Tan v Commonwealth of Australia

Tan v Commonwealth of Australia | Case summary | Zoe

[91]

...

All senior employees in the public service including the First Respondent, are aware that potential travel is part of their work requirement, as the representative of their agency.

A senior officer of as the Director of Conduct and Performance Unit based in Victoria, Ms Barbuto has been employed by the First Respondent for 32 years. She would very likely had already travelled a few times, for business or training during her employment with the First Respondent, and this trip to Perth for the hearing, should be no different.

Since February 2020, Ms Barbuto had been aware that the referral received from the Second Respondent is based in Western Australia.

On 26 April 2022, Ms Barbuto filed her Affidavit as one of the Respondents' witnesses, and as a senior officer of the First Respondent, she would have already been aware of the potential travel to Perth.

In her Affidavit filed on 26 April 2022, Ms Barbuto stated that she was the sole decision maker in terminating my employment ...

Ms Barbuto has a very long time to prepare for her potential travel to Perth, in anticipation of her giving evidence in person.

On 30 May 2020, Mr Humphreys advised that Ms Barbuto occupies a senior role based in Melbourne and travelling to Perth to give evidence would cause her significant disruption and represent significant cost to the First Respondent ...

I am unable to comprehend how travelling to Perth for one to three days to give evidence in person, could cause significant disruption to Ms Barbuto's duties compared to the major consequences of her decision on the misconduct sanction that she imposed upon me.

I do not believe the estimated cost of $2,000 for return flight air fare and accommodation for Ms Barbuto's giving evidence in person, is a significant cost or concern to the First Respondent ...

While I deeply regret the health issues with her mother as with many others in a similar situation who are still able to manage their family commitments effectively, and I too, have elderly parent. Ms Barbuto would only be in Perth for a maximum of three days and with her senior role with the First Respondent, she would have financial capacity to arrange short term support for her mother ...

Based on the above, it is my preference for Ms Barbuto to give evidence in person, in the Federal Circuit Court in Perth, rather than through the screen via a video link.

[92]

(a) s 204 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("FCFCA Act") permits the Court to allow Ms Barbuto to appear by videolink, and places some conditions on the use of videolinks and the Respondents submit that those condition are met;

(b) Ms Barbuto has access to appropriate technology to allow her to appear by videolink and she had recently appeared as a witness in a Fair Work Commission hearing and had no technical difficulties and understands the requirements of appearing by video;

(c) there were impracticalities in Ms Barbuto travelling to Perth, both in relation to caring requirements for her elderly mother and the fact that being out of Melbourne and in Perth for one to two nights most likely would cause significant disruption to or cost to Defence;

(d) Ms Tan was arguing that Ms Barbuto ought to be able to fund outside care for her mother due to the seniority of her role with Defence and consequential remuneration in that role and that she "wants to look Ms Barbuto in the eye given she is the person who made the ultimate decision to terminate her employment";

(e) none of the objections raised by Ms Tan are a basis to refuse permission for Ms Barbuto to appear given the inconvenience in cost and, most importantly the advances in video technology in recent years and the prevalence of them at Court hearing meant there would be no prejudice to Ms Tan by Ms Barbuto appearing by video and no inconvenience to the Court;

(f) the Witness Videolink Application was late and it had "overlooked" conferring with Ms Tan prior to the week before it filed the Witness Videolink Application;

(g) Defence had addressed Ms Barbuto about the issue of flying to Perth in its meetings with her the week prior to filing Defence's Application but that it did not occur prior to then and that was a "downfall on the part of [Defence's]... instructing solicitors" and that the question of Ms Barbuto's attendance in Perth was not addressed in the preparation of the Barbuto Affidavit or prior to then; and

(h) Ms Barbuto had "expressed a preference to not travel to Perth because of the disruption to her duties and the additional aspect regarding her caring requirements".

[106]

There have been, on the decided cases, differing approaches adopted to the giving of evidence via video link and it can be said that there is generally a line of cases in favour of the use of audio or visual evidence, and those cases which take a more cautious approach. Those cases have been analysed in Australian Securities and Investments Commission v Rich [2004] NSWSC 467; (2004) 49 ACSR 578; (2004) 22 ACLC 1125 ("Rich") at [17] and [18] per Austin J, and referred to and analysed in a number of subsequent cases. Those differing approaches can still be seen in recent cases in the Federal Court in determining whether or not video link evidence ought to be given, particularly during the COVID-19 lockdowns. Without detailing the approach in each of the cases the Court has had regard to all of, and will refer to some of, the following cases: Auken Animal Husbandry Proprietary Limited v 3RD Solutions Investments Proprietary Limited [2020] FCA 1153 ("Auken"); Australian Securities and Investments Commission v Wilson [2020] FCA 873 ("Wilson"); Capic v Ford Motor Co of Australia Limited [2020] FCA 486; Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504; and Rooney v AGL Energy (No 2) [2020] FCA 942 ("Rooney").
The reasons for the exercise of the Court's discretion must be made out, and made out by the party seeking the favourable exercise of that discretion, here, by Defence: Wilson at [6] per Jackson J, and that is an assessment which is made in each case depending upon the particular circumstances of the case: Wilson at [24] per Jackson J.
There are a number of factors for consideration as outlined in Rich, including the nature of the evidence, the assessment of credit, management of documents in cross-examination, technological difficulties, and the length of cross-examination, to which might be added, and the nature of the case.
This is a case where the alleged contravention may give rise to a civil penalty, and that is a factor to be considered in conjunction with questions of cross-examination and assessment of credit: Wilson at [17] per Jackson J.
The length of cross-examination is also a factor to be considered, as is the nature of the material in this case is detailed. The Court notes that there is a very large bundle of documents comprising the Barbuto Affidavit, some 725 pages. It is evident that the chains of correspondence and the multiple emails exchanged may require detail and concentrated attention to follow, in order to ensure that the chronology of the events is accurate and information is not misrepresented or presented out of order to the Court. It is also to be borne in mind that Ms Barbuto was the decision maker in relation to the decision to terminate Ms Tan's employment with Defence. Her evidence will therefore be critical to the Court's assessment as to whether the presumption in s 361(1) of the FW Act has been rebutted.
Any examination of Ms Barbuto's 725 page affidavit when Ms Barbuto is not in Court, is not able to be assisted necessarily by Counsel, the Associates or the Judge in a direct manner when - as is so often the case, the witness requires assistance to find a particular page or a particular detail, or, again, as often happens, the Court Book pages appear to be missing or out of order - has the potential both to effect the smooth running of the hearing, to prolong it and to make the witness, to the witness's disadvantage, appear clumsy.
It must also be borne in mind that Ms Tan, as a self-represented litigant, may not be as used , as Counsel, to the use of technology in the Courts, as a videolink cross-examination may disadvantage her in this respect.
Cross-examination for Ms Barbuto is therefore likely, the Court suspects, to be detailed and lengthy, and in those circumstances, the Court takes the view that a video link between the Court and Ms Barbuto in Melbourne, is likely to render on balance the process of adducing evidence unsatisfactory.
Though this submission was not raised by Ms Tan, it is worth considering also that there is much also to be said for whether giving evidence by video link would inhibit the forensic benefit derived from cross-examination in person: Rooney at [18] per Snaden J. That, of course, is something which may affect the assessment of credit. This is not a case in which the evidence is sufficiently brief and straightforward to be able to effectively tick off on a video link appearance, but is one where the matter is contentious, requires cross-examination on documents, the meaning and content of which is contested between the parties, and is a matter in respect of which credit will likely be in issue, and one in which, therefore, the Court is of the view that a video link is not appropriate.
It remains the case in the Court's view that the attendance of witnesses to give evidence in person is the primary and desirable means by which evidence is to be given. There are, obviously, exceptions to that, but evidence in person remains the norm and the video link provisions in the FCFCA Act are not intended to make video link evidence the norm. There are particular circumstances in the recent past of the COVID-19 crisis, which does not particularly touch this matter, other than on the periphery, which means in certain circumstances video link evidence may become the norm for a time. But where, as here, it appears that the basis for the application revolves, in part, around a claim, not made out the Court notes, by Ms Barbuto of disruption to her work duties and to her responsibility as a carer then it amounts to no more than a means to avoid the Courtroom, and if acceded to too readily, is in danger of becoming regarded as a means by which a majority of people could avoid the Courtroom with all of the forensic benefits that accrue in a Courtroom in a witness facing the litigants and the Court: Rooney at [18] per Snaden J and Wilson at [27]-[28] per Jackson J.

[132]

(a) the Audio Recordings Application was made on the basis there were discrepancies in the transcript;

(b) Auscript had been through the transcript again and had corrected some but not all of the discrepancies;

(c) in the transcript for the second day of the hearing (9 June 2022), at a point during her cross-examination when Ms Stanton asked Ms Tan a question regarding an email from Mr Rosam, she had given evidence that "They are all the same task. It's micromanagement" and that this had not been recorded in the transcript and that this evidence should have appeared at line 35 on page 96 of the transcript of the third day of the hearing (10 June 2022);

(d) she knew that this was what she had said because this is what she had said in response to Ms Stanton's question;

(e) in the transcript for the second day of the hearing, on page 104 at line 30 during the cross-examination of Ms Tan regarding Ms Chrispin's assignment to APS6 higher duties in Ms Chrispin's role with Defence, Ms Tan had given evidence that "You've just mentioned processes but not procurement or contract management";

(f) she knew that this was what she had said because following her cross-examination she had gone back and started writing as much as she could remember on what she had said;

(g) there were further discrepancies on pages 146 and 149 of the transcript where she asked Ms Chrispin some questions about Ms Chrispin's experience in procurement and that this was not in the transcript;

(h) she had also attended the Registry to go through the transcript for the third day of the hearing and there was some further discrepancies;

(i) she had not yet received the transcript for the first day of the hearing on 8 June 2022;

(j) the discrepancies were based on her recollection of what was said when she went back home and wrote down what she thought was said during the course of the hearing; and

(k) the transcript for the third day of the final hearing had failed to capture portions of her evidence, and she was confident as to which portions of speech which were not captured by the transcript of the third day of the final hearing because following her cross-examination, she wrote down as much as she could of what she remembered of the exchange in the cross-examination.

[141]

(a) the Supplementary Affidavit had been sworn on 20 January 2023, and not provided to the Respondents until after the re-commencement of the hearing on 24 January 2023, without notice and without the annexures;

(b) the submissions concerning the subpoenaed documents, which included network access and building access logs, are mainly irrelevant to any matters in issue, and meaningless without expert information technology evidence;

(c) category 5 of the subpoenaed documents related to documents concerning allegations made by Ms Tan that certain documents had been tampered with, and in relation to which an investigation had been conducted by Defence in which it had been found that there was no evidence of tampering, and Ms Tan, a person without information technology qualifications, now sought to give evidence or make submissions that something improper had happened in relation to the documents;

(d) these proceedings are not about whether there is some impropriety in Defence concerning these documents, but in any event Ms Tan has the documents and had already put those documents relating to the alleged tampering into evidence, and there was no need to go behind the findings of the Defence investigation;

(e) in relation to certain alleged workplace statements, the affidavit and documents were a mix of hearsay, submissions, and unnecessary work examples, and were not probative of any relevant issue, but if they were they could be put to Mr Rosam by Ms Tan in cross-examination;

(f) to the extent that medical documents were intended to prove Ms Chrispin's demonstration of demeanour to be wrong it would be necessary to call the doctors concerned;

(g) issues as to whether Defence had acted as model litigant did not go anywhere, but in any event the proceedings had been supervised by the Court, and much of what was put was historical and misrepresented, and not relevant to any matter in issue in the proceedings;

(h) Ms Tan had not brought copies of the relevant documents to be put to any witnesses;

(i) they did not consent to the tendering of the Supplementary Affidavit or any new material contained therein; and

(j) they opposed, and could not accommodate, the recalling of any witnesses.

[142]

The Supplementary Affidavit Application is one which demands to be dismissed, and particularly so from a case management and delay perspective.
First, the Supplementary Affidavit Application came almost eight months after Ms Tan had filed her Affidavit in Reply on 30 May 2022, more than seven months after the adjournment of the hearing on 10 June 2022, and more than six months after the Court had made orders dismissing the Audio Recordings Application on 18 July 2022. In that context, at the time of the resumed hearing on 24 January 2023 no copy of the Supplementary Affidavit, so-called, had been provided to the Respondents. That placed the Respondents at a considerable disadvantage, and in a position of prejudice. It may also, in the Court's view, have required further adjournments of, or during, the further two days of hearing listed on 24 and 25 January 2023, which may have resulted in a considerable delay of many further months before the proceedings could be relisted for further hearing.
Second, acceptance of the Supplementary Affidavit for filing may have necessitated the recalling of Ms Tan for further probably lengthy cross-examination, but also the recalling of the witnesses who had already given evidence for the Respondents to give further evidence-in-chief and to be further cross-examined and re-examined because the nature of the Supplementary Affidavit was such that it sought to give new evidence and supplement evidence already given by Ms Tan and to answer evidence given by the Respondents' witnesses who had already given evidence. That would have further prolonged the hearing, not by just the two further days (24 and 25 January 2023) for which it had been re-listed, but by probably a further two days (so for a further four days in total) in circumstances where the matter was originally listed for only four days. To allow the filing of the Supplementary Affidavit would not therefore be warranted on case management grounds, nor on grounds related to the interests of justice, or the administration of justice, particularly in circumstances where the purposes of the Supplementary Affidavit was to fill gaps and answer queries that Ms Tan had perceived had arisen as a result of her cross-examination, and the cross-examination by her of those of the Respondents' witnesses who had already given evidence.
Third, the new evidence was not in relation to matters which could not have been foreseen, but mainly in relation to matters which were in issue, and which had been in issue at the time Ms Tan filed her primary affidavit and four witness specific affidavits in response: see [11(h)-(k)] above, and which she ought to have dealt with at that time.
Fourth, the Court carefully case managed the proceedings over a long period of time prior to the hearing, and, even allowing for the fact that Ms Tan was self-represented, she had been given more than adequate opportunity to file affidavit evidence in support of her case.
Fifth, to allow the Supplementary Affidavit Application to be filed would also offend the overarching civil practice and procedure provisions in s 190 of the FCFCA Act, and in particular:

[147]

(a) a declaration that:

(i) Defence contravened ss 65(4) and 44(1) of the FW Act, in respect of failing to give Ms Tan a written response, to her request for a flexible working arrangement made under s 65(1) of the FW Act on 17 October 2019, within 21 days;

(ii) Defence contravened ss 65(6) and 44(1) of the FW Act, in respect of failing to include, in its written response, details of the reason for its refusal of Ms Tan's request for a flexible working arrangement made on 17 October 2019;

(iii) Defence contravened ss 65(5) and 44(1) of the FW Act, in respect of refusing Ms Tan's request for a flexible working arrangement made on 17 October 2019 without reasonable business grounds;

(iv) Mr Rosam contravened s 50 of the FW Act by contravening a term of the DEA, namely cl A1.2, in respect of each of the following:

(A) in respect of unauthorised absences between March and October 2020, failing to exercise the discretion under cl G1.3 of the DEA in an appropriate manner in the circumstances or in a manner which provided for flexible workplaces; and

(B) in respect of Ms Tan's absence on 11 August 2020, failing to exercise the discretions under cll E6.2 and G1.3 of the DEA in an appropriate manner in the circumstances or in a manner which provided for flexible workplaces or resulted in fair employment decisions;

(v) Ms Martinelli contravened s 50 of the FW Act by contravening a term of the DEA, namely cl A1.2, by failing to exercise the discretions under cll E5 and G1.3 of the DEA, in respect of in respect of the Request, in an appropriate manner in the circumstances or in a manner which provided for flexible workplaces;

(vi) Defence contravened ss 88(2) and 44(1) of the FW Act, by unreasonably refusing to agree to a request by Ms Tan to take paid annual leave on 16 September 2020;

(vii) Defence contravened ss 117(2) and 44(1) of the FW Act, by terminating Ms Tan's employment on 29 October 2020 without providing Ms Tan with 3 weeks' notice or payment in lieu of 3 weeks' notice;

(viii) Defence contravened ss 99, 44(1) and 323(1) of the FW Act, by failing to pay Ms Tan her base rate of pay for her ordinary hours of work (being 7.5 hours) in respect of personal/carer's leave on each of 11, 18 and 19 March 2020;

(ix) Defence contravened ss 343(1) and 344 of the FW Act in respect of exerting undue pressure and taking action against Ms Tan with intent to coerce her to not exercise her workplace rights or not exercise her workplace rights in a particular way in respect of making a request for flexible working arrangements;

(x) Defence contravened s 343(1) of the FW Act in respect of taking action against Ms Tan with intent to coerce her to not exercise her workplace rights or not exercise her workplace rights in a particular way in respect of taking leave where she was unable or unwilling to provide 48 hours' written notice;

(xi) Defence contravened s 343(1) of the FW Act in respect of taking action against Ms Tan with intent to coerce her to not exercise her workplace rights or not exercise her workplace rights in a particular way in respect of taking annual leave where she was unable or unwilling to provide her reasons for taking such leave;

(xii) Defence contravened s 343(1) of the FW Act in respect of taking action, or threatening to take or organise action, against Ms Tan with intent to coerce her to exercise her workplace right to take or use annual leave under the FW Act or to not exercise any other workplace rights under the DEA in respect of the absence on 11 August 2020;

(xiii) Defence contravened s 340(1) of the FW Act and/or s 351(1) of the FW Act by taking unlawful adverse action against Ms Tan, namely dismissal; and

(xiv) Defence contravened s 340(1) of the FW Act on each occasion it took each of the adverse actions set out in paragraph 100 of the Applicant's Form 2 - Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection;

(b) a declaration that Mr Rosam was involved in each of the following contraventions of the FW Act by Defence and is therefore taken to have contravened each respective provision pursuant to s 550(1) of the FW Act:

(i) s 343(1) of the FW Act in respect of Defence's contravention set out at [100(a)(x)] above;

(ii) s 343(1) of the FW Act in respect of Defence's contravention set out at [100(a)(xi)] above;

(iii) s 343(1) of the FW Act in respect of Defence's contravention set out at [100(a)(xii)] above; and

(iv) s 340(1) of the FW Act in respect of each of Defence's contraventions set out at [100(a)(xiv)] above;

(c) a declaration that Mr Rosam, pursuant to s 362(1) of the FW Act, contravened s 340(1) and/or s 351(1) of the FW Act in respect of advising, inciting or encouraging Defence to undertake a disciplinary investigation and/or dismiss the Applicant from her employment;

(d) a declaration that Ms Martinelli was involved in each of the following contraventions of the FW Act by Defence and is therefore taken to have contravened each respective provision pursuant to s 550(1) of the FW Act:

(i) s 44(1) of the FW Act in respect of Defence's contravention of s 65(4) of the FW Act as set out at [100(a)(i)] above;

(ii) s 44(1) of the FW Act in respect of Defence's contravention of s 65(6) of the FW Act as set out at [100(a)(iii)] above; and

(iii) s 44(1) of the FW Act in respect of Defence's contravention of s 88(2) of the FW Act as set out at [100(a)(vi)] above;

(e) an order that Defence reinstate Ms Tan to an equivalent position to that which she held immediately prior to 29 October 2020 or a suitable alternate position by no later than 7 days of these orders being made;

(f) an order that, for all purposes of her reinstatement in accordance with order 5, the Defence treat Ms Tan as if she had been employed continuously by Defence from 29 October 2020 up to and including the date of reinstatement, with:

(i) the reinstatement being on terms which are substantially similar and no less favourable;

(ii) there being no loss of continuity of service and with continuity of service being maintained for all purposes; and

(iii) Defence to pay compensation to Ms Tan for lost wages and superannuation for the period between 29 October 2020 and her reinstatement;

(g) alternatively, an order that Defence and Mr Rosam, jointly and severally, pay Ms Tan the sum of $764,340 as compensation for economic loss arising from the contraventions of s 340(1) and/or s 351(1) of the FW Act in respect of Ms Tan's dismissal;

(h) an order that Mr Rosam pay Ms Tan the sum of $5,035.95 as compensation for economic loss arising from the contravention of s 50 of the FW Act in respect of the failure to exercise the discretion under cl G1.3 of the DEA in an appropriate manner in the circumstances or in a manner which provided for flexible workplaces, in respect of unauthorised absences between March and October 2020;

(i) an order that Defence pay Ms Tan the sum of $1,172.13 (plus superannuation) as compensation for economic loss arising from the contraventions of ss 88(2) and 99 of the FW Act;

(j) an order that Defence pay Ms Tan the sum of $30,000 as compensation for hurt, humiliation and distress suffered by Ms Tan as a result of Defence's contraventions of the FW Act;

(k) an order that Mr Rosam pay Ms Tan the sum of $10,000 as compensation for hurt, humiliation and distress suffered by Ms Tan as a result of Mr Rosam's contraventions of the FW Act;

(l) an order that Ms Martinelli pay Ms Tan the sum of $10,000 as compensation for hurt, humiliation and distress suffered by Ms Tan as a result of Ms Martinelli's contraventions of the FW Act;

(m) an order, pursuant to s 547 of the FW Act, for payment, to Ms Tan, of an amount of interest up to judgment on any sum (other than a pecuniary penalty) ordered to be paid by any of the Respondents;

(n) an order, pursuant to s 546 of the FW Act, that:

(i) Defence pay, to Ms Tan, a pecuniary penalty of $40,000 in respect of its contraventions of s 340(1) and/or s 351(1) of the FW Act;

(ii) Mr Rosam pay, to Ms Tan, a pecuniary penalty of $10,000 in respect of each of his contraventions of s 340(1) and/or s 351(1) of the FW Act;

(iii) Defence pay, to Ms Tan, a pecuniary penalty of $15,000 in respect of each of its contraventions of s 44(1) of the FW Act arising from its contraventions of s 65(4) and (6) of the FW Act;

(iv) Ms Martinelli pay, to Ms Tan, a pecuniary penalty of $5,000 in respect of each of her contraventions of s 44(1) of the FW Act arising from the contraventions of s 65(4) and (6) of the FW Act;

(v) Defence pay, to Ms Tan, a pecuniary penalty of $20,000 in respect of its contravention of s 44(1) of the FW Act arising from its contravention of s 88(2) of the FW Act;

(vi) Ms Martinelli pay, to Ms Tan, a pecuniary penalty of $5,000 in respect of her contravention of s 44(1) of the FW Act arising from the contravention of s 88(2) of the FW Act;

(vii) Defence pay, to Ms Tan, a pecuniary penalty of $20,000 in respect of its contraventions of ss 44(1) and 323(1) of the FW Act arising from its contravention of s 99 of the FW Act;

(viii) Defence pay, to Ms Tan, a pecuniary penalty of $10,000 in respect of its contravention of s 44(1) of the FW Act arising from its contravention of s 117(2) of the FW Act;

(ix) Defence pay, to Ms Tan, a pecuniary penalty of $20,000 for each contravention of ss 343(1) or 344 of the FW Act;

(x) Mr Rosam pay, to Ms Tan, a pecuniary penalty of $10,000 for each of his contraventions of s 343(1) of the FW Act;

(xi) Ms Martinelli pay, to Ms Tan, a pecuniary penalty of $10,000 for her contravention of ss 343(1) and 344 of the FW Act;

(xii) Mr Rosam pay, to Ms Tan, a pecuniary penalty of $5,000 in respect of each of his contraventions of s 50 of the FW Act; and

(xiii) Ms Martinelli pay, to Ms Tan, a pecuniary penalty of $5,000 in respect of each of her contraventions of s 50 of the FW Act,

(o) an order that any amounts ordered to be paid, be paid within 14 days of any such order;

(p) pursuant to s 545(1) of the FW Act, an order that Defence is to engage, at its own expense, a person or organisation with professional qualifications in workplace relations, to provide training to the Respondents, within three months of the date of this order, that covers the following:

(i) obligations under the DEA and the National Employment Standards under Pt 2-2 of the FW Act; and

(ii) general protections obligations in Pt 3-1 of the FW Act,

(q) damages in respect of the breach of the Employment Contract.

(r) costs; and

(s) any other orders that the Court deems fit.

[166]

On 23 March 2020 Mr Rosam issued a further Instruction Letter to Ms Tan ("Third Instruction Letter").
This letter referred to Mr Rosam attempting to issue the letter at a meeting on 17 March 2020, but being unable to do so because Ms Tan 'walked out' of the meeting.
The letter recorded that Ms Tan was frequently arriving at work 10 to 15 minutes late (that is, after 9.00 am as required by the LWA) without advising her supervisor of any reason for her absences. An attachment to the letter: Respondents' Bundle page 163 listed 10 occasions of lateness recorded in the preceding month.
The letter recorded that Ms Tan had been absent from work on 11 March 2020 to attend a dental appointment without prior approval being sought, and that Ms Tan had left the office on a number of occasions without advising her supervisor of her whereabouts: conduct in respect of which Ms Chrispin gives corroborating evidence in her affidavit at [7]. The letter contained a warning that failure to comply with processes relating to absences may result in those absences being characterised as unauthorised.
The Third Instruction Letter advised Ms Tan that from the date of that letter, her hours of work would be 8.30 am - 12.30 pm and 1.30 pm - 5.00 pm. These were the standard hours of work under cl E1.2 of the DEA. Clause 7.1 of the DEA provided that an employee may be directed to revert to standard hours where it is reasonable to do so based on non-compliance with the provisions of flexible working hours, including any local arrangements.
The Third Instruction Letter also advised Ms Tan that she was to complete an attendance diary each day as required by the APS People Policy that was enclosed with the letter, and that failure to accurately record her attendance times may lead to her being paid in accordance with attendance times approved by her supervisor.
Ms Tan was directed by the Third Instruction Letter to submit original medical certificates for all personal leave on the first day of her return to work, and to communicate with a supervisor by telephone to advise of absences on personal leave by 10.00 am on the day of the leave. In respect of other leave, the First Instruction Letter required Ms Tan to provide at least 48 hours prior notice in writing of her application for the leave.
The Third Instruction Letter repeated instructions made in the previous Instruction letters and contained a warning of referral to the Directorate of Conduct and Performance and the risk of further disciplinary action being taken (including termination) if Ms Tan's performance and conduct did not improve.

[167]

Mr Rosam did make referrals to the Directorate of Conduct and Performance. Officers of that directorate undertook investigative work, and it was ultimately concluded that Ms Tan had acted in breach of the APS Code of Conduct: Determination of Breach Letter of Ms Patterson at Respondents' Bundle page 426.
The matter was then referred to Ms Barbuto, the Director Conduct and Performance, who had the role of 'Sanction Delegate': Barbuto Affidavit at [11].
Ms Barbuto ultimately determined that termination was the appropriate sanction. Ms Barbuto's reasoning was set out in a termination letter (the Determination of Sanction Letter): Respondents' Bundle page 494, which contained a finding that Ms Tan's misconduct in failing to abide by lawful and reasonable directions, and failing to treat her manager with respect and courtesy, was conduct which was contrary to the APS Code of Conduct. Ms Barbuto found that it was relevant that the behaviour was not isolated but consisted of numerous instances. Ms Barbuto noted that Ms Tan had failed to comply with the Third Instruction Letter in relation to attendance on 27 occasions, and had been disrespectful towards her manager on 6 different occasions during the period 12 November 2019 to 28 May 2020, demonstrating deliberate behaviour rather than an isolated lapse of judgment.
The Determination of Sanction Letter referred in detail to the instruction letters and Ms Tan's responses to them, and the difficulties experienced by Mr Rosam in the management of Ms Tan. The letter referred to Ms Tan's claim of alleged inappropriate behaviour of others and found that there was no evidence to substantiate the claims, and accordingly, they would not be considered as mitigating factors. This was the sole purpose of reference to Ms Tan's complaints made about her colleagues. There was no part of Ms Barbuto's reasoning which made the fact of those complaints a reason, or any part of the reason, for the decision to terminate Ms Tan's employment.
On 29 October 2020 Ms Tan was terminated from her employment at Defence. She was 62 years of age at the time of her termination from employment.
On 19 November 2020 Ms Tan commenced proceedings in the Fair Work Commission, and made claims including that Defence had terminated her employment without the required three weeks' notice period or pay in lieu thereof and that she was only paid for two weeks' in lieu of notice.
On 10 December 2020 Defence paid an additional weeks' pay to Ms Tan.

[213]

Ms Martinelli did not specify a particular time period within which Ms Tan had to put the flexible working arrangement request in writing.
That Ms Tan's request made orally was considered to be unclear by Ms Martinelli is unsurprising: it is consistent with the lack of clarity in much of Ms Tan's evidence.
There was nothing improper in Ms Martinelli's request that Ms Tan put the flexible working arrangement request in writing: not only was it necessitated by the circumstances where the precise terms of the request as made orally were unclear, it was good administrative practice, particularly in the aforementioned circumstances, and in circumstances where it appears that the request was controversial and might cause disharmony within the Contracting team.
No written request was forthcoming from Ms Tan, and on 11 October 2019 Ms Martinelli again asked Ms Tan to email to Ms Martinelli her flexible working arrangement request: Martinelli Affidavit, Annexure MM5, and requested that she do so by 14 October 2019. At this point a date was stipulated by Ms Martinelli for the written request to be made. The request for the flexible working arrangement request to be put in writing again appears to be little more than good administrative practice, and an attempt in the circumstances to bring the issue to a point where it could be dealt with, one way or the other.
Still no written request was forthcoming from Ms Tan, and on 17 October 2019 Ms Martinelli emailed Ms Tan enquiring as to whether Ms Tan still intended to make a flexible working arrangement request, and that if she did so intend, to do so by close of business on 17 October 2019: Martinelli Affidavit, Annexure MM6. The request for an end date for the flexible working arrangement request to be put in writing again appears to be little more than good administrative practice, and another attempt to bring the issue to a point where it could be dealt with, one way or the other.
Later on 17 October 2019 Ms Tan emailed Ms Martinelli with a flexible working arrangement request to start work by 9.30am: Martinelli Affidavit, Annexure MM-7. the reasons that Ms Tan gave in support of her request were as follows:

[215]

Ms Tan's request to be able to start work at 9.30am was not recognised by Ms Martinelli as a flexible working arrangement request made pursuant to s 65 of the FW Act because none of the reasons for the flexible working arrangement request made by Ms Tan entitled Ms Tan to seek a flexible working arrangement under s 65 of the FW Act: Martinelli Affidavit at [63].
Ms Ainge met with Ms Tan on 13 February 2020 and advised her that "travel" was not a justifiable reason for a change in Ms Tan's core hours: Martinelli Affidavit, Annexure MM-16, and on 19 February 2020 Ms Tan was advised by Ms Martinelli that her request to start after 9.30am was refused.
Section 65(1) of the FW Act refers to an employee seeking to change their working arrangements "because of" the "circumstances" set out in s 65(1A) of the FW Act. At no stage did Ms Tan make a request based on any of the circumstances set out in s 65(1A) of the FW Act. On the facts the only circumstance which might have applied to her was that in s 65(1A)(d) of the FW Act, namely that "the employee is 55 or older". But nothing in the request actually eventually made, or in the interchanges leading up to that request being made on 17 October 2019, refers to Ms Tan's age, and nor, in all the circumstances, ought an age-based request be implied.
Ms Tan therefore never made a valid request for a flexible working arrangement under s 65(1) of the FW Act because, on the facts, the basis for the request ultimately made was neither, expressly or impliedly, made on the basis that she was an employee aged 55 or older.
In the above circumstances it is unnecessary to deal with the question of whether there were reasonable business grounds for refusing a flexible working arrangement under s 65(1) of the FW Act because no such request was validly made.
It follows that there was no contravention by Defence, or any of the respondents, of ss 44, 50 or 65 of the FW Act on the basis of request for a flexible working arrangement under s 65(1) of the FW Act as alleged by Ms Tan.

[220]

From and including 24 March 2020, to the extent that Ms Tan was observed to have arrived at work after 9.00 am, the absences were treated as unauthorised under cl G1.3 of the DEA, and not characterised as leave of any kind, as would have been the case if, for example, Ms Tan was unavoidably occasionally late and had communicated with a supervisor in that regard, which she did not.
The Court notes the DEA has a mechanism to prevent any unreasonable exercise of the power to treat absences as unauthorised in that the absences could not be treated as unauthorised absences unless they extended beyond 30 minutes: DEA cl G1.3. Thus, where Ms Tan presented at a workstation by 9.00 am, no absence was treated as unauthorised, notwithstanding she had been reverted to standard hours and was required to start work at 8.30 am.
Mr Rosam initially dealt with the issue of late arrival at work by Ms Tan by sending her an email giving her the opportunity to explain why her lateness should not be treated as an unauthorised absence. Ms Tan did not ever reply.
On 31 March 2020 Mr Rosam emailed Ms Tan and recorded that he had asked her if there was any reason why she was late that morning, Ms Tan having arrived at 9:05 am, when her start time was 8:30 am. Mr Rosam records that Ms Tan said that 8:30am was not her start time because she did not accept the notice given to her in the Third Instruction Letter to revert to standard hours under the DEA. When Mr Rosam advised he would send an email confirming this conversation Ms Tan advised him that she does not read his emails.
The evidence demonstrates a trend for Ms Tan to arrive at work progressively later with the passage of time. To the extent it might matter, Ms Tan gave no cogent reason as to why this occurred.
Mr Rosam's evidence was that it was necessary to have Ms Tan work standard hours so that during her working day he could closely supervise her: Rosam Affidavit at [164]. There is no reason to doubt this was the case, particularly when regard is had to the circumstances giving rise to, and the giving of, the First, Second and Third Instruction Letters.
In circumstances where Ms Tan failed, whether deliberately or possibly even occasionally inadvertently, to be reasonably punctual in arriving at work, resulting in her failing to meet deadlines and provide feedback and responses where requested, it was not unreasonable for Defence to put Ms Tan on standard hours pursuant to cl E7.1 of the DEA so as to allow her supervisor, Mr Rosam, to facilitate and maintain the required close supervision of her work.
It follows that there was no breach of the DEA, and no contravention by Defence, or any of the Respondents, of s 50 of the FW Act.

[279]

Coercion requires conduct that is compulsive, in the sense that the pressure in a practical sense, negates choice, and is unlawful, illegitimate or unconscionable: Finance Sector Union of Australia v Commonwealth Bank of Australia [2000] FCA 1468; (2000) 106 FCR 16; (2000) 106 IR 158 at [18]- [38] per Gyles J; National Union of Workers v Qenos Pty Ltd [2001] FCA 178; (2001) 108 FCR 90; (2001) 183 ALR 475; (2001) 106 IR 373 ("Qenos") at [128] per Weinberg J. The entire circumstances of a case may be evaluated to find coercive intent, rather than immediate proximate conduct: Auspine Ltd v Construction, Forestry, Mining & Energy Union [2000] FCA 501; (2000) 97 IR 444. Coercion itself requires that a person not be left with a realistic choice as to whether or not to comply: National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441; (2002) 117 FCR 114; (2002) 114 IR 20 ("NTEIU v Commonwealth") at [103] per Weinberg J. In order to prove coercion, proof of the requisite intent to coerce is necessary: NTEIU v Commonwealth at [65] per Weinberg J. The mere communication of an intention to make employees redundant in a spill and fill process, communicated generally to the workforce, was held in Qenos at [119] per Weinberg J, not to be a threat.
There will not be a threat of proscribed conduct for the purposes of s 343 of the FW Act unless Defence or one of its employees communicated to Ms Tan that proscribed action would be taken, and that required that Ms Tan be menaced or warned beforehand of an intention to inflict harm: Community and Public Sector Union v Telstra Corporation Ltd [2000] FCA 844; (2000) 99 IR 238 at [19] per Finkelstein J.
In the FW Act "undue pressure" is not defined.
In the Building and Construction Industry Improvement Act 2005 (Cth), the phrase "undue pressure", similarly undefined, was said to bear its ordinary meaning in the context of the purpose of the legislation: Stuart v Construction, Forestry, Mining and Energy Union [2009] FCA 1119; (2009) 190 IR 82 at [18] per Gray J ("Stuart"). The judgment in Stuart was appealed, but only as to penalty: Stuart v Construction, Forestry, Mining and Energy Union [2010] FCAFC 65; (2010) 185 FCR 308; (2010) 197 IR 202; (2010) 269 ALR 49. In Stuart the Federal Court observed at [18] per Gray J:

[283]

In John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FCA 235; (2009) 174 FCR 526; (2009) 180 IR 314 at [57]- [60] per Jessup J the Federal Court observed that:
1. ... the expression 'undue pressure' could not ... be limited to circumstances of the kind comprehended by the equitable doctrine of undue influence ... the expression was intended to have a connotation that was relevant in the conduct of industrial relations in the building and construction industry over a much broader front than would be implied by the equitable doctrine.
2. Looking then at the normal meaning of the words used in the expression, there is no particular difficulty with the word "pressure." It is the word " undue" which is problematic. The dictionaries tell us that "undue" may carry a quantitative connotation - in the sense of going beyond what is warranted, or excessive - or a qualitative connotation - in the sense of being discordant with some rule or norm, unjust or, in a softer sense, inappropriate or unsuitable. ... I think it likely that the legislature intended that a qualitative standard of some kind was connoted by the expression.
3. What is clear, as a matter of construction, is that the application of undue pressure was regarded by the legislature as something different from coercion. ...
4. A very cursory survey of the recent use of the expression "undue pressure" in the industrial relations context reveals that it has been used to describe the kind of situation that might be regarded as a constructive dismissal (see Allison v Bega Valley Council [1995] NSWIRComm 175; (1995) 63 IR 68, 73) and the situation which may arise when an employee does not make a free decision to agree to a change of shift, for example (see Victorian Hospitals Industrial Association v Australian Nursing Federation [2002] AIRC 1124 [14]). Cases of this kind throw little light on the meaning of the expression used in s 44 of the BCII Act. They do, however, demonstrate that, in context, the expression "undue pressure" has at least the potential to cover forms of pressure which are somewhat more benign than those considered necessary to make good an allegation of coercion in the statutory sense.
In Australian Federation of Air Pilots v Jetstar Airways Pty Ltd [2014] FCA 15 at [13] per Pagone J ("Jetstar Airways") the Federal Court said of s.344(e) of the FW Act that:

[287]

Section 351(1) of the FW Act prohibits adverse action based on traditionally statutorily proscribed grounds of discrimination as listed.
In Barclay the High Court also observed that the purpose of s 361 of the FW Act was to place on the defendant employer the onus of proving that which lies peculiarly within the employer's own knowledge: Barclay at [50] per French CJ and Crennan J, at [86] per Gummow and Hayne JJ, and at [149] per Heydon J, all adopting what was said in General Motors Holden Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 51 ALJR 235; (1976) 12 ALR 605 at 617 per Mason J.
Under s 360 of the FW Act a prohibited reason need only be one of the reasons for the adverse action for a contravention of the general protections provisions to arise. However, a prohibited reason must be a "substantial or operative factor" in influencing the adverse action or "an operative or immediate reason for acting": Barclay at [62] per French CJ and Crennan J, [104] per Gummow and Hayne JJ and [140] per Heydon J.
A decision-maker's reasons are to be determined from all of the facts and circumstances and inferences properly drawn from them. This ordinarily includes positive evidence from the decision-maker that the action was not taken for a prohibited reason. It also includes evidence of the actual reason or reasons why the adverse action was taken: Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181; (2019) 272 FCR 547; (2019) 290 IR 414 ("Western Union") at [117] per O'Callaghan and Thawley JJ.
If the decision-maker's evidence is accepted as being reliable, the onus under s 361 of the FW Act will be discharged. This involves an assessment of the evidence given by the decision-maker: Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273; (2015) 67 AILR 102-492 ("Dawson Services") at [28] per Jessup J. The Court is not, however, bound to accept the decision-maker's evidence. It may be unreliable if there is contradictory evidence or other objective facts that undermine it. Where a decision-maker is believed it is difficult to undermine that evidence: Grant at [49] and Barclay at [45] per French CJ and Crennan J.
For the purposes of s 361(1) of the FW Act it will usually not be enough for an employer to simply deny unlawful adverse action. Reasons for the action will need to be articulated: Cai v Tiy Loy & Co Ltd [2015] FCCA 715 ("Cai"). Likewise, if there is no evidence that there were no additional reasons for the adverse action. In National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; (2013) 234 IR 139; (2013) 65 AILR 101-914 at [20] per Gray J stated that:

[290]

(a) in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute "adverse action" and the particular reason or particular intent with which it is said the action was taken;

(b) the party making the allegation that adverse action was taken "because" of a particular circumstance must establish the existence of that circumstance as an objective fact;

(c) an employer takes adverse action in contravention of s 340 if a proscribed reason is a "substantial and operative" reason for the action or if the reasons for the action include the proscribed reason;

(d) the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision-makers to give direct evidence of their reasons for taking the adverse action;

(e) the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding;

(f) while the evidence of the decision-maker as to the reasons for the taking of the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre-condition;

(g) the Court's rejection of the evidence of the decision-maker as to the reasons for the adverse action will ordinarily be "a weighty consideration and often a determinative consideration" in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated;

(h) even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption;

(i) the decision-maker's knowledge of the circumstance asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason; and

(j) Adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition.

[295]

Ms Tan alleges that the Defence contravened s 343(1) of the FW Act in respect of taking action against her with intent to coerce her to not exercise her workplace rights or not exercise her workplace rights in a particular way in respect of taking leave where she was unable or unwilling to provide 48 hours' written notice.
Section 88(1) of the FW Act requires paid annual leave to be taken for periods agreed between the employee and the employer. Section 88(2) of the FW Act provides that the employer is obliged to not unreasonably refuse to agree to a request to take paid annual leave. An employee's "right" to take annual leave is not absolute: indeed, save for an unreasonable refusal by the employer, it requires agreement between the employer and employee.
In this case the requirement for 48 hours notice related only to planned leave, and not to personal leave or other unplanned leave, consequent upon an unforeseen circumstance or personal emergency.
There was no absolute right to take leave at a time of Ms Tan's choosing. It was necessary for there to be agreement between Ms Tan and Defence, save for an unreasonable refusal by Defence: FW Act, s 88. The directions contained in the Third Instruction Letter requiring Ms Tan to give at least 48 hours' notice of planned leave did not negate choice in relation to the taking of annual leave nor were they unlawful, illegitimate, or unconscionable. The requirement that Ms Tan give 48 hours' notice of an application for annual leave was not unreasonable having regard to Defence's need to adequately staff the Contracting team and coordinate the taking of annual leave. On any view a requirement to only give 48 hours notice of planned annual leave is generous. Given the nature of the industry and area within that industry in which Ms Tan was employed 48 hours notice of intended annual leave is a relatively short period of notice for relevant supervisors and managers to assess the operational and staffing requirements to ensure that the requisite personnel are available to perform required tasks and provide services to clients and stakeholders, and to determine whether to agree to the annual leave, or not: FW Act, s 88(1). It is axiomatic that not all refusals will be unreasonable. In the circumstances the period of notice required was not unreasonable.
In all of the above circumstances the evidence does not indicate that the requirement that Ms Tan give 48 hours notice of intended annual leave was conduct intended to negate Ms Tan's right to apply for or take annual leave, and the reasons for the requirement to give 48 hours are sufficient to fulfill the onus under s 361(1) of the FW Act .
In all the circumstances there was no contravention of s 343(1) of the FW Act in relation to the requirement that Ms Tan give 48 hours notice of intended annual leave.

[311]

(a) on 15 March 2019 after directing Ms Tan to alter an email she had drafted Mr Rosam found that Ms Tan sent the email without making the alteration;

(b) on 26 March 2019 Mr Rosam found that Ms Tan had sent an invoice for processing notwithstanding an error in the invoice bore;

(c) on 27 March 2019 a member of the Finance team sought to have the invoice rectified, but Ms Tan refused to do so, which led to an argument between Mr Rosam and Ms Tan in which Ms Tan refused to accept that she was obliged to follow established processes;

(d) on 7 October 2019 Mr Rosam approached Ms Tan about an outstanding task that had been assigned to her roughly 2 months previously. Mr Rosam asked Ms Tan to complete the task by the end of that week, but it was not so completed;

(e) on 16 October 2019 Mr Rosam sought an update from Ms Tan in an attempt to find out if Ms Tan was having difficulties with the task. Ms Tan told Mr Rosam that she was not having difficulties with the task and that Mr Rosam "would get it when she had finished". Mr Rosam said he had given Ms Tan a timeframe to meet which had passed, and he wanted to know when Ms Tan believed she would finish the task. Ultimately, a deadline of the following morning was agreed;

(f) the incident referred to above in relation to the alleged Sixth Adverse Action; and

(g) on 13 November 2019 Mr Rosam met with Ms Tan about her continual missing of set deadlines and failure to communicate any difficulties to Mr Rosam, which required him to follow up matters with her. Mr Rosam asked Ms Tan how long it would take her to update a register of tasks to include her outstanding tasks. Ms Tan said it would take about 10 minutes, but she said there was always somebody using the register when she wanted to use it. Mr Rosam said it would take at the most, 30 minutes, and Ms Tan agreed. Mr Rosam then pointed out that Ms Tan was working for at least 2 hours each afternoon when she was the only one in the office using the register, and that the whole team was regularly reminded to keep the register up to date.

[356]

(a) she had read all of the information in this matter that had been provided to Ms Tan and that the First, Second and Third Instruction Letters constituted reasonable and lawful directions issued by a manger in relation to working expectations;

(b) that Ms Tan would need to provide at least 48 hours notice in writing of an intention to take annual leave would be a reasonable direction because Ms Tan's management had put directions in place specific to Ms tan' circumstances;

(c) in the determination of the sanction, there were a variety of factors that she had considered in relation to behavioural issues and a range of other issues, including repeated behaviour from Ms Tan over time and management's intervention during that period of time, which necessitated the issuing of the directions in relation to matters referred to in the First, Second and Third Instruction Letters, that she determined warranted termination of Ms Tan's employment;

(d) her remit was to look at the misconduct that had been found in Determination of Breach Letter and any additional evidence presented as part of her deliberation of an appropriate sanction;

(e) Ms Tan's misconduct had two elements under the Code of Conduct, being cl 13(3) related to respect and courtesy and cl 13(5) which is following reasonable and lawful management directions, of which Ms Tan was found in breach;

(f) what she considered as part of her determination of sanction were the misconduct breaches under the Code of Conduct, which included:

(i) failing to follow lawful and reasonable directions, which related to attendance requirements, based on that instruction;

(ii) the behavioural issues that were identified in relation to treating others with respect and courtesy;

(iii) the mitigating factors that Ms Tan presented as part of the process;

(iv) the Workplace Impact Statement; and

(v) and the risks of Ms Tan's behaviour in the workplace;

(g) issue concerning a four cent discrepancy in an invoice did not come into her deliberation of a sanction and Ms Barbuto, but rather the conduct and behaviour presented to her, as the sanction delegate, was about Ms Tan's ongoing attendance issues and her behaviour toward other individuals;

(h) Defence is made up of a lot of groups and services, and their operational requirements vary considerably and that is up to each organisation to determine what their priorities or deliverables are;

(i) as part of her determination, Ms Barbuto considered it was an expectation of all APS employees to abide with the Code of Conduct, and that, at a minimum, requires abiding by lawful and reasonable directions, as part of employment, and also treating others with respect and courtesy. The evidence presented noted that Ms Tan failed to abide with the lawful and reasonable directions on numerous occasions and that there were other behavioural issues in relation to respect and courtesy;

(j) if, as here, there is no evidence presented by an employee to demonstrate that instances or information or statements in the evidence have not occurred, she can only go with the evidence that has been provided to her, noting that the opportunity is always provided to employees to provide evidence to disclaim anything that has occurred. Additionally, in her determination of sanction, there was information that was provided by Ms Tan's work area about behaviours to external stakeholders and that she had discounted those, because they were not substantiated at that time;

(k) in relation to her decision concerning Ms Tan there was longstanding behaviour comprising:

(i) multiple occasions of failing to abide with reasonable directions; ongoing misbehaviour in relation to accepting reasonable directions; and

(ii) behavioural issues in relation to respect and courtesy,

and Ms Barbuto determined that the employment relationship was no longer sustainable;

(l) she did not see a single incident as warranting termination but collectively, for the reasons that had been explained, she determined that termination was appropriate;

[386]

(a) at the team meeting on 23 March 2020 during which the discussion about working from home arose it is likely that Mr Rosam was focused on the need to monitor compliance with the First, Second and Third Instruction Letters in circumstances where The Second Instruction Letter had been issued on 9 March 2020 and the Third Instruction Letter was issued on 23 March 2020, that is, the day of the team meeting;

(b) Mr Rosam demonstrated through the manner he gave his evidence, and also by his evidence, and the evidence of others (including Ms Tan), as to his conduct throughout the relevant period, that he took his managerial responsibilities seriously, such that it is likely that he was motivated to require Ms Tan to work in the office rather than from home so that he could monitor Ms Tan's compliance with the First, Second and Third Instruction Letters, as well as her work performance and behaviours generally;

(c) the matters raised in the First, Second and Third Instruction Letters were matters that, viewed objectively, would be important to any manager who was accountable to his employer in relation to the efficient management of human resources by ensuring that employees under his supervision were performing their assigned duties during their working hours;

(d) Ms Tan's conduct prior to 23 March 2020 was such that it is to be expected that Mr Rosam would have genuinely considered that his supervision was required in order to properly manage Ms Tan's conduct as it had evolved to that point in time. ln particular:

(i) Ms Chrispin stated that Ms Tan would frequently leave her workstation and be gone for periods of several hours, not saying where she was going when she left nor where she had been when she returned. When Ms Chrispin enquired of Ms Tan where she had been, Ms Chrispin would typically be met with an abrupt response. Ms Chrispin was unshaken during cross-examination about her assertion that for a period of about 6 months from about December 2018 Ms Tan would frequently leave her workstation for lengthy periods during the working day, without telling anyone where she was going: transcript, p 150;

(ii) in November 2019 Mr Rosam was contacted by Ms Evans, a member of the finance team, advising that Ms Tan had failed to comply with the correct process for submitting a particular procurement form. When Mr Rosam raised the matter with Ms Tan, he found she was unwilling to comply with his directions to her in relation to the form;

(iii) on 3 December 2019 Mr Rosam met with Ms Tan to discuss her workload and attendance and Ms Tan said that the work deadlines being set for her were meaningless, she was therefore doing the work in her timeframes and according to her priorities;

(iv) in January 2020 Ms Tan had become engaged in a further dispute with Ms Evans by reason of a further instance in which Ms Tan had refused to follow an established protocol in relation to the completion of a form. Mr Rosam considered that Ms Tan had behaved in a disrespectful and unprofessional manner towards Ms Evans and. Ms Tan conceded in cross-examination that she told Mr Rosam when discussing the issue that "Just because you are my manager, it does not mean I must do everything you say": Transcript at p 116;

(v) in February 2020 Ms Tan was failing to complete tasks within set deadlines, and Mr Rosam met with Ms Tan on 7 February 2020 concerning her performance generally, including a failure to meet deadlines, and Mr Rosam stated in an email to Ms Tan that it was not reasonable for her to work to her own timelines and that she must work to the deadlines set for her by her supervisor;

(vi) it is clear that by March 2020 Mr Rosam was concerned by Ms Tan's lateness for work, such that he would consider supervision to be required in order to monitor Ms Tan's arrival times;

(vii) the evidence establishes that:

(A) at least from 5 August 2019 when the LWA was agreed (if not before, as Ms Tan asserted in her oral evidence) Ms Tan began coming to work after 9.00am, having previously demonstrated that she was able to arrive at work well before 9.00 am;

(B) there was no reason why Ms Tan could not arrive at work on time, and under cross-examination Ms Tan said that her lateness was due to a deliberate decision on her part, stating "I decided not to rush to work": Transcript at p 58; and

(C) Ms Tan claimed to have made this decision because she observed other employees arriving after 9:30 am, but it is not evident that she made any such observations in respect of members of the Contracting team, of which she was a part, as during cross-examination Ms Tan put to Mr Rosam that the rest of the Contracting team "start very early" "around 7 o'clock": Transcript at p 314, and Mr Rosam agreed; and

(e) in circumstances where the Third Instruction Letter:

(i) refers to Ms Tan frequently being up to 10 to 15 minutes late for work without advising her supervisor of the reason for her lateness;

(ii) leaving the office without approval; and

(iii) contained instructions that required Ms Tan to revert to standard hours,

it is understandable that Mr Rosam would consider it necessary to monitor Ms Tan's performance and conduct by observing her arrivals and departures from the workplace and by observing her and interacting with her in person.

[394]

It follows from (a), (c) and (d) of the preceding paragraph that the alleged injury or prejudicial alteration can only be the denial of the request to start work by 9:30 am, as nothing is particularised in relation to the alleged denial of access to flextime.
The complaints that are alleged to constitute the reason or reasons for the refusal to allow Ms Tan to commence work at 9.30am amount to Ms Tan seeking a later start time, whether because she was complaining about the application to her of the LWA or because she was saying she was being bullied and harassed because she was not allowed to start work at 9:30 am.
Prior to the implementation of the LWA no agreement had been reached between Ms Tan's supervisor, Mr Rosam, under to which the start time in the DEA of 8.30 am had been changed. Until the implementation of the LWA Ms Tan was thus legally obliged by cl 1.2 of the DEA to commence work by 8.30 am. After the implementation of the LWA Ms Tan was legally obliged to commence work by 9.00 am under the terms of the LWA.
On 5 August 2019 when the LWA was agreed no claim had been made, or concern raised, by Ms Tan concerning a 9:30 am work commencement time. As Mr Rosam observed in cross examination "it [a 9.30 am commencement time] was not taken into consideration and prior to us entering into the ... [LWA], there had never been a problem with you turning up to work before 9 o'clock": Transcript at p 316.
During the meeting on 5 August 2019 Ms Tan dissented from the 9.00 am start time otherwise agreed to by the Contracting team employees for the purpose of the LWA. Once that meeting had concluded, Ms Tan told Mr Rosam and Mr Leung that she had difficulty arriving at work before 9:30 am. Mr Rosam and Mr Leung both gave evidence that they were surprised by this assertion because they had not previously observed any difficulty with Ms Tan arriving at work by 9.00 am. Ms Tan was advised by Mr Rosam that she could submit a written request to work hours different to those required by the LWA. Ms Tan did so when on 17 October 2019 she sent an email to Ms Martinelli seeking a change in her hours of work so that she would be able to come to work by 9.30 am rather than by 9.00 am as required by the LWA.
The factual matrix in relation to the 3 October 2019 Complaint, the 11 October 2019 Complaint and the 3 December 2019 Complaint is set out at [304]-[320] above.
Ms Martinelli responded to Ms Tan's 17 October 2019 request to commence work at 9.30 am by email on 19 February 2020 advising Ms Tan that:

[406]

At [102A] of the Form 2 Ms Tan pleads that the reason for the alleged micromanaging and nitpicking was a complaint made on the 20 June 2019 ("20 June 2019 Complaint"), the 3 October 2019 Complaint, the 11 October 2019 Complaint and the 3 December 2019 Complaint. The 3 October 2019 Complaint, the 11 October 2019 Complaint and the 3 December 2019 Complaint are set out above: see [304]-[320] above.
At [63] of the Form 2 Ms Tan pleads on 20 June 2019 she met with Mr Rosam and that he said that Ms Martinelli had seen that Ms Tan had been working after 5.00 pm on the previous few days. Ms Tan then says that Mr Rosam "demanded" to know what hours she had been working. Ms Tan says that she then made a verbal complaint to Mr Rosam about her inability to manage her own working hours, saying that she wanted to manage her own hours between 7.00 am and 7.00 pm, and that she also complained about Mr Rosam and Ms Martinelli closely monitoring her working hours.
Mr Rosam states in his affidavit that Ms Martinelli had expressed to him a concern about Ms Tan working late, and that he wanted to understand what work was requiring her to "work back so late": Rosam Affidavit at [28]. Ms Rosam says that Ms Tan refused to discuss what work was keeping her back late, and he then said that there should not be any requirement for her to work back so late and that she should discuss her workload with him.
In a heading on page 43 of the Tan Affidavit Ms Tan refers to "nitpicking". This seemingly refers to an email Ms Tan received from Mr Rosam on 12 June 2020 in which Mr Rosam expresses concern that Ms Tan has not prioritised a particular task in accordance with a request made by him, and that she has instead actioned a task which she ought to have realised by reading her emails, Mr Rosam had actioned on the previous day.
In a heading on page 47 of the Tan Affidavit Ms Tan makes further reference in her affidavit to "nitpicking" in relation to an email sent to her on 5 August 2020 by Mr Rosam in the following terms: Tan Affidavit, Annexure 128:

[421]

Mr Rosam was unshaken in cross-examination in relation to the above evidence.
According to Ms Tan, Mr Rosam said, at the Contracting team meeting on 17 June 2019 that Ms Tan could not attend the Performance-Based Contracting Practitioners Course because she had not completed the prerequisite training online: Tan Affidavit at [70]. If that was true (Ms Tan disputes that it is true), it would not constitute discriminatory adverse action for the purposes of s 342(1), Item 1(d) of the FW Act. Further, it is important to observe that there was no allegation of a complaint made by Ms Tan on 17 June 2019 or otherwise in relation to the Contracting team meeting on that date.
Critically, however, the fact that the Performance-Based Contracting Practitioners Course ran from 18-20 June 2019 meant that that the alleged refusal to allow Ms Tan to attend the course must have preceded the making of any of the Complaints relied upon by Ms Tan as the cause of the alleged refusal to allow her to attend that course. The Complaints could not therefore have been the reason for the alleged refusal. It follows that there was therefore no contravention of s 340(1) of the FW Act in relation to the alleged refusal to allow Ms Tan to attend the Performance-Based Contracting Practitioners Course.
The Form 2 refers to the denial of approval of Ms Tan's nomination for the Risk Management in Acquisition and Sustainment Course on or around 26 November 2019. No evidence of that course, a nomination, or a denial of approval was led and therefore there is nothing for Defence to answer in relation to this allegation: Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; (1999) 165 ALR 67; (1999) 94 IR 244; (1999) 47 AILR 4-239 ("Geraldton Port Authority") at [221] per RD Nicholson J; Construction, Forestry, Mining and Energy Union v Coal And Allied Operations [1999] FCA 1531; (1999) 140 IR 31; (1999) 47 AILR 4-200 at [161]- [162] per Branson J ("Coal and Allied Operations"); Rojas v Esselte Australia Pty Ltd (No. 2) [2008] FCA 1585; (2008) 177 IR 306 at [49]- [50] per Moore J ("Rojas (No. 2)").
Mr Rosam was cross-examined by Ms Tan about a course she described as "the diploma course". Mr Rosam agreed that he had told Ms Tan she could register her expression of interest in the "diploma course", but that her attendance would be dependent upon her workload. Even if the "diploma course" were taken to be a reference to the Risk Management in Acquisition and Sustainment Course the evidence does not reveal any prohibited reason for Mr Rosam's decision-making in respect of the "diploma course".
It follows that there was therefore no contravention of s 340(1) of the FW Act in relation to the alleged refusal to allow Ms Tan to attend the Risk Management in Acquisition and Sustainment Course.

[426]

(vii) Ms Tan failed to recall the Procurement Form from Central Processing as directed (and thereby, as a matter of law, failed to carry out this lawful directive);

(viii) at 3.00 pm Ms Rosam approached Ms Tan for an update on the matter, and Ms Tan said she "did not know what he was talking about";

(ix) Mr Rosam recounted their earlier discussion and directed Ms Tan to stop what she was doing and to provide him with a response as a matter of priority by 3:30 pm;

(x) Ms Tan replied that she did not think the matter was important but that she would "try": Rosam Affidavit at [84];

(xi) at 3.30 pm Mr Rosam again approached Ms Tan asking for an update and noted that she was doing other work and refusing to comply with his directive to prioritise the cancellation and resubmission to Finance of the Procurement Form;

(xii) Ms Tan asked Mr Rosam "what he was going to do about it": Rosam Affidavit at [85]; and

(xiii) Mr Rosam then cancelled the Procurement Form himself and emailed Ms Tan directing her to review and amend the Procurement Form and to advise him in writing as to why she considered the advice from Finance to have been incorrect;

(c) on 13 November 2019:

(i) at 4:16 pm Mr Rosam emailed Ms Tan:

(A) raising his concern that she was continually missing deadlines and noting that there were tasks that had been outstanding for over 2 months, and that Ms Tan was indicating that she was too busy; and

(B) sought from Ms Tan a list of activities for which she was responsible which were currently outstanding; and

(ii) at 4:19 pm Ms Tan emailed Mr Rosam about the Procurement Form;

(d) on 14 November 2019 at 2:44 pm Mr Rosam emailed Ms Tan setting out:

(i) his understanding of the history in relation to the Procurement Form,

(ii) what Ms Tan had to do to comply with the relevant processes in relation to the Procurement Form,

and requiring Ms Tan to resubmit the Procurement Form to Finance by 10.00 am on 15 November 2019; and

(e) on 15 November 2019:

(i) Mr Rosam met with Ms Tan to discuss her workload and the Procurement Form;

(ii) during the meeting Mr Rosam again directed Ms Tan to fix and resubmit the Procurement Form to Finance.

(iii) Ms Tan said that she did not agree with Finance and that she would not fix and resubmit the Procurement Form to Finance: Rosam Affidavit at [94].

[429]

There is no question that a warning of this kind given pursuant to an established disciplinary procedure can constitute adverse action insofar as it may make employment less secure: Coal And Allied Operations at [95] per Branson J; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525; (2013) 216 FCR 70 at [118] per Murphy J.
Mr Rosam was exhaustively cross-examined as to his reason for issuing the First Instruction Letter. It is clear on the evidence (and that evidence discharges the onus under s 361(1) of the FW Act) that the First Instruction Letter was issued to Ms Tan by Mr Rosam because of Ms Tan's refusal to follow appropriate workplace processes and her behaviour in the workplace, which behaviour on her part which was inappropriate, and its purpose was to direct her as to appropriate behaviour and to warn her that repetition of her conduct (which on any view was misconduct insofar as it constituted refusal to carry out lawful directives on 11, 12 and 15 November 2019 particularly) could have disciplinary consequences. The sole reason for the issuance of the First Instruction Letter was to advise and inform Ms Tan accordingly.
There is no evidentiary basis for the drawing of any connection between the First Instruction Letter and Ms Tan's Complaints. Those subject matter of those Complaints (which need not be here repeated) are wholly unrelated to the Ms Tan's conduct resulting in the issuance of the First Instruction Letter. Moreover, the 3 December 2019 Complaint could not have been the reason for the issuance of the First Instruction letter because the First Instruction Letter was issued on 25 November 2019.
The First Instruction Letter was not issued because of the any of the Complaints referred to at [102A] of the Form 2, and it follows that there was therefore no contravention of s 340(1) of the FW Act in relation to the issuance of the First Instruction Letter to Ms Tan by Defence.

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Judgment (466 paragraphs)

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