Jaggi v City of Parramatta Council No 2

Industrial Relations Commission (NSW)|2023-12-12

The applicant's submissions

The applicant's Outline of Submissions set out that: "2. The Applicant claims that he was lawfully selected for the role of Senior Finance Business Partner (the Role) in July 2023 at the City of Parramatta Council (the Parramatta Council) and that his appointment was in accordance with the provision of Chapter 11 of the Local Government Act 1993. 3. The Applicant alleges that Ms Connolly, the CEO at the Parramatta Council, intervened in the recruitment process to deprive him the opportunity to be appointed on the Role. 4. The Applicant alleges that the substantial and operative reason for Ms Connolly to reject the Applicant's appointment to the Role was that he participated in proceedings under section 84 of the Industrial Relations Act 1996 (IR Act) against Georges River Council (the GRC) in 2019 under matter IRC 27004 of 2019 (the Unfair Dismissal Matter) when Ms Connolly was the General Manager (equivalent of the CEO) at the GRC. 5. In addition to these submissions, the Applicant relies on his Application for Relief from Victimisation filed on 26 July 2023 and seek orders for the Parramatta Council: I. to employ him to the Role. Il. to pay him the whole of remuneration and other financial benefits lost or foregone from 24 July 2024 onwards. … Onus and Standard of Proof 15. The Applicant submits that the Respondent bears the reverse onus found in section 210 (2) in addition to the ordinary evidentiary onus of meeting the affirmative case advanced by the Applicant. 16. However, to enliven the reverse onus on the Respondent, the Applicant must (a) identify a detriment, (b) establish that he participated in an action contemplated under section 210 (1) (g) of the IR Act, and (c) allege it to be the substantial and operative cause of Ms Connolly's decision to rob him the 17. opportunity to be appointed to the Role. " … The employee will be required to prove the elements of the alleged reason for victimisation being the elements of one or more of the paragraphs in s210(1) (for example, an applicant under s210(1) (i) will need to prove the existence of a complaint about a workplace matter concerning safety for the purposes of that sub-section). In the face of the presumption in s210(2), the onus is then on the employer or industrial organisation to show that the 'alleged matter' was not 'a substantial and operative cause of the detrimental action'". 17. The Applicant claims that he suffered a detriment in the shape of loss of the opportunity to be appointed to the Role due to a detrimental action taken by Ms Connolly and allege that the operative and substantial reason for Ms Connolly to deprive him this opportunity is his participation in the Unfair Dismissal Matter. … 19. The Respondent conceded at [34] of its submissions filed on 18 September 2023 that Ms Connolly made the final decision of not proceeding with the Applicant's appointment to the Role. 20. If follows that the Applicant has discharged his burden of evidence to enliven the reverse onus on the Respondent under section 210 (2) of the IR Act. 21. In Paula Lee v Energy Australia (No 4) [2011] NSWIRComm 120, in discussing s 210, the Full Bench considered at [10] to [11] the public interest of the reverse onus and the importance of requiring the employer to adduce evidence to displace this: [10] The respondent bears the onus of rebutting a statutory presumption that the appellant was victimised by the redeployment. [11] Section 210(2) is Parliament's recognition that the reasons for detrimental action against an employee are, of necessity, peculiarly within the knowledge of the employer. Therefore, to avoid liability the employer must negate the statutory presumption that its conduct has been for the reasons condemned by s 210(1): Heidt v Chrysler Australia Limited (1976) 13 ALR 365 at 373. The statutory imposition of the reverse onus is not a technical requirement; it serves the important public interest of ensuring that justice is done and that the legislative prescription is not defeated by the inability of an applicant to adduce evidence upon a central issue. 22. The nature of the allegations against the Respondent are such that the appropriate onus of proof that the Respondent must establish is that of the "Briginshaw" standard. This requires a consideration of the standard in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2, where Sir Owen Dixon CJ stated: " … Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. 23. The effect of these authorities is that the Respondent must in its case satisfy the Commission so that the Commission is "comfortably satisfied" that the Applicant was employed to the Role due to inadequate reference check … ." [Emphasis in original.]

The respondent's submissions

The respondent submitted that: "7. The principles underpinning victimisation in the IR Act are well established. 8. The term victimisation is not defined in the IR Act. However, in Public Service Association of New South Wales v Teterycz [1998] NSWIRComm 415, a Full Bench of the Commission considered the meaning of victimisation as it appears in s 210: "..the word 'victimise' in s 210 should be construed on a basis which corresponds with the meanings of the word 'victim' where last appearing in the definition of that word, namely, 'one who suffers some injury, hardship or loss, is badly treated or taken advantage of or the like'. The word victimise is defined, inter alia, as 'to make a victim of; to cause to suffer discomfort, inconvenience, etc'; and where used in s 210 should therefore be interpreted as cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment." 9. The Applicant must demonstrate that he has suffered a detriment, and that the detriment flowed from the reason prohibited in s 210(1)(g). 10. The Respondent accepts that the non-appointment to the role of Senior Finance Business Partner is a valid detriment for the purposes of s 210(2). However, the Respondent disputes that the Applicant is captured by the protection of s 210(1)(g)." [Emphasis in original.]
Before turning to address its case that the respondent did not act for a prohibited reason, the respondent set out its case that the applicant's claim did not fall within the ambit of s 210 of the IR Act. The respondent's case was that: "C. JURISDICTIONAL OBJECTION 11. The Respondent submits that the Applicant has participated in industrial proceedings outlined above, which is not captured by s 210(1)(g). 12. The Act contemplates protection for an employee who participates or proposes to participate in proceedings relating to an industrial matter. The Respondent submits that the Applicant cannot rely on s 210(1)(g) to enliven jurisdiction for a victimisation claim where the protected action was undertaken some four years ago. 13. Where the Act intends to encapsulate past conduct, it does so expressly. By way of example, section 210(1)(a) provides: (a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees 14. The Respondent contends that the IR Act is precise in that each of the protected grounds are couched in slightly different terms. The specific drafting of these terms indicates an intention that they apply in a specific manner. 15. Where the section intends to give protection to proposed action, it does so. Sub-sections (g) and (h) include the words 'proposes to participate' and 'proposes to engage in' respectively, which specifically identify that action not yet undertaken is protected. 16. If the drafters of the IR Act intended to capture past proceedings relating to an industrial matter, the wording of the legislation would reflect this intention. Further, if the terms of s 210(1) could be read as applying universally and without temporal qualification, there would be no need to identify past, present or future conduct in separate and distinct ways throughout the section. 17. The Interpretation Act 1987 (NSW) and Acts Interpretation Act 1901 (Cth) provide that a literal reading of the relevant legislation should be undertaken at first instance where a specific mechanism of interpretation is not provided. This should only be departed from if such a reading would produce a result inconsistent with the intention of the Act or would achieve an incongruous result. … 19. If the Act were to apply retrospectively, it would lead to impossible situations where an Applicant may repeatedly rely on their participation (as a party, witness or otherwise) on one matter ad infinitum each time a detriment was suffered in the course of their employment or prospective employment. It is the submission of the Respondent that a reading of the victimisation provisions of the Act 'broadly and beneficially' cannot be read to mean accepted universally and without qualification. 20. The Respondent's view is that this section has been applied validly in Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064 (hereafter referred to as Kinninmont). In that case, the Applicant lodged an application pursuant to s 89(7) of the IR Act and alleged that as a consequence of that, he suffered a detriment (being the termination of his employment). 21. The construction of the Act lends itself to this conclusion. At [1301-[131] of Kinninmont, Chief Commissioner Constant opined: 130. The respondent concedes that in filing the Threatened Unfair Dismissal Application the applicant was participating or proposing to participate in proceedings relating to an industrial matter. 131. The Threatened Unfair Dismissal Application was commenced on 6 September 2018 and served on the respondent on 7 September 2018. Therefore, this basis of a victimisation claim as a reason for the detriments of the Dismissal and the lost opportunities under the relevant procedures, can only apply to conduct on or after 7 September 2018, being the date the applicant's solicitor informed the respondent of the Threatened Unfair Dismissal Application. 22. The Respondent submits that this view lends itself to the interpretation that an Applicant must currently be participating or have evinced an intention to participate in industrial proceedings to enliven the protection of the IR Act. 23. In response to the Applicant's submissions at [12] - [14], the Respondent submits that the arguments advanced in Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218 (hereafter referred to as Superpace) ought not extend to the application of s 210(1)(g). In Superpace, the Full Bench formed the view that the word 'complaint' in the phrase 'makes a complaint' ought not attract an overly technical meaning. The Full Bench later commented at [30] of the decision in Superpace, that limitations should not be imposed on the reading of the section if the complaint is not made contemporaneously when the Applicant experiences the detriment. 24. While s 210(1) is to be read beneficially, this does not mean that any and all victimisation applications must be accepted. If this is the case, an applicant who has historically appeared as a witness may allege that they have been victimised based on their participation each time they suffer a detriment in the course of their employment. It cannot flow that the reverse onus can be enlivened by reference to a historical matter in conjunction with a detriment."
Turning to its case that it had in any event discharged the reverse onus, the respondent set out: "29. The meaning of 'substantial and operative reason' was considered by the Court of Appeal in Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305 (hereafter referred to as Bindaree'). Bathurst CJ observed at [53] that 'the question of whether the injury was a substantial and operative cause of the worker's dismissal is to be decided by reference to all the circumstances including the employer's evidence as to such cause'. Further, at [58]-[59] the Chief Justice also held that: 58. I also do not agree with the Full Bench that the word operative is superfluous in the section. Section 244(2) recognises that there could be more than one cause for the dismissal. The presumption will be rebutted if it is shown that the injury is not a substantial cause and one that is operative on the decision-maker at the relevant time. In General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605, the respondent was alleged to have been dismissed by reason of him being a delegate of an industrial organisation. Such a dismissal was an offence unders 5(1) of the Conciliation and Arbitration Act 1904 (Cth). Section 5(4) of that Act provided as follows: 'In any proceeding for an offence against this section, if all the facts and circumstances constituting the offence, other than the reason for the defendant's action, are proved it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge.' 59. Mason J (as his Honour then was) with whom Stephen and Jacobs JJ agreed, described the operation of the section in the following terms at 616: '... The importance of which s 9 of the Conciliation and Arbitration Act 1904-1915 (ancestor of the present s 5) then had may be ascertained from the dissenting judgment of Isaacs J in Pearce v W D Peacock & Co Ltd [1917] HCA 28 (1917) 23 CLR 199 at 205, where his Honour said of s 9: ... it is designed among other things, to preserve organisations, so that the method selected by Parliament for settling disputes shall not be thwarted. The provision casting the onus on the defendant employer means that the fact that the dismissed employee has a member of an organisation must not enter in any way into the reason of the defendant...' The majority decided for the employer because there was evidence to support the magistrate's finding that the employer was not actuated by the reason alleged in the charge. The protection of trade unions and their representatives from discrimination and victimisation by employers does not require an interpretation as extreme as that favoured by Isaacs J. It would unduly and unfairly inhibit the dismissal of a union representative in circumstances where other employees would be dismissed and thereby confer on the union representative an advantage not enjoyed by other workers, to penalize a dismissal merely because the prohibited factor entered into the employer's reasons for dismissal though it was not a substantial and operative factor in those reasons.' 30. Further, the Respondent relies on the decision of Seymour C in Petrus Paulus Hendrikus Johannes Janssen v South Western Sydney Local Health District [2018] NSWIRComm 1022, which considers whether a complaint is a 'substantial and operative reason in determining a victimisation claim. At [25] and [33] Seymour C held that: 25. ... the issue is not whether the decisions made by SWSLHD were the best or fairest reasons, or even decisions the Commission would make, but whether the evidence demonstrates Dr Janssen's complaints were not a substantial and operative cause of those reasons. 33. SWSLHD's testimony must satisfy the Commission that on the balance of probabilities, Dr Janssen's complaints were not a substantial and operative cause of the detrimental action. 31. This was endorsed by Constant CC in Kinninmont at [178]: 178. ...In victimisation proceedings the role of the Commission is not to determine whether the decision of the respondent was fair, appropriate, or the type of decision that the Commission would have made. The Commission is only concerned with determining the actual reason or reasons which motivated the decision-maker. Even if those decisions are harsh, unjust or unreasonable, if the Commission finds that they were the reasons that motivated the decision maker and not the matters alleged by the applicant in breach of s 210, the presumption is rebutted. 32. The decision maker for the purposes of these proceedings is Ms Gail Connolly, Chief Executive Officer of the Respondent Council. … 35. The Respondent relies on the affidavit of Ms Gail Connolly, which discloses her reasoning in not appointing the Applicant as two-fold. Those reasons are: a. Ms Connolly's observations about the Applicant's performance during his time as a Senior Management Accountant at GRC; and b. Ms Connolly's dissatisfaction with the identity of one of the referees provided, namely Francis Mangru (the Applicant's supervisor at GRC). 36. At [13] and [14] of her affidavit, Ms Connolly recalls her experience of the Applicant at GRC. She has, based on those experiences of the Applicant's performance, formed a view that the Applicant did not possess the skills, character or work ethic required to be successful as the Senior Finance Business Partner at the Respondent Council. 37. Ms Connolly's recollections of the Applicant's poor work ethic and at GRC was the first substantial and operative reason which informed the decision. This effectively discharges the onus imposed by section 210(1)(g) of the IR Act. 38. The Respondent accepts the reasoning advanced at [58] of Bindaree in that there may be more than one substantial and operative reason which informs the relevant decision maker. This is the case in this matter. 39. Ms Connolly's decision was also informed by the identity of one of the Applicant's referees, being Mr Francis Mangru. 40. Ms Connolly's evidence is that Mr Mangru was formerly employed by GRC and was the supervisor of the Applicant. During their employment at GRC, Ms Connolly became aware of instances when both the Applicant and Mr Mangru would leave work for periods of approximately two hours to attend the gym and return later in the day to complete their required hours as 'overtime'. 41. Furthermore, it is Ms Connolly's evidence that Mr Mangru was the subject of a notification to the Independent Commission Against Corruption (ICAC) pursuant to section 11 of the Independent Commission Against Corruption Act (1988) (NSW). 42. Ms Connolly became aware of the Applicant's proposed appointment with the Respondent Council on 6 July 2023, flowing from an email sent by Amit Sharma (Chief Financial Officer) … . 43. The evidence clearly demonstrates that upon learning of the Applicant's impending appointment, Ms Connolly requested that the references be checked to ensure they were appropriate (see the affidavit of Ms Connolly at [21]-[23]). Despite initial concerns about the Applicant's suitability for employment, Ms Connolly's email on 6 July 2023 identifies that she still sought to review the Applicant's references before making a final decision regarding his appointment. 44. There is no evidence to suggest that the 2019 industrial proceedings entered the mind of the decision maker, let alone to an extent which would lead to a finding that they were a substantial and operative reason for the decision to be made. 45. Upon being provided the references on 7 July 2023, Ms Connolly communicated her decision not to proceed with the Applicant's appointment, based on her observations of the Applicant's work ethic at GRC, the joint conduct of the Applicant and Mr Mangru at GRC, and separately her reporting of Mr Mangru to ICAC." [Emphasis in original.]
The respondent submitted that it would be unreasonable to expect the General Manager, effectively the CEO of the respondent, to personally participate in interview selection processes for every position at the respondent, but that did not modify the statutory discretion afforded to Ms Connolly by the Local Government Act.
Further, it would be unreasonable, and indeed contrary to the intention of the Local Government Act that Ms Connolly, in the specific circumstances of this case, should completely absent herself from any role in determining whether to proceed with the recruitment of Mr Jaggi, notwithstanding their prior history.
The respondent submitted that there was no obligation on it to provide feedback to unsuccessful applicants. Further, Mr Jaggi's case, that a failure by the respondent to provide him with feedback demonstrated implausibility in the respondent's position, was speculative and absurd and unable to assist the Commission in forming a view contrary to that asserted by the respondent.

Applicant's submissions in reply

In reply, Mr Jaggi submitted that the reverse onus is not merely a technical requirement, but one that requires a respondent to produce convincing evidence to comfortably satisfy the Commission that the onus is properly met.
Mr Jaggi submitted that the respondent had produced no proper evidence to support Ms Connolly's assertions that his performance and conduct was unsatisfactory at GRC and indeed went so far as to suggest that the way the respondent had conducted its case effectively conceded that no such evidence existed. Mr Jaggi submitted that the respondent's case conceded that making such allegations against him was unfair.
Mr Jaggi then set out: "6. These case laws do not suggest that even if there are serious deficiencies or inconsistencies or questions of credit in the decisions-maker's direct evidence, the Commission must accept it as conclusive to discharge the reverse onus. 7. These case laws plainly point to the trite law that even if issues of unfairness are established in the victimisation proceedings, the Commission do not have any jurisdiction to determine those issues and provide a remedy to ameliorate it. 8. In fact, the Commission has repeatedly declined to accept the decision-makers direct evidence, if their evidence is not convincing enough due to inconsistencies and/or lack of details. … 11. In other words, it is very difficult to rebut the presumption without the direct evidence of a decision-maker, but it may also not be sufficient all by itself. In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1} (2012) 248 CLR 500, it was held at [44 -45] that: The question is one of fact and 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 if no direct testimony is given by the decision maker. [Reproduced verbatim.]
Finally, Mr Jaggi made a number of submissions as to the credibility of Ms Connolly and the evidence she had given, setting out why he said that the Commission should not accept her evidence. These are set out and addressed below in considering the credibility of Ms Connolly's evidence, beginning at [82].

Ambit of paragraph 210(1)(g)

The respondent submitted that the application lacked jurisdiction because Mr Jaggi had previously participated in the Proceedings. In the respondent's submission Mr Jaggi would need to be currently participating in or have proposed to participate in proceedings in the future. This submission relied on a reading of the word "participates" in s 210(1)(g) having a particular tense.
In support of this interpretation of paragraph (g) the respondent took the Commission to other paragraphs of s 210(1), such as paragraph (a), which unambiguously set out that a prohibited basis is that a person "is or was a member or official of an industrial organisation …". (Emphasis added.)
During the hearing of oral submissions, Mr Nagle of counsel for the respondent initially submitted reliance on the respondent's written Outline of Submissions on this issue. I expressed a preliminary view against the respondent on this argument and invited any further oral submissions.
I observed that some paragraphs of s 210(1), other than (g), contained language which clearly referred to past actions, and some had language which clearly related to future actions; others were more ambiguous.
The respondent had submitted that if paragraph (g) had intended to cover past participation, it would have been worded differently to express this intention.
While it is true that the use of "participates" could be distinguished from the clearer wording "has participated in", it could as easily be distinguished from "is participating in". Accordingly, I expressed a view that the wording in paragraph (g) should best be understood as a form of "participate" which grammatically lacks a tense, that is, it could cover both past and present participation.
After consideration over a short adjournment the respondent chose not to press its submissions on past versus present participation as a requirement of paragraph (g) of s 210(1).
While the point was not pressed by the respondent, I consider it necessary to determine whether Mr Jaggi is a person captured by paragraph (g) of s 210(1). If he is not, the jurisdiction of the Commission would not be invoked.
I accept the respondent's written submissions to the extent that s 210(1) cannot be given a meaning which its words are not capable of supporting. However, they should be read beneficially and without artificially narrowing their intent to the extent that such a meaning is capable of being supported by the section.
I cannot conclude that paragraph (g) is confined to existing or proposed future proceedings. Such an interpretation would leave an obvious, and inexplicable, gap in protection for employees. That gap being all the more obvious given the breadth of circumstances covered by s 210(1) as a whole.
Unlike the circumstances in Kinninmont v Ku-ring-gai Council, the Proceedings pre-date Ms Connolly's decision to refuse to employ Mr Jaggi.
That a party, or a witness, in past proceedings may, as the respondent submitted, "repeatedly rely on their participation … in one matter ad infinitum each time a detriment was suffered in the course of their employment or respective employment", is not a basis to artificially narrow the Commission's jurisdiction. If an employee, or prospective employee, repeatedly suffers victimisation based on a past participation in a proceeding, then there is no reason they should not be able to seek a remedy from the Commission for that victimisation.
Some of the paragraphs in s 210(1) are expressed in a way which makes it difficult to understand whether they apply to all of the past, present or future, or only some of them. Paragraph (g) is an example of such ambiguity.
The Commission determines that Mr Jaggi's participation in the Proceedings against the GRC falls within the protection afforded by s 210(1)(g) of the IR Act.

Detriment

The respondent's written submissions accepted that the failure of the respondent to offer Mr Jaggi a job at the City of Parramatta Council was a detriment. During oral submissions, and while cross-examining Mr Jaggi, the respondent appeared to put in issue that he suffered a detriment. This was because Mr Jaggi was already gainfully employed at another council.
In Mr Jaggi's circumstances, and given the two jobs in question, there is little room for doubt that a failure to secure the job he sought at the City of Parramatta Council was detrimental to Mr Jaggi. As compared with his existing employment, the job he sought was apparently more senior, and certainly offered a meaningfully higher salary.
That said, it is not apparent why a refusal to employ a person, in and of itself, is not sufficient victimisation to enliven the Commission's jurisdiction pursuant to s 210 of the IR Act: see for example Public Service Association of New South Wales v Teterycz.
Quite apart from it being a matter for any individual employee where they prefer to work, the wage which they are prepared to accept and the title which they are willing to work under, entertaining the argument implicitly raised by the respondent involves the Commission engaging in value judgements which would needlessly complicate what should be a straightforward right of a prospective employee.
A refusal to employ a person because they had participated in previous relevant proceedings constitutes victimisation protected by s 210 of the IR Act without need for balancing the qualitative or quantitative merits of a person's existing employment.

The legal test to be applied

The parties agreed that when addressing the rebuttable presumption set out in s 210(2) of the IR Act it is necessary for the respondent to establish that the presumed reason was not a substantial and operative cause of the detriment suffered by the applicant, including that it is not one of two or more substantial and operative causes.
I accept Mr Jaggi's submission that the Commission will not automatically accept the evidence of the respondent but will consider the respondent's stated reasons to determine if the respondent's evidence establishes this to the reasonable satisfaction of the Commission: Briginshaw v Briginshaw.
In this case, the respondent has lead evidence from the person who says directly she is the decision-maker. In such a case it is largely a question of whether I accept her evidence that prohibited reasons are not one of the substantial and operative causes of her decision to refuse to employ Mr Jaggi: Bindaree Beef Pty Ltd v Riley; Petrus Paulus Hendrikus Johannes Janssen v South Western Sydney Local Health District; Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1].

Respondent's stated reason for refusing to employ the applicant

At face value Ms Connolly's evidence rises to the level necessary to rebut the presumption set out in s 210(2) of the IR Act. This is because she gives evidence that the sole reason she refused to employ Mr Jaggi was her view of his performance and conduct as an employee at GRC.
There are some subcomponents to Ms Connolly's views of the applicant's performance as an employee at GRC, and her view that it was significantly unsatisfactory. But, in substance, her evidence amounts to that performance and conduct being the sole reason for her actions.
In structuring a summary of Ms Connolly's evidence in this manner I have viewed her recollection of the applicant's competence and work ethic, together with her opinion of the use of Mr Mangru as a referee, as constituting a single cause.
I do not regard the objections of Ms Connolly to the referee being by Mr Mangru as a separate basis, because it is clear that Ms Connolly viewed the identity of the author of the reference as reinforcement of her view of the applicant's performance and conduct at GRC.
For reasons further set out below in addressing the applicant's submissions as to the credibility of Ms Connolly, even if the reference constituted a separate substantial and operative reason, it would not change my decision or reasoning. In that case neither of the reasons for refusing to employ Mr Jaggi would fall within those prohibited by s 201(1)(g) of the IR Act.
A view by an employer that an employee is unable to perform the basic functions of a role, and that an employee has a poor work ethic, together with the provision of a reference from a former colleague whom that employer had reported to the Independent Commission Against Corruption (ICAC), falls outside the kinds of conduct prohibited by s 210 of the IR Act.
Indeed, it would be hard to conclude other than that such a view was rational; subject to those views being wrong, or there being a basis to disbelieve that employer.
In this case it is not necessary for the respondent to demonstrate the accuracy of Ms Connolly's views, provided that I am persuaded they are genuinely held, and accept that no other substantial and operative reason for Ms Connolly's action exists.
Accordingly, it remains only to consider whether Ms Connolly's reason should be accepted as genuinely held and the only reason for her decision.

Should Ms Connolly's evidence be doubted?

The applicant submitted that there were several reasons why Ms Connolly's evidence would not satisfy me that the respondent had discharged the presumption set out in s 210(2).

Mr Jaggi denied engaging in misconduct at GRC

First, Mr Jaggi denied that he had engaged in any misconduct while employed at GRC, such as by attending a gym during working hours.
I have already set out that, based on the evidence before me, I would be inclined to find that Mr Jaggi did not engage in such conduct. That however is not the crux of the issue for me to determine.
I accept that Ms Connolly genuinely believed that Mr Jaggi had engaged in such conduct. Moreover, she was able to articulate the basis on which she held such a view, being that this conduct had been reported to her by her subordinate managers.
She also articulated a rational basis on which conduct of that nature was addressed by her and her management team at GRC without it being directly raised with the applicant.
During cross examination by Mr Jaggi, Ms Connolly gave evidence that changes had been made at GRC such that employees were required to swipe in and out of GRC premises each time they left their workplace, rather than just at the beginning and end of each day. Using this system, which was applicable to all GRC employees, it became unnecessary to specifically address conduct with individual employees as the time keeping system addressed concerns going forward.

Evidence as to ability to manage Mr Jaggi at GRC

Second, Mr Jaggi submitted that Ms Connolly's view that there would be difficulty if the GRC attempted to manage Mr Jaggi and his conduct and performance more aggressively, because Ms Connolly feared that he would make an un-meritorious workers compensation claim, were implausible.
It should be observed that Ms Connolly's evidence in this regard was more in the nature of a broader context of her view as to the difficulties in managing and supervising Mr Jaggi as an employee she regarded as performing unsatisfactorily, rather than a concern for conduct actually undertaken.
Ms Connolly again explained why she held this view, including setting out issues raised by Mr Jaggi early on during his employment at GRC such as requests for special workstation setups and complaining of a sore back.
Mr Jaggi expanded this ground by submitting that such a fear could have no basis, as any workers compensation claim successfully made by him as an employee of GRC would be fully covered by GRC's workers compensation insurance. His submission was that accordingly Ms Connolly's expressed concern so lacked credibility that it should stand against her credibility generally.
When this was raised by Mr Jaggi during his cross examination of her, Ms Connolly explained that whilst insurance was in place, an employer's claims experience was a factor in the premium which the employer would pay. Consequently, any workers compensation claim accepted against GRC would, at least over a short term, increase GRC's premium.
I did not form the view that Ms Connolly ever took or proposed to take any action against Mr Jaggi because he proposed to make a workers compensation claim. Indeed, he did not make such a claim.
I do not accept that Ms Connolly's evidence should be viewed through the prism submitted by Mr Jaggi, in that her views were so implausible they should damage her credibility generally. They do not do so. Indeed, her expressed views, while perhaps uncharitable and perhaps unfair to Mr Jaggi, were consistent with her views of him generally, and her perspective as the CEO of GRC, and so added to her credibility.

Ms Connolly's evidence as to Mr Jaggi's performance at GRC

Third, Mr Jaggi challenged Ms Connolly's evidence that Mr Jaggi was an unsatisfactory employee in the sense that his work quality was substandard.
On the evidence before me, it would be extremely hard to reach a sensible conclusion as Mr Jaggi's performance at GRC. The is little direct evidence before the Commission, other than from Mr Jaggi himself. Ms Connolly's views do not reach the level of direct evidence. There is at best some indirect evidence as to the views held by Mr Mangru, and by some others working closely enough with Mr Jaggi to have a rational basis to offer a view.
It is not necessary for me to determine whether Mr Jaggi was a high performing, low performing, or perhaps an acceptably performing employee. Mr Jaggi and Mr Mangru clearly considered Mr Jaggi to be a high performing employee. Ms Connolly disagreed and set out the reasons why she held this view.
For current purposes, it is sufficient that Ms Connolly's views are genuinely held.
Mr Jaggi also made related submissions that: 1. Ms Connolly's evidence demonstrated that she never directly raised with Mr Jaggi her concerns about his performance or conduct, and therefore the decision by GRC to make him redundant was an improper device to remove him without giving him the opportunity to respond to allegations of misconduct or underperformance; and 2. Ms Connolly's credibility was undermined by the reasonable inference from her evidence that she misrepresented to Mr Jaggi that he had a fair opportunity to apply for restructured positions at GRC when in fact it is clear from her evidence the restructure was used as a device to dismiss the applicant from his employment at GRC.
As attacks on Ms Connolly's credibility, these submissions are misconceived. Taken at face value, each submission proceeds on the assumption that Ms Connolly has a negative view of Mr Jaggi's performance and conduct at GRC. Ms Connolly gave evidence that she did have such views.
Further, these submissions contain fatal logical gaps. A CEO holding such views, and not communicating them directly to an employee several layers down an organisational structure, cannot of itself prove that a business restructuring was not genuine.
Of itself, a CEO not directly raising performance concerns with an employee several layers down an organisational structure might open a line of questioning in a challenge to a dismissal said to be a redundancy. The Proceedings related to such an issue, but as already set out, the Proceedings were ultimately resolved by an agreement directly between the parties.
I am unable to accept Mr Jaggi's submissions that any evidence by Ms Connolly, and in particular her answers during cross examination, could lead me to conclude her evidence about Mr Jaggi's work performance was anything other than genuinely held by her.

Ms Connolly should have absented herself from the recruitment process

Fourth, Mr Jaggi submitted that, as a matter of procedural fairness to him, Ms Connolly should have excused herself from the recruitment process. Further, that Ms Connolly's intervention gave rise to a strong inference of an ulterior motive, especially as she had never been a direct supervisor of the applicant.
I understood Mr Jaggi's submission to be that because: 1. it was unusual for the CEO to be involved in the selection process for a position such as the one for which he had applied; and 2. there was an onus on her to afford him an opportunity free from any predisposition by her against him; her actions demonstrated that she had acted for an improper motive.
It is difficult to understand how this submission advances Mr Jaggi's case. Whether Ms Connolly acted for the prohibited reason set out in s 210(1)(g), or for the reasons Ms Connolly maintains she intervened, it is not obvious that the fact that she intervened compels either basis for intervention as her true motivation.
This is particularly the case when it is clear that Ms Connolly intervened after she became aware that the applicant was being considered for appointment. That is, her intervention was responsive.
It is hardly surprising that the CEO did not participate directly in the whole interview and recruitment processes for an employee who did not directly report to her.
It is only marginally less surprising that the CEO be informed, and would seek to be informed, of the appointment of relatively senior staff before a final decision to employ that person had been made. Indeed, it was Ms Connolly's evidence that she had put such a process in place at the respondent.
This submission does not assist in determining whether the respondent has discharged its onus.

Identity of referee as basis to reject employment

Fifth, Mr Jaggi submitted that it was irrational and nonsensical for the respondent to reject his employment based on the identity of a referee. In the applicant's submission if a particular referee was unacceptable, the proper course would be for a prospective employer to ask for a different referee.
Ms Connolly's evidence was that she had not in fact read Mr Mangru's reference for the applicant. It was Ms Connolly's evidence that the mere fact that Mr Mangru was the referee was enough information for her to be reinforced that Mr Jaggi was not a suitable person to be employed by the respondent.
Far from being persuaded by Mr Jaggi's submission regarding references, I observe that there are many factors about a reference which an employer might weigh up in considering that reference.
Plainly one of these is what is said by the referee about the person under consideration. Another factor is what a reference discloses about knowledge by the referee of the person under consideration.
It should be obvious that the character and standing of the referee will reflect on the person who is the subject of the reference. A reference from a person held in high standing by the prospective employer will make a positive impression. Conversely, a reference by person held in low regard by the prospective employer will, rationally, reflect badly on the judgement of the person who is the subject of the reference.
Ms Connolly's evidence was that she had a profoundly negative reaction to seeing Mr Mangru was a referee for Mr Jaggi. It can hardly be surprising that Ms Connolly would have this reaction given that she reported Mr Mangru to ICAC.
Far from upholding Mr Jaggi's submission regarding Ms Connolly's credibility, because of her response to the reference given by Mr Mangru, in context of the totality of Ms Connolly's evidence, her response to that reference enhances her credibility.

Submissions by GRC in earlier proceedings contradicts Ms Connolly's evidence

Sixth, Mr Jaggi submitted that Ms Connolly's evidence should not be believed because, in the Proceedings, the GRC's position was that there was no concern about his work performance and that he had been dismissed because he was redundant to GRC's needs.
I have set out above at [31]-[32], that I refused to receive evidence which Mr Jaggi asserted supported this submission, and the reasons for refusing to receive that evidence. There is therefore no basis to make this submission.

Other witnesses should have been called by the respondent

Seventh, Mr Jaggi submitted that because further witnesses from GRC and the respondent were not called, there should be doubt about Ms Connolly's evidence.
Mr Jaggi submitted that witnesses from GRC could have been cross examined by him as to his true performance at GRC. He submitted that witnesses from the respondent could have been cross examined as to whether Ms Connolly had made any statements to officers at the respondent which contradicted her evidence about why she refused to employ Mr Jaggi.
In relying on Ms Connolly's evidence, the respondent made a decision as to how it would present its case. It relied only on the person who said she was the decision-maker. It could have called other officers of the respondent to support that case but chose not to do so.
In relying solely on the evidence of Ms Connolly the respondent took the unusual decision to subject its CEO to cross examination, with the risks that flow from such a course. Accordingly, it cannot be said that it would be expected that more junior officers of the respondent should have been expected to be called.
It is not the responsibility of a party to call witnesses on the speculative basis that the opposing party may wish to cross examine them.
As to calling witnesses from Mr Jaggi's time at GRC, it is not the role of the respondent to call a witness for the purpose of possibly proving part of the applicant's case.
In any event, even if such a cross examination had established that some further senior officers of GRC thought he was a high performing employee, that fact falls well short of directly contradicting Ms Connolly's evidence as to her views of Mr Jaggi. Much more would have been needed.
Related to this submission, Mr Jaggi submitted that the failure of the respondent to provide feedback to him as to why he was not employed, especially given the late stage in the process this occurred, suggested a prohibited reason was the true reason.
The respondent's submission was that this submission of Mr Jaggi was speculative and referenced an answer from Mr Jaggi under cross examination conceding as much.
I do not consider much can be taken from Mr Jaggi's submitted concession, as his submission on this issue was in the nature of an inference to be drawn. Equally, by itself, this submission proposes a reason to infer an improper motive, without referencing anything by way of evidence.
The respondent points to Ms Connolly's evidence that she did not provide a reason because she was not required to do so.
It is unfortunate that unsuccessful candidates can be provided little or no feedback on why they have been unsuccessful. A range of reasons may exist, from indifference by an employer to the experience of an applicant, a reluctance to offend, or as Mr Jaggi submits, an unwillingness to expose themselves to liability.
The failure of the respondent to say anything more than that it was not legally obligated to provide feedback does open the question as to what truly motivated this action. In the totality of the circumstances, I am unable to conclude that this absence does more than open the question. Had other factors been more equivocal, this question may have taken on greater significance. Absent such factors, it cannot.

Ms Connolly's oral evidence contradicted her witness statement

Finally, Mr Jaggi submitted that, during cross examination, Ms Connolly contradicted the evidence in her affidavit.
The relevant written evidence of Ms Connolly is that in paragraphs 21 to 27 of her affidavit, set out above at [26].
The relevant parts of the cross examination of Ms Connolly are: "Q. Ms Connolly, I take you to your affidavit again. Can you please read paragraphs 22 to 27 and then I can just ask my questions on that? Paragraph 22 to 27 of your affidavit. Are you ready? A. Yep. Q. Ms Connolly, the evidence from that paragraph says from paragraph 22 to 27 is that when you saw email from Mr Sharma on 6 July, at that point in time you had some sort of reservations about me, but you finalised your decision to not appoint me at Parramatta Council on 7 July 2023 when you found out that one of the referees was Mr Mangru, is that correct? A. I wouldn't say it finalised it, but essentially it was pretty much my determination that your appointment would not progress. Q. On 6 July? A. The date of the email-- Q. From Mr Amit Sharma? A. The afternoon of 6 July, yep. Q. All right, so would it be fair to say that whether it was Mr Mangru as the second referee or he wasn't as the second referee wouldn't have changed your opinion about me? A. It would have been unlikely that I would have changed my opinion." [1]
Mr Jaggi's submission was that the differences between her written and oral evidence should undermine her credibility in two ways. Firstly, because it is different as such, and secondly because her oral evidence is to the effect that Mr Mangru's reference was no part of her decision-making process.
I am unable to conclude there is a meaningful difference between Ms Connolly's written and oral evidence. Reading her written statement as a whole, and having heard her during cross examination, Ms Connolly was disposed not to employ Mr Jaggi, but was prepared to consider his references before coming to a final decision.
This is consistent with her views about Mr Jaggi. It is also consistent with a CEO who comes to a preliminary view but leaves room for doubt that further information may impact the decision she would make.
Contrary to the oral submissions of Mr Jaggi, who it must be acknowledged did not have the benefit of a transcript at the time, under cross examination Ms Connolly did not rule out changing her mind on seeing his references.
Accordingly, this submission cannot be supported on either basis.
The way in which she approached potential consideration of Mr Jaggi's references reinforced my determination that Ms Connolly decision not to employ Mr Jaggi was a single, compound reason including both her views of his performance at GRC and his use of Mr Mangru as a referee.

Conclusion

None of the applicant's submission, taken individually or together, undermine Ms Connolly as a witness of truth. Indeed, Ms Connolly impressed me as a witness whose evidence is apt to be believed.
Accordingly, my preliminary assessment of Ms Connolly's evidence stands.
The only reason the respondent refused to employ Mr Jaggi is because Ms Connolly had a strongly negative view of Mr Jaggi's work performance and work ethic, reinforced by his choice of Mr Mangru as a referee.

Other matters

The conclusion above says nothing about Mr Jaggi being a witness who should not be believed. In this matter no question of competing versions of event falls to be determined in determining this application.
I have not been required to determine Mr Jaggi's qualities as an employee, and accordingly I have not made any such determination.

Outcome

The Commission is persuaded by Ms Connolly's evidence that Mr Jaggi's participation in the Proceedings was not a substantial and operative reason for the respondent refusing to employ him.
The respondent has therefore discharged the onus set out in s 210(2) of the IR Act and accordingly the application should be dismissed.

Order

The application is dismissed. C Muir Commissioner

Endnote

Tcpt, 11 December 2023, p 70 (45) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 March 2024

Independent Commission Against Corruption Act 1998(NSW)

Conciliation and Arbitration Act 1904(Cth)

Hearing of application

The hearing of the application took place over two days. Mr Jaggi and Ms Connolly gave evidence and were cross-examined. They were the only witnesses.
Mr Jaggi filed two witness statements: 1. a statement of 25 September 2023 filed the same day; and 2. a statement in reply of 12 November 2023 filed on 13 November 2023.
Ms Connolly affirmed an affidavit on 23 October 2023, and it was filed the same day.
In another matter, also involving Mr Jaggi but unrelated to the Proceedings, Jaggi v Health Secretary in respect of Western Sydney Local Health District [2022] NSWIRComm 1032, Commissioner Sloan's reasons set out the following as to Mr Jaggi being a self-represented litigant: "Mr Jaggi was self-represented 8. As Mr Jaggi was self-represented, I was guided by the following observations of Beazley JA in Hamod v State of New South Wales and Anor [2011] NSWCA 375: "309. Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. ..." 9. That guidance led to me adopting a relatively informal approach to the proceedings, and being considerably more active than I might otherwise have been in assisting Mr Jaggi to present his case. I provided some guidance to Mr Jaggi in his cross-examination of the Health Secretary's witnesses, to clarify his lines of enquiry and to assist in making sure that they remained pertinent to the matters before the Commission. I made my own enquiries of witnesses. … 10. Further in this regard, in conducting the proceedings I had regard to the objects contained in s 3 of the IR Act, and in particular that of resolving industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality (s 3(g)). I also had in mind s 163(1) of the IR Act, which provides: 163 Rules of evidence and legal formality (1) The Commission - (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 11. At the same time, Mr Jaggi did not come across as an unsophisticated litigant. In the presentation of his case he demonstrated a good comprehension of litigation principles. His submissions revealed a solid grasp of legal reasoning, which included statutory interpretation and legal analysis supported by authorities. I am confident that Mr Jaggi had every opportunity to present his case in full."
I adopt the words of Commissioner Sloan, and I have endeavoured to conduct this hearing in the manner described by him.
Like Commissioner Sloan, I have observed Mr Jaggi to be a capable advocate in his own cause and I am confident Mr Jaggi was afforded a proper opportunity to present his case and in fact did so competently and effectively.

[1998] NSWIRComm 415

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Judgment (21 paragraphs)

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