Perez v Northern Territory Department of Correctional Services - [2016] FCA 476 - FCA 2016 case summary — Zoe

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Perez v Northern Territory Department of Correctional Services

[2016] FCA 476

Federal Court of Australia|2016-05-06|Before: White J

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Source facts

Court

Federal Court of Australia

Decision date

2016-05-06

Before

White J

Source

Original judgment source is linked above.

Judgment (25 paragraphs)

[1]

The appeal is allowed in part.
The order of the Federal Circuit Court of Australia made on 29 May 2015 is set aside.
The matter be remitted to the Federal Circuit Court of Australia for the trial Judge to consider the relief, if any, to be awarded in respect of the adverse action constituted by the recommendation in the report of 15 October 2013 concerning the Appellant's employment, and for determination of the Appellant's claim that his "suspension" on 23 December 2013 constituted adverse action by the First Respondent in contravention of s 351 of the Fair Work Act 2009 (Cth).
Without the leave of the trial Judge no party is to be at liberty to adduce further evidence on the remittal.
Save as expressly provided in these orders, the Appellant's application in the Federal Circuit Court of Australia be dismissed.
The appeal is otherwise dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[2]

WHITE J: 1 The appellant was employed by the first respondent between 11 February 2013 and 10 February 2014 as a Prison Officer in Training at the Alice Springs Correctional Centre (the ASCC). His employment was pursuant to a fixed term contract and it came to an end on the expiry of the term of that contract. 2 On 13 March 2014, the appellant commenced proceedings in the Federal Circuit Court (the FCC) alleging that the first respondent had, between June and December 2013, contravened the Adverse Action Provisions in Pt 3-1 of the Fair Work Act 2009 (Cth) (the FW Act), that it had victimised him, and that it had breached an implied term of mutual trust and confidence in his contract of employment. Later, he amended his application to make allegations of a like kind against the individual respondents. 3 The claim against the first respondent was dismissed by the FCC: Perez v Northern Territory Department of Correctional Services [2015] FCCA 1384. The FCC Judge did not formally determine the appellant's claims against the individual respondents. It seems that he took the view that they were not parties to the proceedings. This is the Court's decision on the appeal from the FCC judgment. 4 The appellant represented himself in the FCC as he did on his appeal to this Court.

[3]

Background 5 After some initial training, the appellant commenced on the roster at the ASCC on 27 April 2013. 6 On 12 June 2013, an incident occurred which gave rise to a number of the appellant's complaints (the 12 June Incident). He was thought to have entered the courtyard of the maximum security section at the ASCC (G Block) in a manner which breached ASCC protocols. This concerned his senior officers as they considered that it had had the potential to place both the appellant and other prison officers at risk. This was particularly so as a prisoner was said to have engaged in threatening behaviour in the courtyard shortly beforehand, by damaging a garbage bin and throwing rubbish around. They considered that the appellant should not have entered G Block in these circumstances without having carried out a proper assessment of the security implications. 7 The seventh respondent, Mr Adeyemo, who was the Senior Officer on duty at G Block on 12 June, asked the appellant for "a minute" explaining why he had entered G Block in the circumstances. The appellant provided two responses on the same day. The first was an email of 13 paragraphs in which he denied that he had acted inappropriately. The second was as follows: I entered courtyard of Reception Block of G Block with Mr Fullerton and four other prison officers. Without claim to any prior security expertise and experience, my assessment of the situation did not ring any alarms. It is apparent that I need further training in security assessment and some literature/handouts to raise my awareness and situational assessment skills. 8 Mr Adeyemo then counselled the appellant about what he perceived to have been a lapse of security and about the need for him to improve his vigilance in the prison setting. The FCC Judge accepted Mr Adeyemo's evidence that he then regarded the matter as closed and had not proposed taking any further formal action. 9 The appellant underwent a performance appraisal, as a routine part of his training as a prison officer, on 27 June 2013. Other prison officers in training were undergoing similar appraisals at the same time. The appellant requested that Mr Adeyemo be his appraiser. The fourth respondent, Mr Tunney, who held the position of Chief Prison Officer of Training, attended the appraisal. Mr Adeyemo made the appraisal by using a pro-forma document which required an assessment of the appellant's performance against a number of desired attributes. Many of the assessments made by Mr Adeyemo were complimentary of the appellant. However, Mr Adeyemo mentioned the "need for [the appellant] to improve in the requirement to follow appropriate procedures in the conduct of his duties in the workplace without jeopardising the safety of staff, prisoners and the public" and identified areas for improvement in some other aspects of the appellant's performance. These included: Desirable quality Mr Perez's qualities Ensures all reports and general entries are clear, concise and accurate Officer Perez['s] journal entries are well written but he has omitted prisoners IJIS number and failed to record muster counts in his role as Golf Block journal keeper … . He submits reports as required and within the required timeframe to the best of his ability. I have identified Officer Perez training need[s] in Minute writing and advised him accordingly. … Response to emergencies by following appropriate procedures while ensuring staff, prisoners and the public are not put in danger I have observed and identified needs for Officer Perez to improve in the requirement to follow appropriate procedures in the conduct of his duties in the workplace without jeopardising the safety of staff, prisoners, and the public. He is require[d] to be supervised and directed appropriately whilst he need[s] to personally take responsibility for being conscious of security issues surrounding various activities and roles of a Prisoner Officer. I have observed Officer Perez to sometimes, in the course of being in a hurry to complete assigned tasks [to have] overlooked a number of factors that require consideration to safely complete the tasks assigned to him. I have personally pointed this out to Officer Perez in the past. The most recent example is the exposure of himself and other Officers to risks whilst on duty in the Maximum Security on the 12th of June 2013. …

[4]

10 The appellant was provided with a copy of his appraisal and made the following written comments on it, "assessment is objective and good source of feedback for continuous learning/acquiring of skills for the job". 11 However, on the following day (28 June) the appellant sent a long email to Mr Adeyemo and Mr Tunney. It was in the nature of a defence of the conduct which Mr Adeyemo had critiqued in the performance appraisal. In relation to the 12 June Incident, the appellant refuted the criticisms of his conduct, denied that there had been a rubbish bin, damaged or otherwise, in the G Block courtyard, asserted that another officer, Mr Fullerton, had been "right behind" when he entered the courtyard, and asserted that other officers had been "not far behind" Mr Fullerton. He suggested that the CCTV footage of the G Block courtyard would confirm his account. 12 The appellant also raised a number of other matters in the email. These included statements diminishing the importance of some issues which had been raised by the suggestion that they were "moot and academic", suggestions that more experienced officers had "probably" committed the same errors, a suggestion that experienced officers had "mysteriously mucked up my block doc not once, but twice", and the suggestion that account should be taken of the circumstance that work in G Block is onerous. 13 Mr Tunney regarded the appellant's email as an unusual response to what was a routine performance appraisal. He was aware of a number of other issues in the appellant's work performance and was concerned that the appellant was not responding to criticism. Mr Tunney decided to convene a meeting with the appellant on 1 July 2013 to discuss the various issues. The third respondent, Ms Bell, the Deputy Superintendent of Operations at the ASCC, Ms Davey, a Prison Officer and union delegate, and Ms Steinborner, a Senior Prison Officer, also attended. Ms Davey understood that her role, as union delegate, was to ensure that the meeting was conducted fairly and appropriately in the appellant's interests. Ms Steinborner was the note taker. The Judge appears to have accepted that her notes were a reliable record of what occurred in the meeting. 14 The appellant's submissions characterised this meeting as a formal performance management meeting. This is understandable because Ms Steinborner recorded that Ms Bell explained at the outset of the meeting the process for "performance management" and said that it was a "formal" meeting. Moreover, the number and seniority of those attending suggests that it was not an informal meeting. For convenience, I will refer to the meeting as the Performance Review Meeting (PRM). 15 The Judge appears to have accepted Ms Davey's evidence that, at the outset of the PRM, Ms Bell informed the appellant that its purpose was not disciplinary but instead to inform him of difficulties which were perceived by management in his performance and to ascertain how those problems could be addressed. Mr Tunney and Ms Bell did most of the talking during the PRM. They addressed a variety of matters, including criticism of the appellant's emails to Mr Adeyemo, his need for awareness in the prison environment, his apparent unwillingness to accept criticism, the need for the appellant to comply with security protocols, and the need for the appellant to defer to senior officers. The Judge accepted that the tone of the PRM may have been "somewhat stern" at [190]. During the course of the PRM, the appellant was invited to, and did, provide responses on the matters raised by Mr Tunney and Ms Bell. 16 On 3 July 2013, other prison officers raised issues with Mr Tunney concerning the appellant's performance. Mr Tunney proposed a further meeting with the appellant to discuss these issues. This meeting was scheduled for 11 July 2013. However, that meeting did not take place because the appellant was absent from work. If fact, he was off work as a result of depression and anxiety from 10 July 2013 until 12 November 2013. On 5 August 2013, the appellant submitted a claim for workers compensation, alleging that he had suffered a psychiatric injury. His application was unsuccessful. 17 The appellant resumed work on 12 November 2013 pursuant to a graduated Return to Work Plan but could not return to the main prison facility due to apparent anxiety. This meant that the appellant could not fulfil the formal requirement for the conferral of Certificate III in Correctional Practice, a formal qualification necessary for a Prison Officer in Training to progress to a Prison Officer. 18 While he was off work, the appellant lodged (on 24 July 2013) a formal complaint of harassment with Ms Martin, the Human Resources Consultant at the ASCC. The letter of complaint commenced with the following: Formal complaint of workplace harassment I write to lodge a formal complaint of workplace harassment against a group of senior ranking prison officers composed of A/SPO Michael Adeyemo, A/CPO Dustin Salmon, CPO Frank Tunney, and Deputy Superintendent Nicole Bell of the Alice Springs Correctional Centre. 19 The appellant went on to recount in some detail the events commencing with his entry into G Block on 12 June 2013. He then continued: There is only one (1) issue involved in this complaint, namely, 1. Did I enter the Reception Unit's courtyard alone and was there a smashed up rubbish bin in the middle of the courtyard as I entered? (Attachment No. 2) I would like this matter investigated by an independent body at the earliest opportunity. I would like a viewing of the entire 12 June 2013 day shift CCTV footages of both the Grill Area and the Courtyard Area of the Reception Unit in G Block from 0800 hr to 1224 hr to determine if I did enter the courtyard alone and if there was a smashed rubbish bin in the middle of the courtyard upon my entry. If the CCTV footage proves that I went into the Courtyard Area in the company of fellow officers and that there was no smashed rubbish bin in the middle of the courtyard (Attachment No. 2), the imputation that I placed myself at risk and so many others in potential danger is baseless. If thus, I wish this behaviour of repeated accusations to cease immediately and deleted from my personal records. 20 The appellant's outline of submission on the present appeal also refers to complaints of harassment which he lodged with the sixth respondent, Mr Ballantine, who was the Deputy Superintendent of the ASCC, on 24 July 2013, with Mr Ferguson on 3 August 2013 and Mr Middlebrook on 13 August 2013. However, these seem to be copies of the original complaint addressed to Ms Martin on 24 July and not separate complaints. 21 It was common ground that the making of the complaint by the appellant on 24 July 2013 was the exercise by him of a workplace right within the meaning of ss 340 and 341 of the FW Act. 22 The appellant's harassment complaint was investigated by Ms Andrews, an Audit and Investigations Officer in the Professional Standards Unit of the first respondent. The FCC Judge found that the Professional Standards Unit is intended to be both independent of, and at arm's length to, the senior management of the respondent, at [46]. In her Preliminary Investigation Report provided to Mr Middlebrook, the Commissioner of Corrections, on 15 October 2013, Ms Andrews concluded that there was no credible evidence that the appellant had been subject to harassment at the ASCC. She then recommended that consideration be given to the termination of the appellant's employment contract. 23 Mr Middlebrook provided a copy of Ms Andrews' report to the appellant on 15 October 2013, at the same time encouraging him to return to work to complete his training. He did not take any action on Ms Andrews' recommendation concerning the termination of the appellant's employment. 24 As already noted, the appellant resumed work on a Return to Work Plan on 12 November 2013. However, his mental state was such that he felt unable to return to work in the main prison, and he refused to work with two particular officers. Accordingly, he was allocated to The Cottages, a low security area outside the main prison. 25 On 13 December 2013, an incident occurred at The Cottages. A direction was given to the appellant to prepare prisoner bed packs. It seems, although there was no direct evidence on the topic, that the officer giving the instruction expected that the appellant would in turn instruct prisoners to perform this task. However, the appellant understood it as a direction that he was to perform the work personally and regarded it as an attempt to humiliate him. He made a complaint by an email on 14 December 2013 under the subject heading "Being assigned to perform prisoner's work/job": I was working at Cottages on Friday, 13 December 2013. At approximately 2.45pm, I (me specifically) was instructed by the SPO, Ms Mitchell, to prepare nine bed packs and nine sets of prisoner supplies for incoming prisoners. As a good soldier, I performed her instructions without any arguments. However, this action of hers may easily be construed for something worse than constructive dismissal and or injury to my employment by management. If you can please update Ms Mitchell on the present conditions of my employment, the onus of proving that her actions were not on management's instructions will be removed from ASCC. 26 The second respondent, Mr Yan, who was the General Manager of the ASCC, then discussed the appellant with Ms Bongiorno, the Manager of Workplace Injury Solutions. This is an organisation which provides assistance to employers within the public sector in the Northern Territory in relation to workers' compensation issues. Ms Bongiorno had been overseeing the appellant's return to work, with the assistance of a rehabilitation consultant and a psychologist. The rehabilitation provider, Ms Levot, considered that there was a significant risk of the appellant suffering further harm if he continued in the workplace. After discussing this with Ms Bongiorno, Mr Yan determined on 23 December 2014 to stand the appellant down on full pay, effective from 23 December 2013, and he did so. The appellant referred to this as his "suspension". The appellant was then away from work until his employment concluded on 10 February 2014. 27 On 30 January 2014, Mr Yan informed the appellant by letter that he had not been recommended for a permanent position as a prison officer, that his contract of employment would not be extended, and that his employment at ASCC would end on 10 February 2014. 28 On 23 December 2013, the appellant filed an application in the Northern Territory Work Health Court. As I understand it, he sought payment of workers' compensation in respect of the four month period during which he had been absent from work.

[5]

The appellant's claims in the FCC 29 Arising out of the course of events just described, the appellant made a number of claims in the FCC. First, he alleged that the respondents had, in contravention of s 340 of the FW Act, taken adverse action against him in seven different ways. These can be summarised as follows: The adverse action alleged The ASCC Officers involved

Destruction of the CCTV footage and the failure to act in a timely way on the appellant's request in his email of 28 June 2013 that the CCTV footage be viewed. Mr Adeyemo and Mr Tunney
Destruction on 21 August 2013, of 97% of the CCTV footage, with the consequence that it was not available for viewing by Ms Andrews in her investigation of the formal complaint of harassment which the appellant made on 24 July 2013. Mr Yan and Mr Brown
The failure/refusal to investigate or act on the appellant's formal harassment complaint, in particular, by causing the destruction of the CCTV footage. Mr Ballantine
The subjecting of the appellant to a formal performance management meeting on 1 July 2013. Ms Bell and Mr Tunney
The recommendation in the report of 15 October 2013 that consideration be given to the termination of the appellant's employment on the expiry of his 12 month fixed term. Ms Andrews
The suspension of the appellant on 23 December 2013 after he had commenced proceedings for workers' compensation in the Northern Territory Work Health Court. Mr Yan
The suspension of the appellant on 23 December 2013 because he had exercised his workplace right to take reasonable care for his own safety and that of others by not following the schedule for a fast track Return To Work System Desensitisation Plan and by not performing his pre-injury duties in the gaol itself. Mr Yan

[6]

30 The appellant made a further complaint of adverse action. This was that Mr Yan's suspension of him on 23 December 2013 constituted discrimination on account of his disability, in contravention of s 351(1) of the FW Act. 31 Next, the appellant alleged that the first respondent had breached a term of "implied trust and confidence" in his employment contract and claimed damages in respect of that breach. The breach had occurred, the appellant alleged, because he had been "victimised" for filing the complaint, and by the conduct of the first respondent's employees in fabricating evidence, subjecting him to administrative and disciplinary action, subverting his rehabilitation, and by the deleting 97% of the CCTV footage. 32 These were the appellant's causes of action. Although not the subject of a separate claim, the appellant submitted that he had been the subject of a form of conspiracy by other officers to discredit him. The FCC Judge referred several times to this complaint: at [43], [60]-[61], [143], [257]. 33 A recurring complaint of the appellant has been that the criticism of his conduct in the 12 June Incident was unjustified. In particular, he denied that there had been any rubbish bin, damaged or otherwise, in G Block when he entered it, and asserted that he had not entered the Block alone because another officer (Mr Fullerton) had been "right behind him", and that other officers had been "not far behind". The appellant considers that these circumstances would be confirmed by the footage from the CCTV cameras monitoring G Block. It was standard practice in the ASCC for CCTV footage to be kept for about nine weeks before the tapes were erased and re-used. As will be seen, ASCC retained the footage for 12 June 2013 for the period between 11.40 am and 12.10 pm only. The appellant is very critical of the conduct of ASCC in this respect, as he contends that viewing of the entire footage taken between 8 am and 12.25 pm would have vindicated his claims. 34 It is to be noted that the appellant did not make any claim at all concerning the non-extension of his employment after 10 February 2014. On the appeal, the appellant confirmed that this was the case.

[7]

The decision in the FCC 35 As already noted, the FCC Judge determined the appellant's claim on the basis that it was brought against the first respondent only. 36 The FCC Judge had reservations about aspects of the appellant's evidence, assessing him to be "a very proud person" [102] with a "somewhat difficult and, at times, querulous personality" [103]. He considered that the appellant lacked objectivity, that he was "not naturally inclined to accept criticism easily" [103] and that he had a "marked propensity to bear a grudge, out of proper proportion, to any grievance of which he perceives he has been the subject" [104]. The Judge considered that the appellant had become fixated on the injustice he perceived to have occurred on 12 June 2013, with a lack of capacity to see events from any perspective other than his own [106]. 37 The FCC Judge regarded the respondents' witnesses as being more dispassionate and more reliable, especially as their evidence was supported by a number of contemporaneous documents. 38 The Judge viewed the CCTV footage taken in G Block between 11.40 am and 12.10 pm on 12 June 2013 and made findings as to what it showed. He found that the CCTV footage did not support the appellant's contention that he had waited some 15-20 minutes at the security gate to Block G before entering [126]; that the appellant had entered Block G by himself but that four other officers had followed in what seemed to be close proximity, in the sense that they had not had to walk a great distance from their position in the secure area into the G Block courtyard. The appellant had then moved to one side of the G Block courtyard, in a position which was somewhat physically isolated from that of the other officers. 39 The Judge then made findings about the events which had occurred whilst in the courtyard, and subsequently, based on his assessment of the evidence given by the various witnesses. 40 The FCC Judge found that the appellant did not have a "workplace right" to have the CCTV footage retained or even a right to view that footage [256]-[257]. He found that the footage for 12 June 2013 which had been destroyed (all the footage other than that for the period between 11.40 am-12.10 pm) had been erased in accordance with the routine practice of the ASCC [258], and, accordingly, that the appellant had not established that he had suffered the adverse action which was the subject of his first three contentions [259]-[261]. 41 The FCC Judge accepted that the appellant had been entitled to make a complaint in consequence of his perception that he had been dealt with harshly by Mr Adeyemo and Mr Tunney following the incident on 12 June but that the PRM had not caused him detriment of the kind required to constitute adverse action. This meant that the Judge was not satisfied that adverse action of the kind to which s 342 refers had occurred in relation to the PRM. Further, and in any event, the FCC Judge considered that the first respondent had discharged the onus imposed by s 361 of the FW Act of showing that, even had there been adverse action arising in connection with the PRM, it had been because of the legitimate concerns of Mr Adeyemo, Mr Tunney and Ms Bell [253]-[254], and not for a proscribed reason. 42 The FCC Judge did not determine the appellant's claim that Ms Andrews' recommendation that his employment not be continued after the expiry of the initial 12 month term constituted adverse action. I will return to the consequences of that circumstance later. 43 The FCC Judge accepted that the suspension by Mr Yan of the appellant on 23 December 2013 was injurious to the appellant's employment, notwithstanding that he had continued to receive his regular remuneration [262]. 44 The FCC Judge did not determine, at least expressly, the appellant's claim that he had been the subject of adverse action, in contravention of s 351 of the FW Act. The reasons which the Judge gave for rejecting the appellant's adverse action claim with respect to his suspension and termination of employment do bear upon this claim, but they cannot reasonably be regarded as determinative of it. Again, I will return to the consequences of this conclusion later. 45 The FCC Judge did not address the appellant's breach of contract claim. It appears that the appellant had tacitly abandoned that claim following the decision of the High Court (delivered on 10 September 2014) in Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169. This claim was not, in any event, the subject of appeal to this Court. 46 The FCC Judge rejected the appellant's claims of conspiracy saying: [144] It seems farfetched, in the extreme, that Mr Fullerton or any other officer would be motivated to behave in such a way against a junior officer, who had only recently joined the Department. In my view, the allegations made by Mr Perez are more indicative of his unusual personality and perhaps unsuitability to be a prison officer, which requires the maintenance of a significant level of esprit de corps with other officers, than of the existence of some conspiracy against him. 47 Later, the Judge found that there was no evidence to support the appellant's claim that other officers at the ASCC were "malignly motivated against him" [258].

[8]

Legislative provisions: adverse action and workplace rights 48 Section 340 of the FW Act proscribes the taking of "adverse action" against a person because (relevantly) that person has a "workplace right" or has exercised, or proposes to exercise, a "workplace right". Section 340 provides: 340 Protection (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). (2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs. Note: This subsection is a civil remedy provision (see Part 4-1). 49 Section 341 states the meaning of the term "workplace right" for the purposes of s 340. Section 341(1) provides: (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. These terms, and matters bearing upon their application, are elaborated in the remaining provisions in s 341. In the present case, the appellant relied on the rights specified in subs(1)(c)(ii), namely, his right as an employee to make a complaint or enquiry in relation to his employment. 50 The forms of "adverse action" to which s 340 refers are defined in s 342(1). Relevantly to this appeal, an employer takes adverse 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. 51 As noted, s 340(1) requires that there be a causal link between the taking of the adverse action, on the one hand, and the person's possession, exercise, or proposed exercise, of a workplace right, on the other. Section 361 has the effect of placing the onus of disproving the causal link on the respondent. At the relevant time, s 361(1) provided: (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. 52 Put broadly, an adverse action claim involves three elements: (1) a person has a workplace right, has exercised such a right, or proposes to exercise such a right; (2) the respondent took "adverse action" of the kind defined in s 342 against that person; (3) the respondent took the adverse action because of the possession, exercise or proposed exercise of the workplace right. 53 The onus is on an applicant to establish the first two elements. Section 361 has the effect that the onus is on the respondent to disprove the third element: see Tattsbet Ltd v Morrow [2015] FCAFC 62 at [119]; Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 at [27]-[28]; Short v Ambulance Victoria [2015] FCAFC 55 at [54]. 54 The principles bearing upon a respondent's discharge of the s 361 onus were discussed by the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41. They were summarised by Buchanan and Tracey JJ in State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; (2014) 246 IR 441 at [32] as follows: • The central question to be determined is one of fact. It is: "Why was the adverse action taken?" • That question is to be answered having regard to all the facts established in the proceeding. • The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made. • It will be "extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer." • Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable. • If, however, the decision-maker's testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.

[11]

The findings that no adverse action was taken 61 The five actions which the appellant contends the FCC Judge should have found to be forms of adverse actions are as follows: (a) Mr William Yan's (Yan) indefinite suspension of the Appellant effective 25 December 2013 found (sic) adverse action by the learned primary judge in [262] through [265] of his full decision. (b) Mr Frank Tunney (Tunney) and Ms Nicole Bell (Bell) conducted formal performance management action against Appellant fatal to Appellant's employment causing him to suffer mental disability which led him to lose his ability to earn Certificate III in Correctional Services and causing him to lose his opportunity to earn permanent employment as a full-pledged Prison Officer. (c) Ms Kyra Andrews (Andrews) and Mr John Brown (Brown) actively contributed to the spoliation and destruction of the CCTV footage evidence requested by Appellant for evidentiary purposes. (d) Mr Michael Adeyemo (Adeyemo), Tunney, Yan, Mr Grant Ballantine (Ballantine) passively or by administrative action, contributed to the spoliation and destruction of CCTV footage evidence requested by Appellant for evidentiary purposes. (e) Appellant's Formal Harassment Complaint Investigator Andrews, who was appointed by the Respondents/decision-makers, recommended at the conclusion of her Report that the employment contract of [the] Appellant be terminated. 62 As can be seen, this list did not include the first respondent's decision not to extend the appellant's employment: only the appellant's suspension, the "spoliation of the CCTV footage", and Ms Andrews' recommendation concerning the termination of his employment. As already noted, the appellant did not contend at first instance that the non-extension of his employment constituted a form of adverse action. 63 The appellant's complaint that the FCC Judge erred in failing to find that his suspension constituted adverse action can be dealt with shortly. Contrary to the appellant's submission, the Judge found expressly, at [244] and [262] that his suspension on 23 December 2013 was a form of "adverse action". I will address later the appellant's complaint that the FCC Judge erred by not finding that this adverse action had been for a proscribed reason. 64 This means that in relation to the present grounds of appeal, it is the submission that the FCC Judge had erred by failing to find that the conduct of the PRM, the "spoliation and destruction" of the CCTV footage, and Ms Andrews' recommendation constituted forms of adverse action which must be considered in more detail.

[12]

The performance review meeting 65 The Judge found that it was Mr Tunney who had initiated the PRM, at [24]. Mr Tunney was prompted to do so by the appellant's email of 28 June, which he regarded to be an unusual response to a routine performance appraisal taking place at an early stage in a prison officer's training, especially given that disciplinary action was not even being contemplated. In addition, Mr Tunney was aware of other reported problems concerning the appellant's performance, including his handcuffing of prisoners and the manner in which he made counts of prisoners, at [24]. 66 The FCC Judge accepted that Mr Tunney was an experienced prison officer and considered that he had given his evidence in a calm and measured way. Although the Judge did not say so expressly, it is evident that he accepted Mr Tunney's evidence. In particular, the Judge accepted Mr Tunney's evidence that prisons are potentially dangerous places, that prison officers work in a structured hierarchical way, that it is necessary that they adhere to the prison systems and protocols, that they comply with directions, and that they exercise continual vigilance, at [119]-[122]. 67 In relation to the PRM, Mr Tunney deposed: … I formed the view that the Applicant failed to follow the correct procedures in relation to muster and prisoner movement records; that the applicant suggested that the records were changed by an unspecified prison officer; and the Applicant did not appear to have the ability to properly assess risk or seek direction from senior officers in the presence of a potential risk. Mr Tunney went on to depose that a focus of the PRM was on his perception that the appellant did not take readily to criticism and was not amenable to direction by senior prison officers. He regarded these as matters of concern given the necessary chain of command in the prison context. The Judge found that Mr Tunney had been "entirely justified" in calling the meeting on 1 July, at [183]. 68 The Judge rejected the appellant's claims that he had been harassed, bullied and rebuked "like a little boy" at the meeting. He accepted the evidence of Ms Davey [191] that Ms Bell had told the appellant expressly at the commencement of the meeting that it was not disciplinary in nature and that she had not considered that the appellant had been harassed or bullied during the PRM. This was important evidence because Ms Davey attended the meeting in her role as a union delegate to ensure that, in the appellant's interests, the meeting was conducted fairly. 69 The Judge concluded that the performance review on 1 July 2013 did not constitute adverse action because there was no evidence indicating that the appellant's employment with the first respondent had been "injured" in the sense contemplated by s 342(1)(b) of the FW Act, because no decision had been made by anyone to alter any incident of the appellant's employment, and because there was "nothing to indicate that any black mark, either figurative or actual" had been placed on the appellant's employment record with the first respondent, at [251]. The FCC Judge considered instead that the senior prison officers had been entitled to give feedback to the appellant, including criticism of aspects of his performance. Feedback of this kind was legitimate and could not be characterised as adverse action. 70 The appellant particularised his complaint concerning the PRM in [6] of his amended notice of appeal. His submissions were to the effect that the PRM should have been characterised as a form of adverse action because it was adversarial (Grounds 6.01 and 6.02), because it was attended by four senior prison officers (Ground 6.04), because the outcome was adverse to him (Ground 6.08), because Mr Tunney had (he submitted) admitted that the PRM was in retaliation for his emailed complaints of 28 June 2013 (Ground 6.11), and because it was contrary to Employment Instruction No 8 Pt 2.2(e) made pursuant to s 16 of the Public Sector Employment and Management Act (NT) (the PSEM Act) (Ground 6.12). 71 It is convenient to address first the admission which the appellant attributed to Mr Tunney. I do so on the basis that the word "retaliation" and its cognates connote action taken in reprisal for earlier conduct. 72 The evidence upon which the appellant relied for the assertion that Mr Tunney had admitted that the PRM was retaliatory was the following passage in Mr Tunney's cross-examination: Q: So, Mr Tunney, if Mr Perez never wrote the email of 28 June, you would not have gone to Ms Nicole Bell, would you? A: No. I would not have. Q: You would not have gone? A: No … At that point. At that point. No. Q: … And then of course that you call a meeting that was scheduled for 1 July. Would that have happened? A: At that point, it wouldn't have happened. It just prompted - it just prompted us to see there were some issues there … and we needed to have a chat to you to … Q: Okay. 73 The appellant's submission rests, inappropriately, on a "but for" analysis. It assumes that because the PRM would not have occurred but for his letter of complaint, it was in retaliation for the making of the complaint. 74 In my opinion, the evidence of Mr Tunney cannot be reasonably be characterised as an admission by Mr Tunney that he arranged the PRM as a form of retaliatory action in the sense noted above. Mr Tunney's evidence indicates no more than that he had been prompted to have the PRM because of the content of the appellant's email of 28 June 2013. Mr Tunney was not admitting that he had arranged the PRM in order to "get back" at the appellant. The appellant's reasoning is inappropriate. 75 The appellant also relied on [15]-[16] of Mr Tunney's affidavit. Those paragraphs do not contain any admission by Mr Tunney. 76 The predecessor of s 342(1) Item 1, was s 290K(1) of the Workplace Relations Act 1996 (Cth) (the WR Act). In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 at [4], the plurality said that subpara (b) "covers injury of any compensable kind" and that subpara (c) is "a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question". 77 The authorities indicate that an employee's position may be altered to his or her prejudice regardless of whether the employee suffers any loss or infringement of a legal right. A relevant alteration will occur if the advantages enjoyed by the employee before the conduct in question are affected adversely or are impaired in any way, subject however, to the alteration in the employee's position being real and substantial and not merely possible or hypothetical. See generally, Community and Public Sector Union v Telstra Corporation Ltd [2001] FCA 267, (2001) 107 FCR 93 at [18]; and Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association [2012] FCAFC 63 at [32]. 78 It is not easy to see that the conduct of Mr Tunney and others in arranging the PRM on 1 July 2013, and during the PRM itself, could have been characterised as conduct of the kind coming within these principles. 79 The appellant may well have resented the criticisms made of him and thought that they were unjustified. However, his subjective reaction to the critique of his conduct could not reasonably be regarded as an injury of a compensable kind. Nor could the PRM be regarded as having affected adversely the advantages which the appellant enjoyed as a prison officer in training. The evidence accepted by the Judge is that it is an ordinary incident in the employment of prison officers in training that their progress will be reviewed from time to time, that deficiencies may be identified and pointed out to the officer, and the officer counselled, encouraged or directed to take corrective action. The PRM was of this character. Conduct of this kind cannot reasonably be regarded as an adverse affectation of the appellant's position. 80 The appellant's submission seemed to be that the PRM would make his employment less secure because a record would be made of it on his personnel file and able to be seen by persons who may later be making decisions about his employment. However, the evidence at the trial did not include any formal outcome of the PRM on 1 July 2013, let alone evidence indicating that such a record had been placed on the appellant's personnel file. Further still, the evidence did not indicate, one way or another, how (if at all) account would be taken of such a report (assuming it had been made) in relation to the appellant's future employment. It may be accepted that, at least in a general way, account may be taken of an employee's past performance in the decisions made about his future employment. However, given the nature of the PRM, and the issues which had given rise to it, it seems more likely that it would be the adequacy or otherwise of the appellant's response to the PRM and, in particular, his continuing conduct which would be more critical. As I have said, the review of the performance of officers in training would seem to be an ordinary incident of such employment so that the Court should be slow to characterise the identification of shortcomings in an officer's progress as a form of adverse action. 81 There are circumstances in which the conduct of a formal performance management review may constitute a form of adverse action. See, for example, Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [47]-[51]. However, the circumstances disclosed by the evidence in this case differ in material respects from those in CFMEU v Pilbara Iron Company. 82 The appellant's reliance on Employment Instruction No. 8 cl 2.2(e) made pursuant to s 16 of the PSEM Act does not take matters any further. That clause provides: 2.1 A Chief Executive Officer must develop an internal employee grievance handling policy and procedure consistent with the Act, it subordinate legislation and any relevant award or enterprise agreement. 2.2 At a minimum the internal employee grievance-handling policy and procedure must: …. (e) make it explicit that regardless of the outcome of the employee grievance no employee will be victimised for having lodged a grievance. 83 I will assume, although the evidence did not establish this to be so, that the appellant's complaint of 28 June 2013 was a "grievance" of the kind to which this instruction refers. However, the appellant did not show that there had been any breach of the instruction. The obligation which it imposes is placed on chief executive officers and relates to the content of the internal employee grievance procedure which such CEOs are required to establish. The grievance procedure applicable to employees at the ASCC was not in evidence and there is no basis upon which it could be concluded, one way or another, as to whether the CEO of the first respondent had, in the formulation of the grievance policy, complied with cl 2.2(e). 84 Even if the CEO had not complied with this instruction, it would not establish that anything done to, or in relation to, the appellant in connection with the performance review on 1 July 2013 constituted adverse action. 85 It is true that the FCC Judge did not make an express finding in relation to the appellant's complaint of victimisation. It is, however, implicit in the Judge's reasons that he considered that the PRM had been carried out for a proper purpose, and not as a form of victimisation of the appellant. 86 I conclude that the FCC Judge has not been shown to be wrong in his conclusion that the performance review on 1 July 2013, and the actions associated with it, did not constitute adverse action within the meaning of s 342 of the FW Act.

[13]

The "spoliation" of the CCTV footage 87 The appellant submitted that the "spoliation and destruction" of the CCTV footage for 12 June 2013 was a form of adverse action. He submitted that the spoliation had been "manifestly prejudicial" to his employment because it precluded him from being able to vindicate himself and to "clear his employment record from the black mark of the allegations [concerning] the 12 June 2013 incident". 88 The FCC Judge noted that the appellant sought access to extended CCTV footage of events on 12 June because of his expectation that it would establish that other officers had conducted themselves when entering the G Block courtyard in a way which was similar to that for which he had been criticised, at [58]. The Judge rejected this claim and the claim that the destruction of the CCTV footage was a form of adverse action, saying: [258] … In my view, the evidence is clear that the CCTV footage, which Mr Perez now wishes to examine, was routinely and legitimately destroyed. In my view, there is no evidence to support Mr Perez's claim that other officers, at the ASCC, were malignly motivated against him and staged the rubbish bin incident to discredit him. [259] For these reasons, I reject Mr Perez's submission that he has suffered any adverse actions as a consequence of the destruction of the CCTV footage. Mr Perez did not have a right to appeal to the "video footage". As such, in my view, there is no substance to his claim of administrative inaction on the part of Mr Ballantine. 89 The Judge also said that, having viewed the footage concerning the appellant's entry of the G Block courtyard on 12 June 2013, he was satisfied that Mr Adeyemo and Mr Tunney had been entitled to provide feedback to the appellant concerning what they regarded as his unsafe method of working, at [261]. 90 The FCC Judge found that the first respondent took and retained the CCTV footage for security purposes, at [255]. He rejected the argument that the appellant had any entitlement, stemming from his employment, to view CCTV footage containing images of either himself or other prison officers at the ASCC, at [256]. The Judge also rejected the submission that the ASCC was required, as a matter of law, to retain the CCTV footage of events occurring prior to 11.24 am on 12 June 2013, at [257]. The significance of the time 11.24 pm is unclear and it is possible that the Judge intended instead to state 11.40 am. 91 Possible reference to the CCTV footage seems to have been raised for the first time in the appellant's email of 28 June 2013. The appellant said in that email in relation to his dispute of the account of what had occurred, "I believe that an appeal to the saved video footage of the incident is in order". As can be seen, the appellant referred only to the CCTV footage of the 12 June Incident itself. The evidence did not disclose whether anything was done at that stage by way of retaining the CCTV footage for G Block on 12 June 2013. 92 In his formal complaint of harassment made on 24 July 2013, the appellant said, amongst other things: I would like a viewing of the entire 12 June 2013 day shift CCTV footage of both the Grill Area and the Courtyard Area of the Reception Unit in G Block from 0800 hr to 1224 hr to determine if I did enter the courtyard alone and if there was a smashed rubbish bin in the middle of the courtyard upon my entry. As can be seen, the appellant now sought viewing of the CCTV footage for a period of four hours and 24 minutes and not just of "the incident" in which he entered the G Block courtyard. Ms Andrews then requested the CCTV footage for 11 am to 12 pm. Her concern was to see the footage of "the incident" and accordingly she asked for the footage relevant to that incident. 93 On 14 August 2013, Ms Andrews viewed footage of the 12 June Incident and, on 21 August 2013, Mr Brown provided her with a copy of that footage. Although Ms Andrews had asked for the CCTV footage between 11 am and 12 noon, Mr Brown provided footage for the period 11.40 am to 12.10 pm only. That was because, having viewed the footage, he could see that the appellant appeared in the footage only for the period 11.45 am to 12.05 pm. I note that there is no evidence that Mr Ballantine, Mr Brown or any other officer responsible for retaining CCTV footage, was asked to provide footage for any period other than 11 am-12 noon. I also note that there is no suggestion that, contrary to Mr Brown's assessment, the appellant did appear in any of the CCTV footage for the period before 11.40 am. 94 Although there was no express evidence of the topic, it seems that the tape containing the remaining footage of G Block on 12 June 2013 was reused in the normal manner with the effect that that footage was erased. 95 In my opinion, the conclusion of the FFC Judge that the erasing of the remaining CCTV footage was not an injury to the appellant in his employment was sound. That erasure cannot reasonably be described as resulting in an injury of a compensable kind to the appellant. I also consider that the FCC Judge was correct in concluding that the erasure of the CCTV footage did not amount to an "adverse affection" of an advantage enjoyed by the appellant. As the Judge noted, the appellant did not have any entitlement stemming from his employment to view CCTV images of either himself or others. In particular, the appellant did not have any entitlement to the retention of forms of evidence of conduct in which he was alleged to have engaged. 96 Further, and in any event, the CCTV footage of the 12 June Incident in G Block was retained and was in fact viewed both by Ms Andrews in the course of her investigation and by the Judge in the trial. Even if the appellant did have an entitlement to view that footage, it has not been denied to him. The circumstance that footage of the conduct of others has been erased cannot amount to adverse action towards the appellant of the requisite kind. 97 The appellant referred on several occasions to the Commissioner's Directive concerning the "Storage and Disposal of Video Recordings used for Monitoring Purposes" issued on 6 August 2003. Clause 6.1.3 of that Directive specified: Recordings required for investigative or evidentiary purposes are to be retained for 12 months after finalisation of investigative processes, court proceedings or appeal processes, whichever is the later. 98 The appellant submitted that this directive had been breached. In his view this was pursuant to the conspiracy he alleged. He also submitted that an inference adverse to the respondents should be drawn from the destruction. 99 The FCC Judge did not make an express finding about these submissions. However, it is implicit in his rejection of the appellant's conspiracy claim generally that he rejected the first. In my opinion, there is no basis upon which an inference adverse to the respondents could be drawn, given that the erasure of the remaining footage for 12 June 2013 occurred in the ordinary course of events. It is not necessary to determine whether or not there was a breach of cl 6.1.3 of the Commissioner's Directive and, in particular, whether in the circumstances which pertained at the time of the erasure, the CCTV footage was "required" for investigative or evidentiary purposes. 100 For these reasons, I consider that the appellant has not made good this part of his grounds of appeal.

[14]

Ms Andrews' recommendation 101 The FCC Judge noted the appellant's claim that Ms Andrews' recommendation in her report of 15 October 2013 constituted a form of adverse action, at [73]. As noted earlier, the Judge did not make any express finding with respect to this claim. In particular, the Judge did not make a finding as to whether the recommendation constituted adverse action, nor any finding as to whether, if so, it was for a proscribed reason. 102 Ms Andrews' recommendations at the conclusion of her report were as follows: Unless Mr Perez can provide credible evidence to substantiate his allegations of harassment, then it is recommended that no further action be taken in this matter. As it has been clearly identified that Mr Perez's workplace performance is poor and is not meeting the requirements of the Certificate III in Correctional Practice, it is recommended that consideration be given to terminating his employment contract with the Department which is due to expire 10 February 2014. 103 The Judge characterised Ms Andrews' second recommendation as one that the appellant's contract of employment not be renewed after 10 February 2014. It is possible that this is what Ms Andrews intended but, on its face, the recommendation appears to be that consideration be given to terminating the employment contract, rather than waiting until it expired and then not renewing it. 104 In my opinion, the Judge should have found that Ms Andrews' recommendation did constitute a form of adverse action. As noted earlier, the Professional Standards Unit of which Ms Andrews was a member, is intended to be both independent of, and at arm's length to, the senior management of the first respondent. It is to be expected that a recommendation coming from that Unit, after it had carried out an investigation of a harassment complaint, would carry some weight. Mr Yan's evidence, to which I will refer later, indicates that in the ordinary course, a prison officer in training could expect to be appointed as a prison officer upon the completion of the initial 12 month term and upon the obtaining of the Certificate III in Correctional Practice. Ms Andrews' recommendation was capable of undermining that expectation in the appellant's case and therefore of "injuring" him in his employment in the requisite sense. 105 Ms Andrews' conduct should be attributed to the first respondent. This is because of the position which she occupied, because of her evidence that she was authorised to make recommendations of this kind when determining a complaint of harassment, and because the first respondent did not otherwise attempt to show that Ms Andrews had exceeded her authority. 106 It is plain that the first respondent did not discharge the s 361 onus of showing that Ms Andrews had not made the recommendation because of the appellant's exercise of his workplace right to make a complaint. Ms Andrews' affidavit containing her evidence in chief did not even advert to the question, let alone state Ms Andrews' reasons for the recommendation. 107 The circumstance that the recommendation was made in a report addressing a complaint made by the appellant gives rise, by itself, to a concern that the recommendation may have been made because of the making of the complaint. That of course need not necessarily be so but the conjunction of the two events does give rise to this concern. It is, accordingly, a matter of note that the first respondent did not attempt to address the question in Ms Andrews' evidence in chief. 108 The appellant's cross-examination of Ms Andrews went to her authority to make the recommendation and sought a concession that "but for" the making of his complaint, she would not have made the recommendation. In the course of that cross-examination, the FCC Judge asked the following question: Q: And it was your view, whether it's right or whether it's wrong - I suppose that was up to the Commissioner - was that you thought Mr Perez was not cut out to be a prison officer? A: That's correct. 109 This answer to the Judge's leading question was, on my reading of the evidence, as close as Ms Andrews came to a stating of her reason for making the recommendation as to termination of employment. The inference is open that Ms Andrews made the recommendation because of her view of the appellant's inadequacies and not because he had exercised his workplace right to make a complaint. However, in general it is not desirable that the discharge of the s 361 onus be left to a matter of inference when express and direct evidence should be available. I am not willing to draw that inference. That leads me to me conclude that the first respondent did not discharge the s 361 onus with respect to the adverse action constituted by Ms Andrews' conduct. 110 Accordingly, I conclude that this part of the appeal succeeds. I will return later to address the consequences of this finding.

[15]

Was the appellant's suspension for a proscribed reason? 111 The FCC Judge made an express finding that the suspension and termination of the appellant's employment were forms of adverse action: at [244]. The Judge accepted that the decision-maker for both actions was Mr Yan. He accepted Mr Yan's evidence as to his reasons for taking the two actions. The Judge found that those reasons were "legitimate". I will refer to those reasons shortly. Although the Judge did not make an express finding, it was necessarily implicit in the finding that Mr Yan acted for legitimate reasons that he did not suspend or terminate the appellant's employment because he had exercised his workplace right to make a complaint, whether on 24 July 2013 or on 14 December 2013. 112 Mr Yan's evidence was to the following effect. A prison officer in training such as the appellant is, as a matter of course, offered a one year contract with the expectation that, at the conclusion of the contact period, he or she will have successfully completed the Certificate III in Correctional Practices and then be suitable for appointment as a prison officer. 113 Mr Yan had some contact with the appellant when he first started as a prison officer in training but he was not otherwise involved in any of the day to day incidents of his employment. His first involvement in the events giving rise to the present litigation was on 28 June 2013 when he was provided with a copy of the appellant's email of that date to Mr Adeyemo. Mr Yan said that he did not regard performance appraisals of the kind undertaken by the appellant on 27 June 2013 as "a big deal". It was common experience that prison officers in training make mistakes from time to time. Mr Yan said that the performance appraisals provided an opportunity for areas in which the trainees need help to be identified so that they can learn from their mistakes. However, he took note of the appellant's email of 28 June 2013 because he regarded it as an indication that the appellant was not willing to accept that he had made a mistake. 114 Mr Yan had a meeting with Mr Drake, a representative of the Northern Territory Prison Officers Association in relation to concerns which the appellant had raised with Mr Drake. Nothing in the present proceedings seems to have turned on that meeting. Mr Yan was aware that the Professional Standards Unit was investigating a complaint of the appellant but was not involved in the investigation. Mr Yan became more involved in relation to the appellant's graduated return to work in November 2013. It was Mr Yan who authorised the appellant's initial return to be at The Cottages. In this respect he followed the recommendation of Workplace Injury Solutions, a rehabilitation provider. 115 Mr Yan met the appellant at The Cottages on 25 November 2013 to discuss his resumption of work. He confirmed with the appellant that he had agreed to him being eased back into work by working restricted hours and starting at The Cottages. He stated his expectation that the appellant would, from time to time, be required to enter the main prison and would commence duties in H Block on 9 December 2013. The appellant then expressed reservations about his ability to do so. In fact, there had already been one occasion when the appellant had escorted a prisoner to the main prison but had been unable to continue the escort into the prison. 116 On 29 November 2013, Mr Yan agreed to the appellant staying at The Cottages for four weeks, rather than the two weeks which had been initially agreed. Mr Yan also authorised the appellant's viewing of the CCTV footage of the events on 12 June 2013. 117 The kind of work which the appellant carried out at The Cottages did not count towards the Certificate III in Correctional Practices. So long as the appellant stayed at The Cottages, he would not therefore complete the certificate so as to qualify for continued employment. 118 During late November and early December 2013, there were revisions in the appellant's Return to Work Plan. The amendments contemplated that, by 9 December 2013, the appellant would have returned to work in the main prison complex, although on restricted duties. 119 The appellant's complaint made on 14 December 2013 about the instruction given to him the previous day with respect to prisoner bed packs was referred to Mr Yan. Mr Yan said that he was concerned by the appellant's comment that the instruction "may easily be construed for something worse than constructive dismissal and or injury to my employment by management". He thought it a "very strange interpretation of a simple task that the [appellant] could have instructed prisoners to perform". Mr Yan was concerned at the suggestion that the instruction may cause the appellant injury and immediately referred the email to Ms Bongiorno and to Ms Levot. The exchange of emails between Mr Yan, Ms Levot and Ms Bongiorno on the topic was in evidence. Ms Levot undertook to discuss the situation with the appellant. Subsequently, on 17 December 2013, Ms Levot reported that the appellant had refused, more than once, to accompany her into the main prison facility and had indicated that he wished to continue working in The Cottages. Ms Levot reported to Mr Yan: I raised the issue with Mr Perez that if he is not prepared to enter the main facility he would be unable to work as a Prison Officer. He took some time to consider this. He then affirmed he understood this fact. 120 At about this time, Mr Yan commenced consideration of whether the appellant's employment should be renewed in February 2014. He sought advice from Mr Tunney about the appellant's training. Mr Tunney informed Mr Yan that he thought it unlikely that the appellant would complete the training necessary to become a prison officer. 121 On 23 December 2013, Ms Bongiorno sent an email to Mr Yan which included the following: Due to the complexities surrounding this claim I am quite concerned that Mr Perez may well sustain a further injury resulting in an accepted claim. As you have indicated Mr Perez['s] contract is due to expire 10 February 2014 with a very strong likelihood that his contract will not be extended, therefore to reduce the Agency's ongoing exposure of a further claim being lodged (sic) would it be worthwhile considering on a without prejudice basis under HR banner … for Mr Perez not to attend work for the remain[ing] period of his contract, however continue to … receive his salary as if he were attending work for the remainder of his contract? (sic). 122 Mr Yan deposed that he determined, given the reference in the appellant's email of 14 December 2013 to him suffering injury in his employment, to Ms Levot's report of 17 December 2013 and Ms Bongiorno's email of 23 December 2013 concerning the risk of injury, that the appellant should not remain in the workplace. He met the appellant later that day and instructed him not to return to work until further notice. He deposed that this decision did not rest at all on the fact of the appellant's complaint in the email of 14 December 2013 or on the circumstance that the appellant had foreshadowed filing a claim for compensation in the Northern Territory Work Health Court. 123 Mr Yan deposed that in late January 2014, he had concluded that it was unlikely that the appellant would be able to return to the main prison and would ever complete his Certificate III in Correctional Practice. Accordingly, he decided that the appellant should not be offered permanent employment on the expiry of his officer in training contract on 10 February 2014. 124 The Judge's findings with respect to the standing down of Mr Perez on 23 December 2013 were as follows: [262] In generic terms, I accept that the standing down of Mr Perez, by Mr Yan, on [23] December 2013, was injurious to Mr Perez's employment, notwithstanding that he continued to receive his regular remuneration. [263] However, in my assessment, the reason Mr Yan determined to stand Mr Perez down was for a legitimate reason, relating to the safe and proper operation of the ASCC, including the safety of Mr Perez himself. [264] In this regard, I accept Mr Yan's evidence that he considered it unsafe for Mr Perez to remain working, at the ASCC, given his apparent inability to enter the main prison facility and his unusual behaviour in The Cottages. [265] In these circumstances and given the assessment of [Ms Bongiorno], it would have been operationally unacceptable for Mr Yan to do anything other than what he did in regards to Mr Perez. Otherwise, there was the potential for harm to come to both Mr Perez and others, both prisoners and officers, working within the ASCC. 125 The FCC Judge accepted Mr Yan's evidence about these matters. The circumstance that the appellant was unrepresented at trial meant that Mr Yan was not cross-examined closely about his reasons. However, his evidence was not implausible. In effect, Mr Yan said that he decided that ASCC should act in its own interests rather than those of the appellant. To my mind, this is a much more plausible explanation on the evidence than the appellant's claim that he was suspended for having complained about having been given the mundane task of making up prisoner bed packs. 126 The appellant has not identified any error by the Judge in accepting Mr Yan's evidence on this topic. The Judge was entitled to accept that this evidence of Mr Yan discharged the onus imposed on the first respondent under s 361. For these reasons, to the extent that the appellant complains on the appeal that the Judge should have found that the suspension occurred for a proscribed reason, the appeal fails. 127 Some of the appellant's grounds of appeal complain that the Judge should have found that Mr Yan suspended him by reason of his having filed "a workcover claim complaint" with the Northern Territory Work Health Court. As noted earlier, the appellant had lodged such a claim on 23 December 2013, the same day upon which Mr Yan made the decision to "suspend" his further employment. Mr Yan deposed that the only knowledge he had of the workcover claim was derived from Ms Bongiorno's email of 23 December 2013 in which she conveyed her understanding that Mr Perez had lodged such an application that day. Mr Yan deposed, however, that the lodging of the workcover claim had nothing to do with his decisions concerning the appellant's employment made on that day or later. As already noted, the Judge accepted Mr Yan's evidence, and the appellant has not shown any basis upon which this Court on appeal should interfere with that finding. 128 As noted earlier, the Judge did not determine in express terms the appellant's alternative claim that his suspension constituted the form of adverse action proscribed by s 351 of the FW Act. Section 351 provides (relevantly): (1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin. 129 I do not regard the Judge's findings in [262]-[265] just quoted as being decisive of the appellant's claim that he was suspended because of his "mental disability". I add, in fairness to the Judge, that Mr Perez did not refer to this aspect of his claim in his closing submissions. It is understandable in this circumstance that the claim was overlooked. However, given that Mr Perez was representing himself, I do not think that his failure to mention the claim specifically should be regarded as a tacit abandonment of the s 351 claim. I will return to the consequences of this conclusion after considering the appellant's remaining grounds.

[16]

Mr Ballantine 130 As noted, Ground 3 in the amended notice of appeal is a complaint that the FCC Judge did not give effect to s 361 in relation to the omission of the first respondent to lead evidence from Mr Ballantine, Ms Bell and Mr Brown. It is correct that neither Mr Ballantine nor Ms Bell gave evidence at the trial. The position with respect to Mr Brown will be addressed separately. 131 In mid-2013, Mr Ballantine was the Deputy Superintendent of the ASCC. The appellant's claim, as pleaded in the Consolidated Claim, was that he had requested in his formal complaint of harassment made on 24 July 2013 that Mr Ballantine view the CCTV footage of the 12 June incident; that Mr Ballantine had failed/refused to investigate or act upon that request; that Mr Ballantine had caused the destruction of the CCTV footage; that Mr Ballantine had thereby denied him natural justice; and that, had Mr Ballantine acted in a timely manner, the extended CCTV footage on 12 June 2013 would not have been destroyed. 132 The FCC Judge rejected this claim for the same reasons which he gave in relation to the rejection of the appellant's claims concerning the destruction of the CCTV footage more generally, at [258]-[259]. That is, the Judge was satisfied that the "inaction" which the appellant imputed to Mr Ballantine did not constitute adverse action. 133 For the reasons previously given, I am satisfied that the Judge was not in error in that respect. 134 It is not easy to see, in any event, that this complaint had a proper factual basis. The appellant's formal harassment complaint of 24 July 2013 was not addressed to Mr Ballantine but instead to Ms Martin, a Human Resources Consultant within the first respondent. The formal letter of complaint did not call upon Mr Ballantine to take any action in relation to it. Mr Ballantine did provide the formal response on behalf of ASCC to Ms Andrews but that response does not indicate that Mr Ballantine made any decision with respect to the erasure of the CCTV footage. Nor did the evidence establish that Mr Ballantine had any responsibility in relation to the investigation of the appellant's complaint, let alone the function of securing the retention of the CCTV footage for 12 June 2013. 135 I am not overlooking the recitation by the FCC Judge that Mr Ballantine was "apparently" the officer at the ASCC who received the complaint, but note that the evidence does not appear to support such a conclusion. 136 In these circumstances, the circumstance that the first respondent did not adduce evidence from Mr Ballantine at the trial is a matter of no consequence. The appellant had not established that he had a relevant "workplace right" and nor did he establish that any conduct of Mr Ballantine constituted a form of "adverse action" in the requisite sense, so as to establish the circumstance in which s 361 operates.

[18]

Mr Brown 138 Mr Brown was the Senior Correctional Officer in the Intelligence Unit at the ASCC. In that capacity, he was the officer in charge of video surveillance at the ASCC. 139 The FCC received an affidavit from Mr Brown into evidence although, for reasons to be explained shortly, he did not attend to give evidence. In his affidavit, Mr Brown deposed that he became involved on 19 August 2013 in the events concerning the appellant when he received an email from Ms Andrews. She asked that he send to her a copy of the CCTV footage of an incident concerning the appellant in the G Block reception courtyard in the period 11 am-12 pm on 12 June 2013. Mr Brown looked at the CCTV footage for the requested time period. The only footage which he could see involving the appellant was between 11.45 am and 12.05 pm. He telephoned Ms Andrews and informed her that this was so. Ms Andrews asked him to download that footage and to provide it to her. Mr Brown did so. 140 Subsequently, on 21 August 2013, Mr Brown had a telephone conversation with Ms Andrews in which she confirmed that the footage which had been sent to her was all that was required. 141 The FCC Judge accepted that evidence. 142 The appellant's claim concerning Mr Brown was that he had destroyed the remaining CCTV footage of the G Block reception area on 12 June 2013 with the consequence that it had not been available for viewing by Ms Andrews. 143 That claim is not established as a matter of fact. Mr Brown did not erase the remaining footage. That happened when the tape was reused as a matter of routine practice. The Judge noted that there was not a "scintilla of evidence to suggest that Mr Brown wantonly or deliberately destroyed" the CCTV footage, at [204]. 144 For the reasons given earlier, the erasure of the remainder of the CCTV footage did not constitute a form of adverse action. In Mr Brown's case, as in the case of Mr Ballantine, the occasion for the application of s 361 did not arise. 145 It is however appropriate to mention the course of events at trial concerning Mr Brown. The respondents had, in advance of the trial, filed and served an affidavit containing the evidence in chief of Mr Brown and contemplated at the commencement of the trial that he would give evidence. However, on the afternoon of the second day of the trial, counsel for the respondents tendered medical certificates indicating that Mr Brown was ill. Counsel indicated at the same time that there was nothing in Mr Brown's written evidence in chief on which he wished to rely if there was an objection to its tender. The appellant then said that he did wish to cross-examine Mr Brown concerning the retention of the CCTV footage for use in evidence. The FCC Judge said that, subject to the provision of a medical certificate from Mr Brown, he was inclined not to compel him to attend to be cross-examined. The appellant then said "I abide by your ruling, Sir". 146 It seems that the FCC Judge then received Mr Brown's affidavit, although the transcript of the trial proceedings does not record that that happened formally. I infer that in receiving Mr Brown's affidavit, the Judge was acting pursuant to s 63 of the Evidence Act 1995 (Cth) on the basis that Mr Brown was "not available" to give evidence. 147 On the following day, the appellant asked the FCC Judge to reconsider his decision concerning Mr Brown and, instead, to adjourn the proceedings to a time when Mr Brown would be "fit enough" to give evidence. The FCC Judge declined that request. His reasons for doing so appear in the transcript. These were that the appellant wished to cross-examine Mr Brown on two topics only, namely, his claims that the "spoliation" of the CCTV footage constituted adverse action and that he had been the victim of a conspiracy to which Mr Brown was a party; that the Court had the video tape relating to the appellant's entry to the G Block courtyard; that it was unlikely that further CCTV footage would be of assistance; that the appellant had not before 24 July 2013 made a request to Mr Tunney, Mr Adeyemo or Mr Brown for the preservation of the CCTV footage for the whole 12 June 2013; that it did not seem that Mr Brown had played an active part in the erasure of the CCTV footage (it happening as a matter of routine); and that the appellant's asserted forensic purpose for wishing to cross-examine Mr Brown did not justify the adjournment of the trial and the expense and inconvenience of returning to Alice Springs for the completion of the trial. 148 The appellant has not complained on the appeal of that ruling and the Court is not asked to consider whether or not it involved error. The appellant's only complaint is that because Mr Brown did not attend to give oral evidence, the s 361 onus had not been discharged. That complaint fails for the reasons already given and for the further reason that, contrary to the appellant's understanding, the first respondent did, in the circumstances which happened, adduce evidence from Mr Brown. The fact that Mr Brown did not attend for cross-examination does not alter that circumstance. 149 For these reasons, this ground of appeal fails.

[20]

The Judge's pre-trial direction 152 In late March 2015 (approximately six weeks before the commencement of the trial), an issue arose in the FCC as to the proper respondent to the proceedings. This had its background in the circumstance that, in the application first filed in the FCC on 13 March 2014, the appellant had named a single respondent, namely, "Northern Territory Department of Correctional Services". However, on 15 May 2014, he filed a second originating application, indicating that he wished to expand his allegations. In addition, the 15 May application named seven respondents, as it included Mr Yan, Ms Bell, Mr Tunney, Mr Salmon, Mr Brown, and Mr Ballantine as the second, third, fourth, fifth, sixth and seventh respondents respectively. The appellant filed other documents as well by way of apparent supplement to the expanded application. 153 At a directions hearing on 21 May 2014, Judge Harland in the FCC ordered, amongst other things, that the appellant file and serve "a consolidated statement of claim" within 21 days. Subsequently, on 10 June 2014, the appellant filed a document entitled "Consolidated Claim under the Fair Work Act 2009 alleging contravention of a general protection (sic) to the exclusion and voiding of all documents filed by applicant prior to 1st June 2014". The consolidated claim also named seven respondents, being Northern Territory Department of Correctional Services as the first respondent, and Mr Yan, Ms Bell, Mr Tunney, Mr Brown, Mr Ballantine and Mr Adeyemo as the second, third, fourth, fifth, sixth and seventh respondents respectively. Mr Salmon, who had been named as the fifth respondent in the document filed on 15 May 2014, was no longer named as a respondent and Mr Adeyemo had been added as the seventh respondent. 154 Thereafter, although the formal title to the action did not change, the proceedings seemed to have continued on the common understanding of the parties that the appellant had named seven respondents to the proceedings. The Solicitor for the Northern Territory (SFNT) filed a response to the consolidated claim on 24 June 2014. This document indicated that it was filed on behalf of the "respondents" although in places referred only to "the respondent". 155 The trial of the action was to commence on 5 May 2015. On 19 March 2015, the appellant sent to the Darwin Registry of the FCC the original and two copies of documents on which he intended to rely at the trial. Subsequently, on 24 March 2015, a member of the FCC Registry staff in Darwin telephoned the appellant and informed him that she had been told by the Associate of the FCC Judge that his documents, including his own affidavit, should be amended before being accepted for filing so as to remove from the title to the action appearing on them the names of the six individual respondents. The appellant sought confirmation of this requirement and this was given to him by an email on 25 March 2015. 156 The circumstances just described provided the basis for the first complaint of apparent bias by the FCC Judge. The appellant contended that the Judge and his Chambers had "manifested apparent bias" by, amongst other things, "engag[ing] in lawyering behaviour which is beneficial to the Respondents". The appellant relied in this respect on the direction that the filed documents not include the names of the individual respondents. 157 The FCC Judge rejected the appellant's application made at the commencement of the trial that he should disqualify himself for apparent bias on this basis. 158 The test for apprehended or apparent bias is well-established. The governing principle is that a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337 at [6]; Re Refugee Review Tribunal; ex parte H [2001] HCA 28, (2001) 179 ALR 425 at [32]. The test is to be applied objectively: Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 at [68]. 159 The appellant submitted that the direction of the FCC Judge conveyed through his Associate and the Registry officer indicated partiality because the Judge had shown favouritism to the respondents by indicating that some of them should not be parties to the proceedings at all. He submitted that this was particularly so given that the respondents themselves had not made any objection to their inclusion in the action and that a response had been filed by the SFNT on behalf of all respondents, and not just on behalf of the first. 160 In my opinion, these circumstances do not establish apparent bias by the FCC Judge. The materials suggest instead an understandable concern by the Judge that the proceedings before him be regular in form and, in particular, that the appellant, as an unrepresented litigant, not name as respondents persons who, on the Judge's understanding, were not in fact parties to the proceedings. So much is evident in the explanation given by the Registry officer in the email to the appellant of 25 March 2015: The Associate to Judge Brown has advised the Registry not to accept your affidavit for filing until the front page is amended to remove the additional respondents you have added as they were not named in your originating application filed on 13 March 2014. (Emphasis added) 161 The FCC Judge gave a similar explanation to the appellant when the disqualification for bias application was made to him. The Judge said that he understood the Registry staff had declined to accept the document because it "named other people who are not respondents to your application". 162 The Judge's understanding is also evident in [74] of his reasons in which he made reference to the response of the Northern Territory Department of Correctional Services "after Mr Perez had purportedly added the additional individually named prison officers alleged to have taken adverse action against [him]" (emphasis added). 163 The FCC Judge was correct in understanding that the appellant had not included the individual respondents in the application as originally filed. It may be that he was incorrect in his understanding that it had not been open to the appellant to add respondents without the leave of the Court, because r 11.02 of the Federal Circuit Court Rules 2001 (Cth), may, by implication, have authorised that course. It is not necessary presently to express a view about that. It may also be the case that such leave was in any event implicit in the order made by Judge Harland on 21 May 2014 because, by that date, the appellant had already included the individual respondents (other than Mr Adeyemo) in his amended application. Again, it is not necessary to express a final view about that. 164 What is plain, in my opinion, is that the FCC Judge was operating under the belief that the appellant had included the names of individual respondents when he was not entitled to do so, and that he was, in these circumstances, concerned only with the regularity of the documents. His direction to his Associate and, through the Associate to the Registry staff, reflected this belief. In my opinion, a fair minded lay observer would not have apprehended in these circumstances that the Judge might not, because of these concerns, bring an impartial mind to the determination of the appellant's claims. In particular, the fair-minded observer would not have had any apprehension that the Judge had some preconceived view about the merits of the appellant's claims. 165 This aspect of Grounds 4 and 11 fails. 166 A related aspect of the appeal concerning the apparent bias also fails for similar reasons. The FCC Judge gave effect to his belief that the individual respondents were not properly parties to the proceedings by naming only the Northern Territory Department of Correctional Services as the respondent in the title to his judgment. The appellant referred to this too as indicating apparent bias by the Judge, but his submissions did not indicate how that was so. I am confident that a fair minded observer would have regarded this circumstance as simply a reflection of the Judge's understanding that there was, properly, only one respondent to the proceedings and that, even if the Judge was mistaken about that, it did not reflect a lack of impartiality on his part.

[23]

The consequences of the finding favourable to the appellant 171 As noted earlier, I consider that the FCC Judge should have found that Ms Andrews' recommendation that the appellant's employment be not continued after February 2014 constituted a form of proscribed adverse action. Prima facie, a declaration to that effect should be made. 172 There are then questions as to whether any order for compensation should be made in the appellant's favour, pursuant to s 545 of the FW Act, and whether any penalty should be imposed pursuant to s 546 of the FW Act by reason of this contravention of s 340. The parties did not make submission on these questions on the hearing of the appeal. 173 One difficulty for the appellant may be that there does not appear to be any evidence that Ms Andrews' recommendation concerning his employment had any practical effect. As noted, after Mr Middlebrook received Ms Andrews' report, he posted a copy of it to the appellant on the same day, inviting him to make any submissions he wished in relation to it. At the same time Mr Middlebrook encouraged the appellant to return to work at the ASCC and to complete his training. The appellant did not take up the invitation to make further submissions and, on 14 November 2013 in response to a query from Ms Andrews, told her that she could finalise the report. 174 The evidence did not disclose what happened thereafter in relation to the recommendation. In particular, there is no indication that Ms Andrews' recommendation played any part at all in the decisions of Mr Yan concerning the suspension and termination of the appellant's employment. There is no indication that Ms Andrews' report was placed on the appellant's personnel file. Mr Yan does not mention Ms Andrews' report as a matter to which he had regard in making the suspension and termination decision. As already seen, Mr Yan was concerned about the appellant's ability to return to work, to complete the Certificate III in Correctional Practice and about the prospect of him suffering injury if he did remain at work until the expiry of his employment contract. 175 I referred earlier to the two ways in which Ms Andrews' recommendation could be understood. If it was a recommendation that the appellant's employment be terminated before the expiry of his contract on 10 February 2014, then it is plain that effect was not given to it. If it be construed as a recommendation that his employment not be continued after the expiry of the contract on 10 February 2014, then there is no evidence that it played any part in Mr Yan's decision. The appellant remained on full pay to 10 February 2014 so it seems unlikely that he suffered any economic loss as a result of this form of adverse action. 176 I accept, however, that it is possible that the appellant suffered some other form of loss. 177 I consider that the matter should be remitted to the FCC Judge for further consideration of the relief, if any, to which the appellant is entitled in consequence of this Court's findings concerning the adverse action constituted by Ms Andrews' recommendation concerning the appellant's employment. This will include consideration of the grant of a declaration, the award of compensation, the imposition of a penalty, and any other matters. The appellant's claim of adverse action in contravention of s 351 should also be remitted to the FCC. The FCC Judge can conveniently hear and determine that claim at the same time.

Perez v Northern Territory Department of Correctional Services

At a glance

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Judgment (25 paragraphs)

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Legislation Cited (5)

Cases Cited (24)

Cited By (2)