The applicant's case under Div 3 of Pt 3-1 of the FW Act
126 In her Further Amended Statement of Claim, the applicant alleged that, between about mid-August and mid-October 2011, Mr Kay told her that Betezy was proposing to merge with Sportsbet Pty Ltd ("Sportsbet"), that he wanted her to continue working with him after the merger, that he would make sure that she got "a really good deal" after the merger and that, even if others were made redundant, she would be "assured of a job" after the merger. These allegations were denied, without elaboration or the provision of any alternative version of the conversations relied on by the applicant. However, in answer to other allegations made by the applicant, this time with respect to a telephone conversation said to have taken place on or about 27 October 2011 (to which I refer below), the respondents alleged that, in an earlier conversation in person, Mr Kay had told the applicant that he was "happy to put her name forward as a potential employee to Sportsbet … should Sportsbet acquire the respondents".
127 Turning to the evidence, in her affidavit sworn on 25 March 2013, the applicant said:
From about mid - 2011 there was a proposal being negotiated that the employer merge with Sportsbet. The consequences of such a merger were discussed on a number of occasions between myself and Ryan. He explained that, after the proposed merger with Sportsbet, he wanted me to continue to work with the merged body. He said that he'd get me a job and a really good deal after the proposed merger. We discussed the prospect that employees might need to be made redundant as the result of any merger. Ryan assured me that even if others were made redundant, I would be assured of a job after the proposed merger with Sportsbet.
The applicant was not cross-examined on this evidence.
128 In his affidavit affirmed on 1 May 2013, Mr Kay did not refer to the applicant's evidence as such, but he did refer to the corresponding allegation in the Further Amended Statement of Claim which, as noted above, had been denied. He said:
I did say to Ms Murrihy that Sportsbet were likely to do a corporate transaction with us at the time described. I simply stated that I would be happy to recommend her for a position with Sportsbet in the event that Sportsbet acquired the assets or business of the Respondents. I did not promise or undertake anything else to her as the whole possibility of Sportsbet doing a transaction with us was very much still undecided.
This evidence was tendentious at best and, in one respect, false. Mr Kay was cross-examined on it. The extent of his dissembling is best conveyed if I set out the relevant section of the transcript:
In mid-2011, you had a conversation with Ms Murrihy about the proposed merger with Sportsbet? - Yes.
At the time, it was likely there was going to be some merger with Sportsbet? - Most likely, yes.
And you had had discussions with Sportsbet as to which employees might go over? - Very basic at that stage.
You wanted Ms Murrihy to go over and commence at Sportsbet, didn't you? - I thought it likely that she would come across, that she
You wanted her to go over and work with Sportsbet, didn't you? - Possibly.
Well, you considered her to be - in late 2011, you considered her to be an excellent employee, didn't you? - I wouldn't say excellent, no.
You considered her to be one of your best performing employees, didn't you? - No, probably not.
You told her that if the merger went ahead, you would get her a job and a good deal at Sportsbet, didn't you? - I only said that, you know, I would do my best.
You said more than you would do your best. You promised her that she would get a job at Sportsbet? - No, later, I said that I would do my best after that promise, yes.
So you promised her that you would get her a job at Sportsbet, didn't you? - I [may] have been a little bit loose with my words, yes.
I'm not asking whether or not you were loose with your words then - Okay, yes.
I just want to get this right. You promised her that you would get her a job with Sportsbet if that transaction went through? - I would do my best, yes.
Well, which is it? That you said you would do your best or you said you would promise? - I promised that I would do my best.
Mr Kay was then confronted with the transcript of the telephone conversation which he had had with the applicant on about 27 October 2011, and in which he said, "I promised you that I would get you a role there …." Mr Kay then conceded that he had promised the applicant that he would get her a role at Sportsbet. In the circumstances, I have no hesitation in accepting the evidence of the applicant set out in the previous paragraph.
129 The next relevant event took place on 20 September 2011, when the applicant spoke to Mr Kay by telephone. She complained about the respondents' failure to pay her commissions. She told him that, if she were not paid, she would get legal advice. In her affidavit, the applicant said that Mr Kay's response was: "If you take that avenue then you will be fired". In his affidavit affirmed on 1 May 2013, Mr Kay denied the applicant's allegation. He said:
I reject that I made any threat at all to fire Ms Murrihy if she obtained legal advice regarding the non-payment of her commission. I simply said to her that we should work together to get the business working right so that we could pay the commissions to her and to others who are owed money. I did not threaten her in the way she describes or at all. All I said to her was that we can resolve this process ourselves or if she were to obtain legal advice then the Respondents would be required to obtain legal advice also and there would be the usual costs associated with taking such action. I deny any suggestion that I threatened her as she alleges.
130 In their submissions on this difference between the applicant and Mr Kay about the terms of their conversation of 20 September 2011, both parties relied on a transcribed recording of the telephone conversation between the two, of 27 October 2011 or thereabouts, which the applicant had, unbeknownst to Mr Kay at the time, taken. That was the second of the two conversations to which I refer at para 148 below. I shall refer later to that conversation, but, for present purposes, it is sufficient to set out the relevant part of the transcript as follows:
Ms Murrihy: The last time I spoke to you about it ---
Mr Kay: (indistinct)
Ms Murrihy: ---you said to me, "If you're going to go legal," - I said to you, "You're going to force me into doing something that I don't wish to do and it's go legal" and you said, "Well, you go down that path and you'll get sacked," and that's exactly what you said to me.
Mr Kay: I didn't say you'd get sacked.
Ms Murrihy: Yes, you did. Gosh, Ryan, please.
Mr Kay: No, I didn't.
Ms Murrihy: You did. I've got witnesses.
Mr Kay: I didn't say you'd get sacked.
Ms Murrihy: Yes, you did. I've got witnesses to say that you did.
Mr Kay: I've never said those words, Amanda. I've never used the words, "You'll get sacked", in my life. I might have said something different, but I never said you'd get the sack.
Ms Murrihy: You did, Ryan.
Mr Kay: (indistinct) I didn't use such words.
131 Under cross-examination, it was suggested to the applicant that, anticipating that Mr Kay would repeat the threat which he was alleged to have made on 20 September, she recorded this conversation. But the threat was not repeated: to the contrary, when the subject was broached by the applicant, Mr Kay denied that he had made any such threat. On this point, I am disposed to think that nothing said, or not said, by Mr Kay in this second conversation can make a realistic contribution to the task of determining whether he threatened to fire the applicant on 20 September: by the time of the conversation, he had received, and read, a letter from the applicant's solicitors, in which their instructions as to the threat were set out in terms. It was said that this constituted a contravention of s 343(1) of the FW Act. Under the circumstances, Mr Kay is unlikely to have repeated any earlier threat to fire the applicant, or to have conceded that any such threat had been made.
132 The applicant was adamant that Mr Kay had used the words set out in her affidavit. Under cross-examination, she said that she had "never, ever been threatened to be fired before", so Mr Kay's threat was something that stuck in her mind. Within about a month, she had instructed her solicitors that Mr Kay had threatened to fire her. To my observation, her adherence to her affidavit was convincing and unhesitating.
133 I did not find Mr Kay's denials of the applicant's allegation at all convincing. At one point, his cross-examination by counsel for the applicant proceeded as follows:
And you had a conversation with Ms Murrihy in which she made complaints to you about the non-payment of her commissions? Yes.
And she said that she was going to - she threatened to take legal action, is that correct? Yes.
She said that she would get legal advice if she was not paid? And I said, yes
And you consider that to be a nasty attitude to take, don't you? I thought it was something that we could resolve, as we had previously.
That's not my question. You considered - when she said that she would get legal advice if she was not paid, you considered that to be nasty, didn't you? I don't consider getting legal advice nasty.
You gave evidence earlier on about what was nasty about her attitude and it was her threat of litigation? Well, I was meaning if she took litigation.
And threatening to take - to get legal advice - - -? I don't know if - okay.
- - - was the first step in that course, wasn't it? She just said simply that she was going to seek legal advice and I said that was fine.
It is clear that Mr Kay did not have the view that it would be "fine" if the applicant sought legal advice: the whole tenor of his remarks was that the applicant's recourse to legal remedies, or to the legal profession, would be to the exclusion both of any informal settlement of her claims as between the parties and of any prospect of her being recommended for a continuing role in the business should Betezy be taken over by Sportsbet. To the extent that Mr Kay used the word "fine" in his discussion with the applicant, it was in the heavily ironical sense.
134 The cross-examination of Mr Kay proceeded as follows:
You said, "If you take that avenue then you'll be fired"? No.
Those words, "if you take that avenue" - you were likely to use the word "avenue" there rather than path? No.
Is avenue the sort of word that you use in relation to legal action? No.
Fired. Are you saying that "fired" is not a word …? I never use the word "fire".
Which word would you use instead? "Sack"? I try to be very professional in the office. I would probably use the word "dismiss" if I was going to use such a word.
Notwithstanding the second and third denials contained in this passage, "avenue" was a word which Mr Kay used in the legal context. According to the transcript of the first of the two conversations on about 27 October 2011 which he had with the applicant, he said:
If you want to work with me, great. If you don't we leave it with the legal avenues, then I'll leave it up to them, I don't mind.
When Mr Kay was confronted with this inconsistency, he said: "I don't use it regularly, no, and I think it was a slightly different context." In the light of this unconvincing rationalisation, it is hard to take seriously Mr Kay's statement that he tried to be "very professional in the office", and would probably have used the word "dismiss" if he had had occasion to use such a word.
135 But the resolution of the question of whether Mr Kay threatened to fire the applicant on 20 September 2011 does not rest on the evidence of the two participants alone. While he was on the telephone to the applicant on that occasion, Mr Kay was in the Betezy office. Also present was another employee of Betezy, Greg Stewart. He worked in an open-plan office area, in which groups of four desks were divided by partitions about four feet high. While Mr Stewart was sitting at his desk, Mr Kay seated himself at one of the other desks in the group of four. Mr Stewart heard Mr Kay's part of the conversation with the applicant. According to Mr Stewart's evidence, Mr Kay referred to legal problems and trying to sort them out without legals. Although not purporting to recount Mr Kay's statements in terms, Mr Stewart said that Mr Kay said "something along the lines of" -
"If you go the legal way of things you won't have a job here";
"I will make things difficult";
"If that is the way you want to go, then that is what will happen".
As to the first of these statements, Mr Stewart could not remember (when he affirmed his affidavit on 13 May 2013) whether Mr Kay had said "won't have a job here", "will be sacked" or "will be fired". It was, he said, something like that. Mr Stewart heard nothing in this conversation about Sportsbet, or the possibility of the applicant having a job with that organisation.
136 Mr Stewart was cross-examined, but adhered to the evidence to which I have referred. I accept that evidence.
137 It is true that Mr Stewart could not recall the actual expression used by Mr Kay when he overheard him threatening the applicant that she would not have a job if she went "the legal way of things", but he confirmed the substance of the applicant's version of the conversation. Counsel for the respondents sought to portray as uncertain the applicant's recollection of the expression which Mr Kay had, in her allegation, used, namely, whether it was "fired" or "sacked"; or whether it was a benign prediction that she would not have a job under Sportsbet management if Mr Kay chose not to recommend her. Indeed, it was put to the applicant under cross-examination - and so put extensively - that it was in the third sense that Mr Kay's words were to be understood. Apart from Mr Stewart's inability to recall any reference to Sportsbet in the conversation (a circumstance of no real moment, since Mr Stewart was privy only to the later parts of the conversation), the problem with this aspect of the respondents' case is that it does not correspond with Mr Kay's own evidence in chief on the subject, which I have set out at para 129 above.
138 In the circumstances, I am satisfied that, in the conversation between Mr Kay and the applicant on 20 September 2011, Mr Kay threatened the applicant that, if she took legal advice about her unpaid remuneration and commissions, she would be fired.
139 In this compartment of her case, the applicant invokes s 340(1) of the FW Act, which provides:
(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.
The "adverse action" on which the applicant relies is Mr Kay's threat (see s 342(2)(a) of the FW Act) to dismiss her from her employment (see item 1 in the table in s 342(1) of the FW Act). On the findings set out above, there can be no doubt but that such a threat was made on 20 September 2011. Neither can there be any doubt but that the reason for the threat was that the applicant proposed to seek legal advice in relation to her entitlements. That is to say, if the applicant had a "workplace right" within the meaning of s 340, it is established that she proposed to exercise that right, and the threat to her was made because of that circumstance. What remains is to consider whether the applicant did have a relevant workplace right.
140 By s 341(1) of the FW Act -
(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.
The applicant relies on para (c)(ii) of this provision. She alleges that she was able to make a complaint or inquiry in relation to her employment, namely, to obtain legal advice about her rights in relation to remuneration and commission. The respondents say that s 341(1)(c)(ii) is not invoked when the employee's "ability" to make a complaint or inquiry arises from nothing more than the absence of a prohibition upon proceeding in that way: what the section requires, they say, is a relevant provision of some kind, be it statutory, regulatory or contractual, or arising from some applicable grievance procedure, under which there is some provision for the making of a complaint or inquiry.
141 Section 341(1)(c)(ii) has two presently relevant predecessors, namely, ss 659(2)(e) and 793(1)(j) of the Workplace Relations Act 1996 (Cth). They were activated upon "the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation or laws or regulations or recourse to competent administrative authorities", and upon the making of a complaint or inquiry "to a person or body having the capacity under an industrial law to seek … compliance with that law; or … the observance of a person's rights under an industrial instrument", respectively. In relation to s 659(2)(e) when it was numbered s 170CK(2)(e), Lander J (with the assent of Spender and Kenny JJ) held that a complaint by an employee to his or her employer would not be caught by the provision: Zhang v The Royal Australian Chemical Institute Inc (2005) 144 FCR 347, 351 [25]. Read literally, s 341(1)(c)(ii) would cover the making of a complaint or inquiry to the relevant employer. On one view, that would be a wide reading of the provision, but there seems to be little doubt but that the provision was intended to mean what it says. By s 15AB(1)(a) of the Acts Interpretation Act 1901 (Cth), in the construction of a provision of an Act, recourse may be had to the relevant Explanatory Memorandum for the purpose of confirming that the meaning of the provision is the "ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act". In the case of s 341(1)(c)(ii), the ordinary meaning is the wide one to which I have referred. The relevant Explanatory Memorandum noted the wider terms of the new provision by comparison with the previous s 659(2)(e), and observed that the new provision would "include situations where an employee makes an inquiry or complaint to his or her employer". One of the illustrative examples, that of "Rachel", seems apt to cover the meaning for which the applicant contends.
142 In the present case, it was not the employer to whom the applicant proposed to make a complaint or inquiry: it was her solicitor. Indeed, she had been making complaints to her employer over an extended period. It was the inefficacy of those complaints, and the applicant's frustrations with the respondents' failure to address them, that led to her advising Mr Kay on 20 September 2011 that she proposed to seek legal advice. The question, therefore, is whether the seeking of legal advice falls within the connotation of a complaint or inquiry within the meaning of s 341(1)(c)(ii). A significant innovation introduced by the FW Act was the imposition of an obligation upon a "national system employer" (such as each of the respondents was) to pay its employees amounts payable to them in relation to the performance of work in full at least monthly: s 323(1) of the FW Act. Thus the legislation picks up, amongst other things, entitlements arising under contracts of employment and gives statutory consequences to an employer's failure to make good on them. In this respect, s 323(1) is a civil remedy provision. There is - and there would have been at the time of the introduction of this provision - no reason to assume that the employees for whose benefit s 323(1) was enacted would be confined to those in unionised sectors and occupations. Perhaps more than ever before, it must realistically be accepted that individual employees, without the benefit of union representation, will often need to seek their own advice and representation in relation to rights arising under federal industrial legislation.
143 Against the wide terms of s 341(1)(c)(ii), I can think of no reason to assume that the legislature did not regard the protection of an unrepresented employee, who had rights under his or her contract of employment or other agreement with his or her employer, as within the range of protections provided by the provision. That such an employee should be able to have recourse to his or her solicitor, without the fear of repercussions in the nature of "adverse action" taken by the employer, would be well within the purposes of the section as they may be perceived in the legislative context to which I have referred. Further, to regard the seeking of legal advice as an "inquiry" within the meaning of para (c) is, in my view, a natural reading of the provision. I take the view, therefore, that the applicant's proposal, conveyed to Mr Kay on 20 September 2011, that she would seek legal advice was a proposal by her to make an inquiry in relation to her employment within the meaning of s 341(1)(c)(ii) of the FW Act.
144 It follows from my reasons above that Mr Kay's threat to fire the applicant, made on 20 September 2011, amounted to a contravention, by Betezy, of s 340(1)(a)(iii) of the FW Act. I shall hear the parties on the question of penalty.
145 In her Further Amended Statement of Claim, the applicant also alleged that, when he threatened to fire her on 20 September 2011, Mr Kay (and therefore Betezy) intended to coerce her not to exercise certain workplace rights in contravention of s 343 of the FW Act. This aspect of the claim was not, however, developed in the final submissions made on behalf of the applicant, and I take it to have been, in effect, a string in the applicant's bow secondary to her recourse to s 340. In the circumstances, I make no findings on the subject of coercion.
146 It is necessary next to turn to the direct relevance of two telephone conversations between the applicant and Mr Kay on 27 October 2011, to which I have already referred in passing. In her Further Amended Statement of Claim, the applicant alleged that, in a telephone conversation between herself and Mr Kay held on or about 27 October 2011, Mr Kay said that he had promised that he would get the applicant a job after what was then a proposed merger involving Betezy and Sportsbet, that they (Betezy and the applicant) could work "this" out between them or "get the lawyers involved", but if the applicant "did not want to play ball then he [Kay] would tell Sportsbet don't worry about the applicant and that would be it", and that, if the applicant did not want to work with him [Kay] in resolving the underpayment issue then he would not put her name forward to Sportsbet. In their Amended Defence, the respondents denied these allegations and countered with the allegation to which I have referred briefly in para 128 above, namely, that, in an earlier conversation, Mr Kay had told the applicant that he was "happy to put her name forward as a potential employee to Sportsbet … should Sportsbet acquire the respondents". I have rejected Mr Kay's limited version of that earlier conversation.
147 As I have also mentioned, the conversation which the applicant placed at 27 October 2011 was recorded. The recording as such and a transcription of it were placed into evidence by the applicant. Although no party drew attention to it, it is clear both from the recording and from the transcript that there were in fact two such conversations. One may have been on 27 October 2011, and it is a fair inference that the second followed shortly after the first. In the transcript of the first conversation, Mr Kay noted that the applicant had not been at work for two weeks, which would have been about right if that conversation occurred on 27 October or thereabouts (the applicant having been on sick leave since 14 October). At that time, Mr Kay appears to have known that the applicant had consulted her solicitors, since he said "if you want to get it legal, then fine, we'll just deal with our solicitors, can deal with your solicitor, and you know I'm not going to do anything more than leave it to the legal team"; "we can work it out or I can get the legals to it"; and "… if you want to talk to legals, then I'll just let my legals deal with your legals". There was, however, no mention of the detailed letter of demand which had been written by the applicant's solicitors and bore the date 25 October 2011. In the second conversation, by contrast, that letter was the subject of some comment, both by Mr Kay and by the applicant.
148 These conversations are relevant in the present case in two respects. One involves the potential of the second conversation to throw light back on the content of Mr Kay's conversation of 20 September 2011, and I have already dealt with that. The other relates to action which was, in about late October, taken against the applicant by Betezy. I shall commence by laying out the nature of the applicant's case in these respects, and then turn to the conversations.
149 In circumstances to which I have referred at para 21 above, the applicant's remuneration for the week ending on 31 October 2011 was not paid. Neither has she been paid any remuneration since. Shortly before that date, the applicant's access to Betezy's computer system was curtailed and, on 31 October if not before, she was effectively suspended from her employment by Betezy. The applicant claims that these measures amounted to adverse action within the meaning of Div 3 of Pt 3-1 of the FW Act, and that they were taken against her because she had complained to Mr Kay about the non-payment of her commission, and because of her solicitor's letter of 25 October 2011.
150 The respondents accept that these measures amounted to adverse action within the meaning of s 342(1) of the FW Act. Although not controversial, I would hold that they fell within at least one of paras (b) and (c) of item 1 in the table in that subsection. But the respondents resist the applicant's claim at each of the other statutory levels involved in it. They say that she did not have, did not exercise and did not propose to exercise, a relevant workplace right within the meaning of s 341. And they say that the reason for which the measures referred to were taken was not that alleged by the applicant: rather, they say that Betezy took them because of issues with the applicant's use of its "Cabcharge" facility which she had not adequately explained.
151 As to the first of these areas of contention, I have substantially dealt with the questions of statutory construction which arise above. The only additional comment which is necessary in the present context is that the applicant was here actually making a complaint (ie as distinct from proposing to make an inquiry) to her employer within the meaning of s 341(1)(c), thereby bringing herself within the context expressly referred to in the Explanatory Memorandum: see para 141 above. She complained to Mr Kay in the telephone conversations to which I have referred, and her solicitor's letter constituted another complaint. Save for the reason which actuated Betezy, therefore, the applicant has made good her allegation under s 340 of the FW Act.
152 With regard to Betezy's reason, the applicant relies on ss 360 and 361(1) of the FW Act, which 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, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
Because of the terms of s 360, the "otherwise" to which s 361(1) refers cannot be a state of facts that would admit of the relevant proscribed reason being one of the reasons for which the action challenged was taken.
153 On the Cabcharge question, Mr Kay gave evidence-in-chief as follows (and here I set out in full the evidence to which I briefly referred at para 21 above):
[In the course of conducting an investigation] it became apparent that [the applicant] was often using cab charges and they appeared to be picking her up very late in the evening or in the early hours of the morning to take her to various locations. The behaviour started to cause problems in numerous ways with sales staff working in the Melbourne office and it also reflected the fact that she had a significant drinking issue at the time and was coming home late according to the cab charge information I had obtained. I came to the view that she was abusing the cab charges and was using them for other purposes rather than work.
It was for this reason that I emailed and spoke to her in late October 2011 and asked her to explain the use of the cab charges which I had obtained and provided to her. She never responded to either my verbal or email request to provide this information…. She eventually stopped coming to work on or about 28 October 2011 because of stress. I did not take any further steps in respect of her employment and she effectively never returned to work. I did not take legal advice about how to deal with the situation and simply left it on the basis that she was suspended without pay.
Under cross-examination, it became clear that the first time that Mr Kay (or anyone on behalf of Betezy) had sent an email to the applicant about Cabcharge was on 4 November 2011. Likewise, when it was put to him that the first time that any kind of allegation of misuse of the Cabcharge facility was raised with the applicant was during the telephone conversation on 27 October 2011, Mr Kay responded: "It's possible. It was around that time, that's right".
154 In the first of the two telephone conversations to which I have referred on about 27 October 2011, Mr Kay had called the applicant, and opened by saying that there were "a few things we've got to chat about". According to the transcript, the conversation continued as follows:
Mr Kay: …One is we got our Cabcharge invoice come through. Do you realise that the Cabcharge was $1621 for last billing day period?
Ms Murrihy: Well, probably because I'm not the only one that uses it. The agents use it when they ---
Mr Kay: Okay, who else?
Ms Murrihy: Pardon?
Mr Kay: Who else used it?
Ms Murrihy: Well, whatever agents. Rob has used it to go to places, just if there's any functions on.
Mr Kay: There's Cabcharges there at 2.30 in the morning, 3.30 in the morning on a Sunday.
Ms Murrihy: Well, I don't know. I can't explain.
Mr Kay: All right, no worries.
The conversation then turned to the matter of the applicant's complaint as to the non-payment of her commissions and other remuneration, and her intention to seek legal advice.
155 After that, the applicant (who, it will be recalled, was on sick leave at the time) asked why her computer access had been taken away. At this point, the conversation proceeded as follows:
Mr Kay: I've only taken some access of [sic] you, I haven't taken all the access off.
Ms Murrihy: You've taken pretty much everything off me, Ryan.
Mr Kay: Taken some off you, well at the moment, Amanda, there's a massive investigation into your, you know, misuse of company funds with Cabcharge. If they're all legitimate, there's no worries in the world mate. Basically, we can talk about that.
Ms Murrihy: Okay then, fine.
Mr Kay: But there is a big issue here.
Ms Murrihy: So because of the Cabcharge, Ryan, so you're trying to tell me because of the Cabcharge you've taken my access away - my full access away.
Mr Kay: I have taken everyone across the company. You'll notice the contacts have been locked down. The whole company is ---
Ms Murrihy: No, I'm talking about - Ryan, I'm not an idiot so please don't talk to me like an idiot. I'm talking about ---
Mr Kay: If you talk to any staff member and you'll see that their access has been taken off - even myself (indistinct)
Ms Murrihy: I know that's not true, Ryan. I know that's not true, so please don't sit there and lie to me, okay.
Mr Kay: I'm not lying to you.
Ms Murrihy: You are lying to me. You've taken away all my access to reports, all my access to everything.
Mr Kay: (indistinct)
Ms Murrihy: You've given me the basic - you've given me the basic as in, like, call centre staff.
Mr Kay: You tell me which ones you need and I can give them to you, that's not a problem, but there is still a massive investigation into misuse of company funds. We need to - we need to get that done.
Ms Murrihy: Okay, well, you take that avenue, okay.
156 The second of these telephone conversations between the applicant and Mr Kay was concerned substantially with the applicant's decision to engage solicitors, whose letter of 25 October 2011 had by then been received by Mr Kay, and with Betezy's withdrawal of the applicant's access to its computer system. It is clear that this conversation, if not on 27 October as such, took place before 4 November 2011, since (as appears from the extract below) Betezy's letter of that date was then only a matter of intention on Mr Kay's part. What is also quite clear is that Mr Kay regarded the applicant as having crossed the Rubicon when she procured her solicitors to write their letter. At a point in the conversation where the transcript is incomplete, but where I would infer Mr Kay had made a reference to the Cabcharge issue, the applicant said that she had never done anything illegal within the company. The conversation continued:
Ms Murrihy: I've probably been your best staff member. I've caught so many people out doing the wrong thing.
Mr Kay: I know. You have been, I'm happy to acknowledge you probably have been one of our best staff members, I'm happy to acknowledge that, but that's why I don't understand why you want to rip it all up now and anyway ---
Ms Murrihy: It's not the fact that I want to rip it all up, Ryan, I'm just wanting the money that's owed to me.
Mr Kay: I understand and I've told you I'll come down and sort it out with you, but I'm not going to sort it out with you if you're going to go legal I'll get our legals look [sic] after it.
Ultimately, the applicant told Mr Kay that she was happy to speak to him "one on one", but that she was "still proceeding". The conversation continued:
Mr Kay: All right, no worries, it's your choice, and I'll send you through the Cabcharge and you can write out for me all the different uses for the Cabcharge I'd appreciate it mate.
Ms Murrihy: No, no, I definitely will. Ryan, I've never ever done anything illegal and ---
Mr Kay: its still misuse of company funds 3am in the morning on a Sunday. You can't tell me that was yours (indistinct)
Ms Murrihy: Well, I'm happy to go through it.
157 The position with the Cabcharge matter was, therefore, that Mr Kay proposed to write the applicant a letter setting out the particulars of the occasions, and times, on and at which she had seemingly misused the card. That letter was sent on 4 November 2011. The allegations made by Mr Kay related to events in the past, and it would not be credible to suggest that they provided any justification for holding the applicant out of the performance of her duties pending the completion of any such inquiry as Betezy might have had in mind conducting (that is, even if she had not been on sick leave). Before even writing the letter (much less receiving the applicant's response to it), Betezy withheld her pay due on 31 October 2011. In these circumstances, and taking into account both the findings I have made against Mr Kay with respect to the telephone conversation of 20 September and the tenor of the two October conversations to which I have referred, any finding that the applicant's complaints to Betezy about her underpayments and her having had recourse to legal means of redress were no part of Betezy's reasons for discontinuing her access to its computer system and for suspending her from her employment (by withholding payments of remuneration) would be, in my view, a most improbable one.
158 Indeed, I find that those circumstances were a reason why Betezy took those steps. It is not necessary for me to go that far, of course, since Betezy has the onus of proof under s 360 of the FW Act. To that extent, I am not satisfied that the reasons for which this adverse action was taken against the applicant by Betezy did not include the proscribed reasons on which the applicant relies, namely, her having made a complaint in relation to her employment, both to Betezy itself and to her solicitors. I would hold that Betezy contravened s 340(1) of the FW Act in these respects. I shall hear from the parties on the question of penalties.
159 The applicant sought compensation for this adverse action pursuant to s 545(2)(b) of the FW Act. She calculated her claim by reference to the remuneration which she would have received (ie if not suspended from her employment) down to 10 June 2013, including a component reflecting a 9% employer superannuation contribution, at $175,235. The only demur which the respondents ventured in relation to this was based upon the fact, which emerged during the trial, that the applicant had been in receipt of workers' compensation payments for a considerable part of the period concerned. After I had reserved, the parties forwarded a memorandum recording their agreement that the compensation to which the applicant was entitled should be quantified at $37,557.35.
160 There are two further comments which I need to make with respect to the applicant's allegations about the telephone conversation(s) on or about 27 October 2011. The first is that, as laid out in her Further Amended Statement of Claim, those allegations included the proposition that, in presenting the applicant with the alternative course of pursuing her legal remedies, Mr Kay was, on behalf of Betezy, threatening to dismiss her in contravention of s 340 of the FW Act. That allegation was not developed in the final submissions made on behalf of the applicant, and I say nothing further, and make no findings, on the subject. The second comment is to note that these same statements by Mr Kay were alleged to constitute action taken with the intent to coerce the applicant not to exercise workplace rights in contravention of s 343 of the FW Act. That allegation too was the subject of no elaboration in the applicant's submissions, from which I presume that, relevantly, she would be content with findings based on the steps actually taken against her at about that time, which have been the focus of my reasons above. I say nothing further on the subject of coercion.