Kandel v Golden Heart Services Pty Ltd [2025] FCA 1475

During my employment, I was forced to work seven consecutive night shifts due to understaffing, which affected my personal commitments. After I raised a complaint regarding the cancellation of my shifts, my roster was reduced to zero hours in the fifth week, despite the company having approved two nights shift staff. This action appears retaliatory and discriminatory. Please note, that I worked 7 nights shifts as an alone staff in two weeks. However, after 2 weeks, Company approved the 2 nights shifts staff through the NDIS. Despite, this my rostered hours reduced zero in fifth weeks due to retaliation of my valid shift cancellation complaints.

On 28 August 2024, I received a termination notice without due process, including any investigation reports, disciplinary meetings, or a show cause letter. The Fair Work Commission has advised me that this termination is unlawful. The Respondent offered me some amounts in compensation, which I rejected.

Due to this unlawful termination, I have faced significant financial hardship, psychological distress, and damage to my professional life, including a breakdown of personal relationships, culminating in a divorce.

This is a general protections application against Goldenheart Service Pty Ltd for retaliating against my valid complaints regarding shift cancellations. I seek remedies for the psychological distress, financial hardship, and relationship breakdown I have suffered as a result of this unlawful termination.

- **Fair Work Act 2009**: I submit that the Respondent has contravened sections 340 to 342, which protect employees from adverse action taken due to exercising their workplace rights.

- I request maximum compensation for the damages incurred due to the unlawful termination, including but not limited to:

- Compensation for psychological distress

- Compensation for financial hardship

- Compensation for damages related to personal relationship breakdowns

-Compensation for damages related to other professional relationship breakdowns

1. The substance of the complaint as articulated here is that Mr Kandel's rostered hours were reduced to zero, and later his employment was terminated, as a result of his having complained about a reduction in the shifts allocated to him.
2. Timetabling orders made by the Court provided for the parties to file their written submissions on the same date. Mr Kandel did not file any submissions on or before that date, but did file submissions later (without leave), in effect in reply to Golden Heart's submissions. In these submissions, Mr Kandel raised an additional complaint to the effect that the actions taken against him by Golden Heart contravened the Sex Discrimination Act 1984 (Cth). Apart from the obvious problem of not having been pleaded or the subject of any application to amend, this claim was unviable in the absence of any complaint having been made to the Australian Human Rights Commission or terminated by it (see s 46PO of the Australian Human Rights Commission Act 1986 (Cth)). A complaint of this nature is also prevented from being run concurrently with a claim under s 340 by s 725 (read with ss 728 and 732) and s 734 of the FW Act. It need not be considered further.

1. Section 340(1) of the FW Act provides as follows.

(1) A person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4-1).

1. The expression "workplace right" is defined for these purposes in s 341(1), as follows.

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c) is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee - in relation to his or her employment.

1. "Adverse action" is defined by s 342. Relevantly, an employer takes adverse action against an employee if the employer:

(a) dismisses the employee; or

(b) injures the employee in his or her employment; or

(c) alters the position of the employee to the employee's prejudice; or

(d) discriminates between the employee and other employees of the employer.

1. Sections 360 and 361 affect the determination of whether an action has been taken for one of the reasons referred to in s 340(1)(a). They provide as follows.

360 Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

361 Reason for action to be presumed unless proved otherwise

(1) If:

(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b) taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2) Subsection (1) does not apply in relation to orders for an interim injunction.

1. Section 340(1) is a "civil penalty provision" which has the consequence that the Court can make such order as it considers appropriate under s 545(1) if a contravention is established. Those orders include, pursuant to s 545(2):

(a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;

(b) an order awarding compensation for loss that a person has suffered because of the contravention;

(c) an order for reinstatement of a person;

(d) an order requiring a person to comply, either wholly or partly, with a notice (other than an infringement notice) given to the person by an inspector or the Fair Work Ombudsman.

1. Golden Heart had been retained to provide supported independent living (SIL) to a severely disabled young woman. The parties agreed that her details should not be made public and I will refer to her in these reasons as "June". Accommodation was organised for June at a house in a northern suburb of Sydney (the house). On 1 July 2024 Mr Kandel, who had successfully negotiated an interview process, attended orientation training with the people who had been selected to provide support to June at the house.
2. June moved into the house on 4 July 2024. Mr Kandel worked his first casual shift that night.
3. On 12 July 2024 Ms Courtney Dempsey, who was a service manager at Golden Heart, arrived at the house at around 8.30 am and noticed a smell which she thought was either gas or a fire. The house was evacuated. Mr Kandel, who had worked at the house the previous night, confirmed in a message that the smell had been present when he commenced at 11.00 pm. Mr Kandel was due to work at the house again on the night of 12 July 2024 but his shift was cancelled.
4. On 23 July 2024 the roster for the house was substantially amended following a request from June's mother that she should be attended by female staff whenever possible (the roster amendment). This resulted in Mr Kandel being removed from a shift that he was due to work on 27 July 2024.
5. Mr Kandel messaged Ms Dempsey on 23 July 2024 expressing concern about this and seeking an opportunity to discuss it, and later that day sent a similar message to Ms Grace Morris, who was retained by Golden Heart to oversee its SIL houses. Ms Dempsey telephoned Mr Kandel about the cancellation of his shift.
6. Mr Kandel worked his last shift for Golden Heart on 26 July 2024.
7. On 27 July 2024 and 29 July 2024 Mr Kandel sent further messages about the cancellation of his shift on 23 July 2024 to Ms Morris and Ms Dempsey respectively. These, together with the messages that he sent on 23 July, are referred to below as "the complaints". (Mr Kandel also relied in this connection on another message that he sent to Ms Dempsey, on 30 July 2024, but I do not read this as complaining about any action of Golden Heart.)
8. On 26 August 2024 Ms Dempsey told Ms Jessica Lennard that Mr Kandel was unlikely to be given any further shifts because of concerns about his performance. Ms Lennard had been employed in Golden Heart's human resources (HR) area since the previous year and formally became its People and Culture Manager in June or July of 2024.
9. On 27 August 2024 Ms Lennard obtained advice from an external human resources support service and then called Ms Dempsey to inform her of the decision to terminate Mr Kandel's contract. Ms Lennard prepared a termination letter which she emailed to Ms Dempsey, copying Ms Morris.
10. The same day, Ms Morris sent a message to Mr Kandel asking if he could work at the house that night. A brief exchange followed in which he restated his desire for a permanent position, and ultimately he did not work that shift.
11. On 28 August 2024 Ms Lennard instructed Ms Dempsey to issue the termination letter to Mr Kandel. She did this by email after telephoning him (the termination). The letter said, relevantly:

... we are not in a position to offer you any further work on a casual basis due to your Performance.

1. Golden Heart does not deny that Mr Kandel exercised a "workplace right" when he made the complaints.
2. Golden Heart denies an allegation that it reduced Mr Kandel's rostered hours effectively to zero after the first two of these complaints had been made, on the basis that he was not entitled to any guarantee of ongoing or definite work and had not been promised or assured that he would be offered any particular hours of work. I take this to mean that, to the extent that Mr Kandel was in fact offered less work (or no work) after 23 July 2024 (the reduction in working hours), this did not in itself constitute adverse action for the purposes of s 340.
3. Golden Heart also admits that Mr Kandel received no shifts after 26 July 2024 and that this constituted "refusing to re-employ", which can be characterised as a dismissal from employment (the refusal to offer work). In any case it is apparent that Mr Kandel's employment was formally terminated around a month later. It is not in dispute that these steps constituted "adverse action" in the relevant sense.
4. However, Golden Heart denies that the refusal to offer work, the formal termination of Mr Kandel's employment or (if it constitutes adverse action) the reduction of Mr Kandel's hours occurred for any of the reasons referred to in s 340(1) of the FW Act. In the light of s 361 of the FW Act, Golden Heart bears the onus of proving that the decisions were not made for these reasons.
5. Much of Mr Kandel's evidence and submissions focused on the roster amendment and the resulting cancellation of the shift that he was due to work on 27 July 2024. He contends that, after this time, other male support workers were rostered to care for June and that the reason proffered for cancelling his shift (ie, responding to a request from June's mother for female support workers) therefore could not have been the true reason. This decision, however, occurred before the complaints and therefore could not have been a response to the exercise of a workplace right upon which Mr Kandel's case relies. The reasons for the roster amendment per se are therefore irrelevant to his claims and, to the extent it is alleged to constitute adverse action, the timeline is sufficient to satisfy any onus of proof that falls on Golden Heart. However, the contention that other male support workers cared for June after this time may have some evidentiary relevance to the extent that Golden Heart relies on the preference of June's mother as a reason why Mr Kandel was not offered shifts after 26 July 2024.

1. Golden Heart accepted that the reverse onus of proof in s 361 of the FW Act was enlivened in relation to the refusal to offer work and termination. In order to meet that onus it relied on affidavits of Ms Dempsey, Ms Lennard and Ms Morris.
2. Each of these witnesses was cross-examined by Mr Kandel. Much of the cross-examination (and Mr Kandel's own evidence in chief) focused on issues which were not relevant to establishing the reasons why Golden Heart took the particular steps that potentially constituted adverse action in this case (such as Mr Kandel's allegation of sex discrimination and what appeared to be suggestions of impropriety by Golden Heart in its claims for payment under the National Disability Insurance Scheme). Nothing in the cross-examination of Golden Heart's witnesses led me to doubt their truthfulness or to have any significant doubts about the reliability of their recollections (which were in many respects supported by contemporaneous records). I accept their evidence.

1. Ms Dempsey was responsible for organising the rosters for the 12 to 15 staff who worked at the house. It was she who decided not to offer more shifts to Mr Kandel after 26 July 2024. She had previously discussed issues in relation to Mr Kandel's performance with Ms Morris, who recommended that she should speak to him informally and then left the issues for Ms Dempsey to manage in conjunction with Ms Lennard. There is nothing to indicate that anyone other than Ms Dempsey made a material contribution to the decision to stop offering shifts to Mr Kandel.
2. Ms Dempsey encapsulated her thought process as follows.

Towards the end of July, [June's] needs increased. Many of her needs arose during the night-time. She was becoming progressively more difficult. Because of the performance issues with Kul, his limited availability to work night shifts only, and the skills of other staff - I did not roster Kul to work with [June]. We rostered staff who were making the most difference with [June]. My own view was that we could not trust Kul to look after [June] appropriately.

1. I accept that Ms Dempsey held and was motivated by these views.
2. As to her understanding that Mr Kandel was available only for night work, messages sent by Mr Kandel to Ms Dempsey indicate that it was night shifts he was seeking.

(a) On 17 July 2024 Mr Kandel requested that Ms Dempsey "consider assigning me to this Saturday and Friday [10.00 pm to 10.00 am] shift permanently going forward".

(b) On 21 July 2024 Mr Kandel said:

As we had previously discussed, I am available to work Tuesday night through Saturday night.

(c) On 30 July 2024 (after he had made the complaints, and apparently after he had been asked about his availability for work in the fortnight beginning on 5 August), he said:

... I would like to propose the following availability for the foreseeable future: I am available and willing to work Monday to Sunday night shifts on a permanent, ongoing basis.

1. As to the concerns about Mr Kandel's work performance, Ms Dempsey gave the following evidence.

(a) Mr Kandel regularly "clocked in" for his shifts but often neglected to "clock out", which made it difficult to process his pay.

(b) Mr Kandel made mistakes in administering June's medication. Sometimes he gave her medication that she was scheduled to receive at a different time and sometimes he did not give it to her at all. While mistakes were not unknown, Mr Kandel was the only worker who failed to administer June's medication at all. This prompted Ms Dempsey to send an email to all staff on 16 July 2024 and a text message specifically to Mr Kandel. When she spoke to him about this issue he "did not give [her] a direct response, he just shrugged his shoulders". Errors in Mr Kandel's administering of medication continued.

(c) Ms Dempsey noticed that on some occasions Mr Kandel dressed June in clothes that were too big for her or not appropriate for the weather. A major issue from her point of view was that Mr Kandel dressed June in "pull-ups", which she used as a sanitary pad, at times when she was not menstruating. Ms Dempsey learned that June's mother had made a complaint about this and one of the other support workers had spoken to Mr Kandel about it. Ms Dempsey also explained to Mr Kandel that pull-ups should not be used when they were not needed.

(d) Ms Dempsey frequently went to the house in the morning after Mr Kandel's night shift and found it difficult to tell what, if any, work he had done. Often there was no record of what had happened during the shift.

(e) The shifts that Mr Kandel worked were designated as "active" (rather than "sleepover") shifts, which meant that he was supposed to be awake and ready to attend to June throughout the night. From around 15 July 2024 Ms Dempsey formed a suspicion that Mr Kandel was sleeping through at least part of his shift. She formed this suspicion partly because she noticed on some occasions (and other staff complained) that the bed in the office appeared to have been used during Mr Kandel's shifts, and there was no record of any work having been done during those shifts. She also received a report from another support worker (Caroline Neto) who, after working the shift prior to Mr Kandel, had to go back to the house to retrieve her car keys and found Mr Kandel, when he eventually opened the door, to be "dishevelled" and partly undressed.

(f) Ms Dempsey arrived at the house around 8.30 am on 12 July 2024 and immediately noticed a "smell of fire or gas". She determined that the house had to be evacuated. Mr Kandel, who had been there overnight, reported that it had "been like that for a while" but he had not called anyone. She later had an exchange of text messages with Mr Kandel, in which he said that the smell had been present from when he arrived. The evacuation of the house led to all shifts on 12 July 2024 being cancelled.

1. Ms Morris was Ms Dempsey's supervisor but does not appear to have had any direct role in rostering decisions. She gave evidence of Ms Dempsey raising concerns about Mr Kandel's performance, of a very similar nature to those described in Ms Dempsey's evidence, several times a week. Ms Morris also recalled complaints about Mr Kandel's performance by Ms Neto. Ms Morris performed an audit of client files and found that Mr Kandel was not preparing required paperwork or not doing so to the required standard.
2. This evidence allows me to be comfortably satisfied that Ms Dempsey stopped offering Mr Kandel work in late July 2024 because she understood his availability to be limited and she had significant concerns about his performance. It is not necessary to determine whether Ms Dempsey's understandings were correct. The evidence for the basis of those understandings is at least sufficient to mean that strong evidence would be needed to support a conclusion that they were not genuine.
3. I find, therefore, that Mr Kandel was not refused work for any of the reasons referred to in s 340(1) of the FW Act.

1. Ms Dempsey gave evidence that, after a few weeks of Mr Kandel not being on the roster, she approached Ms Lennard and said that she "could not see us rostering [Mr Kandel] anytime soon" because of his performance and the availability of staff with more appropriate skills. She described to Ms Lennard the concerns that she had about Mr Kandel's performance (which are summarised above). Ms Lennard recalled a conversation along similar lines, which she said occurred on 26 August 2024.
2. Ms Dempsey deposed that, after some further discussions about what to do about Mr Kandel, she received a telephone call from Ms Lennard on 28 August 2024. Ms Lennard told Ms Dempsey that Mr Kandel's contract was being terminated because of his poor performance; she would be sent a termination letter; and she was to telephone Mr Kandel to explain what was happening and then email the letter to him. Ms Lennard did not describe this conversation, and gave evidence that she sent the termination letter to Ms Dempsey on 27 August 2024, but these differences are not material.
3. Ms Lennard had called somebody whom she described as "our external HR support" on 27 August 2024 and asked if it was appropriate to terminate Mr Kandel's contract on the grounds of poor performance. She obtained advice (to the effect that Mr Kandel should be told the business was not in a position to offer him further shifts), followed by a template termination letter in the terms set out at [21] above.
4. It is apparent that it was Ms Lennard who made the decision to terminate Mr Kandel's employment with Golden Heart, but that in doing so she relied on what Ms Dempsey had reported to her. This makes both of their states of mind potentially relevant to identifying, for the purpose of s 340(1) of the FW Act, the reasons why the action was taken (see, eg, Wong v National Australia Bank Limited [2022] FCAFC 155; 318 IR 148).
5. Ms Lennard deposed, and I accept, that:

The decision to terminate [Mr Kandel's] employment was based solely on the performance concerns Courtney raised with me. There were no other reasons for the dismissal.

1. I am also satisfied, based on Ms Dempsey's evidence, that the performance concerns that she expressed to Ms Lennard were genuine concerns and that she raised them solely because she thought they were significant.
2. I find, therefore, that Mr Kandel's employment was not terminated for any of the reasons referred to in s 340(1) of the FW Act.

1. As noted earlier, Golden Heart did not specifically deny that it had reduced Mr Kandel's working hours effectively to zero and appeared to treat this as a distinct action from the refusal to offer any work after 26 July 2024. As I understand Golden Heart's position, it effectively denied that the reduction of working hours, in itself, constituted adverse action.
2. Mr Kandel appeared at some points to be suggesting that he was a full time employee of Golden Heart. However, when tested in cross-examination, this evaporated into assertions that he was working long hours or that he was "available 24/7". No formal employment contract was in evidence, but messages exchanged in July 2024 between Mr Kandel and Ms Dempsey and Ms Morris clearly show a shared understanding that he was a casual employee who was seeking (but not being allocated) more, and more regular, work. To the extent that Mr Kandel sought to paint a different picture in his evidence, I do not accept that he was being truthful.
3. Mr Kandel bore the onus of proving that adverse action occurred, including (if relevant) the terms of the employment relationship between him and Golden Heart. There is no persuasive evidence that he had been led to expect regular hours of work, let alone that Golden Heart had given him any commitment on this issue. It is reasonably clear that Mr Kandel was being employed by Golden Heart on a casual basis and had been given no guarantee that he would be offered any particular amount of work.
4. The conclusions which I have set out above as to the reasons why Golden Heart did not offer work to Mr Kandel after late July 2024 apply equally to the reduction of his working hours (to the extent that that constitutes a separate action). That reduction was the consequence of Ms Dempsey's concerns about Mr Kandel's work performance and her understanding as to his availability.
5. To the extent that it is necessary to make any findings concerning the reasons why Golden Heart made the decision on 23 July 2024 that resulted in Mr Kandel's 27 July 2024 shift being cancelled (and caused him to make the complaints), I accept the evidence of Ms Dempsey. June's mother had both requested female staff wherever possible and made a complaint about June being dropped off at her house wearing pull-ups. The shift that Mr Kandel was due to work on 27 July 2024 would have included taking June to her mother's house. Ms Dempsey was worried that if June was dropped off by a male support worker there might be further complaints, especially if June was dressed in pull-ups. This explains why, as part of a broader redesign of the roster of workers caring for June, Mr Kandel was removed from the 27 July 2024 shift.
6. In the light of these findings, I am satisfied that the reduction in working hours was not motivated to any extent by the complaints. It is therefore not necessary to reach a view about the consequences of Mr Kandel having had no guarantee of any particular hours of work. The point was not developed to any extent and it is not obvious how it interacts with Golden Heart's acceptance that not offering Mr Kandel any shifts after 26 July 2024 could be regarded as a form of dismissal. It is preferable not to attempt to decide this point in a case in which it does not arise.

1. It follows from what I have said above that the originating application must be dismissed. Golden Heart did not seek any order as to costs, presumably in the light of s 570 of the FW Act.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kennett.