Roy v Commissioner Rural Fire Service

Approach

The Victimisation Application relies on section 213 of the Act, which is in the following terms: 213 Enforcement (1) The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part. (2) The Commission may, in particular, for that purpose do any one or more of the following- (a) order the reinstatement or re-employment of an employee, (b) order the employer to promote or otherwise advance an employee in his or her employment, (c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone, (d) order the employer to employ a prospective employee, (e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat, (f) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity, (g) make consequential orders (including orders concerning continuity of service).
Sections 209 to 212 contain protections for employees from specific action because of certain reasons. In this application, the applicant relies upon ss 210(1)(j) of the Act which is in the following terms: (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions under Part 5 (Consultation, representation and participation) of the Work Health and Safety Act 2011 , or
The clear prohibition on an employer or industrial organisation under s 210 is that they must not "victimise" an employee because of any identified reasons in sub-paragraphs 1(a)-(g).
Although the term "victimise" is not defined in the Act, its meaning is to be inferred from ss 210(2) which refers to an employee suffering any detriment (Health Services Union o/b Bruce v Government of New South Wales in respect of NSW Ambulance [2017] NSWIRComm 1036 at [16]).
Justice Glynn in Tapia v Lagoon Seafood Restaurant [2003] NSWIRComm 341 at [296]-[297]) in construing the meaning of victimise and detriment in the context of s 210 and 213 reached the following conclusion: ...In the use of the word "detriment" in s 210(2) it can be seen that the legislature has adopted, in part, the definition of "victimise" as found in Davis24 at p 381: "The word "victimise" ... where used in s 210 should therefore be interpreted as "cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment
Sub-section 210(2) also contains a presumption which operates on the employer to require it to prove that the protected attribute pleaded by the applicant in paragraphs 210(1)(a)-(k) of the Act was not a substantial and operative reason for the respondent making the decision alleged by the applicant to be the cause of the detriment suffered.
The full bench in Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218 ("Superpace") at [43] explained when and how the reverse onus in ss 210(2) operates as follows: ...we consider that the terms of s 210(2) are clear: once an employee or prospective employee has demonstrated detriment as a result of an action by an employer or industrial organisation and the alleged cause of that detriment falls within the classes of victimisation in s 210(1), then it is presumed that employee or prospective employee was victimised. The employee will be required to prove the elements of the alleged reason for victimisation being the elements of one or more of the paragraphs in s 210(1) (for example, an applicant under s 210(1)(j) will need to prove the existence of a complaint about a workplace matter concerning safety for the purposes of that sub-section). In the face of the presumption in s 210(2), the onus is then on the employer or industrial organisation to show that the "alleged matter" was not "a substantial and operative cause of the detrimental action.
Superpace makes it clear that the reverse onus is not operative until the employee has made out the existence of the detriment and the elements of the prohibited reason set out in one of the paragraphs under ss 210(1).
In Paula Lee and Ausgrid (No 6) [2013] NSWIRComm 62 ("Lee") the Full Bench applied the reasoning of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 ("Barclay") in relation to the general protections provisions of the Fair Work Act 2009 (Cth) (the "FWA").
In Barclay, Gummow and Hayne JJ dealt with the nature of the enquiry to be undertaken and explained that it would be misleading to use the terms "objective" or "subjective" to describe the enquiry into what reason actuated the decision maker and at [72] they stated: The High 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.
As stated by Reeves J in CFMEU v Claremont Coal Pty Ltd Ltd (2015) 253 IR 166 at [121] that this will include where the reasoning process is dispersed through an assessment process involving a number of persons, examination of the reasoning process employed by each person whose involvement had a material effect on the ultimate decision.
Consistent with the reasoning of Lee J in relation to s 361 of the FWA in TWU v Qantas (2021) 308 IR 244, the Commission must be satisfied, one way or another, that the substantial and operative reasons for the decision to take adverse action did not include the proscribed ones alleged by an applicant under s 210(1).

The Issues

Consistent with the approach set out above, I must be satisfied of the following: 1. Was there a complaint made by the applicant within the meaning s 210(1)(j); 2. Was the Dismissal a detriment for the purposes of s 210; and 3. If the answer to the above (2) is yes, has the respondent satisfied its onus under s 210(2) that the complaints were not the substantive and operative reason for the dismissal.
Turning first to the second question: was the dismissal a detriment for the purposes of s 210? I do not think there is any disagreement between the parties that this is the case.
Turning then to the first question: were the complaints that were made by the applicant within the meaning of s 210(1)(j). It appears that there is no disagreement between the parties that the First, Second, Third and Fourth complaints constituted a complaint for the purpose of s 210(1)(j).
I move on to the presumption under ss 210(2) in circumstances where Ms Schmidt has given evidence regarding the decisions made on 31 October 2022. It is neither here nor there whether the complaints made on 3 November 2022 were the substantive and operative reasons. However, I note that there is evidence, and I will address this when dealing with the third question, that the decision was made on 7 November 2022. Then it is relevant as to whether the 3 November 2022 complaints formed a proper basis or fell within the parameters of s 210(1)(j). To the extent that I understand the respondent's submissions that this differentiates from the other complaints, that the applicant herself has not said in the complaint itself, as replicated in the body of her affidavit nor in the affidavit itself explaining the nature of the complaints, that they were ones that she considers is not safe or a risk to health or exercises functions under Part 5 of the Work Health and Safety Act 2011 (NSW).
I do not agree with the respondent that this is the proper approach and in the absence of any authorities to that extent I find that both the fifth and sixth complaints do fall in the parameters of s 210(1)(j).
Regarding the third issue, I have touched on the proper approach and it is an approach which in my view, based on the authorities, is slightly different to the submissions both parties. It is not necessary to take the subjective or the objective approach to determining, as I am simply concerned as to whether I am satisfied based on all the evidence before the Commission that the making of the complaints did not form a substantial and/or operative cause of the dismissal. I am not satisfied that the respondent has met its onus in that regard.
First, I note that there are some real concerns as to the evidence of Ms Schmidt. Now, her evidence is to the effect that at the meeting of 31 October 2022 that Mr Bradstreet had not relayed any complaint that had been made by the applicant, Ms Roy, and these complaints were made on 20 October 2022. The evidence as I recall of Mr Bradstreet was that he had relayed the complaint.
Secondly, I am unclear as to several aspects of the actual decision. There remain questions regarding the date and what was the content of that decision. If we deal with the evidence of Ms Schmidt under cross-examination, it was that the decision was taken on 31 October 2022 at the meeting. There is nothing I can see in the evidence of Mr Bradstreet or Ms Baker that sets out any detail of that meeting or relies on that meeting as being the time in which the decision was made nor the grounds for the decision being made to terminate the applicant.
Ms Schmidt, on the other hand, in her affidavit of 31 October 2022 tendered as Exhibit 14, regarding a proposal set out at [29], goes on to say at [30]: "I requested that Mr Bradstreet and Ms Baker formalise the proposal and they did so in a memorandum dated 4 November 2022, which I approved on 7 November 2022. This approval resulted in the cessation of Ms Roy's temporary employment, effective 8 November 2022 with two weeks' pay provided".
In those circumstances, Ms Schmidt is the actual decision maker but there is no doubt that Mr Bradstreet and Ms Baker were part of the termination process.
Other matters which have led me to not have the reasonable level of satisfaction that the making of the complaints were not a substantial operative cause of the dismissal include the actual proposal which is said to be endorsed by Ms Schmidt, which was proposed and supported by Ms Baker and Mr Bradstreet, which is set out at Exhibit AB-8 to Exhibit 9.
There are four proposals, one being ceasing the temporary contract of Ms Katherine Roy, Lead Project Management. The second proposal is not really a proposal on a proper reading of it, which is that Ms Wagner, Lead Change Management, will continue to support Change and Project Management with the continued support of Ms Christine Williamson. This is, in practice, the status quo and not a proposal on any reading of it.
The next one is the Lead Project Management to be refocused to address strategic planning and business planning, organisational reporting, in addition to supporting project management. These additional functions require capabilities not previously demonstrated by Ms Roy in either her background or her practice. This is not a proposal, it is just a reference to why Ms Katherine Roy apparently does not have the requisite capabilities to perform the role which is subsequently set out in the fourth proposal.
The fourth proposal is to redirect funding to engage suitable contract fee for service arrangements for up to six months. That did not occur. Whilst undertaking recruitment for both 12/13 and 10/11 ongoing roles to support development of strategic planning, EPMO and organisational reporting frameworks.
So, on the face of the proposal, there are two further staff that are going to be put on. To the extent that I understand the evidence, a position description for one of those roles was developed in May, some five months later. In my view, the purported reason for the dismissal of Ms Roy was to deliver on a 2022/23 team charter and in doing so the respondent has not implemented what it said it was going to in that proposal. In particular, I note the contract fee arrangement.
Secondly, I note that the evidence of Ms Baker was that the 2022/23 team charter was not finalised, it was almost in that form but it may need some further work. The evidence of Ms Schmidt was that her understanding was that it had been concluded. That also causes me some concern in the inconsistent understanding of the basis for the proposal put forward.
Those concerns that I have just set out - inconsistencies of evidence, a level of clouding as to the actual decision, when it was made and on what basis it was made, in particular 31 October 2022, has underpinned my decision that I am not satisfied that the respondent has met its onus.
I note that the applicant seeks a remedy both for the payment of compensation for loss of income from the period in which her employment came to an end on 8 November 2022 to when she commenced temporary employment. The following is set out in the applicant's closing submissions at [69]: Ms Roy was terminated with immediate on 8 November 2022. She received 2 weeks of notice in lieu. She obtained alternate employment which commenced on 20 February 2023. She was, therefore, out of work for a period of some 103 days, namely 14.7 weeks. Her loss is, therefore, 12.7 weeks of salary. Her salary, whilst employed by the respondent, was $126,586 plus superannuation. 38 This totals a salary of $2,434.35 per week, resulting in a loss of $30,916.20 over 12.7 weeks. Superannuation of 10.5% at the statutory minimum was payable from 1 July 2022. Hence, an amount of superannuation of $3,246.20 should be ordered in relation to lost superannuation.
Safe to say, it appears that the amount claimed is $30,916.20 under s 213(2)(a) of the Act.
I note the submissions of the respondent that there should be some deduction from that, on the basis that the applicant has not proved that she would not be dismissed in between 8 November 2022 through to the date on which she commenced her new employment, or the claimed period.
First, I accept that there is some evidence that could be put that the applicant had not been frank with some of the answers provided to the respondent. However, there is an absence of evidence that that information, if known to the respondent at the time, in all likelihood would have led to the termination of the applicant's employment at that point in time.
In those circumstances, I am prepared and I do order that there be a payment for loss of income of $30,916.20, as well as superannuation at the amount of 10.5 per cent of $3,246.20.
I further note that there has been a claim by the applicant for the payment for stress, distress and humiliation, in the order of $10,000, by reference to a capacity under subs 213(1) of the Act and reference is made to the case of Ters v Health Secretary in respect of the South Western Sydney Local Health District [2023] NSWIRComm 1009.
That decision does stand for the authority that s 213(1) provides for relief in addition to that set out in ss213(2). However, I am not satisfied that there is a basis in this Commission to go the next step and make an order for payment in the form sought by the applicant for stress, distress and humiliation and in that regard I reach the same conclusion as Commissioner Sloan in Jaggi v Health Secretary in respect of the Western Sydney Local Health District [2022] NSWIRComm 1032.

At a glance

Court

Decision date

Source

Judgment (5 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (10)