Federal Court of Australia

Parsons v Serco Citizen Services Pty Limited [2024] FCA 754

ORDERS

THE COURT DECLARES THAT:

1.    The respondent took adverse action against the applicant in contravention of s 340(1) of the Fair Work Act 2009 (Cth) by terminating his employment on 6 May 2022 because he had exercised his workplace right to make a complaint.

THE COURT ORDERS THAT:

1.    The respondent pay the applicant compensation for economic loss of $120,000.

2.    The respondent pay the applicant compensation for non-economic loss of $10,000.

3.    The respondent pay the applicant interest on the amount awarded for compensation for economic loss from 6 May 2023, to be calculated at the rates specified at paragraph 2.2 of the Court’s “Interest on judgments” practice note (GPN-INT).

4.    The applicant file and serve any affidavits and submissions (not exceeding 10 pages) on the issue of any pecuniary penalty by 4.30 pm on 8 August 2024.

5.    The respondent file and serve any affidavits and submissions (not exceeding 10 pages) in response by 4.30 pm on 29 August 2024.

6.    The applicant file and serve any submissions (not exceeding 2 pages) in reply by 4.30 pm on 12 September 2024.

7.    The matter be listed for a hearing on the issue of any pecuniary penalty at 10.15 am on 19 September 2024.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The employment of the applicant, Christopher Edward Parsons, with the respondent, Serco Citizen Services Pty Limited (Serco) was terminated on 6 May 2022 following a series of complaints made against him by another employee and by him against his managers.

2    In this proceeding, Mr Parsons alleges that Serco contravened s 340(1) of the Fair Work Act 2009 (Cth) (FWA) by taking “adverse action” against him because he had exercised “workplace rights” by making complaints. Mr Parsons seeks declaratory orders, compensation and the imposition of a pecuniary penalty on Serco.

3    Mr Parsons was self-represented in the proceeding. Seven witnesses gave evidence at the trial. Their evidence-in-chief at the trial was given by way of affidavit, followed by cross-examination of six of them. The trial was conducted over three days.

4    I will proceed by explaining Mr Parsons’ allegations, identifying the roles of the persons involved in the allegations, summarising the facts of the case, summarising the legislative scheme and the case law, and then considering the parties’ submissions.

The applicant’s allegations

5    In his Further Amended Statement of Claim, Mr Parsons alleges that Serco engaged in “adverse action” within the meaning of s 342(1) of the FWA by:

(1)    undertaking a series of investigations into his conduct without giving him procedural fairness;

(2)    bullying him;

(3)    telling him he was not entitled to apply for a promotion or another role for six months; and

(4)    terminating his employment.

6    Mr Parsons alleges that the adverse action was taken against him because he had exercised “workplace rights” within the meaning of s 341(1)(c)(i) and (ii) by:

(1)    making a complaint on 25 May 2021 against his line manager, Bill Kanellis, about workplace bullying;

(2)    making “witness protected whistle-blower complaints” on 25 May 2021 against Mr Kanellis about failing to implement COVID-19 safety requirements and security issues;

(3)    lodging an application with the Fair Work Commission (FWC) for a “stop bullying order” against Mr Kanellis; and

(4)    making a complaint about deficiencies in a workplace investigation carried out by a manager, Rowena Powell, in respect of a complaint made against him by another employee.

7    Serco does not dispute that Mr Parsons made the complaints alleged, although it does not accept the character he attributes to some of them.

8    Serco accepts that it conducted investigations into Mr Parsons’ conduct, took disciplinary action against him and ultimately terminated his employment, but disputes that any adverse action was taken because Mr Parsons had exercised workplace rights. In particular, Serco alleges that the reason for the disciplinary action was that two complaints of misconduct by him against another employee were found to be substantiated.

9    As will be seen, the central issue in the case is whether Mr Parsons’ exercise of workplace rights was a substantial and operative reason for the disciplinary action and the termination of his employment.

The relevant Serco employees

10    Mr Parsons commenced employment with Serco (which has undergone several name changes) on 9 May 2005. On 1 May 2016, he was appointed to the role of “Learning and Development Lead”, and was based at Serco’s premises at Varsity Lakes on the Gold Coast in Queensland.

11    Mr Parsons’ role involved oversight of the learning and development function involved in Serco’s servicing of a contract with the Australian Taxation Office. That function, it appears, involved training of Serco’s staff in back of office processing, correspondence processing and call centre assistance.

12    Mr Parsons reported to Mr Kanellis, who held the position of General Manager and was based in Melbourne. Conflict developed between them in 2020, including about the maximum number of people who should be in a training room in the context of the COVID-19 pandemic. Mr Kanellis did not give evidence at the hearing.

13    Mr Parsons was responsible for a team of employees who were employed as “Learning and Development Facilitators” and reported directly to him. Those employees worked at Serco’s sites at Box Hill in Melbourne, Burnie in Tasmania and Varsity Lakes. Their principal role was to provide training.

14    Catherine Linnell was a Learning and Development Facilitator who performed her work from Serco’s Burnie site. Ms Linnell made two complaints about Mr Parsons, the first of which resulted in Mr Parsons being given a written warning and a ban from being considered for any Serco vacancy or position for six months, and the second of which resulted in the termination of his employment. Ms Linnell did not give evidence.

15    Rowena Powell is the Acting Managing Director of Serco. In 2021 and 2022, Ms Powell was Serco’s Operations Director. Ms Powell made the decision on 7 October 2021 to give Mr Parsons a written warning and ban him from consideration for any vacancy or position for six months. Mr Parsons then complained about Ms Powell’s conduct of the process leading to that decision. Ms Powell subsequently made the decision on 6 May 2022 to terminate Mr Parsons’ employment. Ms Powell gave evidence at the hearing and was cross-examined.

16    Alana Sfitskis was employed by Serco as a “People and Capability Specialist”, which is a Human Resources position. Ms Sfitskis was responsible for conducting investigations into Mr Parsons’ conduct, attending meetings with him, taking notes, preparing documentation and drafting correspondence. Ms Sfitskis provided an affidavit which was admitted into evidence, but she was not cross-examined.

17    Tracey Gardam was a Learning and Development Facilitator, together with Ms Linnell, at the Burnie site. Rachel Burgess was employed as a Site Manager at the Burnie site. They gave information to Ms Sfitskis in the investigation into Ms Linnell’s second complaint. They did not give evidence.

18    Kylie Robertson was a Learning and Development Facilitator based at the Varsity Lakes site. She gave evidence that Mr Kanellis wanted greater numbers of people in training rooms, but the training team wished to socially distance in the rooms. It was eventually agreed by Mr Kanellis and the training team that group sizes should be reduced. She attended Mr Parsons’ disciplinary meeting on 28 September 2021 and gave evidence about the content of the discussion.

19    Michael Cross was a Team Manager at the Varsity Lakes site. He attended Mr Parsons’ disciplinary meeting on 6 October 2021 and gave evidence about the content of the discussion.

20    Joanna Gagnon was a Learning and Development Facilitator at one of the two Box Hill sites. She gave evidence about the discussion between Mr Kanellis and other staff concerning maximum numbers in training rooms.

21    Aaron Donohue was a Learning and Development Facilitator based at the Varsity Lakes site. He also gave evidence about the discussion between Mr Kanellis and other staff concerning maximum numbers in training rooms. He attended Mr Parsons’ disciplinary meeting on 8 February 2022 and gave evidence about the content of the discussion, producing his handwritten notes.

The factual matrix

22    I will summarise the events that have given rise to Mr Parsons’ allegations. Much of what happened is not controversial, but where it is, I will so indicate. What is more controversial is why particular events happened, which I will deal with later in these reasons.

Mr Parsons’ first complaint about Mr Kanellis

23    On 25 May 2021, Mr Parsons lodged a formal complaint with Serco making allegations of bullying by Mr Kanellis. The allegations were about Mr Kanellis’ conduct in respect of matters including: requiring Mr Parsons to arrange long service leave for Ms Linnell; training group sizes and access to protective equipment in the context of the COVID-19 pandemic; and breaches of security. The principal allegation seems to have been that Mr Parsons was being placed under pressure to increase the size of training groups when he considered this would be a breach of the rules restricting group sizes.

24    Mr Parsons’ complaint was investigated by a member of Serco’s HR team and it was determined that the complaint was not substantiated. On 25 June 2021, the findings were communicated to Mr Parsons by Ms Powell. Ms Powell indicated that Mr Kanellis’ version of events concerning Ms Linnell’s long service leave had been accepted and that the other issues were the result of a personality clash between him and Mr Kanellis. Mr Parsons responded that he did not believe that the issues raised could be put down to a personality clash and that he would have no alternative but to take his issues externally.

Mr Parsons’ second complaint about Mr Kanellis

25    On 20 August 2021, Mr Parsons was provided with feedback about his performance from a cross-section of ten of his colleagues. The feedback was overwhelmingly positive, with the exception of the feedback from Mr Kanellis.

26    On 25 August 2021, Mr Parsons lodged a complaint with the FWC concerning Mr Kanellis’ alleged, “repeated unfavourable treatment”. He also asserted that Mr Kanellis’ behaviour had, “attempted to put lives in danger” during the pandemic and complained of the negative feedback given by Mr Kanellis.

27    It appears that Mr Parsons either discontinued or did not pursue the FWC complaint after a conciliation conference was held.

Ms Linnell’s first complaint about Mr Parsons

28    On 25 August 2021, Ms Linnell (whose supervisor was Mr Parsons) sent an email to Ms Powell stating that she had a number of concerns about Mr Parsons’ conduct. These concerns included that Mr Parsons had contacted her every week since she had been on annual and long service leave. Ms Linnell said, “I am not sure how appropriate this is and I am also querying Chris’s motivation behind it”. She, “felt we are unnecessarily involved in conflicts from Chris’s end between himself and Bill”, and said this had caused unnecessary stress and anxiety. She complained of a telephone conversation which was about, “Chris telling [her] about the trouble [she] had caused when leaving and how he had taken Bill to HR and now Rachael [Burgess] no longer talked to him”. Mr Parsons had also sent her a message saying:

Buzz me when you have a better reception. I just basically wanted to say that I look forward to having you back. However, don’t be shocked if you get funny looks as Rachael and Bill seems [sic] to have spun a few stories.

29    In her email, Ms Linnell said she had phoned Mr Parsons back and he continued telling her about how toxic his relationship had become with Mr Kanellis due to conflict about Ms Linnell’s leave. Ms Linnell said she apologised and hoped they could move on from the situation when she returned. She said she was uncomfortable about returning as she felt she had been placed into a position where she was having to defend herself without having a full understanding of what had actually occurred.

30    Ms Linnell also said in her email that she had not felt comfortable raising her concerns formally in the past as she was concerned how she would later be treated by Mr Parsons. She felt that if she challenged him, he would take it personally and not act on it constructively. She said she did not want to be involved in such conflict any longer and was considering her future with Serco.

31    Ms Linnell also raised concerns about Mr Parsons sharing information about her personal circumstances with other staff members and that Mr Parsons had sent the team an email advising of her decision to take leave contrary to her request that it be kept confidential. She stated that, “a good manager is there to support his staff, not to try and undermine them”.

32    On 10 September 2021, Ms Powell spoke to Ms Linnell. Ms Powell’s file note of the conversation says, relevantly:

Cathy reiterated and talked through the points as per the feedback stated in her email. Cathy stated that Chris is very political and draws everyone into unnecessary angst and issues and is inappropriate in the way he operates.

33    On 16 September 2021, Ms Linnell sent another email to Ms Powell stating:

Hope you are well.

I received this message (please see attachment) from Chris this morning. I would like to make an official complaint. I think this whole thing has gone far enough. I still have over 2 weeks of my holidays left and want to enjoy it. I will start thinking about work when I return.

I also don’t think this appropriate and is bordering on bullying and harassment.

All I want to do is come back to work and get on with my job.

34    The attachment to Ms Linnell’s email was as follows:

35    On 20 September 2021, Mr Parsons was notified by Ms Powell that Ms Linnell had made a complaint concerning his conduct and that there would be an investigation. Ms Powell deposes that she told Mr Parsons, “[w]hilst we are working through this complaint, my request is that you don’t make contact with Cathy”.

36    On 27 September 2021, Mr Parsons was advised by Ms Powell that a meeting was to be held on the following day. Mr Parsons then received an email confirming a request for him to attend a formal meeting on 28 September 2021 to discuss Ms Linnell’s complaint. After some further correspondence, the meeting was rescheduled.

37    The meeting was conducted on 30 September 2021, between Ms Powell and Mr Parsons, with his support person, Ms Robinson, and Ms Sfitskis present. Mr Parsons gives the following account of the meeting:

30 September 2021 the meeting went ahead at 11:00am. Attendees were myself, my support person Kylie Robertson, Rowena Powell and via MS teams Alana Sfitskis who is a People & Capability Advisor in HR based in Adelaide. The meeting was scheduled for 30 minutes, but went for over two hours. In the meeting I provided Rowena Powell with a print out of all the messages sent during the period of time between Catherine Linnell and myself. I expressed my concern that the two (2) texts presented to me were edited with emojis removed and the other texts removed changing the context. I explained that the first text that was raised as an issue was sent due to Catherine Linnell calling me to inform me that she had sent three (3) messages to her site manager, Rachael Burgess regarding her returning from her leave early and had not received a response. Catherine Linnell stated that she had heard the site manager was unhappy at her leave being arranged at short notice and for an extended period at half pay. Catherine Linnell stated that the site manager had complained to Mr Bill Kanellis about the leave. I had then stated that I had wondered why Mr Kanellis had got involved and that had cleared up the mystery. The call dropped out as Catherine Linnell lives in a rural area in Tasmania with a poor signal, so I sent her the first text in the complaint to call me back when in a better signal area. After this I went about arranging Catherine Linnell’s return, including security clearance, IT systems and site access. I pointed out that Catherine Linnell returning would also give Serco the opportunity to re-look into the events of my 25 May 2021 complaint. I also presented new facts that Catherine Linnell had attempted to resign and had threatened to make a Work Cover claim against Serco in May 2021. I explained that I had in fact talked Catherine Linnell out of resigning and arranged long service leave at short notice to assist Catherine Linnell’s mental health. These facts were omitted from my 25 May 2021 complaint out of respect of Catherine Linnell’s privacy. However, I was now disclosing them to defend myself and pointed out that it would be strange for me to talk her out of resigning to bully her as alleged. I also pointed out that these facts also prove that Mr Kanellis version of events during that period were in fact false and should be looked into again. Especially, that Catherine Linnell was never interviewed in relation to my 25 May 2021 complaint due to being on leave. I also stated that there was nothing inappropriate in the messages and that I was the only person who was arranging for Catherine Linnell’s return as others didn’t respond to her request.

38    On 1 October 2021, Ms Powell informed Mr Parsons that no decision had been made concerning the complaint and he was unlikely to hear anything until 5 October 2021.

39    On 4 October 2021, Ms Linnell returned to work at the Burnie site from her annual and long service leave. Mr Parsons was absent from work that day as it was a public holiday in Queensland. Mr Parsons states that he did not contact Ms Linnell in the ensuing days because he had been directed by Ms Powell not to do so while Ms Linnell’s complaint was being investigated. That is consistent with Ms Powell’s evidence that she requested on 20 September 2021 that he not contact Ms Linnell while they were working through the complaint.

Outcome of Ms Linnell’s first complaint

40    On 5 October 2021, Ms Powell informed Mr Parsons that a meeting would be scheduled for the following day. On 6 October 2021, Mr Parsons, accompanied by Mr Cross as his support person, attended a meeting with Ms Powell and Ms Sfitskis. Mr Parsons was advised that he would be issued a written warning. This was the first occasion in his employment with Serco that he had been the subject of any disciplinary action.

41    On 7 October 2021, Mr Parsons received the written warning via email from Ms Powell. The letter stated:

WRITTEN WARNING

I refer to our meeting held on Thursday 30 September 2021, which was attended by Alana Sfitskis, People & Capability Advisor (via Microsoft Teams), you and I. Kylie Robertson was in attendance as your support person.

The purpose of the meeting was to address your alleged recent conduct;

1.    It is alleged that you breached confidentiality by sharing information about Catherine Linnell’s personal circumstances to the team that she had asked to remain private. Specifically, you sent the team an email advising them of her decision to take a period of leave and possibly not return to Serco. Catherine was subsequently shown the email by another team member. This allegation was unsubstantiated.

2.    It is alleged that on 16 September 2021 at 7:47AM, you sent Catherine Linnell an inappropriate and unprofessional text message. Specifically, “Good morning my ray of sunshine. Are you counting the days before you return to hell’s kitchen?”. This allegation was substantiated.

3.    It is alleged that in August 2021 you made inappropriate and unprofessional comments during a phone call to Catherine Linnell. Catherine had contacted you to discuss her intention to return to work in October 2021 after a period of leave. Specifically, it is alleged that during the call you stated that Catherine going on leave had caused trouble between yourself and Bill Kanellis.

Further to this, it is alleged that you sent an inappropriate text message to Catherine Linnell after the above-mentioned phone call. Specifically, “Buzz me when you have a better reception. I just basically wanted to say that I look forward to having you back. However, don’t be shocked if you get funny looks as Rachael and Bill seem to have spun a few stories”. These allegations were substantiated.

During the meeting you were provided the opportunity to respond to the matters raised. Some of your responses included:

•    Your response to the first allegation was that you emailed the team as you wanted to encourage them to send her a message of goodwill and re-iterate to her that she is valued. You were unsure if Catherine was going to return post leave and wanted the team to send their goodbye messages just in case she did not return. You believe you did not receive any specific instruction from Catherine not to share information and it was not your intention to breach her confidentiality.

•    Your response to the second allegation was that in your view the text message was light-hearted, and you were trying to engage with her. You do not believe you have done anything untoward and there was no malice intended in the text message.

•    Your response to the third allegations were that you wanted Catherine to know that a fallout had occurred between yourself and Bill, however she did not need to worry about it as would not be an issue for her. You also stated you felt the text message was taken out of context and you were trying to acknowledge a work conflict and believed Catherine needed to know.

Decision

We have considered your responses, the matters you have raised in response, your length of service, and previous performance and conduct history, and after careful consideration we have decided to issue you with this Written Warning.

We found that your conduct was not in line with the Serco Code of Conduct. We expect all Serco employees to treat everyone at work with courtesy, dignity and respect and to never behave in a way which could be offensive, intimidating or insulting. Serco wishes to ensure the health and safety of all staff in the workplace. There will be zero tolerance for any further unprofessional and inappropriate conduct in the workplace.

Furthermore, as a leader, you have an additional layer of responsibility and expectations to ensure you lead by example, and role model Serco’s values. It was of particular concern that you did not appear to share my concerns in relation to the appropriateness of the text messages that you sent to Catherine. As a leader, it is an expectation that you ensure that all interactions in the workplace are professional and appropriate, and that appropriate language is used in the workplace and towards colleagues at all times.

Failure to satisfactorily address this conduct in future may result in further disciplinary action, up to and including the termination of your employment. We also advise that we will not tolerate any retaliation against the individual who has lodged the complaint.

Next Steps

As discussed, as part of your development you will be enrolled in the ‘Care to Lead’ program. The program focuses on the core aspects of leadership including values-based leadership, building safe and inclusive teams, delivering quality coaching for performance, motivating and engaging people to perform at their very best.

Whilst you have previously completed the Serco Code of Conduct this LMS module must be undertaken again and completed within 14 days of this letter.

You were also offered the opportunity to engage with a mentor or mediator if you felt it was necessary and helpful. This can be reviewed in future, or on an as needed basis.

It is further noted that you are not eligible to be considered for any Serco vacancy or position for period of 6 months from the date of this letter.

You are also advised that this matter is confidential, and you are requested not to discuss it with anyone in the workplace. Confidentiality of the matters set out in this letter and the resulting investigation are treated with the utmost importance and any breach of confidentially by you may lead to further disciplinary action being taken.

I recognise that this may be a difficult time and remind you that confidential support and counselling is available to you free of charge by calling our Employee Assistance Provider (EAP) Converge on 1300 687 327. This service is available to you and your family members.

(Underlining added.)

42    Mr Parsons’ evidence was that after he received the email on 7 October 2021 (a Thursday), he contacted Ms Linnell and arranged a “catch up” and “return to work conversation” for 11 October 2021 (the next Monday). He deposes that in that meeting they discussed and worked through a wide range of issues.

Mr Parsons’ complaint about Ms Powell’s conduct

43    On 27 October 2021, Mr Parsons lodged a formal complaint with Serco, including to Peter Neale, Ms Powell’s line manager, regarding the investigation and outcome of the complaint made against him. He complained of a lack of procedural fairness. He also complained that Ms Powell had a conflict of interest since she had been mentioned in his 25 May 2021 complaint as having supplied Mr Kanellis with photos of training room measurements that Mr Parsons says were used to pressure him to increase the size of training groups. Mr Parsons’ letter of complaint also raised other issues, including Ms Powell not permitting the person who investigated Mr Parsons’ original complaint to be present at the meeting, being provided with notification of the meeting on 27 September 2021, less than 24 hours before the proposed meeting time, and not being permitted to bring the support person he chose to the meeting on 6 October 2021.

44    An investigation by Serco found the complaint against Ms Powell to be unsubstantiated. Ms Powell was not provided with a copy of Mr Parsons’ formal complaint, but she was interviewed by HR about the complaint. She was subsequently informed that Mr Parsons would be notified that the outcome was that there would be no further action taken.

Ms Linnell’s second complaint about Mr Parsons

45    On 30 November 2021, Ms Linnell made a second complaint against Mr Parsons through the “Speak Up” portal operated by Serco. Ms Linnell’s complaint commenced by outlining the substance of her first complaint. She then continued:

I believed this complaint had been dealt with and was looking forward to returning to work and moving forward and leaving the past issues behind us. I was hoping that Chris and myself could work together in a positive manner. I did not want to hold any grudges. d [sic]

However I do not feel that Chris has been able to do this and I feel that I have been further bullied since returning back to the work place. This is having an adverse effect on my mental health.

I have been back into the workplace for nearly 2 months and have had not been invited to any catch ups. I was the one to start the communication between Chris and myself when I initially returned. This was via email.

We have had further communications via email and several phone calls and this has all been about upcoming training and in the presence of another trainer. There has not been any check in to see if I am ok, need anything or have any concerns or what his expectations are of me in my role moving into the future.

The person who was covering my role whilst I was on leave has received more direction than myself. Her contract was extended and she was the one who advised me. I received no communications from Chris to advise what my expectations are now moving forward, what my role is in relation to the person I now share the role with. Who is expected to do what. I reached out to Chris, hoping to commence some sort of dialogue thanking him for the extra support, however nothing was forth coming. I feel I have been unfairly treated throughout this whole process. I took time out of the business to get my mental and physical health back in order and was not given a chance to have a proper break because of what has occurred.

I feel that I am being further victimized since returning to work by being kept in the dark, not being communicated with about decisions that impact my work, being made to feel I am the one in the wrong for making the initial complaint and not being included in any catch up process.

I have been working with Chris for a number of years and the reason I did not raise any concerns earlier is for exactly the reasons I am now reporting what is occurring. I was afraid that if I complained I would be ostracized.

Serco encourages people to speak up however I regret what I have done as it has made my position very uncomfortable and stressful. Once I made the complaint and it was dealt with I was happy to move on and I was hoping that I would not be made to feel as I do now.

46    A printout from Serco’s “Speak Up” web portal records the actions taken by HR staff to deal with Ms Linnell’s complaint. The records state:

Follow-ups

Reporter Additional Information

There are no additional notes for this incident.

Questions/Comments and Reporter Responses

12/01/2021 1:43 AM - Ibrahim Khan

Comment: Thank you for raising your concern to us. It is very important for Serco that people feel able to raise an ethics and compliance, or indeed any other concern they have via the many methods which we have put in place for reporting concerns.

Your case is currently being triaged to the appropriate Division. A member of that Division will contact you within 5 working days.

Best,

Speak Up team.

12/01/2021 8:48 AM - Tim Redhead

Comment: Thank you for using speak up. We are considering the matter locally in Asia Pacific.

In order for us to assess the matter properly can you please provide specific examples of how you are being victimised, kept in the dark and not communicated with. Where possible you should identify time, dates, locations, behaviour demonstrated, and the identity of any persons who may have been present or a party to the behaviour.

47    These records indicate that the HR employee, Tim Redhead, to whom the complaint was assigned, asked Ms Linnell on 1 December 2021 for specific examples of how she was being victimised, kept in the dark and not communicated with, “in order for us to assess the matter properly”. The records also appear to indicate there was no response from Ms Linnell and no follow-up by Serco asking for the information that they had requested.

48    Ms Powell deposes that she did not become aware of the “Speak Up” complaint until mid to late January 2022. Ms Powell became aware that Ms Sfitskis was in the process of interviewing employees. On 20 January 2022, Ms Sfitskis provided Ms Powell with copies of the minutes of interviews with Ms Gardam and Ms Burgess.

49    Ms Powell deposes that the concerns of Ms Linnell appeared to be genuine and had a connection with counselling that had previously been provided to Mr Parsons in relation to his behaviour the subject of the warning letter dated 7 October 2021. On 7 February 2022, Ms Powell telephoned Mr Parsons to notify him of Ms Linnell’s complaint and then sent him the following email:

INVITATION TO DISCIPLINARY MEETING

1.    I am writing in relation to concerns about your behaviour which have come to my attention. The purpose of this letter is to present the alleged behaviour to you to provide you the opportunity to respond. Specifically, it is alleged that: you treated employee Catherine Linnell less favourably during the two-month period following her return to work, by:

a.    failing to invite Catherine to participate in catch-up meetings (scheduled or otherwise) or similar activities to the extent this occurred for other employees, or at all during this time; and

b.    communicating important information to Catherine indirectly through her colleagues, including but not limited to information about work requirements and her position and

that you engaged in the behaviour set out at subparagraphs a and b above on the basis of Catherine’s complaint in relation to your communications with her during her period of personal/carer’s leave (victimisation) and/or that you have engaged in this behaviour unreasonably, without specific basis.

If this behaviour is found to have occurred, it constitutes victimisation, breach of the Code of Conduct and/or unreasonable behaviour.

2.    You have engaged in repeated, unreasonable behaviour towards Catherine Linnell (intentionally or unintentionally) during the two-month period following her return to work, being:

a.    the failure to hold return to work discussions or discuss plans and expectations upon Catherine’s return to work after a 4.5 month absence;

b.    actively or neglectfully excluding Catherine from catch-up meetings or similar activities (scheduled or otherwise) throughout the two-month period following her return to work; and/or

c.    the communication of matters important to the team and Catherine’s position indirectly, via a colleague; and

that this repeated, unreasonable behaviour has caused a risk of (or actual) harm to the health and safety of others.

If this behaviour is found to have occurred it constitutes bullying behaviour, a form of misconduct.

If substantiated, the alleged behaviour may constitute misconduct and a breach of Serco’s policies, procedures and Code of Conduct, including [various provisions were referred to].

…

50    Mr Parsons attended the meeting on 8 February 2022, with Mr Donohue attending as his support person. In respect of the meeting, Mr Parsons deposes as follows:

38.    8 February 2022 the meeting is held with myself, Aaron Donohue my support person, Rowena Powell and via Ms teams Alana Sfitskis. In that meeting:

•    I denied all accusations.

•    I expressed that I had experienced an extremely positive relationship with Catherine Linnell.

•    I explained that Catherine Linnell had returned to work 4 October 2021 and I had been instructed to cease all contact with her from the 20 September 2021, prior to her returning to work.

•    Contact with Ms Catherine Linnell was only permitted again from 7 October 2021 after the decision on the prior formal complaint was issued verbally on 6 October 2021.

•    I explained I had sent an email on the 7 October 2021 and provided the printout to Rowena Powell titled “Urgent – Updated Training Plan” to the team, including Catherine Linnell.

•    I explained that a phone call took place on Monday 11 October 2021 with Catherine Linnell which was wide ranging in topics and included if she required a train the trainer for the upcoming B1 upskill or if she was uncomfortable to run that group after her extended absence due to her long service leave. Other items about how she had settled back in observing the two day/night inductions was also discussed.

•    I supplied print outs of the follow up chain of emails to that conversation that was sent on 15 October 2021 titled “B1/2 Upskill” which outlines that Catherine Linnell was happy to run that training course.

•    I explained that the course was run to time, with outstanding participant feedback and outputs. I went on to say that Catherine Linnell had demonstrated that she had slipped back into her role displaying her usual high standards and results.

•    I explained that Catherine Linnell had been my default stand in manager when I was away and she was aware of her KPI’s and expectations. Catherine Linnell was not on performance management, but was simply returning from leave. Had Catherine Linnell’s training group results been poor I may have insisted she complete a train the trainer to help her adjust. However, her performance had proved this was not required.

•    I supplied another chain of emails that was sent on the 2 November 2021. Titled “Heads Up” where I had asked Catherine to call me. I went on to explain that I rarely scheduled calls as trainers work 9am to 5pm and most conversations with me occur before or after training. This is because the trainers are training and I keep issues away from them so they can focus on their trainees.

•    I made reference to a phone call from Rowena Powell on 9 December 2021 where she enquired if I had spoken to Catherine Linnell and I confirmed I had on numerous occasions.

•    I supplied the printout of an emailed meeting invitation titled “induct to Full Debt” that included Catherine Linnell on 18 November 2021.

•    I explained that meeting was the only team meeting that had occurred in October, November or December 2021. Team meetings were very rare as there was rarely a point in time that trainers were not training in all sites. Varsity Lakes QLD, Burnie TAS and the two (2) Box Hill VIC sites. There were no occurrences of team meetings or catch up with multiple team members that did not include Catherine Linnell. However, there was catch up’s between myself, Catherine Linnell and Tracey Gardam regarding the new Debt Processing induction that we worked on as a team to create the schedule and work out how many days training should be and what needed to be included.

•    I supplied the printout of the email sent on the 24 November 2021 titled “trainers”. Which outlined that I had asked Catherine to step into my role when I was going on leave in January 2022. This also included her acceptance.

•    I explained that at that point in time the Burnie site was to train day/night groups as early as the 6 January 2022. For this we really required three (3) trainers and that Catherine Linnell had advised me that the Burnie site was trying to employ up to another 200 new starters, so we were going to require more trainers.

•    I explained that Catherine Linnell was on leave from 30 November 2021 to the 14 December 2021 and I was on leave from 23 December 2021 to mid-January 2022. This meant that there was only six working days that Catherine Linnell and I were both at work in December 2021. Despite this I had sent her over thirty (30) emails and had a number of phone calls, one of which was her annual review. All interactions were very positive.

•    I explained that I had spent the last twenty-four (24) hours reviewing all emails from the 7 October 2021 until the 4 February 2022. Catherine Linnell was included on every team email and there was not even a hint of one negative interaction. I offered for Rowena Powell to book in a time and come to my desk and go through all my emails from October 2021 to the end of December 2021. Which was around 180 interactions.

•    I asked when was the complaint lodged, as I found it strange that in February or January 2022 someone would complain about October and November 2021? Rowena Powell stated she didn’t have the date.

•    I asked how the complaint was lodged? Rowena Powell informed me it was lodged via official channels and had already been investigated.

•    I asked who investigated? Rowena Powell said she would not say.

•    No evidence of any wrongdoing on my part were presented to me.

•    No examples of any wrongdoing on my part were presented to me.

A copy of Aaron Donohue’s handwritten notes from the 8 February 2022 meeting and a transcript is now marked Annexure “CEP-16”

A copy of the five (5) emails provided to Rowena Powell in the 8 February 2022 meeting is now marked Annexure “CEP-17” 1) Urgent – Updated Training Plan” dated 7/10/21 2) “B1/2 Upskill” date 15/10/21 3) “Heads Up” dated 2/11/2021 4) “Induct to Full Debt” dated 18/11/21 5) “trainers” dated 24/11/21.

51    Mr Donohue took contemporaneous handwritten notes. Ms Sfitskis prepared “Meeting Minutes”, which Ms Powell deposes are consistent with her recollection of the matters discussed at that meeting. Ms Sfitskis’ minutes state, relevantly:

Purpose of Meeting

Thank you for attending the meeting.

I would now like to present the allegations contained in our letter inviting you to attend the meeting today. You will then have the opportunity to respond and, where applicable, present any evidence to support your responses.

The first allegation is as follows:

1.     You treated employee Catherine Linnell less favourably during the two-month period following her return to work, by:

a.    failing to invite Catherine to participate in catch-up meetings (scheduled or otherwise) or similar activities to the extent this occurred for other employees, or at all during this time; and

b.    communicating important information to Catherine indirectly through her colleagues, including but not limited to information about work requirements and her position and

that you engaged in the behaviour set out above on the basis of Catherine’s complaint in relation to your communications with her during her period of personal/carer’s leave (victimisation) and/or that you have engaged in this behaviour unreasonably, without any specific basis.

If this behaviour is found to have occurred, it constitutes victimisation, breach of the Code of Conduct and/or unreasonable behaviour. It would also constitute a continuation of behaviour in relation to which you were issued a written warning on or about 7 October 2021.

What is your response to the first allegation?

[Allow the employee time to articulate their answer, asking whether there is anything else they wish to add in relation to this allegation before proceeding.]

CP:     Completely untrue. I have gone through my emails from 07 October 2021 onwards once I was allowed to communicate with Cathy following the previous matter. Cathy was included on all emails from then, up to and including this week.

First email: tracking pack – L&D Team 07/10

16 sent items in October 2021 which she was included in.

RP:    Those are different types of interactions – specifically:

•    What did the return-to-work interaction look like?

•    Were there regular catch ups with Cathy?

CP:    There were regular emails and some phone calls – no phone calls were scheduled.

First email to Cathy upon her return to work was the training plan (emailed on 07 October 2021)

First phone call was around 11 October 2021 – Discussed training and how she was feeling as she had been back at work for a week or so. Cathy had sat in on Tracey Gardam’s training. I was Establishing how comfortable she would be to train. Lots had changed and Cathy had been away from the business for a while. She elected to train. A return-to-work plan wasn’t conducted, she wasn’t being performance managed.

16 emails are not a lot in the month of October 2021 – there was back-to-back training happening at the time.

02 November 2021 (email) – asked Cathy and Tracey to call me when they are free.

18 November 2021 (email/meeting) – one team meeting around this time as the client had request a new debt skill email

24 November 2021 (email) – Cathy was doing a great job; we were receiving great stakeholder feedback. I asked Cathy if she would like to resume being second in charge, which means she would cover my role whilst I am on leave. She was excited and accepted.

RP: These interactions with Cathy, transitioning Tracey, taking over from you etc. – were they done by direct call?

CP: Likely it would have been a call. Interactions were more so email rather than calls – 8 or interactions in October/November 2021 were phone calls.

33 emails were sent to Cathy in December 2021. I completed her annual review via phone on 22 December 2021.

This covered her performance prior to her leave (April to May 2021) – we talked about her personal life and her feeling unsafe at work during that time whilst I was on leave.

We discussed her return to work and her performance since being back. It’s like business as usual, when she returned, it was like she never left.

In the review she told me she wanted to mentor Tracey and Cameron in their roles. She wanted to learn how to deliver training in a COVID safe way and support a reduction in attrition. She had been involved in multiple meetings to support the business.

The second allegation is as follows:

2.    You have engaged in repeated, unreasonable behaviour towards Catherine Linnell (intentionally or unintentionally) during the two-month period following her return to work on, being:

a.    the failure to hold return to work discussions or discuss plans and expectations upon Catherine’s return to work after a 4.5-month absence;

b.    actively or neglectfully excluding Catherine from catch-up meetings or similar activities (scheduled or otherwise) throughout the two-month period following her return to work; and/or

c.    the communication of matters important to the team and Catherine’s position indirectly, via a colleague; and

that this repeated, unreasonable behaviour has caused a risk of (or actual) harm to the health and safety of others.

If this behaviour is found to have occurred it constitutes bullying behaviour, a form of misconduct.

It would also constitute a continuation of behaviour in relation to which you were issued a written warning on or about 7 October 2021.

What is your response to the second allegation?

[Allow the employee time to articulate their answer, asking whether there is anything else they wish to add in relation to this allegation before proceeding.]

CP:    As I mentioned before, I am happy to get all of the emails together. I have not excluded Cathy from anything.

Tracey informed Cathy that her contract was renewed. Tracey had two fixed term contracts prior to this. I spoke Tracey and confirmed I was doing the business case for her contract renewal again, I try to communicate this to Tracey and coordinate it 8-10 weeks prior to it’s expiry. This was a confidential conversation I had with Tracey only.

Tracey emailed me about her contract again last week, and I advised wouldn’t discuss Cathy’s contract with you, it’s your contract and it’s confidential.

Rowena reiterates allegations to gain Chris’ responses

CP: The return-to-work discussion was had around 11 October 2021. We discussed if she wanted to return to B1 Training, to which she said yes. There was small talk and I asked if she need anything.

AS: How was handover coordinated with Tracey Gardam, L&D Facilitator? What was your involvement in this?

CP: Burnie was doing day/night inductions – Tracey conducted the morning training and Cameron conducted the evening training. When Cathy came back, she floated between two groups. She watched both train and assisted with the training. Then she had a week to prepare for the B1 training group. I wasn’t allowed to talk to Cathy prior to 07 October 2021 due to the matter that was being dealt with, so I did not coordinate handover.

RP: Was there a discussion with Cathy around that?

CP: Yes, as I specifically asked Cathy to give me feedback on trainer Cameron.

AS: Catherine and Tracey are both L&D Coordinators, how is their shared role coordinated? How are their job-sharing responsibilities managed? What was your involvement in this?

CP: Both are full time trainers. Tracey is back-to-back in training. They would swap over – Cathy would cover for Tracey when she is on leave. Cathy is mentoring Tracey.

RP: Do they understand their individual roles?

CP: Yes. Cathy stated in an email that she was excited about Tracey’s contract being renewed. I am really surprised as there has not been one negative interaction, her review was positive. She was not excluded. She is the most interacted with staff member.

RP: The allegations do not refer to your communications as negative – they refer to a lack of communication. What have the interactions been between Cathy and Rachael Burgess?

CP: Cathy phoned in sick to Rachel (Nov-Dec) – no sure what that was around. I didn’t hear of any issues. My interactions with Cathy were normal afterwards.

Thank you for your time today.

We will take your response into consideration moving forward and we will contact you as soon as possible to provide an outcome as a result of today’s meeting. I repeat that the matters raised today are serious, and if the allegations are upheld, you may face disciplinary action up to and including termination of your employment.

We’ll contact you as soon as possible to provide an outcome as a result of today’s meeting.

Don’t rush to deliver the outcome. We suggest the meeting should end and the outcome delivered later on. It is important to show procedural fairness.

Disciplinary meeting adjourned at 3.15PM 08/02/2022

52    Mr Donohue took contemporaneous handwritten notes of the meeting, which read as follows:

53    Ms Sfitskis deposed that in January 2022, she became aware of concerns made by Ms Linnell in her “Speak Up” complaint. She interviewed Ms Gardam and Ms Burgess. It is apparent that she did not interview Ms Linnell.

54    The relevant parts of Ms Sfitskis’ notes of her interview with Ms Gardam are as follows:

55    The relevant parts of Ms Sfitskis’ notes of the interview with Ms Burgess are as follows:

Outcome of Ms Linnell’s second complaint

56    Ms Sfitskis prepared a document entitled “Findings and Recommendations” which she sent to Ms Powell on 10 February 2022. That document stated as follows:

Findings

Upon review of the investigation as well as Chris’s responses, I am in view that allegations 1 and 2 are substantiated. It has become clear through this process that Chris has failed to coordinate a definitive return to work plan and process for Cathy upon her return to the business after 4.5 month absence. Communication between Cathy and Chris has been solely work-focused (emails rather than phone calls) in relation to the coordinating of upcoming training, which is the minimum expectation of his role as a leader.

It has been found that Chris has failed to communicate important matters in relation to Cathy’s role to Cathy, and instead has done so via Tracey Gardam. Tracey was stepped up into Cathy’s role whilst Cathy was absent. Tracey has received more direction in her role as Chris advised that he has communicated to Tracey every 8-10 weeks prior to her fixed term contract expiring to coordinate a business case to extend her contract. Tracey then communicated her contract extension to Cathy. Chris has not discussed these business cases nor contract extensions with Cathy and in turn how this affects her role. In the meeting, Chris referred to Tracey’s contract as confidential, and that he could not discuss the contractual arrangements of someone else. This is not a valid reason considering that the extension of Tracey’s contract directly affects Cathy, and lacks credibility given that his next words acknowledged that Cathy is his second in charge.

There has not been any clear conversation or communication from Chris to Cathy around why Tracey continues to be seconded into Cathy’s role, and what is expected of them whilst they are job sharing this role. Chris provided copy of an email sent to Cathy and Tracey relating to job sharing/coordinating their duties on 15 October 2021 which evidences communication of a job-sharing role without clarification or conversation with Tracey and Cathy prior to implementation. Chris also provided a copy of an email Cathy sent to him on 24 November 2021 where she references Tracey’s contract extension. It does not appear that Cathy was made aware of this arrangement until this particular email on 24 November 2021, which 1.5 months after the initial email discussion on 15 October 2021.

The previous substantiated complaint outlined concerns regarding inappropriate communication portrayed by Chris in the form of emails, text messages and phone conversations. It is evident that communication has changed drastically between Chris and Cathy. Chris has engaged in the opposite behaviour where verbal communications are sparce, and evidences routine training-related matters which is a minimum requirement of his role. There is no evidence that suggests Chris has portrayed supportive, nurturing, leadership behaviour which would be expected by a leader in our business who role models our values. There has not been any evidence of self-reflection nor self-realisation in consideration to his behavioural changes towards Cathy considering the previous complaint. Therefore evidence suggests that his behaviour towards Cathy and poor leadership is a direct response to the previous substantiated complaint, therefore intentional behaviour by Chris which constitutes a continuation of behaviour in relation to the written warning he was issued on or about 07 October 2021.

Recommendations - Show Cause Meeting

In substantiation of all allegations, the business may choose to terminate Chris’ employment due to the serious nature of his conduct. Chris was issued a written warning on or around 07 October 2021. This warning outlined the unacceptable nature of his behaviour as well as consequences if his behaviour were to continue or if he were to retaliate against the complainant, Cathy. This warning effectively put him on notice that if his behaviour did not improve, it may result in further disciplinary action up to and including termination of employment.

It has been identified through this process that Chris’ conduct towards Cathy has shown to be an imminent risk to Cathy’s health and safety, given that we are satisfied that his behaviour has continued in relation to the previous complaint, and satisfies the definition of retaliation towards Cathy.

I suggest proceeding with a show cause meeting where we present the outcome of the investigation as the substantiation of all allegations and ask Chris to Show cause as to why his employment should not be terminated. Upon gaining the responses from Chris via the Show cause meeting, the business can consider if they choose to proceed with terminating his employment and following the approval process to do so, or if he provides evidence of mitigating circumstances, we may choose to issue a final written warning regarding his conduct.

57    On 9 March 2022, Ms Powell wrote to Mr Parsons as follows:

OUTCOME OF DISCIPLINARY MEETING / INVITATION TO SHOW CAUSE MEETING

We refer to our letter dated 7 February 2022 and the subsequent disciplinary meeting on 8 February 2022.

The purpose of that meeting was to provide you with the opportunity to respond to the allegations set out in our correspondence of 7 February 2022. The first of those allegations is as follows:

l.    You treated employee Catherine Linnell less favourably during the two-month period following her return to work:

a.    failing to invite Catherine to participate in catch-up meetings (scheduled or otherwise) or similar activities to the extent this occurred for other employees, or at all during this time; and

b.    communicating important information to Catherine indirectly through her colleagues, including but not limited to information about work requirements and her position and

that you engaged in the behaviour set out at subparagraphs a and b above on the basis of Catherine’s complaint in relation to your communications with her during her period of personal/carer’s leave (victimisation) and/or that you have engaged in this behaviour unreasonably, without any specific basis.

This allegation is substantiated and constitutes victimisation, breach of the Code of Conduct and unreasonable behaviour giving rise to a risk of harm to at least one employee.

You began your response by denying the allegations in broad terms. However, during your response to the first allegation, you acknowledged that you had not participated in catch-up meetings with Catherine, nor that important information about her role was communicated to her via another employee. Instead, you offered benign reasons to explain your behaviour towards Catherine.

You claimed that you were unable to discuss with Catherine the employment arrangements of the employee who was initially engaged to fill in for her during her absence. However, you were comfortable coordinating job-sharing activities for up to six weeks prior to 24 November 2021, when Catherine found out about the other employee’s continuing employment.

In the same email thread of 24 November 2021, you requested Catherine to fill in for you as second-in-charge. The suggestion that you could not share important information impacting both Catherine’s role and overall team staffing with someone you would have fill-in for you clearly lacks credibility. In any event, it is more likely than not that other team members were perfectly comfortable with you sharing staffing arrangements and consented to you sharing information you describe as confidential. Similar evidence indicates that you regularly communicate with other team members, taking into account fluctuations during busy periods, in contrast to the approach you have taken towards Catherine.

You have previously indicated that you have ignored some of Catherine’s emails and described limiting your conversations with her on account of your history (even when this was not a requirement) – including but not limited to comments made during an informal catch up we held on 9 December 2021, which occurred prior to the concerns leading to these allegations coming to my attention. On that occasion, you were reminded of the importance of holding meetings with Catherine upon her return.

Finally, the comments you made to Catherine which were subject to previous disciplinary action included comments which tended to give her the impression that she may not be welcome upon her return to work. Whilst that matter has concluded, the nature of the comments central to it have a compounding effect on Catherine, in the circumstances you facilitated, depriving her of any information about team staffing and the extension a colleague’s employment whom Catherine has repeatedly referred to as “her replacement”.

The evidence you gave in your response and documents in support of that response demonstrates that you treated Catherine differently on account of her previous complaint and have not denied that you failed to perform catch up meetings, representing at least one count of unreasonable behaviour causing a risk of harm to her. You have also failed to inform her of arrangements in relation to her replacement, representing at least one count of unreasonable behaviour causing a risk of harm to her – in sensitive circumstances where this should have been paramount, especially as a people manager.

The second allegation is as follows:

2.    You have engaged in repeated, unreasonable behaviour towards Catherine Linnell (intentionally or unintentionally) during the two-month period following her return to work, being:

a.    the failure to hold return to work discussions or discuss plans and expectations upon Catherine’s return to work after a 4.5-month absence;

b.    actively or neglectfully excluding Catherine from catch-up meetings or similar activities (scheduled or otherwise) throughout the two-month period following her return to work; and/or

c.    the communication of matters important to the team and Catherine’s position indirectly, via a colleague; and

that this repeated, unreasonable behaviour has caused a risk of (or actual) harm to the health and safety of others.

If this behaviour is found to have occurred it constitutes bullying behaviour, a form of misconduct.

This allegation is substantiated and the behaviours involved constitute bullying behaviour. In addition to the victimisation substantiated in allegation 1, you acknowledged that you did not hold any discussions with Catherine upon her return from a 4.5-month absence.

You stated that she was “not returning from performance management”, meaning she did not require a formal return-to work meeting. However, her return after a 4.5-month absence warranted at least one discussion in relation to her wellbeing, job arrangements and to begin building the working relationship following the previous matter. You attempted to suggest that operational discussions, for example, relating to Catherine doing B1/2 training, constituted return to work discussions, which is not accepted.

Upon investigation, the behaviours alleged at 2. a – c are substantiated and together constitute repeated, unreasonable behaviour causing a risk of harm to the health and safety of others.

The substantiated allegations also constitute a breach of various requirements and obligations that apply to you as an employee of Serco. These findings are even more serious having regard to your responsibilities as a people manager at Serco.

The requirements, obligations and standards you have breached include:

•    Inclusive Workplace Standard Operating Procedure – clauses:

•    5.3 Bullying

•    5.4 Victimisation

•    7.1 Manager Responsibilities

•    Serco Code of Conduct

•    Bullying, Harassment and Violence

•    Everyone at Serco has the right to be treated respectfully at all times in a workplace free from any kind of bullying, harassment, or violence

•    Treat everyone at work with courtesy, dignity, and respect

•    Never behave in a way that could be offensive, intimidating, malicious or insulting

•    A Safe Workplace

•    Actively promote our safety culture and follow our health and safety standards and processes

•    Understand your personal responsibilities and your personal contribution to maintaining a safe workplace

•    Exercise proper care for your health and wellbeing, and that of everyone who may be affected by what you do – or don’t do

•    Serco Values – Trust, Care and Pride

•    Trust

•    We work hard to earn trust and respect

•    We deliver on our promises; are open, straightforward, and honest; do the right thing; and take personal responsibility for getting things done

•    Care

•    We care deeply about the services we provide, the communities we serve, and we look after each other

•    We work together to deliver high-quality public services, often of great importance to the nation or the communities we serve

•    Pride

•    We want to be proud of what we do

•    We know that the work we do is important, and we take pride in doing it well. We value energy and enthusiasm, skill and experience, and an ability to make hard work fun. We contribute both as individuals and as part of a team.

The findings and allegations which have been substantiated are a serious matter and follow the recent formal written warning issued to you in relation to related types of behaviour. Whilst no decision has been made at this point, the substantiated allegations are serious matters and we are therefore considering the termination of your employment.

Consequently, you are invited to attend a show cause meeting for the purpose of providing a view and making submissions in relation to the disciplinary action we are considering, including the termination of your employment. Any views or submissions you make will be considered, prior to a final decision in this matter.

The details of the meeting are as follow:

Date: Thursday, 10 March 2022

Time: 3.00pm

Location: Onsite at the Serco Varsity Lakes site

You are reminded that you must keep all matters relating to disciplinary action confidential. We advise once again that you are entitled to be accompanied by a support person. Finally, we reiterate that Serco does not permit any form of media recording of meetings under any circumstances.

You are reminded that our Employee Assistance Program (EAP) offers support including counselling that you can access confidentially and free of charge. You can access the EAP by calling Converge International (our EAP provider) on 1300 687 327. Further information is also available on their website https://www.convergeinternational.com.au/

If you have any questions regarding this meeting, you can contact Alana Sfitskis, People and Capability Advisor on 1800 11 55 36.

58    Under cross-examination, Ms Powell’s evidence was that Ms Sfitskis, “supports the writing of the letter” of 9 March 2022. Ms Powell added:

I don’t write the letters myself. I make the decision. I make sure I’m comfortable with its content, and it’s signed from me. I – I take responsibility of – of the letter and the decision.

59    I understand Ms Powell’s evidence to mean that Ms Sfitskis drafted the 9 March 2022 letter, but that Ms Powell considered the content to accurately reflect her views; that she adopted the content of the letter by signing it; and that she (and not Ms Sfitskis) made the decision finding the allegations to be substantiated.

60    Mr Parsons’ evidence was that the letter was not representative of the meeting. He said that the letter contradicted the meeting minutes that Mr Donohue had taken. He had described the allegations that were made as “a fabrication” and that no evidence had been provided to him. He said that he had given evidence that he had been in contact with Ms Linnell and that there was no evidence of unfavourable contact that had been presented. He asked what the investigation had entailed and Ms Powell had responded that it had involved witness interviews and that a copy of the complaint would not be provided. Mr Parsons had indicated that he had not been given examples of what he had done wrong and he did not believe that the allegations were factually correct. Mr Parsons had also said that he told Ms Powell he should continue his employment because he was a high performer, there had only ever been two complaints against him made by the same person, he had not been provided with examples or evidence, he had been employed for 17 years, his feedback had been positive, and he did not bully anyone.

61    On 10 March 2022, a further meeting was held at which Ms Powell stated that the purpose of the meeting was to discuss the matters that had been outlined in the “Outcome of Disciplinary Meeting / Invitation to show cause meeting” letter. She stated:

We are seeking to understand your perspective on our concerns. There is no predetermined outcome and we will review and consider the outcome based on your responses and any other supporting evidence or documentation available.

62    Mr Parsons was informed that Serco was considering what action it would take in relation to the matter and that it was considering termination of his employment. Ms Powell indicated that Serco wanted to provide him with an opportunity to provide a response as to why his employment should not be terminated.

63    Mr Parsons was then absent on sick leave. On 6 May 2022, he had a meeting with Ms Powell and Ms Sfitskis at which Ms Powell informed him that Serco had decided to terminate his employment effective immediately. Following the meeting, Ms Powell sent a letter to Mr Parsons confirming the termination of his employment.

The legislative provisions

64    Part 3–1 of Ch 3 of the FWA is entitled “General protections”. Division 3 of Part 3–1 is entitled “Workplace rights”.

65    Section 340 is within Div 3 and provides, relevantly:

340     Protection

(1)    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).

…

66    Section 341 of the FWA defines “workplace right”, relevantly, as follows:

Meaning of workplace right

(1)    A person has a workplace right if the person:

…

(b)    is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)    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.

Meaning of process or proceedings under a workplace law or workplace instrument

(2)    Each of the following is a process or proceedings under a workplace law or workplace instrument:

…

(k)    any other process or proceedings under a workplace law or workplace instrument.

…

67    Section 342(1) of the FWA sets out a table that explains when a person takes “adverse action” against another person. Under Item 1, adverse action is taken by an employer against an employee if the employer:

(a)    dismisses the employee; or

(b)    injures the employee in his or her employment; or

(c)    alters the position of the employee to the employee’s prejudice; or

(d)    discriminates between the employee and other employees of the employer.

68    Section 360 of the FWA provides:

360    Multiple reasons for action

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

69    Section 361 of the FWA provides, relevantly:

361    Reason for action to be presumed unless proved otherwise

(1)    If:

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

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

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

70    Section 793 of the FWA provides, relevantly:

793    Liability of bodies corporate

Conduct of a body corporate

(1)    Any conduct engaged in on behalf of a body corporate:

(a)    by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

…

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

State of mind of a body corporate

(2)    If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:

(a)    that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and

(b)    that the person had that state of mind.

…

71    In Qantas Airways Ltd v Transport Workers’ Union of Australia (2023) 412 ALR 134; [2023] HCA 27 (Qantas), the plurality of the High Court observed at [41]:

The evident object of s 340(1) is to protect workplace rights by protecting persons from adverse action for specified reasons connected with their holding or exercise of workplace rights. The provision affords scope for lawful adverse action to achieve any number of objectives, provided that the action is not substantively actuated by a purpose or reason inimical to a person holding or exercising workplace rights. Importantly, adverse action will not offend s 340(1) if taken with mere awareness of an effect on another person’s workplace rights. Instead, adverse action will only offend the section if it is taken for a proscribed reason: “because” the person against whom it is taken has a workplace right or has (or has not) done something in relation to the exercise of a workplace right within the scope of s 340(1)(a), or “to prevent” the exercise of a workplace right by that person within the scope of s 340(1)(b). As already noted, the proscribed reason must be a substantial and operative reason for taking the adverse action against the other person.

(Footnote omitted.)

72    In Qantas, the plurality emphasised at [31], “the importance for the correct application of s 340 of a careful identification of the true reasons for adverse action which is alleged to contravene s 340”.

73    In Qantas, Gordon and Edelman JJ observed at [63]:

Section 361 of the Act establishes a rebuttable presumption that the adverse action was taken for the reason alleged, or with the intent alleged, if taking action for that reason or with that intent would constitute a contravention of Pt 3-1 of the Act (which includes s 340). A person takes action for a particular reason if the reasons for the action include that reason. The presumption in s 361 recognises that the decision maker is uniquely placed to know the reasons for their action and should thus be made to prove them. An employer can discharge that onus by proving that none of its substantial and operative reasons for the adverse action was to prevent the exercise of workplace rights.

(Footnotes omitted.)

74    In Alam v National Australia Bank Ltd (2021) 288 FCR 301 (Alam), the Full Court at [14] summarised a number of principles concerning the application of s 361 in relation to s 340 of the FWA:

(a)    in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute “adverse action” and the particular reason or particular intent with which it is said the action was taken;

(b)    the party making the allegation that adverse action was taken “because” of a particular circumstance must establish the existence of that circumstance as an objective fact. That is, it is for the applicant to establish all the elements of the alleged contravention other than the reasons of the respondent for taking the adverse action;

(c)    an employer takes adverse action in contravention of s 340 if a proscribed reason is a “substantial and operative” reason for the action or if the reasons for the action include the proscribed reason;

(d)    the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision-makers to give direct evidence of their reasons for taking the adverse action;

(e)    the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding;

(f)    while the evidence of the decision-maker as to the reasons for the taking of the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre-condition;

(g)    the Court’s rejection of the evidence of the decision-maker as to the reasons for the adverse action will ordinarily be “a weighty consideration and often a determinative consideration” in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action, but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated. When there is evidence of a broad range of facts and circumstances, which are not dependent on acceptance of the decision-maker’s evidence about his or her asserted reason for the dismissal, such evidence must be taken into account in assessing whether the reasons asserted by an applicant were a substantial and operative reason for the action;

(h)    even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption;

(i)    the decision-maker’s knowledge of the circumstance asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason; and

(j)    adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition.

(Citations omitted.)

75    In Alam, the Full Court held that the Court should proceed on the understanding of s 341(1)(c) indicated in Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46, where the Full Court at [28] approved the statement of principle explained by Collier J in Whelan v Cigarette & Gift Warehouse Pty Ltd (2017) 275 IR 285; [2017] FCA 1534 as follows:

33    Section 341(c)(ii) defines a workplace right in an employee as being the entitlement of the employee to make a complaint or inquiry in relation to his employment. In such cases as Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 242 IR 1 (Shea), Murrihy v Belezy.com.au Pty Ltd [2013] FCA 908; 238 IR 307 and Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; 243 IR 468 (Walsh), s 341(c)(ii) was interpreted broadly. In Walsh [41], Bromberg J observed that the requirement in s 341(c)(ii) that a complaint or inquiry by the employee be “in relation to” his employment means that there must be a relationship between the subject matter of the complaint and the complainant’s employment. As Dodds-Streeton J further observed in Shea, 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.

34    As a general proposition, a complaint or inquiry to the employer by an employee in relation to his or her entitlement to an incentive bonus, or the failure of the employer to prepare an incentive bonus plan, where the terms of employment of that employee make provision for payment of such bonuses or the preparation of such plans, would fall within the scope of s 341(c)(iii) of the FW Act.

76    Section 140 of the Evidence Act 1995 (Cth) provides:

Civil proceedings: standard of proof

(1)    In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2)    Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a)    the nature of the cause of action or defence; and

(b)    the nature of the subject-matter of the proceeding; and

(c)    the gravity of the matters alleged.

77    In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at [31], the Full Court held that the discussion of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–363 concerning the operation of the civil standard of proof, “appositely expresses the considerations which s 140(2) of the Evidence Act now requires a Court to take into account”. The considerations include that ss 340(1), 343(1) and 351(1) are civil remedy provisions, contravention of which exposes Serco to pecuniary penalties.

Consideration

78    Mr Parsons bears the onus of proving that:

(1)    The conduct alleged by him alleged to constitute “adverse action” within the purposes of s 342(1) of the FWA occurred; and

(2)    he exercised the “workplace rights” alleged.

79    Mr Parsons’ case is broadly that his complaints against Mr Kanellis and Ms Powell led to Ms Powell wanting to be rid of him and that she seized upon meritless complaints made against him as a reason to, first, take disciplinary action against him, and then to terminate his employment. The gist of his allegations may be seen from his written closing submissions where he asserts:

It is clear that the Respondent was motivated and took adverse action against the Applicant because the Applicant exercised his workplace right to complain. The Respondent went about cultivating, concealing and manipulating information, people and events in order to discipline and ultimately terminate the employment of the Applicant. This was done by creating complaints that were a disguise for their real reasons and motivations. Choosing to omit information that could expose their real motivation while distorting evidence and fabricating allegations to aid their goal. These actions were primarily taken by the decision maker Ms Rowena Powell, who used her position as Director of Operations with Serco Citizen Services to control and dictate the various proceedings, personnel, information and outcomes. The Respondent has failed to establish any valid reason for the various courses of action taken against the Applicant in terminating his employment of nearly 17 years with motives that were genuine or valid.

80    However broadly and floridly Mr Parsons’ allegations may be expressed, it is apparent that the substance of his allegations is that the disciplinary actions were taken against him because he had exercised workplace rights to make complaints about Mr Kanellis and Ms Powell.

81    Much of Mr Parsons’ focus was on matters that were substantially irrelevant to issues required to be determined. For example, it does not matter whether Mr Kanellis in fact engaged in the conduct alleged in Mr Parsons’ complaints. It does not matter that procedures strictly required in the disciplinary process, such as the giving of more than 24 hours’ notice for a meeting, were not followed, in circumstances where either the meeting was postponed or no complaint was made by Mr Parsons. It does not matter that Mr Parsons was not permitted to have particular employees as his support persons in disciplinary meetings. This is not a criticism of Mr Parsons. He is not a lawyer, and even lawyers sometimes have difficulty in sifting what is relevant from that which is not.

82    Serco does not dispute that it took adverse action against Mr Parsons by taking disciplinary action against him. Neither does Serco dispute that Mr Parsons exercised workplace rights by making complaints to Serco and to the FWC.

83    However, Serco denies that such adverse action was taken against Mr Parsons because he had exercised workplace rights. Serco contends that the evidence of Ms Powell discharges Serco’s obligation to prove that Mr Parsons’ complaints were not a substantial or operative reason for the adverse action, and submits that in fact those complaints did not form any part of Ms Powell’s reasons for taking the adverse action.

84    My impression of Mr Parsons’ evidence is that, in retrospect, he places a sinister connotation on many actions in the workplace as demonstrating a plot to target him despite there being more reasonable and plausible alternative explanations. That Mr Parsons would view such actions in such a light is perhaps unsurprising in view of the gravity of the ultimate consequence of termination of his employment for reasons that he asserts were not justified. Although some of his allegations seem far-fetched, I do not consider that Mr Parsons’ direct evidence about the events that occurred to be unreliable. However, I do not attribute any weight to his assertions about why others may have been motivated to take those actions.

85    It may be observed that it was not only Mr Parsons who tended to place a sinister connotation on events that were readily capable of being seen as having an innocent explanation. As will be explained, such an approach comes through from Ms Powell’s findings that Mr Parsons had engaged in retribution and bullying against Ms Linnell because she had made a complaint about him.

The conduct alleged and whether it constituted adverse action

86    Mr Parsons alleges that Serco engaged in “adverse action” against him by:

(1)    undertaking a series of investigations into his conduct without giving him procedural fairness;

(2)    bullying him;

(3)    telling him he was not entitled to apply for a promotion or another role at Serco for six months; and

(4)    terminating his employment.

87    Mr Parsons’ first allegation of “adverse action” is that Serco undertook a, “series of investigations against [him], without procedural fairness”. I understand Mr Parsons’ reference to “procedural fairness” to mean a reasonable opportunity to present his case against the complaints made against him.

88    There is only one allegation of denial of procedural fairness clearly made in respect of the investigations into Mr Parsons’ conduct. That allegation concerns the conduct of the investigative meeting with Mr Parsons held on 8 February 2022. While Mr Parsons refers to other aspects of Ms Powell’s conduct of the investigation that he takes issue with, such as only giving him one day’s notice of meetings in respect of the complaints and not being permitted to have the persons he wanted present at the meetings, he does not ultimately specify those matters as constituting denials of procedural fairness of which he complains.

89    In respect of the meeting of 8 February 2022, Mr Parsons makes a number of specific complaints of denial of procedural fairness. The first is that he had been given less than 24 hours’ notice of that meeting. One difficulty for Mr Parsons is that he does not assert that he made any complaint about the shortness of time for the meeting, nor has he given evidence that he did not have sufficient time to prepare. That allegation of denial of procedural fairness is not established.

90    Mr Parsons complains that the meeting on 8 February 2022 was conducted without him being, “made aware of, or part of any investigation”. However, it is apparent that Mr Parsons had been provided with a letter outlining the allegations against him on 7 February 2022.

91    Mr Parsons also argues that the allegations made by Ms Linnell in her second complaint had not been properly investigated so that they had not been particularised and he lacked reasonable opportunity to understand precisely what was being alleged against him. I consider that there is substance in Mr Parsons’ complaints, but even so, any denial of procedural fairness does not of itself constitute adverse action within s 342(1) of the FWA. In Lamont v University of Queensland (No 2) [2020] FCA 720 at [66]–[67], I agreed with the view expressed by Collier J in Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22 at [121]–[122] that a failure by an employer to accord natural justice is not of itself an injury in employment. I explained that Item 1(b) of s 342(1) contemplates that it is not enough that an action by an employer is itself wrong or unjust, but must cause some kind of material harm or detriment to the employee. Mr Parsons did not advance any argument that any denial of procedural fairness altered his position to his prejudice within the meaning of Item 1(c). Accordingly, any denial of procedural fairness to Mr Parsons is not of itself adverse action.

92    In any event, Mr Parsons’ allegation that he was not given any reasonable opportunity to understand what was being alleged against him falls to be considered in the context of his closely related allegation that adverse action in the form of his termination was taken against him because he had exercised workplace rights.

93    Mr Parsons’ allegation that Serco engaged in adverse action by “bullying him” is not particularised. It cannot be a reference to the allegations against Mr Kanellis in Mr Parsons’ complaint of 25 May 2021, because the making of that complaint is itself alleged to be an exercise of workplace rights which resulted in adverse action, including bullying, being taken against him. Mr Parsons made no other specific reference to “bullying” in his written and/or oral submissions and Further Amended Statement of Claim. In the absence of any elaboration of the “bullying”, I find that Mr Parsons has not established that adverse action in the form of “bullying” was taken against him.

94    Mr Parsons’ allegation that he was, “not entitled to apply for a promotion or other role…for a period of six months”, refers to one of the outcomes of the disciplinary process as a result of Ms Linnell’s first complaint. In the letter from Ms Powell provided on 7 October 2021 finding that the complaints were substantiated, it was stated that:

It is further noted that you are not eligible to be considered for any Serco vacancy or position for a period of six months from the date of this letter.

95    It may be noted that the letter also amounted to a written warning that if Mr Parsons failed to satisfactorily address his conduct in the future, further disciplinary action, including the termination of his employment, may result. In the way the case was argued, Mr Parsons’ allegation of adverse action encompassed both aspects of the disciplinary action taken on 7 October 2021.

96    Serco did not contend that the disciplinary action taken on 7 October 2021 did not constitute adverse action. I find that Serco took adverse action against Mr Parsons by giving him a written warning and making him ineligible to be considered for vacancies or positions at Serco for six months.

97    Mr Parsons’ final allegation of adverse action was that Serco terminated his employment. Serco has not disputed that allegation. I find that Serco took adverse action against Mr Parsons by terminating his employment.

98    Accordingly, it is necessary to consider whether a substantial and operative reason for the adverse actions taken by Serco against Mr Parsons (by, first, giving him a written warning and banning him from consideration for vacancies or positions at Serco for six months, and, second, terminating his employment), was that he had exercised workplace rights.

The exercise of workplace rights

99    Mr Parsons alleges that he exercised the following workplace rights within the meaning of s 341(1)(c)(i) and (ii):

(1)    making a complaint on 25 May 2021 against his line manager, Mr Kanellis, about workplace bullying;

(2)    making a complaint against Mr Kanellis on 25 May 2021 about failing to implement COVID-19 safety requirements and security issues;

(3)    lodging an application with the FWC for a “stop bullying order” against Mr Kanellis; and

(4)    making a complaint about deficiencies in the workplace investigation carried out by Ms Powell in respect of Ms Linnell’s first complaint.

100    Serco does not dispute that Mr Parsons made the complaints alleged. Nor does it dispute that by making the complaints, he exercised “workplace rights” within the meaning of s 341(1)(c) (i) and (ii) of the FWA. I find that by making the complaints, Mr Parsons exercised workplace rights.

Whether adverse action was taken against Mr Parsons “because” he exercised workplace rights

101    There is an onus upon Mr Parsons to prove that the workplace rights alleged to have been exercised were exercised and that the adverse action alleged to have been taken was taken. Those matters have been proven. Mr Parsons has established a basis from which it may be inferred that the adverse action was taken because he exercised the relevant workplace rights and, accordingly, the presumption under s 361(1) is enlivened.

102    Under s 793(1) of the FWA, any conduct engaged in on behalf of a body corporate by an employee of the body within the scope of his or her actual or apparent authority is taken to have been engaged in also by the body. It is not in dispute that it was within the scope of Ms Powell’s actual or apparent authority to take the adverse action that was taken. Serco is also taken to have engaged in the adverse action, and is presumed to have taken the adverse action because Mr Parsons exercised the relevant workplace rights.

103    Serco has sought to discharge its onus through Ms Powell’s direct evidence of her reasons for taking the adverse action. The onus will be discharged if I accept that Serco has demonstrated, to the civil standard, that the reasons for taking the adverse action did not include, as a substantial and operative factor, that Mr Parsons exercised the relevant workplace rights.

104    It is necessary to emphasise that the question is not whether the adverse action was unfair, unjust or even taken on a correct understanding of the facts: see Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 at [136]; Wong v National Australia Bank Ltd [2021] FCA 671 at [81]–[83] (approved by the Full Court in Wong v National Australia Bank Ltd (2022) 318 IR 148; [2022] FCAFC 155 at [93]). It is necessary to identify the true reasons for the adverse action: Qantas at [31].

105    Ms Powell made the decision on 7 October 2021 that Mr Parsons should be given a written warning and not be eligible for any position or vacancy for six months on the asserted basis that Ms Linnell’s first complaint was substantiated (first decision). Ms Powell also made the decision on 6 May 2022 to terminate Mr Parsons’ employment on the basis that Ms Linnell’s second complaint had been substantiated (second decision).

106    Ms Powell’s evidence was that while Ms Sfitskis drafted the decision letters, Ms Powell was the sole decision-maker. In that context, Ms Sfitskis’ written recommendation on 10 February 2022 that the allegations leading to the second decision be found to be substantiated and her reasons for making that recommendation assume no relevance. I reject the submission that since Ms Sfitskis’ views were genuinely held (their genuineness not having been challenged), that supports the inference that Ms Powell’s views were also genuinely held. Ms Powell did not suggest that her reasons were influenced by Ms Sfitskis’ views. The necessary enquiry is as to Ms Powell’s true reasons for making each of her decisions.

107    In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, French CJ and Crennan J held:

44.    ... The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”.

45.    This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.

(Footnotes omitted.)

108    The starting point is that Ms Powell expressly deposes that in making her decisions, she had no regard to Mr Parsons’ complaints which constitute the exercise of workplace rights. It is also at least implicit in Ms Powell’s evidence that she made the first decision and the second decision for the reasons she set out in her letters of 7 October 2021 and 9 March 2022 respectively. It is necessary to examine whether there are any reasons to doubt the reliability of Ms Powell’s evidence.

Ms Powell’s first decision

109    Ms Powell’s first decision stemmed from Ms Linnell’s email of 25 August 2021 to Ms Powell, raising “concerns” about Mr Parsons’ conduct. Those concerns were that:

    Mr Parsons had contacted Ms Linnell almost every week since she had been on leave.

    Mr Parsons had unnecessarily involved staff in conflicts between him and Mr Kanellis (she also complained that Mr Kanellis had unnecessarily copied her in on his email to Mr Parsons querying HR policy about long service leave).

    Mr Parsons had told her about the trouble she had caused when taking leave and that he had taken Mr Kanellis to HR and that Ms Burgess was no longer talking to him.

    Mr Parsons had sent her a message saying, relevantly, “don’t be shocked if you get funny looks as Rachael and Bill seems [sic] to have spun a few stories”.

    Mr Parsons told Ms Linnell how toxic his relationship with Mr Kanellis had become due to their dispute about Ms Linnell’s long service leave, resulting in her feeling that she should apologise.

    Mr Parsons had breached the confidentiality of information she had provided about her personal circumstances including by Mr Parsons sending an email to staff indicating that she may not return.

110    At that point, Ms Powell did not inform Mr Parsons that Ms Linnell did not want to be contacted while she was on leave. Mr Parsons continued to contact Ms Linnell particularly to arrange new security clearance as that was required because she had been away on more than three month’s leave.

111    Ms Powell contacted Ms Linnell on 10 September 2021 to discuss her concerns. Ms Powell’s file note records that she, “asked if Cathy…was comfortable for me to follow up directly with Chris and discuss the feedback with him”. Ms Linnell agreed. I accept that Ms Powell intended to try to resolve Ms Linnell’s concerns informally. However, before Ms Powell discussed Ms Linnell’s concerns with Mr Parsons, Ms Linnell made a formal complaint on 16 September 2021.

112    In Ms Linnell’s formal complaint made, she complained of:

    Mr Parsons continuing to contact her about work matters while she was on leave (which she described as, “bordering on bullying and harassment”).

    Mr Parsons having sent a message that said, relevantly:

Good morning my ray of sunshine. Are you counting the days before you return to Hell’s Kitchen?

(Accompanied by emojis of a sun and a devil.)

113    Ms Powell’s letter of 27 September 2021 requesting that Mr Parsons attend a formal meeting, outlined the allegations against him as follows:

    Mr Parsons had breached confidentiality by sharing information about Ms Linnell’s personal circumstances that she had asked to remain private: specifically, he had sent the team an email advising of her decision to take leave and possibly not return to Serco.

    Mr Parsons had sent Ms Linnell an inappropriate and unprofessional text message (“Good morning my ray of sunshine…”).

    Mr Parsons had made inappropriate and unprofessional comments to Ms Linnell: specifically, he stated that Ms Linnell going on leave had caused trouble between him and Mr Kanellis, and, “Rachael and Bill seem to have spun a few stories”.

114    It was alleged that by that conduct, Mr Parsons had breached the “Serco Code of Conduct – Bullying, Harassment and Violence and Personal Information”, “Serco values” and “Inclusive Workplace Standard Operating Procedure”– clauses 5.2 “Harassment” and 5.3 “Bullying”.

115    Ms Powell’s letter of 7 October 2021 advising of the outcome of the investigation stated that the first allegation of breach of confidentiality was not substantiated, but that the second and third allegations were substantiated. Ms Powell stated that Mr Parsons’ conduct was not in line with Serco’s Code of Conduct and that, “[w]e expect all Serco employees to treat everyone at work with courtesy, dignity and respect and to never behave in a way which could be offensive, intimidating or insulting”. She stated that, “as a leader, you have an additional layer of responsibility and expectations to ensure you lead by example, and role model Serco’s values”. Ms Powell added that, “[i]t is an expectation that you ensure that all interactions in the workplace are professional and appropriate, and that appropriate language is used in the workplace and towards colleagues at all times”.

116    Ms Powell also stated that if Mr Parsons failed to satisfactorily address his conduct in the future, it could result in further disciplinary action, including termination of his employment. This amounted to a written warning to Mr Parsons concerning his conduct. Ms Powell also stated that, “you are not eligible to be considered for any Serco vacancy or position for a period of 6 months from the date of this letter”.