Wilson v Victorian Aboriginal Health Service Cooperative Limited

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILSON v VICTORIAN ABORIGINAL HEALTH SERVICE COOPERATIVE LIMITED

[2015] FCCA 3237

Catchwords:
INDUSTRIAL LAW – Allegations of adverse action, discrimination, coercion and misrepresentation of workplace rights.

Legislation:
Fair Work Act 2009 (Cth) ss.340, 340(1), 341(1), 341(1)(c), 342, 343, 345, 346, 351, 351(1), 360, 361(1)

Cases cited:
Browne v Dunne (1893) 6 R 67
Shea v EnergyAustralia Services Pty Ltd (2014) 242 IR 159; [2014] FCAFC 167
Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346; (2014) 242 IR 1; [2014] FCA 271
Wolfe v Australia and New Zealand Banking Group Ltd [2013] FMCA 5

Applicant:

FRED WILSON

Respondent:

VICTORIAN ABORIGINAL HEALTH SERVICE COOPERATIVE LIMITED (ABN 51 825 578 859)

File number:

MLG 1852 of 2014

Judgment of:

Judge Riley

Hearing dates:

7, 8, 9 September 2015

Date of last submission:

9 September 2015

Delivered at:

Melbourne

Delivered on:

7 December 2015

REPRESENTATION

Counsel for the applicant:

The applicant appeared in person

Solicitors for the applicant:

The applicant was not represented

Counsel for the respondent:

Cathy Dowsett

Solicitors for the respondent:

Workplace Legal Pty Ltd

ORDERS

The application filed on 11 September 2014 be dismissed.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1852 of 2014

FRED WILSON

Applicant

And

VICTORIAN ABORIGINAL HEALTH SERVICE COOPERATIVE LIMITED
(ABN 51 825 578 859)

Respondent

REASONS FOR JUDGMENT

Introduction

This is a general protections claim. The applicant (“Mr Wilson”) was employed by the respondent (“VAHS”) commencing on

2 November 2011 as an information technology support officer. VAHS provides health services for people of Aboriginal descent. Mr Wilson’s employment with VAHS was terminated on 29 May 2014.
Mr Wilson said that his employment was terminated because he made complaints. VAHS said that Mr Wilson’s employment was terminated because of his gross misconduct, consisting of making false claims against senior members of the VAHS management team.
Mr Wilson is an Aboriginal person from the Kalkadoon/Wannyi clans in North Queensland. Many of the people he had issues with are Aboriginal people, mostly from Victoria. However, Christine Ingram, who is the Deputy Chief Executive Officer of VAHS, is a Yidindji woman from Far North Queensland who has lived in Victoria for

41 years. Jason King, who became the CEO of VAHS in November 2013, is an Aboriginal man, but he did not say where he is from.
Mr Wilson, who was unrepresented, filed an application that was difficult to follow. During an interlocutory hearing on 11 November 2014, and pursuant to a series of questions, Mr Wilson indicated that his position was as follows:
a)VAHS took adverse action against Mr Wilson in that:
i)VAHS altered his position by calling in a contractor to take over his role;
ii)VAHS discriminated between Mr Wilson and other employees in that the complaints of Mr Wilson were not adequately addressed while the complaints of other employees were adequately addressed (lateral violence); and
iii)VAHS dismissed Mr Wilson;
b)VAHS took the adverse action because Mr Wilson exercised a workplace right being the right to make complaints;
c)the complaints were:
i)about 10 complaints lodged by email by Mr Wilson to Christine Ingram and/or Jason King commencing in about May 2012 regarding clients of VAHS;
ii)an incident report lodged prior to 29 April 2014; and
iii)an email dated 29 April 2014 at 12:32:11pm from Mr Wilson to the VAHS Board, being Michael Graham, Ronald Briggs, Karin Williams, Lyn Briggs and Alan Thorpe;
d)Mr Wilson was discriminated against on the grounds of race in that:
i)VAHS altered his position by calling in a contractor to take over his role;
ii)VAHS discriminated between Mr Wilson and other employees in that the complaints of Mr Wilson were not adequately addressed while the complaints of other employees were adequately addressed (lateral violence); and
iii)VAHS dismissed Mr Wilson;
e)Mr Wilson does not rely on s.348 of the Fair Work Act 2009 (“the Act”);
f)in relation to s.343 of the Act, Mr Wilson was prevented from instituting strike action because Mr King and Ms Ingram and the board of VAHS organised to prevent Mr Wilson addressing other staff about strike action at staff meetings on or around 11 April 2014;
g)Mr Wilson does not rely on s.344 of the Act;
h)in relation to s.345 of the Act, Ms Ingram and Mr King made false statements to Mr Wilson about his workplace rights in that they told him on or about 11 April 2014 that they could not substantiate his complaints (being his exercise of a workplace right) and therefore took no action about them;
i)in relation to s.346 of the Act, Mr King took adverse action against Mr Wilson, namely:
i)VAHS altered Mr Wilson’s position by calling in a contractor to take over his role;
ii)VAHS discriminated between Mr Wilson and other employees in that the complaints of Mr Wilson were not adequately addressed while the complaints of other employees were adequately addressed (lateral violence); and
iii)VAHS dismissed Mr Wilson,
because Mr Wilson proposed to engage in industrial activity, namely organising a strike; and
j)Mr Wilson does not rely on s.349 of the Act.
The applicant confirmed at the hearing that his position was as stated above and he did not wish to amend that statement in any way. Consequently, I will deal with the matter on the basis of the statement set out above.

Chronology

The basic sequence of events is as follows.
On 2 November 2011, the applicant commenced employment with the respondent as an IT support officer.
On 17 July 2012, Mr Wilson sent emails to the Victorian Aboriginal Legal Service (“VALS”) from his VAHS email address. Glenda Thorpe, the then Chief Executive Officer of VAHS, counselled Mr Wilson about the appropriate use of the VAHS email facility.
On 13 June 2013, Mr Wilson applied unsuccessfully for a Project Coordinator position.
On 2 October 2013, Lesley Day, who is not an Aboriginal person, and who was the Human Resources Adviser of VAHS, sent an email to all staff inviting Aboriginal people to apply to be CEO for a day. Later, on 2 October 2013, Mr Wilson sent an email in reply to all staff of VAHS in which he said:
We should be protesting against this type of tokenistic events. This to draw indigenous people in and use them as a showcase ….
I am against doing this type of events when these people have not spoken out against the racism from the govt or other business’ and sporting groups that have supported racists in the past and present …
Which is the same as the tokenistic of black groups like generation one, reconciliation, vals and the so called aboriginal congress these are paid off blacks that support racists in order to get funding and favours for their families (which derived from south African’s in which mandela and his group started, look at what mandela did for racism nothing …….. )
We should stop being sucked into making a picture perfect world for the racists when these groups suck up to and support racists ….
We should have a boycott on all black groups that support racists such as those groups listed above, remember the atsic days the place was rorted and run into the ground by greedy uncle toms whom are now on boards and ceo’s of black organisations …. (errors in original)
Ms Ingram, the Deputy CEO of VAHS, received both Ms Day’s and Mr Wilson’s emails. She telephoned Mr Wilson on 2 October 2013 and told him that he should not have responded to Ms Day’s email as he had and said she would speak to him about it further. On 3 October 2013, Ms Ingram met Mr Wilson and told him he should not use his work email to put across his personal views. She gave him a formal warning and told him to send an email to all staff stating that the views stated in his earlier email were his own views and not those of VAHS. Mr Wilson sent that email.
The verbal warning of 3 October 2013 was confirmed in writing on 4 October 2013 in a letter drafted by Ms Day on Ms Ingram’s instructions and signed by Ms Ingram. It stated as follows:
Dear Fred
Re: First Official Warning
This letter is confirming the meeting held on 3^rd October, 2013 between you and myself regarding an inappropriate email sent to all staff by yourself which resulted in you receiving your first official warning
At that meeting you were instructed to retract the email you sent and to send an email to all staff acknowledging the views were that of your own and not of the Victorian Aboriginal Health Service.
I can confirm you have sent an email to all staff advising they were your views and retracted your original email.
This letter will remain on your file for a period of 6 months and will be removed if there are no further issues of a similar nature.
Yours Sincerely
Christine Ingram
Acting Chief Executive Officer
On 8 October 2013, Mr Wilson gave Ms Ingram a written complaint regarding certain clients of VAHS. The complaint said:
To whom it concerns
Tuesday, 8 October
2013
I wish to make a formal complaint against clients of and members of the community whom use VAHS service and have carried out harassment, torment based on racial hate.
I was previously employed by Auspost whom I was racially discriminated against and during my time as a trainee. Since lodging complaints of Racial Discrimination I have been the victim of racial hate and lateral violence by a former employee of Auspost the Indigenous training officer Michael Richardson, this person was named in my complaint lodged against Auspost.

On every occasion that I have crossed paths with this person I have been made to feel uncomfortable as this person has given leering stares and disgusted looks when I have passed him in the foyer of VAHS. My complaints from Auspost include racial discrimination, racial hate, unfairly paid, unfairly treated, failure to provide adequate training in which they admitted to management failing in providing training in order to meet gaining qualifications. The training program ran over it’s due time and found to be inadequate and had to be dissolved and the training had to be re-run this had gone over by three years to do training that should have taken only two years in all it was five years, which still lead to the only qualification gained was a traineeship Cert IV and Microsoft Professional in which I passed the exam after the IT manager gave out incorrect material to sit the exam in which I failed the first time and then approached contractors whom steered me in the right direction to find suitable material and passed the exam.
Due to trying to lodge complaints of police brutality and racial hate with Victorian Aboriginal Legal Service I have been further victimised by members of VALS and the board in which I have lodged complaints against them that still have not been answered or will they make contact to answer the complaint. These include documents of racial hate, harassment, bullying and torment against Victorian Police, Auspost, Worksafe, Fair work Ombudsman, Racist employers from Oliver Consulting, Liberal and Labour parties including the now Prime Minister and former prime ministers. In a recent incident I lodged a complaint against Wayne Muir and Annette Vickery for racial hate, racial discrimination, unfairly treated whilst using their service, in this matter a letter I wrote was sent using the VAHS email in which was an accident and I fully described to the then CEO Glenda Thorpe of this and she accepted the incident was an accident and asked me to be careful when sending letters to ensure they were sent via a private email and not via VAHS email address. The addressing of this matter became evident after Wayne Muir / Annette Vickery sent this email to Glenda, this action was to further harass and intimidate myself at my place of work. This was an internal matter for the VALS to deal with but instead chose to make it an item to cause further damage as it was sent by myself as a debatable option listed out in the Human Rights and Racial Hate Act in which to debate a point of view to which racists blacks who carried out racial hate on behalf of white racists and treated members of the Indigenous public unfairly during litigation and/or engaging in litigation against white racists from the above groups. There are also other groups included who have used their positions to keep suppressed and oppressed my situation and myself.
In a recent incident in which I sent an email that spoke out against racism and lateral violence I feel I was victimised due to my comments which are within the rights of a person under the Freedom of Speech Act and displayed anti-racism comments against racist blacks whom support racist whites in order to get funding for their positions and families whilst employees of these organisations are under paid. I was then formally charged with a formal warning which included the recent incident and the later incident in which an email was sent to VALS which I feel is unfair as this VALs were using this to carry out thier racial hate against myself and further torment a person in their workplace. These are scum that using their positions to support racists and further suppress and oppress the general public of Indigenous people from sovereignty and justice from the racial hate/discrimination that has been carried out for the past 200 years and ongoing to present …
I would like the formal complaint [i.e. the first official warning to Mr Wilson] revoked and an apology from the VAHS members whom made the complaint after being victimised by these groups. That the email sent from the VALS was to further carry out their racial hate, victimise and attack an employee of VAHS at their workplace on a debatable instrument that is part of the Human Rights and Racial Hate Act.
I would like to see these people including and not limited to banned from the VAHS services until they make a public address to the nation via media during prime viewing times about their roles in playing out their racial hate:
Michael Richardson, Wayne Muir, Annette Vickery, Des morgan, Alf Bamblett, Deidre King
Lorraine Patten, Terrie Stewart, Leigh Saunders, Amanda Dunstall, Tom Calma, Mick Gooda,
Andrew Jackomoss, Tony Abbot, Julia Gillard, Malcom Turnbull, Bill Shorten, Kevin Rudd
John howard, Bob Hawke
Fitzroy Police Station and their officers
These are the basis of the people there are members of the Police and Human Rights Commission, workplace authorities and other blacks from groups such as generation one, reconciliation, aboriginal congress etc .…. I would like letters sent to all the above instructing them of their harassment and until the above requirements are met they are not to use VAHS services unless they do…
(spelling of names unsure)
Regards
Fred Wilson (errors in original)
Mr Wilson told Ms Ingram that certain clients of VAHS, namely, Alf Bamblett, Andrew Jackamoss, and Michael Richardson, (“the three men”) would talk and laugh and look at Mr Wilson when they were in the waiting area and he walked through. Mr Wilson said that he wanted them banned from using VAHS services.
Ms Ingram said in her affidavit that VAHS did sometimes ban people from using VAHS services for a set period, for example, if their behaviour was abusive or threatening or if they attended VAHS under the influence of alcohol or drugs.
Ms Ingram spoke to the board of VAHS about Mr Wilson’s complaint of 8 October 2013 and then spoke to Mr Wilson about it. Ms Ingram told Mr Wilson that it sounded like he had some unresolved issues from his previous employer, Australia Post. She said that just because people were having a laugh or a joke did not mean that they were talking about him and a laugh or a joke did not warrant sick people being banned from using VAHS’s services. Ms Ingram told Mr Wilson he could access counselling to deal with his unresolved issues. Ms Ingram said in her affidavit that she understood this conversation to have resolved Mr Wilson’s complaint of 8 October 2013.
In December 2013, Mr Wilson told Mr King, the current CEO of VAHS, that he had an issue with the three men. Mr Wilson told Mr King that the three men had treated him unfairly. When asked to elaborate, Mr Wilson said that they had looked at him sideways and rolled their eyes. He said this happened when he walked through the waiting area. He said he could not get justice for his issue. Mr King told Mr Wilson to call him when the three men were in the waiting area and Mr King would check for himself.
On an unspecified day, Mr Wilson called Mr King because Mr Bamblett was in the waiting area. Mr King sat in the waiting area for five minutes, until Mr Bamblett went into his appointment. Mr King did not see anything untoward, though Mr Wilson had not been in the waiting area at the time.
On 6 January 2014, Mr Wilson sent an email to Ms Ingram, Ms Day, and Mr King, asking for an update on his complaint of 8 October 2013. Mr King asked Mr Wilson how the alleged actions of the three men were racially motivated. Mr Wilson restated his claim that their actions were racially motivated.
On 10 January 2014, Mr Wilson emailed Ms Day asking for the guidelines on complaint handling. On 14 January 2014, Mr Wilson emailed Ms Day asking for an explanation of the process if a workplace was not safe for an employee and asking for the policy relating to the acting CEO not addressing a complaint of bullying and harassment. Three minutes later on 14 January 2014, Mr Wilson emailed Ms Day asking for information about commencing legal proceedings and claiming compensation. Ms Day provided Mr Wilson with information on the VAHS complaints policy and how to make a Workers’ Compensation claim. On 20 January 2014, Mr Wilson emailed Mr King and Ms Day asking for a progress report on his complaint “as soon as this morning”.
Ms Ingram returned from leave on 20 January 2014. She had a meeting with Mr Wilson and Ms Day at midday on 20 January 2014. A Team Leader from VAHS attended as Mr Wilson’s support person. Ms Ingram said that there were some aspects of Mr Wilson’s complaint that she could do nothing about because they concerned his former employer and VALS.
Ms Day asked Mr Wilson what the three men were doing to harass him. He said that they were looking at him sideways and smirking at him.
Ms Ingram asked Mr Wilson if he was not being paranoid, as she had seen the three men talking and laughing in the waiting area and she did not think that they were talking and laughing about Mr Wilson. Mr Wilson said that he wanted them banned from VAHS. Ms Ingram said that she would look at whether VAHS policies permitted people to be banned from VAHS without a reason.
At 2.30pm on 20 January 2014, Mr Wilson sent Ms Ingram an email saying he was leaving work for the day because he was a bit stressed about what was going on.
On Friday 7 February 2014, Mr Wilson sent Ms Ingram an email, which he cc’d to Mr King:
a)asking whether the letters banning the three men had been sent out;
b)asking for copies of the letters, and saying that some issues in his complaint had not been addressed; and
c)asking when they were likely to be addressed.
Later on 7 February 2014, Mr Wilson emailed Ms Ingram saying that he was leaving work as he was not feeling well. He did not attend work on Monday 10 February 2014 or Tuesday 11 February 2014.
At an unspecified time after 11 February 2014, Mr King and Ms Ingram met Mr Wilson and told him that they would not ban the three men from VAHS as they had no reason to do so. They also offered Mr Wilson the option of working at the Preston site of VAHS, rather than the main office in Fitzroy, on those occasions when the three men were scheduled to attend VAHS in Fitzroy for appointments. Mr Wilson rejected that offer.

On 25 February 2014, Mr King invited Mr Wilson to a meeting to discuss his complaint. Mr Wilson initially accepted but later declined. Mr King attempted to reschedule the meeting to 13 March 2014. Again, Mr Wilson initially accepted but later declined, saying in an email that he was not needed:
to investigate Christine and the handling of the complaint.
Mr Wilson also said in that email that he would make a further complaint against Mr Bamblett and Mr Richardson, who had:
carried on their intimidation and harassment.
On 17 March 2014, Mr King emailed Mr Wilson saying that he would need an incident report regarding the further allegations of intimidation and harassment, detailing “what, where and when” and identifying any witnesses. Mr King said in his email:
I do take this seriously but I will not act on a single sentence report.
Mr King said that Mr Wilson did not ever send him an incident report.
On 8 April 2014, Ms Day, through another VAHS officer, Paul Dunn, asked Mr Wilson to complete a police check. Ms Day explained that she had thought that the police check requirement only applied to certain categories of VAHS staff, but recently discovered that it applied to all staff. Mr Wilson replied by email the same day as follows:
Hi Lesley
I have been asked to do a police check. Could you inform me if this is legal to request such information and under what ACT this is governed by.
My understanding was this is encroachment and was discriminatory and was illegal for workplaces to ask or obtain.
There is a special component in which becoming a law enforcement officer or of similar role was suitable.
In cases of parliamentarians and their roles this request is not done due to previous and current convictions such as the Craig Thompson case in which he is still able to hold his position in parliament so they can receive benefits during work and in retirement …
Can you obtain from the Workplace ombudsman is this is true and that workplaces are able to blackmail workers into completing this request, due they can be fired if they do not comply and that this report can be used to discriminate against workers.
This is URGENT please process ASAP.
Regards
Fred (errors in original)
On 10 April 2014, Mr King met with Mr Wilson. Mr King told Mr Wilson that VAHS could not ban the three men from VAHS as their actions had not violated any VAHS policies.
On 11 April 2014 at 9.26am, Mr Wilson sent Mr King an email under the heading, “Staff Meetings about conditions in the workplace”, as follows:
Hi Jason
After yesterday’s meeting and that VAHS was unable to do anything about the racism or bullying in a workplace. I would like to address the staff to have a resolve in place for these matters. This is unfair that I have to work under these stressful conditions and depressing conditions which I have had to live with for the past two years ….
Could we please make this an agenda item for the next staff meeting.
Kind regards
Fred Wilson

Mr King replied by email at 9.51am on 11 April 2014 as follows:
Fred
As I said yesterday – it isn’t racism to look at someone. If Michael does come in for the clinic then try and be pleasant towards him.
Bullying is being an intimidator towards someone – if he gives the shoulder shrug and eye rolling then bring it to my attention & I will deal with.
Racism is blatant use of words or actions within the workplace – to look at someone isn’t racism.
We need an actual complaint and then substantiation of facts then I will act – Lets get one thing very clear – I never said that I wouldn’t act on racism or bullying Fred, I said I needed proof of these things.
I see this as an ongoing issue from past experiences and you are bringing them into the workplace.
As I have said should Michael does as you claim (the eye rolling and alike) let me know and I will deal with it.
Honestly I do not think this is a topic for the staff meeting.
Regards
Jason (errors in original)
Mr Wilson replied at 10.12am as follows:
Hi Jason
Just from a quick check on the RDA ACT and this is what is stated as Racial hate: Racial hatred (sometimes referred to as racial vilification) is doing something in public – based on the race, colour, national or ethnic origin of a person or group of people – which is likely to offend, insult, humiliate or intimidate.
I have attached the document that I downloaded from the HREOC site.
I don’t know why there is a strong support for these scum to come here, I ask and strongly petition that they be banned from VAHS and it’s services, based on the above law which clearly states what they are doing is unlawful and racist and carrying out lateral violence against an employee.
Please consider the workers and the stress we come under from these abnormal conditions.
Regards
Fred
Mr Wilson sent a further email to Mr King at 10:15am as follows:
This is the first paragraph in VAHS policy – Anti-Discrimination and Harassment Policy,:
PURPOSE AND SCOPE
The purpose of this policy is to provide advice on the intent and general principles of equal opportunity and anti-discrimination so as to achieve and maintain a safe and productive work environment for everyone involved in VAHS
VAHS has a legal and moral responsibility to ensure that staff and clients are not subjected to behaviours, practices or processes that may constitute discrimination or harassment. VAHS values the social and cultural diversity that is reflected in its community and is committed to achieving equality of opportunity in employment, and to promoting an environment where staff are able to work effectively, without fear of unlawful discrimination, harassment or bullying
The policy works in conjunction with all other VAHS policies and procedures
Mr King replied at 10.28am as follows:
Fred
I fail to see where someone rolling their eyes is based on race. Possibly harassment but I will need witness’ to the act.
The only support is for the Aboriginal community here at VAHS.
We don’t discriminate against any Aboriginal person here.
Have you ever approached those involved for a chat about your issues?
Perhaps mediation is required.
Remembering too that I do not have control over any community that visit the site apart from those that are violence and/or abusive.
Regards
Jason (errors in original)
Mr Wilson replied at 10.32am as follows:
It states quite clearly: Just from a quick check on the RDA ACT and this is what is stated as Racial hatred: Racial hatred (sometimes referred to as racial vilification) is doing something in public – based on the race, colour, national or ethnic origin of a person or group of people – which is likely to offend, insult, humiliate or intimidate.
Racial hate is doing something in public which is likely to offend, insult, humiliate or intimidate. These rolling of eyes, being un-social, having a hate against someone either directly or in-directly is constituted as racial hate. Let’s call the police and lodge the complaint with them.
Mr King replied at 10.36am as follows:
Fred
Again WHERE is the race component – quoting the first line …..” is doing something in public – based on the race, colour, national or ethnic origin”
I fail to see where race is involved
Mr Wilson replied at 11.19am as follows:
I have stated the race component, you are making me feel like I am idiot and all I have done is brought to your attention of violence being carried out at work….
The race component is I made a complaint against these people and was treated less favourably because of my race and they are carrying out victimisation for my complaints against them/against racists into my now workplace, this constitutes as lateral violence and racial hate…
I have stated the lateral violence and racial hate and the laws that make their actions in public unlawful.
I do not want this to go on further it has now been over six months of making this complaint against these scum… is there some faction between these racists and vahs, such as family connections, work connections…
I don’t care if Alf Bamblett is family to members here, he is a coward black scum who is hated Australia all over is not welcome anywhere in qld/nt/wa/nsw. I have recently made complaints against racists from VALS including Wayne Muir and Annette Vickery and then made a complaint to the board and against the board which have not been dealt with or actioned on my behalf fairly, I am sure you cannot pervert the course of justice being a legal service in which they have done by not providing a service fairly.
The only way to go forward is to bring the police into this… I want time off to obtain a restraining order against these members and their board at vals.
On 22 April 2014, Mr Wilson emailed Ms Day asking her what the escalation process was for complaints. Ms Day enquired whether Mr Wilson had spoken to Mr King. Mr Wilson said he had and said he wanted to escalate the issue to the Board of VAHS and wanted to start a compensation claim. Ms Day advised Mr Wilson to be clear in stating his issue to the Board and outlined the process for lodging a WorkCover claim.
On 29 April 2014, Mr Wilson sent a complaint to the board. It said:
To the Board Members of the VAHS,
I lodged a complaint of being racially discriminated by members of the public whom use the services of VAHS.
Since lodging these complaints I have been further racially discriminated by the acting CEO – Christine Ingram and CEO – Jason King. Both have carried out racial hate against me for making complaints against family and friends that have been named in my complaint – Alf Bamblett and Andrew Jackamoss the other party included is Michael Richardson.
Since making my complaint these have not been dealt with appropriately and I have now been a target for both Christine and Jason whom have carried out bullying and victimisation for making complaints against the above mentioned. This has been going on for over six months with none being done to address the situation that I have asked instead I have to put up with absolute crap from Jason and Christine in regards to dealing with these scum. Jason has continued to disregard my complaints and make a mockery of the policies and procedures at the VAHS due to complaints against VALS.
I have been treated less favourably when applying for jobs over family members with no skills. My supervision was handled poorly and and the issue of pay overlooked I believe on purpose to further bully and treat myself unfairly. The below are the cover up from the racist bigot – Jason King and victimisation for making a complaint against scum from VALS whom included Desiree King and Alf Bamblett.
This has included being overlooked for a pay rise, not addressing training issues and complaints made.
I ask the board that both persons should be stood down immediately for carrying out racial hate against employees of VAHS.
If this is not addressed by Wednesday 12:00pm I will seek with other employees to go on strike until the racists are removed from their positions…
Regards
Fred Wilson
On 30 April 2014, Mr King spoke to the Chairman of the board of VAHS, Michael Graham. Mr King suggested to Mr Graham that Michael Eagles of Bayside Resolutions be appointed to investigate Mr Wilson’s complaints against Mr King and Ms Ingram. Mr King also told Mr Graham that he, Mr King, could not be involved in the investigation because he was a subject of the complaints and it would be a conflict.
On 30 April 2014, Ms Day told Mr Wilson that Mr Eagles had been appointed at investigate his complaint. Mr Wilson said in an email in reply at 2.21pm on 30 April 2014:
Hi
Noted that an independent will be taking over investigation…
Tomorrow’s meeting: I want to bring up the strike action for Friday the 2^nd of April at 12:00am to 4:00pm.
This will be ongoing during the investigation due to failures by the board and ceo – Deputy ceo.
Please note due to suicide tendencies from the provocation from racist I will only be attending work in a limited capacity….
Regards
Fred
Ms Day spoke to Mr Wilson by telephone following that email. He confirmed that he wished to discuss strike action at the staff meeting scheduled for 1 May 2014. Ms Day told Mr Wilson that he could take 1 and 2 May 2014 off work with pay. Ms Day said in her email that she had said that because Mr Wilson had mentioned suicide, not because he had mentioned strike action.
Ms Day sent Mr Wilson an email later on 30 April 2014 regarding external counselling that was available to him. Mr Wilson replied by email regarding rates of pay and saying that this needed to be brought up at the staff meeting as well.
The staff meeting proceeded on 1 May 2014 with Andrew Baker as the chairperson. Mr Wilson did not attend the staff meeting.
Mr Eagles conducted interviews and provided to VAHS a 17 page report on 16 May 2014. In that report, Mr Eagles set out various definitions as follows:
Bullying is repeated unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety. (WorkSafe Victoria: Preventing and respondent to bulling at work).
Harrassment is the act of discrimination in treating, or proposing to treat, someone unfavourably because of a personal characteristic protected by law. This includes bullying someone because of a protected characteristic. (WorkSafe Victoria: Preventing and responding to bulling at work).
Racial discrimination is when a person is treated less favourably than another person in a similar situation because of their race, colour, descent, national or ethnic origin or immigrant status.
It is also racial discrimination when there is a rule or policy that is the same for everyone but has an unfair effect on people of a particular race, colour, descent, national or ethnic origin or immigrant status.
Lateral Violence also known as horizontal violence or intra-racial conflict is a product of a complex mix of historical, cultural and social dynamics that results in a spectrum of behaviours that include:
·   gossiping
·   jealousy
·   bullying
·   shaming
·   social exclusion
·   family feuding
·   organisation conflict
·   physical violence
Lateral violence is not just an individual’s behaviour. It often occurs when a number of people work together to attack or undermine another individual or group. It can also be a sustained attack on individuals, families or groups.
It is important to understand that lateral violence doesn’t just refer to physical violence but also social, emotional, psychological, economic and spiritual violence.
(Later violence is defined by Mr John Liddle Aboriginal and Torres Strait Islander communities – Social Justice Report 2011)
Mr Eagles also set out in his report biographies of the three men taken from the VALS website as follows:
Dr Bamblett is the Chief Executive Officer at the Victorian Aboriginal Community Services Association Limited (VACSAL). In addition to this, Alf is also the current President of the Aborigines Advancement League Incorporated and has life membership on various Aboriginal organisations including the Victorian Aboriginal Education Association Inc (VAEAI). Alf’s father was a Wiradjeri man and his mother a Yorta Yorta woman and hence he has a biological and kinship relationship with many Victorian Aboriginal families. Dr Bamblett is an Elder and Leader within the Victorian Aboriginal Community. For over forty years through key policy making and management roles, Alf has held a number of Executive positions and has been instrumental in shaping many Aboriginal Community Organisations within Victoria.
This work includes the Victorian Aboriginal Legal Service (VALS), the Victorian Aboriginal Child Care Agency (VACCA), the Secretariat of National Aboriginal and Islander Child Care (SNAICC), the Victorian Aboriginal Education Association (VAEAI), the Victoria Aboriginal Justice Advisory Committee and Koorie Diabetes Services Victoria (KDSV).
Mr Andrew Jackamos.
Mr Andrew Jackamos was appointed in mid-2013 as the inaugural Commissioner for Aboriginal Children and Young People (Victoria), the first such position in Australia.
Andrew is of the Yorta Yorta community and for the past 14 years was the Director of the Koori Justice Unit, in the Victorian department of Justice; responsible since 2000 for coordinating the development and implementation of three phases of the Victorian Aboriginal Justice Agreement (AJA).
During that time, Andrew oversaw the growth of the Koori workforce from three in 1999 to employ well over 140; as well as the establishment and growth of the Koori Court network within the Magistrate’s, Children’s and County jurisdictions. He is most proud of the relationship developed between the Koori community and the justice system, as represented by the Aboriginal Justice Forum and the supporting network of Regional Aboriginal Justice Advisory Committees.
Andrew’s prior roles include: National Operations Manager, Aboriginal Hostels Limited; Victorian State Director, Aboriginal and Torres Strait Islander Commission (ATSIC); Chairperson, Yuroke (Melbourne) Regional Council (ATSIC); Regional Manager for North Queensland and Manager, Policy Secretariat Unit with the federal Aboriginal Development Commission.
Andrew is a member of the National Congress of Australia’s First Peoples, the Aboriginal Justice Forum and the Indigenous Family Violence Partnership Forum. In 2006 he was awarded the Public Service Medal and was admitted as a Fellow of the Institute of Public Administration Australia (Victoria). Andrew has also been acknowledged as a Victoria NAIDOC Patron. [He] is director of [the] Koori Justice Unit at the Victorian Government[’]s Department of Justice.
Mr Michael Richardson
Michael coordinates the AHURI Indigenous Housing and Homelessness Policy, Practice and Research Network. Michael has extensive experience in networking with Indigenous communities and leaders at a senior level. He held the position of Senior Human Resources Consultant at Australia Post Corporate Headquarters in Melbourne for 18 years and was responsible for the planning, implementation and coordination of the organisation’s national diversity policies and procedures, including the Indigenous Employment & Business Strategy. Much of Michael’s work at Australia Post focused on successfully developing and managing complex Indigenous Social Justice Programs in a corporate environment. It also involved creating procedures for the employment of refugees, migrants and people with a disability, as well as professional opportunities for women within the organisation. Michael has also worked with the Australian Armed Forces for a number of years and ran the Salvation Army’s detox centre and homelessness shelter in Adelaide.
Mr Eagles found that Mr Wilson’s claims were unsubstantiated. Mr Eagles noted at pages 14 to 16 of his report the following:
The serious complaint that he has been bullied and that he has “been treated less favourably when applying for jobs over family member with no skills” is nothing more than fabrication. He admitted to me he knew this statement was false. He said he wrote that because he was angry that I had confronted him with facts that showed he had applied for just one job and that the person who was the successful applicant wasn’t related to anyone at V.A.H.S. He also accepted that the person was more qualified than he was and that he was given that feedback after the person was employed. Mr Wilson’s ability to dismiss the fact that he lied and then downplay the lie by saying it was O.K. because he was angry, suggests he has problems and issues that go far beyond the scope of this investigation. His ability to lie so easily bring into question everything in his complaints. He is fully aware that by making such serious complaints about people in his community and those he works with could well lead to those people losing the positions and losing their standing in the community; he however makes no apology and dismisses his behaviour of making a false complaint, as trivial.
The emails Mr Wilson sent to V.A.L.S., which contained the mnost unsavoury of content, that I personally found to be disgusting. Expressions such as “coon nigger loving racist scum, Hopefully that pair of black scum find their kids raped and burnt you are scum with the racist scum… You will be brought to justice f*ck dogs deserve to be dead…” Suggest that for Mr Wilson to now complain that others treat him poorly is hypocritical in the extreme.
The fact that two of these emails were sent during work time on V.A.H.S. equipment constitutes a breach of the organisation[’]s code of conduct policy. This goes to show a complete disregard for Mr Wilson’s own conditions of employment. The fact that the previous C.E.O. chose not to deal with this matter properly when V.A.L.S. raised them with her, leaves V.A.H.S. at risk of not only damaging their reputation in the community, but also at risk of legal action.
Mr Wilson told me it was alright to use these descriptions and statements as he was angry at the time of sending these emails. He then became agitated when I pointed out that in my opinion what he said did not meet community standards and he has made a mockery of V.A.H.S. policies and procedures. Mr Wilson’s only comment was that if they (the emails) were so bad, why hadn’t the individuals involved pursued him legally?
In conclusion I find no evidence that Mr Wilson has been treated illegally whilst in his employ at V.A.H.S. His complaints are not substantiated and in fact he made these accusations knowing full well he had no evidence to substantiate his version of events. Also by his own admission, one complaint was completely untrue.
The impact these complaints have had on those accused of mistreating him is magnified by the fact that all the people accused have, at some stage, been strong advocates of Aboriginal rights and have lead the way in making changes to legislation that Mr Wilson now uses to attempt to cause them harm and damage their reputations. And to no lesser an extent he was well aware that Mr King and Ms Ingram could lose their jobs if the claims were proven.
Mr Wilson has now put himself in a position where I believe there is a complete breakdown in the employee and employer relationship. The fact that his claims were in my opinion, completely vexatious and trivial, creates a real trust issue now in the workplace. I have also found that Mr Wilson may have breached his contract of employment by the serious outcomes and the impact that these false claims could have. And in addition I believe Mr Wilson may have a case [of] harassment and bullying to answer for himself.
The fact that the claims had no basis in fact leaves me no [choice] but to conclude them to be vexatious in nature and Mr Wilson’s motivation was to damage the reputations and careers of those mentioned, in particular Mr King and Ms Ingram because they would [not] appease Mr Wilson. (emphasis added)

Mr Eagles made three recommendations as follows:
1. Mr Wilson to be informed of the outcomes both verbally and in writing
2. Mr Wilson should be suspended with pay whilst V.A.H.S. determine if Mr Wilson has breached their [policies] both by sending unsavoury emails to V.A.L.S. and putting in a vexatious claim against fellow employees. If a breach of policy is proven Mr Wilson should be given the opportunity to give reason why he should not be dismissed for serious misconduct.
3. V.A.H.S. should conduct refresher bullying and harassment training for all employees.
On 22 May 2014, Mr Graham telephoned Ms Day and said that:
a)he and another board member, Alan Thorpe, wished to meet Mr Wilson on 29 May 2014;
b)the board was going to act on the recommendations contained in Mr Eagle’s report; and
c)Ms Day was to advise Mr Wilson that he was to attend a meeting with the board members on 29 May 2014.
Ms Day telephoned Mr Wilson later on 22 May 2014 and told him that a meeting was scheduled for 29 May 2014 with board members. She said that the purpose of the meeting was to discuss the outcome of his complaints. She told Mr Wilson that he was suspended with pay until the meeting on 29 May 2015.
Paul Dunn, the Senior Systems Administrator at VAHS, told Mr King that that he was unable to personally do all of Mr Wilson’s work in his absence. Mr King told Mr Dunn to engage an external company, which VAHS had previously used on occasion, to provide IT support in Mr Wilson’s absence. Mr King said in his affidavit that an external contractor was used because VAHS had an operational need, not because Mr Wilson had made a complaint.
On 29 May 2014, Mr Wilson attended a meeting with Mr Graham and Mr Eagles. Mr Graham and Mr Eagles left during the course of the meeting to speak to Ms Day. The three of them decided to involve another aboriginal manager from VAHS, Andrew Baker. The four of them spoke by speakerphone with Ms Day. They told him that Mr Wilson would not withdraw his complaints.
Mr King decided to terminate Mr Wilson’s employment. Mr Graham, Mr Eagles and Mr Baker conveyed this to Mr Wilson. Ms Day drafted a letter to Mr Wilson which was signed by Mr King later that day and sent to Mr Wilson. It said:
Dear Fred,
This letter is to confirm the meeting on Thursday 29^th May, 2014 in which you were terminated from the Victorian Aboriginal Health Service for gross misconduct.
At the meeting you were offered a support person, which you declined.
You were given opportunity to give reasons as to why you should not be terminated. VAHS then considered your responses and believe you have taken no responsibility for your actions or shown any remorse in breaching the code or in making a false claim against senior members of VAHS management team. During the investigation you admitted one of [your] allegations was not in fact… true.
You have left the organisation no other option but to terminate your employment as of 29^th May, 2014.
You are entitled still access the VAHS employee assistance program and their number is 1300 361 008.
Yours Sincerely
Jason B King
Chief Executive Officer

Adverse action: s.340: calling in a contractor

Mr Wilson claimed that VAHS took adverse action against him in that VAHS altered his position by calling in a contractor to take over his role because Mr Wilson exercised his workplace right to make complaints.
Adverse action is said in s.342 of the Act to occur when an 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.
I understand Mr Wilson to say that, by calling in a contractor to take over his role, he was injured in his employment or his position was altered to his prejudice.
Subsection 340(1) of the Act provides that:
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.
Subsection 341(1) of the Act provides that:
A person has a workplace right if the person:
(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.
VAHS argued, correctly, that Mr Wilson needed to establish, on the balance of probabilities, that he had been injured in his employment or his position had been altered to his prejudice. If he did so, then s.360 and s.361(1) of the Act would come into play. Those sections provide as follows:
360.For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
361(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.
VAHS argued that the complaints that Mr Wilson had made were incapable of being complaints within the meaning of s.341(1)(c) of the Act. In making that argument, VAHS relied on statements made by Dodds-Streeton J in Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346 (2014) 242 IR 1 [2014] FCA 271 as follows:
618. In my view, as was common ground, there is no requirement that, in order to constitute a complaint that a person is able to make, a grievance must be justified or an accusation of fault must be true, or capable of ultimate proof or substantiation.
…
620. It does not follow, however, that the making of false, baseless, unreasonable or contrived accusations of grave misconduct against fellow employees constitutes the making of a complaint that an employee is able to make in relation to his or her employment, and thus invokes the statutory prohibition on adverse action.
The argument put by VAHS seems to have been that Mr Wilson’s complaints were false, baseless, unreasonable or contrived accusations of grave misconduct against fellow employees, and, on the authority of Shea, could not fall within s.341(1)(c) of the Act. However, Dodds-Streeton J’s decision in Shea was considered on appeal by the Full Court of the Federal Court in Shea v EnergyAustralia Services Pty Ltd (2014) 242 IR 159 [2014] FCAFC 167. In the appeal, there was a challenge to Dodds-Streeton J’s principal ruling concerning complaints, namely, that belief in the relevant complaint needed to be genuinely held for the purposes of s.341(1)(c) of the Act. The Full Court expressed a good deal of caution at [12] about whether that proposition was correct. However, ultimately, the Full Court considered that it was unnecessary to determine the question, because Dodds-Streeton J had made unimpeachable findings that the adverse action in that case was not taken for a prohibited reason.
I note that, technically, this court is not bound by the decision of Dodds-Streeton J in Shea, as her Honour was not sitting on appeal in that case. In view of the Full Court’s caution in this area, I do not consider that I ought to apply her Honour’s statement in Shea at [620]. Moreover, [620] of Shea, on which VAHS particularly relied, was not expressed as a positive conclusion that false, baseless, unreasonable or contrived accusations of grave misconduct against fellow employees could not ever be sufficient for the purposes of s.341(1)(c) of the Act. Rather, [620] of Shea was simply stating that a certain proposition did not logically follow from another. It was in the nature of a comment, which led to the more substantial conclusion that the applicant needed to genuinely believe in the truth of the complaint. In the present case, it was not suggested that Mr Wilson did not genuinely believe that the complaints that he raised were well-founded.
In all the circumstances, I consider that the better approach is to proceed on the basis that the various complaints that Mr Wilson made did fall within the meaning of complaint in s.341(1)(c) of the Act. Therefore, the first question in relation to the contractor being called in is whether that constituted an injury to Mr Wilson in his employment or an alteration of his position to his prejudice.
VAHS noted that those terms were considered by Judge Whelan in Wolfe v Australia and New Zealand Banking Group Ltd [2013] FMCA 5 at [81] and [82] as follows:
The terms ‘injures an employee in his or her employment’ and ‘alters the position of the employee to the employee’s prejudice’ were considered by the Court in the context of s.342 of the Act in Qantas Airways Limited v Australian Licensed Aircraft Engineers Association (“QANTAS Airways”).[34] The origins of those expressions, however, go back to Patrick Stevedores Operations No 2 Pty Ltd v MUA (“Patrick Stevedores”).[35]
In general it may be stated that:
The phrase ‘injures the employee in his employment’ extends to any injury of a compensable kind, a legal injury, or an adverse effect on an existing legal right.
The phrase ‘alters the position of the employee to the employee’s prejudice’ is a broad additional category of adverse action which covers not only legal injury, but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question; and
A prejudicial alteration to the position of an employee for the purposes of s.342(1) may occur even though the employee suffers no loss or infringement of a legal right; it will occur if the alteration in the employee’s position is real and substantial rather than merely possible or hypothetical.[36] (citations omitted)
It was not disputed that VAHS called in a contractor between 22 and

29 May 2014 while Mr Wilson was suspended on leave with pay. Mr Wilson did not argue, probably correctly, that being suspended on leave with pay injured him in his employment or altered his position to his prejudice. His claim was confined to calling in a contractor. His argument was that, in doing so, he was adversely affected.
By VAHS calling in a contractor, there would not have been a large quantity of work waiting for Mr Wilson to do if and when he returned from suspension, and VAHS would have been able to continue functioning with proper IT support during the period of suspension. It might be said that, by calling in a contractor, VAHS demonstrated that Mr Wilson was not indispensible, and that made it more likely that he would eventually be dismissed.
Mr Wilson said in his affidavit affirmed on 4 June 2015 that, when he went to work on 29 May 2014, he could not access servers. He said, that, in this way, his position had been altered to his prejudice, in that it had been pre-determined that he would be dismissed.
For present purposes, I am prepared to accept that the consequences of calling in a contractor injured Mr Wilson in his employment or altered his position to his prejudice.
That leaves the question of whether VAHS called in a contractor because of a prohibited reason, namely, that Mr Wilson made complaints. As discussed above, the prohibited reason need only be one of a multitude of reasons, provided that it is a substantial and operative reason. Moreover, the prohibited reason will be presumed to be the reason for the adverse action unless VAHS proves otherwise.
Mr King explained the circumstances of the decision to call in a contractor at paragraphs 45 and 46 of his affidavit, which are as follows:
45. I am aware that Fred was directed not to attend work between 21 May and 29 May 2014. During the period that Fred was absent from work, Paul Dunn, Senior Systems Administrator at VAHS advised me that he was not be able to cover all of Fred’s work personally. Paul suggested engaging an external company to take over Fred’s role while he was absent. VAHS engaged a company to provide additional IT support from time to time. This arrangement had existed prior to Fred being suspended. I told Paul to do what he needed to do to get the work done.
46. My decision to allow the company to provide support in the period 21 to 29 May 2014 was not taken because of Fred’s race, or because Fred had exercised a workplace right to make a complaint. The decision was taken because VAHS had an operational need for the support.
Mr Wilson did not cross examine Mr King on those paragraphs, although I explained to Mr Wilson at the commencement of the hearing the need to challenge each witness on anything that they had said that he did not agree with. Obviously, unrepresented litigants are given some latitude with the rule in Browne v Dunne (1893) 6 R 67. However, overall, having seen Mr King in the witness box, I found his evidence to be forthright and credible. I found his affidavit evidence about the reasons for calling in a contractor to be not only plausible but compelling.
Consequently, I accept that VAHS has discharged the reverse onus of proof in s.361 of the Act on this issue. That is, I am not persuaded that VAHS called in a contractor because Mr Wilson made one or more complaints.

Adverse action: s.340: discrimination

Mr Wilson alleged that VAHS took adverse action against him by discriminating between him and other employees (in that his complaints were not adequately addressed while the complaints of other employees were adequately addressed) because he had made complaints. Mr Wilson described this as lateral violence. Discriminating between employees is one of the ways in which an employer can take adverse action against an employee as set out in s.342(1) of the Act.
It was necessary for Mr Wilson to establish that he had been discriminated against in his employment, in that his complaints were not adequately addressed while the complaints of other employees were adequately addressed. VAHS argued that Mr Wilson had not established such discrimination.
Mr Wilson did not provide affidavit evidence about this particular issue. The witnesses called by VAHS did not address in their affidavits the issue of how other complainants were dealt with, except very generally in paragraph 25 of Ms Ingram’s affidavit. However,

Mr Wilson did cross-examine Mr King and Ms Ingram about this issue. The cross examination of Mr King was relevantly as follows:
a)at line 17 on p106 of the transcript:
Right. Have you – have you addressed other complaints in the same way?---Yes.
b)at lines 33 to 46 of page 107 of the transcript:
MR WILSON: Okay. Mr King, have you addressed other complaints in the same way as mine and being that the person has lodged a complaint and that you found their complaint was vexatious and that person has been dismissed from his employment?---No.
So you’ve had other staff members make complaints?---Yes.
Have they been against senior management?---No.
And when I say “senior management”, I refer to a manager of a unit such as Christine Ingram as dental manager?---No.
Are you aware of any complaints against Christine Ingram whilst as a dental manager?---No.
c)at lines 20 to 24 on p112 of the transcript:
Okay. My other question: in regards to the complaints that I put in, did you treat myself less favourably than other employees’ complaints?---No. I made that quite clear on the first day I started at the staff meeting. I will not put up with bullying to any of my employees. I don’t care where you’re from, who you are, what race you are.
Mr King’s evidence indicates that other employees had made complaints and Mr King had dealt with them “in the same way” as Mr Wilson’s complaints. However, it is not possible to ascertain from Mr King’s evidence what “the same way” actually meant or that the other complaints had been dealt with adequately. Therefore, it is not possible to conclude from Mr King’s evidence that Mr Wilson’s complaint had been dealt with any differently to any one else’s. Therefore, it is not possible, on Mr King’s evidence, to conclude that Mr Wilson was discriminated against by VAHS in that his complaints were not adequately addressed while the complaints of other employees were adequately addressed.
Mr Wilson also cross-examined Ms Ingram about this issue. She conceded that a particular female patient, who I will call Ms X, had been excluded from VAHS because she had been disrespectful to staff. Ms Ingram also said in her affidavit evidence that she had not excluded from VAHS the three men who Mr Wilson claimed had been disrespectful towards him.
As I understand it, Mr Wilson said that this difference in outcome between the case of Ms X and the case of the three men he complained about amounted to discrimination between employees. However, for the court to be satisfied that VAHS discriminated between employees it would be necessary to first establish that Mr Wilson’s case involving the three men was substantially the same as the case of Ms X.
Mr Wilson did not give any evidence himself about what made the case of Ms X substantially the same as the case of the three men he complained about. On the other hand, Ms Ingram gave evidence that Ms X had been disrespectful towards staff, and, in her view, the three men had not been disrespectful towards Mr Wilson or other staff.
Ms Ingram said in her affidavit evidence about this issue:
34. Fred stated that he wanted them to be sent letters advising them that they were barred from using VAHS’s services. I said to Fred we would have to look at whether VAHS could bar people who were very ill when we did not have a reason to.
35. The decision not to bar Alf, Andrew and Michael from using VAHS’s services was not because Fred is aboriginal or because Fred had exercised a workplace right to make a complaint.
36. The decision not to send them letters barring them was because there was no evidence to support Fred’s complaint.

I looked at the situation and made a decision on the merits.
Mr Wilson did not cross-examine Ms Ingram on whether those paragraphs correctly stated her reasons for not excluding the three men from VAHS. I found her to be a credible witness. I accept her evidence about her reasons for not excluding the three men from VAHS. That is, I consider that VAHS has discharged the reverse onus. In other words, even if not banning the three men from VAHS did amount to discrimination between employees, I am not satisfied that the discrimination was for a prohibited reason.

Adverse action: s.340: dismissal

Mr Wilson alleged that VAHS dismissed him because he had made complaints. VAHS admitted that it had dismissed him, but said that it was not because he had made complaints.
Mr King said in his affidavit:
48. On 29 May 2014 I decided to terminate Fred’s employment. I received a telephone call from Michael Graham, Chairperson, to advise me that he and Michael Eagles had met with Fred and that they wanted my view as to what should occur with Fred’s employment. I said to Michael Graham that the relationship was broken down and that I would expect an apology from Fred for his actions. Michael Graham told me that Fred did not seem to understand the damage he had done to the employment relationship between him and myself and Chrissy and asked me if I was willing to terminate Fred’s employment.
49. At that time, I had not seen Michael Eagle’s report and did not know what recommendations had been made. I told Michael Graham that I would be willing to terminate, provided the recommendations from the report were consistent with this being an option. Michael Graham said that the report contained termination as an option. I said that termination should occur.
50. I understand that my decision to terminate Fred’s employment was conveyed to him that day.
51. Upon my return to the office, I read and signed a letter to Fred in which I confirmed the termination of his employment and the reasons for it.
…
52. I did not decide to terminate Fred’s employment because he is aboriginal. VAHS is an aboriginal organisation. As at May 2014, approximately 54% of the employees were aboriginal.
53. I did not decide to terminate Fred’s employment because he exercised a workplace right to make a genuine complaint. I decided to terminate Fred’s employment because he made false claims about senior members of the VAHS management team. Fred’s complaint was investigated, and found to be vexatious. The vexatious complaint undermined the employment relationship to the point where I considered it to be unworkable.

Mr Wilson cross-examined Mr King about a lot of things, including whether Mr King had been negligent for not knowing the law on racial discrimination. However, Mr Wilson did not cross-examine Mr King about his reasons for dismissing him. Consequently, Mr King’s affidavit evidence on that issue was unchallenged. I found his affidavit evidence on that issue to be plausible. Indeed, I consider that the communications from Mr Wilson were such that it was inevitable that his employment relationship with the management of VAHS would have broken down irretrievably. In all the circumstances, I consider that VAHS has discharged the reverse onus of proof on this issue. That is, I do not accept that VAHS dismissed Mr Wilson because he made complaints. Rather, I consider that the complaints Mr Wilson made were worded in such a way that they destroyed any possibility of a viable working relationship with senior management.

Adverse action: s.351: calling in a contractor

Mr Wilson claimed that VAHS breached s.351 of the Act by calling in a contractor because of his race. Subsection 351(1) of the Act provides as follows:
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 discussed above, I am prepared to accept for present purposes that VAHS calling in a contractor injured Mr Wilson in his employment or altered his position to his prejudice.
As also discussed above, I found Mr King’s evidence on the issue of calling in a contractor to be not only plausible but also compelling. Mr King specifically stated in his affidavit evidence on this issue, which was unchallenged, that he did not callow a contractor to be called in for reasons of Mr Wilson’s race. I accept that evidence. Therefore, I accept that VAHS has discharged the reverse onus on this issue.

Adverse action: s.351: discrimination between employees

Mr Wilson claimed that VAHS took adverse action against him contrary to s.351 of the Act because of his race in that VAHS discriminated between him and other employees in that VAHS did not adequately address his complaints whereas it adequately addressed the complaints of other employees.
However, as discussed above, Mr King’s evidence does not permit a finding that VAHS adequately addressed complaints made by other employees. Consequently, it is not possible to make a finding on the basis of Mr King’s evidence that VAHS treated Mr Wilson any differently in this regard. That is, on Mr King’s evidence, it is not possible to make a finding that VAHS took adverse action against Mr Wilson by not addressing his complaints adequately while addressing the complaints of other employees adequately.
In relation to Ms Ingram’s evidence, as discussed above, I have accepted that her reasons for not excluding the three men from VAHS were as stated in her affidavit. That is, I have accepted that her reasons for not excluding the three men were not prohibited reasons, such as Mr Wilson’s race.

Adverse action: s.351: dismissal

Mr Wilson claimed that VAHS took adverse action against him in breach of s.351 of the Act in that it dismissed him because of his race.
However, as discussed above, I accepted the evidence of Mr King concerning his reasons for Mr Wilson’s dismissal. Those reasons did not include Mr Wilson’s race. Consequently, I do not accept that VAHS dismissed Mr Wilson in breach of s.351 of the Act

Coercion: s.343: prevented strike action

Mr Wilson claimed that VAHS breached s.343 of the Act because Mr King, Ms Ingram and the Board of VAHS organised to prevent Mr Wilson addressing other staff about strike action at staff meetings in or around 11 April 2014. Section 343 of the Act provides that:
(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b) exercise, or propose to exercise, a workplace right in a particular way.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) Subsection (1) does not apply to protected industrial action.
I proceed on the basis that Mr Wilson had a workplace right as defined to address a staff meeting about strike action.
The evidence about this matter is that Mr Wilson raised the issue of strike action in his emails of 29 and 30 April 2014. A staff meeting was held on 1 May 2014. Mr Wilson did not attend it. He was not at work on 1 May 2014.
Ms Day offered Mr Wilson the option of taking time off work, with pay, on 1 and 2 May 2014. She said that she made that offer because Mr Wilson had referred to suicidal tendencies, rather than to prevent him raising the issue of strike action. Ms Day was not cross-examined on that evidence. I find it to be plausible and I found her in the witness box to be a credible witness. Consequently, I accept her evidence on this issue.
Mr King said in his affidavit in relation to Mr Wilson’s proposed strike action the following:
54. On 30 April 2014, Fred sent an email to Chrissie, Lesley and I regarding the appointment of an investigator to investigate his complaint. This email from Fred was in response to an email Lesley had sent him earlier in the day, to which I was not a recipient. This email referred to Fred wanting to discuss strike action. Fred also said that due to ‘suicide tendencies’ he would only be at work in a limited capacity.
…
55. Lesley, Chrissie and I discussed Fred’s email. The reference to ‘suicide tendencies’ was particularly troubling. I said to Lesley that we need to advise Fred of the help available to him and that we could give him some time off with pay.
56. We also discussed the fact that the strike action Fred was proposing would not have been ‘protected’ under the Fair Work Act, but that is he wanted to do it that was a matter for him. I did not talk to Fred about ‘protected’ action under Fair Work Act, because I did not see it was my place to do so. I did not want Fred to think that I was discouraging him from discussing, or taking, strike action. I did not take any action against Fred because he proposed to discuss strike action.
Mr Wilson did not cross-examine Mr King about those paragraphs. As stated above, I found Mr King in the witness box to be a credible witness. Consequently, I accept his evidence on this issue.
Ms Ingram said in her affidavit (as corrected) on this issue the following:
53. On 30 April 2014, after Fred sent the email, Jason, Lesley and I had a telephone conversation to discuss his email and the complaints that Fred had made to the Board. I usually chair the fortnightly staff meetings. However, because of Fred’s complaint, it was agreed that I should not attend the meeting scheduled for 1 May 2014. Arrangements were made for the meeting to be chaired by Andrew Baker.
54. After the conversation with Lesley and Jason, I spoke with Andrew and told him that I needed him to Chair the staff meeting of 1 May 2014 and that Fred might bring up strike action in the meeting.
56. I did not attend the staff meeting of 1 May 2014.
Mr Wilson did not cross-examine Ms Ingram about those paragraphs. As stated above, I found Ms Ingram in the witness box to be a credible witness. Consequently, I accept her evidence on this issue.
There was no evidence from the Board members.
Mr Wilson did not give evidence himself about how anyone had organised or taken, or threatened to organise or take, any action against him with intent to coerce him not to address the staff meeting about strike action. There was no evidence of any coercion at all. Ms Day’s offer to Mr Wilson that he could take 1 and 2 May 2014 off work with pay cannot on any view be regarded as coercive.
All in all, there is no evidence to support this claim. On the evidence, Mr Wilson did not address the staff meeting about strike action simply because he did not attend work that day.

Misrepresentation: s.345: workplace rights

Mr Wilson said that Ms Ingram and Mr King made false statements to him about his workplace rights in that they told him on or about

11 April 2014 that they could not substantiate his complaints (being his exercise of a workplace right) and thus breached s.345 of the Act. That section provides that:
(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
It appears that Mr Wilson claims that Ms Ingram and Mr King made false and misleading statements when they said that they could not substantiate Mr Wilson’s claims against the three men. On the evidence, those statements were not false and misleading. Mr King and Ms Ingram correctly stated that they could not substantiate Mr Wilson’s complaints. That was because the conduct of the three men that Mr Wilson complained of did not appear to Mr King and Ms Ingram to be in breach of VAHS policies because it did not appear to them to involve abuse, disrespect or such things.
Moreover, the statements that Mr King and Ms Ingram could not substantiate Mr Wilson’s complaints were not statements about Mr Wilson’s workplace rights, or about the exercise or effect of the exercise of his workplace rights. Such statements would be, for example, that a person is not permitted to take sick leave, or join a union or make a complaint. The statement Mr Wilson takes objection to was not a statement within the scope of s.345 of the Act.

Adverse action: s.346: calling in a contractor

Mr Wilson said that VAHS took adverse action against him in breach of s.346 of the Act by altering his position by calling in a contractor to take over his role, because Mr Wilson proposed to engage in industrial activity, namely, organising a strike.
Section 346 of the Act provides as follows:
A person must not take adverse action against another person because the other person:
(a) is or is not, or was or was not, an officer or member of an industrial association; or
(b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or
(c) does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).
As discussed above, I have accepted the reasons that Mr King gave for calling in a contractor. Those reasons did not include the reason that Mr Wilson proposed to engage in industrial activity, namely, organising a strike. That is, I accept that VAHS has discharged the reverse onus in relation to this matter.

Adverse action: s.346: discriminating between employees

Mr Wilson said that VAHS discriminated between him and other employees in breach of s.346 of the Act in that his complaints were not adequately addressed while the complaints of other employees were adequately addressed because Mr Wilson proposed to engage in industrial activity, namely, organising a strike.
As discussed above, I am satisfied that any difference between the way in which Mr Wilson’s complaint was handled and the way in which the complaint of Ms X was handled was not for a prohibited reason, including proposed industrial action. There was no evidence of any other particular case in which there was anything that could amount to discrimination between employees.

Adverse action: s.346: dismissal

Mr Wilson said that VAHS dismissed him in breach of s.346 of the Act because he proposed to engage in industrial activity, namely, organising a strike. As discussed above, I am satisfied that VAHS’s reasons for Mr Wilson’s dismissal were for the reasons stated by Mr King and not for any prohibited reason, including proposed industrial activity.

Conclusion

As none of Mr Wilson’s claims have been made out, the application must be dismissed.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Judge Riley.

Associate:

Date: 7 December 2015

[2015] FCCA 3237

7 December 2015

Key Legal Topics

Areas of Law

Employment Law

Legal Concepts

Breach

Damages

Duty of Care

Negligence

Remedies