FEDERAL COURT OF AUSTRALIA

Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19

ORDERS

THE COURT DECLARES THAT:

1.    The first respondent contravened s 44(1) of the Fair Work Act 2009 (Cth) by failing to pay the applicant redundancy pay under s 119(1) of the Act.

THE COURT ORDERS THAT:

2.    On or before 4.00pm on 12 February 2016, the applicant and the first respondent are to file an agreed proposed order as to the redundancy pay to which the applicant is entitled under s 119(1) of the Fair Work Act 2009 (Cth).

3.    Pursuant to s 547 of the Act, the first respondent pay the applicant interest on the amount payable to him under s 119(1) from 11 November 2014 until the date of judgment at a rate and in an amount to be fixed by the Court if not agreed between the parties by 12 February 2016.

4.    The proceeding against the second respondent is dismissed.

5.    The first respondent file and serve any submissions as to penalty and costs, limited to five pages, by 4.00pm on 12 February 2016.

6.    The applicant file and serve any submissions as to penalty and costs, limited to five pages, by 4.00pm on 19 February 2016.

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

REASONS FOR JUDGMENT

MORTIMER J:

INTRODUCTION

1    The applicant, Mr Milardovic, was employed by the first respondent Vemco Services Pty Ltd (“Vemco”) as a bid manager from September 2012 until, as he contends, his position became redundant as a result of a company restructure on or around 12 May 2014. His employment was subsequently terminated on or around 11 November 2014. The applicant had first commenced employment with Vemtec Pty Ltd, a related company of the first respondent, on 8 September 2009. The second respondent, Mr Barry, was the director of sales and marketing at Vemco and the applicant’s direct supervisor at Vemco.

2    Based on claims of adverse action and failure to pay entitlements under the Fair Work Act 2009 (Cth) and breach of contract, the applicant seeks relief from this Court in relation to his treatment during his employment with the first respondent and in relation to the termination of his employment. He claims the second respondent was involved in the first respondent’s adverse action against him.

3    For the reasons that follow, I find that the applicant has proven he was entitled to redundancy payments from the first respondent under the Fair Work Act, but otherwise I do not find his allegations to have been proven.

COURSE OF THE PROCEEDING

4    This proceeding was commenced on 6 February 2015 and was heard by me over four days from 6 to 9 October 2015. On the last day of hearing, I made orders requiring the parties to file final written submissions and the applicant duly provided his submissions on 23 October 2015.

5    On 4 November 2015 the Court was informed that on 27 October 2015 the first respondent as part of the HRL Ltd group of companies had been placed into voluntary administration under Pt 5.3A of the Corporations Act 2001 (Cth). Accordingly, by operation of s 440D(1) of that Act, the proceeding against the first respondent was stayed, unless the administrators gave written consent or the Court granted leave. The respondents’ solicitor indicated he was seeking authorisation from the administrators to finalise the respondents’ final submissions and undertook to keep the Court informed of his progress. When no authorisation was forthcoming after several weeks had passed, the matter was listed for directions on 3 December 2015.

6    When the matter was called on, counsel for the respondents as well as counsel for the administrators appeared. The applicant appeared in person, and advised the Court that he did so because neither his solicitor nor his counsel was available. Accordingly, I gave the applicant leave to make, within a short period and through his legal representatives, any written submissions in response to the matters raised in court and the material which had been filed by the respondents. His legal representatives were provided with a copy of the transcript of the directions hearing and the materials handed up in court to enable them to see what had been discussed.

Leave pursuant to s 440D(1) of the Corporations Act 2001 (Cth)

7    At the directions hearing, the Court had before it an affidavit by Ms Karli Cibich, a solicitor for the administrators, and an affidavit by Mr Gary Rothville, the solicitor for the respondents, expressed as being made on behalf of the second respondent. The respondents also filed written submissions shortly before the matter was called on for directions.

8    In her affidavit, Ms Cibich relevantly deposed:

I am informed by Mr Longley and believe that upon learning of this proceeding, the Administrators made inquiries with the Company’s insurer to see whether it had agreed to indemnify the Company for any legal fees it incurred in defending the proceeding, together with any adverse costs or damages orders. I am informed by Mr Longley and believe that he was informed by the insurer on 11 November 2015 that it had prima facie agreed to indemnify the Company for such liabilities.

…

On 1 December 2015 I was informed by the insurer that the Administrators could inform the applicant that the Company has an Employment Practices Liability policy pursuant to which indemnity has been prima facie confirmed and is responding to the claim subject to the proceeding. I was informed that the insurer did not authorise the Administrators to disclose the identity of the insurer or any further information about the terms of the insurance policy. …

9    On the basis the insurer had prima facie agreed to indemnify Vemco, counsel for the administrators proposed orders for leave on the following terms:

The Applicant have leave pursuant to section 440D(1)(b) of the Corporations Act 2001 to continue the proceeding against Vemco Services Pty Ltd (Administrators Appointed) (Company) on the following terms:

(a)    In the event that liquidators are appointed to the Company, or it enters into a deed of company arrangement, the Applicant must not proceed with any further action against the Company without further leave of the Court;

(b)    Liberty to the Administrators, any liquidators and any deed administrators to apply to revoke the grant of leave;

(c)    Other than filing closing submissions, the Company is not required to take any additional steps in the Proceeding;

(d)    The Applicant will not be permitted to enforce any judgment against the Company without further leave of the Court, unless the Company is covered by a policy of insurance.

10    In brief, Mr Rothville deposed in his affidavit that between the period of 12 October and 26 October 2015 he had worked on the respondents’ final submissions and had discussed that document with counsel. Mr Rothville deposed he was informed on 2 November 2015 that the first respondent had entered into administration. He stated that the document which was intended to become the final submissions remained in draft form and had been prepared as a joint document on behalf of both respondents. On that basis and consistent with the manner in which the proceeding had been conducted to date, counsel for the respondents submitted the respondents should be permitted to file their final submissions jointly once the matter of the stay under s 440D had been resolved.

11    Counsel for the administrators submitted that because there was an insurance policy in place and indemnity had prima facie been granted, any liability arising from the present proceeding could be dealt with by way of a call upon that insurance policy so that no party would be preferred to the first respondent’s general body of creditors. On that basis, the administrators did not oppose a grant of leave for the proceeding to continue against the first respondent.

12    The applicant’s legal representative subsequently informed the Court the applicant was amenable to the orders proposed by the administrators and did not seek to make further submissions, beyond drawing to the Court’s attention a number of asserted irregularities, none of which is material for present purposes.

13    Accordingly, orders in the terms I have set out at [9] above were made on 7 December 2015 granting leave under s 440D. I return at [313] below to the issue of the process for considering whether leave should be granted for the applicant to enforce this judgment against the first respondent.

14    The parties duly filed their final submissions. The respondents protested that the applicant’s reply submissions went beyond what was permitted in reply. They filed additional submissions, seeking leave in effect retrospectively to file such additional submissions. I did not grant leave to the respondents to rely on their additional submissions and I have not read those submissions. However, I considered the applicant’s reply bearing in mind the respondents’ protest.

Resolution of objections to evidence

15    Objection was taken by the respondents to the whole evidence of three witnesses: the applicant’s treating psychiatrist Dr Fiona Wood, and two other Vemco employees Mr Jeff Filip and Mr Andrew Otimi. The respondents objected to Dr Wood’s expert report on the basis that there were some deficiencies as to form and compliance with the requirements of Pt 23 of the Federal Court Rules 2011 (Cth). I indicated to the parties I had no difficulty with the admission of Dr Wood’s report in the form that it took, on the basis some of those deficiencies would be remedied through oral evidence. The respondents also submitted that Dr Wood’s evidence was conclusionary, or not properly given within her expertise in that Dr Wood merely reported how the applicant self-described his feelings. I rejected those submissions.

16    There was no need to resolve the objection to the evidence of Mr Filip, who was not ultimately called to give evidence. The resolution of the objection to Mr Otimi’s evidence is set out below.

EVIDENCE BEFORE THE COURT

17    The applicant gave evidence himself, and adduced oral evidence from Dr Wood, who had also completed a report about the applicant’s mental health. Both were cross-examined. The applicant had foreshadowed an intention to call, pursuant to a subpoena, Mr Andrew Otimi, and Mr Otimi duly attended court to give evidence on the first day of trial. Leave had been granted to issue the subpoena to Mr Otimi on the basis he was offered and accepted the role of bid manager while the applicant was unable to perform his duties in that role. Objection was taken to his evidence on the grounds of fairness (in circumstances where the Court’s orders had provided for outlines of evidence to be exchanged, and no such outline of anticipated evidence had been provided in respect of Mr Otimi) and of relevance. I indicated to the parties that I was not positively satisfied Mr Otimi’s evidence was irrelevant, and was not disposed to exclude his evidence on that ground. However, I was concerned by the lack of notice to the respondents and proposed to address that by permitting the applicant to call Mr Otimi to give his evidence-in-chief, and then allowing the respondents to indicate, at the conclusion of his evidence-in-chief, when they anticipated being ready to cross-examine Mr Otimi, for example on the next day. As it turned out, in the face of those conditions the applicant no longer sought to call Mr Otimi and applied to have the subpoena set aside. That is what occurred.

18    The respondents adduced evidence from Mr Barry himself, and from Ms Michelle Finnigan who was the human resources manager at Vemco at the relevant time.

19    The parties also relied on some documentary evidence. Aside from the contractual documentation relating to Mr Milardovic’s employment and correspondence between the parties during and after the period Mr Milardovic’s position was restructured and divided into two, this event being the catalyst for some of the events of which Mr Milardovic complains in this proceeding, Mr Milardovic also tendered several documents concerning professional events and the bid processes on some of the jobs about which he made complaints in terms of how he was treated by the respondents. Some diary extracts from the diaries of Mr Milardovic and Ms Finnigan were also tendered.

20    I refer to the evidence as necessary in the findings I make below.

THE APPLICANT’S CLAIMS

The Fair Work Act claims

21    The applicant contended that the first respondent engaged in adverse action against him contrary to s 340 of the Fair Work Act because he exercised his workplace rights to complain about workplace bullying by the second respondent, and because he made and pursued a WorkCover claim for a stress-related illness resulting from that workplace bullying. He contended the second respondent was involved in those contraventions, and should be deemed to have contravened s 340, pursuant to s 550 of the Fair Work Act. The adverse action is said to be constituted by four acts:

(1)    excluding the applicant from meetings, training and support;

(2)    failing to provide revised KPIs and additional training after the performance review meeting of 12 March 2014;

(3)    terminating the applicant’s employment;

(4)    failure to pay redundancy or termination notice payments.

22    Each of the acts was said to have been taken because the applicant complained about workplace bullying (said to be the exercise of a workplace right within the meaning of s 341(1)(c)). In addition, the applicant also contended there was a further reason why his employment was terminated and why he was not paid redundancy or termination notice payments, which was that he had exercised his right to make and pursue a WorkCover claim, a workplace right within the meaning of s 341(1)(a).

23    Further or alternatively, the applicant also contended the first respondent failed to pay redundancy entitlements (ten weeks’ pay) and termination notice pay (four weeks’ pay) in breach of ss 119 and 117 of the Fair Work Act. Both those amounts correspond to the entitlements of an employee under 45 years of age who has served a continuous period of service of more than five years but less than six years at the time of termination or notice. Except insofar as these failures were themselves also said to be adverse action in breach of s 340, there was no allegation the second respondent was involved in the breaches of ss 117 and 119. This is, as the matter has turned out, significant. The applicant’s case under ss 117 and 119 is clearly pleaded only against the first respondent. There is no allegation that Mr Barry was “involved” in those contraventions within the terms of s 550 of the Act. Such a case could have been made, but was not. Therefore, the relief which I have decided should be granted extends only to the first respondent.

24    The applicant seeks relief in the form of declaratory relief, damages and penalties from this Court in relation to his treatment during his employment with the first respondent and in relation to the termination of his employment.

25    It is important at the outset to make several points about the nature and scope of the applicant’s cause of action. The alleged workplace bullying is not, as the respondents have correctly submitted, framed as a cause of action in itself. The alleged bullying, covered in great detail in the evidence, is said to be the reason for the complaints made by Mr Milardovic to (he says) the first respondent.

26    The complaints are said to have been made on two occasions: 18 February 2014, to Ms Finnigan, the human resources manager for the first respondent; and 12 March 2014, at a performance review meeting with the second respondent Mr Barry and Ms Finnigan. Those two sets of complaints are alleged to be the “workplace right” exercised, and the reason for the alleged adverse action against Mr Milardovic. The second, and separate workplace right relied on is the right to make, and the making, of a WorkCover claim. The exercise of that right by Mr Milardovic is also said to have been the reason for the adverse action he alleges occurred.

27    Therefore (and despite the way the matter was put in final written submissions on behalf of the applicant), whether or not the bullying about which Mr Milardovic says he complained in fact occurred or not is not, in my opinion, a matter about which the Court need make detailed findings of fact. What is relied on by Mr Milardovic is the fact of making a complaint about workplace bullying. What is germane, therefore, is whether he made the complaints he alleges he did, and if so, whether those complaints were the reason, or part of the reason, for the adverse action he alleges was subsequently taken against him. Separately of course, it will be necessary to determine whether the conduct Mr Milardovic relies on as adverse action is within the meaning of that phrase in the Fair Work Act.

28    At the hearing, the respondents put their primary case in three ways. First, they submitted the applicant had not in fact made some of the complaints said to be an operative reason for the alleged adverse action, and that those complaints or concerns which were raised were not complaints in the relevant sense within the meaning of a “workplace right” under s 341(1)(c) of the Fair Work Act. Second, the respondents characterised the alleged bullying and harassment experienced by the applicant as reasonable management steps, intersecting with resourcing decisions. It became apparent that this submission was effectively made in the alternative, the respondents’ primary position (which I accept) being that, for the reasons I set out, the Court need not make detailed findings about the alleged bullying and harassment which gave rise to the complaints Mr Milardovic claims to have made. Finally, while the respondents accepted that the termination of the applicant’s employment was adverse action, they contended the termination was not causally linked to any prohibited ground or workplace right.

29    The respondents have pleaded that the employment contract included terms requiring Mr Milardovic to return and deliver up to Vemco upon termination of employment documents and property in his possession. The respondents allege Mr Milardovic, in breach of those terms, copied and retained confidential documents belonging to Vemco.

30    The respondents however made no cross-claim about their allegation that Mr Milardovic retained documents belonging to the first respondent, in circumstances where he was not authorised to do so. As developed in submissions, they contended this is a matter that should be taken into account in determining the amount of compensation payable to the applicant, if he should otherwise succeed.

31    The respondents also submitted Mr Barry had no liability within the terms of s 550. As to relief, the respondents submitted the applicant’s extant WorkCover claim should be taken into account if any compensation were to be awarded, and in respect of penalty that this was the first prosecution for each respondent under the Fair Work Act.

The contract claim

32    Further or alternatively, the applicant also contended that the first respondent’s failure to pay redundancy pay and termination notice pay was in breach of the November 2012 employment agreement and sought damages in respect of that breach. The respondents contended Mr Milardovic’s position was never made redundant but that he failed to apply for positions made available to him. They contested the redundancy characterisation both under the Act and in the contract claim.

RELEVANT LEGISLATIVE PROVISIONS

33    Section 340(1) of the Fair Work Act provides:

A person must not take adverse action against another person:

(a)    because the other person:

(i)    has a workplace right; or

(ii)    has, or has not, exercised a workplace right; or

(iii)    proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)    to prevent the exercise of a workplace right by the other person.

Note:    This subsection is a civil remedy provision (see Part 4-1).

34    Relevantly to this proceeding, by s 341(1)(c), a person has a “workplace right” if the person:

is able to make a complaint or inquiry:

(i)    to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)    if the person is an employee – in relation to his or her employment.

35    By s 341(1)(a), a person also has a “workplace right” if she or he:

is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; …

36    A “workplace law” is relevantly defined under s 12 to include:

any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).

37    In this proceeding, it was pleaded that the applicant enjoys, as the benefit of a workplace law, s 21 of the Occupational Health and Safety Act 2004 (Vic), which provides:

(1)    An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.

Penalty:    1800 penalty units for a natural person;

        9000 penalty units for a body corporate.

(2)     Without limiting subsection (1), an employer contravenes that subsection if the employer fails to do any of the following—

(a)     provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health;

(b)     make arrangements for ensuring, so far as is reasonably practicable, safety and the absence of risks to health in connection with the use, handling, storage or transport of plant or substances;

(c)     maintain, so far as is reasonably practicable, each workplace under the employer’s management and control in a condition that is safe and without risks to health;

(d)     provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the management and control of the employer;

(e)     provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health.

38    I return at [72] to [73] below to how the benefit of s 21 of the Occupational Health and Safety Act might interact with the causal requirement in a claim for adverse action.

39    “Adverse action” is defined in s 342 of the Fair Work Act. Under Item 1 of the table under s 342(1), an employer is deemed to have taken adverse action against an employee if the employer dismisses the employee or alters the position of the employee to the employee’s prejudice.

40    Sections 360 and 361 are relevant to determining the reason for taking an action. Section 360 provides:

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

41    A presumption is raised as to the reason for taking adverse action under s 361(1), which provides:

If:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

42    Under s 550, a person “involved in” an adverse action is also deemed to have contravened s 340. Section 550 provides:

(1)    A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

(2)    A person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a)    has aided, abetted, counselled or procured the contravention; or

(b)    has induced the contravention, whether by threats or promises or otherwise; or

(c)    has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d)    has conspired with others to effect the contravention.

43    Section 340 is included as a civil remedy provision under Item 11 of the table in s 539(2) of the Fair Work Act. Under s 546, this Court may impose a pecuniary penalty for a contravention of a civil remedy provision. Section 546(2) provides:

The pecuniary penalty must not be more than:

(a)    if the person is an individual—the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or

(b)    if the person is a body corporate—5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).

44    Under Item 11 of the table in s 539(2), the maximum number of penalty units set out for a contravention of s 340 is 60 penalty units. Further, the maximum penalty to be imposed on a body corporate pursuant to s 546(2)(b) of the Fair Work Act is five times the maximum number of penalty units referred to in the table in s 539(2).

45    Section 4AA of the Crimes Act 1914 (Cth) determines the rate of a penalty unit. The rate is currently fixed at $180, having been adjusted from $170 with effect from 31 July 2015. In fixing a penalty, I do not propose to take the 31 July 2015 rate change into account, since the conduct constituting the contraventions alleged in this proceeding was complete before 31 July 2015: Murrihy v Betezy.com.au Pty Ltd (No 2) [2013] FCA 1146; 221 FCR 118 at [6]-[28]. The relevant maximum penalty that may be imposed for a contravention of s 340 is therefore $51,000 in respect of the first respondent (60 penalty units x 5 x $170) and $10,200 in respect of the second respondent (60 penalty units x $170).

46    Section 119(1) sets out the circumstances in which an employee is entitled to redundancy pay:

An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:

(a)    at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b)    because of the insolvency or bankruptcy of the employer.

Note:    Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.

47    Under s 119(2), the amount of redundancy pay for an employee who has been employed for a period of continuous service of at least five years but less than six years is set at ten weeks’ pay.

48    Under s 117(2), an employer before terminating an employee’s employment must either give an employee a requisite period of written notice or provide payment in lieu of that notice:

The employer must not terminate the employee’s employment unless:

(a)    the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or

(b)    the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.

49    A formula for determining the minimum notice period is then set out in s 117(3). In respect of an employee under the age of 45 years whose period of continuous service with the employer at the end of the day that notice is given is more than five years, the minimum period of notice is four weeks.

50    The applicant’s submissions did not develop how the redundancy pay and termination notice pay he claimed to be entitled to should be calculated. However, it appears that although Mr Milardovic was only employed with the first respondent from 2012, his period of continuous service may be taken to be a period of more than five years by virtue of ss 22(5) and (7), which provide:

When service with one employer counts as service with another employer

(5)    If there is a transfer of employment (see subsection (7)) in relation to a national system employee:

(a)      any period of service of the employee with the first employer counts as service of the employee with the second employer; and

(b)      the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee’s continuous service with the second employer (taking account of the effect of paragraph (a)), but does not count towards the length of the employee’s continuous service with the second employer.

Note:    This subsection does not apply to a transfer of employment between non-associated entities, for the purpose of Division 6 of Part 2-2 (which deals with annual leave) or Subdivision B of Division 11 of Part 2-2 (which deals with redundancy pay), if the second employer decides not to recognise the employee’s service with the first employer for the purpose of that Division or Subdivision (see subsections 91(1) and 122(1)).

…

Meaning of transfer of employment etc.

(7)      There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer) if:

(a)      the following conditions are satisfied:

(i)      the employee becomes employed by the second employer not more than 3 months after the termination of the employee’s employment with the first employer;

(ii)      the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or

(b)      the following conditions are satisfied:

(i)      the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;

(ii)      the first employer and the second employer are not associated entities when the employee becomes employed by the second employer.

Note:     Paragraph (a) applies whether or not there is a transfer of business from the first employer to the second employer.

51    Accordingly, Mr Milardovic’s period of continuous service with the first respondent may be calculated from the time he was first employed with Vemtec Pty Ltd, a related company of Vemco, on 8 September 2009. On the evidence, it appears he moved directly from Vemtec to Vemco. Since this was not a matter directly addressed by the parties, they will be given an opportunity to file a form of agreed order as to the amount of compensation payable after consideration of these reasons for judgment.

52    Sections 117 and 119 form part of the National Employment Standards set out in Pt 2-2 of the Act, which are minimum standards applying to employment which cannot be displaced: s 61(1). Under s 44(1), an employer must not contravene a provision of the National Employment Standards.

53    Section 44(1) is included as a civil remedy provision under Item 1 of the table in s 539(2) of the Act. Under Item 1, the maximum number of penalty units set out for a contravention of s 44(1) is also 60 penalty units. The maximum applicable penalty for a breach of s 44(1) is therefore the same as the maximum penalty for a breach of s 340: relevantly, $51,000 in respect of the first respondent.

APPLICABLE PRINCIPLES

Adverse action

54    Item 1(c) of s 342(1) is construed as a broad category of adverse action, extending beyond legal injury. It includes any adverse effect on the advantages and benefits enjoyed by an employee in her or his employment before the conduct in question, or any deterioration in such advantages and benefits: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1 at 18; Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402; 208 FCR 178 at [84]; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441; 160 IR 1 at [15]-[17] and the cases there cited. A prejudicial alteration for the purposes of Item 1(c) may occur even though the employee suffers no loss or infringement of a legal right, and will occur where the alteration is real and substantial rather than merely possible or hypothetical: Klein at [84]; Australian and International Pilots Association at [17]; Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association [2012] FCAFC 63; 202 FCR 244 at [32].

55    There must be more than a temporal connection between the protected attribute or activity and the taking of adverse action: see Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) [2012] HCA 32; 248 CLR 500 at [60]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243 at [19]. In both these cases, the High Court considered the causal requirement under the similarly phrased prohibition under s 346 on taking adverse action because a person is an officer or member of an industrial association, or engages or proposes to engage in protected industrial activities. Applying that observation to the present case, there must be more than a temporal connection between the fact Mr Milardovic had complained about Mr Barry’s bullying and harassment (or had commenced a WorkCover claim) and the treatment he alleges constituted adverse action. As French CJ and Kiefel J noted in BHP Coal [2014] HCA 41; 253 CLR 243 at [19], the inquiry “requires a determination of fact as to the reasons which motivated the person who took the adverse action.” The proscribed reason need not be the sole or dominant reason, but must comprise a substantial and operative reason, or reasons including the reason, for the adverse action: Barclay at [104].

56    In examining evidence relied on to rebut the presumption erected by the terms of s 361, the evidence must negate the alleged reason for the taking of adverse action: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298 at [191], citing Gray J in National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; 234 IR 139 at [20].

57    As I noted in Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27 at [179]-[180], the High Court in Barclay emphasised that the statutory presumption in s 361, combined with the nature of the inquiry being one as to the “particular reason” of the decision-maker and involving an assessment of the state of mind of the decision-maker (rather than a wholly objective inquiry), meant that the presumption would rarely be effectively rebutted without direct testimony from the decision-maker: at [42]-[45] per French CJ and Crennan J; at [101], [127] per Gummow and Hayne JJ; at [146] per Heydon J. As French CJ and Crennan J observed at [50] (see also Gummow and Hayne JJ at [86] and Heydon J at [149]), citing General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 617 per Mason J, the rationale for the presumption (and the correlative reverse onus) is that the burden should fall on the person whose own knowledge might best explain the reason for her or his conduct or decision.

58    However, evidence from the decision-maker, if given, may not be conclusive. As Hayne J (in dissent) observed in BHP Coal [2014] HCA 41; 253 CLR 243 at [38]:

Bendigo did not decide that accepting the decision-maker’s evidence of why adverse action was taken necessarily concluded the issue in a case where the employee was engaged in industrial activity. As counsel for the Minister, intervening, rightly submitted in Bendigo, “[i]t is an error to reduce the question to a binary choice between believing or rejecting the evidence” of the relevant decision-maker.

59    Recently in Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; 231 FCR 150, the Full Court had cause to examine the content of s 340(1) and the manner in which it should be applied. At [91] Perram J made what I consider, with respect, to be critical distinction in the application of s 340: that is, between facts or matters that an employer may be aware of (and indeed may consider), and facts or matters which are the reason for the decision, in the sense of being determinative, and therefore material to the outcome of the employer’s reasoning process:

This is because there is a factual distinction between factoring something into one’s consideration of a matter and making a decision about the matter itself. To give an example: in reaching the conclusions I have reached on this appeal I have taken the CFMEU’s submissions into account and they have formed an important element in my decision-making processes. However, as will be apparent, the fact that I have had regard to them does not entail that they may therefore be described as constituting a part of my subjective reasons for decision. Of course, if by reason one means “cause” then one gets a different result. On that view of things, Mr McDermott’s prior record was causally connected to the decision to transfer him to a different shift. That approach to the identification of the reason in question is prevented, however, by CFMEU v BHP. The inquiry thrown up by s 340 is not one concerned with causation but, rather, the subjective reasons for action of the decision-maker. Once that is appreciated, it is possible to accept that Mr Peace’s evidence about what he was aware of in relation to Mr McDermott’s prior attendance record is not inconsistent with a finding that it was not that record which he, himself, regarded as determinative.

60    I respectfully agree with his Honour’s observations. An application for special leave to appeal from the Full Court’s decision was dismissed: Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] HCATrans 331. In the anti-discrimination context, McHugh J made a similar point in Waters v Public Transport Corporation [1991] HCA 49; 173 CLR 349 at 400-401, where his Honour described the task as determining whether the act of the alleged discriminator was “actuated” by a protected attribute. Like Perram J’s description in Endeavour Coal, this kind of language emphasises this is not an exercise in characterisation: rather, it is a decision about the internal reasoning process of an alleged discriminator. In my respectful opinion this is the same approach as that taken by French CJ and Kiefel J in BHP Coal [2014] HCA 41; 253 CLR 243 at [19], where their Honours said:

Section 346 does not direct a court to enquire whether the adverse action can be characterised as connected with the industrial activities which are protected by the Act. It requires a determination of fact as to the reasons which motivated the person who took the adverse action.

61    The exercise in which a court must engage when there is a provision such as s 340(1) may be a different exercise from that required to determine whether a law operates in a discriminatory way. In the latter circumstance, the court examines, objectively, the outcome and operation of the law in a substantive and practical sense and is not concerned with the aims or intentions of the legislators: see Castlemaine Tooheys Ltd v South Australia [1990] HCA 1; 169 CLR 436 at 478-479, Gaudron and McHugh JJ. Similarly, where statutory language requires a court to determine whether a person acted “on the ground of” a protected attribute, the exercise may be more objective. It may require the court to characterise, objectively, the alleged discriminatory “ground” or basis, for the way the discriminator treated another person. Subjective intention may be relevant but not decisive: see for example IW v The City of Perth [1997] HCA 30; 191 CLR 1 at 59, Kirby J. As his Honour pointed out, discrimination often occurs unconsciously or thoughtlessly, but that does not alter the fact that the way a person was treated was on the ground of a protected attribute. That is why many discrimination authorities, IW being one of them, repeatedly emphasise that a search by a court to identify a motive or intention to discriminate on the basis of a protected attribute is not the correct task.

62    How those differences may evolve in the application and operation of s 351 of the Act, which is concerned with discrimination as that term is used in the federal and state anti-discrimination legislation, is a matter for another day.

Workplace rights under s 341

63    The meaning of a “complaint” in relation to a person’s employment as a workplace right under s 341(1)(c)(ii) was considered by Dodds-Streeton J in Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; 314 ALR 346. At [29], her Honour summarised her principal findings as follows:

… in the context of s 341(1)(c)(ii) of the Act:

(a)        a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;

(b)        the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;

(c)        the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose;

(d)        the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii);

(e)        a complaint may be made not only to an external authority or party with the power to enforce or require compliance or redress, but may be made to persons including an employer, or to an investigator appointed by the employer;

(f)        a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise; and

(g)        a complaint is limited to a grievance, finding of fault or accusation that satisfies the criteria in s 341(1)(c)(ii) and does not extend to other grievances merely because they are communicated contemporaneously or in association with the complaint. Nor does a complaint comprehend contemporaneous or associated conduct which is beyond what is reasonable for the communication of the grievance or accusation.

64    Her Honour considered that several of the complaints relied upon by the applicant were not properly within the scope of s 341(1)(c)(ii), including because one alleged complaint viewed properly in context was a mere observation or assertion, and because in respect of another complaint her Honour was not satisfied the applicant genuinely held the stated grievances or in all the circumstances communicated them in good faith for a proper purpose: at [30]-[31]. At [582], her Honour endorsed the finding of Riley FM in Ratnayake v Greenwood Manor Pty Ltd [2012] FMCA 350 at [117] that “an implicit but clear complaint is sufficient for the purposes of s 341(1)(c)(ii) of the Act”. There, Riley FM had found the applicant relevantly made an implicit but clear complaint under s 341(1)(c)(ii) when he called his manager a racist and a liar when informed his working hours would be reduced, and again when he accepted the reduced hours in writing “under strong protest”.

65    Dodds-Streeton J further held (at [618]-[620]):

In my view, as was common ground, there is no requirement that, in order to constitute a complaint that a person is able to make, a grievance must be justified or an accusation of fault must be true, or capable of ultimate proof or substantiation.

The relevant object of the provision is to protect employees from retribution in the form of adverse action because they have exercised a workplace right by making a complaint in relation to their employment, rather than to protect employees who have proved, or are able to prove, that the grievance or accusation is justified or meritorious. Were it otherwise, the protection afforded by the provision would be largely illusory, as persons would be vulnerable to retribution for making a complaint unless, and perhaps until, their case could subsequently, by some unspecified means, be proved or found valid.

It does not follow, however, that the making of false, baseless, unreasonable or contrived accusations of grave misconduct against fellow employees constitutes the making of a complaint that an employee is able to make in relation to his or her employment, and thus invokes the statutory prohibition on adverse action.

66    An appeal from her Honour’s decision was dismissed: Shea v EnergyAustralia Services Pty Ltd [2014] FCAFC 167; 242 IR 159. The point made by Dodds-Streeton J is relevant in the current proceeding because her Honour made clear a determination of adverse action under s 340(1) by reference to s 341(1)(c)(ii) does not depend on the truth or substantiation of the subject matter of the complaint, but rather on the fact that it was made. That was not the approach taken by Mr Milardovic in evidence and submissions in the present case, which resulted in a number of legally irrelevant factual controversies occupying some time during the trial.

67    In Hill v Compass Ten Pty Ltd [2012] FCA 761; 205 FCR 94, Cowdroy J held at [48]:

A complaint must state a particular grievance or finding of fault. A complaint should be distinguished from a mere request for assistance: see Zhang v Royal Australian Chemical Institute Inc (2005) 144 FCR 347 at [36]-[37]. Although Mr Hill in these emails makes oblique reference to tension between his perceived responsibilities to residents and responsibilities to the director, he fails to mention any particular issue with which he has a grievance.

68    A complaint to the employer under s 341(1)(c)(ii) must relate to a person’s employment. In Rowland v Alfred Health [2014] FCA 2, Marshall ACJ found at [37]-[38] that an applicant’s complaint about the competence of a colleague and the reassignment of patients by that colleague away from the applicant was not relevantly a complaint within the meaning of s 341(1)(c)(ii), on the basis the complaint was essentially about the colleague and not how the colleague related to the applicant in his employment. Some doubt has been expressed about that finding. In Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; 243 IR 468, Bromberg J stated at [41]-[44]:

The words “in relation to” are words of wide import. The use of that phrase in s 341(1)(c)(ii) identifies that a relationship between the subject matter of the complaint and the complainant’s employment is required. The nature of that relationship need not be direct and may be indirect: Construction, Forestry, Mining and Energy Union v Pilbara Iron Co (Services) Pty Ltd (No 3) [2012] FCA 697 at [61]-[64] (Katzmann J); Shea v TRUenergy Services Pty Ltd (No 6) (2014) 242 IR 1 at [631] (Dodds-Streeton J). I respectfully agree with Katzmann J’s observation in Pilbara at [64] that if some limit on the broad language utilised in the phrase “in relation to his or her employment” is to be imposed, it needs to be “found in the nature and purpose of the legislation, which includes the protection of workplace rights”.

Where the subject matter of the complaint raises an issue with potential implications for the complainant’s employment, it is likely that the requisite nexus will be satisfied: Pilbara at [69].

In this case, Ms Walsh raised a probity issue in relation to a contract with a supplier who supplied services including to an operation which Ms Walsh managed in the course of her employment. Whether or not Ms Walsh was under a contractual duty to report the possible misdeed of others (see the discussion in Irving, The Contract of Employment (LexisNexis Butterworths, 2012) at [7.21]), her failure to report suspected wrong-doing had the potential to reflect badly upon her and cause prejudice to her in her employment. By reason of either of those two factors, the Alsco contract complaint made by Ms Walsh raised an issue with potential implications for Ms Walsh’s employment and was “in relation to … her employment” within the meaning of s [341(1)(c)(ii)] of the FW Act.

In determining the construction issue raised here, I have considered but have not been persuaded by GMCT’s reliance upon Rowland v Alfred Health [2014] FCA 2. In that case, Marshall ACJ determined that a complaint made by a doctor about the competency of another doctor with whom he worked was not a complaint in relation to the complainant’s employment. Whether the clinical competence of the doctor complained about had potential implications for the employment of the complainant is not a matter that appears to have been raised before or addressed by Marshall ACJ. His Honour does not appear to have been referred to Pilbara and did not have the benefit of Shea. A contention that an indirect nexus would be sufficient does not appear to have been relied upon by the applicant in that case. Further, his Honour’s conclusion seems to turn on a factual dispute as to whether the relevant complaint related to the complainant’s employment because it also included a complaint that the doctor concerned had taken a patient from the complainant: see Rowland at [29]-[38].

69    I respectfully agree with Bromberg J’s observations, although in the present case there is no real dispute by the respondents that Mr Milardovic’s grievances were “in relation to” his own employment.

70    In addition to the making of complaints under s 341(1)(c)(ii), at some points in his pleading and submissions the applicant appears also to rely on both s 21 of the Occupational Health and Safety Act and on the Accident Compensation Act 1985 (Vic) as giving him the benefit of a “workplace law” under s 341(1)(a). As Jessup J noted in Regulski v State of Victoria [2015] FCA 206 at [198], referring there to the Accident Compensation Act, a “law” in this context may be a single provision of an act, a group of provisions, or an act as a whole. Referring there to provisions of the Accident Compensation Act (as it was in 2011) which dealt with the return to work process, his Honour held at [198] and [200]:

It may be (although I do not hold) that, at the high level, the AC Act did not have the purpose of regulating the relationships between employers and employees. But the question is whether, in pursuit of the objects referred to in paras (b) and (c) of s 3 –

(b)        to make provision for the effective occupational rehabilitation of injured workers and their early return to work; [and]

(c)        to increase the provision of suitable employment to workers who are injured to enable their early return to work;

– the AC Act operated in a way which effected such a regulation.

…

These provisions required employers to act in certain ways, and in that sense were regulatory. The field in which they were required to act was that of the relationships which they had with their relevant employees. Most relevantly to the present case, they were required to plan the return to work of injured employees, and to consult with them. The result presumptively achieved by obedience to these provisions was that employees would perform work, in the service of their employers, which they would, or at least might, not otherwise have performed. In my view, ss 195 and 196 of the AC Act were workplace laws within the meaning of the FW Act.

71    I respectfully agree with Jessup J. For the same reasons, the exercise of a right to make a WorkCover claim under the Accident Compensation Act is the exercise of a workplace right for the purposes of ss 340 and 341 of the Fair Work Act, and the respondents did not appear to contend otherwise in submissions.

72    Section 21 of the Occupational Health and Safety Act has been recognised as conferring a workplace right for the purposes of s 341(1)(a) of the Fair Work Act: see Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17. In Ermel, there was no dispute between the parties that a letter sent by Mr Ermel’s solicitors constituted a complaint within the terms of s 341(1)(c)(ii): see [58]. However, Bromberg J drew a distinction between the benefit under s 21 to enjoy a safe working environment, and the making of a complaint about the denial of a safe working environment. At [52]-[56], his Honour held:

For reasons I will shortly explain, I do not accept Dulux’s contention that s 21 of the OH&S Act did not confer upon Ermel a workplace right. Nevertheless, this aspect of Ermel’s claim failed to raise a plausible basis upon which he could succeed.

The first difficulty which Ermel confronts is that his pleading on this aspect of his claim was misconceived. The Statement of Claim pleaded that by the sending of the solicitors’ letter, Ermel exercised his workplace right to a safe working environment. The solicitors’ letter included a complaint that Ermel had been bullied. Accepting that the letter raised and made a complaint that Ermel was denied a safe workplace, the making of a complaint about a safety issue is not the exercise of the benefit provided by s 21 of the OH&S Act, namely the capacity of Ermel to enjoy a “working environment that is safe and without risk to health”.

The capacity to enjoy a safe working environment is the nature of the benefit provided by s 21 of the OH&S Act. It is the enjoyment of that benefit, not the making of a complaint about its denial, which Ermel needed to allege was an operative reason for his dismissal. No such claim was either pleaded or pressed. Nor, if such a claim had been made, is there any evidence which would suggest, even as a plausible possibility, that Ermel was dismissed because or including because he enjoyed or had the right to enjoy a safe working environment.

The terms of s 21 of the OH&S Act impose an obligation on employers to provide and maintain for their employees (so far as is reasonably practicable) a working environment that is safe and without risk to health. The corollary of that obligation is that employees are given the benefit of an entitlement to enjoy a safe working environment. Contrary to the submissions of Dulux, such a benefit is a workplace right. The meaning of “workplace right” given by s 341(1) of the FW provides that a person has a workplace right “if the person…is entitled to the benefit of…a workplace law”. The definition of “workplace law” given by s 12 of the FW Act specifically refers to “any other law of…a State…that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters)”.

For those reasons, although I disagree with Dulux’s contention that Ermel did not have a workplace right, this aspect of Ermel’s claim must also be rejected.

73    Likewise, here, Mr Milardovic did not plead that he had been subjected to adverse action by the respondents because he enjoyed, or had, the benefit of a “working environment that is safe and without risks to health”, to use the language of s 21 of the Occupational Health and Safety Act. Such an argument only needs to be set out for it to be clear how tenuous and unlikely any such argument might be. He pleaded that the adverse action was either because of the complaints about bullying he had made, or his WorkCover claim, or both. That is, in the operative part of his statement of claim (paragraphs [33] and [34]), he relies on s 341(1)(c). That being so, the contested events which occurred prior to the making of his first complaint need not be the subject of detailed findings by the Court. The bullying Mr Milardovic alleges occurred prior to his first complaint on 18 February 2014 is the subject matter of the complaint, but itself need not be proven, nor the complaint proven to be “justified” as Dodds-Streeton J observed in Shea. Nor are these events relied on as any independent cause of action under s 341(1)(a), including the distinction made by Bromberg J in Ermel. In his final submissions in reply, the applicant made no submission, in response to the respondents’ contention that the examples of bullying were not relevant to the determination of his adverse action claim, that they formed part of the exercise of a workplace right to a safe working environment.

Accessorial liability under s 550

74    The Full Court considered the nature of accessorial liability under the similar terms of the predecessor Workplace Relations Act 1996 (Cth) in Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; 164 IR 299. At [26], Tamberlin, Gyles and Gilmour JJ stated:

Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct – the accessory should be linked in purpose with the perpetrators (per Gibbs CJ in Giorgianni v The Queen (1985) 156 CLR 473 at 479-480; see also Mason J at 493 and Wilson, Deane and Dawson JJ at 500). The words “party to, or concerned in” reflect that concept. The accessory must be implicated or involved in the contravention (Ashbury v Reid [1961] WAR 49 at 51; R v Tannous (1987) 10 NSWLR 303 per Lee J at 307E-308D (agreed with by Street CJ at 304 and Finlay J at 310)) or, as put by Kenny J in Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 117 FCR 588; 112 IR 388 at [34], must participate in, or assent to, the contravention.

75    The terms of s 550(2) of the Fair Work Act are identical to those found in s 75B of the then Trade Practices Act 1974 (Cth), considered by the High Court in Yorke v Lucas [1985] HCA 65; 158 CLR 661. Mason ACJ, Wilson, Deane and Dawson JJ held at 669 that notwithstanding that s 75B operated as an adjunct to the imposition of civil liability, it had its derivation in the criminal law and there was nothing to support the view the concepts it introduced should be given a new or special meaning (see also Brennan J at 673). Accessorial liability thus requires intent or knowledge of the essential elements of the contravention to be established: at 670.

76    Bromberg J considered accessorial liability in the context of an adverse action claim in Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446. His Honour stated (at [289]-[290]):

For instance, a person who assisted in the dismissal of an employee carried out by a contravener because of the employee’s race, could not be an accessory to the discriminatory conduct in the absence of having assisted knowing that the contravener’s conduct was motivated by race. Without that knowledge, it could not be said that the alleged accessory is “linked in purpose with the perpetrators”.

An accessory will often know the principal perpetrator’s motive because the perpetrator will have revealed it. Alternatively, an accessory may know the perpetrator’s motive because their conduct is so intertwined, that the motive of one will be the obvious motive of the other.

77    In the present case, Mr Barry was the principal actor in the conduct which formed the basis of Mr Milardovic’s claims. His reasons for the impugned conduct were, in a substantive sense, the first respondent’s reasons. If I had been satisfied Mr Milardovic had made out any of his claims of adverse action, I would have had no difficulty in concluding Mr Barry was “involved” in that conduct within the terms of s 550. Similarly, if there had been any allegation that Mr Barry was “involved” in the contravention of s 44(1), this allegation might well have been capable of being proven, although there was little evidence led about precisely who was involved in the decision not to pay Mr Milardovic his redundancy entitlements.

WITNESSES

78    I set out below my findings about the reliability of the evidence given by the witnesses called in this proceeding.

Mr Stephen Milardovic

79    The litigation process has obviously been very hard for Mr Milardovic, and it is clear he sees it as a continuation of the damage he feels he suffered during his last two years at Vemco. In giving evidence, he exhibited signs of extreme fragility, but also of outrage, of rather fixed perspectives and some combativeness. An example of his fragility was that he broke down when taking the oath at the commencement of his evidence, and needed a short adjournment to compose himself. In the witness box, it was my impression that he struggled initially to recall events, and sequences of events, but he then settled into a narrative and his recollection became clearer.

80    My impression was that Mr Milardovic is an intense and precise kind of person. From his descriptions of events during his evidence, and the way he expressed his perspective on them, it is my impression that he is sensitive to any kind of confrontation, and tends to take what others say to him, or about him, in a negative rather than a positive light.

81    Based on my impression of his oral evidence, and my reading of the content and form of expression of his diary notes as tendered, I find he is capable of taking offence at remarks or events others would either take less seriously, or perhaps not even pay attention to. He appears to internalise, and indeed agonise, over personal interactions in the workplace. His diary in particular has a persecutory sense to it. However, in my opinion his perspective did not, so far as the evidence before me was concerned, have as much objective foundation as his allegations suggested.

82    The events about which Mr Milardovic gave evidence, if each were considered separately, might seem unimportant to some. However, they are not properly viewed in isolation but rather as an ongoing series. Viewed in that light, Mr Milardovic’s frustration and annoyance at what he saw as exclusionary and harassing behaviour by Mr Barry is more understandable. As I find below, it is clear from the evidence before me that at an interpersonal level Mr Barry and Mr Milardovic had little if anything in common and their personal styles and behaviours were quite opposed. To recognise that is not the same as making a finding of contravention of the Fair Work Act but I make these observations lest my conclusions adverse to Mr Milardovic be taken as an indication that I rejected his entire narrative. That is not the case. What I do reject is the accuracy of his perspective on why Mr Barry acted as he did.

83    It is appropriate to set out my views about Mr Milardovic’s diary notes, which formed a substantial part of the evidence on which he relied. At the start of the diary entries, Mr Milardovic records the reason he is keeping the diary (referring, I infer, to his solicitor in this proceeding Mr Micky Milardovic):

Micky advised me to keep a diary of work events in the event that I need to go to court. He gave me this diary yesterday.

84    At some points, the entries seem assiduous in their detail. Yet there are significant gaps – for example, the events around May 2014 are not recorded at all, or if they were the corresponding diary entries were not tendered in evidence. Any unevenness in Mr Milardovic’s use of his diary was not explained in evidence. At times, the entries appear to have something of a therapeutic purpose, as personal diaries might often be said to do. At others, it appears clear Mr Milardovic is recording material he considers favourable to his complaints and adverse to the respondents, and is doing so with a conscious eye to litigation. What can be said is that the diary notes were contemporaneous entries and to that extent may assist in ascertaining an accurate chronology. I did not find the entries particularly reliable in terms of determining what was said by particular people, since the entries are so avowedly from Mr Milardovic’s perspective, and appear to be a mix of what occurred and what he was thinking, or the interpretation he put on what occurred. Because of this feature, the entries are revealing of Mr Milardovic’s perspective on events, and they illustrate the high levels of anxiety and self-absorption which were features of Mr Milardovic’s presentation at work during these events. On some occasions (such as the entries about Mr Barry’s “kick like a dog” comment), they certainly do reveal the considerable hurt occasioned by Mr Barry’s thoughtless remarks.

85    There were occasions in Mr Milardovic’s cross-examination which revealed that Mr Milardovic’s focus on his own travails may have obscured the fact that others at Vemco were also under pressure. His inability in cross-examination to answer questions about the workload of other employees or to concede they might have also been under pressure suggests a disproportionate focus on his own difficulties, which although understandable at one level, does make less reliable his evidence about his own excessive workload being peculiar to him.

86    For these reasons, I am unable to say I found Mr Milardovic’s evidence as a whole reliable. Aspects of it certainly were, and as I have noted above, some of his diary entries were also reliable on a number of factual issues. But both sources of information were coloured by Mr Milardovic’s somewhat extreme perspective of those he interacted with at Vemco, and their motives in dealing with him.

Dr Fiona Wood

87    Dr Wood is Mr Milardovic’s treating psychiatrist and has seen him on 18 occasions from June 2014. She holds full fellowship in the Royal Australian and New Zealand College of Psychiatrists and completed a Masters of Psychiatry at the University of Melbourne in 2005, as well as holding a general medical degree. Dr Wood has worked exclusively in psychiatry since 1989 and works as a general adult psychiatrist.

88    Dr Wood’s admission to full fellowship in the Royal Australian and New Zealand College of Psychiatrists is relatively recent (2013), although she has been working in psychiatry for longer than this. In my opinion there was some force in the respondents’ cross-examination to the effect that she may be relatively inexperienced at predictive exercises about future work capacity. I found her opinions on Mr Milardovic’s capacity to return to work to lack any comparative aspects, not to be informed by a close understanding of his qualifications and what he had been doing at Vemco and to be affected by her obvious sympathy towards him. She gave no evidence about any attempts she was making to assist him to build improved mental health capacity and to take steps towards return to work. Her evidence that the only kind of work he could possibly do would be menial and far below his qualifications seemed to reflect an unduly negative approach to assisting him, and so far as I could ascertain it has no objective basis.

89    Although Dr Wood’s qualifications can be accepted, she appeared to be disorganised and quite unaware of what she needed to provide as the basis for her expert report. For example, she could neither locate nor provide the letter of instruction to her from Mr Milardovic’s solicitor, although Mr Milardovic’s solicitor ultimately located the letter. I am not confident she understood how her perspective as Mr Milardovic’s treating practitioner might affect her opinion.

90    Her evidence was difficult to follow, and somewhat disjointed.

91    I consider Dr Wood’s opinion that Mr Milardovic may not be able to work again was exaggerated. Mr Milardovic is a relatively young man with postgraduate qualifications who clearly has been a high functioning individual. Accepting his level of despair and demoralisation is currently significant, Dr Wood gave no evidence either on a comparative basis, or from any applicable research or study, to justify her opinion that he was unlikely to work again. The fact that Mr Milardovic has persisted with this litigation (and managed to appear in person on one occasion in December 2015 when his counsel and solicitor were unavailable) despite having obvious levels of anxiety and sadness might suggest that he has some capacity to overcome personal adversity. Dr Wood however gave no evidence about her treatment recommendations nor what support or assistance she had considered might be beneficial to Mr Milardovic in returning to paid employment. She did observe that once this litigation resolves and Mr Milardovic has a sense of finality, his mental state might improve, but that opinion was expressed at such a level of generality as not to be particularly useful in determining when Mr Milardovic should reasonably be expected to return to paid employment.

92    Overall, I found her evidence of little assistance, other than to confirm what was obvious from Mr Milardovic’s own demeanour – namely that he is currently highly anxious and upset.

Mr Nigel Barry

93    Mr Barry is the director of sales and marketing with the Vemco Group and from about early September 2012 he was the direct supervisor of Mr Milardovic’s work.

94    Mr Barry’s evidence was given in what I might describe as a minimalist way. He was certainly not an expansive witness. My impression was that he sought to present a particularly controlled picture of himself, when in fact his temperament is less so.

95    That said, I found his evidence to be reasonably reliable. He gave credible evidence about his purpose in making certain decisions, and was honest about being unable to recollect the detail of conversations, while still giving persuasive evidence about what he intended to achieve. He put some of Mr Milardovic’s evidence about the bid management process in the context of a larger workforce, functioning under considerable deadline pressure, from which it was obvious he was not exempted. On some occasions in my opinion he sought to minimise, unjustifiably, either his role in certain events or the harshness of some of his comments or decisions. I deal with those as necessary below in my findings on the applicant’s allegations.

Ms Michelle Finnigan

96    Ms Finnigan has been employed by Vemco since October 2003 and is the human resources manager for the Vemco Group.

97    Ms Finnigan’s evidence was somewhat stilted and she was not especially forthcoming on many issues. However, on some key issues her evidence was persuasive. For example, in relation to the 18 February 2014 meeting with Mr Milardovic, her account of that meeting was convincing, including her rejection that the applicant complained about “bullying” because it would have “raised a red flag” with her. Her recollection of the details of meetings was sketchy, but she gave straightforward evidence about the limits of her role in some of the decision-making, and her position as making recommendations to Mr Barry, or implementing his decisions.

98    Towards the end of her cross-examination, the questioning became somewhat confusing and imprecise. Some of Ms Finnigan’s answers reflected that confusion. I do not take all of her answers literally. Ms Finnigan was unable to answer quite a few questions and I consider that was either because she did not understand the question, or because in fact she had simply done what Mr Barry told her to do, without necessarily inquiring about the reason, or having much independent understanding of why a particular course of action was to occur. In some of her answers there was a tendency for her to use phrases about “focusing on returning Stephen to work” which, in my opinion, did not seem particularly genuine but rather what Ms Finnigan felt she ought to say. In my opinion, like Mr Barry, Ms Finnigan found Mr Milardovic a difficult person to get on with, and was not troubled by the fact that he might leave Vemco.

NON-CONTENTIOUS FINDINGS

99    I find the following matters, which I do not understand to be the subject of any real dispute between the parties.

100    Mr Milardovic’s association with the Vemco Group began with his employment with Vemtec Pty Ltd, a related company to the first respondent. He was employed on 8 September 2009. He told the Court he ended up describing himself as a “Projects Bid Manager”, because the work he was doing was project-oriented.

101    Mr Milardovic has a bachelor of science in physics and mathematics and a bachelor of engineering, in electrical engineering, from Monash University. After leaving university he worked for a company called Rockwell Automation as a systems engineer for five years. Then he took a job with Mitsubishi Electric in Japan as a systems engineer initially. He described that position as eventually changing into “a sort of a marketing and sales role”. He held that position for five years and then started with Vemtec. He described Vemtec’s business as design work for underground and overhead power lines, subsequently branching out into the construction of power lines. Once Vemtec began branching out into construction from design, Mr Milardovic’s evidence (which I accept) was that he began bid managing the construction tenders, which were, as he put it, “of a very high dollar value”. He came to meet Mr Barry in review and mentoring meetings and the like.

102    I accept Mr Milardovic’s evidence that he was told about an opening for a bid manager in the Vemco Group by Mr Barry, and had a discussion with Mr Barry about that position in approximately June 2012. He was not keen to change roles. The bid manager position was advertised and Mr Milardovic did not apply. Subsequently Mr Barry approached him again. Mr Milardovic told Mr Barry he was happy with his “purely engineering” focused role, but Mr Barry encouraged him to consider taking on the position of bid manager. Mr Milardovic described his decision to do so in the following terms, which I accept reflected his attitude at the time:

I said “You know, I’m very happy with where I am. I’m in a purely engineering – which is my calling, an engineering role, and I’m quite enjoying it. I’m immersing myself in it, so I’m quite content”. And he said something like “We would like you to take this role”. And I – to be honest, I didn’t want the role, but I just felt like – he’s an owner of the company, and, you know, to say no, I felt, wouldn’t be doing my career justice, so I took the role.

103    Mr Barry characterised the move as one from Mr Milardovic working on smaller bids (under $100,000) with Vemtec to one where he was working on larger bids with Vemco. Mr Milardovic’s evidence was that he started working in the new role in approximately August 2012. That evidence cannot be reconciled with other evidence and in particular the contract itself which puts the effective date of commencement at 3 September 2012. I find that is the date at which Mr Milardovic commenced employment with Vemco.

104    Mr Milardovic signed an employment agreement with Vemco on 15 November 2012. His remuneration was agreed to be $125,000 per annum plus statutory superannuation. Attached to the contract was a position description for the role of “Bid Manager/Senior Estimator”.

105    The overview of the position described Mr Milardovic’s role:

This role will be responsible for overseeing the Vemco Group’s estimating and bidding processes. You will need to draw on your end to end and complex experience to process from start to finish.

106    The “key accountabilities” were set out as:

Responsibility for estimation, processes and pricing across all Vemco Group divisions, encompassing, vegetation works; civil construction (minor work packages); design and construction of electrical networks and infrastructure as well as speciality fleet/equipment manufacture.

Oversee all pricing and estimation processes to ensure the incorporation of all relevant risks and details so as to enable review and approval prior to submission.

Assist operational teams in analysing and applying recommendations in relation to costing methodologies

Undertake the sourcing and selection of suitable subcontractors – build and maintain a ‘working relationship with a library of subcontractors

Liaise with clients, suppliers and internal stakeholders to obtain information and calculate costs

Review tenders, contracts, proposals and bid documentation and provide advice in relation to project risk and complexity

Calculation and preparation of quantities and work planning procedures

Preparation and management of multiple bid packages

Participate in pre award negotiations

Data interpretation from a variety of sources including client specifications, drawings, aerial mapping and survey data

Develop templates to streamline quotation preparation, accuracy and to improve submission quality

Liaise with all stakeholders to ensure subcontractors and suppliers comply with contract requirements

Assume a proactive role in the transfer of all price estimation data and package disciplines at project commencement

Manage the bid process including Tender writing and submissions

107    Mr Milardovic relied in particular on the fourth criterion as an indicator that it was intended he have significant customer contact. This became relevant to some of his complaints about how he was treated.

108    The “key selection criteria” were said to be:

•    Proven experience and demonstrated understanding of ‘first principals’ [sic] in estimating

•    Minimum 5 years’ experience in a similar role desirable

•    Excellent written and verbal communication skills

•    Proven experience in presenting to peers and senior management

•    Highly motivated and team orientated

•    Results focussed and commercially astute

•    Proven knowledge and understanding of contract laws

•    Proven ability to meet deadlines as a result of accurate forecasting and team member engagement

•    Experienced in resourcing multidisciplinary civil and infrastructure projects

•    Advanced computer skills including – MS Office, MS Project and software estimating tools such as Expert Estimation or similar

109    Mr Milardovic relied in particular on the final selection criterion, which he said was relevant to his complaints about being denied access to some training programs on software packages that were critical to the performance of his role.

110    Mr Milardovic’s evidence was that there was no discussion about the “key accountabilities” in this position description before he signed the employment agreement. However, Mr Milardovic tendered an email exchange between himself and Ms Amanda Fonovic from Vemco Group’s recruitment area. The email chain all occurred on 24 August 2012, well before the employment contract was signed. Ms Fonovic attaches to one of her emails the position description. She did so because Mr Milardovic asked for it, on the basis he understood it had been modified. Clearly Mr Milardovic was aware of various iterations of the position description, whether or not the key accountabilities listed in it were discussed. The final email in this chain, which was sent to Mr Barry and copied to Ms Fonovic after she sent him the revised position description, exhibits a somewhat terse and pointed style of communication which seems to me to be typical of Mr Milardovic’s attitude to communication in his workplace. Mr Milardovic’s email says:

Hi Nigel

I’d assumed that there would be a pay increase with this new role.

Am I wrong?

111    The events about which Mr Milardovic alleges he complained in February and March 2014 are said to have begun shortly after he signed the employment contract in November 2012. I refer to some of these events in more detail below, together with my findings on the alleged complaints and adverse action.

112    There is no dispute that in May 2014 there was a restructure announced of some of Vemco’s operations, including Mr Milardovic’s bid manager role. That role was divided into two roles – a “Senior Estimator” and a “Bid Manager”. The process by which this occurred is the subject of complaint by Mr Milardovic. It was common ground that Mr Milardovic had been invited to apply for either or both roles, or to indicate which role he wanted. It was common ground that Mr Milardovic neither indicated which role he wanted nor applied for either role. There was, as I set out below, a dispute whether he should have had to apply for a role, or should have been asked to indicate which role he wanted. But the fact is that he formally and informally expressed no interest in either role.

113    This announcement appears to have been the catalyst for Mr Milardovic to be unable to attend work. He took sick leave the next day and did not return to the workplace prior to his termination.

114    Mr Milardovic lodged a WorkCover claim on 23 May 2014, which was rejected by the first respondent’s insurer. The claim remains the subject of litigation in the Melbourne Magistrates Court in late October 2015.

115    After the lodgment of the WorkCover claim, there were some negotiations about Mr Milardovic returning to work. They were mostly conducted between Ms Finnigan and Mr Milardovic. Some of the communications are in writing and are self-explanatory. The lawfulness and appropriateness of many of the first respondent’s communications during this period are disputed by Mr Milardovic and where necessary, I deal with those matters below.

116    A curious feature of this period, and one on which the applicant places some reliance, is that the first respondent’s return-to-work plans appeared to be based on Mr Milardovic returning to his position of Bid Manager/Senior Estimator: that is, returning to the position which had been abolished in May 2014, and split into two positions. There was evidence that new appointments had been made to each new position. I deal with this in more detail at [271] to [286] below.

117    In this period, amongst other matters, the first respondent required Mr Milardovic to attend a medical examination. He objected to the lawfulness of this direction and did not attend. His refusal prompted a communication from the first respondent on 31 October 2014, the material parts of which stated:

Further to this it was noted in the same letter that if you decide not to attend the booked medical, we would have no option but to consider the ending of your employment with us given that the most recent medical advice available to us indicates, as you have stated previously, that you are unable to fulfil the inherent requirements of the role.

The Company is now faced with a situation where you have been on leave without pay since 13 May 2014, where we have no information or access to information as to your medical status and fitness to return to work (or prognosis for fitness to return to work), you have failed to comply with a reasonable and lawful direction to attend an independent medical examination and we are no longer able to extend leave without pay indefinitely.

To ensure we take all steps to be fair and reasonable to you in this situation I ask that you respond to this letter in writing outlining any reasons/matters you think we should consider before we make a decision regarding your ongoing employment with us. Can you please respond to me by COB Friday 7th November 2014.

118    Mr Milardovic replied to this communication on 5 November 2014. The entirety of that response should be reproduced:

I have been subject to a campaign of sustained bullying and harassment from Nigel Barry which has spread to other senior managers, as a result of Nigel’s public actions and his direct encouragement. That bullying is evident also in your correspondence where you have made threats for non-performance of certain actions, despite having already been performed, and your repeated directions to attend an appointment with your doctor in order to obtain a diagnosis.

I repeat: I have already obtained a diagnosis and a prognosis. I note that despite repeated requests you have not specified the relevant common law or section(s) of the relevant legislation which you rely upon to compel me to attend an appointment with your doctor. My legal advice has been that where a medical certificate has already been obtained, such a direction is neither reasonable nor lawful.

Note also that my address is XXXXXXXXXX, not XXXXX. Any future correspondence sent to XXXXX will not be received.

119    Eventually, Mr Barry on behalf of the first respondent took a decision, acting on a recommendation from Ms Finnigan, that Mr Milardovic’s employment should be terminated. Mr Milardovic was notified of that decision in a letter dated 11 November 2014:

I am writing to advise you of our decision regarding your employment with Vemco Services.

We have concluded the review into your ongoing employment, including taking into consideration the information provided by you in your letter dated 5th November 2014 and this letter is to inform you that unfortunately we can no longer hold your position open.

The reason for this decision is that on the information available to us we are reasonably of the belief that you are unable to carry out the inherent requirements of your position as Bid Manager/Senior Estimator and will be unable to do so for the foreseeable future. As we have previously indicated to you, we are unable to extend the period of leave without pay indefinitely and certainly not in the current circumstances as to your capacity to undertake the duties of your role.

As well, following further consideration with the best information available to us as to your condition, we have considered whether an alternative role might be available, but have concluded that there are no suitable positions available for you.

Your employment will end with immediate effect as the four week notice period requires no payment given the ongoing leave without pay under which you have been employed. Your accrued leave entitlements have already been paid out previously.

Would you please return any company property which you may still have in your possession immediately. You may contact me to make the necessary arrangements for the return of any such property and at the same time, make any arrangements which may be necessary if you have personal property which remains with the company, to be returned to you.

Stephen, we are disappointed that we have been left with no alternative to making this decision and we wish you all the very best for the future. Should you have any questions regarding this matter, don’t hesitate to call me on either XXXXXXXX or XXXXXXXX or if you prefer email XXXXXXXXXXX

120    It is not in dispute that since his employment has been terminated, Mr Milardovic has not been employed. The nature and extent of his incapacity for work, and its causes, remain in dispute.

FINDINGS ON CONTENTIOUS MATTERS

121    The applicant alleges, as I have set out above, a number of discrete kinds of adverse action. The respondents admit that the termination of his employment is properly characterised as adverse action. As to that conduct, the only issue in dispute is the reason for the termination, and whether it was a prohibited reason.

122    As to the rest of the applicant’s allegations of adverse action, the detail of the conduct itself is in dispute, as is whether it constitutes adverse action. Finally, the reasons for the conduct alleged by the applicant are also disputed.

123    In relation to all these allegations, the principal actor on the applicant’s evidence is Mr Barry. The first respondent did not dispute that all material times Mr Barry was acting on behalf of Vemco in his interactions with the applicant. There are no allegations where the first respondent disavows the conduct of Mr Barry. As I have noted earlier, Mr Barry’s personal liability is said to arise under s 550.

124    It is at this point important again to recall that most of the large and complex body of evidence about what Mr Milardovic asserts happened to him from the time he commenced employment with Vemco (in terms of specific events and incidents) comprises what Mr Milardovic contends was workplace bullying. While his belief that he had been bullied seriously and constantly by Mr Barry may explain why he made the complaints he did in early 2014, as I have noted earlier, it is not material to Mr Milardovic’s claim as set out in the statement of claim for the Court to determine whether those events and incidents did in fact occur as Mr Milardovic related them, nor for the Court to consider why they occurred as they did.

125    In this section I make findings on the following matters: the complaints relied on by the applicant and whether they fall within s 341(1)(c); the contested sequence of events after the 12 March 2014 meeting through to the termination of the applicant’s employment; the adverse action alleged to have been taken against the applicant because of the complaints; and the reasons for that adverse action.

The complaints

126    The bullying and harassment about which the applicant alleges he complained is set out in paragraphs [11(a)] to [11(k)] of the statement of claim. Those incidents date from late 2012, whereas the first complaint Mr Milardovic’s claim alleges he made was on 18 February 2014.

Alleged complaints at a meeting on 18 February 2014

127    Mr Milardovic contends that at this meeting he complained to Ms Finnigan, about the way a recent leave issue had been handled.

128    In February 2014, Mr Milardovic’s partner had a family crisis in Japan, and needed to return there. Mr Milardovic alleges he sought compassionate leave for a day to drive his partner to the airport, to which Mr Barry agreed in advance and then changed his mind the next time Mr Milardovic mentioned it to him, several days later. The applicant alleges on the second occasion when he complained about Mr Barry’s change of mind, Mr Barry said “I don’t give a stuff about your situation.”

129    As this issue developed in cross-examination of Mr Barry, it was apparent Mr Milardovic’s real complaint was not about being able to take the leave but about whether he would be paid for it.

130    Mr Barry’s evidence was that Mr Milardovic asked him the night before he needed to go to the airport whether he could take the day off as leave, and Mr Barry agreed. I accept that evidence. When it was suggested he later changed his mind, he responded, unsurprisingly, how could he change his mind when Mr Milardovic had already taken the day off. He added that he had signed the leave form and it was a matter for payroll whether Mr Milardovic had sufficient leave left to be paid for the day or not. I accept this evidence.

131    When questioned about the somewhat derisory comment attributed to him, Mr Barry said it did not sound like his language and he did not recall saying it.

132    This incident was recorded in Mr Milardovic’s diary entry for the day. The first part of the entry read:

Today when I tried to submit my leave form for the week before last, Nigel again tried to tell me that it wasn’t allowed. I was really stunned and hurt because he knew what I was going through at the moment with Aki, and we’ve had this discussion before. Why is he persecuting me like this? I even point-blank asked him “Why are you doing this?” “Is it because you don’t know the exact details of the terminal illness?”

I’ll never forget his reply as long as I live:

“I don’t give a stuff about your situation.”

I can’t believe that anyone can be that callous. In my whole professional life, excluding Vemco, I’ve never met anyone like this. What am I supposed to do? Can I keep working for this Animal?

133    I am not satisfied Mr Barry made the statement in the terms alleged by Mr Milardovic. I am not satisfied that in the circumstances as described Mr Barry would have had a response of that kind. The characterisation the applicant seeks to place on the remark – callous and insensitive at a time of considerable crisis for Mr Milardovic and his partner – has an insufficient basis in the evidence, and is not consistent with the view I formed of Mr Barry. While I have found Mr Barry made other insensitive comments (some of which he admitted making), I am not persuaded he made this particular one.

134    Mr Milardovic’s oral evidence was that it was Mr Barry’s comment “I don’t give a stuff about your situation” which prompted him to go see Ms Finnigan on 18 February. I am not satisfied that was the case. It seems to me much more likely that Mr Milardovic went to see Ms Finnigan to continue his complaint about his compassionate leave entitlements, which was preoccupying him at this time. Mr Milardovic accepted, in cross-examination, that all his emails from this time concerned the leave issue. The evidence also reveals that it was on 18 February 2014 that Mr Milardovic put in his “paperwork” about the leave, and it was on that day that he was denied payment for the one day of leave. Mr Barry also denied there was a discussion with Ms Finnigan that day about anything other than Mr Milardovic’s leave issues.

135    Ms Finnigan’s evidence was that Mr Milardovic came to her office agitated and they had a discussion about the authority for leave going into the negative. She said Mr Milardovic was “pressing me to make a decision on the leave being approved into the negative”.

136    Mr Barry’s evidence was that:

Michelle at some time – and I couldn’t say exactly when – told me that Steve had come into her office and was trying to carrel her into a corner into agreeing to signing a leave form. And she said that it wasn’t her position to sign it: he needed to talk to his manager, which was me.

137    It was submitted that Mr Milardovic complained to Ms Finnigan about Mr Barry’s continued bullying conduct (especially the “kicking like a dog” comment to which I refer below) and Mr Barry’s continual undermining of him. Although the statement of claim made a long series of specific allegations about bullying, Mr Milardovic’s evidence was much less specific about what he actually said to Ms Finnigan during the 18 February 2014 meeting.

138    The remainder of Mr Milardovic’s diary entry for that day was as follows:

After 5pm I went to see Michelle. I couldn’t think of anything else to do. I felt like I was at the end of my tether. I started with the issue of my leave. From the start I could tell that it was falling on deaf, unsympathetic ears. She said that this is something that I need to work out with Nigel himself, and that I should not be putting her in the uncomfortable and awkward position of having to confront and owner [sic] and prove them wrong.

I tried to explain that this is not a semantic argument, it’s about the facts – am I allowed to take the day off as compassionate leave or not? It’s either allowed in the guidelines or not. She refused to admit that she had said that it was allowed 2 weeks ago, and even now is really ambiguous about it. (Even though it’s in my contract.)

I then started to tell her that this is symptomatic of my relationship with Nigel at the moment.

I told her everything. What had been happening lately, the things Nigel had been saying and doing, his constant criticism and belittlings and bullying. And then his last, total and beyond belief comment.

She just sat there. Clearly uncomfortable, almost squirming.

In the end she just said that I was an adult and senior manager and that it was something that I needed to “sort out” alone with Nigel, myself.

I left feeling worse than when I went in.

139    When asked in examination-in-chief what incidents he told Ms Finnigan about, this was his evidence:

I went into see her and obviously I led with the – I didn’t want to launch straight into this. But I started talking about the compassionate leave issue and, you know, I didn’t want to say, “A week ago, you said it was okay and now you’re saying it’s not okay.” And I just said, “Doesn’t my contract allow for these compassionate leave days? I mean, can’t – you know, this isn’t something you need to consult Mr Nigel Barry about. It’s – please read the contract and just tell me whether it’s allowed or it’s not allowed.” And she wouldn’t do that and she just said, “I’m not prepared to contradict the owner of the company.” And – I know should I have seen this as a signal that everything else is going to fall on deaf ears, but I was so at the end of my tether. I mean, I just – I had to tell somebody what was happening and you’ve got to understand the consequences of, you know, making a complaint about Nigel Barry. You may as well quit. I mean, it’s not like a – he’s an owner of the company. There’s no – there’s nowhere else to go, but I did it anyway. I just – I started by saying – I thought – I said – this is – I said – I remember saying vividly, “This is symptomatic of my relationship with Nigel” and I – I could just see even then it was falling on deaf ears, but I just – I just unloaded everything that had been happening to me.

140    It can be seen the applicant gave no detailed evidence at all about the contents of his conversation with Ms Finnigan which mirrored the allegations in paragraphs [11(a)] to [11(k)] of the statement of claim.

141    Ms Finnigan was taken through paragraphs [11(a)] to [11(k)] of the statement of claim and asked which of these matters were raised by Mr Milardovic at the meeting. She denied that any of those matters were raised by Mr Milardovic at the 18 February meeting. Her evidence was that a small number were raised subsequently at the 12 March meeting. She said the 18 February meeting lasted only a few minutes, perhaps 10 minutes.

142    I am not persuaded that there was any discussion on 18 February 2014 between the applicant and Ms Finnigan in which he made specific complaints about Mr Barry, and about bullying and harassment. It may well be that Mr Milardovic expressed frustration and anger about his general treatment at Vemco and at the hands of Mr Barry, which Ms Finnigan failed to recall. That would be more consistent with Mr Milardovic’s own oral evidence. The rest of his evidence is, I find, a reconstruction, occurring because now he has gone over and over all the ways in which he feels he was bullied and harassed and he has persuaded himself that he spoke about them to Ms Finnigan on this occasion. The weight of the evidence does not persuade me that he did. Similarly I am not persuaded that Mr Milardovic’s diary entry that he told Ms Finnigan “everything” should be accepted as probative evidence that he in fact made the complaints now articulated in paragraphs [11(a)] to [11(k)] of the statement of claim.

143    The applicant placed a lot of emphasis on an entry in Ms Finnigan’s diary on 24 February 2014 which read “Chase Nigel re: Steve M discipline”. His contention was that this showed Ms Finnigan and Mr Barry had decided to discipline him for making complaints. First, I do not accept the premise of the contention – namely, that Mr Milardovic made specific complaints on 18 February 2014. Even if he had, it seems to me this entry is, once again, about his leave. Ms Finnigan’s evidence was that this entry followed a discussion she had had with Mr Barry which led to Mr Milardovic’s performance review meeting on 12 March 2014. It does not assist the applicant’s narrative theory.

144    Having found there was no complaint in fact on 18 February 2014 in the terms alleged in the statement of claim, the applicant cannot make out any case of adverse action based on such a complaint.

Alleged complaints at the 12 March 2014 performance review meeting

145    The respondents conceded that at this meeting Mr Milardovic made complaints, within the meaning of the Fair Work Act, about Mr Barry’s comment that he had been “kicking Stephen like a dog”, and about Mr Barry’s alleged belittling and undermining of Mr Milardovic.

146    This meeting was, the parties accepted, properly characterised as a performance review meeting. On the evidence, it was held principally because of what had been happening with a particular tender bid, called the Queensland Rail Project. It is important to set out the evidence, and my findings, about that tender and the roles played by Mr Milardovic and Mr Barry, because this tender was a major part of the respondents’ contentions about why there was a performance review of Mr Milardovic at this time.

147    The progress of the Queensland Rail tender appears to have been the source of some friction within Vemco, not only between the applicant and Mr Barry. In February 2014, Mr Bob Gierer was the executive general manager for the “Vegetation North” section of Vemco, as Mr Barry described it. He was responsible for all projects pertaining to vegetation with the exception of the Powercor contract, in the northern part of Australia.

148    The applicant’s diary entry about this event contains some pejorative references to Mr Gierer, which need not be reproduced. The entry then continues:

What’s most infuriating and disheartening is that I’d foreseen it and only it appears in vain tried to pre-empt it by meeting with him on the Monday to ask exactly what he wanted to see in the bid. (Because it’s such an established pattern of his.) In that meeting, Jeff was there too, Bob asked for quite a bit of new, never-before-considered material. I was a bit taken aback by the volume and detail and complexity but I agreed. I spent a lot of time collating data and creating new tables and diagrams, and I’d put all of it into my first draft. (I’d had to communicate extensively with Kevin from Ballarat).

But does Bob refer to any of this? NO.

149    There was some debate between the parties about the precise timing of conversations between Mr Barry and the applicant about this project but I do not consider those debates to be material. What is material is the applicant’s allegation that he complained to Mr Barry about Mr Gierer’s attitude, and rather than his complaint being taken seriously, Mr Barry’s response was to remove the applicant from the tender, and give control of it to his personal assistant, Ms Sumita Koshy.

150    Mr Barry’s recollection is rather different from the applicant’s diary note. His evidence was that his first interaction was a complaint by Mr Gierer about the applicant, not a complaint from the applicant about Mr Gierer. He then spoke to the applicant, and formed the view that the “reality of it was the – the bid was not ready – not right”. He maintained the applicant still had work to do on the tender, but he agreed in cross-examination that the final control and collation of the tender document was given to Ms Koshy. I accept this evidence. The applicant’s assertion that control of the tender itself was given to Ms Koshy makes no sense – Ms Koshy was not qualified to perform such a role. I accept Mr Barry’s evidence that what he did was ask her to collate the final tender document, edit it and prepare it for uploading and submission. He did not ask Ms Koshy to “control” the tender itself. He denied this was the first time someone other than the applicant had control of the submission of the tender document, saying Mr Filip had done that in the past.

151    I accept the evidence given by Mr Barry in cross-examination that Mr Milardovic was aware that Mr Barry considered the state of the tender to be unsatisfactory, and took steps to remedy this which involved taking control of it himself. Mr Barry’s evidence, which I accept, was:

Had you had any discussion with Stephen Milardovic before 12 March to show him the deficiencies in the Queensland Rail tender?---Absolutely.

…

So did you have any discussion in your discussions prior to 12 March about the Queensland Rail to Stephen to say: “This is totally unsatisfactory. We’re going to have to do something about performance review,” or something like that?---Absolutely, because the - - -

Not because. What did you say?

HER HONOUR: No. Just let the witness finish, please.

THE WITNESS: Excuse me. I will just grab a glass of water. Queensland Rail tender was quite unsatisfactory, and to that extent Steve knew that, and I took the – the document away. Bob and I worked on it on the weekend. We structured it, restructured it, and we sent it back to him to finalise the other bits and pieces of that document.

MS JARDINE: But you had taken the control of that document away from him anyway, hadn’t you?---Not until the – the morning before tender submission.

I see?---So he had control of it all the way through till the morning of tender submission.

I see. So that document got submitted in any event, and you decided to have a meeting on 12 March; that’s correct?---Yes.

152    Mr Barry assigned the collation, editing and submission of the tender document to Ms Koshy. Mr Barry was clearly dissatisfied with the state of the tender at the time the disagreement between the applicant and Mr Gierer surfaced. He took the action he considered appropriate to ensure the tender could be submitted on time and in the proper form. That was the kind of decision he was entitled to take in his management role. However it was obvious he was less than impressed with the way the applicant had handled the tender as a whole.

153    Returning then to the question of what complaints were made by Mr Milardovic at the 12 March meeting, which could be said to provide a reason for the adverse action taken against him, Mr Milardovic’s evidence was that he “complained about everything”, claiming quite a bit was not recorded in the minutes of the meeting by Ms Finnigan. In oral evidence he said that he particularly complained about the “kicking Stephen like a dog” remark Mr Barry had made at a meeting in January 2014.

154    Mr Milardovic gave evidence (denied by Ms Finnigan in cross-examination) that at some stage during this meeting Ms Finnigan said words to the effect that she was not taking notes any more, so that the notes she did take did not accurately reflect the whole of the contents of the meeting. Mr Milardovic also gave evidence that he said Mr Barry had been treating him callously, referring to the “I don’t give a stuff about your situation” comment when Mr Milardovic sought to claim his leave day as compassionate leave.

155    Ms Finnigan’s notes of the meeting record the following statements by Mr Milardovic:

•    SM noted that there was “no way” he could have written the Qld Rail tender without input from the experts

•    SM noted that he felt that NB was being unreasonable with his expectation given that SM’s expertise was Engineering not Vegetation/Rail etc

•    SM noted that it is “not his job” to tell key stakeholders/clients why they should choose Vemco Group, this is something he relies on the experts to explain

•    SM noted that with the tender he felt that he met all the requirements expected of him as requested by Bob Gierer. Bob had requested flow charts and SM had provided these. They were later removed from the tender response

•    SM wanted it noted that he felt that NB helps everyone but him

•    In relation to the issue with Pronamics, SM noted that he did not feel that this was the right solution. He asked why NB didn’t sit with him so that he can explain his concerns. NB noted that he had told SM on numerous occasions that Pronamics was the system that was to be used, SM didn’t agree and his actions were to ignore the requests. NB further noted that he felt that SM does not listen and always has to be right

•    SM noted that on occasion he felt that NB had undermined him by publically chastising him in open forums

•    SM felt that NB had commented on occasion that he had been “kicking” him. NB noted that he used the comment in a wider turn of phrase that he felt was supporting SM – i.e. “I cannot kick SM more, it is up to the team to provide the information to allow him to do his job”. SM and NB disagreed on the intent of this comment.

•    SM noted that he feels that he is accommodating to conflicting priorities. SM noted that he had once completed 8 tenders in a short timeframe.

•    NB asked if SM enjoyed the role and wanted to continue in it. NB noted that the team is only small and he is committed to working through the issues for the benefit of the whole team/group

•    SM noted that he wanted to continue in the role

156    Mr Milardovic’s diary entry for the day did not elaborate on the detail of any complaints he made apart from the “kicking like a dog” comment. The relevant part of the entry reads:

… Everything that [Mr Barry] complains about or alleges is false or distorted. I have a hard time just holding back and not loudly defending myself. By the time he has reached the end, I understand where this is going – I will be fired. When I’m finally permitted to reply, this realisation dulls my response. I try to argue against all the slurs (What of all the successful tenders? How about all the unpaid overtime?) but I can ‘read’ that there is simply no point.

I do seize upon Nigel’s “kicking me like a dog” comment and add that that, and other instances, has hindered my attempting to go about my work. (Completely neglecting how it made me feel of course – which is of irrelevance to Nigel and Michelle).

157    It is convenient to set out what findings I make about the “kicking Stephen like a dog” comment, in order to place Mr Milardovic’s complaint on 12 March in what I consider to be its proper context.

158    The remark was, the parties agreed, made at the January 2014 staff meeting, as Mr Barry explained the structure of the bid management team. In evidence Mr Barry agreed he had made the comment, and said he regretted making it. He explained the context in the following way:

The current structure that we have, which is Stephen as the – the bid manager/estimator, there is no possible way we can – we can grow this business. Our aim was to grow it by another two to $300 million in two years and one person is just clearly not able to assist or complete that growth. So in order to grow it we had to change the structure, get more skills in and more capability to the group. And so what I was saying is essentially I can’t ask any more of Stephen, but we have to get more resource, and that was the message, and that’s what this slide bears out.

159    During his cross-examination, one of the applicant’s answers revealed, in my opinion, just how fixed his perspective was about Mr Barry and his attitude to the applicant. Counsel for the respondents put a question reflecting his instructions about why Mr Barry made the comment he did:

He – he stated that as a means of illustrating that you were working at or near capacity; do you agree with that?---That’s – that’s impossible.

160    Contrary to the applicant’s answer, in my opinion, there is nothing “impossible” about the suggestion that this was the sense Mr Barry was trying to convey. Indeed, I find that was exactly what he was trying to convey. He did so quite thoughtlessly, but there is no doubt in my opinion he intended the comment to reflect his acknowledgment that Mr Milardovic was working too hard and staffing changes needed to be made to the bid management team. That the applicant would find it “impossible” to see the comment in that light demonstrates, in my opinion, how determined the applicant was by early 2014 to put the very worst characterisation on everything Mr Barry said or did.

161    Mr Barry gave evidence that at the subsequent meeting with Mr Milardovic on 12 March 2014, he apologised to Mr Milardovic.

162    He also gave the following evidence:

I honestly didn’t believe it was in a context that was offensive. It was – it was a – it was an effort to make a – a point that Stephen, in his role, could not do any more, and we needed to support him by growing that team.

163    I accept that evidence. Given the view I have taken of Mr Barry, his personality and his management style, I am satisfied that he intended the comment to be taken lightheartedly. In that he was wrong, and by January 2014 he should have known better than to pick out Mr Milardovic as the kind of person about whom a comment such as that could be made in a lighthearted fashion. It was an inappropriate and thoughtless comment. If made in respect of an employee with a different personality and more self-confidence, it may have been taken in the spirit it was intended. The likelihood of Mr Milardovic taking it that way by January 2014 was remote indeed.

164    I accept Mr Milardovic found it humiliating and hurtful. In my opinion, it is likely Mr Barry did make the comment because he recognised Mr Milardovic was overburdened in his role and something needed to be done, and he decided to describe that burden in a way he thought was humorous. Mr Barry may have been the only person in the room who considered describing someone as being “kicked like a dog” as humorous, but the fact he was out of touch about what was appropriate in that setting may be a criticism of his character and his management style, but it does not make his conduct unlawful in any of the ways alleged in this proceeding. Nor does the thoughtlessness of Mr Barry’s comment mean that Mr Barry was, after Mr Milardovic’s complaint, motivated to take adverse action against Mr Milardovic because he complained.

165    Aside from this specific complaint, I am not satisfied the applicant did anything else at the 12 March meeting than to complain in general terms about Mr Barry undermining and belittling him. There is simply insufficient evidence to find he made more specific and itemised complaints. Ms Finnigan’s refusal to take notes any more, if it in fact occurred, may suggest she tired of trying to keep up with what the applicant was saying, but does not support any inference about what it was he was saying.

166    In summary then, as with the 18 February 2014 meeting, I find that Mr Milardovic did not make the specific complaints set out in paragraphs [11(a)] to [11(k)] of the statement of claim. I find he did complain about Mr Barry’s “kicking Stephen like a dog” remark. Otherwise, as Ms Finnigan’s notes reveal, Mr Milardovic made somewhat generalised complaints about his workload and Mr Barry’s attitude towards him. Beyond that, I do not find Mr Milardovic has proven his allegation about the complaints he made.

The factual context for the alleged adverse action

167    Although I have found that Mr Milardovic has not proven he made the complaints he alleges in paragraphs [11(a)] to [11(k)] of the statement of claim, at either or both of the meetings on 18 February 2014 and 12 March 2014, I nevertheless turn to consider whether he has proven his allegations of adverse action.

168    I do so because I have found he may have made generalised complaints about Mr Barry, and workplace harassment, at these meetings. I have also found he did make a specific complaint about Mr Barry’s “kicking Stephen like a dog” remark. Accordingly, I consider whether the respondents’ conduct constituted adverse action in that context.

169    In that context, the questions become: did any of the four kinds of adverse action alleged by the applicant take place? If they did, do they constitute adverse action within s 340 of the Fair Work Act? If they do, were they made for the prohibited reasons alleged: namely, the complaints made by Mr Milardovic on 18 February and 12 March 2014, to the extent I have found he made such complaints?

170    In order to answer those questions, it is necessary to make further findings on the contested aspects of Mr Milardovic’s employment situation during and after the 12 March 2014 meeting.

The 12 March 2014 meeting

171    Mr Milardovic’s perspective on the 12 March meeting is revealed through his diary notes. Those notes are principally directed to the performance issues raised with him by Mr Barry during the meeting – not in terms of a detailed recitation of them, but in terms of Mr Milardovic’s narrative about performance being raised at all. Those notes begin with the statement “I was rail-roaded today”. They then describe the meeting from Mr Milardovic’s perspective, including comments such as that Mr Barry “then proceeds to ‘hammer’ me: lie upon lie upon fabrication upon distortion”, as a reference to what Mr Barry said to him. He describes Mr Barry in the following way:

He’s sneering most of the time, and I can feel his contempt.

172    Similarly, a subsequent diary entry refers back to the performance review meeting as a “crucifixion”.

173    Mr Milardovic’s diary entry records that Mr Barry was reading from a sheet of paper. The evidence confirms that Mr Barry had notes which he read from, and those notes are in evidence. They were prepared by Ms Finnigan prior to the meeting for Mr Barry’s use during the meeting. I find this was the substance of what Mr Barry said to Mr Milardovic during the meeting about his performance. As I set out below, after the meeting Ms Finnigan typed up further notes about what was said during the meeting. Somewhat unhelpfully, all these notes ended up forming one four-page document which was tendered in evidence.

174    What Mr Barry said did focus (as Mr Milardovic’s diary notes also state) on Mr Milardovic’s performance in the Queensland Rail tender, but there were a number of other matters which featured in the notes as well. I reproduce the notes of what Mr Barry said in full:

•    SM has been undertaking the Bid Manager/Senior Estimator role for 18 months

•    SM has been involved in tender writing for a period of over 2 years (Design group)

•    As the Bid Manager/Senior Estimator the expectation is that SM takes the lead role in managing and developing tender responses on behalf of the group

•    As agreed the requirements and expected KPI’s for the role are and their current status is;

•    Implement Pronamics costing system – not done

•    Tender register - not done/in abeyance due to CRM review

•    Design and implement pricing models for each of veg projects, design and construction - not done

•    Building a corporate tender response database – not done

•    On Friday 28th February 2013 SM was to deliver to NB and Robert Gierer (RG) the final draft of the QRail tender

•    In relation to the delivery and quality of this tender;

•    NB took all the other work off SM making the tender the only priority

•    SM had almost 3 weeks to prepare tender to final draft for review

•    Standard of the tender document delivered by SM was poor

•    The document delivered by SM appeared to be cut and paste and the quality of the final draft was substandard

•    This resulted in NB and RG having to rework and rewrite and re-price the tender over a weekend

•    NB acknowledged that SM’s performance make him feel very frustrated so he slept on the issue but now felt he needed to address this

•    This QRail tender covered the fundamentals of the Bid Manager/Senior Estimator role which is;

•    Read and understand a tender document

•    Create an innovative proposition for the client

•    Work with key stakeholders to understand and develop the tender response

•    Write the words expressing and articulating the Vemco proposition for the client

•    Developing price of the project

•    Provide a draft document for Senior Managers to review, finalise and sign off

•    SM did not deliver a quality document to the NB and RG. The final draft was basic and largely administrative in nature and this is not what SM was employed to do

•    On reflection it is noted that tenders that SM works on are largely developed and updated by others. Examples Include;

•    Ergon – Jeff Filip developed the majority of the wording for this tender

•    Design ISP – NB developed the majority wording for this tender

•    It appears that there is a skills gap between what is required by the role and SM skill level. It appears from these examples that SM

•    Fundamentally doesn’t understand our business proposition and struggles to articulate what needs to be put in tenders.

•    Grammar and comprehension are sound however understanding the business proposition and articulating this is low which results in SM cutting/pasting together documents, not answering questions specifically and definitively with real examples

•    SM is slow on work and his output is low – example ASP accreditation – December to March – not done

•    SM is not proactive, does not show initiative and doesn’t engage others when needed this is what SM stated he offered the Bid Manager/Senior Estimator role

•    Other EGM’s have expressed their frustration with SM’s perceived inability to listen and take on board their comments

•    There has been a breakdown in trust between NB and SM

•    Lack of trust on NB part – cannot trust his work so will need to review everything

•    SM recording elements of day

•    NB feels that Stephen does not respond to his requests in a timely manner/does not follow up things that Stephen does not believe in

•    NB feels he has tried different styles to manage SM to deliver to no effect and it appears that SM does not believe he contributes to issues raised

•    Nigel notes that he expects his team members to be proactive and self-managing and he should not have to repeatedly ask for things to be done/follow up

•    As Bid Manager/Senior Estimator it is Stephen’s responsibility to source/suggest innovation in his role. To date he has not shown this initiative

175    The document in which the notes appear has a number of further parts, which on the evidence were not completed until after the 12 March meeting. I return to those parts below.

176    In his oral evidence, Mr Milardovic concentrated on the complaints he said he made to Mr Barry during this meeting.

177    The relevant part of his oral evidence was as follows:

I raised the incident where he said he had been kicking me like a dog. I raised the incident where – I said he has been undermining me in public and in private. I said he helps everybody except me, actively goes out of his way to assist other members of his team and not me. And he has been treating me callously. I brought up the, “I don’t give a stuff about your situation,” comment.

And what was the response from Mr Barry?---Mr Barry – he didn’t – I don’t believe he responded. He just sort of guffawed and rolled his eyes. And they never – no one ever addressed any one of my specific allegations.

What was Ms Finnigan’s response to those specific – what did she say? Did she say anything?---No, Finnigan actually said, “I’m not going to take notes any more.”

In the meeting?---Yes.

And at the conclusion of the meeting, what was agreed, to the best of your recollection?---That Nigel Barry would assist me in – I can’t remember the – but re-establishing or establishing a new set of performance measures or assist me to get where he thinks I should be.

And how is he going to assist you?---He was going to – we were going to sit and talk about Pronamics, specifically, and - - -

That’s the software?---That’s the software. And he was going to find more time to discuss matters with me, talk to me specifically about it.

And what was agreed as far as – was there a timeline, anything like that?---No, I don’t think so.

Okay. And after that meeting, what happened in relation to that agreement, those agreed things?---Nothing.

178    I do not accept Mr Milardovic’s evidence that Mr Barry “guffawed and rolled his eyes” at the meeting in response to Mr Milardovic’s complaints. Having observed Mr Barry in the witness box I do not accept this is the kind of reaction he is likely to have had in the circumstances of a performance meeting with a senior employee. I find Mr Milardovic, whether consciously or unconsciously, attributes reactions, emotions and even statements to people which do not always reflect the reality of what occurred in a given situation.

179    The applicant was not issued with a warning in relation to his employment at the 12 March meeting.

180    As the applicant submitted, after the 12 March meeting there is an entry in Ms Finnigan’s diary on 20 March 2014 which states “Chase Nigel re SM document” and later on 25 March 2014 and again on 3 April 2014 “Chase Nigel re SM PIP”. Ms Finnigan accepted in cross-examination that, as the meeting notes contemplated, she had drafted a performance improvement plan for Mr Milardovic and submitted it to Mr Barry, and despite Ms Finnigan chasing Mr Barry for his approval, it appears no performance improvement plan was ever finalised, and certainly not given to or discussed with Mr Milardovic. It appears other events overtook this occurring.

181    Ms Finnigan was unable to say with any clarity when she completed the notes of the 12 March meeting which appear in the rest of the document tendered in evidence. The precise timing is immaterial, but it appears from a date on the document to have been before 21 April 2014. Although her recollection about the timing is poor, Ms Finnigan was clear in her evidence that it was she who prepared the notes of the meeting recording what Mr Milardovic and Mr Barry said. She was not seriously challenged about those notes. I accept they reflect in substance what was said, although I also accept Mr Milardovic’s evidence that there may have been a point where Ms Finnigan stopped taking notes, so that the notes may not be a complete record of what was said at the meeting.

182    I have set out at [155] above the part of the notes recording an explanation by Mr Milardovic in the face of the criticism of his performance, as well as complaints by Mr Milardovic about how Mr Barry treated him. The notes record Mr Barry asking if Mr Milardovic enjoyed his role and wanted to stay in it, to which Mr Milardovic is recorded as saying that he did. It is not necessary to set out all of the remainder of the notes taken by Ms Finnigan.

183    It appears from this part of the document that there was to be a further review of Mr Milardovic’s performance on about 21 April 2014. At the bottom of the document under the heading “Warning to be issued” a box next to the word “written” is ticked. There was no evidence whether the tick was placed there by Mr Barry or Ms Finnigan. The following page has an entry stating the written warning is to be issued specifically over the Queensland Rail tender, which was not to the “required standard expected of the role”. I accept Mr Milardovic’s evidence that there was no warning communicated to him on 12 March 2014.

The 7 May 2014 meeting and its aftermath

184    The next critical event involving the applicant occurred on 7 May 2014, when he was called to a meeting with Mr Barry and Ms Finnigan. Before I turn to the details of that meeting, there are some other facts and circumstances during the first half of 2014 which should be addressed.

185    Mr Barry’s evidence, which I accept, was that some time in early to mid-February 2014 Vemco employed a gentleman called Jason Freund. As I have set out at [158] above, in January 2014, employees had been informed about a proposed restructure of the bid management section of Vemco, consequent upon its sale. Mr Freund was appointed as a manager within the business development team, and became the person to whom Mr Milardovic reported, instead of Mr Barry. On Mr Barry’s evidence, this change in reporting lines appeared to have happened either shortly prior to or after the 12 March meeting, although his evidence was somewhat vague on the date. Mr Milardovic gave evidence that he was never formally notified about Mr Freund, but that he understood Mr Freund became “an additional layer in between” the business development team, of which Mr Milardovic was a member, and Mr Barry.

186    It is clear from an email exchange on 7 April 2014 between Mr Freund and another Vemco employee, which was copied to Mr Barry, that no steps had been taken to communicate with Mr Milardovic after the 12 March meeting about any performance review planning, nor indeed about his role going forward. Mr Freund said in that email:

I had a quick chat with Michelle on Friday regarding recruitment support and she has asked me to work with you.

Attached is the agreed Group BD & Sales structure. Regarding recruitment the two key roles we need to focus on as a priority are the Bid Manager/Bid Writer and the Estimator. I have put some info together regarding the PD’s and I will give you a call later this morning to discuss the process.

The creation of these two roles directly impacts Stephen Milardovic who currently sits in a Bid Manager/Estimator role. Nigel mentioned on Friday afternoon that he still needs to provide Stephen with a formal letter regarding the performance discussion they had a couple of weeks back. This may be a good time to also talk Stephen through the changes. Effectively his current role does not exist going forward and he is welcome to apply for either or both of the newly created roles. We need to be clear that we will not be making any direct appointments and the roles will be advertised internally and externally.

Thanks, I will talk to you soon.

187    The fact that there was already some internal planning around the splitting of Mr Milardovic’s position into two new positions is consistent with the evidence given by Ms Finnigan. I find that although this planning was occurring, no one at Vemco, and certainly neither Mr Barry nor Ms Finnigan, took any steps to communicate with Mr Milardovic about this until the meeting of 7 May 2014.

188    In cross-examination, Mr Barry explained that he considered the split of Mr Milardovic’s position into two roles had been made “fairly clear” at the January meeting. That may be so, but there was still obviously a need to speak directly to the person whose role was to be affected: namely, Mr Milardovic. Mr Barry admitted in cross-examination that the decision to split the two roles was made by the time of Mr Freund’s email, but accepted Mr Milardovic had not been informed. I find there was a general reluctance to raise this issue with Mr Milardovic, because of the ongoing interpersonal difficulties between Mr Milardovic and Mr Barry, and between Mr Milardovic and other employees, as well as because of Mr Milardovic’s tendency to react with heightened anxiety and in other negative ways to matters he saw as affecting him. In other words, I find that Mr Barry, Ms Finnigan and the other employees at Vemco with some responsibility for implementing this change held off as long as they could before raising the change directly with Mr Milardovic.

189    At the 7 May 2014 meeting, Mr Milardovic was given a copy of the full document prepared by Ms Finnigan after the 12 March meeting. He was told his position would become redundant, and that there would be two new roles created: a Bid Manager role and an Estimator role. Mr Milardovic was told he could apply for either role, but each would also be advertised and if he was not successful in being appointed to one of the two roles, then he would be given a redundancy payment.

190    In his submissions, the applicant described the two new roles as “smaller” roles. Mr Barry dealt with this in cross-examination:

They weren’t smaller roles. We were expanding the business, and those roles were larger than ever.

191    I accept that evidence. The whole reason for the split of the roles was the expansion of this aspect of Vemco’s business. There is no evidence the roles were “smaller” (and, by inference, less important).

192    Mr Milardovic’s own evidence about this meeting was sketchy. He did not have a clear memory for much of what was said. I find he tended to downplay any impression that anything much was said. I doubt that to be the case. This was the occasion on which he was formally informed that his position had been made redundant. I find that was explained to him. He was, belatedly, given the completed document from the 12 March 2014 meeting. I accept his evidence that this was the first time he understood, or indeed was told, that his performance issues had resulted in his employer giving him a warning. I cannot see how any such warning can be considered to have been given until it was communicated to Mr Milardovic at this meeting on 7 May 2014. The respondents did not appear seriously to contend otherwise.

193    The way Ms Finnigan explained what was said in the meeting was as follows:

Mr Barry explained that he was making some changes within the BD team. The BD team was focusing on a growth strategy and, as such, they felt that they needed to put some more resource into the group, and that the applicant’s roles would be split into two … The applicant was welcome to apply for either role and say which role he would like to take up. And should he not take up either role, then the option was redundancy.

194    There are no entries in the applicant’s diary in or around 7 May 2014 in evidence before this Court.

195    In deciding to make the applicant’s position as Bid Manager/Senior Estimator redundant, and in offering the applicant only the opportunity to apply through a competitive process for either of the two new roles of Bid Manager and Estimator which were to be created, the applicant was clearly put at a disadvantage. However he does not rely on this conduct as adverse action in his statement of claim. Accordingly I do not consider it in that context any further.

196    It is clear from Mr Barry’s evidence that he, together with other responsible senior management within Vemco, considered the restructure of the bid management section of Vemco to be necessary for the development of that arm of the business of the Vemco Group. I accept his evidence that he had formed the view, having seen how hard Mr Milardovic was working, that it was better to split the role into two roles and have two employees perform the tasks. He considered the roles would grow and expand, as it was clearly hoped Vemco’s tender business also would. Mr Milardovic’s position was made redundant because Mr Barry and others within Vemco considered that necessary to serve the business interests of Vemco.

197    As to why Mr Milardovic was not simply appointed to one of the two roles, Mr Barry was neither examined nor cross-examined at any length about his reasons for this. He denied it was because Mr Milardovic had made complaints and I accept this evidence. In that sense there is little direct evidence. Mr Milardovic could only give evidence about his own speculation on this matter. I find, on the balance of probabilities, there were likely to have been several reasons for Mr Barry’s decision not to immediately appoint Mr Milardovic to one of the two newly created roles. Some were legitimate business and commercial considerations, such as wishing to ensure the widest and best pool of candidates. I infer that Mr Barry did also consider this was a way to allow Mr Milardovic to leave Vemco’s employment with a redundancy payment in a way which was less controversial than might otherwise have been the case had Mr Milardovic’s performance issues not been satisfactorily resolved. Mr Barry seemed to find Mr Milardovic a difficult person to work with, and found his personality a frustrating one. Again, I find this is likely to have been a factor in Mr Barry’s mind when he considered how to fill the two new roles. While those might be difficult facts for Mr Milardovic to accept, in my opinion they came through very clearly in the evidence of all three witnesses, but especially Mr Milardovic and Mr Barry. Mr Milardovic’s tensions with many Vemco employees are apparent in his own diary entries, with considerable frequency. Of course, from Mr Milardovic’s perspective, the fault always lay elsewhere than with him, and that is not a matter which needs any determination from the Court. What is relevant about Mr Milardovic’s diary entries is that they disclose ongoing tensions between him and other Vemco employees, tensions that no doubt made their way to Mr Barry on some occasions at least, and clearly would have made for a difficult and unhappy workplace on many occasions. I find it is likely Mr Barry had those workplace issues in mind when he chose to throw the two roles open for competitive internal and external appointment. However, none of those reasons is a prohibited reason, unpalatable as they might nevertheless be to Mr Milardovic. In any event, as I have noted, Mr Milardovic does not challenge this decision-making process about creating two new roles and making his position redundant as unlawful adverse action.

The applicant goes on sick leave: 13 May 2014

198    After the 7 May 2014 meeting, there were two further incidents before, on 13 May 2014, Mr Milardovic took sick leave and never returned to the workplace.

199    The first was what the applicant characterises as a further incident of bullying and harassment by Mr Barry. He alleges that on 8 May 2014, he was required to work excessive hours (until 3 am) on what he described as “the John Holland Rail Network bid”. I do not need to make any factual findings about this incident, as it is not one of the pieces of conduct upon which the applicant relies in his statement of claim as adverse action. It was not identified as an example of exclusion from training and support. I deal separately with Mr Milardovic’s allegations about being excluded from training and support below.

200    Then, on 12 May 2014, Vemco’s new company structure was publicly announced. As Mr Barry had foreshadowed to Mr Milardovic on 7 May 2014, the structure had two roles of Bid Manager and Senior Estimator replacing the single role occupied by Mr Milardovic.

201    From 13 May 2014 the applicant took sick leave. In his evidence he described himself as having had a “mental breakdown”. There are no medical certificates or other medical evidence from the time the applicant took sick leave which are in evidence. The only evidence about the nature of his condition, other than the description given by the applicant, is contained in his WorkCover application, and later in Dr Woods’ report. This is no doubt part of the explanation why Vemco sought to have Mr Milardovic medically examined.

The period after Mr Milardovic went on sick leave

202    The relevance of this period is twofold. The period away from work is relevant to the claims for compensation made by the applicant, although my conclusions on his liability allegations (other than his redundancy entitlements under s 119) mean it would be artificial and impracticable to determine the compensation issue. Secondly, Mr Milardovic also alleges in the statement of claim that on or about 28 May 2014 the first respondent, through Ms Finnigan, “tried to stop the Applicant submitting a WorkCover claim, but the Applicant refused”. Mr Milardovic’s WorkCover claim is said to form part of the reason for the third and fourth alleged adverse actions, which I deal with below.

203    The applicant’s evidence was that he posted his WorkCover claim on 23 May 2014. In that claim he identified his injury and the cause in the following way:

What is your injury/condition, and which parts of your body are affected?

Severe anxiety, depression & stress

Overall/mental health

What happened and how were you injured?

Workplace bullying:

Inappropriate comments

“Stephen is giving up sex to get this finished”

Publicly humiliated

Job security threats

Exclusion from meetings

204    Ms Finnigan’s evidence was that she had not received the WorkCover claim by 26 May 2014, when she sent an email to the applicant. That email concerned the closing dates for applications for the two new roles of Bid Manager and Senior Estimator. In a letter attached to the email, Ms Finnigan inquired whether Mr Milardovic intended to apply for either of the positions. Her letter referred to Mr Milardovic having been provided with position descriptions, which Mr Milardovic said in evidence he never received. The letter also stated that the “performance management process” which was underway would continue to be discussed and reviewed within the role parameters (apparently, on the assumption Mr Milardovic would be successful in being appointed to one of the two new roles).

205    Ms Finnigan gave evidence that she had called the applicant twice: once on 20 May 2014 leaving a message and again on 28 May 2014, when she had a telephone conversation with him. The latter was in response to the WorkCover claim, which Ms Finnigan acknowledged she had by then received. According to Ms Finnigan’s signature and date on the WorkCover claim form itself, she received the applicant’s WorkCover claim on 28 May 2014. However, she denied that in the telephone conversation she tried to persuade Mr Milardovic to withdraw his WorkCover claim.

206    I accept her evidence. Mr Milardovic gave little direct evidence of what he alleged Ms Finnigan said to him during this telephone conversation that constituted an attempt to persuade him not to continue with a WorkCover claim. His evidence was that she said:

“I’ve received your claim and – but Stephen, you don’t really want to submit it, do you? You know, come in and talk to us.” I said – I said, “No, I – I’m going to submit it.” And she said, “But Stephen, do you realise it’s going to take 28 plus – plus 10 days before you see any – any kind of money.” I said, “I don’t care. I – I’m going to submit it.”

207    I do not find Mr Milardovic’s recollection of what he asserts Ms Finnigan said to be reliable. It would be a very serious course of conduct for Ms Finnigan, in her capacity as a human resources manager, to undertake: namely to suggest to an employee who considered himself injured at work that he should not file a WorkCover claim. There was nothing in Ms Finnigan’s evidence which suggested to me she was likely to have made such a suggestion. I am not persuaded on the evidence that she did so. There is therefore no factual basis for the applicant’s claim that he was subject to adverse action because he exercised a workplace right recognised under s 341(1)(a) of the Fair Work Act, namely the right to the benefit of a workplace law, being the Accident Compensation Act.

208    On 2 June 2014 Ms Finnigan sent Mr Milardovic an email attaching the position descriptions for the two roles of Bid Manager and Senior Estimator and saying:

Sorry to hear you are still feeling poorly.

Amanda did send these to you previously however I have attached the PD’s again for your consideration.

How long do you think you would need to review the PD’s and advise us of your interest in which role? If I said by the end of the week 8/6/14 would that be OK?

Again as per our discussion last week, looking to keep the lines of communication open so we can work together on your return to work plan. I will give you a ring this week to discuss further as the last time we spoke you were driving. Does a particular day/time suit you to talk?

If there is anything else we can do to assist, don’t hesitate to let us know.

209    Mr Barry agreed in cross-examination that Vemco filled both of the new roles of Bid Manager and Senior Estimator in July and August 2014. He added that subsequently one of those roles became vacant again and Mr Milardovic could have been appointed to it. The role that became vacant again was that of Bid Manager. Vemco had initially appointed Mr Andrew Otimi to that role. Mr Barry’s evidence was that Mr Otimi was subsequently headhunted to a larger and more exciting role with more pay for another company. Mr Barry’s evidence was that Vemco only had a contractor in that role and Mr Milardovic could have applied for that role at any time before his termination in November 2014. Mr Barry’s evidence was that Mr Milardovic had skills which would have still been valuable in Vemco’s business.

210    I note Mr Barry did not give evidence that Vemco was ready and willing to appoint Mr Milardovic to that role if he expressed interest. Mr Barry’s evidence was more restricted than that: he simply said that “there are still roles there”.

211    In cross-examination further allegations were made about the suggestion by Vemco (through Ms Finnigan) that Mr Milardovic should attend an independent medical examination, after he had been away on sick leave for some time. This is not an allegation which is contained in the pleadings as conduct constituting adverse action, or any other breach of the Fair Work Act, or the law. I do not consider those allegations any further.

Termination of the applicant’s employment

212    The applicant’s employment was terminated by correspondence to the applicant from Ms Finnigan on 11 November 2014. From 13 May 2014 until this point, the evidence is that Mr Milardovic had been on leave without pay, having previously exhausted all his other kinds of paid leave.

213    Between May 2014 and November 2014, there was a series of letters exchanged between Mr Milardovic and Vemco, most of which concerned his refusal to attend the independent medical examination which Vemco wished him to attend. Mr Milardovic’s position to Vemco was that he had “a diagnosis and a prognosis”, and that there was no lawful basis for Vemco to require him to attend a medical examination with a practitioner of Vemco’s choosing, when he had already provided medical certificates and attended for assessment by a psychiatrist appointed by the WorkCover insurer.

214    Correspondence from Vemco on 31 October 2014 included the following, parts of which were extracted at [117] above and which I now set out in full:

Following my previous letter dated 13th October 2014, I am writing to you again regarding your current illness and continued absence.

As noted on numerous occasions we have been committed to your safe and successful return to work for your normal working hours in the role of Bid Manager/Senior Estimator.

To assist this process we booked an independent medical for you on the 29th October 2014, which you did not attend as directed.

As we have pointed out previously, we do not have enough information regarding your current and future prognosis to enable us to plan the workload or ongoing management of the Business Development team.

It was noted in my previous letter that failure to attend the independent medical may lead to the Company having to consider other options available to it, including disciplinary procedures.

Further to this it was noted in the same letter that if you decide not to attend the booked medical, we would have no option but to consider the ending of your employment with us given that the most recent medical advice available to us indicates, as you have stated previously, that you are unable to fulfil the inherent requirements of the role.

The Company is now faced with a situation where you have been on leave without pay since 13th May 2014, where we have no information or access to information as to your medical status and fitness to return to work (or prognosis for fitness to return to work), you have failed to comply with a reasonable and lawful direction to attend an independent medical examination and we are no longer able to extend leave without pay indefinitely.

To ensure we take all steps to be fair and reasonable to you in this situation I ask that you respond to this letter in writing outlining any reasons/matters you think we should consider before we make a decision regarding your ongoing employment with us. Can you please respond to me by COB Friday 7th November 2014.

The information you present will be considered before making the decision.

215    The way Mr Barry perceived Mr Milardovic’s attitude to the new roles is reflected in the following evidence he gave in cross-examination:

My evidence was that I felt Steve had abandoned his post. He didn’t seem to be interested in a role. He didn’t seem to want to engage in a return to work process, which we were keen for him to do, which is our obligation to assist him with. We – we couldn’t get a response around those things.

216    The termination letter on 11 November 2014 is set out at [119] above.

First alleged adverse action: excluding the applicant from meetings, training and support

217    In substance, this allegation was a continuation of what the applicant alleged had been occurring to him prior to his complaints in February and March 2014.

218    The applicant contended in his statement of claim that Mr Barry subsequently excluded the applicant from training in its new Customer Relationship Management software, while all other employees in the business development team attended this training, including a casual employee Mr Russell Warner. He contended that Mr Barry also excluded the applicant from the Vemco stand at the Energy Networks exhibition, when such attendance would have assisted the applicant in the performance of his role. Further, he said Mr Barry also refused to meet with the applicant to discuss urgent work matters, although he met with other employees on the same day without appointment. He contended Mr Barry required him to assist the new bid manager, Mr Warner, who had been engaged as a casual employee for a tender, although the applicant’s role was that of senior estimator/bid manager. He contended Mr Barry provided the new bid manager with specialist technical support, although the applicant was never allocated specific technical assistance. During this period Mr Milardovic stated Mr Barry barely spoke to him.

219    Mr Milardovic gave the following evidence about being asked to assist Mr Warner:

I got a phone call out of the blue from a guy called Jason Freund, I think is his surname – Freund – and he was the new executive general manager of sales. And he told me, “You will be assisting the new bid manager with the John – with a particular tender.” And I was a bit shocked because I didn’t know that there was a new bid manager and I thought I was the bid manager.

220    His diary entry for 29 April 2014 refers to this incident:

Also today, something even more extraordinary. Jason (Freund) called and stated matter-of-factly that there’s a new Bid Manager and I am to assist him with a new tender.

{WHAT !?!?}

“Hasn’t Nigel told you?”

“No.”

I have never liked Jason. And it’s plain that the feeling is reciprocal. He doesn’t elaborate or explain. And abruptly ends the call.

The end is obviously near. This explains Nigel’s earlier behaviour.

221    The respondents disputed these contentions at a factual and evidentiary level. Mr Barry’s evidence about the role of Mr Warner should be accepted. There is no evidence he was engaged by the first respondent as one of the two new employees to fill the split position formerly occupied by Mr Milardovic, or that he was otherwise employed as a bid manager. Mr Barry said he was brought in for a specific tender and to assist a specific client (John Holland), as a “subject matter expert” and on a casual basis.

222    Mr Barry gave the following evidence in cross-examination:

And in April 2014 – I’ve already asked you about various – you didn’t – I mean, it’s his evidence you didn’t – and you agreed – that you didn’t allow him to take on the customer relationship management software training; you’ve agreed with that; you didn’t allow him to do that?---There was no need - - -

You gave a reason, but you didn’t allow it?---No. There was no need for him to do it, and he - - -

And - - -?--- - - - didn’t do the training.

- - - you also didn’t allow him to attend an Energy Networks exhibition. Once again, you gave a reason, but you didn’t allow it; that’s correct, isn’t it?---That’s correct. Yes.

…

But on 29 April Stephen was told to assist Russell Warner as he was the – the person leading the bid – bid manager for the John Holland bid; that’s correct, isn’t it?---No. He was – he was a subject matter expert who had worked on – this contractor, John Holland, was letting out, and we employed him on a casual basis to assist with the – with the – the expertise – or the subject matter expertise that we would need to submit the bid.

But he led the bid, didn’t he?---No. Jason led the bid.

Jason led the bid?---Yes.

And – but certainly Stephen wasn’t the bid manager for that job, was he?---The John Holland tender. No. He wasn’t.

And can you tell the Court why Russell Warner did the CRM software training?---Russell Warner did the CRM software training, because he was subsequently employed by Vemco in a BD role in Queensland.

But at the time, you’ve just told the court he was a casual, and he was only just coming on to – to do this one bid; so why would you train somebody who’s only coming on to do one bid?---Should I take you back? Russell Warner was interviewed for a sales manager business development role in Queensland several weeks prior to the John Holland tender coming out. During that interview, we understood that he had – he had worked in this industry before. We elected not to appoint him at the time of the interview. And because we knew his capabilities, we inquired as to his availability, some weeks later, as to whether he could assist us as a subject matter expert. We put him on a contract for two or three weeks. After that contract was complete, about a week or two later, we recruited him as a sales manager in – or sorry, BD manager in Queensland, and he undertook the training.

223    In respect of his alleged exclusion from the Energy Networks exhibition, on Mr Milardovic’s own evidence he made no attempt to discuss with Mr Barry why he considered he should be able to attend. In his examination-in-chief, Mr Milardovic’s evidence was as follows:

And can you tell the court what you recollect of the Vemco – the Energy Networks exhibition in April 2014?---Yes. Sumita created the attendance list, and I noticed my name wasn’t on it. And I asked her, you know, “Is there any chance of me going?”

And she said, “You will have to discuss it with Nigel.”

So what did you do?---I didn’t discuss it with Nigel.

So did you attend?---No, I didn’t attend.

224    I find that Mr Milardovic’s answers in cross-examination about this incident revealed, once again, how fixed his perspective was about Mr Barry by 2014:

And do you have any means of disagreeing with me that Mr Barry made the decision not to allow you to go, based upon the fact that he thought you weren’t needed to go?---I have many means of disagreeing, yes.

Can you say briefly what that evidence is?---Russell Warner the bid manager went, Sumita Koshy the personal assistant went.

And you thought, based on them going, that it was appropriate for you to go?---Russell Warner’s a bid manager. What – what – what am I?

I think it will be contested in this case that Russell Warner is a bid manager, but I understand your evidence. Mr Barry will give evidence that he considered it wasn’t necessary for you to go, and that was a business decision. Do you have anything - - -?---No. I - -

- - - further to say to that?---No. That’s – I don’t think his decision was based on business concerns.

225    Contrary to what Mr Milardovic appears determined to believe, I consider it likely and plausible that Mr Barry’s decision not to invite him to the Energy Networks exhibition was motivated by a range of business concerns. I accept the following evidence given by Mr Barry about the exhibition:

Well, this was a – this was a – a sales forum. He – where we meet customers, we have a trade show, a stand to man. It took the sales people who deal directly with the customers on a day-to-day basis, who they would know people at that show. Steve had previously indicated that he wasn’t that much interested in trade shows, and, to be honest, the work he does, or did, was – was tenders. It was writing bids and it was estimating. It wasn’t customer focused work.

226    Mr Milardovic gave the following evidence about Mr Barry’s alleged refusal to meet with him, despite speaking other employees without appointment:

And can you tell the Court what your interaction was like with Nigel Barry in that period of April 2014?---Very strained. He was – he was – even on occasion when I went to see him he would tell me he wasn’t available. He barely spoke to me. He would speak to everyone else in his team. He would chat to them and regularly talk to them, but he wasn’t doing any of that with me.

227    His diary entry for 29 April 2014 records:

Nigel is not even masking his contempt for me anymore. Today I went into his office to talk to him about the pending Powerlink tender. He told me that he was too busy.

I went back to my desk and sat there for a while, stunned. (Although why I should be startled by any of his behaviour, given what has already transpired, is perhaps something I should consider.)

Over the next 1 ½ hours, I then counted over 10 people who just popped into his office and proceeded to talk. Some of these people were even there just for a chat!

228    When challenged about his characterisation of this incident in cross-examination, Mr Milardovic responded:

I suggest that your immediate boss simply being too busy to see you is a fairly trivial complaint to make. Do you agree with that?---No, because that’s just one of many incidents. That was just one I happened to recall then, and he talked – he talked about the weather with about 10 other people.

Right?---Yes.

Are you aware – and please say if you aren’t - - -?---Yes.

- - - as to what his workload was on 29 April 2014?---I observed that, though he had

no time for me - - -

Yes?--- - - - I counted at least 10 people that went into his office and talked about the

weather, how he’s going, from the doorway of his office shouting into him, and he

had five to 10-minute conversations with those people. That’s what I recall.

I suggest to you that the evidence you’ve just given about that is mistaken, and that

Mr Barry was very busy on 29 April 2014. What do you say to that?---He may say

he’s busy, and I’m just telling you what I observed on that day.

229    On all accounts, the evidence is that this was a very busy period for staff at Vemco, around a time when a decision was made to split Mr Milardovic’s role into two separate positions to better manage the busy workload and when Mr Milardovic himself gave evidence he was sometimes working until the early hours of the morning.

230    Mr Barry’s evidence about 29 April 2014 was that:

That day was quite a busy day. I had had early meeting in the city with an international company; that same company then came out to the Vemco office. We had a meeting with about 10 people, and that includes some of our own people, and we had a demonstration. It was for about two hours on a system to do with Liedar and a mapping system, and then there was discussions after that. I was also preparing for the Energy Networks Trade Show that day and we had – there was – you know, as is always with work, there’s a myriad of interspersed issues and phone calls and other things to take, and we had a bid review for the John Holland tender that afternoon with Hugh Campbell, Bob Gierer, Steve and myself.

231    He accepted in cross-examination that he had refused to meet with the applicant on that day, stating “it’s just priorities”. I accept Mr Barry’s evidence that his refusal to meet with Mr Milardovic was simply a matter of prioritising the different demands on his time on a particularly busy day.

232    In my opinion none of the matters raised by the applicant demonstrates on the balance of probabilities that his position as a bid manager was altered to his prejudice. Rather, by this stage, and as clearly recorded in his contemporaneous diary entries, I find Mr Milardovic was convinced Mr Barry was looking for a way to get rid of him, and his perspective was skewed because of this conviction. What were otherwise regular interactions in a busy workplace (such as Mr Barry not being able to see Mr Milardovic when Mr Milardovic wanted to see Mr Barry) became blown out of proportion and filled with conspiracy theories. That Mr Milardovic was asked, or expected, to assist Mr Warner on some occasions is hardly surprising, and again on the evidence I cannot see how it was anything other than a regular part of bringing a person new to working in Vemco “up to speed”. No doubt Mr Milardovic resented having to provide such assistance when he felt his own position was precarious, but that does not lead to a conclusion that his position was altered to his prejudice. Further, I am not satisfied that Mr Milardovic being unable to attend some client or trade events was an alteration of his position to his prejudice. Rather, these were examples of commercial judgement calls made by Mr Barry in circumstances that did not affect the way Mr Milardovic performed his role in any real or substantive sense. Mr Milardovic’s assertions in evidence that attending such events could have enhanced his performance do not persuade me that was the fact. Nor, even if such a view might be taken, does the inability to attend such events necessarily constitute a “prejudice”.

233    As to the reasons for the conduct, Mr Barry explained during cross-examination on many occasions, about some of the bullying allegations, why he chose not to send Mr Milardovic to client events, or trade events. As the respondents correctly submitted, the precise detail of those bullying allegations are not material in the sense that they do not form part of the adverse action alleged by the applicant, which occurred after he first made complaints in 2014. However, it is convenient to set out my findings about some of those allegations as they confirm, in my opinion, a pattern in the way Mr Milardovic chose to view interactions with Mr Barry in the worst possible light.

234    When questioned about some of the alleged bullying, the reasons Mr Barry gave – relating to how he perceived the business needs of Vemco and different role of Mr Milardovic – were plausible and I accept they were genuine. Evidence was given, for example, about alleged bullying in the form of not inviting Mr Milardovic to the opening of a new depot at Dandenong in late 2012, shortly after the applicant had commenced in his role, and to Vemco’s annual golf day in 2013.

235    It was common ground, and I find, that in late 2012, the Vemco Group had an opening of a new depot at Dandenong. The opening included a demonstration of how particular elevated platform vehicles operated. The applicant asked Mr Barry if he could attend the opening, and Mr Barry did not allow him to attend. In evidence, Mr Barry made it clear he thought it unnecessary for the applicant to attend. In my opinion it is clear from the oral evidence that Mr Barry and Mr Milardovic had very different, and often conflicting, ideas of what Mr Milardovic’s role in the company was, and what he needed to be involved in to perform that role. Mr Barry also seemed, I find, to think that Mr Milardovic’s ambition to become a general manager and expand his role in Vemco, as well as setting his own working hours were not tendencies Mr Barry wished to encourage. That may well have led, I find, to Mr Barry taking what appeared to be a more hard-line stance in respect of Mr Milardovic’s requests to do things that were not then a core aspect of his role as bid manager.

236    In relation to this particular occasion, Mr Barry’s view about the parameters of the applicant’s role as a bid manager informed his decision that the applicant’s request should be denied. Although in cross-examination he said he could not recall whether the applicant had asked to attend, it was clear from his evidence that he did not consider that the applicant needed any exposure to plant and equipment. That was a judgement call for Mr Barry to make, as the director of sales and marketing, and the applicant’s direct report. My impression of the applicant is that if he considered he needed to do something for his role, he expected to be able to do it, and he expected the fact that he considered he should be able to should be determinative. That was an unreasonable perspective for an employee in his position, and there is no basis in his contract of employment for such a perspective.

237    Mr Milardovic also complained that he was not invited to the annual Vemco golf day in 2013, which Vemco organised for its clients. He maintained attending the golf day would have enhanced his client engagement, but he also alleged that he was singled out for non-attendance. Mr Barry’s evidence was that he attempted to match the Vemco employees he invited with the clients attending the golf day and, implicitly, seemed to be saying he did not consider the applicant would fit in. Having seen the applicant in evidence, and having read a considerable amount of his correspondence with Mr Barry and other Vemco employees, in my opinion it was reasonably open to Mr Barry to form that view. The applicant presents, I find, as something of a difficult personality. Golf days with clients are inherently social occasions and I see nothing unreasonable in a person in Mr Barry’s position being particular about the employees he considered would be the best fit for such a social event. I consider similar reasons to have informed Mr Barry’s decision not to send Mr Milardovic to the Energy Networks exhibition. These interpersonal frictions between Mr Barry and Mr Milardovic, though frustrating and difficult for Mr Milardovic to accept, do not advance Mr Milardovic’s claims that he was excluded from attending the exhibition for a prohibited reason (namely, exercising the workplace right to complain).

Second alleged adverse action: failing to provide revised KPIs and additional training after the performance review meeting of 12 March 2014

238    It was substantially common ground that there was no review of Mr Milardovic’s KPIs after this meeting. No additional training was given to him. Mr Barry’s evidence was that the obligation to review and reset the KPIs was a mutual one.

239    While it may have been reasonable to expect some co-operation from Mr Milardovic, I accept the applicant’s submissions that this was the employer’s obligation. So much is recorded in the employment contract, which records as one of Vemco’s “Duties and Obligations” at cl 3(b):

“The Company”, where possible shall provide you with:

…

3.    Further training as identified by the “the Company” [sic] from time to time.

240    It was clear that Mr Barry was concerned at an overall level about Mr Milardovic’s performance and that this concern was best demonstrated by what had happened during the Queensland Rail tender. There was no real effort made by Mr Barry after the meeting to follow through on performance assistance for Mr Milardovic, nor to follow through with changes and modifications that had been discussed, nor to see what could be done to address what Mr Milardovic perceived as Mr Barry’s highly antagonistic personal attitude to him.

241    Instead, matters went into abeyance. That was because, I find, of the proposed restructure. On 12 March 2014, Mr Barry knew, I find, that shortly thereafter the splitting of Mr Milardovic’s position into two new roles would occur and Mr Milardovic would either be successful in applying for one of those new roles, or he would not. If he were appointed into one of the new roles, it seems likely, I find, that Mr Barry envisaged there would be a fresh start made by all, and the current difficulties would be put behind. If he were not successful, then he would leave the employment of Vemco. Either way, I find Mr Barry had little impetus to do what he had foreshadowed to Mr Milardovic by way of assisting him to improve his performance in his current role.

242    Thus, there was, in my opinion, a prejudice to Mr Milardovic’s position in Mr Barry’s and Ms Finnigan’s conduct on behalf of the first respondent. Ms Finnigan’s conduct was less significant because she needed Mr Barry’s approval for whatever was done. However, there was a failure to follow through on, and implement, the performance assistance that was discussed at the 12 March 2014 meeting. Mr Milardovic was confronted with allegations that his performance was unsatisfactory, and he also raised his concerns about the way he was being treated. During the meeting, agreement was reached on how those issues might be addressed. That did not occur. Mr Milardovic was left to continue to fend for himself in the way he performed the role, although he was now aware that his manager, or the person ultimately with the power to terminate his employment, was dissatisfied with him but was not assisting him to improve. That is a prejudice to his position in his employment.

243    Mr Barry’s conduct was not, however, undertaken for a prohibited reason. It was not because Mr Milardovic complained that Mr Barry did nothing. He did nothing because of the proposed restructure and the changes that would bring to Mr Milardovic’s role. The applicant’s allegations cannot be upheld. In my opinion, the respondents have discharged their onus of proving that the conduct by Mr Barry (and Ms Finnigan) on behalf of the first respondent was not undertaken because Mr Milardovic had made complaints about Mr Barry.

Third adverse action: terminating the applicant’s employment

244    There was no dispute that the termination of the applicant’s employment constituted adverse action within s 342 of the Fair Work Act. The live issue was the reason for that termination.

245    In oral evidence Mr Barry gave the following evidence about the reason for the termination of Mr Milardovic’s employment:

And did you have a discussion with [Ms Finnigan] about Mr Milardovic in November 2014?---November 2014. Yes. Yes, I did.

If you can tell your Honour about what that discussion concerned?---Well, it was a pretty awkward discussion, because Stephen had unfortunately had gone off on leave in the May, and despite our attempts to try and get him involved in a return to work scenario, we had been unable to do that. We had – the discussion really was – it was put to me by Michelle that we had worked through a myriad of processes and we had got to the end of line and we couldn’t – we couldn’t seem to engage with Steve – encourage to come back to work. And essentially I took the view that he had abandoned his post. He had not replied to our – our questions about which job he would like to bid for, if any. He hadn’t attended the IME so we couldn’t gain an understanding of what – of what we needed to do to assist him to get back to work. And so from the information that we – we had been able to elicit and, probably more, we hadn’t be able to elicit, I took the view that – that he actually didn’t want to work with us, and he had abandoned his post. So I agreed to – to initial and sign the - - -

What - - -?---Well, I agreed for Michelle to sign the letter.

…

Mr Barry, what was your reason, or were your reasons, for deciding to terminate Mr Milardovic’s employment?---It was as recommended by Michelle on the basis that we – we didn’t believe there was an interest in the jobs that we have on offer, or he had any desire to come back to Vemco that we decided to – to make the termination.

246    Ms Finnigan gave the following evidence-in-chief about her discussion with Mr Barry on that issue:

And can you just recount to her Honour what the discussion with Mr Barry was on that date before 11 November 2014?---I discussed with Mr Barry the status of where things were at. So at that point Stephen had been off work for six months, without pay. The WorkCover claim was obviously – there was no WorkCover claim at that point. He – he wasn’t cooperating with us. The letters, and responses I was receiving, were unhelpful, and uncooperative. He hadn’t spoken to us about what he would like to do regarding his roles, or made a decision there. And he hadn’t attended the IME, so at that point I had an employee that was effectively hanging out there for a period of six months.

And how long did that discussion with Mr Barry take?---It took – took some time. I had to work through those elements with Mr Barry before he could make a decision.

…

What were your reasons for recommending to Mr Barry that Mr Milardovic’s employment be terminated?---It was the sum of all the parts, but there wasn’t any cooperation, on behalf of the applicant, with us to – to move forward and return him to work in some capacity, or resolve the matter. So the overall reason was really about non-cooperation.

247    In cross-examination, Ms Finnigan described the reason for the termination of Mr Milardovic’s employment in the following terms:

There was no cooperation on the part of Stephen to work with us to resolve the matter.

248    The “matter” to which Ms Finnigan referred appeared to be a return-to-work plan for Mr Milardovic, involving (from the respondents’ perspective) an independent medical examination.

249    In cross-examination, it was pointed out to Ms Finnigan that whereas in the termination letter the first respondent stated that Mr Milardovic’s employment was being terminated because he could not carry out the inherent requirements of his position, in fact as of 11 November 2014 there was no position of bid manager and senior estimator: that role had been abolished and two new roles created, neither of which Mr Milardovic had applied for. Ms Finnigan agreed about the factual propositions but denied the statement was “false”. Instead she maintained that:

My focus at the time was to work with Stephen to return him to our business in some capacity.

250    In his statement of claim, the applicant alleges his employment was terminated for the prohibited reasons that he had brought a WorkCover claim and he had complained about workplace bullying.

251    The applicant made no claim that his employment was terminated because he had a disability, or was ill. Rather, he appeared to contend that it was the fact of making of a WorkCover claim and complaints relying on bullying and harassment which was the reason his employment was terminated.

252    The respondents have discharged their burden of proving that Mr Milardovic’s employment was not terminated in November 2014 because he had complained of workplace bullying from Mr Barry, or because he had made a WorkCover claim. In my opinion Mr Barry’s evidence as set out at [245] above reflects an accurate picture of his state of mind. The same is true so far as Ms Finnigan’s evidence set out at [246] and [247] is concerned. Her evidence is relevant because she was the person making recommendations to Mr Barry about what to do, and his evidence is that he accepted her advice.

253    This evidence points to the real reason for the termination of Mr Milardovic’s employment being that his role had been made redundant, he had not applied for either of the two new roles created out of his old role and he was not co-operating (as Mr Barry and Ms Finnigan saw it) in any return-to-work plans. It seems to me Mr Barry considered Mr Milardovic showed no interest in continuing to work for Vemco, hence his turn of phrase in evidence “abandoned his post”. At least by November 2014, although not at all times beforehand, I find Mr Barry proceeded on the basis that had Mr Milardovic shown sufficient interest and motivation, Mr Barry would have considered appointing him to one of those positions. Not that Mr Barry ever told Mr Milardovic that, but for present purposes that is a less critical fact than Mr Barry’s approach.

Fourth adverse action: failure to pay redundancy or termination notice payments.

254    The applicant also alleges that the first respondent failed to pay him his redundancy entitlements and his termination notice pay, and submits this constitutes adverse action as defined in s 342(1), Item 1(c) of the Fair Work Act. These failures are also said to be a breach of the terms of his employment agreement with the first respondent. He seeks payment of his redundancy entitlements under s 119 of the Fair Work Act and payment of his notice of termination entitlement under s 117 of the Fair Work Act.

Notice of termination pay

255    The applicant did not lead any evidence of the failure to make the notice of termination payment, nor did he cross-examine either Mr Barry or (more appropriately) Ms Finnigan about the failure to make it. He led no evidence about what this payment should be, nor how it was to be calculated, nor did he make any detailed submissions about the terms of s 117 and its application to the facts, particularly in circumstances where he was on extended leave without pay, having on the evidence exhausted his personal leave entitlements.

256    Accordingly, the applicant has not discharged his burden of proving his entitlement to this payment at all, nor in any specific amount.

257    For the same reasons, there is insufficient evidence before the Court to make out the applicant’s claim in contract (that the first respondent breached the applicant’s employment agreement, particularly cl 11(b), by failing to pay the termination notice pay).

Redundancy entitlements

258    Relying on an entitlement he submits arises under s 119 of the Fair Work Act, the applicant submitted that the course of conduct which I have outlined at [184] to [216] above, including the termination of his employment, should properly be characterised as a redundancy.

259    In relation to both the notice of termination payment and the redundancy, it is difficult to see how this conduct can constitute adverse action separately from the termination itself. Section 342(1), Item 1(c) contemplates a continuation of employment, and an alteration to the position of the employee to her or his prejudice being harm suffered during the employment. If anything, the failure to make these payments would form part of the compensation to which the applicant is entitled if separate contraventions of ss 117 and 119 of the Fair Work Act are made out, or as part of the compensation for unlawful termination of employment under s 342(1), Item 1(a). As I set out above, Mr Milardovic has not provided a sufficient evidentiary basis for a breach of s 117.