FEDERAL COURT OF AUSTRALIA
United Firefighters Union of Australia v Easy [2013] FCA 763
IN THE FEDERAL COURT OF AUSTRALIA | |
uNITED FIREFIGHTERS UNION OF AUSTRALIA First Applicant SOFIE ANTONAKIS Second Applicant
| |
AND: | NICHOLAS EASY First Respondent PAMELA CAREY Second Respondent danielle byrnes Third Respondent metropolitan fire and emergency services board Fourth Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The application is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
VICTORIA DISTRICT REGISTRY | |
Fair Work DIVISION | VID 445 of 2012 |
BETWEEN: | uNITED FIREFIGHTERS UNION OF AUSTRALIA First Applicant SOFIE ANTONAKIS Second Applicant
|
AND: | NICHOLAS EASY First Respondent PAMELA CAREY Second Respondent danielle byrnes Third Respondent metropolitan fire and emergency services board Fourth Respondent |
JUDGE: | ROSS J |
DATE: | 2 August 2013 |
PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
1. Background
1 The United Firefighters’ Union (the UFU) and Ms Sofie Antonakis allege that the respondents have contravened the Fair Work Act 2009 (Cth) (the Act) in that they have taken adverse action against Ms Antonakis because she:
(a) exercised a workplace right in that she was able to participate in protected industrial action,1 and she initiated or participated in a process or proceeding under workplace law namely these proceedings2; and
(b) engaged in an industrial activity namely the Industrial Action,3 defined by the applicants as action the subject of a ‘question with respect to proposed industrial action’ in a protected ballot order in the following terms:
Do you for the purpose of advancing claims and the negotiation of an enterprise agreement with the Metropolitan Fire & Emergency Board, authorise industrial action in the form of wearing, distributing and posting union campaign material such as t-shirts, badges, written communications and stickers in support of the proposed enterprise agreement?4
2 The applicants seek relief in the form of declarations, the imposition of penalties and compensation for Ms Antonakis. They do not press injunctive relief.
3 The conduct which is alleged to constitute the adverse action occurred during the following periods:
(a) 18 May to 22 May 2012 inclusive;
(b) 19 October to 13 November inclusive; and
(c) 26 November 2012.5
4 The first applicant, the UFU, is a registered organisation pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth) and is a person who may apply for orders in relation to a contravention of a provision in Part 3-1 General Protections of the Act.6 At all relevant times the second applicant, Ms Sofie Antonakis, was (and is) an employee of the Metropolitan Fire and Emergency Services Board (the MFB). In November 2011 Ms Antonakis became (and remains) a member of the UFU.7
5 The MFB (the fourth respondent) is a body corporate with perpetual succession and is capable of being sued in its own name.8 The MFB is a ‘public entity’ as defined in s 5 of the Public Administration Act 2004 (Vic).
6 Mr Nicholas Easy (the first respondent) is (and was at all relevant times) the Chief Executive Officer of the MFB and a member of the MFB’s Executive Leadership Team. Mr Easy is responsible for the employment, management and control of all MFB employees and the overall direction, management and supervision of the MFB’s operations.
7 At all relevant times, Ms Pamela Carey (the third respondent) was the Executive Assistant to Mr Easy.
8 At all relevant times, Ms Danielle Byrnes (the second respondent) was an employee of the MFB and a member of the Executive Leadership Team of the MFB. Ms Byrnes reported directly to Mr Easy, and was the Executive Director of People and Culture for the MFB. Ms Antonakis is Ms Byrnes’ Executive Assistant.
9 Before turning to the relevant conduct I propose to deal with some broad contextual matters.
10 On 1 April 2011, the UFU commenced bargaining with the MFB for the purpose of negotiating an enterprise agreement to cover technical and corporate employees of the MFB, in accordance with the provisions of Part 2-4 of the Act. The UFU and MFB are bargaining representatives in respect of the proposed agreement, as defined in s 176 of the Act.
11 The UFU’s claim on behalf of the corporate and technical employees was in writing and was provided to the MFB.
12 On 24 June 2011, pursuant to s 240 of the Act the UFU applied to Fair Work Australia (the Tribunal) requesting that the Tribunal deal with a dispute about the agreement that could not be resolved by the UFU and the MFB.
13 On 14 and 22 July 2011, the Tribunal conciliated the dispute and, from 18 August 2011, the UFU and the MFB negotiated weekly with respect to the terms of the proposed enterprise agreement. On or around 29 March 2012 the UFU:
(a) sought to organise industrial action for the purpose of supporting or advancing claims in relation to the proposed enterprise agreement; and
(b) made an application to the Tribunal for an order requiring that a protected action ballot be conducted to determine whether the employees whose employment is to be covered by the proposed enterprise agreement, including Ms Antonakis, wish to engage in the particular protected industrial action for the proposed agreement.
14 On 29 March 2012, the Tribunal made a protected action ballot order9 in the following terms:
‘Do you for the purpose of advancing claims and the negotiation of an enterprise agreement with the Metropolitan Fire & Emergency Board, authorise industrial action in the form of wearing, distributing and posting union campaign material such as t-shirts, badges, written communications and stickers in support of the proposed enterprise agreement?’ (the ‘Protected Action’)
15 On 10 April 2012, the protected action ballot was commenced by the Australian Electoral Commission (the AEC) via post and on 24 April 2012 the ballot result was declared by the AEC.10 On this basis, the applicants contend that the Protected Action was authorised by the employees whose employment would be covered by the proposed enterprise agreement.
16 One of the issues in these proceedings is whether the wearing of a union t-shirt for the purpose of advancing claims in the context of the negotiation of an enterprise agreement constitutes ‘industrial action’ within the meaning of the Act. I return to this issue shortly.
17 On 1 May 2012, the UFU notified the MFB:
(a) of the intention of the employees whose employment would be covered by the proposed enterprise agreement to take industrial action pursuant to s 414 of the Act;
(b) that the industrial action would include the Protected Action; and
(c) that the Protected Action would commence at 9.00 am on 7 May 2012 and would be ongoing.
18 On 7 May 2012, some of the employees whose employment would be covered by the proposed enterprise agreement engaged in the Protected Action. Ms Antonakis was aware that the industrial action commenced on 7 May 201211 in the form of a four hour work stoppage. Ms Antonakis gave evidence that she did not participate in any industrial action prior to 18 May 2012.12 She gave evidence specifically that she did not participate in the four hour stoppage on 7 May 2012, but had gone downstairs to visit colleagues. She did not consider she was engaging in industrial action.13 While downstairs Mr Con Patralis, an MFB employee, handed a UFU t-shirt to Ms Antonakis.14
19 The UFU t-shirt was a polo style shirt, navy blue in colour. The UFU logo on the t-shirt is located on the top left front corner of the shirt on the chest area. The logo is approximately 10 cm by 10 cm. The wearing of a UFU t-shirt by Ms Antonakis on 18 May 2012 is at the heart of one of the adverse action allegations.
20 Before turning to the specific allegations I propose to set out the relevant legislative context.
2. Relevant provisions of the Fair Work Act 2009 (Cth)
21 Part 3-1 of the Act prohibits an employer from taking adverse action against an employee because, relevantly, that employee exercises a workplace right or engages in industrial activity.
22 Section 346 is one of the central provisions. It states, in part:
‘A person must not take adverse action against another person because the other person:
... (b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b) ...’ [emphasis added]
23 An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity was a ‘substantial and operative factor’ in the employer’s reasons for taking the action which constitutes ‘adverse action’ within the meaning of s 342.15
24 In relation to the allegations regarding the period from 18 May - 22 May 2012, it is alleged that the MFB took adverse action against Ms Antonakis because she had participated in protected industrial action; and further, or alternatively, because she had engaged in industrial action.
25 The applicants contend that Ms Antonakis participated in protected industrial action (or engaged in industrial action) by wearing a UFU t-shirt during the course of 18 May 2012. The respondents reject this proposition. I return to this issue shortly.
26 Section 347(f) provides that a person engages in industrial activity if the person ‘takes part in industrial action’.
27 The meaning of ‘engages in industrial activity’ is broader than taking part in industrial action and includes participating in ‘a lawful activity organised or promoted by an industrial association’ (s 347(b)(iii)). But it is important to note that the Amended Statement of Claim in these proceedings did not allege that Ms Antonakis had been engaged in any ‘industrial activity’ other than engaging in industrial action.
28 Section 340 is also important. 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]
29 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.’
30 The meaning of the expression ‘a process or proceedings under a workplace law’ includes court proceedings under a workplace law and protected industrial action (s 341(2)(b) and (c)).
31 On 29 June 2012, the Federal Court proceedings in VID445/2012 were commenced by the UFU and Ms Antonakis. It is common ground that the proceedings are proceedings under a workplace law within the meaning of s 341(2) of the Act and that in instituting these proceedings Ms Antonakis was exercising a workplace right within the meaning of s 340(1)(a)(ii) of the Act.
32 Here it is alleged that the MFB took adverse action against Ms Antonakis because:
(a) she exercised a workplace right; and
(b) she engaged in industrial activity.
33 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.
34 In Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia16 (Patricks) the High Court considered the meaning of a provision in essentially the same terms in a legislative antecedent to s 342 (i.e. s 298K of the Workplace Relations Act 1996 (Cth)). Their Honours (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ) held, (at [18]) that injuring an employee in his or her employment (now s 342(b)) covered ‘injury of any compensable kind’ and that altering an employee’s position to their prejudice (now s342(c)) was:
‘. . . a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.’
35 In Patricks the majority of the High Court observed (at [20]) that the reorganisation of the companies within the Patrick Group resulted in the security of the employer companies’ businesses being ‘extremely tenuous’ with the ‘security of the employees’ employment [being] consequentially altered to their prejudice’. The reorganisation did not directly affect or alter any legal rights or obligations of the employees but it left their future employment less secure and hence had altered the position of the employees to their prejudice.
36 This characterisation of adverse action was adopted by the Full Court of this Court in Community and Public Sector Union and Another v Telstra Corporation Limited.17 In that matter the Court found (at [20]) that, for the purpose of redundancy eligibility, the addition of detrimental criteria to the criterion already provided by the relevant industrial instruments meant that:
‘... the employment of employees on awards or certified agreements had become less secure, in a real and substantial manner, than it had been previously.’
37 In those circumstances the Court decided that the position of the relevant employees had been altered to their prejudice.18
38 Subsequent cases are illustrative of the range of circumstances which may amount to altering the position of an employee to their prejudice and hence constituting adverse action, for example:
First
the laying of employment-related disciplinary charges against an employee;19
commencing an investigation into an employee’s conduct;20
requiring an employee to participate in an investigatory process;21
suspending an employee from duty;22 and
issuing a disciplinary warning to an employee.23
39 Sections 360 and 361, in Div 7 of Pt 3-1, 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 346. 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 a burden 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.
40 The following description of a legislative predecessor to s 361, given by Mason J in General Motors-Holden’s Pty Ltd v Bowling24 remains pertinent:25
‘the plain purpose of the provision [is to throw] on to the defendant the onus of proving that which lies peculiarly within his own knowledge.’26
41 The practical effect of s 361 is that in most cases an explanation of the real reason for the adverse action, consistent with the absence of a proscribed reason, is also necessary to rebut the presumption.27 But it is important to note that s 361 does not obviate the need for the applicants 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 applicants to merely make assertions regarding these elements, they must be determined objectively.28
42 In the context of this case the applicants bear the onus of establishing - for example - that Ms Antonakis was engaging in protected industrial action at the relevant time and that adverse action was taken against her. If so established, the respondents then bear the onus of establishing that the adverse action was not taken because Ms Antonakis was engaged in protected industrial action.
43 Part 4-1 provides for civil remedies in respect of a contravention of ss 340 and 346. Section 550 of the Act provides that a person who is ‘involved’ in a contravention of a civil remedy provision is deemed to have contravened that provision.
44 The task of the Court in a proceeding such as this is to determine three factual questions:
(i) Was the employee engaged in an ‘industrial activity’(subject to the qualification mentioned at [27] infra)? (Or was the employee exercising a workplace right?)
(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 proscribed reason, or reasons which included that reason?
45 The question of why an employer took adverse action against an employee is a question of fact29 and the application of s 346 turns on the word ‘because’. As Gummow and Hayne JJ observed in Board of Bendigo Regional Institute of Technical and Further Education v Barclay30 (Barclay):
‘The use in s.346(b) of the term “because” in the expression “because the other person engages ... in industrial activity”, invites attention to the reasons why the decision-maker so acted. Section 360 stipulates that, for the purposes of provisions including s.346, while there may be multiple reasons for a particular action “a person takes action for a particular reason if the reasons for the action include that reason”. These provisions presented an issue of fact for decision by the primary judge.31
46 Evidence from the decision-maker which explains why the adverse action was taken will be relevant to the determination of this factual question. As French CJ and Crennan J observed in Barclay:
‘The imposition of the statutory presumption in s.361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of the 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” ...
... direct testimony from the decision maker is capable of discharging the burden upon an employer even though an employee may ... engage in industrial activity.’32
47 In determining an application under s 346 the Court is to assess whether the engagement of an employee in an ‘industrial activity’ was a ‘substantial and operative reason’, potentially among many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence is to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it is the reasons of the decision-maker at the time the adverse action is taken which is the focus of the inquiry.33 The same approach is to be taken in respect of an application under s 340.
48 I need to say something about my assessment of the witnesses who gave evidence in the proceedings before turning to the specific allegations.
49 The applicant, Ms Antonakis, and each of the named respondents (Mr Easy, Ms Carey and Ms Byrnes) gave evidence in the proceedings. In addition, Mr Blair Trask and Mr Casey Lee gave evidence. Mr Trask is the Director of Governance and Corporate Secretary at the MFB and Mr Lee is an industrial officer with the UFU.
50 I did not find Ms Antonakis to be a credible witness; her evidence appeared to be crafted to assist her case. Five particular matters have led me to exercise considerable caution in accepting any aspect of Ms Antonakis’ evidence which conflicted with the evidence of other witnesses in the proceeding.
(i) On her own admission Ms Antonakis’ memory of the events of 18 May 2012 was not clear and she acknowledged that she ‘tended to sometimes forget things’.34
(ii) Aspects of Ms Antonakis’ evidence were inconsistent with the CCTV footage of the incident in and around Mr Easy’s office, which formed the basis of the first allegation. In her evidence Ms Antonakis denied that her interaction with Ms Carey was jovial35 and said that she was not smiling when she came out of Mr Easy’s office but was ‘in a state of shock and disbelief’.36 The CCTV footage gives a very different impression of these events. The interaction between Ms Carey and Ms Antonakis appears jovial - both are smiling, at each other. Further, Ms Antonakis appears to be smiling as she leaves Mr Easy’s office.
(iii) Parts of Ms Antonakis’ evidence and some of her actions were coloured by her antipathy towards Ms Byrnes.37 Ms Antonakis does not want to continue working with Ms Byrnes and her preferred position - both prior to May 2012 and continuing to the present time - is that Ms Byrnes leave the MFB.38 It is also notable that Ms Antonakis gave inconsistent evidence as to her relationship with Ms Byrnes; earlier in her evidence she said that before the events of 18 May 2012 the relationship ‘was fine’.39
(iv) Ms Antonakis was somewhat guarded and evasive under cross-examination.40
(v) Aspects of Ms Antonakis’ evidence simply lacked credibility. An example serves to illustrate this point. In her role as Ms Byrnes’ executive assistant Ms Antonakis had access to Ms Byrnes’ emails, inbox, sent and deleted items.41 Exhibit MFB 6 is a letter from the applicant’s solicitors to the respondent’s solicitors, dated 31 January 2013. The letter states:
‘We are instructed that Ms Byrnes sent documentation to her hotmail address throughout 2011. We now require your clients discover all emails sent by Ms Byrnes to her hotmail address. In particular, we refer to email sent: ...’
The letter goes on to particularise some 32 emails sent by Ms Byrnes in the period from 2 July 2011 to 10 May 2012, and then states:
‘In addition we understand that Danielle Byrnes created two documents entitled ‘Sofie notes July 2012’ and ‘File note re adverse action claim Danielle Byrnes 25 October 2012’. We do not consider that these documents should be privileged and require discovery of same.
In addition we have previously made reference to the fact that Danielle Byrnes sent emails regarding comments about her co-workers, including Mr Nick Easy ... We require discovery of the emails between Ms Byrnes and other staff members including but not limited to the following: ...’
The letter goes on to particularise a further 15 emails sent by Ms Byrnes in the period from 15 February 2011 to 25 October 2012.
During cross-examination Ms Antonakis acknowledged that she had provided her solicitors with copies of the emails referred to in Exhibit MFB 6. The emails were taken off Ms Byrnes’ sent box by Ms Antonakis and printed out at the MFB.42 Ms Antonakis provided these emails to her solicitors to assist in her case against the MFB and Ms Byrnes.43 Ms Antonakis’ actions in this regard were not authorised by Ms Byrnes.44 An issue in contention was whether Ms Antonakis had conducted a search of Ms Byrnes’ sent box for the purpose of finding emails that would assist her case. It is this aspect of Ms Antonakis’ evidence which lacks veracity. The following exchanges during cross-examination are relevant:
‘Counsel: You see, this would appear that you have spent time in the last few months conducting searches of Ms Byrnes’ outbox, sent box, doesn’t it?
Ms Antonakis: No, I didn’t.
Counsel: Well, I suggest to you what this indicates is, you’ve spent some of the last few months, whilst this litigation is in place, searching through emails that had been sent by Ms Byrnes to her home email, correct?
Ms Antonakis: I knew that they were there. I had seen them from when she had sent them...45
Counsel: I suggest that you were looking at two emails, Sofie Notes July 2012 and File Note Re Adverse Action Claim Danielle Byrnes 25 October 2012, in looking at these documents, in no sense are you performing your role as executive assistant to Danielle Byrnes, are you?
Ms Antonakis: I found them during the course of my role as executive assistant to Danielle Byrnes.
Counsel: You found them conducting a search for material that would help you in this case, didn’t you?
Ms Antonakis: No, I did not.
Counsel: Well, there’s no reason for you to go looking through Ms Byrnes’ outbox?
Ms Antonakis: There is, because on many occasions she asks me to look for emails, she can’t remember where they are.
Counsel: She didn’t ask you to look for these emails, did she?
Ms Antonakis: No, she didn’t ask for these ones, no.
Counsel: You did this secretly, didn’t you?
Ms Antonakis: No, I didn’t do it secretly. I found them when I was doing other searches for documents she wanted me to look for.’46
Ms Byrnes’ evidence was that she sent some 12,000 emails in the period in which the emails printed by Ms Antonakis were sent.47 Ms Byrnes also said that Ms Antonakis had no reason to go into her sent box: ‘I don’t have any expectation that an EA would read my sent mail. In fact, I consider my sent mail to be private other than if I want an assistant to be included in a sent item, I will cc them or I will give them quite explicit instruction about what it is that they’re required to do ...’.48 Ms Byrnes did not make any requests about searching any of the emails in her sent box.49 Ms Byrnes was not cross-examined in respect of this part of her evidence.
51 It is highly unlikely that Ms Antonakis was able to recall specific emails among the 12,000 emails sent by Ms Byrnes over the course of 2011 and 2012. I reject Ms Antonakis’ evidence in this regard and find that she did in fact search Ms Byrnes’ sent box for the purpose of identifying emails which would assist her case.
52 In contrast to Ms Antonakis, I found Ms Carey and Ms Byrnes to be frank, credible witnesses. They answered questions in a spontaneous, unguarded fashion and made admissions against their interest.
53 It is convenient to deal here with the applicants’ contention that Ms Byrnes’ evidence was coloured by the fact that she felt betrayed by Ms Antonakis. This contention arises from Ms Byrnes’ evidence about her reaction to Ms Antonakis’ actions in wearing a UFU t-shirt and in instituting these proceedings. Ms Antonakis wore a UFU t-shirt at work on 18 May 2013. I return to this incident in more detail shortly. In her file note recording the events of that day Ms Byrnes says:
‘The wearing of a UFU T-shirt by an executive assistant was notable and whether or not Sofie had considered the effect, it made a statement. . . I felt a sense of professional betrayal and disappointment that Sofie was wearing the T-shirt. It appears to represent an alignment with an organisation who has worked against the interests of me and my office.’
54 Ms Byrnes was cross examined about this file note:
‘Counsel: And I suggest to you your view is that your EA cannot be a member of the UFU and work for you?
Ms Byrnes: That’s not the case. But when I saw Sofie wearing the t-shirt, as I said in my previously in my evidence, it didn’t occur to me that she was participating in industrial action. But what I did think was she was signalling to me was loyalty to the UFU.
Counsel: And these proceedings, naming you in them is another act of that betrayal, isn’t it? That’s how you perceive it?
Ms Byrnes: I don’t think you would be human if you were to say that it’s not disappointing and unpleasant to be involved in legal matters.
Counsel: You perceive this as an act of betrayal by Ms Antonakis, taking these proceedings?
Ms Byrnes I’m actually more confounded by it. I don’t understand it.
Counsel: So wearing the t-shirt was an act of betrayal.
Ms Byrnes: Yes.
Counsel: And in your view, issuing these proceedings was another act of betrayal, wasn’t it?
Ms Byrnes: I might have experienced it like that on an emotional level. But it doesn’t mean that she doesn’t have the right.’50
55 Contrary to the applicants submission, this aspect of Ms Byrnes’ evidence does not lead me to form an adverse view as to Ms Byrnes’ credit. Ms Byrnes was simply giving a frank and honest assessment of her reaction to Ms Antonakis’ actions. Such a reaction is understandable having regard to the context, in particular:
Ms Antonakis was Ms Byrnes’ executive assistant, a role which involved a high level of trust.
Ms Byrnes leads the MFB’s Employee Relations Team which has responsibility for managing negotiations with the UFU.
Ms Byrnes has personally been the subject of derogatory and inappropriate UFU bulletins.51
Ms Antonakis had previously told Ms Byrnes, on 1 May 2012, that she was not a UFU member and did not intend to participate in the bans (see [172] - [175] infra).
56 I also found Messrs Lee, Easy and Trask to be credible witnesses, though Mr Easy and Mr Trask were somewhat guarded in their responses under cross-examination.
3. The allegations
57 The allegations of adverse action can be conveniently divided into three periods:
the events of 18 May 2012 and the instigation by the MFB of an investigation into those events (18 May - 22 May 2012 inclusive);
the events since the institution of the Federal Court proceedings (19 October - 13 November 2012 inclusive); and
the incident involving a number of Ms Antonakis’ personal items.
3.1 The Events of 18-22 May 2012
(i) 18 May 2012
(a) First interaction between Ms Antonakis and Ms Byrnes
58 I propose to first deal with what happened on 18 May 2012 before turning to the allegations of adverse action and discrimination.
59 On the morning of 18 May 2012 Ms Antonakis attended her workplace. At that time she was not wearing a UFU t-shirt. At 12.23 pm Ms Antonakis sent an email to her fiancé in the following terms:
‘Hey I just put a UFU top over the top I am currently wearing - did because I am feeling cold but also to see what kind of reaction I get.
I will probably annoy her and I guess that is a plus.’52
60 The ‘her’ mentioned in the email is a reference to Ms Byrnes.53 Ms Antonakis’ fiancé replied, at 12.23 pm:
‘Oh well, if you’re cold what are you to do. Its a bonus if you get a reaction.’54
61 Ms Antonakis replied at 12.39 pm:
‘She hasn’t seen me yet.’55
62 At some time shortly after 12.40 pm Ms Antonakis put on the UFU t-shirt, and wore it while performing her duties in the executive suite of the MFB premises at 456 Albert Street, East Melbourne.
63 Sometime shortly after 12.40 pm Ms Antonakis went into Ms Byrnes’ office. In cross-examination Ms Antonakis rejected the suggestion that she had walked into Ms Byrnes’ office to make ‘absolutely sure’ that Ms Byrnes saw her wearing the UFU t-shirt. According to Ms Antonakis she had some paperwork to give to Ms Byrnes and that is why she went into her office.56 I reject this aspect of Ms Antonakis’ evidence and find that she entered Ms Byrnes’ office wearing the UFU t-shirt in order to get a reaction from Ms Byrnes. Such a finding is supported by the email exchange between Ms Antonakis and her fiancé, shortly before she entered Ms Byrnes’ office. There is a dispute as to what was said during this brief interaction between Ms Antonakis and Ms Byrnes.
64 It is common ground that Ms Byrnes said ‘you’ve got a UFU T-shirt on’57 and that she asked Ms Antonakis if she had bought the t-shirt and that Ms Antonakis replied ‘no, they were handed out.’58 According to Ms Antonakis that was the extent of the exchange.
65 Ms Byrnes’ evidence about this interaction is as follows:
‘I said, “Oh, you’re wearing a UFU T-shirt.” She said, “Yes. I was cold.” And I accepted that explanation without question, because I know that she feels cold. She talks about being cold in the office frequently. And I - and I said to her, “Did you buy one?” Because I don’t know where people get them from. And she “Oh, they’re handing them out at the rally.” And I said, “Okay, well, I can’t say I’m thrilled to see you wearing it, but fine.” And that was the end of that conversation.’59
66 Ms Antonakis was cross-examined about what was said during this exchange and said that she could not recall saying ‘Yes, I’m wearing it because I’m cold’.60 Ms Antonakis also denied that Ms Byrnes said ‘Well I can’t say I’m happy about it’ or words to that effect. According to Ms Antonakis, Ms Byrnes made this comment to her later in the day, after the incident in Mr Easy’s office.61 Ms Byrnes was also asked about when she made the statement attributed to her:
‘Ms Antonakis has told the court that that was a comment you made at 3 o’clock or thereabouts in that later conversation with Ms Antonakis? --- I certainly didn’t make it at that time. I wouldn’t have made it at that time because she was distressed. I was listening to her, supporting her. I wouldn’t have made a comment like that. It’s very clear in my mind and I took pretty extemporaneous notes of the event on the Monday the 22nd and my notes show that I recorded that I had made the comment about not being thrilled about the t-shirt at the 12 o’clock meeting.’62
67 Ms Byrnes made a contemporaneous note of the events of 18 and 21 May 2012 in a file note dated 22 May 2012, set out at Tab 22 of Joint Exhibit 1. The file note is consistent with Ms Byrnes’ oral evidence.
68 The applicants submit that Ms Antonakis’ evidence on this issue should be preferred and that the Court should find that Ms Byrnes said ‘I can’t say I’m happy about it’, or words to that effect, later in the day, after the incident in Mr Easy’s office. Three points are advanced in support of this contention:
(i) If Ms Byrnes had made the comment at about 12.40 pm then Ms Antonakis would have taken the UFU t-shirt off and reported the incident to a representative of the UFU;
(ii) Ms Byrnes making the statement after 3.00 pm accords with Ms Antonakis’ statements and reactions the following Monday - that she did not feel supported by Ms Byrnes; and
(iii) Ms Byrnes’ evidence that she ‘felt betrayed’ by Ms Antonakis wearing the UFU t-shirt.
69 The third point has already been addressed (see [53]-[55] infra) and the other two points are unconvincing. As to (i), Ms Antonakis was not asked what her reaction would have been if the remark had been made earlier in the day and there is no reasonable basis for concluding that she would have taken the action suggested. As to (ii), Ms Antonakis’ statements that she did not feel supported by Ms Byrnes is more likely to have been a manifestation of Ms Antonakis’ general antipathy towards Ms Byrnes.
70 In relation to conflict between the evidence of Ms Byrnes and Ms Antonakis as to what was said in the brief interaction between them at about 12.40 pm on 18 May 2012, I prefer Ms Byrnes’ evidence, for three reasons:
it is consistent with her contemporaneous file note;
Ms Byrnes said that Ms Antonakis had said that she was cold. Ms Antonakis could not recall making such a statement, but it is consistent with her email exchange with her fiancé shortly before the interaction with Ms Byrnes; and
the general credit issues dealt with at paragraphs [50]-[56].
71 It is common ground that after Ms Antonakis left Ms Byrnes’ office she went back to her desk. Ms Antonakis did not take the UFU t-shirt off and did not have any other interaction with Ms Byrnes about the UFU t-shirt until after 3.00 pm that day.63
72 The next incident of note took place at about 3.00 pm and involved Ms Antonakis, Ms Carey and Mr Easy. Ms Antonakis was wearing the UFU t-shirt at the time of the incident.
(b) The incident involving Ms Antonakis, Ms Carey and Mr Easy
73 Ms Antonakis was walking towards the boardroom. There is a dispute as to whether Ms Antonakis paused at the entrance to Ms Carey’s office, or walked past it. Ms Antonakis was cross-examined about this:
‘Can I suggest that you paused at that door and said to Ms Carey, “Hi Pamela?” Correct? --- As I walked past, I said “Hi Pamela,” correct.’64
74 Ms Carey’s evidence was that Ms Antonakis did stop at her door.65
75 Ms Carey also gave evidence that stopping to say ‘Hi Pamela’ was not something Ms Antonakis would usually do:
‘So you said that Ms Antonakis came to the door and said, “Hi Pamela”? --- She did, indeed.
Is that something she would usually do? --- She didn’t walk past my office too often, and she certainly never used to stop at the door and say, “Hi, Pamela”.’66
76 Ms Antonakis denied that she was hoping for a reaction from Ms Carey.67
77 In relation to this aspect of the interaction between Ms Antonakis and Ms Carey the applicants make the following observation about the CCTV footage in their reply submissions (at [12]):
‘One can also observe from the CCTV that Ms Antonakis appears to be hiding the UFU insignia by the way she carries her hand as she walks past Ms Carey’s office. This conduct is not consistent with Ms Antonakis goading Ms Carey into a reaction.’
78 The CCTV footage does show that Ms Antonakis’ hand is raised, in the general vicinity of the logo on her t-shirt. Her hand only partially covers the logo and it does not appear to be in contact with the t-shirt. The explanation for the placement of Ms Antonakis’ hand is unclear. Ms Antonakis was not asked any questions about this issue and the Amended Statement of Claim makes no mention of it. In the circumstances I am not prepared to find that Ms Antonakis was attempting to hide the logo on her t-shirt.
79 I prefer Ms Carey’s evidence on this point and find that Ms Antonakis did pause at the door to Ms Carey’s office and did so for the purpose of getting a reaction from Ms Carey. Ms Antonakis’ actions in this regard were consistent with her actions earlier in the day when she sought to get a reaction from Ms Byrnes. It is notable that Ms Antonakis had not previously stopped at Ms Carey’s door and said ‘Hi Pamela’.
80 It is common ground that Ms Carey called out to Ms Antonakis, who turned back towards Ms Carey’s office. Ms Antonakis’ evidence was that Ms Carey said ‘excuse me, excuse me Sofie’.68 Ms Carey rejected the proposition that she shouted ‘excuse me, excuse me’ at Ms Antonakis. She conceded that she raised her voice to get Ms Antonakis’ attention but denied shouting ‘excuse me, excuse me’.69 Her evidence was that she said Sofie ‘a few times, in a very inquiring voice’ and that they were both laughing at the time.70 Ms Antonakis agreed that she was smiling when she came back to Ms Carey’s office.71 Ms Carey left her desk and moved towards Ms Antonakis. Ms Carey was laughing at the time.72 Ms Carey said ‘What’s that?’, pointing to the UFU t-shirt worn by Ms Antonakis.
81 The applicants submit that Ms Antonakis’ evidence is to be preferred on the basis that Ms Carey gave inconsistent evidence about whether she spoke in a loud voice in her interaction with Ms Antonakis on 18 May 2012. The inconsistency is said to arise between Ms Carey’s statement in the subsequent JBSA investigation (see [227]-[254] infra) - in which she said ‘I felt we were both being quite loud’73 - and her oral evidence. Counsel for the applicants put the inconsistency in these terms:
‘Now, she gives evidence that she speaks sotto voce in her normal circumstances but yet - and told the court that but yet, she says that she was being loud in this interaction.’74
82 I am not persuaded that there is any inconsistency between Ms Carey’s statement to the investigator and her oral evidence. In her oral evidence Ms Carey conceded that she raised her voice to get Ms Antonakis’ attention, but denied shouting. Ms Carey’s evidence was that both she and Ms Antonakis were laughing and smiling. All of this accords with Ms Carey’s statement to the investigator.
83 I accept Ms Carey’s evidence in relation to this exchange.
84 Another person was present in Ms Carey’s office, a Ms Guest. At the time Ms Guest was an administrative assistant employed by the MFB, and is currently employed by an associated entity. Ms Guest was not called and the applicants invited the Court to draw an adverse inference from the MFB’s failure to call Ms Guest, on the basis of the rule in Jones v Dunkel. I am not persuaded that it is appropriate to draw such an inference.
85 The inferences which may be drawn under Jones v Dunkel all turn on the unexplained failure to call a witness who is in a party’s camp.75 I am not persuaded that Ms Guest can properly be regarded as being in the MFB’s camp. There is no general rule that a party is expected to call their employees, as Lush J observed in Earle v Castlemaine District Community Hospital:
‘the bare fact that the absent witness is an employee of the party against whom his absence is sought to be used will not necessarily be sufficient, though the higher he stands in the party’s employment or confidence the more reason there will be for thinking that his knowledge is available to his employer rather than to the other party.’76
86 While the position may be different in relation to senior executives, Ms Guest does not answer that description, she was an administrative assistant at the relevant time.
87 It is also relevant to observe that the CCTV recording shows that Ms Guest had her back to the entry to Ms Carey’s office. Ms Guest would not have been able to give evidence on the critical issue in dispute - whether Ms Antonakis paused at the entrance to Ms Carey’s office and turned towards her. To attract the rule in Jones v Dunkel the evidence of the missing witness must be such as would have elucidated a matter.77
88 Counsel for the applicants also submitted that the respondents should have called Ms Guest as ‘part of the responsibility of discharging the onus’.78 There is no substance in this point. The reverse onus provisions in s 361 only operate after the applicants establish each of the elements of the general protections upon which they seek to rely. Ms Guest may have been in a position to give evidence relevant to whether adverse action was taken against Ms Antonakis; but the onus of establishing adverse action rests on the applicants, not the respondents. The onus shifts to the respondents once (relevantly) adverse action and industrial activity are established. It is then for the respondents to prove that the adverse action was not taken because the employee engaged in industrial activity.
89 It is common ground that Ms Carey then made contact with Ms Antonakis’ t-shirt and that Ms Carey and Ms Antonakis walked into Mr Easy’s office. The degree of force used by Ms Carey is in dispute. The applicants contend that Ms Carey ‘dragged Ms Antonakis by the sleeve’ of her t-shirt into Mr Easy’s office. The respondents contend that as Ms Antonakis and Ms Carey walked into Mr Easy’s office, Ms Carey ‘lightly held on to Ms Antonakis’ sleeve’. Ms Carey’s evidence is that she picked up the shoulder of Ms Antonakis’ t-shirt and said ‘What’s that’ or ‘What’s this’.79 Ms Carey rejected the suggestion that she ‘grabbed the shirt sleeve’ of Ms Antonakis’ t-shirt and her recollection was that she ‘used two or three fingers to pick up the shoulder of the shirt’.80 Ms Antonakis pointed to the CCTV and said ‘You shouldn’t be doing this in front of the cameras’.81 Ms Carey was cross-examined as to this aspect of the interaction with Ms Antonakis:
‘She was giving you fair warning, wasn’t she, that what you were doing was not acceptable conduct? --- I was also of the view that we were just having a larking - bit of fun together.
Ms Carey, she was giving you fair warning about the CCTVs – that what you were doing was unacceptable conduct - wasn’t she?---That might have been how she saw it. I saw it - that we were just having fun, and I wasn’t doing anything unacceptable.’82
90 Ms Carey rejected the proposition that Ms Antonakis had said ‘What are you doing? What are you doing?’.83 I accept Ms Carey’s evidence and find that Ms Antonakis did not say ‘What are you doing? What are you doing?’
91 Ms Carey rejected the suggestion that she ‘dragged Ms Antonakis down the corridor and pulled her into the CEO’s office’.84
92 A copy of the CCTV footage of this incident is at Tab 16 of the Joint Exhibit 1. The CCTV footage does not support the contention that Ms Carey ‘dragged Ms Antonakis by the sleeve’ of her t-shirt into Mr Easy’s office. In fact it shows that Ms Antonakis was walking in front of Ms Carey, as opposed to being dragged by her. The footage also supports the respondents’ contention that the episode was light hearted - both Ms Antonakis and Ms Carey were smiling.
93 In the applicants’ reply submission (at [17], [18] and [20]) a number of points are made about the CCTV footage:
‘It is submitted that the court must have regard to the CCTV footage with respect to where the shirt and how the shirt was grabbed by Ms Carey. It is clear from the footage that it was grabbed down low on the shirt sleeve and that was done so with such force that it resulted in the shirt sleeve being pulled up. This is evidenced by the stretch of the fabric.
The evidence of Ms Carey that she lightly held the shirt on the top of the shoulder must be in doubt. The CCTV footage does not support her evidence. It is clear from the CCTV that a fist was made by Ms Carey when grabbing the t-shirt...
The CCTV footage also indicates that Ms Antonakis is a reluctant participant in the moving towards Mr Easy’s room. Her feet are slow. She is not held lightly and she is propelled by Ms Carey into the CEO’s office.’
94 Two things may be said about this. First, I am not persuaded that the CCTV footage shows what the applicants contend it shows, in particular:
The t-shirt is not ‘grabbed’ by Ms Carey and nor did Ms Carey make a fist when ‘grabbing’ the t-shirt. The CCTV footage shows Ms Carey holding the t-shirt in a pincer like hold between her thumb and two fingers.
Nor does the CCTV footage show that Ms Carey’s contact with the t-shirt was ‘low on the shirt sleeve’ as contended by the applicants. The contact was initially about half way up the sleeve and then rode up to the shoulder of the t-shirt.
The fabric of the t-shirt is stretched, but that says very little about the degree of force being used - some fabrics stretch more easily than others and there is no evidence as to the fabric used in the t-shirt.
The CCTV footage does not indicate that Ms Antonakis is a reluctant participant and nor does it show that ‘her feet are slow’.
95 The second point concerns the contention that Ms Antonakis was ‘propelled’ into the CEO’s office. This proposition was not put in the pleadings and nor was it the subject of any evidence. The Amended Statement of Claim alleges that Ms Antonakis was ‘dragged’ into Mr Easy’s office, and Ms Antonakis’ evidence is to the same effect. As mentioned earlier, the CCTV footage does not support that Ms Antonakis was ‘dragged’ into Mr Easy’s office; and nor does it show that she was ‘propelled’.
96 There are some inconsistencies between Ms Carey’s account of this incident and the CCTV footage but these are minor in nature and do not lead me to reject the other aspects of Ms Carey’s evidence.
97 As they walked into Mr Easy’s office Ms Carey said words to the effect of ‘look at this’ or ‘look, look’. The tone used by Ms Carey is a matter of contention. The applicants say that Ms Carey’s tone was loud and accusatory. The respondents deny this and say that the entire interaction between Ms Carey and Ms Antonakis was friendly and jovial in tone. They say further that throughout the exchange both Ms Carey and Ms Antonakis were laughing and smiling, and that Ms Antonakis said words to the effect that she was wearing the t-shirt because she was cold. According to Ms Carey, Ms Antonakis said to Mr Easy ‘I was cold’, probably twice.85 In cross-examination, Ms Antonakis rejected the suggestion that before Mr Easy said anything she said she was wearing the t-shirt because she was cold.86 In her evidence in chief, Ms Antonakis had accepted that she did say this to Mr Easy, but later:
‘And did anything happen in there? --- Yes. She asked the CEO – she said to the CEO, “Look at this”. He was working. He had his head down. He then put his head up, looked at the - what I was wearing. He looked at the logo of the UFU. He said, “Thanks”. I then said I was cold. He said, “No comment.”…’.87 (emphasis added)
98 What Mr Easy said when Ms Antonakis and Ms Carey entered his office is also disputed. The applicants say that Mr Easy looked directly at Ms Antonakis and her t-shirt and said in a sarcastic tone, ‘thanks’. The respondents deny these allegations and say that upon seeing Ms Antonakis and Ms Carey walking into his office Mr Easy looked up and said in a neutral tone words to the effect of ‘I have no comment to make’. Ms Antonakis’ evidence was that Mr Easy did not say ‘Well I’ve no comment on that’ or words to that effect.88
99 Ms Antonakis’ evidence was that she said to Mr Easy: ‘I did not come into your office to advertise. I was dragged in.’89 Mr Easy said that he didn’t hear Ms Antonakis say those words. Ms Carey’s evidence was to the same effect and, according to Ms Carey, ‘I was certainly close enough to the door of the CEO’s office to have heard if she said something like that’.90 The CCTV footage supports Ms Carey’s evidence as to her proximity to Mr Easy’s office.
100 Ms Antonakis’ evidence as to what took place is as follows:
‘Ms Antonakis: I was walking towards the board room of the MFB, looking for another colleague of mine. As I walked past Pamela Carey’s office, I said, “Hi, Pamela,” as I usually do when I walked past Pamela’s office. As I got around - as I walked past her office, I heard her saying, “Excuse me, excuse me, Sofie,” so I turned back, and I said - she said, “What’s that?”
Counsel: When she said, “What’s that”, what was she doing?
Ms Antonakis: She was pointing towards me, towards the T-shirt. And I said, “What?” When she came out of her office, she grabbed me by the sleeve and took me into the CEOs office.
Counsel: And what did you say?
Ms Antonakis: I kept asking Pamela, “What are you doing? What are you doing?” But she just continued to laugh as I said it.
Counsel: Did you say anything else to Ms Carey as you were being taken?
Ms Antonakis: I - yes, I did. I said, “Pamela, you do realise there are cameras here, don’t you?”
Counsel: And how did this make you feel?
Ms Antonakis: I was - I was stressed. I was - I felt humiliated. I couldn’t believe what was happening. I couldn’t believe I was being dragged into the CEOs office for wearing a T-shirt.
Counsel: You entered the - you and Ms Carey entered the CEOs office?
Ms Antonakis: Yes, we did.
Counsel: And did anything happen in there?
Ms Antonakis: Yes. She asked the CEO - she said to the CEO, “Look at this.” He was working. He had his head down. He then put his head up, looked at the - what I was wearing. He looked at the logo of the UFU. He said, “Thanks.” I then said I was cold. He said, “No comment.” And then I said, “I didn’t come in here to advertise it. I was dragged into your office.” And then Pamela was laughing, and she left. And then I just stood there, not knowing - I just couldn’t believe it. I still can’t. and then I left his office.
Counsel: Did Mr Easy make any comments about Ms Carey’s actions?
Ms Antonakis: No.
Counsel: No. Did he make any comments about you wearing the T-shirt, other than “Thanks” and “No comment”?
Ms Antonakis: No, he did not.
Counsel: Did he make any comments about lawfully engaging in industrial action?
Ms Antonakis: No, he did not.
Counsel: How did Mr Easy’s actions make you feel?
Ms Antonakis: He looked at me like - I don’t know, he was disgusted that I was wearing something like that. He made me feel uneasy, ashamed, humiliated and stressed.’91
101 Ms Antonakis’s evidence was that she was not smiling when she came out of Mr Easy’s office but rather was in a state of shock and disbelief.92 The CCTV footage does not support Ms Antonakis’ recollection of this incident. It shows that she is smiling as she leaves Mr Easy’s office.
102 According to Ms Carey both she and Ms Antonakis were smiling when they entered Mr Easy’s office.93 Ms Carey describes the incident in these terms:
‘It was a Friday afternoon. I was leaving the office. I was heading down to Apollo Bay for the weekend. It had been a fantastic week. I was in very high spirits. I picked up my handbag, put it over my shoulder, and I heard from my door somebody say, “Hi, Pamela.” I turned round, and Sofie was standing in the door to my office, and I looked at her, and she turned very much to face me, and I saw, “Oh my God, she’s wearing a UFU T-shirt,” and I laughed. I thought, “She’s the EA to our executive director HR, and she’s wearing a UFU T-shirt.” I was surprised and amused, and I said, “Sofie.” By then, she had walked off a little bit. She heard me call and she came back. She said, “Yes?” and I walked over to her, and picked up just a bit of her shirt like this, and I said, “Sofie, what is this?” and since I was walking down to say goodbye to Nick, and she was heading in that direction, I kept holding on – on her T-shirt, and we continued walking towards Nick’s office. During the walk, Sofie said, “You shouldn’t be doing this in front of the cameras,” and I just laughed, because this was a light-hearted thing between two colleagues. When we got to Nick’s office, I moved Sofie into the CEOs office. Nick was sitting, writing at his desk. I think I said something along the lines of – I don’t remember my exact words – “Have a look at this.” Nick looked up. He maintained an absolutely straight face, and said, “I have no comment to make on that.” I said, “Okay, Nick. I’m off. Cheerio, bye.” Some – words to that effect. I said some farewell to Nick and left for the day. Said goodbye. That was the end of the exchange. Went back to my office, picked up my – another bag that I carry with me, and left for the day.’94
103 The following aspects of Ms Carey’s evidence are also relevant:
‘Counsel: When you went into the office, what was the demeanour of Ms Antonakis at that time, when you went into Mr Easy’s office?
Ms Carey: She was smiling as well. We were both smiling.
Counsel: It has been said that you, in the office, said in a loud tone of voice, “Look, look”. Did you say that in a loud tone of voice?
Ms Carey: I don’t recall my exact words. I thought I said something like, “Look at this.” I don’t have a loud voice. I don’t use a loud voice. And I certainly didn’t on that afternoon.
Counsel: It has also been said in evidence that Sofie said to Mr Easy words to the effect, “I didn’t come in here to advertise it. I’ve been dragged in here.” Did she say that?
Ms Carey: No.
Counsel: Can you remember anything else that she said?
Ms Carey: I think she used words to the effect of, “I was cold. I was wearing the T-shirt because I was cold.” I can’t remember her exact words. That’s all I remember her saying, and I think she said that twice.
Counsel: It has also been alleged that Mr Easy said “thanks” in a sarcastic tone. Did he say that?
Ms Carey: He did not.
Counsel: In relation to Mr Easy’s demeanour, I think you said he looked up with a straight face. It has been said that he, on seeing Sofie, had a disgusted expression on his face. What do you say about that?
Ms Carey: Mr Easy was completely neutral. He looked up with a very neutral face and showed no expression whatsoever.’95
104 As to Mr Easy’s actions, Ms Carey denied that Mr Easy looked up and said ‘Thanks’.96
105 Mr Easy described the incident in these terms:
‘I was sitting at my desk doing some reading. It was around about 3.00 pm in the afternoon. Ms Carey and Ms Antonakis walked into my office. It wasn’t until I heard from Pamela words to the effect, “Look at this,” that I looked up. In looking at both of them, Sofie – or Pamela, sorry, had her hand on the shoulder of Sofie. Sofie was wearing a UFU shirt over another garment. At that time Pamela said, “Look at this.” I said that I had no comment to make. At that point in time, her response was that, “I was wearing the shirt because I was cold.” I then looked down and continued with my reading, and they both left the office.’
106 Mr Easy denied saying ‘thanks’ and rejected the suggestion that he had made his comment with a sneer in his voice and a look of disdain on his face. Mr Easy rejected the suggestion that Ms Antonakis had said ‘I didn’t come in here to advertise it. I was dragged into the office.’97
107 There is a clear conflict in the evidence as to what was said by Mr Easy and Ms Antonakis during this brief interaction and as to the tone used by Mr Easy and his facial expression. Ms Carey’s evidence corroborated Mr Easy’s recollection of these events. I prefer Mr Easy’s evidence. I find that as Ms Carey and Ms Antonakis walked into Mr Easy’s office Ms Carey said words to the effect of ‘look at this’. Mr Easy was seated at his desk, he looked up, his face was expressionless and in a neutral tone he said ‘I have no comment to make on that’. Ms Antonakis responded, ‘I was wearing the shirt because I was cold’ or words to that effect. That was the end of the exchange between Mr Easy and Ms Antonakis.
108 There is also an evidentiary conflict about the nature of the entire interaction between Ms Carey, Ms Antonakis and Mr Easy. Ms Carey’s evidence was that the interaction was friendly and jovial. Mr Easy’s evidence corroborated Ms Carey’s recollection:
‘My belief at the time was that it was very light hearted and very jovial. There was no sense of aggression in the interaction, and I could see no concern on the face of either party at that time.’98
109 When asked if her interaction with Ms Carey was ‘jovial and in fun’ Ms Antonakis replied ‘No. Well, Pamela was laughing but I wasn’t’.99
110 The applicants submit that the characterisation of the interaction as ‘jovial’ is not consistent with Ms Carey’s evidence that on the trip to Apollo Bay and all weekend she worried about what had occurred and wanted to apologise to Ms Antonakis.100
111 Ms Carey’s evidence on this point is as follows:
‘Counsel: After you left work, did you think about that event that you’ve just described again?
Ms Carey: I most certainly did. It was very strong in my mind, and I regretted that I had done that. It was on my mind all the way down to Apollo Bay. I mentioned it to my husband and said that I really would like to apologise to Sofie first thing on Monday morning ...
Counsel: Why did you think you should apologise?
Ms Carey: Just on-reflecting on it, I just thought, you know, maybe she didn’t enjoy the interaction, although she appeared to at the time. I just thought I probably shouldn’t have done that.’101
112 Importantly, this alleged inconsistency was not put to Ms Carey in cross-examination - indeed it was suggested that at that time Ms Carey felt no remorse for her actions:
‘Counsel: I suggest to you that you actually didn’t feel any remorse about your actions until you were caught out, Ms Carey?
Ms Carey: That is not true. I told my husband in the car that I was very remorseful about what happened.
Counsel: I suggest to you what happened was when you came in to work on the Monday morning and when you were told that there had been a request by the UFU to preserve the CCTV footage outside the CEO’s office, that’s when you thought about your conduct?
Ms Carey: Your Honour, I strongly deny that I fretted all weekend and spoke to my husband on several occasions about it.’102
113 I am not persuaded that Ms Carey’s subsequent reflection upon her actions is inconsistent with her view of the incident at the time it occurred. Ms Carey’s interaction with Ms Antonakis was spontaneous in nature and regarded by Ms Carey as being a bit of light heartedness.103 There is nothing particularly unusual about engaging in an activity spontaneously and then, after further reflection, regretting having done so.
114 Mr Easy corroborated Ms Carey’s characterisation of the incident, as did the CCTV footage. I find that the interaction between Ms Antonakis and Ms Carey was friendly and jovial.
115 However, I also accept that Ms Antonakis was visibly distressed during her later interaction with Ms Byrnes and that her level of distress did not support the proposition that her interaction with Ms Carey and Mr Easy had been jovial or amicable.104 I conclude that Ms Antonakis became distressed after reflecting on the incident and after her discussion with Mr Hogan.
116 After Ms Antonakis left Mr Easy’s office she walked past the boardroom and noticed that Sean Hogan was inside. Mr Hogan is the MFB’s Director - Employee Relations, he reports to Ms Byrnes. Ms Antonakis entered the boardroom and had a conversation with Mr Hogan. Ms Antonakis describes this conversation in her examination in chief:
‘I said to him that, “You’re not going to believe this. I’ve just been dragged into the CEOs office”. He asked me why, and I said, “For wearing this”, pointing to the T-shirt. And I said, “Can you explain to me why I was dragged in there? Can you name someone else who has been dragged in there?” And he said - I think I was being loud, and he said, “Come with me”. He took me into his office. He shut the door. And he said that I was to report the incident to Danielle Byrnes, as she was my direct report - my - boss, and that I had every right to participate in protected industrial action, and he said that, “These people have no idea what protected industrial action means”.’105
117 Ms Antonakis then left the boardroom and went to see Ms Byrnes.
118 Mr Hogan was not called and the applicants invited the Court to draw a Jones v Dunkel inference based on the MFB’s failure to call Mr Hogan.
119 Mr Hogan was, and is, an executive officer at the MFB. It would ordinarily be expected that such a witness would be called by the MFB, rather than the applicants. But Ms Antonakis’ evidence about her conversation with Mr Hogan was unchallenged and I accept it. In circumstances where there is no challenge to the evidence of those who are called the rule in Jones v Dunkel does not operate to require a party to give merely cumulative evidence. As O’Loughlin J put it in Cubillo v Commonwealth:
‘. . . the rule does not compel time to be wasted by calling unnecessary witnesses.’106
120 Ms Antonakis then had a conversation with Ms Byrnes about the incident involving Ms Carey and Mr Easy.
(c) Second interaction between Ms Antonakis and Ms Byrnes
121 There is a dispute about what was said during the conversation between Ms Antonakis and Ms Byrnes. The applicants contend that Ms Byrnes said words to the following effect:
‘By wearing that T-shirt you are voicing that you are participating in the bans and I don’t like seeing you in that top.’
and that Ms Antonakis responded:
‘I don't care what the T-Shirt says I have protected industrial action. I don't understand, who else has been dragged into the CEO's office for wearing a UFU T-shirt, this is unacceptable I will not stay here and put up with this treatment.’
122 The applicants also contend that the statement made by Ms Byrnes caused Ms Antonakis further upset, distress and humiliation and increased her fear that her position was at risk because she engaged in the ‘Protected Action’. In relation to the latter point, I note that no evidence was given by Ms Antonakis to the effect that she feared her position was at risk because she engaged in the ‘Protected Action’.
123 The respondents deny the allegations as to what was said by Ms Byrnes and Ms Antonakis and contend that Ms Byrnes had said words to the effect of ‘I can’t say I’m thrilled to see you wearing it’ during her earlier interaction with Ms Antonakis around 12.40 pm that day (see paragraphs [65]-[70]). The respondents also deny the applicants contentions as to the effect of the statement said to be made by Ms Byrnes to Ms Antonakis.
124 It is common ground that during this exchange Ms Antonakis said ‘Why am I being dragged into the CEO’s office for wearing a UFU T-shirt’ or words to that effect.107
125 Ms Antonakis’ evidence as to what took place in this exchange is as follows:
‘Counsel: And what did you say to Ms Byrnes?
Ms Antonakis: I said to her that I had just been dragged into the CEOs office for wearing a UFU T-shirt and she said, “By whom?” I said, “By Pamela.” She then said that, “Well, by wearing that you’re voicing that you’re participating in industrial action.” I said I didn’t care what it meant. That I was participating in protected industrial action. That I had a right to participate in protected industrial action. That I had signed a form so I could participate in protected industrial action.
Counsel: Can I just stop you there. When you signed a form, are you referring to the bargaining representative form?
Ms Antonakis: Yes. I said I had done everything else. I had typed without using the caps lock on. I hadn’t forwarded my phone to voice mail. I had done all the reports she asked me to do. I had processed things since that. There was no other industrial ban that I had participated in. It didn’t affect my job. She then said that she didn’t like seeing me in that top and then I remember saying that I just didn’t understand why I was being dragged into the CEOs office and can you please tell me who else has been dragged into the CEOs office and that this was just unacceptable.’108
126 Ms Antonakis was cross-examined in relation to this interaction with Ms Byrnes.
‘Counsel: And you, I suggest that in the conversation with Ms Byrnes, you said why am I being taken into this CEOs office for wearing a t-shirt or words to that effect?
Ms Antonakis: A UFU T-shirt, yes.
Counsel: Sorry?
Ms Antonakis: A UFU T-shirt.
Counsel: A UFU T-shirt, I see. And Ms Byrnes said, “That sounds distressing,” or words to that effect?
Ms Antonakis: No. No.
Counsel: And I suggest she said she would speak to Ms Carey about it?
Ms Antonakis: No, she didn’t.
Counsel: And she then left to speak to Ms Carey?
Ms Antonakis: After we spoke I went back to my desk and I believe Ms Byrnes went to see Pamela, yes.
Counsel: And I suggest that in that conversation Ms Byrnes said nothing about, “I don’t like or I can’t say I’m happy about that,” or words to that effect. Those were words she had used earlier in the day?
Ms Antonakis: She said that by wearing that top, you’re voicing that you’re participating in protected industrial action. She also said, “I don’t like seeing you in that top.” She said this after the incident, not before.
Counsel: I suggest that she never said anything. You never said anything about protected industrial action, typing reports, not using caps and so forth?
Ms Antonakis: I did say all those things.
Counsel: Ms Byrnes, to your knowledge, went off and spoke to Ms Carey. She told you Ms Carey had left for the day?
Ms Antonakis: Yes.
Counsel: You said you were distressed and you were going to go home; right?
Ms Antonakis: I wrote that in the email, yes.
Counsel: And you sent, I think, email to Ms Byrnes which is tab 18 of the ?
Ms Antonakis: Yes, I sent that email.’109
127 Ms Byrnes’ evidence as to this interaction differs from Ms Antonakis’ evidence in three key respects.
128 The first point is whether Ms Byrnes made a comment in relation to Ms Antonakis wearing the UFU t-shirt, to the following effect: ‘Well I can’t say I’m happy about it.’ For the reasons I have already given (see [65]-[70]) this remark was made by Ms Byrnes during her earlier conversation with Ms Antonakis. I reject Ms Antonakis’ evidence that this statement was made by Ms Byrnes during the second interaction between Ms Antonakis and Ms Byrnes, and I accept Ms Byrnes’ evidence in this regard.110
129 The second point of contention is Ms Antonakis’ evidence that Ms Byrnes said: ‘Well, by wearing that you’re voicing your participating in the industrial action.’ Ms Byrnes denies making this statement.111
130 Finally, Ms Antonakis rejected the suggestion that Ms Byrnes said ‘that sounds distressing’ and that she would ‘speak to Ms Carey about it’ or words to that effect.112
131 I prefer Ms Byrnes’ evidence in respect of each of these matters for the reasons I have already given (see paragraphs [50]-[54]). In relation to the third issue in contention I note that Ms Byrnes’ evidence is consistent with her subsequent actions - in going to see Ms Carey. Ms Byrnes’ evidence is also consistent with the text message she sent Ms Antonakis at about 8.00 pm that day (see para [134] infra).
132 After the exchange with Ms Byrnes, Ms Antonakis went back to her desk and Ms Byrnes went to talk to Ms Carey113. Ms Byrnes then returned to Ms Antonakis’ work area and Ms Antonakis says the following exchange took place:
‘She came to my desk and told me that Pamela had left for the day and that she would talk to her on Monday. And I said that I was going to pack up and do the same thing. That I wasn’t going to put up with such treatment.’114
133 Ms Antonakis recalls leaving her workplace at ‘maybe 3.40 pm’ that day.115 She sent an email to Ms Byrnes at 3.25 pm in the following terms:
‘Subject: Leaving
Hi Danielle,
I am quite distressed with what has just happened and so I am leaving for the day. I didn’t realise that I would be dragged into the CEO’s office for wearing a UFU t-shirt.
Sofie.’116
134 At about 8.00 pm on 18 May 2012, Ms Byrnes sent a text message to Ms Antonakis in the following terms:
‘Sofie, Just wanted to let you know that I'm thinking of you. I am really sorry about what happened today. Pamela might have thought she was being lighthearted and may not have thought through the impact on you. But I want you to know that I understand why you would have been distressed. I am upset for you. I will speak to her first thing Monday. I hope you can let it go, enjoy your weekend and have some good rest. You have my support and I care about you and value you very much. X’117
135 On 19 May 2012, Ms Antonakis attended the Brigade Medical Services Public Health Management and was issued with a certificate of capacity.118
136 It is convenient to deal with the allegations arising out of the incidents on 18 May 2012 before turning to what took place the following week.
137 In the Amended Statement of Claim the applicants claim that the MFB altered the position of Ms Antonakis to her prejudice by:
(a) failing or refusing to allow Ms Antonakis to exercise her right to engage in protected industrial action by wearing the UFU t-shirt in the executive suites or at all; and
(b) subjecting Ms Antonakis to ridicule and harassment because she engaged in the Protected Action.
138 Further, or in the alternative, it is claimed that the MFB discriminated between Ms Antonakis and its other employees by:
(a) failing or refusing to allow Ms Antonakis to exercise her right to engage in protected industrial action by wearing the UFU t-shirt in the Executive Suites or at all;
(b) calling Ms Antonakis into the CEO’s office for engaging in the Protected Action in that she was wearing a UFU t-shirt; and
(c) subjecting Ms Antonakis to ridicule and harassment because she engaged in the Protected Action.
139 On the basis of the conduct alleged it is claimed that the MFB took adverse action against Ms Antonakis within the meaning of s 342 of the Act.
140 I have decided to dismiss this aspect of the application for three, alternate, reasons:
(i) the wearing of a UFU t-shirt does not constitute industrial action or protected industrial action; or
(ii) by wearing the UFU t-shirt Ms Antonakis was not purporting to engage in industrial action or protected industrial action; or
(iii) the action taken against Ms Antonakis was not taken because she had taken part in industrial action or protected industrial action.
141 As to the first reason, ‘industrial action’ is defined in s 19(1) to mean action of any of the following kinds:
‘(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.’
142 Industrial action is protected industrial action if, relevantly, it is ‘employee claim action’ for a proposed agreement. Section 409 defines employee claim action in terms of ‘industrial action’ that is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement. It follows that protected industrial action is simply a species of industrial action. If an activity is not industrial action it cannot be protected industrial action. The relevant question here is whether the wearing of a UFU t-shirt while at work constitutes industrial action within the meaning of the Act.
143 The applicants submit that by wearing the UFU t-shirt on the afternoon of 18 May 2012 Ms Antonakis was exercising a workplace right (in that she was able to participate in protected industrial action) as contemplated by ss 340 and 341(1)(a) and (c) and further or alternatively was engaged in an industrial activity (namely the industrial action constituted by the alleged protected industrial action) as contemplated by ss 346 and 347 of the Act.
144 It is relevant to observe at the outset that ‘lawful industrial activity’ was not put by the applicants as a factually independent basis from the protected industrial action allegations. It was defined in the pleadings by reference to the ‘protected industrial action’.
145 Section 346 of the Act provides that a person must not take adverse action against another person because the other person ‘engages ... in industrial activity’ within the meaning of ss 347(a) and (b). Section 347 provides, relevantly, that a person ‘engages in industrial activity’ if the person:
(a) becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or
(b) does, or does not:
(i) become involved in establishing an industrial association; or
(ii) organise or promote a lawful activity for, or on behalf of, an industrial association; or
(iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association; or
(iv) comply with a lawful request made by, or requirement of, an industrial association; or
(v) represent or advance the views, claims or interests of an industrial association; or
(vi) pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association; or
(vii) seek to be represented by an industrial association;
146 It is important to appreciate that the ‘industrial activity’ which Ms Antonakis was said to be engaged in was ‘protected industrial action’. This was how the matter was pleaded, and the case was run on that basis. The applicants chose not to contend that by wearing the UFU t-shirt Ms Antonakis was simply participating in a lawful activity organised or promoted by the UFU. And there was no evidence that Ms Antonakis was engaging in an industrial activity, or would have engaged in anything other than protected industrial action. Ms Antonakis’ evidence was that she was engaging in ‘protected industrial action’. 119
147 Ms Antonakis’ evidence about what she told Ms Byrnes, after the incident with Ms Carey and Mr Easy, about her actions in wearing the t-Shirt, was only limited to participating in ‘protected industrial action’.
148 Ms Antonakis did not give any evidence (and was not asked) about engaging in ‘industrial activity’, and there is no basis in the evidence for any finding that she would have participated in any activity if it were not protected industrial action.
149 It is for these reasons that the question of whether the wearing of a UFU t-shirt while at work constitutes ‘industrial action’ becomes important. Counsel for the applicants accepted that this aspect of the case is dependent upon whether the wearing of a UFU t-shirt in these circumstances constituted industrial action.120
150 Whether wearing union campaign clothing constitutes ‘industrial action’ within the meaning of s 19(1) was considered by a Full Bench of Fair Work Australia in Re Mornington Peninsula Shire Council (Mornington).121 In that matter the Australian Nursing Federation submitted that the wearing of union campaign clothing constituted ‘industrial action’ and that a protected action ballot order, which included a question authorising such action, was validly made. The central issue in the case was whether the action described in question 5 of the protected action ballot order was capable of constituting industrial action within the meaning of s 19(1). The relevant parts of question 5 were as follows:
‘Do you ... Authorise industrial action by Registered Nurses in the form of ... the wearing of campaign clothing?’
151 The majority found that the wearing of campaign clothing was capable, ‘depending on the circumstances’, of constituting ‘industrial action’ within the meaning of s 19 of the Act:
‘If an employee is only prepared to perform work if they are wearing a particular item of clothing then they are placing a limitation or restriction on the performance of work or on the acceptance or offering for work.
Accordingly, we find that the wearing of campaign clothing whilst at work could constitute a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee (s.19(1)(b)).’122 [citations omitted]
152 The circumstances in Mornington are distinguishable from the present matter. In Mornington the wearing of union campaign clothing was contrary to the employer’s clothing policy. In the matter before the Court there is no evidence of any policy or directive by the MFB regarding the wearing of union apparel by non-operational staff, such as Ms Antonakis. As the majority in Mornington observed, whether wearing campaign clothing constitutes industrial action depends on the circumstances. In the circumstances of the present matter, wearing a UFU t-shirt while at work did not constitute ‘industrial action’ within the meaning of s 19(1). For the purpose of dealing with this issue only paragraphs (a) and (b) of s 19(1) are relevant. There are two elements to s 19(1)(a):
the performance of work by an employee in a manner different from that which it is customarily performed; or
the adoption of a practice or restriction in relation to work.
153 The first element of s 19(1)(a) is that the performance of work by the employee must be in a manner different from that in which it is customarily performed. The second element, which is an alternative to the first, is that there must be the adoption of a practice in relation to the work. In both instances, the action must result in a restriction or limitation on, or a delay in, the performance of the work.
154 In the context of this case, I do not consider that the wearing of campaign clothing falls within either limb of the definition of industrial action in s 19(1)(a) of the Act. Wearing particular clothing whilst performing work has nothing to do with the manner in which the work is performed. There is no evidence that MFB non-operational staff were required to wear a particular uniform, nor is there any evidence of a policy proscribing the wearing of union t-shirts. There may conceivably be situations where particular work can only be performed whilst wearing certain clothing and the refusal to wear that clothing could affect the manner in which the work is performed and result in a restriction or limitation on, or a delay in, the performance of the work. But this is not such a case. Thus Ms Antonakis’ wearing of the UFU t-shirt did not fall within s 19(1)(a) of the definition of ‘industrial action’.
155 Under s 19(1)(b) there must be a ban, limitation or restriction on the performance of work by the employee engaging in the conduct or on the acceptance of or offering of work by the employee.
156 The meaning of the expression ‘a ban, limitation or restriction on the performance of work ... or on acceptance of or offering for work’, was considered by the Full Court in Davids Distribution Pty Ltd v National Union of Workers,123 albeit in a different statutory context (i.e. the definition of ‘industrial action’ in s 4(1)(c) of the Workplace Relations Act 1996 (Cth)). In their judgment, with which Burchett J relevantly agreed, Wilcox and Cooper JJ adopted the tentative view expressed by the Full Court in Construction, Forestry, Mining and Energy Union and Ors v Giudice and Ors124 and said:
‘... we think the paragraph [s.4(1)(c)] ought to be read as applying only to limitations on the work of those imposing the ban.’125
157 If an employee is only prepared to perform work if they are wearing a particular item of clothing then they are placing a limitation or restriction on the performance of work or on the acceptance or offering for work. But that is not this case.
158 The applicants assert that Ms Antonakis’ wearing of the UFU t-shirt ‘was directed at the circumstances in which Ms Antonakis was offering to do work on the afternoon of 18 May 2012’.126 But there is no evidentiary basis for this proposition. Ms Antonakis did not give evidence to that effect and was never asked whether she was only prepared to work if she wore the UFU t-shirt. I am not persuaded that there was a restriction or limitation on the performance of work involved in the wearing of the UFU t-shirt.
159 By wearing campaign clothing Ms Antonakis was not banning the performance of the work, limiting the performance of the work or restricting the performance of the work. Nor was she banning, limiting or restricting the acceptance of or offering for work. All that the conduct amounted to was the wearing of particular clothing whilst work was performed. As such, the conduct does not fall within s 19(b).
160 Because the wearing of a UFU t-shirt does not constitute industrial action it follows that on 18 May 2012 Ms Antonakis was not exercising a workplace right; nor was she engaging in an industrial activity (namely protected industrial action). On this basis the allegation of adverse action in respect of the events of 18 May 2012 must fail.
161 If I am wrong about the characterisation of the wearing of a UFU t-shirt by Ms Antonakis then there are two further, alternate, reasons why this claim must fail.
162 The first of these alternate reasons concerns Ms Antonakis’ motivation for wearing the UFU t-shirt.
163 Ms Antonakis’ evidence is that she voted in favour of industrial action in the April 2012 protected action ballot127 and she was aware that one of the bans being endorsed was the wearing of UFU t-shirts.128 This evidence was unchallenged and I accept it.
164 Ms Antonakis also gave evidence that she engaged in protected industrial action on 18 May 2012 by wearing the UFU t-shirt.129 I do not accept this aspect of Ms Antonakis’ evidence.
165 It will be recalled that shortly before the first interaction between Ms Antonakis and Ms Byrnes on 18 May 2012 there was an email exchange between Ms Antonakis and her fiancé. In that exchange Ms Antonakis said:
‘Hey I just put a UFU top over the top I am currently wearing - did because I am feeling cold but also to see what kind of reaction I get. I will probably annoy her and I guess that is a plus.’130
166 The ‘her’ mentioned in the email is a reference to Ms Byrnes.131
167 Ms Antonakis was cross-examined about these emails and her evidence is that in putting on the UFU t-shirt her intent was not to annoy Ms Byrnes but to participate in protected industrial action.132 As to why she chose to wear the UFU t-shirt on 18 May 2012 Ms Antonakis said: ‘this was the only one I felt I could participate in, that didn’t affect my role.’133
168 Ms Antonakis’ evidence as to her intent in wearing the UFU t-shirt is wholely unconvincing. Four points are relevant in this regard.
169 First, the explanation proferred is not consistent with the email exchange between Ms Antonakis and her fiancé.
170 Second, Ms Antonakis gave other evidence that was consistent with the content of the emails, in that she told both Ms Byrnes and Mr Easy that she had put the t-shirt on because she was cold.134 Ms Byrnes gave evidence that Ms Antonakis said she put it on because she was cold135 and Ms Antonakis said that she didn’t recall saying that but did not deny saying it.136
171 Third, Ms Antonakis’ statement to the effect that she wore the UFU t-shirt because that was the only type of industrial action she felt she could participate in, is inconsistent with her evidence that since 18 May 2012 she has participated in other forms of industrial action - a rally organised by the UFU and leaving work early on a Friday.137
172 The final point concerns a conversation Ms Byrnes had with Ms Antonakis on or about 1 May 2012. Ms Byrnes recounts this conversation in her evidence:
‘That when the notice of protected industrial action had come out and I saw the list of workplace bans, I had said to Sofie, “Can you and I just have a conversation about these bans will affect our working relationship because I’ve never worked with corporate bans before. I don’t know what the practice is here.” And I said, “Are you a member of the UFU? Are you going to be participating in these bans?” And she said, “No, I’m not a member and traditionally EAs haven’t participated in the bans and I don’t intend to participate in the bans. I just want to get on and do my work.” But she said, “I may attend rallies.” So I said, “Okay. I understand now. That helps.”’138
173 Ms Byrnes was not cross-examined about this conversation with Ms Antonakis, and I accept her evidence.
174 By this time (1 May 2012), Ms Antonakis was a member of the union: she had become a member in November 2011. It follows that on Ms Byrnes’ evidence Ms Antonakis was untruthful when she told Ms Byrnes that she was not a member. It was put to Ms Antonakis that she had told Ms Byrnes that she was not a member of the UFU at a time when she was a member. She denied only having told her that on 27 March 2012, specifically, ‘I didn’t say that at that time’. She did not deny having said it at a time when she was in fact a union member.139
175 The 1 May 2012 conversation between Ms Byrnes and Ms Antonakis is relevant because of Ms Antonakis’ statement as to her future intention, that she did not intend to participate in the bans, but may attend rallies.
176 In closing submissions counsel for the applicants advanced the following submission in respect of this conversation:
‘What I do say is that her response ‘I might go to the rally’ cannot, in the circumstances where you’re talking about two HR professionals, be seen as a blanket statement - ‘I’m not going to participate in industrial action’. She certainly didn’t say that.’140
177 I do not find this submission persuasive. On Ms Byrnes’ unchallenged evidence Ms Antonakis told her that she did not intend to ‘participate in the bans’. Nor am I persuaded that there is any substance to the point that the wearing of a UFU t-shirt was not characterised as a ‘ban’ in the protected action ballot order.141
178 Ms Antonakis wore the UFU t-shirt because she was cold, and to get a reaction from Ms Byrnes, and later Ms Carey. It was not for the purpose of engaging in protected industrial action. Indeed, it is noteworthy that Ms Antonakis only said that she was engaging in ‘protected industrial action’ after Mr Hogan had used that expression in his conversation with Ms Antonakis, which was after the incident with Ms Carey and Mr Easy. The applicants submit that Ms Antonakis affirmed her participation in the protected industrial action to both Ms Byrnes and Mr Hogan immediately after the incident in Mr Easy’s office.142 But the evidence does not support the contention that Ms Antonakis said anything about participating in industrial action in her conversation with Mr Hogan (see [116] infra). In fact it was only Mr Hogan who made any reference to protected industrial action.
179 The purpose and context of conduct is relevant to the proper characterisation of that conduct.
180 The legislative note to the definition of industrial action in s 19(1) of the Act refers to the decision of a Full Bench of the Australian Industrial Relations Commission (the Commission) in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited143 (The Age case) and says that in that case the Commission ‘considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining’.
181 In The Age case the Commission stated, at [44] and [46]:
‘Just as employer conduct is capable of different characterisations depending upon the context, so also is employee conduct. An employee who does not attend for work on account of illness may not be engaging in industrial action, while an employee who does not attend for work in support of a collective demand that the employer agree to alteration of the conditions of employment clearly is so engaged ...
It seems to us likely that the legislative did not intend to include conduct which stands completely outside the area of disputation and bargaining and that accordingly the definition should be read giving some weight to the word industrial. But precisely how far this qualification might extend is a question of degree.’
182 The above statement was approved by a subsequent Full Bench in Construction, Forestry, Mining and Energy Union v Coal and Allied Mining Services Pty Ltd (Mount Thorley Operations/Warkworth Mining),144 in which the Commission said:
‘... the definition of industrial action ... must be read giving some weight to the word ‘industrial’ and conduct will not constitute [industrial action] ... unless it has an industrial character. In determining whether any given action has such a character, it is necessary to consider the purpose of the conduct said to constitute industrial action.’145
183 The relevance of ‘the purpose’ of the conduct said to constitute industrial action was also considered by the Full Court of the Supreme Court of Western Australia in WA Supply Co Ltd v The Registrar of Friendly Societies.146 In that case the Court had to decide whether the employer had committed a lock out. The employer had dismissed a number of employees during a period in which the employees were in dispute with the employer about the employment of juniors. To answer the question the court asked whether the dismissals were intended to coerce the employees into accepting the employment of juniors and to take them back once they agreed. Hence, the Court looked to ‘the purpose’ of the employers conduct in order to decide whether it could be characterised as a lock out.
184 For the reasons given, I am not persuaded that Ms Antonakis wore the UFU t-shirt on 18 May 2012 for the purpose of engaging in protected industrial action. It follows that Ms Antonakis was not in fact engaging in protected industrial action at the relevant time. Ms Antonakis was not exercising a workplace right; nor was she engaging in an industrial activity (i.e. protected industrial action). Accordingly, the allegation of adverse action in relation to the events of 18 May 2012 must fail.
185 I now turn to the third, alternate, reason for dismissing the claim.
186 As mentioned previously, s 346 of the Act relevantly provides that a person must not take adverse action against another person because the other person engages in industrial action. If I am wrong about my characterisation of the wearing of a UFU t-shirt and Ms Antonakis’ reasons for doing so, then it would follow that by wearing the UFU t-shirt Ms Antonakis was engaging in protected industrial action. It then becomes necessary to determine whether the MFB took adverse action against Ms Antonakis and, if so, whether that action was taken because Ms Antonakis had engaged in protected industrial action.
187 The applicants allege that adverse action was taken against Ms Antonakis on the basis that the MFB altered her position to her prejudice by ‘failing or refusing to allow Ms Antonakis to exercise her right to engage in protected industrial action by wearing the UFU T-shirt in the Executive Suite or at all’. I am not persuaded that this ground is made out. There is no evidence that the MFB, or any of its employees, failed or refused to allow Ms Antonakis to wear the UFU t-shirt. No one told Ms Antonakis to take the t-shirt off and no one directed (or even suggested) that she not wear it in future.147 Further, and contrary to the allegation in the Amended Statement of Claim, no evidence was given by Ms Antonakis to the effect that she feared her position was at risk because she wore the UFU t-shirt.
188 The applicants also allege that the MFB altered Ms Antonakis’ position to her detriment by ‘subjecting Ms Antonakis to ridicule and harassment because she engaged in the industrial action’ (by wearing the UFU t-shirt). I accept that Ms Carey’s actions in escorting Ms Antonakis into Mr Easy’s office and saying ‘look at this’, or words to that effect, can be said to have subjected Ms Antonakis to ridicule and harassment and on that basis adverse action was taken against Ms Antonakis. For reasons which will become apparent it is unnecessary for me to determine whether the MFB (as opposed to Ms Carey acting on her own behalf) took adverse action against Ms Antonakis. But for present purposes I am prepared to assume (without so deciding) that Ms Carey’s actions can be attributed to the MFB.
189 Further, or in the alternative, the applicants contend that the MFB took adverse action against Ms Antonakis on the basis that they discriminated between Ms Antonakis and other MFB employees. The discrimination claim was not the subject of much elaboration in submissions but in my view it fails for essentially the same reasons that the adverse action claim fails. The only real evidence going to discriminatory conduct concerned the MFB’s reaction to a UFU bulletin that referred inappropriately to Ms Byrnes (see Exhibits A8 and A9).
190 In his evidence, Mr Easy rejected the suggestion that the MFB had one rule with respect to the UFU acting in a particular manner towards Executive Directors and another when an administrative staff member was subjected to harassing behaviour because she was wearing a UFU t-shirt:148
‘Counsel: Mr Easy, I suggest that what you have in your organisation is one rule with respect to your executive directors and the UFU acting in a particular manner; circulating bulletins, acting immediately, leading from the front, circulating bulletins to other staff, as compared to when an administrative member of staff is subjected to harassing behaviour because she’s wearing a t-shirt. It’s a double standard approach, isn’t it, Mr Easy?
Mr Easy: I’m not aware of any double standards being applied.
Counsel: You didn’t within two days send an email out to all members of the MFB defending not only Ms Antonakis’ right to wear a T-shirt as part of her industrial action, did you?
Mr Easy: Different circumstances.
Counsel: Circumstances. So you’re quite happy to send around publications condemning the UFU, but not condemning non-union members for taking action against people engaging in industrial action?
Mr Easy: I don’t think that’s correct.
Counsel: Well, Mr Easy, I put it to you that you didn’t do anything because
Ms Antonakis was engaging in industrial action?
Mr Easy: That is not correct.
Counsel: I put it to you, you didn’t do anything because Ms Antonakis was wearing a UFU T-Shirt?
Mr Easy: That is not correct.
Counsel: Well, Mr Easy, I suggest to you that if Ms Carey had walked past Ms Antonakis’ office, and called her a scab because she wasn’t participating in the bans, you would have taken immediate action. That’s correct, isn’t it?
Mr Easy: I would have taken – the same action would have been to consider what the circumstances were, and whether there needs to be a further investigation of that matter.
Counsel: I suggest to you that you would have taken action similar to that that you took with Ms Byrnes’ complaint. That’s correct, isn’t it?
Mr Easy: No, I would have considered the facts and the circumstances, and decided what was the appropriate course of action.’ (emphasis added)
191 The circumstances referred to in Mr Easy’s evidence are clearly distinguishable from the circumstances involving Ms Antonakis. The MFB did not discriminate between Ms Antonakis and its other employees in the manner alleged.
192 The issue for determination now becomes whether the MFB took the adverse action (i.e. ridicule and harassment) because of a proscribed reason (engaging in protected industrial action by wearing a UFU t-shirt), or for reasons which included that reason. Section 361(1) casts a burden of proof on the MFB to show that it did not take the adverse action for a proscribed reason.
193 The question of why the MFB took adverse action against Ms Antonakis is a question of fact and invites attention to the reason why the MFB so acted. Evidence from the decision maker(s) which explains why the adverse action was taken is relevant to the determination of this factual question.
194 The factual allegations upon which the adverse action claims are made are set out at paragraphs 20 - 29 of the Amended Statement of Claim, as follows:
‘20. On 18 May 2012 Antonakis attended her workplace and engaged in the Industrial Action by wearing the UFU T-Shirt while performing her duties in the Executive Suite of the MFB premises located at 456 Albert Street East Melbourne.
21. At approximately 3:00pm on 18 May 2012 Antonakis while wearing the UFU T-Shirt walked past the office of Carey when Carey:
(a) Shouted at Antonakis in a loud accusatory tone of voice ‘EXCUSE ME, EXCUSE ME, EXCUSE ME’;
(b) sneered at Antonakis;
(c) touched the UFU T-Shirt being worn by Antonakis;
(d) dragged Antonakis by the sleeve of the UFU T-Shirt into the office of Easy; and
(e) pointed at Antonakis’s UFU T-Shirt and said to Easy in a loud accusatory tone of voice ‘LOOK LOOK’.
22. In response to Carey’s actions and words referred to in paragraph [21] Easy looked directly at Antonakis and the UFU T-Shirt and said in a sarcastic tone “thanks”.
23. Despite Easy’s position as CEO of the MFB he failed or refused to direct Carey to cease and desist from engaging in the conduct referred to in paragraph [20] or endorse Antonakis’ right to engage in the Industrial Action.
24. The incident referred to in paragraphs [20] [21] and [22] left Antonakis upset, distressed, humiliated and in fear that her position was at risk because she had engaged in the Industrial Action.
25. On or around late afternoon on 18 May 2012 Antonakis reported the incident referred to in paragraphs [20], [21], and [22] to Byrnes.
26. In response to the report of the incident referred to in paragraphs [20], [21] and [22] by Antonakis, Byrnes said to Antonakis words to the effect: “By wearing that t-shirt you are voicing that you are participating in the bans and I don’t like seeing you in that top”.
27. Antonakis responded to the statements of Byrnes referred to in paragraph [26] in words to the following effect I don’t care what the T-Shirt says I have protected industrial action. I don’t understand, who else has been dragged into the CEO’s office for wearing a UFU T-Shirt, this is unacceptable I will not stay here and put up with this treatment.
28. The statement made by Byrnes to Antonakis caused Antonakis further upset, distress and humiliation and increased her fear that her position was at risk because she engaged in the Industrial Action.
29. Antonakis left the Executive Suites of the MFB at approximately 3.25pm on 18 May 2012 in a distressed state.’
195 On the basis of the conduct alleged it is claimed that the MFB took adverse action against Ms Antonakis.
196 I have already made factual findings in relation to the events of 18 May 2012. These findings are largely contrary to the factual allegations advanced by the applicants. In particular the allegations made at paragraphs 21(a), (b), (d), (e) and paragraphs 22, 24 (in part), 26 and 28 have not been substantiated.
197 Ms Carey, Mr Easy and Ms Byrnes each gave evidence concerning their intentions in relation to their conduct and statements.
198 Ms Carey was also asked about whether she intended to ridicule and harass Ms Antonakis: ‘I never had any intention. It was a spontaneous reaction. It was a bit of fun between colleagues who had a good relationship. I can’t say any more than that. It was just spontaneous and a bit of light heartedness on a Friday afternoon. There was no malice – no bad intention whatsoever on my part...’149
199 Ms Carey was cross-examined as to her intentions:
‘Counsel: Well, I suggest to you that once you got into the CEOs office, you said to the CEO, “Look at this”?
Ms Carey: I did. I did say, “Look at this,” to the CEO, or
Counsel: And that statement was ?
Ms Carey: some words to that effect.
Counsel: That statement was calculated to humiliate Ms Antonakis for wearing a UFU T-shirt, wasn’t it?
Ms Carey: It was not calculated to humiliate her. It was to just draw the CEOs attention to the fact that the executive assistant to the executive director, people and culture, was wearing a union T-shirt. There was no humiliation intended.’150
200 Ms Carey was aware that the wearing of UFU t-shirts was part of the protected industrial action and suspected that Ms Antonakis was a member of the UFU.151
‘Counsel: Ms Carey, I suggest to you that you took Ms Antonakis to the CEOs office because she was wearing a UFU T-shirt. That’s correct, isn’t it?
Ms Carey: That is correct.
Counsel: And I suggest to you that you knew at that time that part of the industrial action of the UFU was to wear T-shirts in support of an enterprise agreement. You knew that, didn’t you?
Ms Carey: I did, and I think that’s the defining difference. When I saw her wearing a union T-shirt, it didn’t have any EB slogans on it, and
Counsel: But Ms Carey ?
Ms Carey: That’s why I was surprised that she was just wearing a union T-shirt. That’s why I was so amused.
Counsel: Ms Carey, you wouldn’t have dragged Ms Antonakis into the CEOs office if she was wearing a Carlton jumper, would you?
Ms Carey: I might have done.
Counsel: You might have done?
Ms Carey: I wouldn’t have dragged her in, but if I – if I had been flippant, and it was a Friday afternoon, we were having fun, and we were both going that way, I might have said, “Look who she supports.” I don’t know.
Counsel: Have you ever dragged somebody in for wearing an item of clothing – into the CEOs office before?
Ms Carey: No.
Counsel: No. And you only did it because she was wearing a UFU T-shirt?
Ms Carey: That’s correct. I’ve not denied that.’152
201 Counsel for the applicants submitted that all of Ms Carey’s interactions with Ms Antonakis must be coloured by:
‘... the fact that she knew industrial action was taking place. She suspected that Ms Antonakis was a UFU member and the only reason she did what she did was because Ms Antonakis was wearing a UFU T-shirt.’153
202 I am not persuaded that counsel’s submission accurately reflects all of the evidence. Ms Carey was only ‘peripherally aware’ that the wearing of UFU t-shirts was part of the protected industrial action being undertaken and did not attach any significance to the fact that Ms Antonakis was wearing a UFU t-shirt:
‘Counsel: And you said you were surprised to see her wearing ... the union T-shirt - because she was the executive assistant to the director of HR, effectively. Did you think there was any other significance to the T-shirt?
Ms Carey: Didn’t even think about it, no. I just thought, ‘She has come to show me she’s wearing the union T-shirt’.’154
203 Later in her evidence the relevant allegations were put to Ms Carey:
‘Counsel: ... the applicants say that the MFB failed or refused to allow Sofie to exercise her right to engage in protected industrial action by wearing a UFU T-shirt in the executive suites or at all. Did you intend to stop Sofie wearing the T-shirt?
Ms Carey: I didn’t even relate to the industrial action. To me, she was just the EA to the executive director HR, the most senior HR person, who came to show me she was wearing a union T-shirt. I didn’t even think of industrial action.’155
204 I am satisfied that the adverse action taken by Ms Carey against Ms Antonakis was not taken because Ms Antonakis had engaged in protected industrial action (in wearing the UFU t-shirt). I accept Ms Carey’s evidence that she did not attach any particular significance to the fact that Ms Antonakis was wearing a UFU t-shirt. I also accept Ms Carey’s evidence that her interaction with Ms Antonakis was ‘just spontaneous and a bit of light-heartedness on a Friday afternoon.’ Ms Carey took Ms Antonakis into Mr Easy’s office because she was wearing a UFU t-shirt - but it was the incongruity of the Executive Assistant to Ms Byrnes wearing a UFU t-shirt that prompted Ms Carey’s actions, not that Ms Antonakis was engaging in industrial action. The onus imposed by s 361 has been discharged. To the extent that it can be said that Ms Antonakis was engaging in an industrial action (by wearing the UFU t-shirt) that fact was not a reason for the adverse action against her.
205 In relation to Mr Easy I am not persuaded that he took any action against Ms Antonakis on 18 May 2012 which could be said to constitute adverse action. The applicants submitted that Mr Easy breached the Code of Conduct for the Public Sector and the MFB’s Workplace Behaviour Policy and Issue Resolution Procedure:
‘Easy in particular had a positive obligation as CEO imposed upon him by the Code of Conduct to actively ensure that ‘public sector employees follow the spirit as well as the letter of the law relating to discrimination, harassment, bullying and victimisation’ and ‘adhere to industrial and legal obligations.’ It is notable in the circumstances of the incident which occurred on the afternoon of 18 May 2012 that Easy did not actively ensure conduct of Carey ceased nor did he reprimand Carey for the conduct.’(at [33] of the applicants submission).
206 I note at the outset that these alleged breaches did not form part of the Amended Statement of Claim, but in any event I am not persuaded that the allegations are made out. Mr Easy’s interaction with Ms Antonakis on 18 May 2012 lasted no more than 15 seconds. At the time Mr Easy perceived the interaction between Ms Carey and Ms Antonakis as light-hearted. When it later became apparent that it was more serious he agreed to the incident being independently investigated and subsequently implemented the investigator’s recommendation and issued a formal warning to Ms Carey. In my view no further action was required.
207 As to Ms Byrnes, I am not persuaded that anything said or done by her on 18 May 2012 constituted adverse action in relation to Ms Antonakis. The only comment by Ms Byrnes of any note was in response to Ms Antonakis wearing the UFU t-shirt when Ms Byrnes said ‘I can’t say I’m thrilled to see you wearing it, but fine.’ I am not persuaded that this remark constituted adverse action, but even it if did I am satisfied that the onus in s 361 has been discharged and any adverse action was not taken because Ms Antonakis was engaging in industrial action.
208 Ms Byrnes gave evidence as to her intention in making this comment to Ms Antonakis:
‘Counsel: When you used those words, as you say, on the morning of that day was that intended by you to affect Ms Antonakis’ rights to engage in protected industrial action?
Ms Byrnes: Not at all, and at that stage it had not occurred to me that she was participating in industrial action.
Counsel: Now, was there any intention by using those words to cause distress or upset to Ms Antonakis?
Ms Byrnes: Not at all. It was an honest response to – I think the wearing of the T-shirt made a statement and that was my reaction to it.
Counsel: And there has been a suggestion in the pleadings that Ms Antonakis was concerned about her job future, about – yes – a fear that her position was at risk because of the wearing of the T-shirt. Was there any risk to her position because she was wearing the T-shirt?
Ms Byrnes: Absolutely not.’156
209 I accept Ms Byrnes’ evidence that at the time she made the comment it had not occurred to her that Ms Antonakis was participating in industrial action - on that basis it cannot have been a substantial and operative reason for Ms Byrnes’ action.
210 I am satisfied that the respondents have discharged the burden imposed by s 361(1) and that the respondents did not take adverse action against Ms Antonakis because she was exercising a workplace right or engaging in industrial activity (namely taking industrial action by wearing a UFU t-shirt), or for reasons which included that reason.
211 For the reasons given the allegations in respect of the events of 18 May 2012 have not been made out and I dismiss this aspect of the application.
(ii) Monday 21 May 2012 - Friday 25 May
212 Three aspects of the events in the week of 21-25 May 2012 are relevant for present purposes:
Ms Antonakis’ certificate of capacity;
the investigation into the events of 18 May 2012; and
the meeting between Ms Byrnes and Ms Antonakis on Friday 25 May 2012.
(a) Certificate of capacity
213 On 21 May 2012, Ms Antonakis attended the workplace and provided Ms Byrnes with a certificate of capacity. The certificate of capacity included a work restriction in the following terms: ‘No one-to-one contact with CEO’s office until dispute resolution takes effect’ and also recorded the treating doctor’s recommendation:
‘Referral to HR and Pauline Brasher
Dispute resolution
Mediation down the track.’
214 In the Amended Statement of Claim the applicants claim that the MFB altered Ms Antonakis’ position to her prejudice (or in the alternative the MFB discriminated between Ms Antonakis and its other employees) by ‘refusing to comply with the workplace restrictions contained in a certificate of capacity’ by directing her to participate in a ‘face-to-face’ meeting with Ms Carey on 21 March 2012. The applicants allege that by reason of this conduct the MFB took adverse action against Ms Antonakis within the meaning of s 342 of the Act. It is also alleged that the MFB took the adverse action because Ms Antonakis had exercised a workplace right or because she had engaged in industrial activity.
215 Central to these allegations is the proposition that the MFB directed Ms Antonakis to participate in a ‘face-to-face’ meeting with Ms Carey, in breach of the workplace restrictions contained in the certificate of capacity. There is no evidence to support the proposition that Ms Antonakis was given such a direction. Accordingly, this allegation must fail.
216 The relevant facts are as follows.
217 When Ms Antonakis provided Ms Byrnes with the certificate of capacity, Ms Byrnes said words to the following effect ‘I thought you might do this.’ She also said words to the effect ‘I was going to ask Pamela (Ms Carey) to apologise to you this morning, do you not want that?’ In response Ms Antonakis said ‘No I just want to be left alone. I just need you to make sure that Pamela and the CEO don't contact me.’157
218 Later that morning Ms Byrnes advised Mr Easy of the certificate of capacity with respect to Ms Antonakis.158 Mr Easy was aware that Ms Carey wished to apologise to Ms Antonakis and offered no objection to her issuing that apology.159 Mr Easy’s discussions with Ms Carey about an apology to Ms Antonakis took place around 9:30am on Monday, 21 May 2012, before he was informed about the restrictions in Ms Antonakis’ certificate of capacity.160
219 Ms Byrnes also discussed the workplace restrictions in Ms Antonakis’ certificate of capacity with Ms Carey. Ms Carey gave evidence about this exchange:
‘Ms Byrnes arrived at my office. I can’t remember the exact time. She said, ‘May I speak to you in private?’ and I said, ‘Yes, certainly’, and we went into the president’s office. She told me that she had been contacted by Sofie, that Sofie was very distressed by what had happened on Friday afternoon. I expressed my remorse, and said I was so sorry, and I would like to go and apologise to Sofie, and Danielle said to me, ‘No, you can’t do that’. There’s a - I understood. I thought she said a WorkCover instruction, but it was clearly a work instruction - not to have anything to do with Sofie whatsoever.’161
220 Ms Carey’s evidence is that she has not approached Ms Antonakis in person and nor has she attempted to contact her in relation to the incident on 18 May 2012.162 Nor did Ms Carey persist in requesting to see Ms Antonakis, or ask Ms Byrnes to facilitate such a meeting. 163
221 Ms Byrnes also gave the following evidence in relation to the applicants allegation that Ms Antonakis had been directed to participate in a face-to-face meeting with Ms Carey:
‘Counsel: … And also this day the MFB has been criticised for directing Ms Antonakis to participate in a face to face meeting with Ms Carey; were you aware of that? ---
Ms Byrnes: No, I wasn’t. That’s - I asked Sofie on two occasions that day whether she would be prepared to accept an apology. I didn’t specify in what form, and I certainly did not direct her to do any such thing. In fact I said to Pamela in the morning that she was not to directly approach Sofie given the workplace restriction.’164
222 Nor was Mr Easy aware of any direction being given to Ms Antonakis to participate in a face-to-face meeting with Ms Carey.165
223 In summary, there is no evidence - from Ms Antonakis or anyone else - of a direction being given to Ms Antonakis in the form alleged by the applicants. The highest the applicants case gets is that Ms Byrnes asked Ms Antonakis (on three separate occasions on 21 May 2012) whether she would accept an apology from Ms Carey and, further, on 24 May 2012 Mr Hogan attempted to deliver a written apology from Ms Carey. Such requests do not amount to altering Ms Antonakis’ position to her prejudice and nor do they amount to discriminatory treatment. In this regard it is relevant to note that Ms Antonakis’ receptiveness to an apology from Ms Carey has certainly fluctuated over time.
224 Ms Antonakis’ evidence was that she checked her email on the evening of Friday 18 May 2012 ‘in hope that there would be an email from Pamela (Ms Carey) apologising’.166 However, by 9.00 am the following Monday (21 May 2012) Ms Antonakis rejected Ms Byrnes’ suggestion that Ms Carey apologise: ‘because at this point I didn’t feel that an apology would have been genuine’167.
225 Yet by Wednesday, 24 May 2012, Ms Antonakis (through her lawyers) was seeking a verbal and written apology from Ms Carey.168
226 There is no evidence to support the proposition that Ms Antonakis was given a direction in breach of the workplace restrictions contained in the certificate of capacity. Accordingly, this allegation must fail.
(b) The investigation
227 On 21 May 2012, Ms Byrnes initiated an internal investigation into the incident involving Ms Antonakis, Ms Carey and Mr Easy on 18 May 2012.
228 The applicants allege that the investigation was initiated despite Ms Antonakis’ objections (both oral and in writing) and that the initiation of the investigation caused Ms Antonakis to feel bullied, harassed and victimised by Ms Byrnes. It is alleged that Ms Antonakis became nauseous and anxious about attending the workplace and when at the workplace.
229 In the Amended Statement of Claim the applicants claim that the MFB altered Ms Antonakis’ position to her prejudice (or in the alternative the MFB discriminated between Ms Antonakis and its other employees) by proceeding with an investigation into the incident involving Ms Antonakis, Ms Carey and Mr Easy on 18 May 2012, despite Ms Antonakis’ objections to such an investigation proceeding.
230 Central to these allegations is the proposition that by proceeding with the investigation the MFB altered Ms Antonakis’ position to her prejudice. I am not persuaded that Ms Antonakis’ position was altered to her prejudice and accordingly this allegation must fail. The relevant facts are as follows.
231 At about 3.00 pm on Monday, 21 May 2012, Ms Byrnes sent an email to Ms Pauline Brasher (an MFB Issue Resolution Registrar) stating, among other things:
‘... in order for the MFB to exercise its duty of care, can you please a) commence your own independent internal investigation and b) potentially establish on which jurisdiction comes into play.’169
232 Ms Byrnes gave evidence about a conversation she had with Ms Antonakis after 3.00 pm on that day:
‘Ms Byrnes: So almost straight after sending that email (to Ms Brasher) I went over to Sofie’s desk and I said, ‘I want to let you know as a courtesy that I’m going to conduct an investigation into this incident and I’ve asked Pauline to commence one’. And she said, ‘Well, what would be involved?’ And I said, ‘They would interview the participants’, I said, ‘I suspect that would be you, me, Nick, Pamela and anyone else the investigator thought was appropriate’. She said ‘What if I don’t want to participate?’ And I said ‘You have the right of refusal’...
Counsel: All right. Was anything said to you by Ms Antonakis about the commencement of the investigation, her attitude towards it?
Ms Byrnes: She looked - she looked uncertain about it, she looked - she asked me whether she had to participate and I said, ‘You have the right of refusal’. She didn’t ask me not to commence it.’170
233 Ms Antonakis denied being told that she did not need to participate in the investigation:
‘Counsel: On the Monday, and Ms Byrnes told you that you weren’t required to participate in the investigation, didn’t she? I suggest that she told you if you didn’t want to, you weren’t required to participate?
Ms Antonakis: She never said that.
Counsel: In any event, you refused to cooperate with the investigation, didn’t you.
Ms Antonakis: Yes, I did.’171
234 There is some inconsistency in Ms Antonakis’ evidence about whether or not she opposed the investigation taking place. She was asked about her conversation with Ms Byrnes on 21 May 2012 regarding the investigation:
‘I think - I can’t remember everything, but I believe Danielle said that there was - they were going to do an investigation. I remember saying I didn’t want one.’172
235 During cross-examination Ms Antonakis was taken to a letter from her solicitors to the MFB’s solicitors about the investigation173 which states, among other things:
‘The MFB has ordered an investigation to be undertaken... This is despite the fact that Ms Antonakis indicated that she was unsure if she wanted an investigation conducted.’
236 Notably, the correspondence from her solicitors does not suggest that Ms Antonakis opposed an investigation - it said that she had indicated she was ‘unsure if she wanted an investigation conducted’. Ms Antonakis was asked about this statement during cross-examination:
‘Counsel: Is that an accurate reflection of your position up until that stage - that you were unsure if you wanted an investigation conducted?
Ms Antonakis: Yes, I believe so.’174
237 I accept Ms Byrnes’ evidence and prefer it to that of Ms Antonakis. There was some inconsistency in Ms Antonakis’ evidence; Ms Byrnes’ evidence was unchallenged and I found her to be a more credible witness. I find that Ms Antonakis did not ask Ms Byrnes not to commence the investigation and that Ms Antonakis was told that she did not have to participate in the investigation. However, I accept that the UFU, acting on behalf of Ms Antonakis, subsequently opposed the investigation proceeding and advised the MFB of its position, in writing.
238 Later that day, after a conversation with Mr Lee, Ms Byrnes sent a further email to Ms Brasher, at about 6.00 pm stating:
‘Having considered the matter further can you please brief an SSA panel member and have them commence asap.’
239 Mr Lee gave evidence about his conversations with Ms Byrnes, Ms Brasher and Ms Anderson regarding the investigation.175 Mr Lee’s contemporaneous notes of these conversations are set out at Exhibits A1 and A2.
240 Mr Easy concurred with Ms Byrnes’ decision to commence an investigation into the incident on 18 May 2012. He was unaware of any opposition by Ms Antonakis to the investigation and rejected the suggestion that the investigation was commenced in part because Ms Antonakis was wearing a UFU t-shirt.176 According to Mr Easy, the purpose of the investigation was ‘to investigate and look into the events that took place on the Friday afternoon, and to look at whether that was in any way a breach of workplace behaviour policies.’177
241 Ms Amanda Anderson of Julie Baker-Smith & Associates (‘JBSA’) was engaged to undertake the investigation. JBSA is a member of the Panel of Review Officers referred to in the MFB Workplace Behaviour Issue Resolution Procedure.
242 The stated purpose of the investigation was:
‘To investigate and consider whether an incident captured on closed circuit television footage on 18/5/12, considered in conjunction with information provided by witnesses, constitutes:
a. a breach of the MFB Workplace Behaviour Policy;
b. a breach of the Equal Opportunity Act 2010; or
c. a criminal offence, such as common assault.
During the course of the investigation, we have also been instructed to consider, on the available evidence, whether there has been any breach of the VPS Code of Conduct.’
243 The parameters of the investigation were stated as:
‘To review the closed circuit television footage and interview relevant witnesses in relation to the incident on 18/5/12.’
244 Ms Antonakis did not participate in the JBSA investigation. Mr Easy, Ms Byrnes and Ms Carey provided statements to the investigating officer and these are set out at Exhibit A10 and Tabs 30 and 31 of Joint Exhibit 1 respectively. A copy of the Investigation Report, dated 20 June 2012, is set out at Tab 37 of Joint Exhibit 1.
245 Ms Antonakis’ lawyers were provided with an Executive Summary of the Investigation Report on 29 June 2012.178
246 The Investigation Report concludes in the following terms:
‘The available evidence is consistent and does not disclose any disputed facts. We reiterate that we have not had the opportunity to interview Sofie Antonakis for this investigation.
We consider there has been an isolated case of harassment and discrimination against Sofie Antonakis by Pamela Carey in breach of the MFB Workplace Behaviour Policy and the Equal Opportunity Act 2010.
Pamela Carey’s act of harassment and discrimination also amounts to breach of The Code of Conduct for Victorian Public Sector Employees.
We do not find evidence of occupational violence or bullying and defer to your legal advisors in relation to any potential criminal offence.’
247 The Investigation Report recommended that the MFB consider the report and make its own determination as to:
a) whether the MFB considers the incident amounted to any breach of any policy, rule, code or law; and
b) what further action might be taken or not, and what further action it will take.
248 Arising from the investigation, Ms Carey received a formal communication from the MFB in relation to the incident of 18 May 2012. In her evidence Ms Carey says:
‘Counsel: In relation to you. Did you receive any formal communication from the MFB after that investigation, in relation to the incident?
Ms Carey: Yes, I most certainly did. In a formal interview with Mr Easy, I was presented with the executive summary of the investigation. I was given a formal letter of warning, and advised it would be placed on my file. I was requested to attend training at the Equal Opportunity Commission, which I did, and I was requested to write a letter of apology to Sofie, which I did.’179
249 A copy of the written warning given to Ms Carey is set out at Tab 38 of Joint Exhibit
250 The issue for determination is whether the MFB’s actions in proceeding with the investigation constituted ‘adverse action’ against Ms Antonakis. The commencement of an investigation by an employer into conduct by an employee can, in certain circumstances, constitute adverse action against that employee for the purposes of s.342. As Collier J observed in Jones v Queensland Tertiary Admissions Centre Ltd (No. 2):180
‘While an investigation into allegations of bullying may be appropriate and indeed warranted in the circumstances of an individual case, this does not mean that the employee will not be ‘injured’ or their position altered to their prejudice by the investigation. I do not agree that, as a general proposition, amenability to a disciplinary investigation is a ‘normal’ incident of employment, even if the investigation is commenced in good faith and on a proper prima facie evidentiary basis.’
251 I note that her Honour’s judgment was applied by Murphy J in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 (29 May 2013). I too respectfully agree with her Honour’s views.
252 As previously mentioned (at [38] infra) initiating an investigation into an employee’s conduct or requiring an employee to participate in an investigatory process can amount to altering the position of an employee to their prejudice and hence constitute adverse action. But that is not this case.
253 The circumstances of this case are clearly distinguishable from the authorities referred to previously. Two points are particularly relevant in this regard. The first is that the investigation was not into Ms Antonakis’ conduct - it was into the conduct of Ms Carey and Mr Easy in respect of the incident on the afternoon of 18 May 2012. Second, Ms Antonakis was not required to participate in the investigation, indeed she was told that she did not need to participate. In fact, Ms Antonakis elected not to participate in the investigation and the investigator’s report made no adverse findings or recommendations in relation to Ms Antonakis.
254 Contrary to the applicant’s submissions, I am not persuaded that the MFB altered Ms Antonakis’ position to her prejudice by proceeding with the investigation.
255 In the alternative the applicants allege that the MFB discriminated between Ms Antonakis and its other employees by proceeding with an investigation despite Ms Antonakis’ objections. This allegation was not the subject of much elaboration in the submissions or in the evidence. I am not persuaded that the MFB discriminated against Ms Antonakis in the manner alleged.
256 Two further allegations are made in relation to the investigation. The first concerns the scope of the investigation and the second concerns an allegation that the MFB refused to respond to requests for information regarding the investigation.
257 As to the scope of the investigation it is alleged that the MFB altered Ms Antonakis’ position to her prejudice by investigating the incident that took place at 3.00 pm on 18 May 2012 involving Ms Antonakis, Ms Carey and Mr Easy, but not investigating Ms Byrnes comments to Ms Antonakis on 18 May 2012, and the allegation that the MFB acted in breach of the work restrictions in Ms Antonakis’ certificate of capacity.
258 I am not persuaded that there is any substance to these allegations. I have already made findings in relation to Ms Byrnes’ comments to Ms Antonakis on 18 May 2012 and in my view these comments did not warrant further investigation. But in any event Ms Byrnes did provide a statement to the investigators and cooperated in the investigation.
259 Nor is there any substance to the proposition that the MFB altered Ms Antonakis’ position to her prejudice by failing to investigate the allegation that the MFB acted in breach of work restrictions in Ms Antonakis’ certificate of capacity. As I have already determined, there was no breach of the restrictions in the certificate and, further, there was no evidence of any request by Ms Antonakis, or the UFU, that this matter be the subject of an investigation.
260 The second allegation is that the MFB altered Ms Antonakis’ position to her prejudice by refusing to respond to requests for information regarding the investigation.
261 Mr Lee sent Ms Brasher an email at 10.23 am on Tuesday, 22 May 2012:
‘I refer to our conversation of a few minutes ago. Ms Antonakis has instructed the UFU to act on her behalf in this matter.
I reiterate our request that the MFB managed investigation cease immediately. As advised the UFU sought that the proposed investigation cease via Ms Byrnes.
The reasons for this include that Ms Antonakis specifically requested that Ms Byrnes not instigate an investigation.
As I said on the phone, we are in the process of raising this matter in the appropriate forum.’181
262 Mr Lee did not identify to Ms Brasher, nor to Ms Byrnes in his discussion with her, what he meant by ‘the appropriate forum’.182
263 Mr Lee could not identify any question that he asked of either Ms Byrnes, in his conversations with her, or of Ms Brasher, which was not answered by them.183 He specifically agreed that Ms Byrnes did not refuse to answer any questions during the discussion.184
264 Mr Lee agreed that Ms Byrnes had agreed to consider what he had said185 and that, in fact, Ms Byrnes did instruct an independent investigator, JBSA, to conduct the investigation, rather than have an internal investigation.186
265 Ms Anderson sent Mr Lee an email at 3.19 pm on 23 May, in these terms:
‘I understand you represent Sophie Antonakis, Executive Assistant, People and Culture at MFB.
The MFB has asked me to investigate an incident between Sophie Antonakis and Pamela Carey on Friday 18 May 2012.
I am a consultant for independent investigation firm JBSA.
I would like to interview Sophie about what occurred during the incident. You or another support person are welcome to attend with her.
Would you please let me know if Sophie is prepared to meet with me.
I will be coming to the MFB offices on Friday 25 May and wonder whether there would be a time on that day to meet.’187
266 The email invited Mr Lee to contact Ms Anderson on her mobile or by return email. Mr Lee replied by email at 8.49 pm on Thursday 24 May:
‘We have some questions in relation to this matter and request written responses for clarity:
1. Who is conducting the investigation? E.g. yourself, JBSA, MFB etc.
2. Who is managing the investigation?
3. Who has instigated the investigation?
4. Who will be making decisions re outcomes of the investigation?
5. What is the scope of the investigation?
6. What incident is being investigated and is this the only matter which will be investigated?
If the answer to any of questions 1-4 are ‘MFB’, please provide names of specific MFB persons.
At this point, and until you have clarified the above issues, Sofie is not available to be interviewed.
Your request will be considered further after we receive your response.’
267 On the same day, Ms Antonakis’ lawyers wrote to the MFB in relation to the events of 18 and 21 May 2012 stating, among other things:
‘In relation to the events of 18 and 21 May we now require the following:
1. A written explanation as to why Antonakis was singled out for ridicule and humiliation when she chose to engage in protected industrial action.
2. A verbal and written apology from Mr Nick Easy in relation to his conduct directed towards Ms Antonakis on 18 May 2012.
3. A verbal and written apology from Ms Pamela Carey in relation to her conduct directed towards Ms Antonakis on 18 May 2012.
4. A verbal and written apology from Ms Danielle Byrnes in relation to her conduct directed towards Ms Antonakis on 18 May 2012 and 21 May 2012.
5. A written undertaking from Mr Nick Easy that he will not take any adverse action against, or breach, Ms Antonakis’s workplace right to engage in protected industrial action.
6. A written undertaking from Ms Pamela Carey that she will not take any adverse action against, or breach, Ms Antonakis’s workplace right to engage in protected industrial action.
7. A written undertaking from Ms Danielle Byrnes that she will not take any adverse action against, or breach, Ms Antonakis’s workplace right to engage in protected industrial action.
8. The next “CEO Update” circulated to all staff must note that protected industrial action is currently being undertaken by some staff and that the rights of those who do engage in protected action will be respected.
9. Appropriate training of Mr Easy, Ms Byrnes and Ms Carey with regard to protected industrial action.
We specifically reserve all rights to issue proceedings in the Federal Court regarding this conduct.
Should we not receive the above apologies and undertakings by 5:00pm 29 May then court proceedings will be immediately instituted to protect our client’s rights.’188
268 On 29 May 2012, the MFB’s lawyers responded to the letter of 24 May, as follows:
‘1. The issues raised in your letter regarding the events of 18 May 2012 have been referred to the Director of Governance, Mr Blair Trask.
2. Mr Trask has engaged Ms Julie Baker-smith of JBSA to conduct an investigation into the matters raised by Ms Antonakis. As you will appreciate when issues of this nature are raised the MFB is obliged to investigate and unfortunately it is a not a decision that can be made by the employee. Of course, any investigation is to be conducted sensitively and with utmost confidentiality.
3. For this reason and to ensure a proper process the MFB engaged Ms Baker-Smith who is a member of the Review Officers Panel established by the State Services Authority. The Panel was established to enable public sector organisations access to independent review officers to conduct workplace investigations.
4. As part of Ms Baker-Smith’s investigation we understand that she will wish to speak to Ms Antonakis and obtain information from her concerning the matters alleged. We would expect Ms Antonakis will be afforded the opportunity to have a support person in such meeting and will have advance notice of it.
5. Mr Trask will on the completion of investigation be provided with a report. We are instructed that the summary of the findings in the report will be shared with Ms Antonakis consistent with the normal practice of the MFB.
In the circumstances it is not appropriate to provide any further response to the matters set out on pages three and four of your letter that you say you require to be provided by 5.00pm today.
To ensure the investigation can proceed in a timely manner we ask that you confirm that your client will be able to meet with Ms Baker-Smith this week.
Finally, if your clients, notwithstanding the current investigation, intend to issue proceedings in the Federal Court we advise that we have instructions to accept service.’189
269 Mr Trask gave evidence that the letter of 29 May was consistent with the instructions he had given the MFB’s solicitors and that the refusal to respond to the questions about the investigation was ‘in accordance with our normal practice that we wouldn’t respond to that sort of - that sort of question’.190 Mr Trask said:
‘So when I made that decision, that’s the decision that I would normally make in any situation involving a request of that type. That’s the way I would always deal with those matters.’191
270 Mr Trask was asked about the allegation that a reason for the refusal to provide the information requested in relation to the investigation was that Ms Antonakis had taken part in protected industrial action. In response Mr Trask said:
‘... I would strongly deny that. This is the way I would always handle an investigation like this. It is very confidential and sensitive in nature and I don’t just go around providing information to anyone who asks.’192
271 Mr Trask was cross-examined in relation to these matters193 and re-examined194.
272 Ms Antonakis’ lawyers responded to the letter of 29 May on 13 June 2012, as follows:
‘We refer to your letter dated 29 May 2012.
In relation to the serious issues raised by our clients we note that your client, the Metropolitan Fire and Emergency Services Board (MFB), have ordered an investigation to be undertaken.
This is despite the fact that Ms Antonakis indicated that she was unsure if she wanted an investigation conducted.
The UFU have been contacted by Amanda Anderson from “jbsa” who has advised she is the investigator. We have considered her qualifications and she does not appear experienced in areas involving protected industrial action. Further, Ms Anderson refused to advise:
(a) who is managing the investigation;
(b) who instigated the investigation;
(c) what is the scope of the investigation;
(d) who would be making decisions concerning the outcomes of the investigation;
(e) what incident is actually being investigated.
Whilst your correspondence of 29 May 2012 makes reference to the events of 18 May you have not specified which persons are under investigation. The events which occurred on 21 May do not appear to be the subject of the investigation.
Your client is only proposing to provide a ‘summary of the findings’ of the investigation.
We do not consider that the response of your client is appropriate given the seriousness of what occurred.
As your client is not prepared to provide the assurance sought in our correspondence of 24 May 2012 proceedings will now be instituted in the Federal Court. In this regard we note that you have instructions to accept service.’195
273 I am not persuaded that the MFB altered Ms Antonakis’ position to her prejudice by refusing to respond to requests for information regarding the investigation. A number of the requests for information were answered and others were not, consistent with the MFB’s usual practice. But in any event Ms Antonakis was not prejudiced by any of this - the investigation was not into Ms Antonakis and no adverse findings or recommendations were made in relation to her.
274 Nor is there any substance to the proposition that the MFB discriminated between Ms Antonakis and its other employees by refusing to respond to requests for information regarding the investigation. I accept Mr Trask’s evidence that the approach taken by the MFB was in accordance with normal practice.
(c) The 25 May 2012 meeting
275 Ms Byrnes and Ms Antonakis had a ‘hand over’ meeting on 25 May 2012, before Ms Byrnes went on leave for three weeks. Ms Antonakis asked Mr Hogan to attend the meeting. Ms Antonakis was cross-examined about this issue:
‘Counsel: Well, here you are, in effect, saying, “I can’t have a meeting with my boss one-on-one without there being a witness support person present.” Isn’t that the position?
Ms Antonakis: He wasn’t in there as a support person, he was just another person in the room.
Counsel: You requested him to attend, hadn’t you?
Ms Antonakis: I had asked him to attend the meeting with me, yes.
Counsel: And I’m suggesting to you that it is highly unusual not to be able to have one-to-one meetings with your boss, isn’t it?
Ms Antonakis: Sorry, can you repeat that?
Counsel: It is highly unusual that an employee is not able to have one-on-one meetings with their boss?
Ms Antonakis: It would be unusual.’196
276 Ms Byrnes also deals with this meeting in her evidence:
‘Ms Byrnes: We didn’t really have much personal interaction at all for the rest of the week and then on the Friday, I was going overseas for three weeks and I asked her to come into my office so that I could hand over to her, meaning that I wanted to her the kinds of things that I wanted her to manage, respond to, otherwise delete, forward to the – my direct report, Michael Whirl, who was acting in my role and I sat in my office waiting for her to come in and I waited and – probably about five minutes, and then Sean Hogan came in and he said, “I just want to let you know I’m going to be in this meeting. Sofie’s asked me to join her.” And he came and he sat quietly with her while I handed over. Sofie looked very withdrawn and uncomfortable. She didn’t really speak during the meeting, she wrote down everything I said and the meeting probably took 10 minutes. I was surprised and I – and saddened and disappointed because I just thought, well, this is terrible. If the relationship has come to this where I can’t have a meeting with her one-on-one without one of my managers having to be in the room, I – I went on leave wondering how we were going to work together when I got back.
Counsel: Did you tell Mr Easy about these matters at some later stage?
Ms Byrnes: Yes. I came back to work in mid to late June and from about July, I had a number of conversations with Nick, “So, how’s it going, how’s it” – he knew – because of the restrictions with the work flows – I mean, Nick and Pamela were experiencing that at their end, “How’s it going?” I said, “Look, it’s very tense, it’s quite awkward. I’m having to manage work flows between – personally, between my office and yours. I’m finding that I’m having to send some emails home and, you know, be careful about what’s coming into my inbox.” I said, “It’s very tense.” I said, “Obviously, Sofie feels tense. You know, she’s obviously unhappy.” So yes, I had had what I remember as a number of conversations with Nick along those lines.
Counsel: Did you tell him about the meeting involving Sean Hogan?
Ms Byrnes: Yes, yes, I – yes, I’m sorry, I did, yes.
Counsel: And did you say why you were sending emails home?
Ms Byrnes: Well, I said that there were matters that I was concerned about Sofie seeing and also just thought it would be awkward for her to see and – and one category would be – there was a lot of correspondence between lawyers, in-house counsel about legal matters. There were also – I mean, there was correspondence about the consultative committee tracking matter – this was later – where Mr – we – the – Sofie had requested that all correspondence be conducted through Mr Lee, so then I didn’t want her to see that correspondence coming into my inbox because she had specifically said that correspondence was upsetting her, so I was protecting my inbox from – I was managing things that I thought were personal and not appropriate for her to view and also trying to take her feelings into consideration as well because I didn’t want her to feel awkward.
Counsel: Now, some of what you’ve said to Mr Easy is – was critical of Ms Antonakis, isn’t it?
Ms Byrnes: I have – yes, I have said that – I have made no secret of the fact and – that Sofie has – Sofie’s attitude is variable. Sofie has been – Sofie’s professional work performance is not variable, it has always been consistently high, but her attitude has been variable.’197
277 The significance of this meeting, and Ms Byrnes’ evidence about it, lies in the subsequent decision by Mr Easy to remove Ms Antonakis from her role as Executive Assistant to Ms Byrnes. I now turn to that issue and the allegations arising from it.
3.2 Events since the institution of the Federal Court proceedings
278 These proceedings were commenced on 29 June 2012. The central issue in the period since then concerns a decision by Mr Easy to remove Ms Antonakis from her position as Executive Assistant to Ms Byrnes. Mr Easy made this decision on 19 October 2012.198 Mr Easy’s evidence is that he took this decision because he believed that there had been a breakdown in the relationship of trust and confidence between Ms Antonakis and Ms Byrnes.
279 On 19 October 2012, a telephone conversation took place between the solicitors acting for the MFB and the solicitors acting for Ms Antonakis (Mr Tuck and Ms Davies respectively). This conversation is referred to in correspondence between Mr Tuck and Ms Davies.
280 In an email sent by Ms Davies to Mr Tuck at 6.48 pm on 19 October 2012, Ms Davies says:
‘I refer to our telephone conversation at approximately 4.50pm today.
During the course of that phone call you advised that certain emails written by my client, Sofie Antonakis, had been located on the MFB’s computer system. You did not provide details of the emails (how many there were, what their dates were or what was written in them) save to say that you alleged the emails revealed antagonism by my client towards Danielle Byrnes. Until such time as we are provided with the emails we cannot confirm your comments.
You indicated that because of these emails your client believed the trust and confidence between Sofie and Danielle has gone and it would not be appropriate for her to remain in her role. You further indicated that Sofie would be moved next week to a senior role comparable with her current position.
You were unable to provide any details as to what this role would be.’199
281 Mr Tuck responded to this email at 7.20 pm the same day:
‘In regards to your email, our client rejects any suggesting that it is victimising Ms Antonakis. Further we reject your interference that the MFB has waited until Friday afternoon to cause distress before making a unilateral move without further notice. This was not what I told you in our conversation today. I informed you that out of courtesy and to avoid approaching Ms Antonkis first, that I was placing you on notice that
the nature of the emails uncovered as part of discovery in which Ms Antonakis comments disparagingly on Ms Byrnes are such that the necessary relationship of trust and confidence between Ms Antonakis and Ms Byrnes has been broken.
An that as a consequence the MFB is proposing to move Ms Antonakis into a comparable role to her current position.
The purpose of my call was to place you on notice before a conversation with Ms Antonakis took pace and to avoid the very reaction you now allege against my client. It disappoints me that you have represented the conversation in the manner set out in your email.
I also confirm that I am now aware that the MFB is now considering whether any move should occur from next week (or following the project role if Ms Antonakis is considered the appropriate candidate for that position). The MFB proposes to discuss this with Ms Antonakis before doing so.
Next week the MFB will inform Ms Antonakis of its position.’200
282 On 1 November 2012, Ms Antonakis was informed of the relocation of her role as Executive Assistant to Ms Byrnes. This information was set out in correspondence from the MFB’s solicitors to Ms Antonakis’ solicitors.201 That correspondence stated, among other things, that commencing 7 November 2012, Ms Antonakis would be undertaking a ‘temporary project role’ concerning the consultative committee backlog work. The temporary project role would be for a period of four weeks and during the secondment Ms Antonakis would be relocated to an appropriate workplace and her current remuneration would be maintained. The correspondence also stated:
‘As you may be aware, our client has attempted to meet with Ms Antonakis on Friday 26 October and Monday, 29 October 2012 to discuss the potential relocation of her role with our client. Ms Antonakis was unwilling or unable to meet with our client on both occasions.
Accordingly matters that would have been discussed at the meeting between our client and Ms Antonkis are set out below. We ask that you please inform Ms Antonakis of the content of this letter and respond accordingly. A copy of this letter has also been provided to Mr Casey Lee of the UFU.
As mentioned previously, the proposed relocation of Ms Antonakis from her role as Executive Assistant to Ms Danielle Byrnes arises because emails discovered in the course of the Federal Court proceeding evidenced a breakdown in the relationship of trust and confidence between Ms Antonakis and Ms Byrnes.
In particular, the emails indicate that Ms Antonakis has a disparaging view of Ms Byrnes, which is evidenced by the following comments in the emails discovered:
On 7 May 2012, in an email exchange bettwn Ms Kirstie Schroeder (Executive Director Operational Learning and Development) and Ms Antonakis, Ms Schroeder said ‘Hey hey hey you can’t ever say I’m just like Danielle!!!!!!!!!!!!!!!!!!!.’ Ms Antonakis responded ‘YOUR ARE NOTHING LIKE HER!...’.
On 11 May 2012, Ms Antonakis made the following comment in an email to Kirstie Schroeder with respect to a request made by Ms Byrnes to Ms Antonakis: ‘Look at the kind of requests I get, I cannot put up with it much longer’.
On 11 May 2012, Ms Antonakis made the following comment in an email to Ms Schroeder with respect to a request made by Ms Byrnes to Ms Antonakis: ‘And this one, God know [sic] how many sheets x 75 I have to do’.
On 11 May 2012, Ms Antonakis made the following comment in an email to Ms Schroeder with respect to a request made by Ms Byrnes to Ms Antonakis: ‘And my favourite one, am I Michael’s assistant?’.
On 17 May 2012, Ms Antonakis made the following comments in an email to Katia Battista: ‘it should be fine but SHE is going on leave in a week and SHE may have work for me as she hasn’t been in for 2 days but I’m hoping SHE doesn’t destroy my date with you’ and ‘I wish she was departing, unfortunately not at this point, she is however going on 3 weeks leave starting 28 May, 2012 - YIIPEEEE!’.
On 18 May 2012, Ms Antonakis made the following comment in an email to Rob Maya: ‘I will probably annoy her and I guess that it is a plus’.
The above indicated a continued working relationship between Ms Antonakis and MS Byrnes is untenable given the breakdown of trust and confidence and evidences clear disrespect shown by Ms Antonakis to Ms Byrnes.
Please inform Ms Antonakis that our client values her skills and experience. However, it is unreasonably to require Ms Antonakis and Ms Byrne to continue to work closely together in light of the disregard Ms Antonakis has of Ms Byrnes. The emails appear to indicate Ms Antonakis has a poor opinion of Ms Byrnes and it is a view she has shared with others.
Accordingly, given these circumstances our client considers it appropriate that your client relocate her substantive position. To this end, our client has considered all currently available roles which would be suitable for Ms Antonakis and makes the following proposal for the relocation of her substantive position as well as responding to the proposal put by Mr Casey Lee on 30 October 2012 about Ms Antonakis performing a temporary project role.’202
283 The correspondence then states that at the conclusion of the temporary project role Ms Antonakis would be relocated to one of two roles:
Administrative Secretary (Office of the Chief Fire Officer) reporting to Mr Terry Hunter, Director Regional Fire Safety (located at Eastern Hill in the shared office adjacent to the Executive Director, Corporate Services); or
Executive Assistant to the Regional Director, South East Metro Region, located at Oakleigh (the Alternative Executive Assistant Role).
284 Ms Antonakis was required to select one of the two roles before close of business 9 November 2012. If Ms Antonakis did not select her preferred role by the specified time, the letter states that the MFB would direct her to perform the Administrative Secretary Role. Mr Trask gave evidence as to why Ms Antonakis would be allocated to the Administrative Secretary role if she didn’t select a preferred role:
‘Look, really, that was the - that role didn’t require any physical relocation. It would involve Sofie continuing to work with the colleagues she had been working with previously, in an office very near to where she had been working. So really, I thought it was the least disruptive of the options, because you know, I’m aware that the other role would involve a relocation. So I thought that was the most suitable...’203
‘Essentially because I was of the view that a - and it was part of my job to manage that relocation, and that was essentially the best way to go about it. Having tried and failed to meet with Sofie to discuss and to talk about other alternatives, essentially that was the - that was the best course of action ...’204
‘Because I didn’t know whether or not I would receive any response to that letter, so I wanted a firm next step to be advised in advance if there was no response received...’205
285 In relation to both of the roles offered, Ms Antonakis would continue to receive the same salary and other benefits currently provided and would continue in her role with the consultative committee and receive the higher duties allowance as per the current arrangement.
286 On 9 November 2012 Ms Antonakis’ solicitors replied to the MFB’s solicitor’s letter of 1 November 2012.206 That correspondence states, among other things, that:
Ms Antonakis was prepared to commence the secondment on 12 November 2012 and she considered that the period of the secondment should be at least 8 weeks; and
Ms Antonakis agreed to undertake the secondment on the basis that her permanent position be maintained as Executive Assistant to the Executive Director, People and Culture.
287 On 13 November 2012 the solicitors for the respondents wrote to the solicitors for the applicants undertaking among other things that:
Ms Antonakis would commence the secondment on 15 November 2012 for a period of not less than 8 weeks; and
Ms Antonakis’ substantive position will be retained as an Executive Assistant.
288 The applicants allege that the MFB altered Ms Antonakis’ position to her prejudice by:
(a) requiring her to attend a meeting about the ‘performance of her role’ in the presence of corporate counsel;
(b) requiring her to elect a position to return to prior to commencing the internal secondment;
(c) requiring her to accept the Administrative Secretary role in lieu of an election; and
(d) refusing to return her to the substantive position after the conclusion of the internal secondment.
289 Further, or alternatively, the applicants allege that the MFB discriminated between Ms Antonakis and its other employees by:
(a) requiring her to attend a meeting about the ‘performance of her role’ in the presence of corporate counsel;
(b) requiring her to elect a position to return to prior to commencing the secondment;
(c) requiring her to accept the Administrative Secretary role in lieu of an election;
(d) refusing to provide an undertaking that Ms Antonakis would be returned to the substantive position after the conclusion of the internal secondment.
290 It is common ground that in initiating these proceedings Ms Antonakis was exercising a workplace right within the meaning of s 340(1)(a)(ii) of the Act. There is a dispute as to whether the MFB took adverse action against Ms Antonakis in the manner alleged.
291 It is convenient to deal first with the proposition that the MFB altered Ms Antonakis’ position to her prejudice (or alternatively discriminated between Ms Antonakis and its other employees) by ‘requiring her to attend a meeting about the ‘performance of her role’ in the presence of corporate counsel’. The relevant factual background may be shortly stated.
292 On 24 October 2012, the MFB nominated Mr Trask as the liaison point between the MFB and Ms Antonakis regarding, among other things, the relocation of Ms Antonakis’ role.
293 On 25 October 2012, Mr Trask sent to Ms Antonakis and Mr Chris Wiseman, General Counsel for the MFB, an electronic appointment titled ‘Meeting to discuss performance of your Role’ which included the following statement: ‘Sofie this is not a disciplinary matter but you may wish to bring a support person.’ Ms Antonakis sought further information regarding the role to which the appointment pertained. Mr Trask responded to Ms Antonakis’ request in the following manner: ‘Sofie, the meeting relates to both your substantive role and the temporary role tracking the consultative committee actions.’ Following a further meeting request by Mr Trask to Ms Antonakis on 26 October 2012, Ms Antonakis responded by declining the request.
294 The electronic invitation from Mr Trask to Ms Antonakis and Mr Wiseman followed an email from Mr Trask to Mr Lee dated 24 October 2012 (at 4.39 pm) in which Mr Trask informed Mr Lee of the intention to meet Ms Antonakis to discuss the arrangements following the ‘temporary project role’. Mr Trask had sought confirmation of Ms Antonakis’ availability for the meeting.
295 In summary the relevant factual context is as follows:
- There is no evidence that Ms Antonakis was directed, or required to attend a meeting with Mr Trask.207
- Mr Trask denied that requiring Ms Antonakis to attend a meeting about the performance of her role in the presence of Corporate Counsel was because she instituted or participated in these proceedings. Mr Trask stated his reasons for inviting Ms Antonakis to the meeting was: ‘to listen to what she had to say, and if anything came to light that meant that that was unreasonable to relocate her, I would have recommended different action.208
- The attendance of Corporate Counsel at the proposed meeting between Ms Antonakis and Mr Trask was explained by Mr Trask on the basis that he ‘thought it was important to have another person there, whether to take notes or just be an independent person to have observe proceedings rather than take the meeting myself. In terms of the choice of Chris, there weren’t actually too many people in the organisation who knew of these emails. I wanted to keep that tight – confidential – so Chris works closely with me. He was available at the time, so he was the best person to attend with me.’209 In cross-examination, Mr Trask denied that the invitation of Mr Wiseman was an internal legal onslaught calculated to intimidate Ms Antonakis.
- Ms Antonakis declined the meeting request and did not attend the meeting.
296 In the circumstances, I am not persuaded that the MFB took adverse action against Ms Antonakis in the manner alleged. I am not persuaded that being invited to attend a meeting can be said to alter an employee’s position to their prejudice, in circumstances where there is no consequent action taken against the employee for not attending the meeting. Nor am I persuaded that the conduct involved any discriminatory treatment. Mr Trask was the person nominated by the MFB to be the liaison point between the MFB and Ms Antonakis. There was nothing usual about him seeking a meeting with Ms Antonakis. Nor was there any evidence adduced by the applicants as to the position of ‘other employees’. I now turn to the other allegations of adverse action.
297 The other allegations centre on the MFB’s decision to remove Ms Antonakis from her position as Executive Assistant to Ms Byrnes. As mentioned, Ms Antonakis was offered two alternate roles. Although the alternate roles did not result in any change to Ms Antonakis’ remuneration I accept that the proposed relocation altered Ms Antonakis’ position to her prejudice. The Administrative Secretary role would be perceived as a demotion (albeit with no loss of pay) and the Oakleigh role would involve additional travel.
298 The issue for determination now becomes whether the MFB took the adverse action because Ms Antonakis was exercising a workplace right (in initiating these proceedings), or for reasons which included that reason. Section 361(1) casts a burden of proof on the MFB in relation to this issue.
299 The determination of this question of fact invites attention as to why the MFB so acted. Evidence from the decision maker (Mr Easy) which explains why the adverse action was taken is relevant to the determination of this issue.
300 On 16 October 2012, Mr Wiseman provided Mr Easy with six emails to which Ms Antonakis was a party.210 Mr Easy characterised the comments made in these emails as disparaging211 and gave evidence as to the views he formed about the breakdown in the relationship between Ms Byrnes and Ms Antonakis upon reading these emails.212 The emails in question are set out at Tabs 10, 12, 13, 14, 15 and 17 of Joint Exhibit 1 and are summarised in the MFB correspondence to Ms Antonakis’ solicitors dated 1 November 2012 (see para [282] infra). According to Mr Easy, he concluded that there was a breakdown in the relationship between Ms Byrnes and Ms Antonakis on the basis of the emails and in the context of an earlier conversation he had with Ms Byrnes:
‘Counsel: What views did you form, Mr Easy, and were there other matters on which you based those views as well?
Mr Easy: Yes. So after the reading the emails, and they were read as a collective, I did form the review [sic] that there was clearly a breakdown in respect and trust and confidence between Ms Antonakis and Ms Byrnes. I didn’t consider that in isolation. I did consider those also in the context of an earlier conversation with Danielle, after she received from leave, which was around July, and that conversation informed me that Danielle was redirecting some of her work to her home address – that she was changing her workflows, and that the relationship was tense between her and Ms Antonakis. So those two considerations were two key inputs to my own view and belief that the relationship had broken down, and there was no respect, trust or confidence, and that it was an untenable relationship.
Counsel: What about – did Ms Byrnes tell you anything about a conversation with Mr Hogan?
Mr Easy: Yes, Ms Byrnes also
Counsel: In the presence of Mr Hogan?
Mr Easy: Yes. Ms Byrnes also indicated to me that – prior to commencing her annual leave, in a handover – that Ms Antonakis wasn’t willing to have that meeting with her without the presence of Mr Hogan in the room with – with her.
Counsel: Why is there any importance attached to having respect, trust and confidence between an executive assistant and the position held by Ms Byrnes? Why is that of any importance, firstly?
Mr Easy: Ms Byrnes is an executive director, so she’s a senior member of the executive leadership team. Her functions cross a broad area in terms of employee relation matters, workforce planning matters, organisational development, payroll – all matters, really, to do with personnel in the organisation, including sensitive matters and matters of legal significance. It’s very important that the relationship between the executive assistant supporting Danielle in carrying out her functions is one of absolute respect and confidence and trust.
Counsel: Now, you were given those emails on the 16th. Do you remember the day you gave them consideration, along with the other matters, and formed the views you’ve told the court about?
Mr Easy: The emails were viewed on the 16th, which was a Friday, and it was on the Monday, which was the 19th, that I formed the view and made the decision regarding the emails, the previous discussions with Danielle, and the reallocation of the position.
Counsel: I think, to be fair, the Friday was 19 October?
Mr Easy: Yes, sorry. That’s right. You’re correct.
Counsel: So the views were formed ?
Mr Easy: 19th, yes.
Counsel: Why do you particularly remember that day as forming these views?
Mr Easy: Well, I remember the day because I sat down with – with general counsel, and it was a very important consideration. I also took some advice at that time, and careful deliberation of the content of those emails, and the matters before me.
Counsel: I’m sorry. I’m not – you formed the views about the loss of respect, trust and confidence, and what did you decide to do as a consequence of forming those views?
Mr Easy: After forming those views, my decision was that Ms Antonakis should be relocated from her position to another executive assistant role.
Counsel: Not with Ms Byrnes?
Mr Easy: That’s correct.’213
301 In cross-examination Mr Easy denied that he had drawn the conclusion he drew from the emails because these proceedings were on foot.214 Mr Trask gave evidence to the same effect.215
302 Mr Easy did not speak to Ms Byrnes about whether there was a breakdown in trust and confidence until some five or six days after he had made the decision to relocate Ms Antonakis.216 In his evidence, Mr Easy says:
‘It also followed the conversation with Ms Byrnes in around July, where she informed me regarding the work flows between her and Ms Antonakis, that the relationship was tense and strained at that time.’217
303 Mr Easy conceded that the letter of 1 November 2012 makes no reference to his conversation with Ms Byrnes in July 2012218 and was cross-examined about this omission from the correspondence of 1 November 2012:
‘Counsel: Now, there is no reference of a previous complaint of a breakdown of relationship, is there?
Mr Easy: Not in that correspondence, no.
Counsel: And that’s because, Mr Easy, the consideration of a conversation you had with Ms Byrne in July 2012 didn’t figure into your calculations regarding the breakdown of trust and confidence, did it?
Mr Easy: No, that’s not correct. It was a clear consideration from my point of view, because I was aware of the nature of the relationship, the work flows, and that there was a tense relationship already in place. So that clearly, in my mind, was part of my consideration, and the emails were a key point which made me form that view at that time. In addition to those conversations.
Counsel: Were you aware of this correspondence, Mr Easy?
Mr Easy: I wasn’t aware of the content of that correspondence, no.
Counsel: So that all lays at the feet of Mr Trask and Mr Wiseman, does it?
Mr Easy: Well, yes. They instructed our lawyers to issue and prepare that correspondence on the organisation’s behalf.
Counsel: And you’re responsible for the acts of those employees, aren’t you?
Mr Easy: Yes, I am. 219
304 Mr Easy was also cross-examined as to the other steps he may have taken in relation to these emails:
‘Counsel: The policy requires you to refer it for assessment to the investigation officers, doesn’t it?
Mr Easy: The policy refers to a number of things regarding process.
Counsel: And one of the steps in the policy is workplace mediation, isn’t it?
Mr Easy: It refers to mediation, conciliation and resolving matters informally if possible.
Counsel: So you’ve got an EA, a subordinate who think she’s being bullied and under your perception, an EA who is sending emails that you consider are disparaging and you don’t send these two people away for mediation to try and set down some parameters so that they can work together?
Mr Easy: I think the bullying matter is a separate matter. So as I said, that was being managed and handled independently.
Counsel: Well, let’s just put the bullying matter aside. Ms Byrnes in July says she has got some difficulties. You perceive from the emails that Ms Antonakis is engaging in particular conduct. You don’t send it away to be informally dealt with, do you?
Mr Easy: I wasn’t of the view that there would be much prospects of success in taking that course of action.
Counsel: But that’s not your role under the workplace behaviour policy, is it?
Mr Easy: I believe I am able to make those decisions if I feel that’s appropriate given the circumstances.
Counsel: It’s not your role under the workplace behaviour policy, is it?
Mr Easy: That policy doesn’t deny me the right to do that.
Counsel: That policy applies to you and to all employees; correct?
Mr Easy: Yes, it does.
Counsel: And instead of sending and applying the policy and procedure, what you do is you decide to remove or relocate is the language that you use, relocate Ms Antonakis. You ignore your own policy and procedure again, don’t you?
Mr Easy: They were the steps I felt appropriate given these circumstances.
Counsel: You ignore your own policy and procedure, don’t you?
Mr Easy: I took action as I felt appropriate.
Counsel: You ignore your own policy and procedure, don’t you?
Mr Easy: I don’t believe I ignored them, no.
Counsel: And attempt informal resolution:
A person with an issue –
Ms Byrnes –
or a person whose behaviour is being complained about may seek the assistance or guidance from the issue resolution registrar and information support system such as employee support programs.
Counsel: This is tab 4. This is the procedure. A complaint can be lodged. You didn’t lodge a complaint about Ms Antonakis’ conduct, did you?
Mr Easy: No, I did not.
Counsel: Well, it certainly wasn’t appropriate for Mr Trask to act because he was already heavily involved in these proceedings. That’s correct, isn’t it?
Mr Easy: Well, it’s how you characterise involved these proceedings. He wasn’t a direct party to the incident, therefore not involved in the proceedings.
Counsel: And so once a review officer who is independent is appointed, they determine what steps in the process should be taken. You didn’t investigate these emails that Ms Antonakis had sent, did you?
Mr Easy: I reviewed and considered the content of the emails.
Counsel: You were judge, jury and executioner, weren’t you?
Mr Easy: I formed my own view on the basis of the content of those emails and the previous discussions with Ms Byrnes.
Counsel: You didn’t follow your own workplace procedure, did you?
Mr Easy: The operative word in that procedure is, “may.”
Counsel: You may. So you determine if and when the policy applies to you, do you, Mr Easy?
Mr Easy: No. The policy applies but what I’m saying is the circumstances for any matter need to be fully taken into account.
Counsel: Excuse me, your Honour:
All employees are to have confidence in the process whether they be a complainant or a respondent.
So when you pick and choose when you’re going to use that procedure, how can employees have faith in the process, Mr Easy? They can’t, can they?
Mr Easy: I hadn’t heard any views that employees don’t have faith in our process.
Counsel: But instead of actually following that process, you decide to relocate Ms Antonakis?---I made a decision based on the information before me and the prior conversations with Ms Byrnes, that is correct.
Counsel: And again I put to you that you made those decisions because of the legal proceedings that were on foot?---I don’t accept that.’220
305 The Workplace Behaviour policy is primarily directed at the person to whom the ‘Unacceptable Behaviour’ is directed - in this case Ms Byrnes. In order for a matter to arise under the Workplace Behaviour Policy and in particular formal resolution which may include mediation, Ms Byrnes would need to make a complaint in writing setting out the particulars of the complaint. There is no evidence that Ms Byrnes made any such complaint. Nor was it a matter for Mr Easy to institute a complaint under this policy.
306 There is also no evidence that the emails in question were considered by Mr Easy or the MFB to constitute ‘Unacceptable Behaviour’ within the meaning of the Workplace Behaviour Policy. The issue about the emails and what those emails showed was a problem of a different nature, that is the breakdown of a working relationship.
307 Ms Byrnes also gave evidence about the conversation she had with Mr Easy concerning Ms Antonakis.221 In particular, Ms Byrnes notes that the relationship was very tense and Ms Antonakis was ‘obviously unhappy’222 and her attitude was variable.223
308 I am satisfied that Mr Easy did not take adverse action against Ms Antonakis because she had exercised a workplace right (namely the initiation of these proceedings), or for reasons which included that reason. I accept Mr Easy’s evidence that he took this decision because he believed that there had been a breakdown in the relationship of trust and confidence between Ms Antonakis and Ms Byrnes. In my view the reason provided for the action taken was plausible having regard to:
the role of Executive Assistant to Ms Byrnes required a high level of trust;
the emails indicated that Ms Antonakis had a disparaging view of Ms Byrnes; and
the earlier conversations Mr Easy had with Ms Byrnes during which Ms Byrnes referred to the fact that she was redirecting some emails to her home address, and the tense relationship between her and Ms Antonakis.
309 While Mr Easy took the decision to remove Ms Antonakis from her role as Executive Assistant to Ms Byrnes, he asked Mr Trask to manage the process of relocating Ms Antonakis to another role and to be the single point of contact on all matters to do with that issue and all issues associated with Ms Antonakis. Mr Easy also asked Ms Byrnes to provide advice in respect of alternate roles for Ms Antonakis and to work with Mr Wiseman on that issue.224 Ms Byrnes subsequently identified alternate positions and provided that advice to Mr Trask.225 Mr Trask also gave evidence that he also ‘took the step to look through our intranet, look at all the positions available, to see if there’s anything else that might be there and there was nothing else’.226
310 Ms Byrnes’ evidence is that there were not many roles that were currently vacant at Ms Antonakis’ work level or job grade.227
311 Mr Easy conceded that at this time there was a position available as an Executive Assistant at Eastern Hill, but on Ms Byrnes’ advice he elected not to offer that role to Ms Antonakis.228 Mr Easy rejected the proposition that he made that decision because these legal proceedings were on foot. Ms Byrnes gave evidence that she had telephoned the incumbent (Mr Youssef) for that role and asked him whether he would consider Ms Antonakis as his Executive Assistant, and he refused.229 The Executive Assistant position at Eastern Hill was to the North West Regional Director (Mr Youssef). Mr Youssef’s substantive position as Regional Director, South East Metro Region, at Oakleigh. One of the positions offered to Ms Antonakis was as the Executive Assistant to this position. In cross-examination Mr Trask was asked what would happen to Ms Antonakis once Mr Youssef returned to his substantive position:
‘Counsel: Mr Youssef returns to that position, decides that he does not want Ms Antonakis as his EA in that role, Ms Antonakis would be without a job then, wouldn’t it?
Mr Trask: Definitely that’s not the case. Mr Youssef came back to the role, he couldn’t just say, ‘I want someone else in the role’. That - that was a permanent position that that person would have reporting to whoever is in the role of that executive officer.
Counsel: So you’re aware that there was a position available reporting to Mr Youssef at Eastern Hill as executive assistant?
Mr Trask: I understand that may have been filled. I’m not sure of the details of that. I don’t believe that was available at the time ...
Counsel: And Ms Antonakis could have been offered that position, couldn’t she?
Mr Trask: My understanding is it wasn’t available at the time, certainly not a permanent basis. There may have been a temporary person in relation to that role.’230
312 The position of Executive Assistant to Mr Youssef, at Eastern Hill, was a temporary role only, probably for 12 months with the possibility of an extension.231
313 Mr Easy also rejected the proposition that the offer of an Executive Assistant role at Oakleigh was made because these proceedings were on foot.232 Mr Easy also rejected that following propositions:233
- The threat to place Ms Antonakis in the Administrative Secretary position was because the legal proceedings were on foot;
- the offer of the Executive Assistant’s role in Oakleigh was offered to Ms Antonakis because the legal proceedings were on foot.
314 I am satisfied that Mr Trask and Ms Byrnes did not take adverse action against Ms Antonakis because she had exercised a workplace right (namely the initiation of these proceedings). Both Mr Trask and Ms Byrnes gave evidence about their intentions and motivations for the actions they took in relation to Ms Antonakis’ relocation:
Mr Trask denied that in requiring Ms Antonakis to elect a position prior to commencing the internal secondment was because she had instituted Federal Court proceedings. Mr Trask stated that the Federal Court proceedings really had nothing to do with the relocation: ‘It wasn’t factored into my decision.’234
Mr Trask denied that requiring Ms Antonakis to accept the Administrative Secretary role if she did not make an election was because Ms Antonakis instituted Federal Court proceedings.235
Mr Trask denied that in failing to give an undertaking to return Ms Antonakis to the role of Executive Assistant to the Executive Director, People and Culture, it was in whole or part on the fact that Ms Antonakis had instituted Federal Court proceedings. Mr Trask said further ‘[It] wasn’t at all, and I think it wouldn’t have been appropriate in the circumstances to make such an undertaking’.236
Mr Trask denied that the removal of Ms Antonakis from her position as Executive Assistant to the Executive Director, People and Culture had nothing to do with the breach of trust and confidence.237
Mr Trask also denied that the breakdown of trust and confidence was a legal construct created by Mr Trask, Mr Wiseman and Mr Easy.238
Mr Trask denied that the removal of Ms Antonakis from her position as Executive Assistant to the Executive Director, People and Culture was because of the legal proceedings and that placing Ms Antonakis in a role either offsite, or a role that was a demotion, was a decision made as a result of these proceedings.239
Ms Byrnes denied that in selecting the roles which would be offered to Ms Antonakis that she took into account that Ms Antonakis had instituted legal proceedings against the MFB and Ms Byrnes.240
Ms Byrnes also denied that the Oakleigh position was selected because she did not want Ms Antonakis at Eastern Hill and that she did that because the proceedings were on foot.241
315 I am satisfied that the respondents have discharged the burden imposed by s 361(1) and that the respondents did not take adverse action against Ms Antonakis because she exercised a workplace right (namely the initiation of these proceedings).
316 I now turn to the last of the allegations advanced by the applicants.
3.3 The incident involving Ms Antonakis’ personal items
317 On 26 November 2012, Ms Byrnes disposed of a number of Ms Antonakis’ personal items, without her consent. The relevant facts are not in dispute.
318 Ms Antonakis commenced the consultative committee task tracking project role on 15 November 2012. It was initially thought that the project would take about four to six weeks to complete. Ms Byrnes had advertised for a temporary Executive Assistant for the period 26 November 2012 to 10 January 2013, to replace Ms Antonakis while she was in the project role. Ms Antonakis knew that her current workstation was required for the period she was undertaking the project role242 and so on 14 November 2012 she relocated her workstation and took a number of personal items with her.243 She cleared the desk area so that there was nothing left on there.244 Ms Antonakis moved her computer, phone and the consultative committee files and some personal items, such as a Carlton flag, sea shells and ornaments.245 Ms Antonakis then started in the new position on 15 November 2012.246
319 Ms Antonakis’ evidence was that she had left a number of personal items at her workstation:
‘I left an umbrella just beside the printer and I left wrapping paper, two UFU flags, some knives, a Norton Rose cylinder for an umbrella and I believe that was it. That was on the window sill. It wasn’t in the way. It wasn’t going to bother anyone.’247
320 Twelve days after Ms Antonakis had moved her work and personal items to the other work station, and the day before the temporary backfill assistant was to commence, Ms Byrnes put the Christmas paper, umbrella, a plastic plate and two small plastic UFU flags in the rubbish bin248 and placed a kitchen knife249 and a framed mission statement in a drawer.250
321 Ms Antonakis was informed the same day that Ms Byrnes had thrown some items in the rubbish bin251 and she sent an email to Mr Trask complaining about the disposal of these items:
‘I have been advised that my personal belongings including an umbrella, wrapping paper and 2 UFU flags have been thrown in the bin without my consent. I am extremely upset that this has occurred as no-one bothered to call me before they threw them out. I would have thought it is common courtesy to ring the owner of the items before throwing them in the bin. When relocating to my temporary position in the old building I didn’t think I had to remove all of my personal items from my desk as it is only a temporary assignment. Can you please organise to have these items removed from the bin (2nd floor photocopy room, close to the area I sit in as EA to Executive Director People and Culture. I am more than happy to collect these items from your office. I have to say I find it disgraceful that something like this has happened. I would never do such a thing to other people’s personal items. Its also disappointing that the items include 2 UFU flags considering the position that we currently find ourselves in, in relation to union representation.’
322 Mr Trask responded to Ms Antonakis’ email, on the same day:
‘Hello Sofie,
Danielle has told me she had assumed the items you mentioned had been discarded or abandoned following the removal of your personal items a couple of weeks ago, and that they had been removed to allow space for the temp who is about to start.
She has also told me that the items had been removed from the photocopy room when she went to retrieve them yesterday afternoon, so I expect that you have arranged collection yourself.
Blair.’
323 The wrapping paper was part of a roll of Christmas wrapping paper and the umbrella referred to was not in working order (there was a clip missing and it had to be held open by hand)252 but Ms Antonakis said that it had sentimental value as it had been given to her by a previous boss at the Herald Sun.253 It is notable that the statement that the umbrella had sentimental value was made for the first time by Ms Antonakis in re-examination254 and had not been pleaded or referred to in her outline of evidence.
324 In her evidence Ms Byrnes says that she assumed the items were rubbish and threw them in the bin:
‘I drew what I thought was a reasonable conclusion that they were rubbish, given that they had been there for 10 days and that Sofie had so comprehensively cleaned out her work station including taking her phone and computer.’255
325 Ms Byrnes expressly rejected the suggestion that she had disposed of Ms Antonakis’ items without her consent because Ms Antonakis had initiated these proceedings:
‘The thought did not cross my mind. The only thought I had was that I had a new person starting the next day and I was creating a clean work environment.’256
326 Ms Byrnes was cross-examined in relation to her disposal of these items:
‘Counsel: And you say that between 15 November and 26 November you noticed that there were items that remained of Ms Antonakis’ but you assumed that they were abandoned?
Mr Byrnes: Yes, I did.
Counsel: You heard Mr Lee give evidence yesterday that it was usual for the MFB to even contact the UFU if it had been deemed that employees’ items, particularly operational staff members, items had been abandoned in their lockers. Are you aware of that practice?
Ms Byrnes: I’ve not heard of that before.
Counsel: There was no reason why you couldn’t contact Ms Antonakis in the 10 day period and ask her whether she wanted those items that were remaining in the vicinity of her desk?
Ms Byrnes: I could have done, but she – I drew an assumption based on the fact that she had so comprehensively moved all of her items
Counsel: You could have done but you didn’t, did you?
Ms Byrnes: No, I didn’t.
Counsel: No. And you gave evidence that Sofie had mentioned to you that the umbrella was broken but still useable. Was that ?
Ms Byrnes: I thought she said it was broken and she didn’t use it.
Counsel: But she hadn’t thrown it out?
Ms Byrnes: I made what I thought was a reasonable assessment that the items had been discarded given that she had taken other items – all her other items of value to her with her.
Counsel: None of these items were affecting the workspace, were they?
Ms Byrnes: Well, I thought they were. I mean, I don’t want to have a temporary staff member starting with union banners up in the workspace for a start, which when it’s a workspace it’s not theirs and someone who has got no involvement in the industrial action, and – and clutter in the office. My intent was – my primary intent was to – it was inconsequential really, it was one of a thousand things I was doing, and it was have I got a clean workstation, there’s some rubbish still there, threw it in the bin.
Counsel: But you knew, for example the union banners, Ms Antonakis was a member of the union. Any reason why she wouldn’t want to keep those? Why did you deem those rubbish?
Ms Byrnes: Because I assumed that she would have taken all of the things that were of value to her.
Counsel: It was a temporary position that you advertised for, wasn’t it?
Ms Byrnes: She was asked to clean out her workstation.
Counsel: It was a temporary position that you advertised for?
Ms Byrnes: Yes.
Counsel: And Ms Antonakis could reasonably have returned to her substantive position as your EA?
Ms Byrnes: Quite – quite possibly, but she was asked to clean out the workstation, not leave
Counsel: And your evidence is ?
Ms Byrnes: a pile of personal items.
Counsel: Your evidence is that she did clean out the workstation, didn’t she?
Ms Byrnes: She did clean her desk. She did clean – she took all the files that were with her that she needed for her consultative committee job, and she left what I regarded inappropriately as a pile of rubbish when someone else was moving in.
Counsel: And I suggest to you you disposed of the items because of the legal proceedings on foot?
Ms Byrnes: It did not occur to me, did not cross my mind.
Counsel: And I suggest to you that you didn’t contact Ms Antonakis to ask her to collect her personal items because of the legal proceedings on foot?
Ms Byrnes: I don’t accept the proposition.’257
327 The applicants allege that the MFB took adverse action against Ms Antonakis within the meaning of s 342 of the Act (being the disposal of her personal items without her permission or consent) and that the MFB took that adverse action because Ms Antonakis had exercised a workplace right in that she initiated or participated in a process or proceeding under workplace law, in contravention of s 340(1)(a)(ii) of the Act (namely, these proceedings). It is alleged that Ms Byrnes’ conduct caused Ms Antonakis to feel distressed, bullied, harassed and victimised and that the MFB altered Ms Antonakis’ position to her prejudice by disposing of personal items without her permission or consent.
328 In the alternative it is alleged that the MFB discriminated between Ms Antonakis and its other employees by disposing of personal items without her permission or consent.
329 This part of the applicant’s claim is devoid of merit. The action in question - disposing of Ms Antonakis’ personal items - did not constitute ‘adverse action’ within the meaning of the Act and nor was it taken for a proscribed reason.
330 The table in s 342 sets out the circumstances in which a person takes adverse action against another person. None of those circumstances is made out in this case. The incident did not touch on Ms Antonakis’ employment. It related to the disposal of some personal items left at her workstation. The items in question were returned to Ms Antonakis (or she retrieved them from the rubbish bin), as they were available to be produced to the Court for inspection.258 Ms Antonakis was not injured in her employment and nor did Ms Byrnes’ actions alter Ms Antonakis’ position to her prejudice. Contrary to the Amended Statement of Claim, there was no evidence given by Ms Antonakis that the disposal of the items caused her to feel distressed, bullied, harassed or victimised. Ms Antonakis’ evidence went no further than that it made her feel like Ms Byrnes was ‘sending her a message’, ‘That she wanted me out’.259
331 The applicants also allege that the MFB discriminated between Ms Antonakis and its other employees by disposing of personal items without her permission or consent. The applicants submit that the process the MFB has adopted for the past five years with respect to personal items left by employees was to contact the employee and/or the UFU regarding the items in question. It is submitted that no contact was made with Ms Antonakis or the UFU regarding the abandoned items and on that basis Ms Antonakis was treated differently to other employees with respect to the disposal of her personal items.
332 The applicants’ reference to ‘the process that the MFB has adopted for the past five years with respect to personal items’ is based on Mr Lee’s evidence. Mr Lee was questioned about his knowledge of similar incidents involving the disposal of personal items:
‘... have you had any other experience such as the one that has occurred, in your five years as an industrial officer with the UFU - disposal of personal items?---Disposal of personal items has probably come up once - has come up once or twice, where staff have left things in lockers behind. And it has always been a very complicated and slow process, in working out what to do. MFB has tried to contact the staff members. They’ve contacted us. And so it has always been very different to what happened to Sofie’s items.
So you received no contact from anybody at the MFB, say, Mr Trask, that there were some personal items that they thought may have been abandoned by Ms Antonakis?---No contact - no.’260
333 There was no discrimination between Ms Antonakis and other employees in relation to the disposal of the items in question. Mr Lee’s evidence concerns the protocol adopted when staff leave personal items in lockers, the circumstances involving Ms Antonakis’ items are quite different. The applicants did not identify any relevantly comparable employees, and adduced no evidence as to other relevantly comparable employees. Accordingly, this claim must fail.
334 The second reason for rejecting this element of the application is that the act of disposing of Ms Antonakis’ personal items was not taken for a prohibited reason, or for reasons that included a prohibited reason. The respondents have discharged the burden imposed by s 361(1).
335 Ms Byrnes disposed of the personal items because she wanted to have a clean workstation and environment for the person who would be filling in as Executive Assistant261 and because she understood that the items had been discarded by Ms Antonakis and were rubbish.262 Ms Byrnes gave evidence that the Federal Court proceedings ‘did not occur to me, did not cross my mind’ when disposing of the items.263 Ms Byrnes also gave evidence that she thought it was reasonable to have concluded that the items were rubbish as ‘they [the items] had been there for 10 days and that Sofie had so comprehensively cleaned out her work station including taking her phone and computer’.264 I accept Ms Byrnes’ evidence. It was an entirely reasonable assumption to make, given that:
(a) Ms Antonakis had been asked to ensure that the workstation was available for a temporary staff member;
(b) the items discarded appeared to have limited value (the umbrella being broken, the Christmas paper half used), so could reasonably be regarded as rubbish; and
(c) all other personal items had been removed from her work station.
336 For the reasons given, this incident did not involve any adverse action, as defined in s 342 and, further, the evidence establishes that the action was not taken because Ms Antonakis was exercising a workplace right, or for reasons which included that reason.
4. Conclusion
337 For the reasons given the applications are dismissed.
I certify that the preceding 337 numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ross. |
Associate:
See par 40 of the Amended Statement of Claim (ASOC)
See par 69 of the ASOC.
See par 40 of the ASOC
See par 14 of the ASOC
Ms Antonakis initially claimed that the MFB breached her contract of employment but this claim is not pressed. The proceedings were issued by the applicants on 29 June 2012 and later amended to include the additional claims associated with the adverse action alleged to have taken place between 19 October 2012 and 13 November 2012 and on 26 November 2012.
See s 539 Fair Work Act 2009 (Cth)
Joint Exhibit 1 at Tab 5
See s 6 of the Metropolitan Fire Brigades Act 1958 (Vic)
Joint Exhibit 1 at Tab 6
Exhibit A15
Tn p 15 line 29
Tn p 16 lines 9-16
Tn p 51 lines 13-20
Tn p 15 lines 46-47 and p 16 lines 1-2
General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 at 241 per Mason J; approved in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 at [59] and [62] per French CJ and Crennan J and at [104] per Gummow J and Hayne J
(1998) 195 CLR 1
(2001) 107 FCR 93 at [17]
See Australian Meat Industry Employees’ Union v Belandra Pty Ltd (2003) 126 IR 165 at [70] per North J
United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board [2003] FCA 480; (2003) 198 ALR 466 at [89] per Goldberg J
Jones v Queensland Tertiary Admissions Centre Ltd (No. 2) [2010] FCA 399; (2010) 186 FCR 22 at [80]-[82] per Gollier J; Automotive, Food, Metals, Engineering Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 (Visy (No 3)) at [103]-[105] per Murphy J
Kimpton v Minister for Education of Victoria (1996) 65 IR 317 at 319 per North J
Police Federation of Australia and Anor v Nixon and Anor [2008] FCA 467; (2008) 168 FCR 340 at [48] per Ryan J; Visy (No 3) at [107]-[115] per Murphy J
Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531; (1999) 140 IR 131 at [95] per Branson J; Visy (No 3) at [116]-[119] per Murphy J
(1976) 51 ALJR 235 at 241
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 at [50] per French CJ and Crennan J
Also see Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 at 68 per Nicholson J
Seymour v Saint-Gobain Abrasives Pty Ltd (2006) 161 IR 9 at [29] per Buchanan J; Rojas v Esselte Australia Pty Ltd (No. 2) (2008) 177 IR 306 at [48] per Moore J
Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [161]-[162] per Branson J; Rojas v Esselte Australia (No. 2) (2008) 177 IR 306 at [49] per Moore J; Construction, Forestry, Mining and Energy Union v BHP Coal and Steven Rae [2010] FCA 590; Jones v Queensland Tertiary Admissions Centre (No. 2) (2010) 186 FCR 22 at [10]
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 at [41] per French CJ and Crennan J and [101] per Gummow and Hayne JJ )
ibid.
ibid. at [101]
ibid. at [44]-[45]
ibid. at [127] per Gummow and Hayne JJ
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Tn p 19 lines 24-25
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For example, see Tn p 65 lines 9-47; p 66 lines 1-34; p 94 lines 20-35
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For example, Tn p 53 lines 11-12 and Tn p 66 lines 12-13
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As mentioned in Tab 22 of Joint Exhibit 1, also see Exhibit A8
Joint Exhibit 1 at Tab 17
Tn p 58 line 17
ibid.
ibid.
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Tn p 60 lines 1-4
Tn p 210 lines 19-32; also see Tn p 238 lines 7-19
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Tn p 62 at lines 11-12
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Tn p 126 lines 1-6 and p 140 lines 34-41
Tn p 61 at lines 16-26
Tn p 62 line 16
Joint Exhibit 1 at Tab 31 para 9
Tn p 319 lines 17-19
See generally Payne v Parker [1976] 1 NSWLR 191 at [201]-[202] per Glass J; Also see Director, Office of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCAFC 8 at [96] - [103] per Besanko and Perram JJ
[1974] VR 722 at 734
Payne v Parker, op cit. at 202 per Glass JA
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Applicant’s submissions in reply at paragraph 24
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(2000) 174 ALR 97 at [360]
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Tn p 211 lines 39 - 46 and p 212 lines 1-2
Tn p 238 lines 21-46; p 239 lines 1-35 and Joint Exhibit 1 at Tab 22
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Joint Exhibit 1 at Tab 18
Joint Exhibit 1 at Tab 20
Exhibit MFB 3
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Tn p 325 lines 12-44
[2011] FWAFB 4809
ibid. at [24]-[32]
(1999) 91 FCR 463
(1998) 89 FCR 200 at 213
(1999) 91 FCR 463 at 486 at [52]
Applicants’ submissions at [22]
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Joint Exhibit 1 at Tab 17
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See Tn p 17 line 34 re Ms Antonakis’ evidence of saying this to Mr Easy and Tn p 158 lines 15-18 and Tn p 126 lines 29-31 evidence of Mr Easy and Ms Carey, respectively, that she said this
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Tn p 326 lines 37-40
Tn p 326 lines 10-37
Applicants’ submissions in reply at paragraph [29]
PR946290
(2008) 175 IR 243
ibid. at 248, [14]
(1904) 6 WALR 199
Ms Byrnes’ evidence p 224 lines 8-12 and Mr Easy’s evidence at Tn p 158 lines 40-44
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Joint Exhibit 1 at Tab 26, also see Tn p 72 lines 26-46; p 73 lines 1-16 and p 97 lines 17-43
Joint Exhibit 1 at Tab 21
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Joint Exhibit 1 at Tab 34
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Tn p 103, 111-116 and 118. Also see Exhibits A4 and A5
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Joint Exhibit 1 at Tab 40
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(2010) 186 FCR 22 at [82]
Joint Exhibit 1 at Tab 24
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Joint Exhibit 1 at Tab 29
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Joint Exhibit 1 at Tab 32
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Joint Exhibit 1 at Tab 34
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Joint Exhibit 1 at Tab 47
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Tn p 93 lines 20-38 (Ms Antonakis in cross-examination); T229.24-32 (Ms Byrnes)
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It was common ground that the kitchen knife had not been thrown out, Tn p 94 lines 7-8
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Tn p 40 lines 1-4 Ms Antonakis in chief
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