FEDERAL COURT OF AUSTRALIA

Dutta v Telstra Corporation Limited [2019] FCAFC 103

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LOGAN AND REEVES JJ:

1    Mr Prit Nath Dutta was once employed by the respondent, Telstra Corporation Limited (Telstra). Telstra terminated that employment on 18 August 2017. At least nominally, the occasion for the termination of his employment was a redundancy as a sequel to an internal reorganisation and consequential workforce reduction.

2    Ever since then, Mr Dutta has maintained that his termination was not the result of a genuine redundancy. He filed an application in the Fair Work Commission and, when conciliation there failed to resolve his grievance, instituted proceedings in this Court’s Fair Work Division. In those proceedings, he alleged that Telstra had contravened s 340 of the Fair Work Act 2009 (Cth) (FWA), because the adverse action constituted by the termination of his employment was the result of his exercising a workplace right to make complaints about his managers. He also alleged that he had been unfairly dismissed, because his redundancy was not a genuine redundancy within the meaning of s 389 of the FWA.

3    After a trial on the merits, Mr Dutta’s application was dismissed: Dutta v Telstra Corporation Limited [2018] FCA 1994. Mr Dutta has appealed against the dismissal of his application. As he did at trial, Mr Dutta appeared on his own behalf on the hearing of the appeal.

4    In its amended form, Mr Dutta’s notice of appeal does rather more than just state, as r 36.01(2)(c) of the Federal Court Rules 2011 (Cth) requires, “briefly but specifically, the grounds relied on in support of the appeal”. It combines with his grounds of appeal related submissions. Reproducing it in full thus offers a convenient way of describing in exhaustive detail the challenge which he makes to the dismissal of his application:

Grounds of appeal

1.    Federal Court Jurisdiction Confusion in the judgement on 13 Dec 2018:

1.1    While making judgement, honourable Judge was not sure about the jurisdiction of the Federal Court:

Section 267:

“I find that the Court lacks jurisdiction to entertain Mr Dutta’s claim for a remedy for unfair dismissal.”

1.2    Appellant has spent close to one and half year on his own seeking justice following the Federal Court processes, initially chasing his complaint with Fair Work commission and then with Federal Court as per advice by Commission and Court. There is no other court which appellant was aware of to seek justice.

1.3    Below extract from Federal Court of Australia Act 1976 clears any doubt in this regard to confusions on jurisdiction:

Federal Court of Australia Act 1976: Part II – Federal Court of Australia Division 1 – Constitution of the Court

13…….. General and Fair Work Divisions of the Court

(3)    The following jurisdiction of the Court is to be exercised in the Fair Work Division:

(a)    jurisdiction that is required by any other Act to be exercised in the Fair Work Division;

(b)    jurisdiction that is incidental to such jurisdiction.

Note:    Under section 562 of the Fair Work Act 2009, jurisdiction is required to be exercised in the Fair Work Division of the Court in relation to matters arising under that Act.

1.4    Line 264 of the judgement is not clear from the Court, when appellant did go through Fair Work Commission for remedy and a certificate was issued (Appendix A, which was part of submissions) to approach Federal Court.

Evidence to the fact in line 264 in Judgement on 13 Dec 2018:

264.    Mr Dutta could have applied to the Fair Work Commission under s 394 of the Act for a remedy for unfair dismissal. Under s 385 of the Act, a person is unfairly dismissed if the Commission is satisfied that, relevantly, the dismissal was “harsh, unjust or unreasonable”.

1.5    Appellant request court to consider his applications under below clauses of Fair Work Act 2009:

727 General protections FWC applications

This section applies if:

a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal;

728 General protections court applications

This section applies if:

a general protections court application has been made by, or on behalf of, the person in relation to the dismissal;

1.6    Appellant has worked through FWC in 2017, a certificate was part of the submissions to Federal Court under General Protection clause.

    Evidence to the fact: Appendix A.

1.7    Appellant strongly believe that the previous order made on 13 Dec 2018 should be re-looked at, due to confusion clearly visible throughout the judgement orders. Appellant request the previous trial to be disclosed a ‘Mis-Trial’.

2.    Appellant’s termination from Telstra was not Genuine Redundancy, but an act of adverse actions towards appellant.

Fair Work Act 2009 clearly defines the Genuine Redundancy as below:

Reference:

Fair Work Act 2009 Chapter 3 Part 3-2 Unfair dismissal Division 3 What is an unfair dismissal

389 Meaning of genuine redundancy

(1)    A person’s dismissal was a case of genuine redundancy if:

(a)    the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b)    the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2)    A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a)    the employer’s enterprise; or

(b)    the enterprise of an associated entity of the employer.

2.1    In the judgement on 13 Dec 2019, Court made very vague conclusion that appellant asserts below:

“Mr Dutta alleges that his redundancy was not a genuine redundancy. He asserts that there are other employees of Telstra who are now performing precisely the same work that he did.”

2.2    Court completely ignored the fact that in witness statements during the hearings (28-30 May 2018), respondent’s own witnesses Mr Zivcic and Ms Pascoe (Telstra HR) have confirmed that several people in Telstra are still performing the same job which the appellant performed before he was made redundant:

Mr Stanko Zivcic: Transcripts 29 May/Page-119- paragraph 40 and 45.

40    Do you think this is the same role, but different title given now, End-to-End Application Support?---The purpose of the redundancy, the restructure, was to – to define – redefine that role.

45    Okay. I take that point. Yes. So that – I would ask you, this answer is “yes”. It’s the same task with a different title as part of redundancy?---The – the focus was End-

Ms Karon Pascoe: Transcripts 30 May/Page-230- paragraph 30, 35/ Page-231 paragraph 5-10.

20    MR DUTTA: Sure. Sorry So do you know after restructuring, the role Mr Dutta performed is still performed by a number of people in Telstra?---I believe that the amount of roles required, that amount wasn’t required any further.

25    Sure?---And as such, a small group of people are doing those tasks.

    Sure. So the same task that Mr Dutta did under Mr Bruce Gessey, and I think it has merged with Mr Peter gorrigan’s group?---I think that the – it’s with regards to how many positions are actually there.

30    What I’m saying is the role Mr Dutta performed is still performed in Mr Dutta – in Mr Gessey’s team or not?---A limited amount of staff are doing that.

35    Sure. That did answer my question. Yes. So what is in your opinion which you have clarified a little bit, but I will ask in another way – so in your opinion, did Telstra make Mr Dutta redundant, or Mr Dutta’s role of application management redundant?---Mr Dutta’s role.

40    Was made redundant. Yes. Sure. So the role is application management, which was made redundant?---That’s correct.

2.3    The witness statement leaves no doubt that this is a clear case of Redundancy which was not genuine and goes against the Fair Work Act 2009. Employees in Telstra are performing same job which appellant has performed.

2.4    In the judgement order, appellant strongly believe that court has not enforced the section 389 of FW Act 2009, when respondent’s managers themselves confirming breach of the Act beyond doubt.

3.    Appellant claims (without prejudice) that during hearing Court, respondent’s witnesses made false statements to deny appellant justice. Appellant claimed that his Managers (Mr Gessey & Mr Zivcic) deliberately hide ‘CRISP’ process information from him while at job. This discrimination was the critical incidental to proving appellant’s claim of General Protection breaches of Fair Work Act 2009, leading to appellant’s termination from Telstra employment.

Reference

Court Decision on 13 Dec 2018: Dutta v Telstra Corporation Limited [2018] FCA 1994

Section 232:

“I do not accept that when Mr Dutta complained about Mr Zivcic, Mr Gessey said that they knew the process. I accept Mr Gessey’s evidence that he did not know it”

3.1    Email confirming that Mr Gessey and Mr Zivcic having lengthy email conversation with Mr Brad Salter (Finance) to resolving a finance issue about CRISP process around Dec 2016, and were fully aware of CRISP process from Dec 2016 onwards even during May-June 2017: Appendix B

3.2    On 28 June 2017, Mr Gessey himself clearly confirmed in an email response to appellant’s query, that Mr Gessey and his team had been using CRISP for some time and also confirmed how it had been used, snapshot from the email to the fact in email on 28 June 2017: Appendix C

3.3    Unfortunately, contrary to the fact, in court Mr Gessey and Mr Zivcic made statement that they were not aware of CRISP process during May-June 2017 when appellant was chasing them for information to perform a critical task.

Evidence to the fact:

Mr Stanko Zivcic >Transcript 29 May 2018/Page-128 paragraph 35

35    When you were – you are going back to that point. That time you know that Crisp is the process which is - - -?---No, I did not.

Mr Bruce Gessey> Snapshot from Transcript 29 May 2018/Page-180 paragraph 5

Mr Dutta claimed you said you had used the process a number of times?---No, I have not. I don’t – I can’t remember using the Crisp process.

3.4    In the Mr Zivicic’s performance assessment report to Telstra, which Telstra used in terminating appellant’s employment, the court should take note of Mr Zivcic’s comments below:

a.    Skills and knowledge

(Reference: Mr Zivcic affidavit/03Apr18-Annexure SZ-4-Page24)

“..Prit struggles to meet expectations when identifying problems with processes used in performing various aspects of his role”

b.    Innovation management and business acumen:

    (Reference: Mr Zivcic affidavit/03Apr18-Annexure SZ-4-Page26)

“…Prit is not meeting expectations when challenging established processes or procedures…”.

c.    Organisational and team effectiveness:

    (Reference: Mr Zivcic affidavit/03Apr18-Annexure SZ-4-Page27)

“…I have observed Prit struggle to meet expectations on implications on cost and bottom line when he gets distracted at escalating process issues…”.

3.5    Above comments were focussed around the ‘CRISP’ process issue. The redundancy assessment to terminate appellant’s employment was just focussed around CRISP incident, discarding all the other good work the appellant delivered to the respondent for years. Performance reports by other Business Units appellant worked with, is part of the submissions and contradicts Mr Zivcic assessments, where Managers of these teams rated appellant’s performance very high.

3.6    Appellant alleges that his Manager deliberately kept hiding the processes and related information from him time to time; an act of discrimination, breaching Fair Work Act 2009. Most of the evidences are archived on Telstra’s Email Server, which appellant doesn’t have currently access to. Appellant is making his allegations back up with solid artefacts which he managed to obtain.

3.7    Not being aware of evidence left behind, in a planned strategy, (without prejudice) in the witness statements on oath in Federal Court on 29 May 2018, Mr Gessey and Mr Zivcic both denied being aware of ‘CRISP’ process at all, over the period of May-June 2017, when appellant was chasing the process information from them.

3.8    Considering the calibre of the evidences, appellant kindly request Appeal Court to grant leave and accept the Email 2 (Appendix C) as an evidence to deliver justice. Based on Initial hearing orders by Justice Logan, appellant will be submitting a Leave request to accept Email 2 as an evidence.

3.9    Mr Bruce Gessey and Mr Stanko Zivcic were appellant’s manager during his employment in Telstra, who jointly orchestrated termination of appellant’s employment as an act of targeted revenge towards the appellant, for practicing Work Place rights. Appellant’s case in Federal Court was dependent on the CRISP incident to prove discrimination and unfair termination of Mr Dutta’s employment from Telstra Corporation. This matter was not appropriately addressed in the judgement on 13th Dec 2018, a critical element to be considered.

3.10    Australian Judiciary system relies on honest witness statements, making false statement in a Federal court, is a crime which should not be ignored. Appellant kindly request the Appeal Court to re-consider initial order of dismissing the appellant’s allegations, which are backed by evidences beyond doubt.

3.11    In Judgement on 13 Dec 2018, Court didn’t consider below:

a.    Mr Gessey and Mr Zivcic, appellant’s managers who have responsibility of operation of appellant’s Business unit, comes with years of experience in the area and defines the Business Processes, claiming that they didn’t know the maintenance process?

b.    Whether a coffee shop, big Corporation or a Government office, it is Manager’s responsibility to share process and make tools available for an employee.

c.    When a Manager does employee’s performance assessment, should not make assessment about the process, when Manager himself/herself didn’t provide the process to an employee.

d.    Appellant wasn’t given CRISP process to start with, when two of his immediate managers knew the process well, but deliberately didn’t share the process with appellant. Taking this opportunity appellant is made redundant blaming appellant for not following the process, when process wasn’t given to him at first place.

c.    Managers knowing the process but deliberately not sharing with their employee over a period of a month is clearly an act of discrimination. Terminating the employment is further adverse action by taking his living away from him.

[sic, emphasis in original]

5    Telstra was initially disposed to object to the competency of the appeal. On examination, the notice of objection to competency went not to whether the Court’s appellate jurisdiction had been invoked, but instead to whether Mr Dutta was ever entitled to prosecute in the Court so much of his application as concerned his alleged unfair dismissal. On reflection and after the notice of appeal was amended, Telstra chose not to press its objection to competency. That was the prudent course to take. For if at least one ground of appeal can be seen to invoke the Court’s appellate jurisdiction, the appeal will be competent, no matter how misconceived other grounds of appeal may be: Belton v General Motors-Holden’s Ltd (No 1) (1984) 58 ALJR 352; Cocoa Cola Amatil (PNG) Ltd v Kennedy (2012) 2 PNGLR 205.

6    It will be seen that, in his notice of appeal, Mr Dutta foreshadows an application for leave to adduce further evidence on the hearing of the appeal. He did indeed make such an application. We declined to grant him leave, for reasons given orally at the hearing. Suffice it to say, we were not persuaded that the document he sought to tender, an email of 28 June 2017 from a Mr Bruce Gessey to him relating to “CRISP”, a web-based application within Telstra, could not, with reasonable diligence, have been obtained by him prior to trial. Further and in any event, having regard to its contents, we were not persuaded that the interests of justice required its admission on the hearing of the appeal. That was because it could not, even arguably, have affected the outcome.

7    We now address each of Mr Dutta’s grounds of appeal.

“1.    Federal Court Jurisdiction Confusion in the judgement on 13 Dec 2018”

8    The “confusion” which Mr Dutta alleges on the part of the learned primary judge is in relation to his Honour’s conclusion that the Court did not have jurisdiction to entertain so much of his application as alleged that he had been unfairly dismissed, because there had been no genuine redundancy. His Honour’s reasoning in respect of that conclusion was as follows (at [263] - [266]):

263    Mr Dutta alleges that his redundancy was not a genuine redundancy. He asserts that there are other employees of Telstra who are now performing precisely the same work that he did.

264    Mr Dutta could have applied to the Fair Work Commission under s 394 of the Act for a remedy for unfair dismissal. Under s 385 of the Act, a person is unfairly dismissed if the Commission is satisfied that, relevantly, the dismissal was “harsh, unjust or unreasonable”.

265    However, ss 725, 728 and 729 of the Act required Mr Dutta to elect whether to proceed in the Court under the general protections provisions, or in the Fair Work Commission under the unfair dismissal provisions: see Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 at [136]. He made that election by filing the current proceeding in the Court and seeking a remedy for contravention of s 340(1) of the Act.

266    The Court may not entertain Mr Dutta’s claim for a remedy for unfair dismissal.

9    In truth, and with respect, the confusion is that of Mr Dutta, not of the primary judge. The conclusion reached by the learned primary judge is incontestably correct, for just the reasons which his Honour gives. His Honour had earlier expressed like views when sitting as a member of the Full Court in Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273, at [136], the case which he cites at [265]. The other members of the Full Court in that case did not find it necessary to express any views on the subject of whether it was possible to seek an unfair dismissal remedy in the Court. Because of this, and because we apprehend that the misunderstanding evident in this ground of appeal may by no means be unique to Mr Dutta, it is desirable to give a more detailed explanation for why his Honour’s conclusion is correct. Given the multiple provisions of the FWA one must consult, obtaining an understanding of the overall scheme of the FWA in relation to remedies for dismissals and forums in which such remedies may be sought, it is not a straight-forward task.

10    In Ch 6, Pt 6.1 Div 3B, the FWA distinguishes between a number of what are termed “Applications and complaints relating to dismissal”. Within Subdiv B, one such application is a “General protections court application” (s 728); another is “Unfair dismissal application” (s 729). Also within Subdiv B, s 725 of the FWA provides that these are alternatives.

11    Chapter 3, Pt 3.1 of the FWA specifies a number of what are generically termed, “General Protections”. One such general protection is that specified in s 340, protection against the taking of adverse action against a person because, materially for present purposes, that person has exercised a workplace right. At the heart of Mr Dutta’s grievance was a belief by him that his termination was the result of his making complaints about his managers in the exercise of a workplace right so to do.

12    Even if a dismissal does not contravene a general protection, it may nonetheless be “unfair”. Section 385 of the FWA defines what constitutes an “unfair dismissal”:

What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a)    the person has been dismissed; and

(b)    the dismissal was harsh, unjust or unreasonable; and

(c)    the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d)    the dismissal was not a case of genuine redundancy.

13    “Genuine redundancy” is defined by s 389 of the FWA:

Meaning of genuine redundancy

(1)    A person’s dismissal was a case of genuine redundancy if:

(a)    the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b)    the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2)    A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a)    the employer’s enterprise; or

(b)    the enterprise of an associated entity of the employer.

14    The FWA adopts, in s 365, a more generic term, “dismissal dispute”, to cover both dismissals alleged to be the consequence of a general protection, as well as those said to be unfair. Section 365 also provides for any dismissal dispute a common, initial pathway to the Commonwealth’s conciliation and arbitration commission presently known as the “Fair Work Commission” (industrial commission). Parliament’s intention, manifested in s 368, is that, at least initially, the industrial commission, bringing to bear the particular qualifications, experience and authority of office of its members, will “deal with” all such dismissal disputes by alternative dispute resolution methods such as conciliation or mediation, according to the considered value judgement of a member in the circumstances of a given dispute.

15    If, after employing such methods, the industrial commission considers that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, it is obliged to give the parties a certificate to that effect: s 368(3)(a), FWA. The issuing of that certificate is a condition precedent to the ability to commence, in this Court’s original jurisdiction or in the Federal Circuit Court, a general protections court application: s 370, FWA. Alternatively, the parties to a dismissal dispute grounded in an alleged contravention of a general protection may agree, after the issuing of the certificate, that the industrial commission arbitrate that dispute: s 369, FWA.

16    Only the industrial commission may grant remedies for unfair dismissal: s 390, FWA. Such remedies are only available in respect of an application for the same filed in the industrial commission within 21 days of the dismissal (or within such further time as the industrial commission may allow in the exercise of its discretion): s 390(2) and s 394(2), FWA. That same time limit (and extension discretion) is applicable to all other dismissal dispute applications to the industrial commission: s 366, FWA.

17    Thus, the FWA provides for a common initial pathway but s 725 of that Act prescribes alternative different ends. At the time of filing an application in the industrial commission, a dismissed person must identify whether the alleged occasion for the dismissal was a general protection contravention or unfairness. That choice will then dictate the remedies open in the event that the industrial commission’s alternative dispute resolution endeavours prove unsuccessful.

18    At an evidentiary level and in the circumstances of a particular case, there may well be an overlap between the alternatives of a general protection proceeding in the Court or, by agreement, in the industrial commission, and an unfair dismissal proceeding in the industrial commission. That is because, in the circumstances of a given case, an employer may seek to rebut an allegation that a reason for the dismissal was the exercise of a workplace right by the employee on the basis that the dismissal was nothing more than a sequel to a genuine redundancy. The present offers an example of such a case. Given this feature, Mr Dutta’s belief as to why he was dismissed and the common initial pathway, his confusion about the nature of the cause of action open to him in the Court is understandable.

19    That is an apt note on which to turn to ground 2 in the notice of appeal.

“2.    Appellant’s termination from Telstra was not Genuine Redundancy, but an act of adverse actions towards appellant.”

20    Read literally, as Telstra was disposed to do in its submissions, this ground contains both a false premise and an uncontroversial given.

21    The false premise is that the Court had jurisdiction to grant Mr Dutta a remedy on the basis that his dismissal was not a genuine redundancy. For the reasons just given, it had no such jurisdiction, although, as we have observed, a conclusion that his dismissal was not the result of a genuine redundancy may have been relevant to a conclusion that a reason for the dismissal was, in fact, the exercise by him of a workplace right.

22    The uncontroversial given is that the FWA expressly cites the dismissal of an employee by an employer as one example of what constitutes adverse action by an employer against an employee: s 342(1), Item 1, FWA. It was never controversial at trial that Mr Dutta had been dismissed from his employment.

23    Particularly given the way in which Mr Dutta argued his case on the appeal and his obviously genuine belief that his dismissal was not the result of a genuine redundancy, it would not, in our view, do justice either to him or, for that matter, Telstra to dispose of ground 2 in such a peremptory way. It is preferable to approach ground 2 on the basis that it alleges error on the part of the learned primary judge in concluding that he had not established that a cause of the adverse action constituted by his dismissal had not been shown to be the exercise by him of a workplace right.

24    The learned primary judge approached Mr Dutta’s general protections case on the basis that it was for Mr Dutta to prove that Telstra had taken adverse action against him and also that he had exercised a workplace right. Referring to s 361(1) of the FWA and to Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [102] – [104], [127] (Board of the Bendigo Regional Institute of TAFE v Barclay); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 at [19], [90] – [92], his Honour stated (at [190]):

If he is able to do so, it is presumed, under s 361(1) of the Act that the adverse action was taken because Mr Dutta exercised the workplace right. Telstra will then be required to prove that it took the adverse action for reasons that do not include that Mr Dutta exercised such workplace rights. Telstra must prove that any such exercise of workplace rights was not an “operative or immediate” or “substantial and operative” reason for the adverse action: see Board of the Bendigo Regional Institute of TAFE v Barclay (2012) 290 ALR 647 at [102]–[104], [127]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 at [19], [90]–[92].

That statement, with respect, discloses a correct understanding of the position, having regard to s 361(1) and the authoritative pronouncements of the High Court cited in it.

25    As already noted, it was uncontroversial that Mr Dutta had been dismissed by Telstra and that this constituted adverse action against him. The learned primary judge found accordingly. His Honour also found that Telstra’s decision not to redeploy him to an alternative position also constituted adverse action against him (at [193]).

26    As to the element of Mr Dutta’s having exercised a workplace right, the learned primary judge found that Mr Dutta was exercising a workplace right when he made complaints about two managers within Telstra, Mr Gessey and Mr Zivcic. His Honour also accepted that Mr Dutta was exercising a workplace right when he made a complaint on “Yammer” addressed to Telstra’s Chief Executive Officer. On the evidence, “Yammer” was an internal communication tool which allowed any of Telstra’s employees to post comments or comment on other employee’s posts.

27    The learned primary judge also accepted that (at [198]):

to the extent that Mr Dutta requested flexible work practices … he was initiating a process under s 65 of the [FWA], which deals with requests for flexible working arrangements … [and], accordingly, exercising a workplace right.

28    In Board of the Bendigo Regional Institute of TAFE v Barclay, at [44] and [45], French CJ and Crennan J stated:

44.     … 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?”

45.     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 …

[footnote references omitted]

29    Recognising, inferentially, the ramifications of these observations, Telstra led evidence from Mr Gessey, its General Manager of the OSS Domain who held a position senior to Mr Dutta’s direct line manager, Mr Zivic. Mr Dutta worked within an area of Telstra for which Mr Gressey had an overarching managerial responsibility. The evidence was that, while Mr Gressey knew and had dealt managerially with Mr Dutta, he did not have day to day contact with him.

30    It was noncontroversial at the trial that, in June 2017, a restructure of the OSS Team within Telstra commenced. The restructure was part of a broader restructure across Telstra’s entire business, known as “Project Rosie”. The aim of the project was to identify where efficiencies could be made and areas where costs could be reduced. Likewise uncontroversial was that one facet of Project Rose was a decision that the positions of 22% of the Applications Managers within the OSS Team would be made redundant. Those that remained would transition into a role called “End-to-End Solution Manager”. Mr Dutta was one of the Applications Managers within the OSS Team.

31    Telstra also led evidence from Mr Zivcic, who held the position of Service Operations Manager. Mr Zivcic became Mr Dutta’s direct manager in approximately September 2016. He was undertaking that role at the time of Mr Dutta’s dismissal. Mr Zivcic gave detailed evidence about his managerial relationship with Mr Dutta. He also gave evidence about his completion of Manager Assessment Forms, including one in respect of Mr Dutta, as a sequel to the restructuring decision.

32    Also called by Telstra were the following witnesses:

(a)    Ms Pascoe, “Senior Human Resources Business Partner” whose duties involved dealing with human resources with the OSS Team. Ms Pascoe had had some dealings with Mr Dutta in relation to his Yammer post. This aside, she had provided advice and assistance to managers when selecting the five criteria which came to be used in the Group Selection Process in relation to redundancy occasioned by the restructuring decision. Ms Pascoe also reviewed each of their Manager Assessment Forms to confirm that they were in line with Telstra’s redundancy and group selection policy and fair and equitable.

(b)    Mr Bajanemane, who was employed as an IT Applications Manager. His duties included managing the IT Operations Department. He was tasked by Mr Gessey to be part of the management team which conducted assessment reviews of the employees who were at risk of redundancy. However, he only completed the related “Manager Assessment Forms” for those employees who reported directly to him, and did not do so for Mr Dutta. Mr Zivcic, as noted, completed the Manager Assessment Forms for Mr Dutta.

(c)    Mr Ford held the position of Case Manager, HR Shared Services with Telstra. His role involved carrying out and coordinating redundancy appeals by employees of Telstra. He undertook this role in relation to the appeal made by Mr Dutta. He found nothing unfair about the process which had led to the selection of Mr Dutta for redundancy. He advised Mr Dutta accordingly. Before dealing with and determining that appeal, he knew nothing of Mr Dutta, Mr Zivcic or Mr Gessey. He expressly denied during cross-examination by Mr Dutta, that he had been pressured so to decide the appeal or that he had colluded in its outcome with Mr Dutta’s managers.

33    As the passage cited above from Board of the Bendigo Regional Institute of TAFE v Barclay highlights, once an applicant in a general protections application like the present proves adverse action and the exercise of a workplace right, it will be difficult, in the face of the presumption found in s 361, for an employer to defend the application successfully unless the relevant decision-maker is called to give evidence. Between them, the witnesses called by Telstra covered all material aspects of the decision to make Mr Dutta redundant and his claimed exercise of workplace rights. If their evidence is believed, and the learned primary judge expressly did believe their evidence and prefer it to that of Mr Dutta, the termination of Mr Dutta’s employment had nothing to do with his exercise of the claimed workplace rights. It was just a sequel to a restructuring decision. That does not lessen the consequence for Mr Dutta in the loss of an employment which he so obviously valued and which was, inferentially, a source not just of income but of self-esteem. It does mean that, if there were no error in the acceptance of Telstra’s witnesses, his general protection application was rightly dismissed.

34    A particular submission which Mr Dutta made to us on the appeal was that the type of work which he had undertaken when an Applications Manager before his termination was still being undertaken within Telstra. Hence, so he submitted, the evidence of Telstra’s witnesses could not have been truthful, as there had never been a genuine redundancy. But it was never part of the evidence that the type of work would cease to be undertaken at all within Telstra. Instead, the evidence was that the restructure was directed at a way such work could be undertaken with fewer staff and, hence, at a lower organisational cost.

35    The learned primary judge made very particular findings about the credibility of the witnesses who gave evidence, be they Mr Dutta or those called by Telstra. He preferred the evidence given by those called by Telstra. The following paragraphs from his Honour’s reasons for judgement contain the essence of his credibility findings:

186    My observation of Mr Dutta’s written and oral evidence is that he has some particular and distinctive personality traits which, I consider, have affected his perception of the events and incidents he complains of at Telstra.

…

189    For present purposes, I reiterate my finding that each of Telstra’s witnesses gave their evidence honestly and generally accurately. Where the evidence of those witnesses conflicts with that of Mr Dutta, I prefer their evidence.

36    The conclusions of a trial judge as to the relative credibility of witnesses are not unexaminable on an appeal of the present kind. However, Mr Dutta must demonstrate error of the kind referred to by McHugh J in Fox v Percy (2003) 214 CLR 118 at 139, [66] (Fox v Percy), citing Brennan, Gaudron & McHugh JJ in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479:

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.

[footnote references omitted]

37    These propositions were at the forefront of Telstra’s submissions as to why the factual conclusions of the primary judge were unimpeachable.

38    We must decide the facts ourselves, but such a task in the exercise of appellate jurisdiction always remains that of correcting error. We are not entitled to set at nought the views of the trial judge on the evidence and approach the case de novo: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [11] to [30] per Allsop J (as the Chief Justice then was), Drummond and Mansfield JJ agreeing, Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 358 ALR 683 at [4], [45] – [53] (Aldi). We must accept that the learned primary judge enjoyed an advantage which we did not in his assessment of the credibility of the witnesses. He observed each of them, particularly when they were under cross-examination. Those observations obviously informed his credibility assessments. Of course, where credibility conclusions so based are glaringly inconsistent with, for example, contemporaneous events or documents, it may be possible to determine that a trial judge has misused the advantage of observing witnesses: Aldi at [46]. But that is not this case. The conclusions as to the credibility of Telstra’s witnesses accord with contemporaneous documents relating to the existence of a restructuring and a consequential, albeit difficult decision, to make employees identified by a process of ordering them against assessment criteria redundant. Reviewing the evidence afresh for the purpose of determining the appeal does not persuade us that the primary judge misused his advantage in making his assessment of the relative credibility of the witnesses who gave evidence.

39    What follows from this is that, on the basis of the evidence that the primary judge was entitled to accept, his dismissal of Mr Dutta’s application was unremarkable.

“3.    Appellant claims (without prejudice) that during hearing Court, respondent’s witnesses made false statements to deny appellant justice. Appellant claimed that his Managers (Mr Gessey & Mr Zivcic) deliberately hide ‘CRISP’ process information from him while at job. This discrimination was the critical incident to proving appellant’s claim of General Protection breaches of Fair Work Act 2009, leading to appellant’s termination from Telstra employment.”

40    The fate of this ground of appeal is determined both by the explanation which we have chosen to give above in relation to the second ground of appeal, as well as by the disposal of the application to lead further evidence.

41    In theory, evidence adduced for the first time on the hearing of an appeal might demonstrate that the oral evidence given by a witness at trial just could not have been accurate. It would not automatically follow from demonstrated inaccuracy that the witness had committed perjury, i.e. deliberately given false evidence. The evidence might have been nothing more than an inaccurate but honest recollection. As it happens, Telstra’s witnesses gave oral evidence which was completely consistent with contemporaneous communications and business records within Telstra. The “CRISP process information” in no way subverted the conclusions reached by the primary judge.

42    In the face of the contemporaneous communications and business records and the consistent oral evidence of the witnesses called by Telstra, the notion of some concerted plan to terminate Mr Dutta because he had exercised any workplace right is just not maintainable.

Disposition of Appeal

43    For the above reasons, none of the grounds of appeal has merit. The appeal must be dismissed.

Associate:

Dated:    21 June 2019

REASONS FOR JUDGMENT

FLICK J:

44    Concurrence is expressed with the reasons and orders proposed in the joint reasons of Logan and Reeves JJ.

45    The sole reason for writing separately is to address a concern as to whether persons in the position of the present Appellant can make an informed decision as to which remedy they should pursue when their employment has been terminated.

46    To a lawyer familiar with the provisions of the Fair Work Act 2009 (Cth) (the “Fair Work Act”), or even to a person with familiarity with industrial law, it may be self-evident that such a person needs to make an election between pursuing a general protections claim under Pt 3-1 of the Fair Work Act or an unfair dismissal claim under Pt 3-2 of that Act.

47    There are sound reasons why an employee may pursue one – rather than another – remedy. As recognised by Logan and Reeves JJ in their joint reasons (at paras [8] to [9]), some of the considerations to be taken into account when making a decision to pursue one or other of the remedies provided for in the Fair Work Act were summarised as follows by Rangiah J in Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, (2015) 238 FCR 273 at 302 to 303 (“Anglo Coal”):

[136]    … Sections 725, 727 and 729 required Mr Byrne to elect whether to proceed under the general protections provisions or the unfair dismissal provisions of the FWA. The appellants made a tactical decision to proceed under s 340(1) and s 352, presumably because of a perceived advantage in attracting the reversal of onus of proof under s 361, and because the employer would be exposed to a pecuniary penalty for contravention of civil remedy provisions. The disadvantage of that course was that it allowed the respondent the opportunity to discharge its onus of proof by proving that the dismissal was not because of a proscribed reason. If Mr Byrne had applied under s 394 and the Fair Work Commission had made the same findings of fact as those made by the primary judge, it seems inevitable that his dismissal would have been regarded as harsh, unfair or unjust, and that he would have been reinstated. In addition, while Mr Byrne alleged that the respondent had breached the contract of employment before the primary judge, he abandoned his claim for damages. In these circumstances, the absence of any remedy is a consequence of the tactical decisions made by the appellants.

48    Sections 725, 727 and 729, as referred to in Anglo Coal, are found within Pt 6-1 of the Fair Work Act. That Part addresses what are referred to as “Multiple actions”. Div 3, within Pt 6-1, is headed “Preventing multiple actions”. Within Div 3, s 725 sets forth the “general rule” which states as follows:

A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.

Section 727 addresses “General protections FWC applications” and provides, in part, as follows:

(1)    This section applies if:

(a)    a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(b)    the application has not:

(i)    been withdrawn by the person who made the application; or    

(ii)    failed for want of jurisdiction; or

(iii)    resulted in the issue of a certificate under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).

…

(2)    A general protections FWC application is an application under subsection 365 for the FWC to deal with a dispute that relates to dismissal.

And s 729 provides as follows:

Unfair dismissal applications

(1)    This section applies if:

(a)    an unfair dismissal application has been made by the person in relation to the dismissal; and

(b)    the application has not:

(i)    been withdrawn by the person who made the application; or    

(ii)    failed for want of jurisdiction; or

(iii)    failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.

(2)    An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.

The effect of these provisions is, as stated by Rangiah J in Anglo Coal, that an unfair dismissal application under s 394 of the Fair Work Act falls within s 729 such that a person who has brought such an application (which has not been withdrawn or failed for want of jurisdiction or because the Fair Work Commission was satisfied the dismissal was a case of genuine redundancy) is precluded by s 725 from also bringing a general protections application (s 727). Where such “multiple applications” are sought to be brought, a general protections claim will be precluded by an earlier unfair dismissal claim: cf. Walsh v Umoona Tjutagku Health Services Aboriginal Corporation (No 2) [2017] FCA 852 at [23] to [25] per Charlesworth J.

49    The present concern is not to address those reasons which may influence an employee to pursue one course rather than another; the present concern is more directed to whether an employee, particularly an employee who is unrepresented, can make an informed decision with respect to electing one or the other of these remedies. As was apparent on the facts in the Anglo Coal case, the election made may be the difference between an employee obtaining some form of relief and failure.

50    It is, with respect, unclear on the facts of the present case that Mr Dutta ever knew that an election had to be made or the advantages or disadvantages of pursuing the course that he did. The course that he did pursue was to make a general protections claim, being a claim for a contravention of s 340 of the Fair Work Act, rather than seeking a remedy from the Fair Work Commission for unfair dismissal. But, by doing so, he had made an election. The Fair Work Commission had issued a certificate under s 368 of the Fair Work Act which clearly identified the claim being made as one as to a “contravention of Part 3-1 of the Act”. By reason of s 370 of the Fair Work Act, that certificate enabled Mr Dutta to pursue his proceeding in this Court. And the form of Originating Application filed in the proceeding before the primary Judge clearly identified the application as being with respect to a “contravention of a general protection”. The primary Judge was correct in concluding that the “Court may not entertain Mr Dutta’s claim for a remedy for unfair dismissal”: Dutta v Telstra Corporation Limited [2018] FCA 1994 at [266].

51    The form of a certificate or the form of an Originating Application may not, in all cases, reflect an informed decision being made by an unrepresented employee.

52    Such steps as may prove to be of some utility to address the present concern include the better education of employees, to ensure that they are fully informed of their rights upon termination, and to otherwise leave it to the Fair Work Commission (and this Court) to be astute to the difficulties confronting unrepresented parties and to take such steps as are considered appropriate, on the facts and circumstances of an individual case, to raise with an unrepresented claimant the prudence of the course being pursued.

Associate:

Dated:    21 June 2019