my union, the VHPA, as officious.

    Anyway, in order not to add too much detail, of which you are probably aware anyway, I (and quite possibly other staff) have grown tired of these two women, who I understand have been recently employed in their roles. The saying goes, if you forgive the phrase, “You have to watch out for the Workplace Bully with the smile and the skirt.” Bullies are known to be talented at networking, and may even have curried your favour. But Workplace Bullying, especially by the subterfuge employed by these women, is destructive to all organisations, including companies. They are even known to bully while staying within the very policies of the organisation. Other staff have said that Capital Radiology used to be a good company to work for, before the arrival of them. Their attitudes filter down to the whole Company, and act to it’s (sic) detriment.

    There has been a massive effort to get rid of Workplace Bullying, by unions, governments, and the powers of the Fair Work Commission. Every trick and behavior is known, and has been documented on the net and elsewhere. The very nature of Bullies means they usually attain positions of power, but these two women are going to lose at the Fair Work Commission, as they have done already. They will smear what appears to be a good company, for they are only concerned with themselves. They know it, and that is why they are trying to head me off now.

    I therefore propose that I will withdraw my Application for an Anti-Bullying Order if:

    ·  The meeting proposed for next Monday by Peita be suspended indefinitely.

    ·That all of their malicious and unsubstantiated allegations be removed from my work record.

    ·That there be no recurrence of this behavior.

    ·And for the health of the Company, that the employment of Peita Carroll and Marie Gibson be Terminated. After all, due to their behavior, there is ample reason to.

    I hope you will give this offer some consideration, as I see no reason as to why the whole Company should be blemished by their behaviour. (emphasis added)

    Yours faithfully,

    James Sydney Willis

1. The letter of 15 January 2015 requested the applicant to attend another meeting. The letter indicated that if the writer, Mr Kucera, the respondent’s executive director and chief financial officer, formed the view that the applicant could not continue in his position, Mr Kucera would make a decision to terminate the applicant’s employment.

2. Mr Kucera said in the letter dated 15 January 2015 that the applicant’s disparaging remarks in his email of 9 January 2015 about Ms Carroll and Ms Gibson were possible grounds for instant dismissal. The letter also said that it was clear that the applicant did not trust Ms Carroll or Ms Gibson, that the applicant believed they should be removed from their jobs, and that the applicant would not comply with the requirement to participate in legitimate counselling.  (The applicant on 9 September 2014 and 9 January 2015 had declined to attend scheduled counselling sessions). 

3. The matter was relisted by the FWC for an urgent hearing on

   
   

   30 January 2015.  The FWC recommended that the parties attempt to reconcile their differences.  A disciplinary meeting was to occur on

   
   

   4 February 2015.  On that day the applicant said that he would be late for the meeting.  Eventually he did attend the respondent’s offices and had with him the application to this court, which was filed on that date.

4. Mr Kucera’s affidavit included as Annexure 22 a copy of a letter dated 14 July 2015 from Mr Kucera to the applicant terminating the applicant’s employment. The letter described the history of the matter and concluded that it was “not possible to salvage the employment relationship”. The letter also referred to the applicant’s alteration of a medical certificate. Mr Kucera said in his letter that the applicant’s conduct constituted “serious and gross misconduct justifying summary dismissal”.

5. In court today the applicant said that the respondent had invented allegations against him and that the respondent was a “dirty” employer.  He said that he missed the hearing on 7 July 2015 because he was stressed.

6. The documentary evidence shows that the disciplinary process in this case began before the applicant filed his complaint with the FWC which he says is the reason for the adverse action being taken against him.  The documentary evidence also shows that the reason given by the respondent for the adverse action, namely the unsalvageable employment relationship, was more than plausible, given that the applicant had said that he required the employment of Ms Carroll and Ms Gibson to be terminated in exchange for him withdrawing his bullying claim.  That was an ultimatum that, in the context of this case, seems to have been a highly probable reason for the termination of the applicant’s employment.

7. I am not persuaded that, given the history of this matter, the applicant does have a reasonable prospect of success in the substantive application.  His claim that he was suspended in January 2015 because of his application to the FWC on 11 September 2014 does not take account of the email that he sent on 9 January 2015, which was, on any view, inflammatory and does not take account of the fact that a disciplinary process had already begun with the letter of 4 September 2014. That was a week before the application to the FWC was filed.  It seems to me that even taking into account the reverse onus of proof, there is very little prospect of the applicant succeeding in the substantive application.

8. I accept that the applicant would be prejudiced if the proceeding were not reinstated. However, I also accept that the respondent would be prejudiced if the proceeding were reinstated.  This has been quite a long drawn-out matter.  From the respondent’s point of view, it has incurred cost, and there has no doubt been stress and strain to the employees who would be required to give evidence if this matter did proceed to a final hearing. It does not seem to me that the applicant gave adequate recognition to the stress that the respondent’s employees might face when he said in his affidavit that there would be no prejudice to the respondent if the proceeding were reinstated.

9. I am also not persuaded that the applicant’s reason for not appearing on 7 July 2015 is adequate.  He was able to attend the mediation on Friday, 3 July 2015.  There was no suggestion that he did not participate in that court event effectively.  The hearing on 7 July 2015 was only a directions hearing.  It was not the final hearing.  I am not persuaded by the material before me that the applicant could not have attended that directions hearing because of his medical condition.  In any event, the applicant said that he did not attend the directions hearing on 7 July 2015 because he forgot about it.  The medical evidence does not substantiate that he had a memory problem.  The applicant also sought to blame the registrar for not mentioning that the matter was back in court for directions on 7 July 2015.  However, it was not the registrar’s responsibility to remind the applicant of the next court date. 

10. I am not satisfied that it is in the interests of justice that the proceeding be reinstated. Consequently the application for reinstatement filed on 16 July 2015 will be dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Riley.

Associate: 

Date:  9 September 2015