Disposition
105 As I have already said, Littlepay admitted that it took adverse action within the meaning of s 342(1) of the Fair Work Act against Ms Buckeridge by terminating her employment on 3 December 2021. It was also admitted that Ms Buckeridge made the Griffin Complaint and the Shayan Complaint, and that the making of those Complaints were exercises of her workplace rights.
106 As Littlepay submitted, that meant that:
[T]he Court's focus can be upon whether the [r]espondent has discharged its onus of showing, on the balance of probabilities, that the Griffin Complaint and the Shayan Complaint (and the [taking of sick leave]) were not substantial or operative reasons for Mr Shayan's decision, taken on behalf of the [r]espondent, to dismiss the [a]pplicant.
107 As French CJ and Crennan J (with whom Gummow and Hayne JJ agreed) said in Barclay at 517 [44], the central question is "why was the adverse action taken?"
108 As to the sick leave allegation, if the adverse action was taken because Ms Buckeridge was absent on sick leave, then that adverse action was unlawful.
109 Section 361(1) of the Fair Work Act requires the court to presume that the answer to this question is "yes", unless or until Littlepay proves to the contrary. It therefore falls to Littlepay to establish that Ms Buckeridge's dismissal was not actuated, in any way, by her having exercised those workplace rights.
110 As Snaden J said in Serpanos v Commonwealth [2022] FCA 1266 at [95], "[m]ore accurately, [s 361(1)] requires evidence as to what did not actuate the dismissal (which is a task most often discharged by proving what did)". See also Barclay at 546 [146] (Gummow and Hayne JJ).
111 Chief Justice French and Crennan J in Barclay at 517 [45] said that:
This question [why was the adverse action taken] is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer …
(Citations omitted; emphasis added.)
112 It follows that if Mr Shayan's direct testimony as to what actuated his reasons for dismissal is accepted as reliable, then Littlepay will have discharged its onus. Mr Fetter accepted as much in his closing address ("You have before you evidence on affidavit as to Mr Shayan's reasons, which, if they're to be believed, exonerate him and the company").
113 As Snaden J said in Serpanos at [124]:
A respondent may rebut the statutory presumption for which s 361(1) provides by leading evidence as to why it engaged in the conduct that an applicant seeks to impugn. The question for determination starts and ends with whether, in fact, those reasons actuated that conduct. … At issue is simply whether [the reasons for which it did] were, in fact, the reasons that animated that conduct.
(Emphasis added.)
114 Ms Buckeridge submitted that she was dismissed because she exercised her workplace rights in making the Griffin Complaint and making the Shayan Complaint, and because she was absent on sick leave.
115 Her closing written submissions on the reasons for dismissal ultimately relied on were as follows:
7. The Court should reject Mr Shayan's evidence as to his reasons. He was an unimpressive witness.
8. …
9. Things took a turn for the worse in early 2021, when Ms Buckeridge began complaining about Mr Griffin, a "valuable" new hire. Mr Shayan resented the complaints and wanted to shield Mr Griffin from their consequences. It is this which prompted Mr Shayan to consider (after the June 2021 meeting) retrenching Ms Buckeridge.
10. The last straw, it seems, was Ms Buckeridge's request for a formal investigation, made on 19 July 2021. Mr Shayan resented the "impact" of the investigation on Mr Griffin, and the cost to Littlepay. As soon as the Blax report landed, he decided that Ms Buckeridge's role should be abolished; although he may be accepted in his evidence that he intended to consult with her about redeployment before taking the final decision to dismiss her.
11. However, on 19 September 2021, Ms Buckeridge complained to ICM about Mr Shayan. Mr Shayan was very upset by the complaints and wanted to be "cleared".
12. By Friday 26 November 2021, Mr Shayan knew that WorkLogic had found the allegations "unsubstantiated" but only on the basis that Ms Buckeridge had not participated in an interview (which she was not required to attend).
13. Whether he was "cleared" or not, Mr Shayan was still highly aggrieved by the fact that serious allegations had been made against him. He therefore determined to dismiss Ms Buckeridge without consulting with her about redeployment; this would ensure that she could not repeat her offers to redeploy to London, and ensure that the outcome would be her dismissal.
14. He made sure of this outcome by rushing the process, insisting on the Friday meeting (which she was not bound to attend), and then relying on her failure to attend the meeting as a reason to proceed with the dismissal.
15. The fact that Mr Rogers' job is in substance the same as Ms Buckeridge's former role shows that "redundancy" was always a fig leaf.
116 Littlepay submitted that Mr Shayan's reason for dismissing Ms Buckeridge was due to redundancy, and that I should accept Mr Shayan's sworn evidence in his 17 November 2022 affidavit that:
27. [D]uring 2021, I decided that it was necessary to restructure the legal function due to the following operational reasons:
(a) the commercial function being based in London;
(b) the majority of our contracts being entered into in jurisdictions other than Australia, mainly being in the UK, Europe and the USA;
(c) the difficult difference in time zones between Melbourne, the UK, Europe and the USA;
(d) problems getting legal work completed due to the difficult time zones;
(e) a change in the nature of the legal support required; and
(f) regulatory and compliance aspects of the role, which require close engagement with partners, and being better suited to someone in the jurisdiction.
…
38. Once Paul [Griffin] started, it became increasingly apparent to me that it didn't make sense for the legal function (the role carried out by Rebecca) to be based in Australia, as these two roles (commercial and legal) required daily collaboration. Prior to hiring Paul when I was managing commercial negotiations, having the legal function in Australia working closely with myself worked well. By the same logic, having the legal function in the UK and close to the commercial activities would be more efficient and effective.
117 Mr Fetter challenged Mr Shayan on the proposition at paragraph [38] of his affidavit in the following exchange:
And you've said in your affidavit that there needed to be daily collaboration between Ms Buckeridge and Mr Griffin about that, yes?---I believe that - yes.
Yes. And there's such a thing as a telephone, isn't there?---Yes.
Yes. And there's video and emails and all the other tools of modern communication, yes?---Yes, but the working day of the UK is completely opposite to the working day of Australia. So these were - you know, it was just a very inefficient structure to be having. It would mean that either Ms Buckeridge would be doing lots of late night calls or vice versa, and it just wasn't very effective.
But Ms Buckeridge had been doing late night calls since she was hired in 2017, hadn't she?---To some extent, but most of the - as I said, most of the commercial work that involved interactions with Ms Buckeridge was done by myself, and that's why we hired the role in Australia at that time.
Well, Mr Shayan, what I'm putting to you is nothing really changed in the role. Ms Buckeridge had been dealing with late night calls since 2017 perfectly well. You disagree, don't you?---I do disagree, and I think it was a very ineffective way to run the operation. I think it - you know, we've validated that since we've changed the structure.
118 Mr Shayan further deposed that Littlepay had (and has) "very little Australian work" and that its significant contracts are with institutions based in Europe:
40. Littlepay has a small number of very significant contracts. These contracts are typically with government transport agencies, financial institutions such as Visa, Elavon, and Mastercard, and private transit operators. These financial institutions are all based in Europe. Given the nature of the services provided and the nature of the clients, Littlepay is required to engage in very detailed regulatory processes and contracts.
41. Our main business activities are in UK and across Europe. The usually very different time zones to Australia have often made it difficult to arrange and organise meetings with the legal function and to facilitate the smooth flow of legal work. We often have very little control or flexibility over when meetings are held in regulated tenders and we are often sent a meeting time by the clients (or potential clients) and expected to attend the meeting at the time requested.
119 As such:
42. There were significant problems with the legal function in this regard. Given that most of the company's clients were (and are) based in the UK and Europe, and the new Global Head of Commercial was based in London, to minimise some of the difficulties caused by different time zones, it was not practicable for the General Counsel role to be based in Melbourne on an ongoing basis. I felt Rebecca was unable to process an adequate volume of legal work, partially due to the impracticality to simply go and meet or speak with the legal counterparts at a client or partner.
…
51. The nature of Littlepay's business means that there are a number of technical compliance and regulatory issues (such as data protection and privacy for example) and I had come to see that it didn't make sense to have a general counsel based in Melbourne dealing with regulatory stakeholders in the UK and Europe, even ignoring the time zone issues. I am not a data protection expert, but it is my general understanding that the data protection issues in Europe are particularly complex and the UK's exit from the European Union has made this even more complicated. I was concerned that we might fail to meet our compliance and regulatory requirements if we continued to try and manage UK and European legal compliance and regulatory issues in the way that we had been from Melbourne.
52. In my view, the compliance and regulatory aspects are the most important elements of the business's legal functions. To me, this is the really important piece. That's often what takes most of our time in the legal area including contracting. It is the data compliance aspect that is very complicated. The commercial part is really quite straightforward.
120 Mr Fetter also challenged this part of Mr Shayan's evidence in the following exchange:
All right. Well, let's come to that. Another reason you advance at paragraph 51 on 302 is that:
The nature of the business means that there are technical compliance and regulatory issues such as data protection which wouldn't make sense to be done from Melbourne.
You see that?---Yes.
Now, again, you don't cavil with the proposition that Ms Buckeridge has got the expertise to do that work?---No, I do not.
Okay. And so it's just a question of whether someone who is based in Melbourne is able to do, for instance, European data protection work, and I suggest to you that that's routinely done. That Australian lawyers are doing global work; do you agree with that or you can't say?---I can't say.
All right. Well, I put to you that, specifically for the Littlepay context, a Melbourne lawyer could deal certainly with non-urgent issues of data protection and privacy on Melbourne time; do you agree with that?---As I said, it's a question of efficacy, not a question of whether it can be done, but how well it can be done. That's the issue. And it was my feeling that it could be done better if the position was structured in the time zone with commercial and the partners and the customers.
And just to make sure we're on the same page, when you say "it could be done better", we're only talking about the delay potentially between European time and Australian time. It's a time delay; yes?---It's a collaboration delay. It's being able to sit next to someone and have a discussion. I think face-to-face contact is important. It wasn't possible at this time, but it is possible now, and that makes a difference. It's - and being in the same time zone for eight hours in a day, gives you a lot more opportunity to have dialogue. It's - - -
Well, how are you based here, Mr Shayan?---Well, it's very difficult. I question my location often. I have to travel to Europe quite a bit, and if I could do it all again, I probably wouldn't be based here. It's - it's not ideal.
Well, Ms Buckeridge could fly if that was important to the company that - the face-to-face meeting. You would send her, wouldn't you?---Yes, but it wouldn't be - it would be expensive and not ideal. Again, it could be done, but it's not effective or efficient or ideal.
121 I do not accept Mr Fetter's submission that Mr Shayan was an unimpressive witness. On the contrary, in my view Mr Shayan was a reliable witness. Nothing about his demeanour or content of his responses under cross-examination suggested anything other than that he was a witness of truth. His responses under cross-examination were reliable and consistent with his affidavit evidence, and the contemporaneous documents.
122 In particular, I accept the truth of his evidence, including that given in the course of his cross-examination (evidence that was consistent with his affidavit evidence) that Ms Buckeridge's position was made redundant, and the legal function was restructured, because:
(a) the commercial function was based in London;
(b) the majority of our contracts were entered into in jurisdictions other than Australia, mainly being in the UK, Europe and the USA;
(c) of the difficulties posed by the difference in time zones between Melbourne, the UK, Europe and the USA;
(d) of problems getting legal work completed due to the difficult time zones;
(e) of a change in the nature of the legal support required; and
(f) regulatory and compliance aspects of the role are being better suited to someone in the jurisdiction (not being Australia).
123 Mr Shayan's oral and affidavit evidence was also consistent with the "September board update" at paragraphs [39]-[41] above, including that Littlepay had expanded into international markets, the desire to have a legal team geographically located to collaborate with stakeholders in the EU and the Americas.
124 The chronology of events is important.
125 Mr Shayan requested that the board approve his proposed restructure of Littlepay's legal function - including making redundant the General Counsel position - on 14 September 2021.
126 Ms Buckeridge did not send the first email that forms part of the pleaded Shayan Complaint until 19 September 2021 and Mr Shayan was not informed of the Shayan Complaint until 30 September 2021 (see paragraphs [56] and [62] above).
127 It is thus clear that Mr Shayan had resolved to make redundant the General Counsel position, and therefore dismiss Ms Buckeridge, before Ms Buckeridge exercised her workplace right in making the Shayan Complaint, a point that Mr Shayan made persuasively during the course of his cross-examination, as follows:
My view was that the decision [regarding Ms Buckeridge's employment] had already been made prior to these allegations coming to light and had been approved by the directors. The investigation - the allegations were made. I was asked to put the redundancy on hold. We did that. The investigation ran its course. And once it finished running its course, we resumed with the decision that had been made earlier.
…
[As] my affidavit shows, we were about to proceed with this redundancy several weeks or months earlier. And it was put on pause because of this investigation. So this was simply when the investigation was over and there was nothing, really, for us to consider at that point, we continued with what had been agreed and approved by the board.
128 I am thus satisfied that Littlepay did not dismiss Ms Buckeridge because, or for reasons including that, she made the Shayan Complaint.
129 The gravamen of Ms Buckeridge's submission that Mr Shayan terminated her employment because she made the Griffin Complaint was as follows:
Things took a turn for the worse in early 2021, when Ms Buckeridge began complaining about Mr Griffin, a "valuable" new hire. Mr Shayan resented the complaints and wanted to shield Mr Griffin from their consequences. It is this which prompted Mr Shayan to consider (after the June 2021 meeting) retrenching Ms Buckeridge.
The last straw, it seems, was Ms Buckeridge's request for a formal investigation, made on 19 July 2021. Mr Shayan resented the "impact" of the investigation on Mr Griffin, and the cost to Littlepay. As soon as the Blax report landed, he decided that Ms Buckeridge's role should be abolished; although he may be accepted in his evidence that he intended to consult with her about redeployment before taking the final decision to dismiss her.
130 Mr Fetter pressed Mr Shayan about the allegation of Mr Shayan's alleged "resentment" in the following exchange:
… I mean, when someone makes a complaint, you accept they have a right to make a complaint in good faith. Yes?---Absolutely.
And it may turn out that what they're complaining about isn't substantiated. Yes?---That is correct.
And so when you now in your evidence are fastening upon the fact that some of the allegations that Ms Buckeridge made were not substantiated, I want to suggest to you [that] you were aggrieved by the mere making of the allegations, weren't you?---No, I was not.
And in part you were aggrieved because it consumed the time and resources of Littlepay, quoting from the email, to investigate them. Yes?---No. That is untrue.
131 Mr Shayan also said in the course of his cross-examination that "before [Ms Buckeridge's] complaints against Mr Griffin … we had already discussed the abolition of the general counsel role in Australia, but it had not been formalised, written or taken to the board".
132 This is consistent with Ms Tod's evidence that, after the 18 June 2021 meeting, she recommended to Mr Shayan that Littlepay "undertake a broader restructure involving abolishing the Australian General Counsel position", and that by early July 2021, Mr Shayan "had decided to proceed with the restructure to remove [Ms Buckeridge's] position and to notify [her] of a redundancy accordingly".
133 I accept the truth of Mr Shayan's sworn evidence that he was not actuated by resentment or any such thing when he made the decision to make redundant Ms Buckeridge's position, and that the true and only reasons for doing so were the reasons Mr Shayan gave under his oath.
134 I am thus satisfied that Littlepay did not dismiss Ms Buckeridge because, or for reasons including that, she made the Griffin Complaint.
135 In summary, for the reasons I have given, I accept that:
(1) Mr Shayan terminated Ms Buckeridge's employment only because of redundancy, as set out at paragraph [116] above and in the termination letter; and
(2) Mr Shayan did not terminate Ms Buckeridge's employment because, or for reasons including that, she exercised her workplace rights in making the Griffin Complaint or Shayan Complaint.
(3) Littlepay's termination of Ms Buckeridge's employment did not contravene s 340(1)(a)(ii) of the Fair Work Act.
136 Littlepay also bears the onus of proving that Ms Buckeridge's dismissal was actuated by reason of her absence on sick leave. See s 361(1) of the Fair Work Act.
137 The applicant's written submissions did not address this issue in any meaningful way, other than to say that "[a]s to the absence on sick leave, there is no dispute that the [a]pplicant was protected by [s 352] at the time of dismissal".
138 Mr Fetter cross-examined Mr Shayan about Ms Tod's 29 November 2021 email to Ms Buckeridge (set out at paragraph [86] above), relevantly as follows:
Now, again, just to be clear, at this time she's on - she's absent on sick leave, yes? Yes.
And so you must have known that it was unreasonable to require her to attend a meeting when she was on sick leave, yes? No, because I think our view was that she had been on sick leave for a very extended period. She had used up all of her sick leave provisions. We had been without any legal resource which was very important to us, for a number of months. And we needed to continue to run the business. So we had to proceed at that point, and we were advised that it was appropriate to do so.
But, Mr Shayan, she had every right to take paid sick leave, didn't she? Yes. And she did.
Yes? She used all her paid sick leave.
And then she also had the right, to your knowledge - or tell me if you weren't aware - under the Fair Work Act, even after the sick leave had run out, if she was unwell, she had the right to be absent from work for a period? Yes, but the business also has a right to continue to operate, and we were advised that by that time we were - we were entitled to continue with operating the business.
You say you were advised, were you? Yes. I believe so.
You don't speak of the advice in your affidavit, do you? I don't think so. No. But we were - we were, you know - we were engaged with legal advice throughout this process.
All right. Well, unless you really want to tell me what was in the advice, I won't press you for it. But the - I want to take you up on the idea that there was some sort of hurry to get this done. Ms Buckeridge - there was nothing in front of you that suggested that her absence was going to last months and months, was there? It had already lasted several months. So
I think six weeks, to be fair, at this stage? Six weeks of sick leave and - and no indication of any time to return. So
But you had said earlier in your evidence that it was going to take a long time to hire a replacement anyway in the UK, remember that? Yes, which we had put on pause throughout this period.
Yes. So what I'm putting to you was that there was no hurry on the Monday to sack her by the Friday. Do you agree? There was no reason to not continue with the decision that we had made by - you know, that we had formalised a couple of months earlier. So we just didn't understand - we didn't know why we shouldn't proceed, I think.
Well, you were seizing upon the fact that you had this apparent vindication through the Worklogic report to get rid of her, weren't you? No. That's incorrect.
139 As noted at paragraph [10] above, and as is clear from that transcript extract, there was some dispute about whether Ms Buckeridge had a legal entitlement to be on sick leave at the date of her dismissal.
140 That is beside the point.
141 Section 352 of the Fair Work Act prohibits an employer dismissing an employee because they are temporarily absent from work because of illness or injury. It does not does not preclude the dismissal of an employee while the employee is temporarily absent from work because of illness or injury. See, by way of example only, Khiani v Australian Bureau of Statistics [2011] FCAFC 109.
142 I should also note that whether it was "unreasonable to require [Ms Buckeridge] to attend a meeting when she was on sick leave" is also beside the point. A claim under Pt 3-1 of the Fair Work Act "is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome". Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 at [48] (Bromberg J).
143 The only relevant question is whether Ms Buckeridge's taking of sick leave actuated her dismissal. In my view, it did not. As I have explained, I am satisfied on the evidence that the only reason that Littlepay dismissed Ms Buckeridge was because of redundancy.
144 Accordingly, Littlepay's termination of Ms Buckeridge's employment did not contravene s 352 of the Fair Work Act.
145 For those reasons, Ms Buckeridge's claims under the Fair Work Act must be dismissed.