| [2016] FWC 422 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal (consent arbitration)
Mrs Narghis Sultana
v
Thomastown Child Care Centre Inc
(C2015/6192)
COMMISSIONER WILSON |
MELBOURNE, 22 JANUARY 2016 |
Application to deal with a general protections dismissal dispute by consent arbitration.
[1] The Thomastown Child Care Centre (TCCC) is a small community based child care centre operating in the City of Whittlesea, north of Melbourne. It employs about 13 employees at any given time and provides services for slightly over 30 children across 3 rooms. It is managed by a Committee of Management drawn from the community.
[2] On 14 August 2015, Ms Narghis Sultana made a general protections application to the Fair Work Commission pursuant to the provisions of s.365 of the Fair Work Act 2009 (the Act), having been dismissed from part-time employment by TCCC on 31 July 2015 from the position of Centre Carer. Ms Sultana’s general protections application sought the Commission deal with alleged contraventions of the Act involving a dismissal, by her former employer TCCC. 1
[3] The matter proceeded to a conference before a conciliator, with Deputy President Kovacic later certifying pursuant to s.368 of the Act that he was satisfied that all reasonable attempts to resolve the dispute had been, or were likely to be, unsuccessful.
[4] On 23 September 2015, the Applicant filed with the Fair Work Commission a notification of agreement for a consent arbitration of the general protections dispute, pursuant to the provisions of s.369 of the Act.
[5] A hearing of the matter was conducted by me on 16 and 17 November 2015. In the course of the hearing the Applicant was represented by her husband, Mr Monzur Habib, and TCCC was represented by the Chair of its Committee of Management, Mr Michael Bulbrook.
[6] The matter proceeded to a certain degree with an apprehension by both parties that the matter before the Commission was analogous to an unfair dismissal application. For example, each provided submissions and witness statements on the forms used in the unfair dismissal jurisdiction, and both parties, in the course of their evidence and submissions, took the Commission to matters that would ordinarily be the subject of consideration of whether a person had been unfairly dismissed. Such is not put forward as any criticism of the parties but merely to explain that, to a certain degree at least, there was some lack of clarity about the contentions of both parties in respect of whether there had been a contravention of the general protections provisions of the Act.
[7] One aspect of clarity was precision about the workplace rights alleged to have been contravened. As the proceedings developed, Ms Sultana put to the Commission that her dismissal was the product not of any consideration by TCCC about her performance, but rather because she had made complaints about her manager and a committee member in the course of allegations being put to her about her conduct.
[8] A consideration of the whole of the evidence and submissions leads broadly to the view that Ms Sultana posits contraventions by TCCC in at least three respects;
[9] Ms Sultana was first employed by TCCC on 1 December 2014 in a casual position. That employment moved to permanent part-time status as a Centre Carer, which commenced on 2 March 2015. Throughout this employment, Ms Sultana’s employment was subject to the terms of the Children’s Services Award 2010. An enterprise agreement does not apply to the employment. The 2015 offer of employment made to Ms Sultana was subject to what is described in the letter of offer as being “a six month trial period”. The parties’ evidence and submissions plainly took that as a probationary period. Although the evidence and submissions on the part of TCCC gave rise to an inference that, in some way, the “six month trial period” was somehow a fixed term period of employment, that appears unlikely on the basis of the totality of the material before me.
[10] During her employment, Ms Sultana undertook training towards a Diploma of Early Childhood Education and Care. As part of her studies, Ms Sultana was required to undertake certain assignments and submit those to an external training provider, Customised Training Pty Ltd. As would be expected, those assignments related to a demonstration of competence in the workplace about the matters that had been the subject of training.
[11] In late June 2015, a representative of Customised Training, Bethany, expressed concerns to Ms Ellen D’Alterio, Staff Manager/Educational Leader at TCCC, about the content of an assignment that had been provided to her by Ms Sultana.
[12] The concern raised by Bethany was that some aspects of the assignment had been submitted in other material seen by the training provider pertaining to TCCC. In other words, she was concerned that Ms Sultana had plagiarised material and submitted it as her own. Bethany identified that to Ms Sultana as well as identifying it to Ms D’Alterio. Bethany did not give evidence in these proceedings.
[13] The training provider’s concerns led to a meeting being held between Ms Sultana, Ms D’Alterio and Bethany on 1 July 2015. Ms Frances Rapacciuolo, the Centre’s Staff Manager/Administration, also attended the meeting, as did Mr Habib for the purposes of supporting his wife. Mr Bulbrook had also been informed about the situation in his capacity as Chair of the Committee of Management. While he did not attend the meeting on that occasion, his advice to Ms D’Alterio had been that, at least in respect of the concern identified by Bethany, the Centre should not become involved.
[14] In the course of the meeting on 1 July 2015, Ms D’Alterio and Ms Rapacciuolo became concerned about another aspect of the assignment that had been submitted by Ms Sultana to her training provider. Their concern was that photographs used in the assignment of children at the Centre had been apparently used without the permission of the children’s parents. They viewed this as being a potential breach of the Child Care Centre’s policies and potentially a breach of legislation applying to the TCCC. They expressed their concern to Ms Sultana and told her that they would need to investigate what had occurred.
[15] A further meeting was held with Ms Sultana on 3 July 2015 which was attended by the Applicant, Mr Habib, Ms D’Alterio, Mr Bulbrook and another member of the Committee of Management, Ms Tara Mehrara, who did not give evidence in these proceedings. The meeting discussed TCCC’s concerns about the use in Ms Sultana’s assignment material of imagery of children without permission; what it meant to the centre; and what it expected Ms Sultana to do. It also identified to her that the Committee of Management was going to consider what had happened and that it invited Ms Sultana to put forward such views as she wished for the Committee to take into account.
[16] Ms Sultana availed herself of that opportunity, writing to the Committee of Management on 7 July 2015. In comprehensive terms she explained the training she was undertaking and, to her credit, agrees that she used pictures taken from a previous sample of work while at the same time failing to ensure parental consent for their use. She also put forward the following context for her behaviour for consideration by the Committee of Management;
“9. On 01/07/2015, Ellen informed that when trainer was taking my assignments from me, she (Ellen) identified those pictures as 'Without parents consent'. But it's my hard luck, she neither alerted me nor asked trainer not to take that assignment out of TCCC to stop such disclosure.
10. I have used those 4 pictures only for the training purpose organised by TCCC, not for any marketing purpose.
11. I sincerely tried to maintain confidentiality by using indirect group pictures and changing respective Kids names.
12. Furthermore, as those 4 pictures were given by Michelle as a sample, for training purpose, pictures were 6 months old; I believed that Parents' Consent had been obtained by respective educator for those pictures.
13. Neither my trainer nor my supervisor ever instructed me not to use pictures on assignments without parents' consent. Later, they said that as I have completed Cert III, I must have required knowledge.
14. I was confused whether my trainer was an authorised/ unauthorised person to receive those indirect group pictures as part of assignments. My trainer was also accepting that paper work without parents' consent form. So that I thought it was ok.” 2
[17] Ms Sultana relies upon item 13 above as being the first exercise by her of a workplace right, being her complaint to the Committee of Management that neither her trainer or, relevant to what the Committee may need to consider, her supervisor had ever instructed her not to use pictures on assignments without parental consent.
[18] Later in the same communication, Ms Sultana also identifies a concern about Ms D’Alterio having taken a USB drive from her on 4 July 2015 which Ms D’Alterio then inspected and used as part of her investigation about use of the photographs. The correspondence from Ms Sultana on this matter refers to two dates in June 2015, however I am satisfied from the context of the material in total that these dates are actually references to events in July, with there being a consistency of evidence that the USB drive was retrieved by Ms D’Alterio after the meeting on 3 July 2015.
[19] On 10 July 2015, Ms Sultana was issued with a formal performance warning by TCCC, directly addressing the matters referred to above. The warning letter was in the following terms;
“Dear Narghis
Warning letter
I am writing to you about your conduct during your employment with Thomastown Childcare Centre.
On the Friday 3rd of July you and your support person, Habib Monzur, met with Michael Bulbrook, Tara Mehrara (Committee of Management), and Ellen D' Alterio (Staff Manager). At this meeting you were advised that your conduct has been unsatisfactory in a way that breached the Centre's policies and procedures, and that immediate improvement is required. In particular you were advised that confidential information may at no time leave the Centre; access to information must be authorized by a Coordinator.
In the meeting you were asked if you had anything you wished to say or to respond to the situation and you stated that you made a mistake that you would not repeat again.
After considering the situation it is expected that you will ensure that have a working knowledge of the Centre's policy and procedures concerning confidentiality and the handling of family information.
This is your first warning letter. Your employment may be terminated if your conduct does not improve by 2nd September 2015.
I propose that we meet again on 02/09/2015 to review your progress. Please let me know if this time is convenient to you. If you wish to respond to this formal warning letter please do so by contacting me on [phone number] or by replying in writing to the Committee of Management.
Yours sincerely,
Michael Bulbrook
Committee President”
[20] Ms Sultana was concerned about the issuing of the warning and she applied to the centre’s Committee of Management on 29 July 2015 for it to be reviewed. The application for review contested the basis of the findings made against her in respect of whether she had allowed confidential information to leave the Centre; whether in fact there was an allegation to which she was asked to respond that she had failed to seek authorisation for access to information; and whether allegations had been brought against her for breaching the Centre’s policies and procedures. The application for review also questioned the ethical conduct of Ms D’Alterio in retrieving the USB drive from Ms Sultana. It also raised a complaint that she had been denied fairness in the TCCC Committee of Management investigation that led to the warning letter.
[21] Following receipt of the application for review, TCCC conducted a performance review of Ms Sultana’s performance at short notice. That took place on 31 July 2015 and involved Mr Bulbrook and Ms D’Alterio as well as Ms Sultana. The evidence indicates that Ms Sultana was not given any specific notification that the performance review would be conducted on that day. At the conclusion of the performance review, Mr Bulbrook advised that Ms Sultana’s performance was not at the level required by TCCC and that her services were no longer required, with the effect being that her employment would be terminated on that day.
[22] Consideration of these matters by the Fair Work Commission requires application of the employer onus set out in s.361 of the Act that actions taken are presumed to have been taken for the alleged reason unless proven otherwise.
[23] The Full Bench has considered the applicable provisions, together with the application of the employer onus, in the matter of Keep v Performance Automobiles Pty Ltd (Keep), 3 finding as follows;
“(ii) ‘Adverse Action’ and the FW Act
[7] Part 3-1 of the FW Act prohibits an employer from taking adverse action against an employee because, relevantly, that employee exercises a workplace right.
[8] Section 340 is one of the central provisions. It states, in part:
“(1) A person must not take adverse action against another person:
(a) because the other person:
... (ii) has ... exercised a workplace right; ...” [emphasis added]
[9] An employer contravenes s.340 if it can be said that the exercise by the employee of a workplace right was a ‘substantial and operative factor’ in the employer’s reasons for taking the action which constitutes ‘adverse action’ within the meaning of s.342.
[10] Section 341 sets out the meaning of a workplace right, relevantly:
“(1) A person has a workplace right if the person:
... (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument.”
[11] The table in s.342 sets out the circumstances in which a person takes ‘adverse action’ against another person. Relevantly, adverse action is taken by an employer against an employee if the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
[12] Sections 360 and 361, in Div 7 of Pt 3-1 of the FW Act, make it easier than it otherwise would be for an employee to establish a contravention of the protective provisions in Pt 3-1, including s.340. Section 360 provides that, for the purposes of Pt 3-1, ‘a person takes action for a particular reason if the reasons for the action include that reason’. Section 361(1), casts an onus of proof on an employer to show that it did not take action for a prohibited reason, it says:
“If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took ... action for a particular reason ...; and
(b) taking that action for that reason ... would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was ... taken for that reason or with that intent, unless the person proves otherwise.”
[13] It is important to note that s.361 does not obviate the need for an applicant to prove the existence of the objective facts which are said to provide the basis of the respondent’s conduct. The onus does not shift from the applicant to the respondent until the applicant establishes the elements of each of the general protections upon which it seeks to rely. It is not enough for the applicant to merely make assertions regarding these elements, they must be determined objectively.
[14] The task of the FWC in a consent arbitration proceeding such as this is to determine three factual questions:
(i) Was the employee exercising a workplace right, within the meaning of s.341?
(ii) Did the employer take ‘adverse action’ against the employee, within the meaning of s.342?
(iii) Did the employer take the adverse action against the employee because of a prohibited reason, or reasons which included that reason?
[15] In the context of this case the applicant bears the onus of establishing that he had exercised a workplace right at the relevant time and that adverse action was taken against him. If so established, the respondent then bears the onus of establishing that the adverse action was not taken because Mr Keep had exercised a workplace right.” 4
Introduction
[24] Ms Sultana argues potentially two forms of adverse action on the part of TCCC within the meaning of s.342(1), that is firstly that she was injured in her employment with the decision to conduct a performance review of her, and secondly that she was dismissed. Both forms of adverse action are attributable by her to the exercise of the three workplace rights referred to previously, that is;
[25] The reasoning of the Full Bench in Keep is referred to above. That decision sets out broadly the task to be undertaken by the Commission in this matter, and with suitable modification to the issues requiring determination, as follows; 5
[26] Keep reinforces that Ms Sultana bears the onus of establishing that she had exercised a workplace right at the relevant time or a protection, and that adverse action was taken against her. If so established, TCCC then bears the onus of establishing that the adverse action was not taken because Ms Sultana had exercised a workplace right or a protection.
Was Ms Sultana exercising a workplace right or a protection?
[27] So far as is relevant, the question about Ms Sultana’s exercise of a workplace right is that which may arise under s.341(1) of the Act. That is, consideration must be given to whether she was entitled to the benefit of a workplace law, workplace instrument or order made by an industrial body, was able to initiate or participate in a process or proceedings under a workplace law or workplace instrument or was able to make a complaint or enquiry either to an external person or body or in relation to her employment. Within the context of the matters argued before me, the focus of the enquiry is principally upon whether Ms Sultana was able to make a complaint in relation to her employment, or potentially whether she had benefits in relation to her employment, and contextually referable to the matters of fact referred to above, perhaps arising under the Children’s Services Award 2010.
[28] Save and except for the dispute resolution provision, clause 9, the modern award does not appear to have provisions that, within the context of the matters led before me, give rise to a particular workplace right available to Ms Sultana. There is no material before me to suggest that Ms Sultana relies on the content of clause 9.
[29] Accordingly the focus of enquiry as to whether or not Ms Sultana was exercising a workplace right or a protection is in relation to s.341(1)(c), that is the capacity to make a complaint in relation to her employment, which has been recognised as a right of a very broad nature, 6 with the requisite relationship between the complaint or inquiry with the employee’s employment being either direct or indirect in the context of the nature and purpose of the legislation including the protection of workplace rights.7 The Courts have taken differing approaches to the test to be applied for the ability of a person to make a complaint or enquiry in the manner envisaged in s.341(1)(c); on the one hand the sub paragraphs within the subclause (c) have been seen as conjunctive,8 but on the other it has been held that a careful consideration of the legislation;
“… points to the ordinary meaning of the phrase “is able to” being the correct construction of that phrase in s 341(1)(c) of the FW Act, that being that an employee can make a complaint or inquiry direct to their employer”. 9
[30] The same decision, Devonshire v Magellan Powertronics Pty Ltd & Ors, notes an earlier decision referencing the explanatory memorandum to the Fair Work Bill 2008, which explicitly deals with the subject of to whom a complaint may be made by the employee;
“In Hodkinson v Commonwealth (2011) 207 IR 129 the applicant alleged adverse action by her employer, and that she had made a complaint under s 341(1)(c) of the FW Act. The applicant alleged that the section meant that (Hodkinson at [112] per Cameron FM):
… if a person is able to make a complaint or an inquiry in relation to their employment then that is a workplace right. She submitted that the … [FW Act] did not restrict the person or body to whom such a complaint or inquiry could be directed and, by reference to para 1370 of the explanatory memorandum to the Fair Work Bill 2008, submitted that it included situations where an employee makes an inquiry or complaint to his or her employer.
This Court supported the applicant’s interpretation of s 341(1)(c) of the FW Act: Hodkinson at [131] per Cameron FM, where the Court states as follows:
That paragraph does not limit the class of persons to whom a complaint or inquiry may be made and, in particular, is not drawn in such a way as to exclude a person who makes an a complaint or inquiry to his or her employer. This interpretation is borne out by para 1370 of the explanatory memorandum to the Fair Work Bill which stated:
Subparagraph 341(1)(c)(ii) specifically protects an employee who makes any inquiry or complaint in relation to his or her employment. Unlike existing paragraph 659(2)(e) of the WR Act, it is not a pre-requisite for the protection to apply that the employee has “recourse to a competent administrative authority”. It would include situations where an employee makes an inquiry or complaint to his or her employer.
The applicant in Hodkinson failed because this Court determined that she had not in fact made a complaint or inquiry: Hodkinson at [133] per Cameron FM, but the interpretation of s 341(1)(c) of the FW Act set out above provides for a broad meaning of “is able to”.” 10
[31] While the Court in Harrison v In Control took a contrary view about the provision, that its elements should be seen cumulatively being read restrictively and not broadly, such position appears at odds with the intent set out in the Explanatory Memorandum and referred to above. In Walsh v Greater Metropolitan Cemeteries Trust (No 2), 11 the Federal Court accepted that complaints made by an employee directly to her employer and not to an external body and which had the character of being complaints in relation to her employment met the tests of s.341(1)(c).12
[32] Accordingly, I accept the reasoning as set out in Devonshire v Magellan Powertronics Pty Ltd & Ors and Hodkinson as that which should be applied here.
[33] The context of Ms Sultana’s case is that she raised at least three separate complaints with her employer in the manner set out above, and I deal with each in turn.
[34] The first of the complaints, in effect that her manager did not adequately supervise her assignments and did not ever tell her that the offending material could not be used, relates to matters discussed by Ms Sultana in the meeting that took place on 1 July 2015. While this is without doubt the thinnest of the complaints she raises, however within the context of the reasoning in Devonshire v Magellan Powertronics Pty Ltd & Ors referred to above, it is capable of being either an inquiry or a complaint. I therefore find that Ms Sultana exercised a workplace right when she complained in the meeting on 1 July 2015 that Ms D'Alterio did not supervise her assignments and submissions and did not instruct her not to use pictures on assignments without parents’ consent. In finding this as a valid exercise of a workplace right, it is not to say it was a complaint with justification; merely that it was a complaint in relation to Ms Sultana’s employment.
[35] The second of the matters, that she complained about statements made to her by the Chair of the Committee of Management, relates to Ms Sultana’s perception that criticisms she made of Mr Bulbrook’s handling of the investigatory meetings became the product of adverse action against her. Ms Sultana’s complaint in this regard appears first raised in her written application for review of the formal warning, dated 29 July 2015. In that letter she complains about various matters of procedure, apparently on the part of Mr Bulbrook; that she was told a written instruction to her was not required; that she was told Mr Habib should not assist her in preparing her written response to the Committee, and that when he attended the meetings on 3 and 7 July 2015 as her support person he was told he should not speak; and that, in respect of a complaint that Ms D’Alterio held a conflict of interest, that Mr Bulbrook did not give Ms Sultana options for dealing with that situation. Again, the context of these matters allows a finding that they were the exercise by Ms Sultana of a workplace right.
[36] I also find the third of the matters to be the exercise of a workplace right, namely by seeking a review by the Committee of Management of a formal warning issued to her regarding her conduct, Ms Sultana had made a complaint to her employer in relation to her employment of the manner envisaged by s.341(1)(c).
Did TCCC take ‘adverse action’ against Ms Sultana?
[37] The relevant consideration of ’adverse action‘ in this matter is that set out within item 1 of the table in s.342(1) to the effect that;
“Adverse action is taken by…
1 an employer against an employee if…
the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.”
[38] While the evidence supports that adverse action was taken against Ms Sultana in the form of a dismissal, it does not support that she was injured in her employment with the decision to conduct a performance review of her. The evidence of the Respondent’s witnesses, which I accept, was unequivocally that performance reviews were normal and to be expected at that time of year. Ms Sultana puts forward that a review was not due to be conducted until 2 September 2015 and that she was not given any notice of the review, which actually took place on 31 July 2015. The reference to 2 September is drawn from the warning letter of 10 July 2015, and in context, is a reference to the TCCC review of her performance against the matters set out in the warning, not of her performance generally. Mr Bulbrook’s evidence is that the performance review was due to be conducted around the time it was, and that it took place on the day it did because of his availability, which is limited, being a volunteer to the Committee and being employed full-time elsewhere. He notes in this regard that;
“The Centre committee is made up of 4 voluntary parents for the positions of President, Treasurer, Vice President and Secretary. The current committee members are full time working parents donating their time in managing the Centre, with the Centre managers reporting to the committee.
Part of our role is helping out in the performance reviews for all employees yearly from the feedback from room leaders, parents, and management of the Centre.” 13
[39] The evidence does not lead to a finding that Ms Sultana was treated any differently from any other employee and so I do not find she was injured in her employment. I accept the evidence that the performance review processes led to the reviews of staff being conducted around the time that Ms Sultana was approached for hers and that the timing of the review was dependent on Mr Bulbrook’s availability, amongst other considerations. I also accept that the need for performance reviews to be conducted had been communicated to staff. Accordingly, I do not find that the decision to conduct a performance review of Ms Sultana was ’adverse action‘ within the meaning of s.342(1).
Did TCCC take the adverse action because of a prohibited reason, or reasons which included that reason?
[40] At this juncture, it is necessary to consider whether the adverse action referred to, being TCCC’s decision to dismiss Ms Sultana, can be presumed to have been taken for a prohibited reason. In this regard, and in connection with the evidentiary onus held by the Respondent, s.361 provides the following;
“361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.”
[41] In relation to the question “why was the adverse action taken?”, the High Court has found;
“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. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.” 14 (references omitted)
[42] In this matter, the presumed reasons for Ms Sultana’s dismissal are that she complained to TCCC about the role of her manager in supervising diploma assignments; when she complained about statements made to her by the Chair of the Committee of Management in the course of the investigation meetings; and when she sought a review of the decision by the Committee of Management to issue a formal warning about her conduct.
[43] The Respondent’s witnesses, Mr Bulbrook, Ms D’Alterio and Ms Rapacciuolo, each put forward that Ms Sultana’s performance was wanting overall and that it did not reach the standards that the centre required.
[44] Ms Sultana took the Commission to the written performance review conducted by Mr Bulbrook and endeavoured to question whether a proper assessment had been made by TCCC of her performance on several of the criteria within the template. She submits that the review was conducted on the same day that she was notified it would be needed.
[45] After consideration of the evidence lead about the review process and the document used to conduct Ms Sultana’s performance, I am satisfied both that the timing of the review was consistent with how TCCC programmed and conducted such reviews and that the ratings given for Ms Sultana’s employment were open to TCCC. The evidence given by the Respondent’s witnesses on the subject was plausible and reliable. There is no reason to disregard it.
[46] In relation to the timing of the review, I note the evidence referred to earlier, that it was due to be conducted around the time it was, and that it took place on the day it did because of Mr Bulbrook’s availability. While Ms Sultana complains that TCCC “conducted an instant performance review without any prior notice”, 15 and after consideration of the other evidence on the subject, her complaint is in effect that she did not know the review would be conducted on the day it actually was. There is a sufficiency of evidence before me to find that the need for a performance review was known to Ms Sultana as well as staff generally. In this regard, I note the generic position description refers to the obligation of staff to actively participate in their annual performance review, as well as the Staff Handbook referring to staff appraisals being conducted at least once a year.16 Further, Ms D’Alterio’s evidence was that staff were reminded that reviews were being conducted. There is also a sufficiency of evidence for me to find that the way the review was ultimately scheduled was for reason of Mr Bulbrook’s convenience and not for any punitive reason.
[47] Mr Bulbrook explained how Ms Sultana’s performance was assessed and took the Commission through the document that had been discussed with her on 31 July 2015. The document contains numeric forced-choice ratings on 41 elements and invites comments on 4 elements. There were several elements on which TCCC rated Ms Sultana very poorly, with ratings of 2 or lower from a 7 point scale. These included;
[48] Mr Bulbrook explained that these ratings had been discussed with Ms Sultana and that on some of them she put forward a higher self-assessment and that he explained to her why that was not agreed by TCCC. His view was that deficiencies in Ms Sultana’s ratings on critical points meant that her continued employment was not warranted. His view was that while Ms Sultana possessed many positive personal attributes, she had not been able to demonstrate satisfactory levels of understanding or competency in what TCCC saw as critical requirements. Mr Bulbrook’s witness statement identified the following deficits;
“ Staff members provided feedback that Narghis was a very nice and beautiful person but showed a tenancy [sic] to isolated herself from other staff members.
[49] Ms D’Alterio’s witness statement echoed these concerns, saying the following;
“I observed that there were deficits in her working knowledge of industry standards, policies and regulations that are fundamental to a position as a Qualified Certificate III Educator in Early Childhood Education and Care. Staff also reported to me that the applicant required high levels of guidance and direction.
Upon the review of the data from feedback and formative assessment collected over the initial months of the applicant’s probationary period it was determined by Committee of Management the applicant did not demonstrate a sufficient increase in the level of proficiency in Centre policy and procedures, nor was she able to satisfactorily meet the criteria for an ongoing position within the Centre, given the level of responsibility required of all staff to fulfill their roles, independently and as a team, (as per their position descriptions), as outlined and agreed to by the candidate, in the initial letter of offer; to carry out all aspects of their position to provide quality education and care for children within approved legislative frameworks.” 18
[50] Mr Bulbrook’s evidence about the complaints made by Ms Sultana and the reasons why she was dismissed includes the following;
“Narghis application concerning her assignment has nothing to do with TCCC as this is a matter between an organization outside of TCCC and Narghis, which we’ve been told that, has been resolved with Narghis agreeing to resubmit her assignments.
Narghis’ application concerning breaching the Child Protection Act and TCCC policy and procedures was resolved with Narghis admitting to the Committee and Centre Management her mistake and taking ownership for her mistake. The matter was resolved with Narghis receiving a formal letter. This matter played no part in her dismissal.
Narghis was dismissed due to the fact she failed her probationary period in 3 key areas:-
[51] In summary, TCCC saw the concerns about Ms Sultana’s submission of inappropriate material for her study assignment as largely separate to the performance concerns it held, but perhaps not entirely so, for the reason that it rated her as 1 (“below requirement”) on the performance review criterion “Maintains confidentiality concerning children”. Further, it saw her as having failed to show acceptable performance during a probationary period, which it saw running from 2 March 2015, being the date on which Ms Sultana commenced a part-time employment contract, and which featured within it the following terms;
“Salary Review
This position will be based on a six month trial period and reviewed each month with verbal/written feedback from the Staff Manager (Centre's Director) and Committee. At the end of the six month trial period a formal performance appraisal will be completed by the Staff Manager (Centre's Director) and Committee Management. A successful trial period will result in TCCC confirming your appointment as permanent.” 20
“Probationary Period
As per the award, each employee is employed under a probationary period of six months (confirm as per the award). This does not include students and volunteers.” 21
[52] It is noted that while the Staff Handbook refers to an award-based probationary period, such is not contained within the Modern Award. While that is the case, TCCC plainly regarded itself as having access to a probationary period review over Ms Sultana’s employment, and I am satisfied that it drew such expectation to her attention at the start of the part-time employment contract, as well as being satisfied that its actions in terminating Ms Sultana on 31 July 2015 were for a combination of its assessment that her performance to that point was unsatisfactory and that it was entitled to do so. Such satisfaction on my part stands in contradistinction to the proposition advanced by Ms Sultana that she was dismissed for reason of having exercised the workplace rights referred to above, which in practical form are the complaints she made to TCCC about her employment.
[53] Because it is unnecessary for me to do so, I make no findings about whether Ms Sultana’s employment actually was the subject of a period of probationary employment.
[54] The plausibility of TCCC’s evidence in relation to why Ms Sultana was dismissed was not weakened through cross-examination, or through Ms Sultana’s own evidence. Accordingly, the outcome of the performance review, although against Ms Sultana’s interests, was not adverse action because of a prohibited reason. There is no evidence before me that would allow a finding that the performance review ratings, or its eventual outcome of dismissal, came about because Ms Sultana had exercised the workplace rights described earlier.
[55] I therefore find that TCCC has discharged the onus it holds under s.361 of the Act.
[56] The final question to which I turn is whether, irrespective of the employer’s discharge of its evidential onus, there is any other evidence that would lead to a finding that TCCC dismissed Ms Sultana because of a prohibited reason, or reasons which included that reason. I find that there is not.
[57] Ms Sultana puts forward largely a supposition that because she complained in the manner set out above, she was consequently dismissed. Beyond the supposition, there is no evidence of that being the case.
[58] In many respects, Ms Sultana’s case is founded on ex post facto reasoning. The asserted workplace rights and their particularisation did not meaningfully crystallise until after the events had passed.
[59] She was initially accepting that she had made a mistake in submitting the assignment material she had and was largely contrite. The Respondent wanted to hear her own version of events and her own contrition, rather than words drafted for her by her husband, which explains why Mr Bulbrook asked her not to submit something drafted by Mr Habib. She largely complied with that not unreasonable request, and the Committee of Management gave her full credit for doing so.
[60] The Committee of Management resolved to issue a letter of warning, and did so in a form that was entirely justifiable in the circumstances, taking into account its duties not only to staff, but to parents and regulators. The letter of warning was not heavy-handed or unreasonable, and informed her what this Commission would require her to be informed of – that a repetition would lead to her termination. No doubt she was aggrieved to receive a warning, as many employees would be. However, until she submitted her request for the warning to be reviewed – which was indeed her right – there appears to be no meaningful endeavour to characterise the disciplinary process as one lacking in competence or fairness. TCCC was entitled to receive the request for a review and consider it as being without foundation, and to expect that the warning remain in place as articulated in the warning letter itself. That it did not employ an elaborate process to review what was known personally to Mr Bulbrook and Ms D’Alterio is consistent with TCCC’s size and operating environment. That TCCC did not see a reason to not proceed with the performance review is unremarkable. There is no evidence that would suggest that TCCC’s action in this regard was in any way punitive, or for reasons that include a prohibited reason.
[61] Whether Ms Sultana was fairly dismissed is not the domain of this decision, and no findings are made in that regard.
[62] I am unable, however, for the reasons set out, to find that Ms Sultana was dismissed because of a prohibited reason, or reasons which included that reason. Such finding leads to the further finding that TCCC has not contravened the provisions of Chapter 3, Part 3 – 1 of the Act.
[63] As a result, Ms Sultana’s application must be dismissed, and an Order to that effect is issued at the same time as this decision.
COMMISSIONER
Appearances:
Ms N Sultana and Mr M Habib (support person) for the Applicant
Mr M Bulbrook for the Respondent
Hearing details:
2015.
Melbourne:
16-17 November.
1 C2015/5709.
2 Exhibit A2, Applicant’s Bundle of Documents, Attachment E.
4 Ibid [7]-[15].
5 Ibid [14]-[15].
6 ALAEA v International Aviations Service Assistance Pty Ltd [2011] 193 FCR 526 at [347]; (2011) 205 IR 392.
7 Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [64].
8 Harrison v In Control [2013] FMCA 149 at [73]; (2013) 230 IR 452, per Burnett FM.
9 Devonshire v Magellan Powertronics Pty Ltd & Ors [2013] FMCA 207 at [64], (2013) 231 IR 198, per Lucev FM.
10 Ibid [56]–[57].
11 [2014] FCA 456.
12 Ibid [64].
13 Exhibit R2, Witness Statement of Michael Bulbrook.
14 Bendigo Institute v Barclay [No 1] [2012] HCA 32, (2012) 248 CLR 500, at [45], per French CJ and Crennan J.
15 Exhibit A3, Witness Statement of Narghis Sultana.
16 Exhibit R5, Respondent’s Documents, Attachments 1 and 6.
17 Exhibit R2.
18 Exhibit R1, Witness Statement of Ellen D’Alterio.
19 Exhibit R2.
20 Exhibit R5, Attachment 2.
21 Exhibit R5, Attachment 6.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR576317>