mixed. The Commission accepted the out-of-time allegations under s 213(4), rejected the alleged victimisation claims concerning the earlier acts, and found that the Respondent had not rebutted the statutory...
Key principles
Under s 210(2) of the Industrial Relations Act 1996 (NSW), once an applicant establishes detriment resulting from employer action and proves that the alleged cause falls within a...
The inquiry into the substantial and operative cause is factual and concerns the actual reasons employed in the relevant decision-making process, rather than whether the decision...
For the termination decision, the Respondent did not rebut the statutory presumption because the actual decision-maker, Mr Hart, did not give evidence and the Respondent did not...
The statutory presumption was not rebutted by showing that workplace complaints existed alongside legitimate concerns about the Applicant's conduct; however, for the other...
Issues before the court
Whether the Applicant's claims concerning earlier alleged victimisation acts should be accepted out of time.
Whether the Respondent victimised the Applicant through monitoring and the earlier disciplinary steps.
Plain English Summary
Vaulin raised safety concerns at work and later faced several disciplinary steps before the Council terminated his employment. The Commission found that the earlier disciplinary steps were not shown to have been caused by his safety complaints, even though some aspects of the Council's process were criticised. The position was different for termination: the person who made that decision did not give evidence, and the Council did not provide the recommendation put to him. The Council therefore did not overcome the legal presumption that termination was because of Vaulin's complaints. The Commission did not order reinstatement because it considered the working relationship had broken down, and limited compensation to 12 weeks' remuneration, less relevant earnings from other work.
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Whether termination was victimisation because of the Applicant's workplace safety complaints.
What remedy was appropriate following the finding concerning termination.
Andrew Vaulin worked as a full-time Pool Duty Manager for the City of Parramatta Council. He had more than 14 years' experience in the aquatics industry and had worked for the Council from 2012 until his employment ended in 2019. The dispute grew out of a prolonged breakdown in the workplace relationship, with competing concerns about safety, workload, management directions, and Vaulin's conduct.
The Commissioner recognised that Vaulin raised genuine workplace safety concerns. These included the use of a ladder at Epping Pool, the process for placing and removing pool covers, and an eight-year-old child being in the pool without adult supervision. The judgment also records concerns about workload and emergency documentation. The Commissioner said that Vaulin had both a right and an obligation, in his role, to raise workplace health and safety issues.
At the same time, managers raised concerns about Vaulin working beyond rostered hours without prior approval, remaining alone at the pool, not completing or submitting shift reports, and the tone and distribution of his emails. In December 2018 and early 2019, Council issued several letters of allegations, two written warnings, and a show-cause letter. The termination letter relied on the warnings and the Council's findings about failing to follow directions and allegedly providing misleading timesheet information.
Vaulin's application alleged eight forms of victimisation, from monitoring of his timesheets to termination. His application was filed on 4 April 2019, more than 21 days after most of the alleged events. The Council did not raise the time-limit objection until the first day of the hearing. The Commission accepted the out-of-time allegations, but did not find that the earlier alleged acts were victimisation.
The critical distinction was the termination decision. The Acting Chief Executive Officer, Mr Hart, made that decision. He did not give evidence, and the Council did not produce the briefing materials recommending termination. The Commissioner found that, despite evidence of genuine concerns about Vaulin's conduct, the Council had not rebutted the statutory presumption for the termination decision. The Commission rejected reinstatement as impracticable and assessed compensation by reference to a 12-week period.
Why the court decided this way
The statutory framework did not make every harsh, unfair, or mistaken management action victimisation. Section 210(1)(j) prohibits an employer from victimising an employee because the employee makes a complaint about a workplace matter that the person considers unsafe or a risk to health. Section 210(2) provides a presumption: where an employee suffers detriment as a result of employer action, and the alleged cause is one of the prohibited matters, the employer must satisfy the Commission that the alleged matter was not a substantial and operative cause.
The judgment adopts an actual-reasons inquiry. It refers to Barclay and explains that the question is why the relevant action was taken, with attention to the reasons that motivated the decision-maker. It is not a general inquiry into whether management acted fairly or whether the Commission would have made the same decision. The Commissioner also relied on the principle that direct evidence from the decision-maker will ordinarily matter in discharging a reverse onus.
For the earlier claims, the Commissioner accepted evidence identifying other reasons for the actions. For example, the Council's concern about Vaulin working from home without prior approval provided an explanation for requiring him to attend a meeting. For the allegation letters and warnings, the Commissioner accepted Mr Radford's evidence about his reasons, considered in the broader context of concerns about Vaulin's conduct and compliance with management directions. The Commissioner also considered that the Council had taken steps to respond to safety concerns, including arranging a risk assessment and heights training.
The judgment did not treat shortcomings in Council's handling of particular matters as proof of victimisation. It accepted that parts of the investigation into the 30 January 2019 risk assessment were unfair and that the finding of timesheet fraud was incorrect. But the legal question remained whether the safety complaints were a substantial and operative cause of the relevant decisions. The Commissioner found that the evidence did not establish that link for the earlier actions.
Termination was different because the evidence did not expose the actual decision-maker's reasons. The Council's case included evidence about the disciplinary process and concerns held by managers, but Mr Hart was the person who decided to terminate Vaulin. The Commissioner considered his reasons to be peculiarly within his knowledge. The Council's evidence about other concerns did not replace evidence explaining the termination decision itself. Without Mr Hart's account or the briefing materials, the Council did not satisfy its statutory burden.
The remedy followed a separate assessment. The Commissioner considered reinstatement impracticable because the relationship with Vaulin's managers had broken down and Vaulin had not sufficiently acknowledged his contribution to that deterioration. The Commissioner then assessed the likely period of continuing employment in the counterfactual situation. Although a further warning may have been justified, the Commissioner considered it questionable whether that would itself have justified termination. The assessment was that employment would most likely have ended within 12 weeks.
Before and after state of the law
The decision applies the statutory language of ss 210 and 213 of the Industrial Relations Act 1996 (NSW), rather than announcing a new definition of victimisation. The Commission had to determine whether the applicant had established a complaint falling within s 210(1)(j), detriment, and the necessary causal allegation. Once the statutory presumption was engaged, the employer bore the onus described in s 210(2).
The reasoning draws on Barclay, a High Court decision concerning the reverse-onus provision in the Fair Work Act 2009 (Cth). The Commissioner noted that the inquiry focuses on the actual reasons of the decision-maker and applied that approach to the NSW statutory presumption. The judgment also refers to Janssen for the proposition that the question is factual and concerns the reasoning actually employed, not whether the decision was the best or fairest one.
The practical consequence of the decision is that employer evidence about general workplace concerns may not be enough when the person who made the challenged decision is absent. The judgment does not say that decision-maker testimony is invariably the only way to rebut the presumption. Rather, it found the Council's evidence insufficient in this particular case because the actual termination decision-maker did not give evidence and the recommendation put to him was not before the Commission.
The decision also distinguishes liability from remedy. A finding of victimisation did not automatically require reinstatement. Section 213 gives the Commission a range of remedial powers, including reinstatement and payment of lost remuneration. The Commissioner drew on principles about practicability of reinstatement from Dumas, while recognising that the statutory context was different. The Commission found reinstatement impracticable on the facts and used a limited period of likely continued employment to assess compensation.
The Commissioner separately considered the time limit. Under s 213(3), an application ordinarily must be made within 21 days. Section 213(4) permits an out-of-time application where there is sufficient reason, with attention to delay, hardship, and the conduct concerned. The case illustrates that the extension question is distinct from the merits: the Commission accepted the late claims for consideration but did not thereby find the alleged conduct to be victimisation.
Key passages with plain-English translation
The judgment's summary states that the Council had not shown that Vaulin's safety complaints were not a substantial and operative cause of termination. The reason was evidentiary: the decision-maker was not called, and the recommendation to him was not produced. In plain English, evidence that managers had concerns about an employee did not answer the specific question of what actually caused the final termination decision.
The decision also says that the Commissioner could not find a causal connection for the earlier claims merely because Vaulin believed that he had been treated unfairly. The judgment repeatedly separates two questions: whether a management action was justified or fair, and whether it was taken because of a protected complaint. The latter was the statutory question.
The Commissioner acknowledged that the investigation of the 30 January 2019 events was unfair and that the timesheet-fraud finding was incorrect. That did not, without more, prove the prohibited reason. In plain English, an employer may handle a process badly without the evidence necessarily establishing that it did so because an employee made a protected complaint.
The remedial finding is also important. The Commissioner concluded that employment would most likely have ended within 12 weeks had it continued. Compensation was therefore not calculated on the assumption of indefinite continued employment. Income from other employment that Vaulin would not otherwise have earned during that period was to be deducted, so that he would not receive a windfall. The orders required the parties to agree the amount and file consent orders within 14 days, with liberty to apply if they could not agree.
What fact patterns trigger this precedent
The case is especially relevant where a statute creates a reverse onus and an employee alleges that an adverse employment action followed a protected complaint. The decision directs attention to the action challenged, the relevant decision-maker, and the evidence showing what actually informed that person's decision.
It is also relevant where the employer's decision is made through a process involving several people. The judgment cites Clermont Coal on examining the reasoning of those whose involvement materially affected the ultimate decision. The focus is not an unrestricted search through every employee's state of mind, but the decision-making process that led to the action.
The case is less likely to establish victimisation merely from chronology, apparent differential treatment, or evidence that a process was harsh. Those matters may form part of the evidence, but the Commissioner required a connection between the protected complaint and the particular detriment. For several earlier claims, the Council's evidence of other reasons was accepted. For termination, the evidentiary gap about the actual decision-maker's reasoning meant the statutory burden was not discharged.
The decision also concerns complaints made in varied forms, including conversations, emails, feedback during a risk assessment, and formal grievances. The Commissioner took a broad approach to the meaning of complaint because of the protective purpose of the provisions, but observed that some feedback connected to ordinary work duties might not itself be a complaint within s 210(1)(j). The classification depends on the evidence and context.
How later courts have treated it
The supplied judgment is dated 8 September 2020 and cites authorities available to Commissioner Webster at that time. The materials provided do not identify any later judicial or tribunal decisions applying, distinguishing, or criticising Vaulin. It would therefore be unsafe to state how later courts have treated it on the basis of this judgment alone.
The judgment itself situates its reasoning within existing authorities. It applies the Barclay approach to actual reasons and the statutory reverse onus, and refers to Bossak for the elements needed to enliven the presumption. It also considers Western Union Business Solutions v Robinson when addressing remedy, distinguishing it because, in that case, the employee would have been terminated for proper reasons even without the contravention. Commissioner Webster considered the factual position in Vaulin materially different.
The judgment refers to Dumas for the practical assessment of reinstatement, including the relevance of trust, confidence, and workplace functioning. It does not treat those authorities as removing the need for a fact-specific assessment. On this record, the conclusion about reinstatement rested on the relationships and evidence in Vaulin's workplace.
Still-open questions
The decision leaves open how much evidence, other than direct testimony from the ultimate decision-maker, may be sufficient to rebut the presumption in a different case. It found the evidence inadequate here because both the decision-maker and the briefing materials were absent. It did not set a universal rule that no other evidence can ever discharge the onus.
The case also does not fully resolve how the substantial-and-operative-cause test applies where the final decision is formed through a multi-person process, or where some participants had materially different roles. The judgment cites Clermont Coal on that issue, but the application in Vaulin focused on the evidence available about the particular disciplinary and termination decisions.
Another open issue is the boundary between a workplace safety complaint and operational feedback. The Commissioner said that some risk-assessment feedback might not be a complaint because participation was part of Vaulin's role. The decision did not provide an exhaustive test for distinguishing an ordinary report or contribution from a complaint protected by s 210(1)(j).
Finally, the compensation assessment was fact-specific. The 12-week period reflected the Commissioner's assessment of how long Vaulin's employment would likely have continued, considering a possible further warning, the relationship with managers, and Vaulin's insight into his conduct. The judgment does not establish 12 weeks as a standard compensation period for victimisation cases.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, get a qualified Australian lawyer to check it.
Judgment (17 paragraphs)
[1]
Judgment
Mr Andrew Vaulin (the Applicant) was a full-time pool duty manager working for the City of Parramatta Council (the Respondent) until his employment was terminated by the Respondent by way of letter dated 7 June 2019.
The Applicant made two separate applications to the Commission, one pursuant to s 89 of the Industrial Relations Act 1996 (NSW) (the Act) claiming that he had been unfairly dismissed and the another pursuant to s 213 claiming he had been victimised by the Respondent because he made complaints about workplace matters that he considered is not safe or a risk to health.
With the consent of the Respondent, the Applicant discontinued the unfair dismissal matter before the Commission on the first day of the hearing of the matter. Also on the first day of the hearing, the Respondent objected to the victimisation claim to the extent that the alleged detrimental actions occurred more than 21 days before the matter was filed (the out of time issue). This decision deals with both the out of time issue and the Applicant's victimisation claim.
I have decided to exercise the discretion pursuant to s 213(4) of the Act to accept those aspects of the victimisation claim that occurred more than 21 days prior to the filing of the proceedings.
I have determined that the Respondent has not satisfied the Commission of the fact that the Applicant raised workplace complaints (he considered to be not safe or a risk to health) was not the substantial and operative cause of the termination of his employment. The Respondent did not put before the Commission evidence from the decision maker, nor the recommendation that was put to the decision maker in forming his decision to terminate the employment of the Applicant. In the circumstances, I have found that the Commission must presume that the Applicant was terminated because he made a complaint about a workplace matter that he considered was not safe or a risk to health.
For the reasons set out below, I have found that that Applicant was not otherwise victimised by the Respondent.
[2]
Background
The Applicant has over 14 years' experience in the aquatics industry. He commenced employment with the Respondent in September 2012 where he remained until his employment was terminated on 7 June 2019. During his employment with the Respondent the Applicant was engaged in a range of positions and from June 2018 onwards the Applicant was employed as a Pool Duty Manager. From September 2017, the Applicant was concurrently employed by Fairfield City Council as a casual Lifeguard/acting Aquatic Facility Supervisor, Duty Manager.
At the time of the termination of his employment, the Applicant was engaged with the Respondent on a full-time basis on a contract for the period 11 June 2018 to 30 June 2020.
The Applicant's engagement with the Respondent was relatively uneventful until mid-2018. About that time, the Applicant was asked by his managers, Ms Suzanne Raven (the Aquatics Manager) and Mr Ali Minoosepehr (the Aquatics Operations Coordinator) to update the operational documentation for the Epping Pool and prepare the same for the Macarthur Pool. The Applicant considered this to be a significant task that belonged to his managers.
In about mid-July 2018, the Applicant contacted Ms Mel Olennick (then Workplace Health and Safety Service Manager) and a decision was made to engage Mr Ryan Timeus from Elite Fire to assist in the preparation of the emergency documentation.
In about August to September 2018, the Applicant provided information to Mr Timeus with respect to the situations he assessed that Emergency Procedures and Action Plans needed to be prepared for. However, Mr Timeus indicated that he was unable to assist with the Emergency Procedures and Action Plans for the aquatic situations which made up the majority of the scenarios the Applicant had identified.
The Applicant gave evidence that in about August to early September 2018, he approached Mr Minoosepehr about preparing the emergency documentation and needing more time outside of his rostered shifts or relief from his existing duties to complete the work. He gave evidence that they had a conversation to the following effect (Exhibit A7 at [44]):
"Applicant: I'm stressed, I have all this work to do. Something is going to have to give. If I'm going to do the work I really need more time. Otherwise it's not going to get done.
Minoosepehr: I understand. I'm also under similar pressures. But Sue won't allow it because of the budget."
This conversation was relied upon by the Applicant as the first alleged complaint about a workplace matter that he considered was not safe or a risk to health.
[3]
Legislation and Principles
Section 210 of the Act relevantly provides as follows:
"210 Freedom from victimisation
(1) An employer or industrial organisation must not victimise an employee or prospective employee because the person:
……….
(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
……..
(2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action."
(emphasis added)
A Full Bench of this Commission recently considered the victimisation provisions in Bossak v Health Secretary in respect of Murrumbidgee Local Health District [2020] NSWIRComm 1009 at [33]-[36]:
"[33] To enliven the presumption in s 210(2) of the Act it is necessary for an applicant to prove both detriment and that the alleged cause of that detriment is one of the proscribed grounds in s 210(1). In Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218 the Full Bench held as follows:
"43. Turning to the matter of the onus, 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'."
[34] In Health Services Union o/b Bruce v Government of New South Wales in respect of NSW Ambulance Newall C held as follows:
"16. As the Commission pointed out in Graham Davis v Amalgamated Television Services Pty Limited [1998] NSWIRComm 289, 'victimisation' itself is not defined in terms in the Act. In my view its meaning is to be inferred from the provisions of subs.201(2), which refers to an employee 'suffering any detriment'. The statutory scheme therefore operates by setting out in subs.210(1) a series of bases on which an employer is prohibited from acting toward an employee, and then by providing that where a 'detriment' is suffered by an employee by reason of 'detrimental action' by the employer, there is a rebuttable presumption that the detriment was for one of the prohibited reasons set out in s.210, if the necessary underlying factual situation contemplated in any of the sub-sections of s.210 can be established. Here, for example, that underlying factual situation was that Mr Bruce was and is a union official within the meaning of subs.210(1)(a).
…
18. It will be seen that 'victimisation' within the meaning of s.210 occurs, and only occurs, where an employee suffers a 'detriment'. Unless and until the fact of a detriment having been suffered is established, the operation of the rebuttable presumption in subs.210(2) is not triggered. The first step, then, is to identify any detriment that may have been suffered by an employee.
19. The finding as a matter of fact that a detriment has occurred is a serious finding. It gives rise to a presumption that the Act has been breached. It is a finding to be made at the civil standard of proof.
…
21. Nevertheless a finding that there has been a 'detriment' is one which could not be made on the basis of indirect inferences, and certainly not by assumption. Such a finding could only be made on evidence, and in my view a finding that there has been a detriment is a finding of sufficient gravity that the cautionary words of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2 ought be borne in mind in assessing the evidence, a view that is reinforced by the provisions of s.140 of the Evidence Act 1995."
[35] We digress to highlight in particular the comments of Commissioner Newall at [16] in the above passages regarding the meaning of "victimisation" to be inferred from the language of s 210(2) of the Act. We are inclined to agree that the section allows for a meaning of "victimisation" to be derived which would accord with an employee "suffer[ing] any detriment as a result of action by the employer…because of a matter referred to in subsection (1)".
[36] That is not to suggest that at [78] and [81] of the Decision the Commissioner fell into error. It is indeed the case that there are no specific definitions of the words "victimise" or "victimisation" in the Act, and the Commissioner's reasoning was consistent with the Full Bench in Davis."
[4]
Evidence & Submissions
The Applicant relied upon the following witness evidence in the proceedings:
1. Statements of Mr Matthew Raif Healey dated 2 December 2019 (Exhibit A1) and 16 January 2020 (Exhibit A2). Mr Healey is a permanent full-time Duty Manager employed by the Respondent.
2. Statements of Ms Gemma Lytwyn dated 2 December 2019 and 16 January 2020: Exhibit A3 and A4. At the time of the hearing, Ms Lytwyn was a temporary part-time Duty Manager employed by the Respondent.
3. Statements of the Applicant, dated 3 December 2019 (Exhibit A7) and 16 January 2020 (Exhibit A8).
4. Statements of Mr Tristan Daniell dated 6 December 2019 and 16 January 2020: Exhibit A5 and A6. At the time of the hearing, Mr Daniell was engaged as a casual for the Respondent, performing duties as an Acting Duty Manager and Lifeguard.
5. Statements of Ms Andriana Grujevska dated 28 November 2019 and 16 January 2020: Exhibit A9 and A10. Ms Grujevska previously worked for the Respondent as a part-time Duty Manager.
The Respondent relied upon the following witness statements in the proceedings:
1. Statement of Mr Gregory Radford filed 8 January 2020 (Exhibit R1);
2. Statement of Ms Suzanne Gaye Raven filed 8 January 2020 (Exhibit R2);
3. Statement of Mr Arthur Moses filed 8 January 2020 (Exhibit R3);
4. Statement of Ms Hanna Mostafa filed 7 January 2020 (Exhibit R4);
5. Statement of Mr Ali Minoosepehr filed 7 January 2020 (Exhibit R5);
6. Statement of Ms Hannah Grant filed 14 January 2020 (Exhibit R6).
The documentary evidence relied upon by both parties was extensive.
Both parties relied upon both written and oral submissions in the proceedings which I have considered and referred to below as appropriate.
[5]
Out of time issue
The Applicant filed his victimisation application on 4 April 2019, more than 21 days after each of the alleged acts of victimisation, except for those relating to the Fourth Letter of Allegations and the termination of the Applicant's employment.
As set out above, s 213(3) provides that an application for an order in respect of a victimisation claim must be made within 21 days after the contravention concerned. However, s 213(4) provides that the Commission has a discretion to accept an application that is made out of time if it considers there is sufficient reason to do so, having regard in particular to:
"(a) the reason for, and the length of, the delay in making the application, and
(b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and
(c) the conduct in relation to which the order is sought."
The out of time allegations were commenced by between 101 and 28 days later than they should have been.
The Applicant gave the following evidence with respect to why he did not lodge his claims of victimisation within time (at tcp 20 January 2020, p 31, ln 31-41):
Q. Can you ‑ would you please explain why you didn't commence proceedings until April 2019?
A. Before then I wasn't aware of my rights, I wasn't aware of this jurisdiction, and I also wasn't aware that I could lodge such matters such as unfair dismissal or victimisation. Further to that, I was awaiting responses from those within council twofold, those additional issues that I had raised in early January of 2019, which I ‑ at that point or throughout my employment hadn't received a response, as well as a number of concerns I had raised in relation to a number of allegations. Additionally I had lodged a complaint with SafeWork New South Wales in late or mid‑February of 2019 and I was still awaiting a response from them as well as an inspection of the Epping pool.
If the extension of time is not granted, the Applicant will not receive a decision and outcome in respect of the matter, already heard by the Commission. This would be a particularly unfair result given the Respondent did not raise the objection to the allegations being out of time until the first day of the matter being heard, after considerable efforts have been undertaken to prepare the evidence for a hearing.
On the other hand, there was no evidence before the Commission that the Respondent would be materially prejudiced in presenting its case as a consequence of the delay.
[6]
Overarching observations
It must be acknowledged that during the course of his employment and in particular, during the time period examined by the Commission in these proceedings, the Applicant raised a number of legitimate safety issues with the Respondent with respect to the Aquatic Centre operations. These included concerns (but were not limited to) with respect to:
1. the height of a ladder being used at the Epping Pools;
2. allowing an eight year old child to attend swimming lessons and be in the Epping Pools with underage supervision; and
3. the safety of the equipment and process of removing and putting on the pool covers.
In his role as duty manager with the Respondent, the Applicant not only had a right to raise safety issues with the Respondent, but an obligation to do so.
What does not sit comfortably with the Applicant's case is that there is evidence of the Respondent positively responding to these concerns when raised by him. These included:
1. the actions of Ms Raven including:
1. offering extra hours to the Applicant and the other duty managers after the 7 November 2018 meeting;
2. granting the Applicant a day of in lieu for extra time worked outside of his rostered hours;
3. suggesting that the Applicant provide further information with respect to the workplace health and safety concerns to Ms Olennick;
4. expressing concern to Ms Grant following the 7 November 2018 meeting that Ms Minoosepehr may have been overloading the Duty Managers with work; and
5. expressing her agreement with the Applicant's feedback with respect to the Epping Pool Risk Assessment as set out above at [57].
1. the Respondent through various communications to the Applicant, confirming that he had an obligation, if he identified any safety risk to report the identified hazard or risk;
2. arranging the risk assessment at Epping Pools with the Applicant in attendance and offering him the draft report for feedback;
3. accepting the need and arranging heights training for the ladder at Epping Pool; and
4. making arrangements to address the issues with the pool covers raised by the Applicant.
While the Applicant had an obligation to raise workplace health and safety issues, he also had an obligation to conduct himself in a manner consistent with the Respondent's Code of Conduct in the performance of his duties. There is a significant amount of evidence that the Respondent had concerns based on objective evidence that the Applicant was not meeting those obligations.
[7]
Victimisation claim 1: Ms Raven separating Mr Vaulin's timesheets and "keeping tabs" on him
The Applicant argued that the Commission should find that he was victimised because Ms Raven was "keeping tabs" on him because he made a complaint to her about safety issues on 7 November 2018 during his meeting with her and with Ms Olennick following the 23 November 2018 risk assessment.
The Applicant did not particularise in his submissions what actions of Ms Raven constituted "keeping tabs" on him. The Applicant's claim with respect to Ms Raven "keeping tabs" on him is vague to say the least.
The Online Macquarie Dictionary confirms that the colloquial expression, "keep tabs on" means "to keep account of or a check on: keep tabs on your expenses."
The Applicant's evidence to support the contention that Ms Raven was "keeping tabs" on him was that on 3 December 2018, he received a text message from Mr Minoosepehr asking if he was coming to work (see [37] above) and that later that day he found his timesheet had been separated from those of other staff. The Applicant further deposed that he had a conversation with Mr Minoosepehr on or about 4 December 2018 where he confirmed that Ms Raven was "keeping tabs" on him by logging into Kronos, the biometric device staff used to log their hours of work: see [99]-[113] of Exhibit A7.
With respect to the text message of 3 December 2018, Mr Minoosepehr gave evidence that he recalled that he had sent the message asking about the Applicant's whereabouts after Ms Raven had asked "Who is the afternoon person?" to which he responded that it was the Applicant. Mr Minoosepehr then texted the Applicant after Ms Raven said she could not see him on deck. Mr Minoosepehr gave evidence that, "I do not believe this was a significant or unusual event, as if we are unable to identify that someone who is supposed to be working, it is a common procedure to follow up with that person." Mr Minoosepehr did not directly respond to the Applicant's evidence that he said to him that Ms Raven was "keeping tabs" on him by logging on to Kronos.
Ms Raven flatly denied that she was keeping tabs on the Applicant.
Taking the Applicant's evidence at its highest, the separation of a timesheet from that of other employees does not prove that Ms Raven was "keeping tabs" on him. Nor does the alleged statement from Mr Minoosepehr that she was. This could only be taken as his opinion. Further, an enquiry as to his whereabouts in the circumstances described by Mr Minoosepehr does not support the Applicant's claim. It is entirely appropriate that Ms Raven would make the enquiries she did through Mr Minoosepehr.
[8]
Victimisation claim 2: Mr Radford directing the Applicant to attend a disciplinary meeting on 13 December 2018 in response to Mr Vaulin's email of the same date indicating that he had been working from home
The Applicant made the following submissions with respect to Victimisation claim 2 at [5] of the Applicant's Closing Submissions:
"5.1 The Commission should find that Mr Radford's direction to Mr Vaulin to attend a disciplinary meeting on 13 December 2018 constituted an act of victimisation.
5.2 Mr Radford requiring Mr Vaulin to attend a disciplinary meeting on 13 December 2018 for working from home was harsh and unfair, in circumstances where:
(a) Ms Raven authorised Mr Vaulin to take a day off in lieu;
(b) At 12:36 am (well before he was due to start work) Mr Vaulin emailed his direct manager, Mr Minoosepehr, that on 13 December 2018 he "would be working from home instead of taking it as a time-in-lieu day" - he did not receive any response from Mr Minoosepehr;
(c) Mr Minoosepehr did not respond to Mr Vaulin's email; and
(d) Mr Radford could easily have found out the above, if he had spoken to Ms Raven and Mr Minoosepehr prior to directing Mr Vaulin to attend a disciplinary meeting on 13 December 2018.
5.3 Further, Mr Vaulin has been treated by the Respondent in a more disadvantageous manner than other staff.
5.4 Under cross-examination, Mr Radford conceded that:
(a) to prepare emergency documentation all you need is a computer; and
(b) in theory a duty manager does not need to be on site to prepare emergency documentation.
5.5 Further, under cross-examination Mr Radford conceded that if Ms Raven had emailed to say that she was working from home, Mr Radford would not have required her to attend a disciplinary meeting with Mr Clifton.
5.6 Plainly the clear evidence before the Commission is that Mr Vaulin was treated differently from how Ms Raven would have been treated in the same situation.
5.7 In those circumstances, the Respondent's submission that "the actions of Mr Radford were reasonable management action, conducted reasonably" and therefore do not constitute victimisation should be rejected."
In answer to these submissions, the Respondents states at [101]-[104] of the Respondent's Closing Submissions:
"[101] The First to Sixth Alleged Complaints had been made as at this date.
[102] Under cross-examination Mr Radford steadfastly maintained that there was no capacity for any employee in a Pool Duty Manager role to work from home. While Mr Radford conceded that he, himself, worked from home occasionally, that was in compliance with Council's policies requiring prior approval to do so. He stated that the applicant not only was not entitled to work from home, he had not been granted prior approval to do so or made any prior request to the day on which this occurred.
[103] Mr Radford's email was therefore a reasonable and well-founded response to the concerns raised by the email which Mr Vaulin had directed to Mr Minoosepehr. His views about non-compliance with Council policy concerning working from home and the inability for Duty Managers to perform their shifts were the substantial and operative reason for his email. He denied his actions arose out of any or all of the First to Sixth Alleged Complaints.
[104] In line with Commissioner Newall's comments noted above in Health Services Union, the potential engagement in a disciplinary process, conducted properly, and based on appropriately founded allegations cannot amount to a "detriment". Mr Radford's actions meet this test. The Second Alleged Act of Victimisation does not amount to victimisation under the IR Act."
[9]
Victimisation claim 3: the Respondent issuing the First Letter of Allegations dated 14 December 2018 and the First Written Warning
The Applicant claimed that he was victimised by the Respondent by being issued with the First Letter of Allegations dated 14 December 2018 and the First Written Warning relating to those allegations: see [51]-[52] and [85] above.
The Applicant made the following submissions with respect to this claim at [6] of the Applicant's Closing Submissions:
"6.1 The Commissioner should find that the issuing of the [First Letter of Allegations] dated 13 December 2018 and the outcome of that letter constituted an act of victimisation.
6.2 The [First Letter of Allegations] contained ten allegations. Save for the three allegations related to the two emails sent by Mr Vaulin on 9 December 2018, other allegations were minor matters included in the [First Letter of Allegations] to 'beef up' the allegations against Mr Vaulin.
9 December 2018 emails
6.3 Mr Vaulin was cross-examined at length about the 9 December 2018 emails.
6.4 Mr Vaulin's evidence is that:
(a) leading up to 9 December 2018 Mr Vaulin had been growing really frustrated at the lack of support he was receiving from Ms Raven and Mr Minoosepehr and he was angry as it appeared to him that they were targeting him in an unfair way (particularly following what Mr Healey had informed him of at the Council Christmas party);
(b) Mr Vaulin had tried raising his concerns with his supervisors (Ms Raven and Mr Minoosepehr), as well as Ms Grant from human resources, and it appeared to him that no one was taking his concerns seriously;
(c) by copying in senior management, Mr Vaulin was hoping to obtain their assistance in dealing with his concerns; and
(d) the email to the entire aquatic team was sent with a view towards assisting staff members who were also having difficulties with Ms Raven.
6.5 Even though Mr Vaulin may be open to criticism for not escalating his concerns using proper processes (for example by lodging a grievance) and perhaps for using intemperate language (indeed, under cross-examination Mr Vaulin readily accepted that, with the benefit of hindsight, he should have raised his concerns differently), the act of sending those to two email does not justify giving Mr Vaulin a formal warning.
Alleged 'regular failure' to complete shift reports
6.6 As to the other allegations, their inclusion in the [First Letter of Allegations] was harsh and unnecessary and an example of the Mr Vaulin being 'badly treated' by the Respondent. This is best illustrated by reference to allegation 7 that Mr Vaulin "regularly fails" to comply with the daily shift reports.
6.7 Under cross-examination Ms Raven accepted that:
(a) the requirement to complete shift reports was introduced on Friday, 23 November 2018 and there was a "grace period" (presumably for other staff but not for Mr Vaulin);
(b) on Wednesday, 28 November 2018, Ms Raven complained to the human resources department that Mr Vaulin "is yet to complete the AM Shift Report. It seems that he is being defiant" (as set out above); and
(c) on 13 December 2018, Mr Vaulin is issued with a Disciplinary Letter which alleges, amongst other things, that Mr Vaulin "regularly fails" to comply with the daily shift reports.
6.8 Under cross-examination, Mr Radford conceded that:
(d) when a new procedure is introduced, and a complaint is made to human resources only five days later that the procedure is not being followed, the ordinary response would be to say 'well, it's just been introduced'; and
(e) it was not considered necessary to issue disciplinary letters to the other duty managers who failed to complete daily shift reports.
6.9 The above clearly demonstrates that Mr Vaulin was singled out and treated more disadvantageously by the Respondent. It therefore follows that the [First Letter of Allegations] was tainted by unfairness and as such constitutes an act of victimisation.
6.10 Notwithstanding the above, on 19 February 2019, in respect of the allegation in the [First Letter of Allegations] that Mr Vaulin "regularly fails" to comply with the daily shift reports, the Respondent determined that:
It has been determined that the failure to complete these forms constitutes a failure to follow the reasonable instruction of management.
Operational matters
6.11 Under cross-examination, Mr Radford also conceded that the following matters were "operational matters" (that is, matters that did not warrant disciplinary action and should have been dealt with by Ms Raven and Mr Minoosepehr):
(f) the meeting between Mr Vaulin and Ms Raven; and
(g) the incident where Mr Vaulin entered the pool to rescue a child, where Ms Raven formed the view that the water rescue was carried out prematurely.
Mr Vaulin working from home on 13 December 2018
6.12 As discussed in more detail in section 5 above, in circumstances where:
(a) Ms Raven had authorised Mr Vaulin to take a day off in lieu; and
(b) Mr Vaulin had emailed his manager, Mr Minoosepehr, to say that:
(i) instead of taking a day off in lieu, as was authorised by Ms Raven, he will work from home to work on the emergency documentation; and
(ii) he had arranged appropriate cover for his shift;
it was harsh and unfair for the Respondent to formally allege in a disciplinary letter that Mr Vaulin failed to seek approval in relation to working from home on 13 December 2018.
6.13 Inexplicably, the Respondent found that the allegation was substantiated and in respect of that allegation the Respondent's letter dated 19 February 2019 stated that:
We have determined that your actions are unacceptable.
Conclusion
6.14 Having regard to the all of the above, it is evident that the [First Letter of Allegations], and its outcome, was tainted by unfairness and harshness and therefore constitutes an act of victimisation for the purpose of s 210 of the IR Act.
6.15 The Respondent's contention that the [First Letter of Allegations] "was reasonable management action based on circumstances that could not, objectively, be said to be frivolous or vexatious" and therefore does not constitute victimisation should be rejected."
[10]
Victimisation claim 4: the Respondent issuing the Second Letter of Allegations dated 19 December 2018
The Applicant claimed that he was victimised by the Respondent by being issued with the Second Letter of Allegations relating to this email to Mr Timeus of 14 December 2018: see [53] and [59] above.
The Applicant's submissions with respect to this allegation is contained at [7] of the Applicant's Closing Submissions:
7 Second Disciplinary Letter dated 19 December 2018
7.1 The Commissioner should find that the issuing of Second Disciplinary Letter dated 19 December 2018 and the outcome of that letter constituted an act of victimisation.
7.2 The Second Disciplinary Letter made four allegations against Mr Vaulin in connection with an email that Mr Vaulin sent to Mr Timeus of Elite Fire Training on 14 December 2018.
7.3 Under cross-examination, counsel put to Mr Radford that if another employee had sent an email like the one sent by Mr Vaulin to Mr Timeus they would not have been sent a disciplinary letter and Mr Radford made the concession to the effect that "in isolation, most likely no".
7.4 Further, the Second Disciplinary Letter was issued to Mr Vaulin before the time period for formally responding to the [First Letter of Allegations] had expired. The Respondent's conduct in requiring Mr Vaulin to respond to multiple disciplinary letters at the same time was oppressive and unfair.
7.5 In those circumstances, the Commissioner should find that:
(a) by issuing the Second Disciplinary Letter, the Respondent treated Mr Vaulin in a harsh and unfair manner and in a manner more disadvantageous than how other employees would have been treated; and
(b) consequently, the issuing of the Second Disciplinary Letter constitutes an act of victimisation for the purpose of s 210.
7.6 It follows that the Respondent's submission that the issuing of the Second Disciplinary Letter dated 19 December 2018 was not "reasonable management action based on circumstances that could not, objectively, be said to be frivolous or vexatious" and therefore not an act of victimisation should be rejected.
7.7 Further, under cross-examination Mr Radford confirmed that the Respondent did not rely upon the Second Disciplinary Letter for the purpose of issuing the show cause notice to Mr Vaulin or for the purpose of terminating Mr Vaulin's employment."
The Respondent addressed Victimisation claim 4 at [110]-[114] of the Respondent's Closing Submissions:
"[110] Mr Radford's allegations letter dated 14 December 2018 described the concerns with Mr Vaulin's conduct in emailing Mr Timeus.
[111] Mr Radford's concerns were founded upon a communication which, after consideration, was inappropriate and a potential breach of the Code of Conduct. During cross-examination Mr Radford conceded that if another employee had been involved in the same conduct the matter would probably not have been the subject of an allegations letter, however, he stated that this occurred because of his awareness of ongoing issues with Mr Vaulin, this included the email Mr Vaulin had sent to Ms Raven only days before. He denied his action arose out of any or all of the First to Sixth Alleged Complaints.
[112] The fact of sending this email is not contested; nor is the fact that it was highly inappropriate. The applicant, both in his evidence, and in cross-examination, conceded that "Having now had the opportunity to reflect for nearly a year, and having had time for my emotions to cool, I accept that I could have communicated to Ryan… differently."
[113] The outcome letter dated 19 February 2019 identified matters of concern with Mr Vaulin's conduct: despite this, and in consideration of different views about who was responsible for organising casual relief to Mr Vaulin as had been offered, Mr Radford decided no further disciplinary action was required.
[114] In line with Commissioner Newall's comments noted above in Health Services Union, the potential engagement in a disciplinary process, conducted properly, and based on appropriately founded allegations cannot amount to a "detriment". Mr Radford's actions meet this test in relation to this second allegations letter. The Fourth Alleged Act of Victimisation does not amount to victimisation under the IR Act."
[11]
Victimisation claim 5: the Respondent issuing the Third Letter of Allegations dated 24 January 2019 and Second Written Warning dated 7 March 2019
The Applicant claimed that he was victimised by the Respondent by being issued with the Third Letter of Allegations dated 24 January 2019 and the Second Written Warning relating to those allegations: see [72] and [91]-[93] above.
The Applicant's submissions with respect to this allegation is contained at [8] of the Applicant's Closing Submissions:
"Third Disciplinary Letter dated 24 January 2019 and Warning
8.1 The Commissioner should find that the issuing of Third Disciplinary Letter dated 24 January 2019 and the outcome of that letter constituted an act of victimisation.
8.2 The Third Disciplinary Letter contained:
(l) a further allegation in connection with shift reports;
(m) an allegation that Mr Vaulin stayed back after his shift; and
(n) an allegation that Mr Vaulin took swim school bookings
Allegation regarding shift reports
8.3 For the reasons discussed in detail in section 6 above, the manner in which the Respondent dealt with the issue of completion of shift reports by Mr Vaulin was 'heavy handed', harsh and unfair.
8.4 In that regard, Mr Radford's evidence under cross-examination that it was not considered necessary to formally discipline any other duty manager in connection with completion of shift reports is telling.
8.5 The evidence clearly shows that the Respondent unfairly singled out Mr Vaulin by repeatedly subjecting him to disciplinary allegations in connection with shift reports, whilst others had been dealt with informally at an 'operational level'.
Staying back at the centre
8.6 The allegations that Mr Vaulin stayed back after the end of his shift were not substantiated as Mr Vaulin demonstrated that he had a legitimate reason for staying back after the end of his shift, even though he had not obtained pre-approval. On three occasions he stayed back 45 minutes and on one occasion he stayed back 3 hours and 15 minutes to deal with a contamination incident.
8.7 It is significant that under cross-examination Mr Radford, conceded that:
(a) the concern with Mr Vaulin staying back after hours was about safety; and
(b) no safety concerns arose if a staff (sic) stayed back after the end of their shift during the day when others were around.
8.8 It should be noted that this allegation was unsubstantiated (as it should have been) on the basis of Mr Vaulin's explanation for remaining at work. At this point in time, Mr Vaulin had received only one warning in respect of remaining at work beyond his finishing time on the basis that "the process had been implemented to ensure the safety of staff at Epping Aquatic Centre."
Swim-school booking
8.9 In relation to the swim school booking, Mr Vaulin's evidence was that
(a) whilst the pool staff generally understood that swim-school booking were not to be taken without payment, in practice staff were given a degree of flexibility;
(b) other staff also took swim-school bookings without payment; and
(c) no disciplinary action was taken against them.
8.10 Mr Vaulin's evidence in respect of the above matters was not challenged under cross-examination and, as such, should be accepted by the Commissioner.
8.11 Further, Matthew Healey gave unchallenged evidence that the policy of not taking bookings without payment "has always been tempered with a measure of leniency".
8.12 The fact that formal disciplinary allegations were made against Mr Vaulin for taking a single booking without payment, even though no such actions were taken against other staff who had taken bookings without payment, is incontrovertible evidence that Mr Vaulin has been treated in a more disadvantageous manner.
Conclusion
8.13 Having regard to the above, the Applicant submits that the Commissioner should find that the Third Disciplinary Letter, together with its outcome, was unfair insofar as it singled out Mr Vaulin for conduct that others were also engaging in without any formal ramifications. Accordingly, the Third Disciplinary Letter, together with its outcome, constitutes an act of victimisation for the purpose of s 210 of the IR Act.
8.14 It follows that the Respondent's submission that the issuing of the Third Disciplinary Letter was "reasonable management action based on circumstances that could not, objectively, be said to be frivolous or vexatious" and therefore not an act of victimisation cannot be sustained."
[12]
Victimisation claim 6: the Respondent issuing the Fourth Letter of Allegations dated 14 February 2019
The Applicant claimed that he was victimised by the Respondent by being issued with the Fourth Letter of Allegations dated 14 February 2019 which alleged that his behavior on the day of the 30 January 2019 risk assessment meeting breached the Code of Conduct: see [83] above.
The Applicant's submissions with respect to this allegation is contained at [9] of the Applicant's Closing Submissions:
Fourth Disciplinary Letter dated 15 February 2019
9.1 The Commissioner should find that the issuing of Fourth Disciplinary Letter dated 15 February 2019 and the outcome of that letter constituted an act of victimisation.
9.2 The Fourth Disciplinary Letter dated 15 February 2018 (sic) contained:
(a) two allegations against Mr Vaulin to the effect that he failed to follow management directions risk assessment held on 30 January 2019; and
(b) an allegation against Mr Vaulin that he had falsified his timesheet.
Alleged failure to follow management directions
9.3 Turning first to the allegations about the 30 January 2019 risk assessment, Mr Vaulin, Ms Raven and Ms Lytwyn have all given an account.
9.4 Whilst the account given by Mr Vaulin and Ms Raven differed in some significant respects, under cross-examination Ms Raven largely accepted Mr Vaulin's account of the events. In particular, Ms Raven conceded that:
(a) Mr Vaulin had not been asked to leave the risk assessment when he first joined the risk assessment;
(b) Ms Raven did not ask Mr Vaulin to leave the risk assessment until 10-15 minutes into the risk assessment; and
(c) Ms Raven told Mr Vaulin to leave the risk assessment, she did not tell him to go home.
9.5 The account given by Ms Lytwyn is broadly consistent with the account given by Mr Vaulin.
9.6 As to the other two main participants in the risk assessment:
(a) Under cross-examination, Mr Minoosepehr gave evidence that he did not hear the exchanges between Mr Vaulin and Ms Raven and Ms Olennick, as he was situated on the other side of the pool.
(b) Ms Olennick, a former employee of the Respondent, was also present at the 30 January 2019 risk assessment. Yet, she was not called as a witness by the Respondent. In those circumstances, the Applicant submits that due to the unexplained failure to call Ms Olennick as a witness the Commissioner should draw an inference based on the rule in Jones v Dunkel that her evidence would not have assisted the Respondent's case. In that regard, the mere fact that the witness was no longer employed by the Respondent provides no explanation as why she was not called. It was open to the Respondent to procure her attendance by issuing a subpoena and there was no evidence before the Commissioner whether the Respondent had taken any such steps.
9.7 For those reasons, the Applicant submits that the Commissioner should accept the account of the 30 January 2019 risk assessment set out at paragraphs [216] to [260] of Vaulin (Exhibit A7).
9.8 The first two allegations of the Fourth Disciplinary Letter, in essence, alleged that Mr Vaulin failed to follow directions given Ms Raven and Ms Olennick, respectively, to the effect that Mr Vaulin's shift had finished and he should go home.
9.9 There is no dispute that:
(a) Mr Vaulin was not told to go home, he was merely told to leave the risk assessment;
(b) Mr Vaulin was not given the direction to leave until 10-15 minutes after the start of the risk assessment,
as Ms Raven made those concessions under cross-examination.
9.10 On Mr Vaulin's account, he left the risk assessment immediately after he was told to do so by Ms Raven and Ms Olennick.
9.11 Mr Vaulin's account is corroborated by Ms Lytwyn's unchallenged evidence that:
I would estimate that Andrew left the risk assessment within about a minute of Sue telling him there was no need for him to be there.
9.12 Whilst Ms Raven maintained under cross-examination that Mr Vaulin did not leave the risk assessment immediately after being told to do so, it is submitted that the Commissioner should accept the account given by Mr Vaulin and Ms Lytwyn.
9.13 Ms Lytwyn's evidence in this regard is particularly persuasive as:
(a) she is an impartial witness, in the sense that (in comparison with Mr Vaulin and Ms Raven) she has little personal stake in the outcome of the proceeding; and
(b) her evidence regarding Mr Vaulin leaving the risk assessment immediately after being told to do so was not challenged under cross-examination.
9.14 Accordingly, the allegations that Mr Vaulin did not comply with the directions given by Ms Raven and Ms Olennick should not have been substantiated.
9.15 Yet, on 15 March 2019, the Respondent found that the first two allegations in the Fourth Disciplinary Letter were substantiated and the Respondent directed Mr Vaulin to show cause as to why his employment should not have been terminated. Ms Grant's evidence was that she relied entirely on Ms Olennick's and Ms Raven's written statements to make her findings which led to the Fourth Disciplinary Letter being sent. In this regard, the information relied on is impugned by any prohibited reason that either Ms Raven or Ms Olennick had for giving their version of events (which has been shown to be incorrect).
9.16 It follows that the outcome of the Fourth Disciplinary Letter were harsh and unfair and, as such, an act of victimisation.
9.17 Further, under cross-examination Ms Grant conceded that as at 15 March 2019 (when the outcome of the Fourth Disciplinary Letter was issued), in investigating the allegations the subject of the Fourth Disciplinary Letter Ms Grant:
(a) relied on statements given by Ms Raven and Ms Olennick;
(b) Ms Grant had not interviewed any other witness (save for Mr Vaulin).
9.18 Failure of the Respondent to interview all relevant witnesses prior to issuing the outcome of the Fourth Disciplinary Letter is further indication of the unfair manner in which Mr Vaulin has been treated.
Allegation about falsification of timesheet
9.19 Turning to the allegation that Mr Vaulin falsified his timesheet, it is uncontroversial that:
(a) Mr Vaulin left the Epping pool at approximately 3pm on 30 January 2019; and
(b) in his timesheet, he recorded a finish time of 3pm.
9.20 The issue is whether that constitutes "falsification of a timesheet in an attempt to receive overtime" as alleged by the Respondent.
9.21 Under cross-examination, counsel put to Mr Radford that it is not dishonest to record the time actually worked on the timesheet, to which Mr Radford answered it is if overtime is being claimed. Counsel then put to Mr Radford that if Mr Vaulin was not making a claim for overtime then that would not be fraud and Mr Radford accepted that proposition. Ms Grant made similar concessions.
9.22 Counsel then took Mr Radford to Mr Vaulin's response to the Fourth Disciplinary Letter, where he stated that:
The timesheet has not been falsified, as it correctly states the time I finished my last duty. … These hours entered on timesheets do not constitute a claim for overtime, as the duty managers are only paid for their rostered 38 hours per week, regardless of the time they finish. You have provided no evidence that this was "a claim for overtime".
9.23 Under cross-examination, Mr Radford also conceded that he made no inquiries as to whether or not Mr Vaulin was paid overtime.
9.24 Yet notwithstanding the above, in respect of the allegation about the falsification of timesheet, the Respondent found that the allegation was substantiated and stated that:
It has been determined that this amounts to serious misconduct which is described as, but not limited to, falsification, fraud or other inappropriate behaviour.
9.25 The finding that Mr Vaulin fraudulently falsified his timesheets is a clear example of the harsh and unfair way in which Mr Vaulin has been treated by the Council and the Fourth Disciplinary Letter and its outcome constitute a flagrant act of victimisation.
Conclusion
9.26 Having regard to the above, the Applicant submits that the Commissioner should find that the Fourth Disciplinary Letter, together with its outcome, was harsh and unfair and consequently constitutes an act of victimisation for the purpose of s 210 of the IR Act.
9.27 It follows that, there is no basis for the Respondent's submission that the issuing of the Fourth Disciplinary Letter was "reasonable management action based on circumstances that could not, objectively, be said to be frivolous or vexatious" and therefore not an act of victimisation."
[13]
Victimisation claim 7: each of the warnings that were issued in respect of the First and Third Letter of Allegations and the Show Cause Letter dated 15 March 2019
In so far as Victimisation claim 7 relates to the written warnings issued to the Applicant, this aspect of the Applicant's claim has been addressed in the context of Victimisation claims 3 and 5 above.
The Applicant did not address the issue of the how the issuing of the Show Cause Letter constituted an act of victimisation in his submissions.
There is no evidence to support the contention that the Show Cause Letter was issued because the Applicant had made complaints about workplace health and safety matters. Having considered the Respondent's submissions, I am unable to find that the decision to issue the Show Cause Letter was made for the substantive and operative reason that the Applicant made workplace health and safety complaints.
[14]
Victimisation claim 8: the termination of the Applicant's employment.
The Applicant claimed that he was victimised by the Respondent because he made complaints about workplace health and safety matters when his employment was terminated.
The Applicant made the following submissions with respect to this alleged act of victimisation at [10] of the Applicant's Closing Submissions:
10.1 The Commissioner should find that the termination of Mr Vaulin's employment constituted an act of victimisation.
10.2 For the reasons discussed above, the issuing of four disciplinary letters by the Respondent and the outcome of those letters were harsh and unfair and without proper justification. None of those disciplinary letters should have been issued.
10.3 Further, it should be noted that: the First Disciplinary Letter and the Third Disciplinary Letter were relied upon by the Respondent as the first and second formal written warnings, respectively, to Mr Vaulin; and the Fourth Disciplinary Letter was relied upon by the Respondent as the formal notice to show cause as to why Mr Vaulin's employment should not be terminated.
10.4 In those circumstances, the termination of Mr Vaulin is necessarily tainted by the harsh and unfair conduct of the Respondent associated the disciplinary letters and itself constitutes an act of victimisation for the purpose of s 210 of the IR Act.
10.5 Accordingly, the Respondent submission to the effect that the termination followed a proper process (including two prior written warnings) should be rejected.
The Respondent submitted at [121]-[122] of the Respondent's Closing Submissions:
[121] Mr Radford decided that it was appropriate to issue the applicant with a show cause letter as he had decided there were reasonable grounds to terminate his employment. In this regard, his decision followed an interview he conducted with the applicant on 19 March 2019 and been advised of enquires made by Ms Grant. He had reviewed the applicant's written response provided at the meeting on 19 February 2019. In those circumstance (sic) he determined it appropriate to proceed with termination. This process involved preparing a brief for his manager and the CEO (then acting) for approval of this course of action. He received no enquires from either before the termination letter was signed by the CEO. Mr Radford stated that the Acting CEO, Mr Rik Hart, retired from Council in late 2019.
[122] Ms Grant confirmed that the process to terminate involved briefing the CEO (then acting). She also noted that she sought advice from LG NSW regarding the process for termination, in view of the applicant's grievances which were still on foot. Ms Grant stated that she received no enquired (sic) from her superiors or the Acting CEO in relation to the termination recommendation.
[15]
Enforcement
The Applicant submitted that pursuant to s 213(2) of the Act, the Commission should reinstate him to his former position on terms not less favourable than those that would have been applicable if he had not been dismissed with continuity of service. The reinstatement of the Applicant to his former position was opposed by the Respondent.
The Applicant submitted the Applicant should be reinstated relying upon the following submissions in the Applicant's Closing Submissions at [13]:
Evidence of Mr Vaulin
13.2 Mr Vaulin was cross-examined at length about whether his reinstatement is practicable.
13.3 Under cross-examination, Mr Vaulin maintained that:
(a) Mr Vaulin had limited interaction with Ms Raven on a day to day basis.
(b) Due to the fact that Ms Raven splits her time between the Epping and Macarthur pool, Mr Vaulin was in the same location as Ms Raven no more than 2 or 3 days per week.
(c) Further, Mr Vaulin spent most of his shift outside (on the pool deck, plant room etc.) and Ms Raven spent most of her time in the office.
(d) Mr Vaulin had more interaction with Mr Minoosepehr, than he did with Ms Raven.
(e) Compared to Ms Raven, Mr Minoosepehr spent more time outside and less time in the office.
(f) Mr Minoosepehr also split his time between Epping and Macarthur and therefore Mr Minoosepehr and Mr Vaulin were in the same location usually no more than 2 or 3 days per week.
(g) Mr Vaulin had very little day to day interaction with Ms Mostafa on a day to day basis as Ms Mostafa is in the swim-school department and Mr Vaulin is in the life guard department.
13.4 Given the limited day to day interaction Mr Vaulin has Ms Raven, Mr Minoosepehr and Ms Mostafa, any friction in the relationship between those three and Mr Vaulin should be manageable and any such friction would not render Mr Vaulin's reinstatement impracticable.
13.5 Mr Vaulin has also given evidence under cross-examination that in relation to some of the communications with his colleagues he should have done things differently. That statement shows Mr Vaulin has insight into his behaviour, which bodes well for prospects of reinstatement.
Evidence of former colleagues opposing reinstatement
13.6 A small number of Mr Vaulin's colleagues gave evidence before the Commission opposing his reinstatement.
13.7 Ms Raven gave evidence to the effect that, her relationship with Mr Vaulin "will not return to a good working relationship."
13.8 Even if Ms Raven's evidence is accepted, that in and of itself is not sufficient to demonstrate that reinstatement is impracticable. In large organisations, it is not unusual for a few employees not to enjoy good working relationships with each other. Such work relationships can generally be managed without causing undue disruption or disharmony within the organisation.
13.9 The relationship between Mr Vaulin and Ms Raven should be manageable, especially given that Mr Vaulin and Ms Raven have a limited amount of interaction with each other as discussed above.
13.10 Further, Ms Raven gives evidence that she has had a number health issues.
13.11 However, contrary to Ms Raven's assertions, there is no expert evidence before the Tribunal to substantiate the allegation that Ms Raven's health issues were caused by Mr Vaulin's behaviour.
13.12 In the absence of such expert evidence, the assertion that Mr Vaulin is responsible for Ms Raven's health issues is of no probative value and should not be accepted by the Commission, especially considering that such evidence of opinion is highly prejudicial to Mr Vaulin. The prejudicial effect of the evidence significantly outweighs any probative value the evidence may have.
13.13 Ms Mostafa also gave evidence that Mr Vaulin's behaviour "severely affected [her] self-confidence and belief in her ability to perform" her role. However, under cross-examination, Ms Mostafa could only point to the following two trivial aspects of Mr Vaulin's behaviour:
(a) a query from Mr Vaulin about completion of the MyCareer form; and
(b) a throwaway line in the email Mr Vaulin sent on 9 December 2018, which Ms Mostafa accepted was primarily concerned with Ms Raven.
13.14 Given how trivial the events cited by Ms Mostafa are, it is submitted that Ms Mostafa's reaction is simply not a reasonable reaction and therefore the Commission should not accept Ms Mostafa's evidence about the effect Mr Vaulin's behaviour had on her.
Evidence of former colleagues supporting reinstatement
13.15 Mr Vaulin's former colleagues are by no means unanimous in opposing Mr Vaulin's reinstatement. A number of his former colleagues have given evidence before the Commission that they would have no difficulty working with him if he were reinstated.
13.16 Mr Healey gave the following evidence which was unchallenged:
In relation to Andrew Vaulin, I would have no difficulty working with him again. To my observation he was very diligent and very conscientious. He conducted himself in a collegiate manner to my observation and I have never had a complaint about him from any of the persons who have either been duty managers or other workers such as reception, swim school instructors or lifeguards. Nor have had a complaint from any member of the public.
13.17 Ms Grujevska gave the following evidence that was unchallenged:
My dealings with Andrew Vaulin were always collegiate. I had no trouble working with him and no-one ever made a complaint to me about the nature or the quality of his work and certainly I received no complaints from any members of the public.
13.18 Ms Lytwyn gave the following evidence, which was unchallenged:
I have no difficulty working with Andrew and certainly none of my fellow employees have complained to me about his work performance.
13.19 Ms Daniell gave the following evidence, which was unchallenged:
In the course of my employment, I have come to know Andrew Vaulin. We are not always working on shifts together, however, when we do work together or have a changeover of shift l have found him to be co-operative, courteous and effective in the discharge of his duties.
[16]
Orders
I make the following orders:
1. The parties confer with respect to the amount of compensation to be awarded to the Applicant to give effect to [258] of the decision.
2. Any consent orders giving effect to [258] be filed within 14 days of this decision.
3. Liberty to apply to have the matter relisted in the event the parties are unable to agree to orders.
[17]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 08 September 2020
The Commission accepted the out-of-time allegations under s 213(4), rejected the alleged victimisation claims concerning the earlier acts, and found that the Respondent had not rebutted the statutory presumption concerning termination. Reinstatement was considered impracticable. The parties were ordered to confer on compensation equivalent to 12 weeks' remuneration, less relevant income from other employment, and file any consent orders within 14 days, with liberty to apply if they could not agree.
In or around August to September, the Applicant alleges that he made a complaint to Ms Raven as follows (Ex A7 at [52]):
"I'm a Duty Manager but it feel like I'm becoming more like a[n] Aquatic Operations Coordinator. Ali (sic) of us are unhappy and overworked because we are having to do extra work and progress these projects as well as our existing duties."
This conversation was relied upon by the Applicant as the second alleged complaint about a workplace matter that he considered was not safe or a risk to health.
The Applicant says that he was not given the reprieve he was seeking to complete the work that had been allocated to him and for various reasons he was unable to complete the emergency documentation between July to October 2018: Exhibit A7 at [48]-[51].
The Applicant gave evidence that as a consequence of these workload pressures, he was on occasions working alone at the Epping Pool after the end of his shift, despite knowing it was contrary to the Respondent's Workplace Health and Safety Policy: Exhibit A7 at [62].
On 12 September 2018, Mr Minoosepehr sent an email to his team including the Applicant instructing them, among other things, to always use the Kronos Clock to scan in at the start and end of their shifts.
Ms Raven gave evidence that in October 2018, she noticed that the Applicant had been working onsite past his rostered working times: Exhibit R2 at [11].
In or around late October/early November 2018, a conversation took place between the Applicant and Mr Minoosepehr wherein the Applicant was told that his extra hours of work would not be approved. The Applicant gave evidence that he complained that this was not fair.
This conversation is relied upon as the third alleged complaint about a workplace matter that he considered was not safe or a risk to health.
The Applicant gave evidence that a few days later, Mr Minoosepehr returned indicating that Ms Raven had allowed four extra hours a week which she was reported to have described as "generous" although there were no casuals engaged to cover the Applicant's usual duties during those extra hours.
Mr Minoosepehr gave evidence that on 29 October 2018, he spoke to the Applicant about him working overtime to complete finance related tasks, stating that he cannot stay back after rostered hours, especially after closing, and that he needed to finish on time.
On or about 29 October 2018, the Applicant received an email from Ms Raven stating:
"Just a reminder that no staff member should be onsite on their own. Starting early for a shift or staying back late after the centres close is not permitted unless authorised or requested by Ali or myself."
On 6 November 2018, Ms Raven sent an email to Ms Hana Grant (Human Resources Business Partner) and Mr Brendan Clifton (Workplace Relations Manager), identifying the Applicant as someone who had been repeatedly staying back onsite past his rostered hours, that he had been spoken to by Mr Minoosepehr and the entire team emailed but he was now claiming that he should be paid overtime and he planned on speaking to HR about the issue: Exhibit R2 at [13], Annexure D. In response, Ms Raven received an instruction from Ms Grant to have a conversation with the Applicant about the issues. Ms Grant also provided information about the Respondent's Workplace Health and Safety and Flexible Working Arrangements Policies.
On 7 November 2018 a meeting was conducted with the Applicant, Ms Raven and Mr Minoosepehr where the issue of the Applicant staying back after his shifts was raised by Ms Raven as a safety concern (the 7 November 2018 meeting). The Applicant gave evidence that during this meeting he complained about the additional work tasks he had been allocated. The Applicant was upset by this meeting for several reasons including that he was not give prior warning of it. The Applicant also felt that there was more important safety concerns Ms Raven should have been concerned with.
The Applicant gave evidence that during the 7 November 2018 meeting:
1. he raised the issues of the installation and use of a ladder at the Epping Pool and that he stated that, "I want this discussion about the double standards of WHS being applied to staff to be placed on the record"; and
2. Ms Raven stated that she was prepared to allocate an extra 15 hours per week between the Applicant and four other staff, which the Applicant believed was insufficient, as the additional hours would not involve the engagement of casuals.
The Applicant relied upon the 7 November 2018 meeting as the fourth alleged complaint about a workplace matter that he considered was not safe or a risk to health.
Ms Raven gave evidence that she met with the Applicant on 8 November 2018 and approved a day in lieu to compensate him for the overtime he had worked and to "wipe the slate clean". Ms Raven retained a contemporaneous note from that meeting which included the following:
"I asked Andrew to call Mel Olennick - WHS Manager today I have spoken to Mel about the ladder safety, heights training and WHS Inspection for EAC and mentioned to her that Andrew had other outlining WHS that he wanted to report "offline" directly with HR. When I asked Andrew to call Mel he stated that he needed to gather his thoughts prior to making the call; the (sic) my knowledge he had not made the call to Mel during Thursday.
……
Andrew stated that he did not want us to take any of the additional duties of him that he been offered recently as he enjoys doing them and is keen to learn more about the senior roles within council and aquatics.
I informed Andrew of my plan to offer all three of the current fulltime Duty Managers acting up in Ali's role during his extended leave in 2019. Andrew expressed that he would be keen to take on the opportunity."
On or about 22 November 2018, heights training was organised for the staff at the Epping Pool in response to the safety issues raised by the Applicant.
On 23 November 2018, the Applicant participated in a risk assessment at Epping Pool with Ms Raven, Mr Moonosephr and Mr Olennick. During the risk assessment, the Applicant raised the safety of the pool covers. As a result of the risk assessment, Ms Olennick arranged for a colleague to observe the process of these being put on and off the pools at a later date.
The Applicant relied upon the feedback he gave in the 23 November 2018 as the fifth alleged complaint about a workplace matter that he considered was not safe or a risk to health.
Also on 23 November 2018, Ms Raven sent an email to members of the Aquatic Team including the Applicant advising that all Duty Managers complete Duty Manager opening and closing shift reports and to scan them to Mr Minoosepehr and herself at the end of each shift.
Mr Minoosepehr gave evidence that in November 2018, he asked the Applicant to stop claiming overtime hours because it was "causing issues" and that he should arrange another lifeguard so he could complete his work without working back or otherwise he would assist to complete the tasks.
On 29 November 2018, Mr Minoosepehr sent an email to Ms Grant attaching a file note of the conversation referred to above between himself and the Applicant.
On 3 December 2018, the draft risk assessment was sent from Ms Olennick to the Applicant, Ms Raven and Mr Minoosepehr.
Also on 3 December 2018, the Applicant received a text message from Mr Minoosepehr. The exchange was in the following terms between 11:55 am and 12:03 pm:
Minoosepehr: Hi mate are you coming? Epping
Applicant: Where am I going?
Minoosepehr: OK
Applicant: I'm already at work! I'm on pool deck with Matt and Michael.
Applicant: Tell her to leave me alone!
Minoosepehr: Andrew could you please check stock and let me know if we need something.
Applicant: Yes boss! I'll check everything. Katie has already arranged Matt and I to order kiosk stock.
The Applicant gave evidence that on the same day he discovered his timesheet separated from others.
On 4 December 2018, the Applicant wrote to Ms Grant with respect to the 7 November 2018 meeting. The email stated that he wanted "on the record" that the staff had been subject to double standards. He further stated that during the 7 November 2018 meeting he raised the issue of the ladder and further alleged that current and past managers had said they "do not want WHS to visit Epping".
Ms Grant replied to the email on 5 December 2018 after making inquiries with Ms Olennick addressing the matters contained in the Applicant's email, including the safety issues. Ms Olennick stated in the email that the Respondent is commitment to work, health and safety.
The Applicant replied to Ms Grant's email on 5 December 2018. In the email, the Applicant asserted that his statement about double standards has not been "placed onto the record." Further, he stated that he had received a copy of the Epping Pool Risk Assessment, which will be reviewed in the coming weeks and that at "this point, I will need to communicate with senior managers in relation to several matters."
On 8 December 2018, the Applicant was rostered as Duty Manager in the morning at Epping Pool when the centre had a Christmas Party with approximately 1500 people in attendance which was well in excess of the usual number of patrons. During the shift, the Applicant performed a water rescue on a child and stayed back from his shift. The Applicant stated that he did this in order to "allow a couple of the life guards to take their break."
On 9 December 2018 at 11:02 pm, the Applicant sent an email to Ms Raven copying other people in the Council Aquatics Team including Mr Minoosepehr and Mr Gregory Radford, (Service Manager, Recreation Facilities and Programs)(the first 9 December 2018 email). Ms Raven reports to Mr Radford. The email was in the following terms:
Hi Sue,
As I'm sure you have seen, I have declined your meeting invite for next week. I will no longer be attending these "catch up" meetings. This is due to what occurred on Monday of this week and the conversation I had the following day with Ali at Epping.
At the beginning of my Monday shift at Epping, I was on pool deck with the morning duty manager and lifeguard, when I received a text message from Ali (who was at Macarthur), asking if I was coming into work. I replied that I was already at work. I found this strange as Ali would normally call me when he knows I am at work. A couple of hours later, I walked into the office to find my timesheet on one of the desks. After trying to find the rest of the timesheets underneath various paperwork, I realised that it had been separated from the other timesheets, as every timesheet barring mine had been filed away.
On Tuesday, I asked Ali if you were keeping tabs on me. Ali confirmed that this was the case, where you are tracking my location, when I start and finish my shift, as well as the duties that I undertake, in an effort to find something which you could use against me in the future. I told Ali that I believe there are other staff who are currently being subjected to this behaviour. Ali replied that he understands, but ultimately he is not willing to take the matter further.
I suggest that the next time you speak to one of your superiors, you ask for advice on how to better cover your tracks when keeping tabs on a staff member.
It is very clear that you are subjecting certain staff including myself to different standards compared to the rest of the aquatics' team. I now have to think twice when I'm at work, as you will be going out of your way to record anything that I say or do. As you are well aware, this is not the first time you have subjected a staff member to unfair working conditions.
I will now have to send members of the team an email advising them on the steps they need to take before they accept a "catch up" meeting invite from yourself (presuming they even receive one) as well as what they need to consider before walking into the office when you want to "have a chat". This is in response to several complaints I have received from staff who have been deliberately blindsided before one of these meetings.
You have worked in aquatics for 30 years and you know that sending out a meeting invite, where you only state the time of the meeting and those who are attending is completely unacceptable. This is almost as bad as asking a staff member into your office without any warning at all. Meeting invites should explain why you are inviting a staff member to the meeting, the contents of what will be discussed and that the staff member has the opportunity to bring a support person. Firstly, this is laziness on your part. If you can't be bothered to explain in your meeting invite what will be discussed, then don't bother sending the meeting invite at all. Secondly, meetings conducted in this manner are inefficient at best, as the staff member invited to the meeting does not have adequate time to prepare. Thirdly, and most importantly, disregarding these steps results in a staff member walking into a meeting where they are unaware of what will be discussed, clearly in an attempt to catch them off guard and force them to agree with whatever you say. A staff member placed under duress will find it very difficult to think clearly and articulate their responses in a manner where they can defend themselves. Furthermore, it provides you with an unfair advantage, where you can decide how you speak to the staff member, the items discussed, what is recorded and which concerns are passed on (if any at all). This results in issues that are left unresolved, any wrong doing by management can be covered up and the staff member in question feels helpless and unappreciated.
In our last meeting, I'm sure you recall that I stated that aquatic staff have been subjected to double standards and that I explicitly asked you to place this statement on the record. I confirmed with Ali this week that he remembers this request. I made this statement after I questioned the attitude of past and current managers who have said they did not want WHS to visit Epping as well as the serious issue of why duty managers had been expected to climb an unsecure ladder on a daily basis for a number of months which exposed them to the risk of serious injury as they could have fallen down two storeys. You confirmed in the meeting that my statement would be placed on the record as you had already been in contact with the HR Business Partner, Hana Grant.
Earlier this week I contacted Hana and asked her to confirm what had been placed on the record after our last meeting. She confirmed that my statement relating to double standards had not been placed on the record. This proves my previous point, where you have disregarded my request to place my statement on the record, clearly in an attempt to cover up your own misconduct.
It is unfortunate that it requires a duty manager to raise such safety concerns to the aquatics manager before heights training and a WHS site inspection is organised. You are well aware that it is your responsibility in your role as the aquatics manager to ensure all staff work in a safe environment. What is also quite troubling is your attitude relating to the ladder and access to the roof. You claim to not have any knowledge of the unsecure ladder, yet I clearly recall you gloating about how you didn't have to pay for the new ladder which was recently installed. This demonstrates your approach to your job, where the aquatic's budget is more important than the safety of the aquatics' team.
You have made very clear that you only want to communicate with me when it suits you. Only yesterday, after working hard all day on our busiest day of the year, I was warned by staff that they had been approached by yourself and asked what time I was due to finish my shift. Firstly, you received the roster, so you knew what hours I was working. Secondly, if you wanted to know, all you had to do was press the button on your radio and ask me yourself.
Moving forward, I require you now to only communicate with me in writing via email, where you copy in Greg and HR into all correspondences. The only exception will be when someone requires first aid or there is an emergency. I also expect that you refrain from interfering with my roster and pay. On Monday of this week you didn't even have the courtesy to inform me that you weren't paying me correctly for last week. When Ali processes my pay every Monday, I expect you to not harass him in relation to the hours I have worked for the previous week. Ali knows I only claim a fraction of the extra hours that I work and that these hours are essential to the operations of the aquatics' section.
If you have any concerns with my conduct, you can pass it onto Ali and I will discuss it with him. If you believe Ali isn't capable of dealing with the matter, you are to pass it onto Greg and HR.
It must be said that many operational staff (i.e. Grade 8 and lower- lifeguard, reception and swim school lines) have lost confidence in the managers (i.e. Grade 9 and higher), and that the only way improvements will occur is when those outside of the aquatics' section come in and tell these managers (i.e. Grade 9 and higher) how to do their jobs properly. Those who understand what is happening within aquatics agree these managers (i.e. Grade 9 and higher) do not have the required skill set to undertake their duties, especially when dealing with concerns expressed by aquatic staff. It raises the question, does senior management even know what actually happens at the pools and do they know how staff are treated?
Finally, I realise by sending this email I will now have an even larger target on my back. What you and senior management need to understand, if they ever decide to take an interest in aquatic staff, is that many staff, for far too long, have been taken advantage of and that my only choice now is to stand up and defend my colleagues.
Regards,
Andrew Vaulin
The Applicant relied upon the first 9 December 2018 email as the sixth alleged complaint about a workplace matter that he considered was not safe or a risk to health.
Also on 9 December 2018 at 11:30 pm, the Applicant sent an email to about 30 recipients, including current and past staff working at the pools and senior managers of the Respondent. The email forwarded the email above and was in the following terms (the second 9 December 2018 email):
Hi All,
I have forwarded you an email I sent to Sue and senior management this evening about recent events. When you have the time, it would probably be best if you scroll down to that email and read it first. My apologies for my poor grammar, it's been a long week.
I wanted you all to hear it from me, rather than gossip going around of what I may or may not have said to Sue and senior management.
I also want to provide some advice on what you should think about before you are asked into a meeting with our managers and how you should conduct yourself. Please be mindful that this advice is only a summary.
- If you receive a meeting invite, ensure it contains the location, date, time, attendees, reasons for holding the meeting and the contents of what will be discussed.
- Ensure you take a support person with you (I charge by the hour)
- Confirm beforehand that the person holding the meeting will ensure someone in the meeting is taking minutes, which will be circulated to everyone in attendance after the meeting.
- If you believe certain individuals in the meeting will not conduct themselves in a professional manner etc, then you can decline the meeting invite and request that someone else holds it on their behalf (usually HR).
- At any point during the meeting, you can ask to take a break, so you have an opportunity to reassess and speak to your support person.
- If you do not feel comfortable answering a question state that you will provide an answer at a later date.
- If a meeting becomes unproductive or you are in a position where you feel threatened, immediately end the meeting, walk out and report it to HR.
I must stress, that I do realise that many of you do not have any concerns and that there wouldn't be any need for you to be called in to have a meeting. As such, if you feel comfortable speaking with your managers, I would encourage you to continue doing so.
If a situation arises where you do not receive a meeting invite and you are called into the manager's office without any warning, I would recommend that you keep your mouth shut. Listen to what your managers have to say and if you do not feel comfortable replying, state that you will not comment on the matter and immediately walk out.
I also have to apologise in advance if my actions of speaking up somehow negatively affects others within the team. One of the things I have learnt in aquatics is as soon as you question management; they will go out of their way to make the lives of you and those you directly work with as difficult as possible. The problem is that too many staff in recent times have approached me about a range of issues, and it's my opinion that it's about time something is done about it.
One final point. I know it can be hard, but try to remain positive and do the best you can when you are at work.
If there is anything that you wish to discuss, you can always contact me at any time.
Thanks,
Andrew
There were a number of emails exchanged between Mr Radford, Ms Grant, Mr Clifton, Mr Gary Moore (Manager, Social and Community Services) and Ms Raven after the above emails were sent by the Applicant about his conduct in doing so.
On 13 December 2018, the Applicant had arranged with Ms Raven to take a day-off-in-lieu for extra hours he had worked. Without seeking prior approval, the Applicant emailed Mr Minoosepehr shortly after midnight informing him that he would not be taking a day-off-in-lieu but instead intended to work on his Workplace Supervisor Course from home.
In the afternoon of 13 December 2018, the Applicant received an email from Mr Radford informing him that he had not obtained prior approval to work from home and requiring him to attend a meeting at 10 am the following day with Mr Clifton.
At 5:19 pm the Applicant responded to the email from Mr Radford as follows:
"Hi Greg,
Thank you for your email.
I'm quite busy at the moment working from home, which I'm sure you can appreciate.
I will respond in further detail later tonight. You may have to check your emails first thing in the morning.
Regards,
Andrew"
At 12:46 am on 14 December 2018, the Applicant responded to Mr Radford's email stating that he would attend the meeting with a support person. The Applicant also stated:
"I wish to state for the record that there has been no response, or even acknowledgement of receipt, from Sue or any of the other recipients to the email I sent to Sue on Sunday, 9 December. I find this both surprising and unacceptable, given the serious nature of the issues raised. I would like to make you aware that the concerns raised are only a small selection of a much larger number of issues."
On 14 December 2018, the Applicant attended a meeting and was provided with a letter titled "Unacceptable Workplace Conduct" dated 13 December 2018 (the First Letter of Allegations): Ex A7 at p 57. The First Letter of Allegations raised allegations that the Applicant had engaged in misconduct in respect of the following matters:
1. Sending the first 9 December 2018 email. The First Letter of Allegations extracted particular sentences of the email, alleging that they may constitute a breach of the Code of Conduct.
2. Sending the second 9 December 2018 email. The First Letter of Allegations extracted particular sentences of the email, alleging that they may constitute a breach of the Code of Conduct.
3. Continually working beyond finishing times without approval.
4. Conduct during the 7 November 2018 meeting where he was observed as agitated and aggressive, potentially breaching the Code of Conduct.
5. Regularly not logging into his shift using the biometric system (Kronos).
6. Regularly failing to complete the am and pm daily sheet required of Duty Managers, completing multiple days on the one sheet and submitting these late.
7. Staying back from his regular shift on 8 December 2018, conversing with non-Aquatic staff members on social matters for an extended period (approximately 1.5 hours) and signing out at a later time than rostered, effectively requesting additional hours for this time.
8. Performing a premature water rescue on 8 December 2018 when there was no identified risk to the child.
9. Working from home on 13 December 2018 without prior approval or authority to do so.
The First Letter of Allegations sought a response from the Applicant within 7 days of receipt of the letter, being 21 December 2018. It also set out a number of the Respondent's expectations with respect to the Applicant's conduct and performance as follows:
1. You are required to follow the reasonable and lawful direction of management;
2. A support person is not required to be afforded for all operational discussions;
3. If you identify any safety risks, as is the case with all staff, you have an obligation to report the identified hazard or risk via the corporate incident reporting system;
4. It is unreasonable to expect the only communication between your manager and yourself to be written; and
5. Managers are responsible for attendance and budgets and therefore it is within their role and responsibility to have an understanding of any additional hours that are worked in their area of control.
Also on 14 December 2018, after the meeting referred to above at [51], the Applicant emailed Ms Timeus of Elite Fire Training as follows:
"Hi Ryan,
Unfortunately, I have to inform you that I will no longer be able to assist you in the emergency documentation for both Epping and Macarthur for the foreseeable future. As you know, I haven't been able to provide any information to you for a number of weeks.
I can't really go into too much detail, but for several months now, I have not been given the opportunity to complete anything substantial that I could pass onto you. This stems from my managers, Ali and Sue, who have not provided me with the adequate resources to undertake this task, most notably, the time.
The only way I could get this information to you would be if I was to do it in my free time, which I have already done by going through both centres and informing you of the types of procedures we require.
Can you please speak to Mel as to what would be the best steps for you to take from here. This will most likely include speaking to Ali and Sue, and asking them to provide the information you require.
Can you please speak to Mel as to what would be the best steps for you to take from here. This will most likely include speaking to Ali and Sue, and asking them to provide the information you require.
I apologise I was not able to work with you on this project to the end.
If you believe you may need to charge more for your services due to how long this has gone on for, again, can you please speak to Mel.
I am really sorry if I have wasted any of your time.
Under different circumstances, the work would have already been completed.
Unfortunately, my current role within this particular section of Council does not allow me to assist you with this kind of work.
Thanks,"
On 17 December 2018, Ms Mostafa sent an email to the Aquatics Team, including the Applicant stating that, "Swim School bookings should not be taken unless payment is collected at the time of the booking."
Also on 17 December 2018, the Applicant sent an email to Ms Olennick providing feedback on the Epping Pool Risk Assessment following the 23 November 2018 meeting referred to above at []. This feedback was relied upon as the seventh alleged complaint about a workplace matter that he considered was not safe or a risk to health.
The Applicant sent a further email to Ms Olennick with respect to the risk assessment on 19 December 2018. This email was relied upon as the eight alleged complaint about a workplace matter that he considered was not safe or a risk to health.
On 18 December 2018, Ms Raven replied to Ms Olennick and Mr Minoosepehr in respect of the Epping Pool Risk Assessment, stating; "Other than what has already been added in Andrew's notes I'm happy with the document."
On 19 December 2018, Ms Raven responded to the Applicant's email with respect to the Epping Pool Risk Assessment confirming that heights training had been undertaken by staff.
Also on 19 December 2018, the Applicant received another letter of allegation from the Respondent hand delivered to him while at work (the Second Letter of Allegation). The Second Letter of Allegation alleged that the Applicant had engaged in misconduct and breached the Code of Conduct by sending the email to Mr Timeus on 14 December 2018 as set out above at [53].
On 20 December 2018, the Applicant attended a meeting with a support person with Mr Radford and Ms Grant with respect to the allegations where he provided a response to the Second Letter of Allegation.
On 21 December 2018, the Applicant provided a 13 page written response to the First Letter of Allegations.
Ms Raven gave evidence that between 30 December 2018 and 10 March 2019 the Applicant continued to stay onsite past his rostered working hours without prior approval and to claim these hours on his time sheets: R2 at [29] and Annexure O.
On 7 January 2019, the Applicant sent another document to Ms Grant (the second written response). The second written response is 21 pages in length, setting out additional matters in respect of both the First and Second Letter of Allegations, raising further concerns with respect to the pools and making various allegations.
Mr Minoosepehr gave evidence that on 10 January 2019, he observed the Applicant placing the Duty Manager Report in his drawer without scanning it and he asked the Applicant to scan it to Ms Raven and him, noting he had clearly instructed him to do so before.
On 12 January 2019 at 11:51 pm, the Applicant sent a lengthy email titled, "Incident at EAC" to Mr Minoosepehr copying others from the Aquatics Team. The email traversed the issue of an 8 year-old child receiving underage supervision when attending the pool for swimming lessons. The email concluded with a statement from the Applicant that he required a response to a number of questions in writing. Further, the email stated, "If you require further information, feel free to contact me. Again, I would like all responses to be in writing. I think we can all agree that this is a better approach than what has happened in the past where emails of this nature have either been ignored or a verbal response has been provided where only some details are covered."
The Applicant relied upon the email as the ninth alleged complaint about a workplace matter that he considered is not safe or a risk to health.
On 14 January 2019, the Applicant sent a further lengthy email to Ms Raven raising concerns about Epping Pools compliance with the Royal Life Saving's Guidelines for Safe Pool Operations and reporting an incident involving an underage and unsupervised child being in the Epping Pool. The Applicant claimed that he had written the email and others in his spare time and would be claiming the hours on his timesheet.
Also on 14 January 2019, Ms Raven wrote to Ms Grant and Mr Clifton copying Mr Radford expressing concern with respect to the Applicant's recent conduct. In the email, Ms Raven states that:
1. the Applicant is continuing to undermine the management team;
2. the Applicant had written an email to all of the Duty Managers on Saturday evening at 11:50 pm raising concerns;
3. the Applicant had questioned Ms Mostafa as to why Ms Raven had not gone directly to him with respect to an issue with the EFTPOS Terminal; and
4. it is getting more and more difficult for the management team to work under the pressure the situation was causing.
Also in the email, Ms Raven requests an "update as soon as possible." Presumably, this was in respect of the disciplinary processes being undertaken by the Respondent with the Applicant.
On 22 January 2019, Ms Raven met with Mr Radford and Mr Clifton to discuss the issues she was having with the Applicant's behaviors. During the meeting, Ms Raven was informed of allegations made against her and Mr Minoosepehr by the Applicant.
On the same day, after this meeting, Ms Raven sent an email to Ms Grant, Mr Radford and Mr Clifton with respect to the Applicant which outlined issues Ms Raven believed she was having with the Applicant at the time including that he had not been scanning shift reports, had been continuing to stay onsite after rostered hours and he had booked an enrolment in the swim school without payment, contrary to the relevant policy.
On 29 January 2019, the Applicant received another letter from the Respondent (the Third Letter of Allegations) making three allegations against him, namely he:
1. had not followed the instruction to scan and send the shift reports to Ms Raven;
2. continued to stay back at the centre after his rostered hours without notifying his direct supervisor; and
3. took swimschool bookings without payment.
On 30 January 2019, a risk assessment took place at Epping Pool with respect to the pool covers in response to the issues raised by the Applicant at the risk assessment on 23 November 2018 referred to above at [31]. The risk assessment was scheduled to take place after the Applicant's shift had concluded. The Applicant participated in the risk assessment for a period before being asked by Ms Raven, then Ms Olennick to leave: Ex A7 at [247]-[249]; Ex R5 at [36]. The Applicant undertook some further tasks after being asked to leave, signing off at 3 pm, one hour after his shift had concluded.
On 31 January 2019, Ms Raven sent an email to Ms Grant and Mr Radford copying Mr Clifton stating that "(u)nfortuantely we had another incident with Andrew yesterday afternoon at Epping." Ms Raven included her file note with respect to her version of events that led to the Applicant leaving the risk assessment on 30 January 2019.
On 31 January 2019, the Applicant, accompanied by a support person attended a meeting with Ms Grant and Mr Radford in respect of the Third Letter of Allegations.
On 4 February 2019, Ms Raven wrote to Ms Grant and Mr Radford with respect to claims that had been made by the Applicant for overtime.
On 5 February 2019, the Applicant attended a further risk assessment at the Epping Centre with Ms Olennick, Mr Minoosepehr and Mr Raven.
On 8 February 2019, Mr Raven emailed the Applicant with respect to his involvement in Ms Lytwyn staying onsite past her working hours on the same day. The Applicant responded to this email on 11 February 2019. In the reply, the Applicant asked a number of questions of Ms Raven and claimed four hours overtime for the time he had spent reviewing and preparing the response to her query. Ms Raven replied on 13 February 2019 informing the Applicant that she was satisfied with the reasons for allowing Ms Lytwyn staying back, she would review the further matters raised in his email and that he would not be permitted to claim overtime in relation to the matter. Ms Raven's email reiterated the need to the Applicant to obtain prior approval before working overtime.
On 12 February 2019, Ms Mostafa sent an email to staff including the Applicant setting out the process for making swim school bookings.
Also on 12 February 2019, the Applicant received two letters from the Respondent regarding the second written response. One letter sought to clarify questions raised by the Applicant in the second written response with respect to the disciplinary matters raised with him. The second letter acknowledged that the Applicant had raised concerns with respect to the Aquatic Centre and confirmed that it had been decided, further investigation would take place, confirming that the matters raised were being taken seriously: Exhibit A7 at p 128.
Also on 12 February 2019, the Applicant sent a five page document to Ms Grant titled, "Response to letter of 29 January, 2019 - Additional Notes" in respect of the allegations made against him in the Third Letter of Allegations.
Mr Minoosepehr gave evidence that on 14 February 2019, the Applicant approached him with respect to his pay wherein he told the Applicant that Duty Managers that require additional time at the end of their shift to complete tasks text him to inform him and gain approval and that any extra time claimed for writing to HR needed to be approved by Mr Radford or Ms Grant. He also gave evidence that the Applicant questioned his decisions with respect to the rostering of staff in respect of a school carnival and that the Applicant "got very angry and increased the volume of his voice…": Ex R5 at [45].
Also on 14 February 2019, the Applicant received a Fourth Letter of Allegations from the Respondent alleging that his behavior at the 30 January 2019 risk assessment meeting referred to above at [73] had breached the Code of Conduct.
On 15 February 2019, the Applicant provided a four page written response to the Third Letter of Allegations to the Respondent.
On or about 19 February 2019, the Applicant received a letter in respect of the First Letter of Allegations confirming the Respondent's findings as follows (the First Written Warning Letter):
1. The first and second 9 December 2018 emails constituted harassment as the additional exposure caused by copying and forwarding the email to others was not warranted and offended and humiliated Ms Raven. The Respondent found that it was reasonable to consider that the Applicant's actions would be expected to cause offence.
2. The content of the first 9 December 2018 email constituted a breach of the Code of Conduct specifically the requirement that, "You must treat others with respect at all times."
3. The Applicant failed to follow the reasonable direction of management by working beyond his finishing time without appropriate approval.
4. There are opportunities to improve the usage of biometrics at the Epping Centre and this is something that will be addressed as a reminder to all staff at the Centre.
5. The Applicant had failed to follow a reasonable instruction of management to complete the am and pm daily sheets.
6. The Applicant worked from home on 13 December 2018 without prior approval or authority to do so and this was unacceptable.
The communication stated that it constituted a First Written Warning.
On or about 19 February 2019, the Applicant also received a letter from Mr Radford with respect to the Second Letter of Allegations relating to his communication with Mr Timeus on 14 December 2018 as set out above at [53]. The letter concluded that:
1. comments made in the communication may be perceived as a form of harassment or cause a reputational risk to the Respondent; and
2. having considered the full context of and response provided by the Applicant, no further action would be taken by the Respondent.
The letter went on to remind the Applicant to be "cautious of the content of our email, in particular, ensuring the content is appropriate for the intended audience." It further instructed the Applicant to "raise any concerns you have in relation to completing your duties with your manager and to refrain from discussing costs or expenses with external stakeholders unless you have approval from your manager to do so." The letter also sought to remind the Applicant for the need to comply with the Code of Conduct and all relevant policies and procedures of the Respondent, and stated that it is expected that he follow all reasonable instructions issued by his supervisor or management.
On 28 February 2019, Mr Minoosepehr sent an email to Mr Radford, Ms Grant and Ms Raven titled, "Regarding Andrew's email". In the email, Mr Minoosepehr complains about the various matters relating to the Applicant including that the Applicant:
1. has not addressed the issues he had raised with respect to the cleaning of the men's toilets;
2. is spending too much time in the plantroom;
3. is spending time "recruiting people for his team";
4. not doing his job and doing "nothing"; and
5. had made claims for overtime to complete the Emergency action plans but "provided zero information to Ryan" when he had provided the information in less than a week in January.
The email concluded with Mr Minoosepehr stating: Exhibit R2 at p 97:
"I need this situation sorted out as I need to prioritise my tasks and to be honest dealing with him is not on my list of things to do. Otherwise, there will be no one to run the place in the busiest time of the year. I don't have time to chase him and question him and to keep track of what he is doing."
On or about 7 March 2019, the Applicant received an outcome letter in respect of the Third Letter of Allegations referred to above at [72] (the Second Warning Letter). The Second Warning Letter confirmed the Respondent's finding that the Applicant:
1. continually failed to submit shift reports to Ms Raven as required by all Duty Managers; and
2. took one swim school booking without payment. It was clarified that this finding was in respect of one booking rather than several which was originally alleged.
These matters were characterised by the Respondent as failures to follow a reasonable instruction from management. Further, the Second Warning Letter stated that the Respondent considers that the conduct is a serious issue of concern, "as this is not an isolated incident and demonstrates a failure to conduct yourself in a manner consistent with Council's expectations. As a result, you will be issued with a Second Written Warning letter, constituted by this letter."
The Second Warning Letter confirmed that the allegation that the Applicant continued to stay back at the centre after his rostered hours without notifying his direct supervisor was not substantiated in that the Applicant had provided sufficient explanation in relation to the periods when he had he worked beyond his finishing time and there was evidence he attempted to contact his manager to inform them of this.
On 8 March 2019, the Applicant wrote an email to Ms Raven, copying Mr Minoosepehr, Ms Grant, Mr Clifton and Ms Michael titled, "Epping AM & PM Checks". The email critiqued the shift report document and included critical remarks with respect to Mr Minoosepehr and Ms Raven. The Applicant states in the email that (Exhibit R2 at p 102):
"there are 31 shift reports for Epping (November to February) and 65 shift reports for Macarthur (December to February) that have not been completed or submitted at all. There are also several shift reports which have been submitted late. I would like you to tell me how many of the staff responsible have been referred to Greg for disciplinary action. I am quite certain the answer is zero. This indicates that you are engaging in a deliberate campaign of victimization and retribution against me for disclosing to senior management the extent of WHS breaches that were occurring (and continue to occur) under you management, as well as a range of other issues for which you or Ali are responsible. This is supported by the number of subsequent "complaints" against me that you have persuaded Greg and HR to act upon, which have subsequently been found to be based on you providing them with deliberately false or misleading information."
Also on 8 March 2019, Mr Minoosepehr wrote an email to the Applicant stating that he should inform him of any issues and he will act upon it and again complaining with respect to the Applicant not sending the shift reports to Ms Raven or him.
On 14 March 2019, the Applicant submitted four formal grievances with the Respondent. A fifth grievance was lodged by the Applicant on 29 March 2019. The Applicant's complaints can be broadly categorised as follows:
1. Bullying and harassment on the grounds of unreasonable work demands, failure to provide resources to complete work assignments, and managers engaging in retaliatory disciplinary action;
2. False, misleading or deliberate omission of information from management and HR in order to initiate disciplinary action against the Applicant;
3. Failure by HR and management to investigate numerous instances of alleged misconduct by Ms Raven and Mr Minoosepehr;
4. Deliberate attempt by management to exclude the Applicant from a risk assessment and associated concerns relating to this risk assessment; and
5. Failure to maintain appropriate oversight of Workplace Health and Safety at the Respondent's Aquatic Centres by the Respondent's Workplace Health and Safety Staff, multiple breaches of the Respondent's Workplace Health and Safety Policy and NSW Workplace Health and Safety legislation by Ms Raven and Mr Minoosepehr, since being in their current positions, and no development or adherence to best practice in the Workplace Health and Safety at either of the Epping or Macarthur Pools.
On 15 March 2019, the Applicant received a letter from Mr Radford of the Respondent titled "Outcome of Investigation and Commencement of Show Cause Process" in respect of the allegations contained in the Fourth Letter of Allegations relating to the on-site risk assessment conducted on 30 January 2019 (the Show Cause Letter). The Show Cause Letter confirmed the Respondent's finding that the Applicant had not followed reasonable directions from management to remove himself from the risk assessment and go home when his shift finished when directed by Ms Olennick to do so. The Show Cause Letter also indicated the Respondent had substantiated the allegation that the Applicant had falsified his timesheet by claiming overtime for the period after his shift concluded on his timesheet.
The Show Cause Letter stated that the Respondent considers the conduct to be serious misconduct and invites the Applicant to show cause by 22 March 2019, as to why his employment should not be terminated. The Show Cause Letter also immediately suspended the Applicant's employment with full pay until such time that the matter is finalised.
On 19 March 2019, Ms Raven sent an email with respect to the January Risk Assessment confirming that approval had been obtained to replace the blankets and reels (the pool covers).
On 20 March 2019, the Applicant emailed an officer of SafeWork NSW in respect of various concerns he had with regards to the Respondent's pools.
On 22 March 2019, the Applicant provided a six page response to the Show Cause Letter.
On 29 March 2019, the Applicant lodged a fifth formal grievance, nine pages in length with the Respondent in respect of a number of allegations which he had also reported to SafeWork NSW.
On 15 April 2019, the Applicant wrote to the Respondent's Legal Department with respect to a "change made to the Aquatic Centres' (Epping and Macarthur Girls High School Pools) Terms and Conditions of entry by Ms Raven, specifically for the supervision age of swim school students." The request for advice referred to the Applicant observing an 8 year old in the pool without an adult.
On 23 April 2019, Ms Raven sent an email to Ms Grant copying Mr Radford titled, "Andrew". In the email, Ms Raven describes the impact of managing the Applicant has had on her, disclosing that since the issues had arisen she is has been medically treated for anxiety and heart palpitations, has trouble sleeping and elevated blood pressure.
Also on 23 April 2019, Mr Minoosepehr sent an email to Mr Grant also titled, "Andrew". In the email, he complains about the Applicant's conduct and explains the impact the issues have had on him and the team.
The Applicant sent a number of emails in April and May 2019 following up the grievances he had lodged with the Respondent, seeking information with respect to who would be investigating these and seeking a meeting with that person. On 6 May 2019, the Respondent confirmed that Mr Arthur Moses, (Human Resources Business Partner for the Respondent) had carriage of the Applicant's grievances. The Applicant met with Mr Moses 14 May 2019 and sent him a follow up email on 17 May 2019 providing him with further information in respect of his grievances.
On 25 June 2019, the Applicant received a letter from the Respondent setting out the Council's finding in relation to the five grievances. In short, the Respondent determined not to take any further steps with respect to the matters raised by the Applicant. The Applicant appealed that decision and by way of letter dated 29 August 2019, the Respondent informed the Applicant that the appeal was unsuccessful.
On 27 June 2019, the Applicant received a letter from the Respondent terminating his employment with the Respondent (the Termination Letter). The Applicant was terminated by way of letter signed by Acting Chief Executive Officer, Mr Rik Hart, dated 7 June 2019. The Termination Letter relevantly stated:
We note that you received a First Written Warning on 19 February 2019, in relation to your conduct at work. Specifically, breaches of the City of Parramatta Code of Conduct and repeated failure to follow the reasonable direction of management.
You also received a Second Written Warning on 7 March 2019 in relation to your conduct at work. Specifically repeated failure to follow the reasonable instruction of management.
You were informed that Council considers your conduct to be a serious concern as this demonstrates a failure to conduct yourself in a manner that is consistent with Council's expectations.
On 15 March, you received the outcome of further conduct concerns where it was substantiated that you again failed to follow the reasonable direction of management and you provided false and/ or misleading information on your timesheet.
Due to the repeated nature of your failure to follow the reasonable direction of management, it was determined that this constitutes serious misconduct which is described as, but not limited to, an employee refusing to carry out lawful and reasonable instruction that is consistent with the employee's contract of employment.
It was determined that providing false and/or misleading information amounts to serious misconduct which is described as, but not limited to, falsification, fraud or other inappropriate behavior.
As a result, Council feels there are sufficient grounds to terminate your contract of employment and you were provided with an opportunity to show cause as to why your employment with the City of Parramatta Council should not be terminated.
Sadly, this repeat in unacceptable conduct demonstrates a total lack of care on your behalf and confirms that you do not truly value the opportunity that was provided by the previous warnings.
In our view the relationship of trust, essential to ongoing employment, has been irreparably damaged.
Therefore, in light of your conduct described in our letter to you of 15 March 2019, and taking into account the earlier warnings issued to you, the decision has been made to bring your temporary employment to an end.
You will be provided with two (2) weeks' notice in accordance with clause 16 of your Offer of Temporary Employment, with payment in lieu."
On 23 July 2019, the Applicant submitted further concerns to SafeWork NSW with respect to the Respondent's operations contained in an 18 page document.
The Applicant claims the Commission should find that each of the following acts constitute an act of victimisation for the purpose of s 210 of the Act:
1. Ms Raven separating Mr Vaulin's timesheets and "keeping tabs" on him (Victimisation claim 1);
2. Mr Radford directing Mr Vaulin to attend a disciplinary meeting on 13 December 2018 in response to Mr Vaulin's email of the same date indicating that he had been working from home (Victimisation claim 2);
3. the Respondent issuing the First Letter of Allegations dated 14 December 2018 (Victimisation claim 3);
4. the Respondent issuing the Second Letter of Allegations dated 19 December 2018 (Victimisation claim 4);
5. the Respondent issuing the Third Letter of Allegations dated 24 January 2019 (Victimisation claim 5) ;
6. the Respondent issuing the Fourth Letter of Allegations dated 14 February 2019 (Victimisation claim 6);
7. each of the warnings that were issued in respect of the First and Third Letter of Allegations and the Show Cause Letter dated 15 March 2019 (Victimisation claim 7); and
8. the termination of Mr Vaulin's employment (Victimisation claim 8).
The Applicant's claim was that these acts of alleged victimisation occurred because of the nine alleged complaints identified in the background above.
Accordingly, for the Applicant to establish his claim under s 210(1), to the point of requiring the Respondent to call evidence to demonstrate the prohibited reason was not a substantial and operative cause of the action, the Applicant is required to prove that:
1. he has made a complaint; and
2. the complaint was about:
1. a workplace matter, and
2. a matter the Applicant considers is:
1. not safe, or
2. a risk to health; and
1. he has suffered a detriment as a result of an action by the Respondent; and
2. allege that the detriment suffered is because of the complaint.
Whether the Applicant has made a "complaint" and suffered a "detriment" is a question of fact and degree to be determined based on the evidence before the Commission. However, given the protective nature of the provisions, both terms are to be given a broad meaning.
Petrus Paulus Hendrikus Johannes Janssen v South Western Sydney Local Health District [2018] NSWIRComm 1022 considers the law with respect to determining whether a complaint is a "substantial and operative reason" for the act of victimisation:
"This is a question of fact that involves a consideration of the true reasons for those decisions….
…the respondent must establish on the evidence that the complaints were not a substantial and operative reason…
…the issue is not whether the decisions made by SWSLHD were the best or fairest decisions, or even decisions the Commission would make, but whether the evidence demonstrates [the] complaints were not a substantial and operative cause of those decisions…
…The enquiry involves a search for the reasoning actually employed by Mr Brick. The determination to be made by the court is one of fact, taking account of all the facts and circumstances of the case and available inferences."
This decision refers to, and applies, the judgment of Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] (2012) 248 CLR 500 (though this is the leading decision with respect to the statutory presumption under s 361 of the Fair Work Act 2009 (Cth)(FW Act)):
"To speak of objectively ascertained reasons risks the substitution by the court of its own view, rather than making a finding of fact as to the true reason of the decision-maker…
…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."
The decisions also refers to, and applies, the judgment of Branson J in Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 at [60]:
"However, where there is sufficient evidence to enable a positive finding to be made that none of the operative reasons for the carrying out of the conduct was a prohibited reason, this will, in my view, exhaust the operation of the section."
In Barclay, Gummow and Hayne J held at [127] that in determining what was the 'substantial and operative factor' for an adverse action being taken against an employee, "the reasons of the decision-maker at the time of the adverse action was taken which was the focus of the inquiry".
Further, in Barclay, French CJ and Crennan J held at [44]-[45] that:
"The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?".
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer."
In Barclay, Tracey J stated that in displaying the onus, "the employer will normally need to call evidence from the decision-maker to explain what actuated him or her to act to the employee's detriment."
In the decision of Sayed v CFMEU [2015] FCA 27, Mortimer J held that the statutory presumption:
"combined with the nature of the inquiry being one as to the 'particular reason' of the decision-maker (rather than a wholly objective inquiry), meant that the presumption would rarely be effectively rebutted without direct testimony from the decision maker."
In Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Limited [2015] FCA 1014, after analysing the authorities that are relevant to circumstances where more than one person is involved in the decision-making process his Honour Reeves J stated at [120] to [121]:
"These authorities therefore place the focus on the reasoning process that led to the ultimate decision. Where the decision was made by one person and her or his reasoning for the decision was based on one incident involving the employee, the task is relatively straightforward. The judgments in Barclay and BHP Coal require a focus on the reasoning process employed by that person to determine whether the employer has discharged its onus under s 361(1) of the FWA to show that the reasoning process did not include, as a substantial and operative reason, the alleged prohibited reason or reasons. However, the employer is only required to show that none of those reasons was a "substantial and operative reason". It does not need to negate every reason, however immaterial it was to the reasoning process underpinning the decision to dismiss the employee concerned: see Barclay at [104] and [127] per Gummow and Hayne JJ, and [140] per Heydon J.
On the other hand, where the reasoning process is dispersed through an assessment process involving a number of persons, the task is much more complicated. In that situation, I consider the judgment in Kodak requires me to examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision. This inquiry does not involve a roving search of the minds of the employees of the kind rejected by Heydon J in Barclay (at [146]). Nor does it involve an objective inquiry of the kind rejected in Barclay (at [44] and [126]), nor import some "unconscious" reasoning to the ultimate decision-maker that was also rejected in Barclay (at [124] per Gummow and Hayne JJ, and [146] per Heydon J). Instead, it focuses on the conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. If one or more of the reasons employed by one or more of them was a prohibited reason, that will impugn the ultimate decision. This is what I consider the Full Court meant by "inadvertently" adopting an "undisclosed prohibited reason" in Kodak (see at [117] above)."
Although the test enunciated by the High Court Barclay relates specifically to the statutory presumption under the FW Act, it has been held that the same test applies to the statutory presumption under the Act.
In the decision of Paula Lee and Ausgrid (No 6) at [93], the Full Bench of the Commission considered whether a complaint (within the meaning of s 210(1)(j)) was a substantial and operative cause of the detrimental action applied the High Court's decision Barclay, holding that "the direct testimony of the decision-maker is central to the respondent displacing the statutory presumption".
I have applied these authorities in considering the evidence in these proceedings.
Section 213 of the Act relevantly provides:
"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,
…….
(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,
…..
(e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat,
…….
(g) make consequential orders (including orders concerning continuity of service).
(3) An application for an order under this section must be made within 21 days after the contravention concerned.
(4) The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to:
(a) the reason for, and the length of, the delay in making the application, and
(b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and
(c) the conduct in relation to which the order is sought."
I have considered these provisions further in this decision below.
The allegations made by the Respondent are of a serious nature, cumulating in the termination of the Applicant's employment.
Taking each of these matters into account, I have found that there is sufficient reason to accept the application for victimisation as it relates to the out of time allegations.
Although the Applicant gave evidence that was consistent and he appeared to tell the truth, it was clear that he lacked insight into how he had contributed to the breakdown in the relationship with the Respondent, which was the "real reason" for the actions of the Respondent that he complains about. For example, while the Applicant gave evidence that he was particularly interested in safety issues, he did not acknowledge or appear to understand that his conduct was in fact a significant safety risk as evidenced by the impact it was having on others within his workplace, particularly Ms Raven. In a combative manner, he took umbrage at the issue of him staying beyond his rostered hours as being a safety issue, accusing Ms Raven of engaging in "double standards" because there were in his view, other more important safety issues she should be occupied with.
When the issue of his inappropriate conduct was raised with the Applicant, he did not modify his behaviour and retaliated with spite, initially against his managers, Ms Raven and Mr Minoosepehr, later broadening his attack to Ms Grant and Mr Radford.
On the other hand, the Respondent appears to have acted with some haste in pursuing the Applicant in respect of some of the issues that arose towards the end of his employment. In this regard, I accept the evidence of Ms Raven and Mr Minoosepehr that they were distressed by his conduct and from an assessment of the evidence, unable to deal with an increasingly difficult and complex situation.
In arguing that the statutory presumption had not been rebutted by the Respondent's evidence, the Applicant submitted that the evidence of Ms Raven and Mr Radford should not be accepted. With respect to Mr Radford, the decision maker in respect of the disciplinary matters except for the decision to terminate the Applicant's employment, the Applicant argued that Mr Radford was not a credible witness, as he was often evasive and non-responsive to the questions asked. Accordingly his evidence that his decisions to take any disciplinary action was not for the substantial and operative reasons that the Applicant made the complaints should be rejected.
Mr Radford presented as a forthright witness, although at times his evidence was evasive under cross examination. For example, Mr Radford maintained that the Emergency documentation task being undertaken by the Applicant could not be done by him while working from home, when clearly it could. However, I am unable conclude from Mr Radford's presentation that he did not tell the truth when he said that he did not take the disciplinary action he took against the Applicant because he had made workplace complaints about workplace health and safety matters. This is especially so when that evidence is considered in the context of the whole of the evidence about the conduct of the Applicant.
The Applicant submitted that the evidence of Ms Raven was relevant in that she was the only source of information for Mr Radford's decisions. The Applicant invited the Commission to find that Ms Raven was making complaints against the Applicant because she felt threatened by the safety concerns the Applicant was raising. Specifically the Applicant submitted that the Commission should find that there was a pattern of conduct whereby, Ms Raven makes a complaint to HR about the Applicant shortly after the Applicant raises a safety concern; those complaints were relied upon by Ms Grant whose investigation Mr Radford relied upon. Therefore, Mr Radford made the relevant disciplinary decisions for the substantive and operative reason that the Applicant made the relevant complaints.
The Applicant relied upon the example of Mr Raven complaining to Ms Grant about the Applicant's conduct by way of email on 28 November 2018 shortly after the Epping Pool risk assessment. I note that Ms Raven in that communication complained about a number of matters including the Applicant being defiant, the impact his conduct was having on the team as well as his failure to submit the shift reports in accordance with a direction to do so.
The Applicant further relied upon the following chronology in advancing this argument as an example of Mr Raven making a complaint about him after the Applicant made a safety complaint:
(a) between 8 November and 28 November there is nothing in Mr Vaulin's behaviour which could have caused Ms Raven to make a complaint to HR;
(b) at the risk assessment held on 23 November 2018 Mr Vaulin raised a number of safety issues with Ms Olennick;
(c) a few days later, Ms Raven wrote an email to HR complaining that Mr Vaulin is yet to complete the AM shift report and that it seems that Mr Vaulin is being defiant;
(d) shift reports were only introduced on 23 November 2018; and
(e) ordinarily she would have allowed staff a 'grace period' before making complaints about their failure to complete shift reports.
I am unable to draw the inference that Ms Raven was making complaints about the Applicant because he was raising complaints about workplace health and safety matters for the reasons set out below. I have considered this in the context of the chronology above in greater detail at [178]-[186] below.
The Applicant further relied upon the following chronology leading to Ms Raven's email of 22 January 2019 to advance his case that Ms Raven made complaints to HR about him after receiving a safety concern, namely in respect of the 8 year old child attending the Epping Pool without adult supervision (see [65] above):
(a) Mr Vaulin sent an email to Mr Minoosephr on 12 January 2019 with his concerns about Ms Raven's decision to allow a child to swim unsupervised;
(b) Ms Raven replied to Mr Vaulin's email on 14 January 2019;
(c) Mr Vaulin replied on Ms Raven's email on 15 January 2019 to say he disagrees;
(d) Mr Vaulin was away on leave between 14 January until 21 January 2019 and therefore nothing happened during that period in terms of Mr Vaulin's conduct which could have caused Ms Raven to make a complaint to HR about Mr Vaulin's behaviour;
(e) upon returning from leave, on 21 January 2019, Mr Vaulin sent an email to Ms Raven saying that he thought it was best if the issue about children swimming unsupervised was referred to HR; and
(f) the very next day on 22 January 2019, Ms Raven sent an email to Ms Grant from HR to make a complaint about Mr Vaulin.
The content of the emails which included the workplace health and safety complaints are relevant to analysis of Ms Raven's motivations for complaining to HR about the Applicant. The tone and content of the Applicant's email to Mr Minoosepehr on 12 January 2019 demonstrate that he was defiant towards Ms Raven. The email demands a response in writing to a number of questions posed in it and the Applicant purports to speak on behalf of the other Duty Managers at the Aquatic Centre. Before the Applicant escalated his complaint to HR, Ms Raven emailed Ms Grant, Mr Radford and Mr Clifton on 14 January 2019, before the Applicant escalated the issue himself to HR. In the email, Ms Raven outlined her concerns including:
1. That it was an example of the Applicant undermining management;
2. The Applicant had not raised the concerns with either herself or Ms Mostafa before sending the email when they were both available and onsite to discuss his concerns;
3. It seemed the Applicant had become the spokesperson for the team when it came to "Employment Protection"; and
4. The Applicant had sent the email to Duty Managers on Saturday evening at 11:50 pm more than 5 days after his initial concerns.
The email also expressed concern with respect to an interaction the Applicant had had with Ms Mostafa the previous week. In sending this email, Ms Raven was clearly concerned with the Applicant's conduct and was engaged in an ongoing dialogue with Ms Grant, Mr Clifton and Mr Radford with respect to the issues she was experiencing with her management of the Applicant.
The email of 22 January 2019 was sent to Ms Grant by Ms Raven following a meeting conducted with respect to her concerns with the Applicant's conduct also involving Mr Radford and Mr Clifton. At this point the Applicant had sent the 9 December 2018 emails in which he had made a number of adverse comments about Mr Raven to a significant audience. Ms Raven described in evidence that the 9 December 2018 emails had had a significant negative impact upon her personally. The Applicant had not apologised for that conduct and demonstrated limited insight into the impact it may have had on Ms Raven.
Ms Raven gave evidence that she felt as though the Applicant was attacking her and observed that he had only raised health and safety issues following the meeting she had with him on 7 November 2018 meeting: Exhibit R2 at [38]. From the evidence of the Applicant's conduct, Ms Raven's belief was well founded.
I am unable to find that the there was a pattern of conduct whereby, Ms Raven made complaints to HR about the Applicant shortly after Applicant raises a safety concern because those communications raised a workplace health and safety issue. The real reason Ms Raven was referring those matters to HR was because of the Applicant's conduct which included reporting such matters in an inappropriate and often aggressive manner.
The Applicant also submitted that the Commission should draw a Jones v Dunkel inference with respect to the absence of evidence being given by Mr Clifton, Ms Olennick and Mr Hart. The Applicant argued that Mr Clifton ought to have given evidence because Mr Radford relied upon the investigations conducted by him and Ms Grant in forming his decisions. The primary evidence relied upon by the Respondent was extensively canvassed in the proceedings. Ms Grant gave a statement, attaching 247 pages of annexures relating to the investigations including communications with Mr Radford. In the circumstances, the Commission will not exercise its discretion to make a Jones v Dunkel inference with regard to the absence of evidence of Mr Clifton.
On the other hand, Ms Olennick was a direct participant and witness to the events relating to the Fourth Letter of Allegation ultimately leading to the termination of the Applicant's employment. The absence of Ms Olennick's account with respect of the 30 January 2019 risk assessment is problematic for the Respondent. However, what is even more problematic for the Respondent is the absence of evidence from Mr Hart, who was the person who decided to termination the Applicant's employment. I have considered the Respondent's failure to discharge the reverse onus with regard to termination of the Applicant's employment in further detail below.
The Respondent submitted that apart from the exception of alleged complaints 4 and 9 (being those made during the 7 November 2018 meeting and the Applicant's report of the 8 year old child as attending the Epping Pool unsupervised) all of the other alleged complaints identified by the Applicant could not be considered "complaints" pursuant to s 210 (1)(j) of the Act. As already noted, the protective nature of the relevant legislative provisions is such that it is necessary for the Commission to take a broad approach in determining whether an applicant had made a "complaint" pursuant to the Act. Even so, while I have determined the victimisation claims on other grounds, I agree that it is doubtful that the Applicant was raising a complaint about a work health and safety matters on all of the occasions identified by him in this matter.
In particular, to the extent that those complaints related to the Applicant's participation in respect of the risk assessment of the Epping Pool, I think it is doubtful that his feedback would be construed as a complaint about a workplace matter that the person considers is not safe or a risk to health. That is because such participation was a task associated with the Applicant's role as Duty Manager and it is difficult to see how it could be construed as "grievance" in these circumstances.
Although Ms Raven denied that she was "keeping tabs" on the Applicant it is likely that by 4 December 2018, Ms Raven was observing the Applicant in the performance of his role more closely that she had previously because she had concerns with respect to his attitude and behavior, specifically that he was staying back beyond his scheduled shifts without approval: see [78] of Exhibit R2. At this point, the Applicant had been reminded on a number of occasions not to engage in this conduct:
1. On 29 October 2018 the Applicant received an email from Ms Raven explaining that he cannot stay back onsite after his rostered working hours.
2. On 29 October 2018 an email was sent to various aquatic team members including the Applicant advising that no employee should be onsite alone or work past their rostered time.
3. On 7 November 2018 Ms Raven and Mr Minoosepehr had a meeting with him to address these concerns.
To the extent that Ms Raven was "keeping tabs" on the Applicant, this was the "true reason" for her doing so, not because of any of the relevant complaints the Applicant had made. Keeping watch on the whereabouts of an employee in such circumstances is legitimate management action.
Further, I am also unable to find that "keeping tabs" on the Applicant by monitoring his timesheets and work patterns (through monitoring the Kronos System) was a detriment to him. The Applicant has not demonstrated that by Ms Raven "keeping tabs" on him, he suffered "some injury, hardship or loss or otherwise" demonstrated that he had been treated "harshly, unfairly or to his disadvantage in or in relation to" his employment.
Specifically, I am unable to find that Ms Raven was watching the Applicant more closely because he made a complaint about a workplace matter during the meeting of 7 November 2018 (as was alleged), namely the safety risk posed by the ladder at the Epping Centre and the concerns he raised with respect to his workload.
Following the meeting of 7 November 2018, Ms Raven emailed Ms Grant in the following terms:
Hi Hana,
Ali and I met with Andrew this morning to discuss the issues we raised with you yesterday. Andrew was very "fired" up at the beginning of the conversation and stated that he will be going to HR with his safety issues as he believes that there are so many more safety issues that need to be addressed. He went on to explain that there was an issue with a ladder that was at height and even though we have had this issue sorted there is still outstanding problems with the resolve that has been put into place. I was not made aware of this by Ali or the Duty Managers including Andrew.
As the conversation went on it seems that not only Andrew but the other Duty Managers have been put under pressure by Ali to complete tasks but they have not been allocated specific non-operational time to be able to complete these task. I have asked Ali a number of times over the last month what tasks he has delegated to the Duty Managers other than the finance and emergency evacuation plan for Macarthur Girls and he has stated that he hasn't.
I need to now discuss this with Ali further but fear that Ali may have overloaded his team with work that he is not able to complete or has difficulty completing due to his language barrier.
In the interim I have rostered 3 hours per day Monday to Friday for the Duty Managers to complete the work they have been delegated. I have also sent an email to the Duty Managers asking them to copy me in on all correspondence they send between themselves and Ali so I can assist where possible.
Watch this space - it very unlike Andrew to get so fired up, I'm sure he will be in contact with Mel O, I asked him to contact Mel regarding the risks that he has identified. He did not want to discuss them with me for some reason but I'm sure they will end up back with me in the process anyway.
Thank you for your support, I'll keep a close eye/ear out and we'll see how we go from there.
Kind regards,
Suzanne Raven
In the email, Ms Raven expresses concern about the workload of the Duty Managers as reported by the Applicant and identifies steps she intends to take to address that issue. She further states that she has referred the Applicant to Ms Olennick regarding the "risks that he had identified".
The actions Ms Raven had taken and foreshadowed in the email are inconsistent with the notion that she was taking retributive action against the Applicant because he had raised those matters. To the contrary, it is evident that Ms Raven was attempting to address those matters raised by the Applicant, although she had concerns with respect to his behavior in the meeting.
Similarly, I can see no connection between Ms Raven "keeping tabs" on the Applicant and the matters he raised at the 23 November 2018 risk assessment. The Applicant claimed that Ms Raven was making complaints against the Applicant to HR because she was threatened by him raising workplace health and safety matters and in particular, his participation in the risk assessment and later conversation with Ms Olennick.
The Applicant was asked to come in to work one hour early to participate in the 23 November 2018 risk assessment. It is most likely that the purpose of the Applicant's attendance at the risk assessment on that occasion was to allow him to identify the health and safety risks at the centre and develop a plan to appropriately manage these, drawing upon his experience as Duty Manager. The Applicant gave evidence that during the risk assessment, he identified the process of putting the pool covers on and off as dangerous with a risk that staff may be hit by the reels. Ms Olennick responded by arranging for a colleague to observe these being put on and taken off on 30 January 2019.
The Applicant argued that that the Commission should find that the conversation Ms Raven learned of between the Applicant and Ms Olennick about safety issues in the carpark after the assessment was a complaint about workplace health and safety matters and caused her to "keep tabs" on the Applicant. The Applicant bears the onus of establishing that he made a complaint of the sort envisaged by s 210 (f) of the Act. Despite the extensive material filed by the Applicant in support of his matter, there was no direct account provided by him of the conversation he had with Ms Olennick in the carpark after the risk assessment. Although Ms Raven conceded under cross-examination that she understood the Applicant had raised safety issues with Ms Olennick in the carpark after the risk assessment, the only detail the Commission has with respect to that conversation was contained in an email from Ms Raven to Ms Grant after the relevant events referred to below.
Ms Grant gave evidence that also on 28 November 2018, Ms Raven called her and expressed concern with respect to the Applicant's welfare, stating that he was acting out of character. She says that Mr Grant further stated that she was concerned about the impact this was having on Mr Minoosepehr whom she had offered that he attend the Employee Assistance Program: Ex R6 at [17].
The email sent later that day from Ms Raven more or less replicates the evidence of what had been discussed between her and Ms Grant earlier that day. It raised concerns with respect to the Applicant's behaviour stating that since about August (2018), his attitude had changed and "seemed not to be engaged and bitter." In summary she stated that:
1. the Applicant had approached Ms Olennick in the car park after the site inspection to "vent his current thoughts";
2. the Applicant had not complied with the direction to complete the Duty Managers report and that it seemed the Applicant was being defiant; and
3. the Applicant's behaviour is impacting upon the entire team and in particular, Mr Minoosepehr.
Although Ms Raven stated in her evidence that the email was sent on 24 November and 28 November, Ms Grant gave evidence that she received the email on 28 November 2018. It would appear from the evidence that the email was sent on 28 November 2018.
The fact that Ms Raven was concerned with respect to the Applicant's failure to submit the Duty Managers reports, though a newly introduced policy, can be understood in the context of the other issues she had observed since August with respect to the Applicant's behaviour and conduct. The Applicant's pattern of behaviour of not following reasonable management direction was identified prior to the 7 November 2018 meeting.
The email evidences that Ms Raven was concerned that the Applicant approached Ms Olennick alone after the risk assessment to "vent his current thoughts". It is understandable that Ms Raven would have been concerned that the Applicant did not raise these matters (whatever these may have been) during the risk assessment itself, instead proceeded to address them by way of "venting" in the carpark.
There is nothing else in the evidence that supports the Applicant's case that Ms Raven was outlining these issues because she felt threatened by the Applicant because he was making the relevant complaints. It is far more likely that Ms Raven raised the issues because she had genuinely held concerns with respect to the Applicant's conduct and behaviour, which included him approaching Mr Olennick after the risk assessment to "vent". I also find that Ms Raven was genuinely concerned that the Applicant's behaviour was having an impact on the welfare of the team and Mr Minoosepehr in particular. To the extent that Ms Raven was "keeping tabs" on the Applicant, the reason she was doing so was because of the concerns she had raised with Ms Grant about the Applicant's behaviour and conduct.
There is serious doubt as to whether the Applicant being asked to attend the meeting constitutes a "detriment". However, in any event, I am unable to find that the Applicant was victimised for making complaints by being asked to attend the disciplinary meeting with respect to him deciding he would work from home without seeking prior approval on 13 December 2018.
The Respondent's submission with respect to the differential treatment of Mr Radford and Ms Raven does not address the fundamental difference in the roles occupied by them and the Applicant. While the work the Applicant was proposing to do at home could be done offsite, it is not unreasonable for the Respondent to require and expect prior approval for the Applicant to conduct that work away from his usual place of work.
While the requirement to attend the meeting to discuss the matter might be considered a heavy handed response to the situation, there is no evidence that connects the reasons of the Applicant making the complaints with the decision to require him to attend the meeting. To the contrary, the evidence overwhelmingly supports the proposition that the substantial and operative reasons for the Applicant being required to attend the meeting was because of the concern that he did not seek prior approval to work from home before deciding to do so. It is also relevant that this issue was raised in the context of the Respondent having ongoing concerns with respect to the Applicant's attitude and behavior. At the time he called the meeting, Mr Radford was aware of the first and second 9 December 2018 emails sent by the Applicant. In response to those, on 10 December 2018, Mr Radford sent an email to Ms Raven, Mr Moore and Ms Grant stating:
"This guys' behavior and accusations are having a significant impact on the Aquatics team and I find it curious that his promise to outline a litany of WHS and HR breaches has come to nothing. Andrew's email is basically a rambling version of what he has already told us recently.
In my view, he needs to be taken head on (and not danced around), otherwise we run the risk of losing one of the best Aquatic Managers in the industry and further destabilising our Aquatic team, who are doing a fantastic job."
The contents of this email are consistent with the evidence Mr Radford gave before the Commission that the motivation for calling the meeting was to address the issue of the Applicant working from home without prior approval but also to take action with respect to the Applicant's ongoing behavior which he had become concerned about.
The Respondent has satisfied the Commission on the balance of probabilities that the relevant complaints were not a substantial and operative cause of the Respondent requiring the Applicant to attend the meeting as a result of him working from home without seeking prior approval.
In respect of the claim that the Applicant was victimised by the issuing of the First Letter of Allegations and First Written Warning, (and also in respect of Victimisation claims 4, 5 and 6 considered below), the Respondent made the following submissions at [105]-[106] of the Respondent's Closing Submissions:
"[105] In cross-examination, Mr Radford described the process in which he engaged before issuing both show cause letters and outcome letters. He stated this was the first time he had been required to do this and took the role very seriously. He liaised primarily with Ms Grant, but also made his decisions based on input from Mr Clifton. He described himself as ultimately being [responsible] for the content and issue of those pieces of correspondence.
[106] Each allegation letter was issued based on factual circumstances that had come to the attention of Mr Radford, usually through Ms Grant although he also noted bi-weekly meetings with his direct reports including Ms Raven who updated him on matters within their teams. In discharging it's onus and proving on the balance of probabilities that each allegation was the substantial and operative reason for the issuing of the letters, and that the decision to issue the letters was not influenced by any "complaints" made by the applicant, the Respondent examines those reasons and submits as follows."
With respect to whether the Applicant was victimised by receiving the First Letter of Allegations and the First Written Warning, the Respondent submitted at [107]-[109] of the Respondent's Closing Submissions:
"[107] The reasons for issuing the First Allegations Letter were that:
(i) The applicant had sent two inappropriate emails to Ms Raven and members of the aquatics team on 9 December 2018. This fact is not disputed. Nor is the fact that it was not appropriate for the applicant to send these emails.
(ii) The applicant had continued to work beyond his finishing time without prior approval and worked back alone at the Epping pool contrary to Council's WHS policy and a direction not to do so. This fact is not disputed, and the applicant's argument is not that he did not stay back onsite after his rostered working hours, but that he was justified in doing so.
(iii) When Ms Raven met with the applicant to address the above matter, the applicant displayed aggressive behaviour towards her. Ms Raven reported this issue to Ms Grant. The letter was issued on this point, out of concerns of the applicant's inappropriate behaviour toward another staff member.
(iv) The applicant regularly failed to log into his shift using the Kronos Biometrics System and regularly failed to complete documentation or submitted it late. While the applicant claimed that other staff members also failed to complete these tasks but weren't issued disciplinary letters, the evidence demonstrated otherwise.
(a) Matthew Healey had also received an email reminder to use to Kronos Biometric System.
(b) Gemma Lytwyn had received a text message from Ali Minoosepehr addressing her failure to use the Kronos Biometric System on one occasion.
However, the applicant was the only staff member that repeatedly failed to modify his behaviour. Matthew Healey stated he has "been pretty good at completing that paper work", referring to shift reports. Tristan Daniell stated that "on reflection, whilst I may well shuffle them down the list as a priority, I did get the shift reports done."
Further, the applicant was the only staff member deliberately refusing to scan in shift reports because of his personal views about the format of the shift report and the process of scanning it to Mr Minoosepehr and Ms Raven as requested.
The Respondent had taken reasonable steps to notify the applicant of his failure and provided him the opportunity to rectify this before issuing him an allegations letter. Considering the above outlined factual circumstances the reasoning actually employed by Mr Radford had nothing to do with any "complaint" made by the applicant.
(v) The applicant completed his time sheet signing out 2.5 hours after his rostered shift finished, effectively requesting payment for additional hours relating to approximately 1.5 hours conversing with non-aquatic staff. The Respondent issued the letter on this point out of a concern for breach of Council policy.
(vi) The applicant was alleged to have performed a water rescue in circumstances where it was unnecessary, and this was identified as a performance and safety concern. Again, there is no evidence to say that this was not the 'substantial and operative reason' for the issuing of the letter on this point.
(vii) The applicant sent an email to Mr Minoosepehr during the early hours of the morning on 13 December 2018 stating he would be working from home on that same day and without obtaining any prior approval to do so. There was no reason for applicant then proceeded to do this without approval, thereby constituting an unauthorised absence from work.
[108] The outcomes letter substantiated the majority of these allegations. Under cross-examination Mr Radford steadfastly maintained that there was no capacity for any employee in a Pool Duty Manager role to work from home. While Mr Radford conceded that he, himself, worked from home occasionally, that was in compliance with Council's policies requiring prior approval to do so. The applicant not only was not entitled to work from home, he had not been granted approval to do so. The day off work to be paid in-lieu, was not related in any way to the applicant's unilateral statement that he was going to work from home.
[109] In line with Commissioner Newall's comments noted above in Health Services Union, the potential engagement in a disciplinary process, conducted properly, and based on appropriately founded allegations cannot amount to a "detriment". Mr Radford's actions in issuing this first letter with the subject allegations were properly founded and meet this test. The Third Alleged Act of Victimisation does not amount to victimisation under the IR Act."
The Applicant's submissions did not address the evidentiary basis upon which the Commission should find that the substantive and operative reason the First Letter of Allegations and First Written Warning was issued was because the Applicant had made the relevant complaints. There is no direct evidence to support the Applicant's case in this regard. Mr Radford who was ultimately responsible for issuing the letters gave direct evidence of the reasons he issued the First Letter of Allegations and First Written Warning denying he did so because of the Applicant's complaints.
I accept the evidence of Mr Radford that he decided to issue the First Letter of Allegations and First Written Warning after engaging primarily with Ms Grant, but also Mr Clifton and Ms Raven. The Respondent's case that the substantive and operative reason the First Letter of Allegations and First Written Warning was issued was not because of the workplace health and safety matters raised by him is also supported by the actions it had taken with respect to the Applicant's complaints as referred to above at [143].
In determining the substantial and operative cause of the issuing of the First letter of Allegation and First Written Warning, the Applicant's arguments required a drawing of an inference that because the allegations were unreasonable (on his case), it should be inferred that they were made because of the Applicant's complaints about workplace health and safety matters.
There is some merit in the Applicant's contention that the Respondent had "beefed up" the allegations and included some that might not otherwise have been levelled at another employee having engaged in the same conduct, such as failing to sign-in using the Kronos system and not submitting shift reports. However, the allegations need to be considered within the context of the much broader concern raised by Ms Raven with respect to the Applicant's conduct and willingness to follow the reasonable directions of the Respondent. Considered within that context, the inclusion of all of the allegations were fair and reasonable and provided the Applicant with a genuine opportunity to answer the issues the Respondent had with respect to his conduct at that time.
However, whether the allegations were fair or reasonable or constituted differential treatment from other employees is not the question for determination by the Commission. The question the Commission is required to answer is whether the substantial and operative reason for the alleged acts of victimisation was because of the relevant complaints the Applicant made. For the reasons outlined above, there is not an evidentiary basis to make that finding.
Again, the Applicant's written submissions did not address the evidentiary basis upon which the Commission should find that the substantive and operative reason the Second Letter of Allegations was issued was because the Applicant had made complaints about workplace health and safety matters.
The Applicant's submission at [7.5] of the Applicant's Final Submissions as set out above is wrong. It does not follow that if the Commission finds that the Respondent treated the Applicant in a harsh and unfair manner and in a manner more disadvantageous than how other employees would have been treated, than the issuing of the Second Letter of Allegations constitutes an act of victimisation for the purpose of s 210 of the Act.
Again, there is no direct evidence to support the Applicant's case that the Applicant was victimised because of his complaints. Mr Radford was also responsible for issuing the Second Letter of Allegations and he gave direct evidence that he did not do so because of the Applicant's complaints.
While, Mr Radford conceded under cross-examination that another employee may not have received the letter of allegations had they send the email to Mr Timeus, the broader context of the Applicant's conduct including knowledge of the issues raised in the First Letter of Allegations influenced the actions taken in the circumstances. Considered within that context and noting the admission of the Applicant that the email to Mr Timeus was not appropriate, it was appropriate for the Respondent to address the issue with the Applicant and provide him with a genuine opportunity to answer the concerns raised. That is not to say that the issues may have been better addressed in a less formal way. Indeed, the Applicant's response to the Second Letter of Allegations resulted in no further formal action being taken by the Respondent in respect of the matter. In this regard, I disagree that the Applicant suffered any detriment as a consequence of receiving the second Letter of Allegations.
In determining the substantial and operative cause of the issuing of the Second Letter of Allegations, the Applicant's arguments required a drawing of an inference that because the Applicant was treated in a harsh and unfair manner and in a manner more disadvantageous than how other employees would have been treated (in his submission), it should be inferred that they were made because of the Applicant's complaints about workplace health and safety matters.
I am disinclined to make a finding that the Respondent in view of all of the evidence, including:
1. Mr Radford's own account of why the Second Letter of Allegations was issued;
2. The evidence of the Applicant's conduct both prior to the email to Mr Timeus and the admitted inappropriateness of the email itself; and
3. the actions the Respondent took with respect to the Applicant's complaints about workplace health and safety matters as referred to above at [143].
The question the Commission is required to answer is whether the substantial and operative reason for the alleged act of victimisation was because of the relevant complaints. For the reasons outlined above, there is not an evidentiary basis to make that finding. It is far more likely that the substantive and operative reason the Second Letter of Allegations was issued was because of the Respondent's concern with respect to the matters raised therein.
The Respondent's submitted in respect of the Victimisation claim 5 at [115]-[117] of the Respondent's Closing Submissions:
"[115] The substantive and operative reasons Mr Radford issued the third allegations letter were that:
(i) The applicant had continued to fail to scan in shift reports. This is behaviour that had continued since mid-December 2018 despite earlier reminders and warnings and included an oral reminder from Mr Minoosepehr had been provided on 10 January 2019 after he had witnessed the applicant placing the report in the wrong location and failing to scan it.
(ii) There were further occasions identified where the had (sic) Applicant had worked past his rostered working hours without prior approval.
(iii) The Applicant had taken bookings from Swim School at Epping Aquatic Centre without payment, after being instructed not to do this. The factual basis of this allegation is not contested by the Applicant. The Respondent therefore was addressing a concern about the Applicant's performance of his role, and this was the true and actual reason for the issuing of this allegation. There is no evidence to suggest otherwise.
[116] Each of these allegations had a proper basis. The outcome letter confirmed that the applicant had failed to follow the reasonable instruction of management in submitting shift reports as required. The allegation concerning staying late at work was not substantiated after considering the applicant's response - but the explanation was not available at the time the allegation was made and the raising of the allegation was reasonable in those circumstances.
[117] The respondent submits that, again, the applicant's potential engagement in a disciplinary process, conducted properly, and based on appropriately founded allegations cannot amount to a "detriment". Mr Radford's actions meet this test in relation to the third allegations letter. The Fifth Alleged Act of Victimisation does not amount to victimisation under the IR Act."
The Applicant's written submissions did not address the evidentiary basis upon which the Commission should find that the substantive and operative reason the Third Letter of Allegations was issued was because the Applicant had made complaints about workplace health and safety matters.
The Applicant's submission at [8.13] of the Applicant's Final Submissions suggests that if the Commission were to find that the Applicant had been treated differently to other employees, it follows that a finding should be made that the Applicant was victimised. It does not follow that if the Commission finds that the Respondent treated the Applicant in a manner more disadvantageous than how other employees would have been treated, than the issuing of the Third Disciplinary Letter and Second Written Warning constituted an act of victimisation for the purpose of s 210.
There is no direct evidence to support the Applicant's case that the Applicant was victimised because of his complaints. Mr Radford was also responsible for issuing the Third Letter of Allegations and Second Written Warning and he gave direct evidence which I accept that he did not do so because of the Applicant's complaints.
While, Mr Radford conceded under cross-examination that another employee may not have been subjected to a formal disciplinary process for not submitting the shift reports I find that, the broader context of the Applicant's conduct including knowledge of the issues raised in the First and Second Letter of Allegations influenced the decision to take formal disciplinary action. Considered within that context it was appropriate for the Respondent to address the issue with the Applicant and provide him with a genuine opportunity to answer the concerns raised. Indeed, the Applicant's response to the Third Letter of Allegations resulted in the allegation relating to staying back beyond rostered shift times not being sustained.
The Applicant submitted that it was inappropriate for the issue of the Applicant staying back being raised because there was no safety issue associated with that conduct when other people were present at the pools. While that may be the case, it was appropriate for the Respondent to raise a legitimate concern and require a response to the allegation that he continued to stay back after rostered hours without prior approval given the Applicant had been instructed in respect of this previously.
I am disinclined to make a finding that the Respondent victimised the Applicant because he had made complaints about workplace health and safety matters in view of all of the evidence, including:
1. Mr Radford's own account of why the Third Letter of Allegations and Second Written Warning was issued;
2. The email sent on 22 January 2019 from Ms Raven to Mr Radford, Ms Grant and Mr Clifton raising the exact concerns the subject of the Third Letter of Allegations: see [68] above;
3. The evidence of the Applicant's conduct prior to the Third Letter of Allegations being issued; and
4. The actions the Respondent took with respect to the Applicant's complaints about workplace health and safety matters as referred to above at [143].
It is far more likely that the substantive and operative reason the Third Letter of Allegations and Second Written Warning was issued was because of the Respondent's concern with respect to the matters raised therein, within the broader context of ongoing concerns being raised by Ms Raven about the Applicant's conduct in the workplace.
The Respondent submitted with respect to victimisation 6 at [118]-[120] of the Respondent's Closing Submissions:
"[118] The substantive and operative reason for Mr Radford's decision to issue the fourth allegations letter were that he was satisfied there was a basis for alleging that the applicant had stayed past his rostered shift end time, had not been invited to participate in the risk assessment, failed to go home when directed to do so and had completed a timesheet report putting his finish time at 3:00pm stating he had been involved in the risk assessment.
[119] Each of these allegations had a proper basis on the information available to Mr Radford.
[120] The respondent submits that, again, the applicant's potential engagement in a disciplinary process, conducted properly, and based on appropriately founded allegations cannot amount to a "detriment". Mr Radford's actions meet this test in relation to the fourth allegations letter. The Sixth Alleged Act of Victimisation does not amount to victimisation under the IR Act."
The Applicant's submissions largely go to the unfairness of the Respondent's investigation into the 30 January 2019 risk assessment. However, this does not address the evidentiary basis upon which the Commission can find that the substantive and operative reason the Fourth Letter of Allegations and outcome letter was issued was because the Applicant had made complaints about workplace health and safety matters.
In my view, the Applicant was correct in his assertions that the investigation of the 30 January 2019 was unfair and the outcome harsh. In particular, the finding that the Applicant was fraudulent in signing off his timesheet at a time later than his rostered shift was incorrect. There is a question of whether the Applicant had stayed back after his rostered shift without permission (which he had been directed not to do several times), but this does not mean that when he signed off his timesheet he committed an act of fraud.
The evidence before the Commission also supports the conclusion that the Applicant shortly after being asked to leave the risk assessment did so.
By this stage, the relationship between the Applicant and Ms Raven was clearly strained. The Applicant's decision to join the risk assessment when he had not been invited to participate, when he didn't ask permission to do so and his shift had concluded contributed to the Respondent's decision to issue him with the Fourth Disciplinary Letter. So too was his decision to stay back and work additional time without prior permission to do so.
Mr Radford was also responsible for issuing the Fourth Letter of Allegations and he gave direct evidence which I accept that he did not do so because of the Applicant's complaints about workplace health and safety matters.
I find that the real reason the Fourth Letter of Allegation was issued was because of the concerns with respect to the Applicant's behaviour and conduct in the context of a number of incidents of concern being considered by management.
I am disinclined to make a finding that the Respondent victimised the Applicant because he had made complaints about workplace health and safety matters in view of all of the evidence, including:
1. Mr Radford's own account of why the Fourth Letter of Allegations was issued;
2. The email sent on 31 January 2019 from Ms Raven to Mr Radford, Ms Grant and Mr Clifton raising the exact concerns that raising the subject of the Fourth Letter of Allegations: see [74] above;
3. The evidence of the Applicant's conduct prior to the Fourth Letter of Allegations being issued; and
4. The actions the Respondent took with respect to the Applicant's complaints about workplace health and safety matters as referred to above at [143].
It is far more likely that the substantive and operative reason the Fourth Letter of Allegations and outcome letter was issued was because of the Respondent's concern with respect to the matters raised therein, within the broader context of ongoing concerns being raised by Ms Raven about the Applicant's conduct in the workplace.
I agree with the Applicant that the Respondent did not discharge its onus of proof to demonstrate that the "real reason" the Applicant's employment was terminated was not because he had made the workplace complaints about workplace health and safety matters.
The retirement of Mr Hart from the Respondent is not a sufficient explanation for his failure to give evidence. As the reasons for his decision to terminate the Applicate are peculiarly within his knowledge, without giving evidence to the Commission in respect of the reasons for his decision, the Respondent is unable to make out its defence. I note also that the Respondent did not place before the Commission evidence with respect to the briefing materials provided to Mr Hart recommending the termination of his employment. Even though the Respondent demonstrated through evidence that there were real and legitimate concerns with respect to the Applicant's conduct at the time his employment as terminated, in the absence of evidence from the decision-maker, their defence must fail.
The Respondent made the following submissions with respect the appropriateness of the Applicant being reinstated to the Respondent in the Respondent's Closing Submissions:
"[130] The respondent submits that, even if the Commission finds that victimisation has occurred, then it should only make orders that are commensurate with the facts as disclosed by the evidence.
[131] The applicant currently works at Fairfield Council as a Life Guard. He has not expressed interest in four permanent roles that have become available at Fairfield Council. He stated he sought reinstatement with the respondent. He has not sought to mitigate his potential loss.
[132] The applicant's termination letter not only referred to previous warning letters but also stated that "In our view the relationship of trust, essential to ongoing employment, has been irreparably damaged." The respondent maintains that position.
[133] The applicant's statement states that Ms Raven was the only person at Epping whom he had a difficult working relationship with. Mr Minoosepehr and Ms Mostafa have given evidence that contradicts this. Ms Grant offered counselling to both Ms Mostafa and Mr Minoosepehr.
[134] Ms Raven has stated that she has sought medical treatment since about December 2018 for symptoms associated with dealing with the applicant. She documented her concerns.
[135] The applicant accepted that his conduct, particularly his emails of 9 November 2018, was completely inappropriate. He suggests that "having had the opportunity to reflect for nearly a year, and having had tie for my emotions to cool, I believe that although I was raising legitimate concerns in my email, I accept that I could have raised my concerns differently." A similar comment was made in relation to the email to Mr Timeus.
[136] The applicant's comments concerning his emotions speak for themselves and reflect Ms Raven's evidence that, for example, at the meeting of 7 November 2018 he was 'fired up'.
[137] The applicant was asked whether he had apologised for his comments to Ms Raven, and he suggested that there was some form of confidentiality preventing him from doing so. He maintained though that he could return to work successfully with Ms Raven, although this was provided that his concerns were addressed.
[138] The respondent submits that the applicant's answer suggest he lacks insight into the effect his conduct and behaviour had on people. Even Mr Radford expressed concerns with the applicant's presentation.
[139] The respondent submits that if the Commission is minded to make orders under section 213(2), then these should be under sub-section 213(2)(c)."
Section 213 (2) of the Act gives the Commission discretion to order a remedy if an Applicant is successful in a claim that she or he was victimised. The remedial provisions are structured differently to those applying to unfair dismissals in s 89 contained in Part 6 of the Act. In particular, when an employee is successful in a victimisation claim, there is no primary remedy of reinstatement.
The Applicant submitted that the Commission should reinstate the Applicant because that would put him back in the position he would have been had the wrong not occurred. Reliance was placed upon the decision of the Full Federal Court in Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181 to support this proposition. However, the facts of that case are materially different to the one at hand as the Full Court found in that matter that the victimised employee would have been terminated for proper reasons anyway had the wrong not occurred: see [171]. The Full Court therefore concluded that the employee "did not sustain any economic loss because of the contravention. His employment would have been terminated absent the contravention": see [176].
It is appropriate that the Commission consider the practicability of the Applicant being reinstated to his position with the Respondent in determining whether to exercise the discretion to reinstate him.
In Dumas v Industrial Relations Secretary (on behalf of Department of Communities and Justice) [2019] NSWIRComm 1071, a Full Bench of the Commission considered the requirement to consider the practicability of reinstatement in unfair dismissal proceedings pursuant to s 89 of the Act. Although the statutory context of s 213 of the Act is different, the principles considered in Dumas are none the less instructive. In Dumas, the Full Bench stated at [35]-[40]:
"[35] What is clear from the authorities is that there is a range of circumstances that may make reinstatement impracticable. It one context, it may be impracticable because it is impossible, for example where the position in question no longer exists. In another context, it may be impracticable to reinstate an employee because the break down in the employment relationship is such that it simply is "not practicable" to expect that the relationship issues that led to the dismissal of the employee can be overcome and the employment relationship effectively re-established. The later example was clearly envisaged in the second reading speech introducing the remedy scheme for unfair dismissals. This example also makes clear that whether it is practicable to reinstate an employee means something more than "possible".
[36] As stated by Wilcox CJ in Nicholson at pages 60-61:
"It is important to note that Parliament stopped short of requiring that, for general compensation to be available, reinstatement be impossible. The word 'impracticable' requires and permits the Court to take into account all the circumstances of the case, relating to both the employer and employee, and to evaluate the practicability of a reinstatement order in a commonsense way. If a reinstatement order is likely to impose unacceptable problems or embarrassments, or seriously affect productivity, or harmony within the employer's business, it may be 'impracticable' to order reinstatement, notwithstanding that the job remains available."
[37] As stated already, the level of trust and confidence that exists between the parties may be a relevant consideration in determining whether reinstatement is impracticable. Having said that, a loss of trust and confidence will not necessarily mean that it is impracticable for an employee to be reinstated: see Perkins. It will be a question of fact and degree, taking into account all of the circumstances of the case, in a commonsense way.
[38] In Perkins the Court explicitly confirmed that "Trust and confidence is a necessary ingredient in any employment relationship," later concluding that it accepted that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based: see page 191. The Court did not find that whether there has been a loss of trust and confidence will be determinative of whether reinstatement is practicable, stating at page 191:
"Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.
Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of an employer, or some other in person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. In assessing that question, it is appropriate to consider the rationality of any attitude taken by a party."
[39] In Nguyen a Full Bench of the Fair Work Commission summarised from the authorities, including Perkins, the impact of loss of trust and confidence on the question of reinstatement and on the question of the "appropriateness" of reinstatement:
"[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:
- Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
- Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
- An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
- The reluctance of an employer to shift from a view, despite a tribunal's assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.
- The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.
[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party."
(Footnotes removed)
[40] Although this Commission is required to consider whether it is impracticable to reinstate an employee in exercising its discretion, rather than if it is appropriate, we agree with the Respondent's submission that the stated principles and considerations remain just as relevant to the analysis.
[41]Ultimately there will need to be consideration of all of the relevant evidence before the Commission in deciding whether it is impracticable to reinstate an employee. This will often require the weighing of evidence that is both favourable and not favourable to a conclusion that it is impracticable to reinstate the employee."
In my view, the evidence demonstrates that the relationship of trust and confidence between the Respondent and the Applicant has broken down to the extent that it is not practicable to reinstate him to his position. Given the evidence of the high level of conflict and complaint the Applicant had levelled at the Respondent and its officers in the lead up to his termination, his claim for reinstatement in this matter was bordering on hopeless.
I accept the evidence and submission of the Applicant that he had good relationships with a number of people within the Aquatics Team including Mr Healey, Ms Grujevska, Ms Lytwyn and Ms Daniell. I am also of the view that the Applicant's relationship with Ms Mostafa could be restored despite the evidence she gave to the contrary. However, I reject the Applicant's submission that given the limited day to day interaction he has with Ms Raven and Mr Minoosepehr any friction in the relationship between them and the Applicant should be manageable if he was reinstated.
It is necessary for the Applicant to have a functional working relationship especially with Ms Raven and Mr Minoosepehr for reinstatement to be practicable because they are his managers. I accept the evidence of Ms Raven and Mr Minoosepehr with respect to their capacity to work with the Applicant again.
Although the Applicant demonstrated some insight into his conduct by acknowledging that he could have expressed himself differently than he did in the 9 December 2018 emails and his email to Mr Timeus the subject of the Second Letter of Allegations, the Applicant did not take sufficient ownership of his contribution to the deterioration of his relationship with his managers for there to be confidence he would not act in the same way again and that the relationships could be effectively restored.
The Applicant made numerous allegations against Ms Raven and Mr Minoosepehr, including through a formal grievance procedure with the Respondent as referred to above at [96]. When the Respondent found that these allegations were not substantiated, he unsuccessfully appealed that decision.
The nature of the allegations made by the Applicant against Mr Raven and Mr Minoosepehr through his formal grievances to the Respondent were wide ranging and of a very serious nature. I reject the Applicant's submission that the grievances should not be relied upon as evidence of the state of the Applicant's relationships with the Respondent because the grievance process was understood to be confidential. The Applicant tendered the grievances into evidence in open court and they demonstrate that there has been a manifest breakdown in the relationship between the Applicant and the Respondent and those in his management line.
In these circumstances I have formed the view that it is impracticable to reinstate the Applicant.
The Commission also has discretion to order that the Respondent pay the Applicant, "the whole or any part of the amount of remuneration or other financial benefits lost or foregone": s 213 (2) (c) of the Act.
In my assessment, the Respondent would have been entitled to issue a further warning to the Applicant as a consequence of the events of 30 January 2019 with respect to him working beyond his scheduled roster without prior permission from his supervisor. This would have been the Applicant's third written warning. It is questionable whether this would be a sufficient basis upon which to terminate the Applicant's employment.
Given the state of the Applicant's relationship with his managers and the lack of insight into his own conduct, I find that the Applicant's employment would most likely have been terminated within 12 weeks had his employment continued. Accordingly, I award the Applicant an amount that puts him in the same position he would have been had he continued to work with the Respondent for an additional 12 weeks. Any remuneration the Applicant received from other employment he would not otherwise have engaged in during this period should be deducted from the 12 weeks remuneration awarded. The Applicant should not receive a windfall from these proceedings.