Tahi v Oxican Pty Ltd [2018] FCCA 3722 (13 December 2018)

Last Updated: 16 January 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAHI v OXICAN PTY LTD

[2018] FCCA 3722

Catchwords: INDUSTRIAL LAW – Fair Work Act – Claim alleging adverse action in contravention of general protections – applicant claims employment terminated because of family and carer responsibilities – respondent claims dismissal for genuine reasons.

Legislation: Fair Work Act 2009, ss.95, 96, 97, 102, 103, 340, 341, 342, 344, 344(1), 351(1), 351(2), 360, 361, 386, 539, 545, 546, 547

Cases cited: Australian Federation of Air Pilots v Jetstar Airways Pty Ltd [2014] FCA 15 Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd (2013) 234 IR 190 Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273 Dafallah v Fair Work Commission [2014] FCA 328 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 934 Hodkinson v The Commonwealth [2011] FMCA 171 Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402 McIlwain v Ramsey Food Packaging Pty Ltd (No.4) [2006] FCA 1302; (2006) 158 IR 181 Wilkie v National Storage Operations Pty Ltd [2013] FCCA 1056

Applicant:

KERRY TAHI

Respondent:

OXICAN PTY LTD

File Number:

BRG 1125 of 2016

Judgment of:

Judge Jarrett

Hearing date:

3 October 2017

Date of Last Submission:

3 October 2017

Delivered at:

Brisbane

Delivered on:

13 December 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Carter Newell Lawyers

ORDERS

(1) The respondent pay to the applicant the sum of $4,223.75 within 30 days of the date of these orders;
(2) The application be adjourned to a date to be fixed for a penalty hearing in respect of the contraventions of the Fair Work Act 2009 (Cth) found to have been committed by the respondent.

FEDERAL CIRCUIT COURT OF AUSTRALIA
Tahi v Oxican Pty Ltd [2018] FCCA 3722
CORRIGENDUM

1. In paragraph 1 of the Orders remove the sum “$5,040.95” and replace with the sum “$4,223.75”.
2. In paragraph 160 of the Reasons for Judgment remove the sum “$5,040.95” and replace with the sum “$4,223.75”.
3. In paragraph 167 of the Reasons for Judgment remove the sum “$5,040.95” and replace with the sum “$4,223.75”.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of Judge Jarrett

Associate:

Dated: 15 January 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE

BRG 1125 of 2016

KERRY TAHI

Applicant

And

OXICAN PTY LTD

Respondent

REASONS FOR JUDGMENT

1. Between 30 May and 1 September, 2016 Ms Tahi was employed by the respondent as a trainee sales person. Oxican Pty Ltd conducted business as a real estate agent and carried on business in south-east Queensland trading as QMT Realty.
2. On 5 December, 2016 Ms Tahi commenced these proceedings alleging that the respondent had taken adverse action against her in contravention of the Fair Work Act 2009 (Cth) because of her family responsibilities.
3. The respondent opposes that application and seeks its dismissal.
4. For the reasons that follow, I have concluded that the respondent did take adverse action against Ms Tahi for a reason proscribed by the Fair Work Act. Consequently, Ms Tahi is entitled to an order for compensation and the respondent is liable to the imposition of a pecuniary penalty in respect of the contraventions.

The legislative framework

5. Part 3-1 of Chapter 3 of the Fair Work Act deals with the rights and responsibilities of amongst others, employees and employers. Section 340 provides that a person must not take adverse action against another person:
   1. because the other person:
      1. has a workplace right; or
      2. has, or has not, exercised a workplace right; or
      3. proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
   2. to prevent the exercise of a workplace right by the other person.
6. Workplace right is defined in s.341, which relevantly provides:
   • (1) A person has a workplace right if the person:
     • (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or ...
7. Section 342 provides for the meaning of adverse action. Relevantly, adverse action is taken by an employer against an employee if the employer:
   1. dismisses the employee; or
   2. injures the employee in his or her employment; or
   100. alters the position of the employee to the employee’s prejudice; or
   4. discriminates between the employee and other employees of the employer.
8. A person is dismissed if the person’s employment with his or her employer has been terminated on the employer’s initiative: s.386.
9. Section 351 relevantly provides for protections in respect of discrimination:

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s ... family or carer’s responsibilities ....

However, by the provisions of s.351(2), s.351(1) does not apply if the adverse action is taken because of the inherent requirements of the particular position concerned.

10. The Act does not define discrimination for the purposes of ss.342 or 351. Nevertheless, the term has attracted judicial attention. The relevant discrimination can be direct or indirect and is not limited to the definitions prescribed by anti-discrimination laws: Wilkie v National Storage Operations Pty Ltd [2013] FCCA 1056; Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402; Hodkinson v The Commonwealth [2011] FMCA 171.
11. Sections 96 and 102 (qualified by ss.97 and 103, respectively), respectively, provide for an employee’s entitlements to paid and unpaid carer’s leave. The former does not apply to casual employees: s.95.
12. Section 360 declares that a person takes action for a particular reason if the reasons for the action include that particular reason. Taking adverse action because the employee had a workplace right, for example, need be only one of multiple reasons for taking adverse action in order to engage ss.342(1) or 351 of the Act.
13. Section 361 of the Act operates to reverse the onus of proof in certain cases. In Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273, Jessup J (with whom Rangiah J agreed) summarised the effect of s.361 and its interaction with the ultimate question to be determined by the Court in proceedings such as the present as follows:

[27] In the context of a provision such as ss 340 and 352, the effect of s 361 is to reverse the legal onus in relation to the reason or reasons for which the adverse action was taken. That is to say, at the end of the trial of fact, the question will be whether the respondent has established, on the civil standard, that the action taken was not taken for a reason, or for reasons which included a reason, proscribed by the legislation. That question is to be answered by reference to all of the evidence which bears upon it. Section 361 does not impose upon the respondent concerned the onus of calling any and every piece of evidence that might arguably influence the answer to the question of reasons or intent. The section is not, in other words, concerned to impose upon the respondent a continuing, unchanging, evidentiary onus with respect to that question.

[28] In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500, 516 [41], French CJ and Crennan J said that “the question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the [FW] Act.” Their Honours continued (248 CLR at 517 [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. [See, eg, General Motors-Holden’s Pty Ltd v Bowling (1976) 136 CLR 676 (note) ...] 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 [See, eg, Pearce v WD Peacock & Co Ltd [1917] HCA 28; (1917) 23 CLR 199 at 208 per Isaacs J; at 211 per Higgins J.] 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. [See, eg, Harrison v P & T Tube Mills Pty Ltd [2009] FCAFC 102; (2009) 188 IR 270 at 276 [31]–[33].]

In other words, whether the onus arising under s 361 has been discharged in a particular case will depend upon the assessment of all of the facts by the trier of fact, including, most importantly in the conventional case, his or her assessment of the evidence given by the decision-maker acting on behalf of the employer.

The evidence generally

14. A foreword on some of the evidence. Each party relies on two affidavits filed in these proceedings. There were some text messages relied upon by each party. They are undated, unnamed and out of context in the sense that on any given page one text message does not appear to follow on from the other. For those reasons very little, if any, weight has been given to the text messages referred to by either Ms Tahi or Ms Early. Out of context they are of little assistance. Furthermore, some of the affidavits have attached to them documents which purport to be affidavits of other persons. Those other persons were not cross-examined. I have given them careful consideration but always keeping in mind that the deponents of those affidavits were not available for cross-examination.
15. Attached to Ms Early’s affidavit is a detailed record of the use of a mobile telephone which was assigned to Ms Tahi during her employment. It includes mobile and data usage and the dates and origins of that usage. The respondent relies significantly on this document to challenge and contradict Ms Tahi’s evidence and her timesheets.
16. The credit of both witnesses was impacted by some of the evidence they each gave. Ms Tahi gave evidence that was confusing or confused at times, particularly about her attendance at work, including on Saturdays. She made claims about the economic loss suffered since her dismissal but failed to disclose the various jobs she has secured since these proceedings were initiated. The respondent submits that I should take that into account as to her credit. I agree.
17. Ms Early’s evidence, however, was not without difficulty. She complained of Ms Tahi’s lack of performance but the evidence does not demonstrate any attempts made by Ms Early to address those concerns with Ms Tahi whilst she was still employed. Any communication about those concerns manifested in decisions to reduce her hours and direct or suggest unpaid leave.
18. Finally, it should be recorded that the parties each conducted their cases on the basis that from at least 4 June, 2016 Ms Tahi’s employment by the respondent was casual employment. For example, Ms Tahi refers to her “first few weeks on the casual arrangement” and her uncertainty of how her performance targets and requirements would operate once she moved “to a casual role and then to 15 hours per week”. Ms Early referred to the entire period of employment:

During the 12 weeks worked (14-2 off), Tahi was employed on a casual basis, I was flexible with many things that happened in Tahi’s life ...

19. Whether she was truly a casual employee was not addressed in argument and neither party contended that Ms Tahi was not a casual employee. I have approached the case on that basis.

Background

20. In May, 2016 Ms Tahi applied for a “trainee sales position” job with the respondent, a company which operates a real estate business. The respondent carries on its business as QMT Realty. Ms Quy Early is the owner and licensee of the respondent.
21. Ms Tahi is a mother to two children who at the time of her initial interview were 11 months and 21 months old. During her interview she advised the respondent of those circumstances.
22. On 24 May, 2016 Ms Tahi received an email from Ms Early the contents of which, I am satisfied, constituted an offer of employment. She accepted that offer and commenced working for the respondent on 30 May, 2016. The email provided:

Hi Kerry

I would like to formally offer our trainee position with our sales department.

The offer is:

$45,000 per annum including super and motor vehicle allowance.

Plus we pay for all your training (in house and outsourced)

Plus phone.

Your minimum Targets:

• making one (1) sale (contract) per month
• Prospect for 1 good listing appt per day
• add 2 people into your trust account per working day
• Any bonus able dollars over $42,000 per quarter you shall receive 25% bonus.

The probation period is 3 months. With weekly supervision. Daily team mtgs.

The decision to have career in real estate is two ways. Some people know it’s not for them in the first week. Some a little longer. We want you to deselect yourself as soon as you know that this career is not for you. It’s simple but not easy. We will support those that want this career and can achieve the targets.

It is not intended that you stay on the $45,000 package for too long. For the right person there is clear evidence to be moved to the next package.

Within 12 months (or earlier) we expect you to be on the $88,000 per annum package including super and motor vehicle allowance.

Plus we pay for your training (in house and outsourced)

Plus phone.

Your minimum Targets:

• making two (2) sale (contracts) per month
• Prospect for 1 good listing appt per day
• add 2 people into your trust account per working day
• Any bonus able dollars over $72,000 per quarter you shall receive 25% bonus.

It’ll take two (2) years to fully be exposed to all parts of sales. The different personalities and objections and expectations are the

Hours:

Working an 11 day fortnight, that is, working 11 days of the 14 days in a fortnight.

Saturdays are our biggest day. Therefore days off would be Sundays + another day during the week.

The hours per day is up to you (We start at 8:30am each working day). It is the result/targets that matters.

After reading this proposal, please reply to CONFIRM you can start Monday 30th May 8 30am) OR DESELECT yourself (without prejudice).

We truly wish you all the best either way.

Any questions, just give me a quick call and if I don’t answer I shall call you back.

23. The offer of employment (set out above) included reference to “minimum Targets”. On Ms Tahi’s evidence she met these performance targets. Ms Early says Ms Tahi did not.
24. Subsequent to accepting the job and prior to commencement, Ms Tahi organised full time child care for her two children. Ms Early says that Ms Tahi represented she had “strong support from family so Saturdays and any potential late nights would not be a problem”. Ms Tahi said her children could attend a day care facility from 6:30am until 6:30pm on Mondays to Fridays and on Saturdays she says she “could arrange a babysitter, friend or relative ... during the hours required”. As it turned out, she was not able to work Saturdays.
25. Ms Tahi’s duties as a trainee included (but, perhaps, were not limited to):
    1. making listing phone calls;
    2. “door knocking”;
    100. attending listing presentations. A listing presentation, it seems, is the initial appointment between the real estate agent and a potential seller. It involves the agent attending a property for the purpose of its appraisal and discussing with the potential seller the price range for which the property might sell and hopefully obtaining permission to list the property for sale for the seller.

Leaving work early first week

26. Ms Early asserts that Ms Tahi left work early on two days during her first week – 30 May and 3 June. On her first day, Ms Tahi says she had been told by her “mentor for the day” that she had nothing further for Ms Tahi to do. She believed the first day of her training was complete. She claims to have then been advised by Ms Early to make phone calls from the sales office, which she says she did until 4:30pm.
27. Attached to Ms Early’s first affidavit is what appears to be an affidavit of an employee of the respondent, Ms White. Ms White states that Ms Tahi left work two and a half – three hours early on 30 May, 2016 at which time she handed in her work phone. Ms White was not cross-examined. Handing in the work phone at the end of the shift does not appear, on the whole of the evidence, to have been usual practice.
28. The telephone records of Ms Tahi’s phone indicate that phone calls were made from that phone on that afternoon from 2:18pm until 4:45pm. It is consistent with Ms Tahi’s evidence that she worked until 4:30pm. It is not consistent with Ms Early or Ms White’s evidence and it was not suggested that someone else had begun using the phone after Ms Tahi supposedly left between 2:00pm and 2:30pm. I prefer Ms Tahi’s evidence because it does not require an inference. She says she worked until 4:30pm. Her timesheets support that. The telephone records, on their face, corroborate her evidence.

4 June arrangement

29. On 2 June, 2016 Ms Early and Ms Tahi had a conversation about a change to Ms Tahi’s employment. Ms Early sent an email on 4 June confirming the arrangement. Relevantly, it said:

Monday-Friday

9am-3pm

$25 per hour.

Bonus of $500 per house listed.

30. This was a significant change in Ms Tahi’s employment that had commenced only one week earlier. The arrangement was to commence on 6 June, 2016. There is a dispute about the context in which this new arrangement arose. There is also a dispute about other provisions of the new arrangement including whether working Saturdays was required or permitted (to any extent) and the provision of “bonuses”.
31. Ms Tahi’s evidence is that Ms Early proposed this arrangement because “She said this was to better fit with caring of my children”. She agreed to the new arrangement and had confidence to continue her employment on that basis. She was committed to a career in real estate. However, Ms Tahi denied that she sought the change to better suit her child caring responsibilities. In a later affidavit she said she thought that it was not appropriate or professional to object to the directions of her employer and that she “had to” agree to the arrangement. She now alleges there was undue influence or pressure involved. She denied that she requested the change to her hours.
32. I find that Ms Tahi agreed to the new arrangement, whether or not the offer came about by way of a request by Ms Tahi. Her initial evidence was that she “agreed to this as it seemed like a good arrangement at the time”. She identified benefits in the new arrangement for her.
33. In addition to the provisions stated in the email Ms Tahi said, in cross-examination, that her hours were flexible and she was to work from home on Saturdays making phone calls and attending listing presentations. None of that is included in the email from Ms Early.
34. She stated that during the 4 June arrangement she continued to work on some weekends because “these were the only times the customers were available”. It was later put to her that she was unable to work Saturdays notwithstanding having been told that they are the biggest day in real estate. She correctly, in my view, although inconsistent with her earlier evidence, said that she was not required to work Saturdays under the 4 June arrangement.
35. Her unavailability to work on Saturdays was problematic. It was the reason her initial contract was altered. The email confirming the agreement stipulates the days and hours of work. No party challenged the terms of the email. It does not include the word, or a reference at all to, Saturday. The evidence does not establish that Ms Tahi was required to work on Saturdays under the 4 June arrangement and I so find.

Working Saturday 4 June

36. Ms Tahi’s timesheet indicates that she finished work at 12:30pm on her first Saturday (4 June, 2016). However, she gave some evidence contrary to that. She said that she left work early on 3 and 4 June because, first, the conversation about the new arrangement occurred and, she says, it took effect on 3 June, 2016 and, second, she was advised that if her target was met she could “finish making calls around 3.30pm ...” and that she could make calls from home.
37. There are issues with this evidence. If it was her understanding that the 4 June arrangement took effect on 3 June (the day after it was discussed) then it explains her early finish on 3 June, but it does not explain why she worked the Saturday. Additionally, there are no references in the telephone records under “Itemised call details” for 4 June, however there are for 3 and 6 June. There are details for “Mobile WAP/Internet Sessions” for 4 June from 11:21am until 12:14pm at “C’dale Shop” and Carindale. She could have been making phone calls from a different phone and another person could have been using the phone assigned to her, from Carindale and during the times she says she was working; or her evidence could be less than accurate.
38. It is difficult to accept Ms Tahi’s evidence in respect of her work on 4 June. She says she was making phone calls from 9:00am until 12:00pm, but the documentary evidence says she was not doing so from that phone. Ms Early says she finished at 12:30pm, although she does not detail what it was that Ms Tahi was doing. The parties tend to agree that she worked until at least 12:30pm. I am not satisfied that she worked past 12:30pm on Saturday, 4 June.

Working extra hours

39. For the first few weeks after 4 June, Ms Tahi says she worked up to 72 hours per fortnight. That seems to be, despite the agreement of 2 June that she would work Monday to Friday for six hours per day – a total of 30 hours per week. On 27 June, 2016 after Ms Tahi’s timesheets were brought to her attention, Ms Early informed Ms Tahi that her hours were capped at 60 hours per fortnight – she would not be paid for “overtime”. That was consistent with the agreement made on 2 June and explained in the 4 June email. Ms Tahi contends that she was entitled to overtime pay until 27 June, when she was told that her hours had been capped. She claims that her timesheets accurately depict her actual hours worked. In my view however, she was not. There was no agreement for Ms Tahi to work overtime. The email of 4 June about her hours was clear.
40. The effect of “capping” hours stems from the terms of the contract. Here, Ms Tahi was to work Monday to Friday from 9:00am until 3:00pm at an hourly rate of $25.00 per hour. The respondent’s case is that the “cap” of 60 hours per fortnight is the sum obtained by adding up the hours to be worked in accordance with the agreement. Ms Tahi was aware that she would not be paid in surplus of 60 hours per fortnight because the new arrangement did not provide for it, and that it stipulated her working hours.

Timesheet submission

41. Ms Early gave some evidence that Ms Tahi initially had not been submitting her timesheets correctly. She says Ms Tahi sent them directly to the respondent’s bookkeeper. The inference that I am invited to draw, I think, is that Ms Tahi was dishonest in claiming her hours and she attempted to bypass Ms Early by sending her timesheets directly to the respondent’s bookkeeper, who would have thought that Ms Early “had already checked” the timesheets. After the first few weeks of pay Ms Early says she directed Ms Tahi to “check-in” and “check-out” with Ms Major, the business’s receptionist. Ms Tahi says she was advised to send her timesheets directly to “reception” and not to give them to Ms Early. She says she always handed her timesheets to reception.
42. The applicant tendered a document which appears to be a text message dated 25 June, 2016 7:20am. It provides:

<Subject: k tahi timesheet> - Hi Betty and Quy here’s my tme sheet for the fortnight. I hope I have included the listing bonus correctly . Have awesome weekend

43. I accept Ms Tahi’s evidence that she submitted her timesheets as she was told to do. I find that she always submitted her timesheets to reception.

Gold Coast Seminar

44. A training seminar was organised and paid for by the respondent for its staff on 15 July, 2016 at the Gold Coast. Ms Early says that on that morning Ms Tahi contacted and informed Ms Early that she was unable to attend the seminar due to car troubles. Ms Early refers to:
    1. an undated, out of context text message which refers to having to “miss the conference tomoz” unless “Its possible to leave the coast at 330ish”;
    2. not seeing Ms Tahi all day, including at morning tea, at lunch and at afternoon tea;
    100. an affidavit, attached to Ms Early’s affidavit, of an employee, Ms Le Lievre, which deposes that Ms Tahi “was unable to attend a mandatory training conference on 15/07/2016 that was non-refundable and pre-paid by QMT Realty”; and
    4. some “team photos” which were posted on the “QMT Realty Facebook page” in which Ms Tahi does not appear.
45. Ms Tahi claimed her hours for the day of the seminar from 9:00am until 3:30pm. She said that she attended the seminar during that time. Her affidavit contained a document which is apparently a workbook from the seminar. She says this is proof that she was there. Although Ms Tahi’s evidence is that this was not a mandatory day, she says that she did in fact attend this seminar, albeit late. She also suggested that she knew what Ms Early had for lunch that day, and posed the rhetorical question: how else could she have known that unless she was there? Ms Early could not recall what she had for lunch.
46. When asked about this in cross-examination Ms Early conceded that Ms Tahi “would have been there”, although she inferred this from the existence of the workbook. I put to Ms Early that Ms Tahi might have been there and she simply did not see her, to which she answered, “no”. The explanation for the workbook, she said, is that she arrived sometime around lunchtime. She then conceded that it is possible that Ms Tahi was at the seminar.
47. I find that Ms Tahi was at the seminar at some point throughout the day, most probably from the beginning. The telephone records indicate she made a phone call at 3:51pm from the Gold Coast.

Performance

48. Ms Early deposed to Ms Tahi’s performance from the commencement of her employment until 27 July, 2016. She said Ms Tahi:
    1. achieved no listings on portals such as realestate.com;
    2. made three “underground attempts” with no contracts of sale; and
    100. made no contracts of sale from her efforts with buyers.
49. On a form provided to the Fair Work Commission for the purposes of Ms Tahi’s General Protections Application, Ms Early states:

TAHI HAD A GOOD RUN ON MAKING APPOINTMENTS. NONE OF THESE CLIENTS WERE SELLING IMMEDIATELY. SHOULD THEY LIST IN THE FUTURE, TAHI WILL GET $500 BONUS (WHERE THEY SELL OR NOT - ONCE IT’S LISTED BONUS WOULD BE PAID

50. Ms Tahi contends there were six “underground listings” for which she was responsible. In support of that assertion she annexes a document to her second affidavit. The document has at the top of the page:

9:1 This is an account of UNDERGROUND LISTINGS customers that were willing to list their property on the QMT Realty website and be privately marketed to the existing database of customers looking to invest or buy.

It is followed by a list of names, addresses, “asking sale price” and “REIQ standard commission”. The source, purpose and authority of the document is not in evidence. Ms Tahi also gave some details of three properties which were not named by Ms Early in her affidavit. Clients for one property were prepared to list, she said, but Ms Early did not have the appropriate form and by the time the rescheduled appointment came around the clients had backed out of the listing. For another, the property became listed through another real estate agent. The last “is currently on the market going to auction”.

51. Ms Tahi contends that her results are not a true reflection of her work or her ability because when her employment arrangement was changed her primary, or even sole role was to make listing appointments, “while being able to observe listing presentations and continue to learn the sales role”, and because she was unable to “present listing presentations” herself, which were conducted by Ms Early.

Working from home

52. During cross-examination Ms Early gave evidence of several occasions on which Ms Tahi arrived late, left early or did not attend work. She annexes to her second affidavit a large document containing the mobile telephone records of the mobile phone allocated to and used by Ms Tahi for her work. She relies on those records to ostensibly track Ms Tahi’s movements in relation to the performance of her work. She cross-referenced the records to Ms Tahi’s timesheets in an attempt to depict inconsistencies and ultimately prove Ms Tahi’s dishonesty in the hours that she claimed she worked. For example, Ms Early says that Ms Tahi started work late or finished early on 12 days between 7 June and 21 July, 2016.
53. In cross-examination Ms Tahi denied that she started late or finished early on 12 occasions. She later gave evidence that just because the phone records might indicate that she made no phone calls after 1:30pm on a given day, for example, it did not mean she had ceased working for the day. Ms Tahi put to Ms Early during cross-examination that there were several tasks that she could have been undertaking other than making phone calls, including “door knocking”, “handing out listing presentations or listing kits” and “attending listing presentations”. Ms Early conceded that she could have been handing out listing kits at which time she could not have been making phone calls.
54. The inference that I was invited to draw by Ms Tahi was that the telephone records do not accurately depict the hours actually worked by Ms Tahi. I entirely agree. They might be of some utility, but I do not think that they stand to prove the times that Ms Tahi was working, or more importantly, was not working. I do accept, however, that Ms Tahi’s attendance at work was relatively unpredictable. That is not to say that she did not perform any work at home – I think that she did, and it seems uncontested that she did, although the extent of that work is uncertain.
55. Ms Tahi claims to have worked a total of eight Saturdays notwithstanding her Monday to Friday arrangements. She said in cross-examination that she did not attend open homes but that she did attend listing presentations. She gave evidence during cross-examination that she attended several listing appointments “all after hours; after the two o’clock mark”; she attended “definitely more than one listing appointment on a Saturday”. Ms Early says she was not informed by Ms Tahi of these additional hours. She says Ms Tahi attended only two listing appointments and that she worked from home on about eight days. Additionally, she says Ms Tahi was not allocated any Saturday listing appointments because she could not commit to working on Saturdays and because she was a trainee.
56. Ms Tahi says that Ms Early “agreed” to Ms Tahi working from home. She does not say when this happened. She also recalled a conversation in early June whereby Ms Early instructed her that “with real estate, sometimes you have to go above and beyond. ... If you haven’t made your calls for the day you make them from home. While you’re cooking dinner. Whatever you have to do”. Ms Tahi says that at no point before the Fair Work Commission proceedings was it communicated to her that “working from home when required was a problem”. However, she did acknowledge of the requirement imposed in at least the July arrangement (as to which see below) that she physically attend the office when completing her hours of work.
57. Ms Early denies ever receiving a request from or giving approval to Ms Tahi to work from home. She recalls saying to Ms Tahi sometime in June that she “was not keen on her working from home”. She admits that she received a text message, on her evidence between 30 June and 7 July, 2016 to the following effect (attached as annexure M to Ms Tahi’s first affidavit):

Oh Quy, just thought to say – hope fully you don’t think I’m taking advantage of the arrangement. I am able to usually work 3-6 hours from home over the day truly. And I note that accordingly on my time sheet. Heads up ill be phoneing from home tomoz and trying to arrange buyers appts for Brandon Rd. Any word for the dentist? Fingaz xd. Have great weekend x

58. Ms Tahi says she also undertook some work from home which was, it seems, ancillary functions such as “calling clients for listing appointments, follow ups and organising to drop off information boxes prior to listing presentations”. She emphasises that she was never made aware that working from home “was a problem”. In cross-examination Ms Tahi said that after 28 July, 2016 she no longer claimed for hours worked at home.
59. Between 4 June and 28 July, the telephone records indicate that:
    1. Ms Tahi worked five of the seven Saturdays from home, and she claims one which is unassisted by the telephone records;
    2. she worked her contracted hours, or more, a little more than half of the time; and
    100. she worked less than her contracted hours because she was either late, she left early or was absent entirely for a little less than half of the time. Given the terms of the 2 June arrangement confirmed in the 4 June email, that seems quite extraordinary.
60. Further, Ms Tahi tendered a document which appears to be two text messages dated the morning of 20 June, 2016. They provide:

Morning Quy, my babies both have ear and throat infects I have to keep them home I’ll work from home today but if I have to I’ll bring them with me to sales meeting? Also there’s a viewing and meeting with Ben?

Ben is a representative for insurance. No need to come in. If a buyer like 951 Beenleigh Rd and puts contract that’s your ‘live’ listing for the month . Good luck today.

61. I accept that from time to time before 28 July, 2016 Ms Tahi was advised not to work from home, but she did that anyway. The telephone records tend to suggest that she worked less hours than she claimed on her timesheets. As early as the end of June there were issues with her timesheets. I accept that she regularly did not work all of her hours and that she occasionally claimed more hours than she actually worked. However, I also accept that she would work from home from time to time with permission, before the issues with her timesheets were brought to Ms Early’s attention.

28 July arrangement

62. On 28 July, 2016 Ms Early said to Ms Tahi that her working hours would need to be further reduced to 15 hours per week, or perhaps 30 hours per fortnight. Both parties acknowledged that the work was to be performed physically at the respondent’s office during those hours.
63. Ms Tahi says she was told by Ms Early that the reason for this was because “the business had cashflow issues”. Ms Early’s version is that the two had a discussion about Ms Tahi’s “lack of results” which was “putting a strain to the business”. Whatever the case, under this arrangement, Ms Tahi was able to nominate the days she worked. Ms Early says she gave Ms Tahi the option to cease her employment but that Ms Tahi wished to continue. Ms Tahi says no such option was presented to her and that Ms Early wished for her to remain but “could only afford 30 hours a week with the results as they stood”.
64. Ms Tahi was not advised how the performance targets or requirements would operate under the June arrangement or when her hours decreased to 15 hours per week, but she says she continued to work towards her targets in the initial contract. That there was no discussion about those matters is not surprising because she was working on an hourly rate.
65. Ms Early says Ms Tahi’s performance or results did not improve after 27 July, 2016.
66. Despite the new arrangement and the direction to attend physically at the office to perform work, Ms Early says Ms Tahi continued to submit timesheets for work performed outside the office. For example, between 29 July and 2 August, 2018 Ms Tahi performed her work away from the office. Ms Early points to the Telstra records which depict phone calls made from Beenleigh (Ms Tahi’s home suburb) between the hours of claimed work. Ms Tahi says she would have been in the office for each period of time for which she claimed on her timesheets, notwithstanding the origin suburb of the phone calls at the relevant times.
67. I accept that after the parties agreed that Ms Tahi would be present at the office she continued to claim hours on her timesheets for work performed outside of the office – generally at her home. The telephone records clearly indicate a coincidence of the origins of calls and the times claimed on her timesheets. These details are relevant insofar as the respondent contends Ms Tahi was dishonest in claiming her hours on her timesheet.

Two weeks of unpaid leave

68. On 4 August, 2016 Ms Tahi left work early to collect her son from day care because he had a fever. The next day he was still sick and, she says, it would have been futile to attempt to take him to day care. She called Ms Early to notify her of the situation at which point Ms Early either instructed or suggested – depending on whose evidence one believes – that Ms Tahi take two weeks off work, unpaid.
69. Ms Early’s evidence is that on 4 August Ms Tahi represented the situation as quite serious because, generally, she understood that Ms Tahi’s children were “very unwell”. For example, she referred to an incident on 12 July, 2016 in which Ms Tahi appeared anxious and sought assistance from other staff to urgently send a fax to the Gold Coast Hospital concerning one or both of her sick children. That fax is in evidence (QME-5 of Ms Early’s second affidavit), although absent expert medical evidence I cannot be satisfied about anything as to its contents. There is also some evidence in an affidavit deposed to by Shawn Collins attached to Ms Early’s affidavit. In it he said a few things about Ms Tahi’s personal state at the time and in particular that she was “stressed that her kids were vey unwell”.
70. On Ms Tahi’s evidence, the day care at which her children attended had strict policies regulating the attendance of unwell children which required her to collect them and take them home. She says this included when they had a fever. She also said that she did not require two weeks to care for her children – they would have been healthy and at day care by Monday. The reason, she said, she did not dispute the “direction” of her “employer” was because she wished to continue to work for the respondent. When she was cross-examined on this she denied that it was her request and reinforced that she was “forced to” take the time off.
71. One reason Ms Early “suggested” that Ms Tahi take two weeks off work was “also to make sure she did not charge me for hours ‘working from home’ whilst the children were so sick” and that she would not be able to “work productively from home with two sick babies”.
72. The parties agree that Ms Tahi took two weeks of unpaid leave from 5 August, 2016. Whether the cause was a suggestion, request or direction, it was instigated by Ms Early. Even if Ms Early “suggested” the time off, I do not accept that Ms Tahi could have said anything to change her mind. I also do not accept that Ms Tahi was amenable to taking the unpaid leave but that she acquiesced because of the situation in which she found herself as the employee.

Absenteeism and unfulfilled contractual hours

73. Ms Tahi returned to work on Monday, 22 August, 2016. Ms Early says that on that day Ms Tahi asked to leave work at 1:30pm because she had to collect a mobile telephone that was being or had been repaired. Ms Tahi says it was actually the following Wednesday that this occurred. Nonetheless, Ms Early says it was disappointing and that she felt that Ms Tahi “was not committed to the new work arrangement”. On her timesheet she recorded finishing work at 2:30pm but Ms Early notes, with reference to the Telstra records, that her last phone call from the office was at 1:30pm and the next call thereafter was at 2:27pm from Sunnybank South. I prefer the evidence of Ms Early that Ms Tahi asked to leave work at 1:30pm on her first day back after the two weeks of unpaid leave. It is consistent with the telephone records.
74. During the period after 28 July, 2016 Ms Tahi says there were three full days for which she was absent from the office due to caring for her children whilst they were ill. The telephone records corroborate this evidence. She concedes that on occasion she would have to leave work early in order to collect her children from day care due to illness or injury. She further deposes that she was late to work on two occasions: once due to car trouble; and once due to being locked out of her car and apartment. Otherwise, she says, she attended all work duties when she was requested to do so by the respondent.
75. The telephone records suggest that Ms Tahi’s evidence understates the number of times that she worked less than her stipulated working hours. The reasons for her arriving to work late or leaving work early tend to be about her child caring responsibilities. But there were occasions, even on Ms Early’s evidence, that Ms Tahi’s lack of attendance was due to reasons other than those responsibilities such as when her husband used their only car or when she locked the car keys in the house and herself out of the house.

Listing kit training claimed on timesheet

76. On Saturday, 27 August, 2016 Ms Tahi claimed hours of 9:00am until 2:00pm on her timesheet and described her work for that day as “listing kit” training. Her evidence is that the training was held on a previous weekday, but that Ms Early told her to record those hours against that Saturday because she had already worked 15 hours that week. She says she attended the training on Ms Early’s request, albeit late. In cross-examination she said she arrived at work at 12:00pm on the day of the training because she locked her children in the car and her keys in her house.
77. Ms Early adamantly denies any such training could have or did take place. She says this is another example of Ms Tahi’s dishonest and wrongful claiming of hours. In respect of Ms Tahi’s evidence that the training occurred on a different day (that is, not the Saturday for which she claimed she worked), Ms Early says that training did occur on 18 July, 2016 – almost six weeks beforehand. She provides some details about why the training could not have taken place on 27 August. I find that the listing kit training occurred on 18 July, 2016.
78. Ms Early says Ms Tahi did not attend that training. Ms Tahi says she attended that training at the request of Ms Early, albeit late, and that she was told to claim those hours (almost a full day’s work) to a Saturday almost six weeks later.
79. I found the evidence of Ms Tahi confused and confusing at times. She had attempted to make reference to the documentary evidence such as her timesheets to support her claims, but that evidence was not consistent with her evidence. Under the 4 June arrangement (which was then in operation) Ms Tahi was required to work Monday 18 July, 2016 from 9:00am to 3:00pm. Her timesheet indicates she worked from 12:00pm until 4:00pm on that day. There is not a single other reference to working from 12:00pm on any other day in her timesheets. That the listing kit training was on 18 July is consistent with her evidence that she attended the training, albeit late, at 12:00pm.
80. I accept that Ms Tahi attended that listing kit training late on 18 July. That was a day she was meant to work from 9:00am until 3:00pm. She attended late. She probably also left early because the telephone records for that day indicate that on 18 July at 3:17pm the phone allocated to her was used at Beenleigh. A call was made at 12:57pm from Underwood, which, on Ms Early’s evidence, is most likely at the respondent’s office. Why she claimed to work on Saturday, 27 August is not at all clear. I do not accept that Ms Early told her to ascribe the hours for the listing kit training day to 27 August, to any other day or even at all. Her claim for that day was inappropriate.

Timesheets generally

81. Ms Tahi claims that her timesheets were an accurate representation of the hours that she worked, with the understanding that her hours were “capped” and that she did not expect to be paid for the additional hours. She worked extra hours, as I understand it, because “calls needed to be made to find listing appointments to achieve listings”. She says she was never paid for her additional hours notwithstanding Ms Early’s evidence that she was given the “benefit of the doubt”.

Termination

82. On Thursday, 1 September, 2016 Ms Tahi called Ms Early and told her that one of her children was ill and that she was unable to attend work. She had left work early the previous day because her children, or one of them, were ill. Ms Early said words to the effect that:
    1. this had been her second chance;
    2. it “wasn’t working out”;
    100. “her life seems difficult for her to get into her real estate career at the present”;
    4. “we should finish up and that she should return our things including phones and uniforms”; and
    5. Ms Tahi was told to submit her phone and uniform.
83. Ms Tahi says she was on track to complete her contracted hours for the week and would have been available to work the next day, or perhaps the Monday, depending on which of her evidence one takes into account. Her children, she says, had “a simple fever”.
84. Ms Early conceded in cross-examination that had Ms Tahi attended work on 1 September, 2016 there would have been no need, then, to have dismissed her from her employment. The transcript of the hearing relevantly provides (p42, lines 3 – 11):

If I had have attended work on 1 September, there would have been no reason for my dismissal on that day?---On that day, no.

That’s right? Sorry?---No.

So if I had have attended work on 1 September, I would not have been dismissed. Is that right?---Because you rocked up to work?

Yes or no?---That’s right.

Blue cards

85. Shortly after her termination, Ms Tahi was contacted by Ms Early about some “blue cards” which Ms Tahi retained at her home. Blue cards were used in the respondent’s business to record client information. Ms Tahi kept some blue cards at her home to facilitate her working from home. She claims to have kept them after her termination because they were her property. After several attempts to retrieve the blue cards, Ms Early filed a complaint with the Queensland Police Service.
86. Ms Tahi attended a local police station on 10 September, 2016 to enquire if a complaint had been made and was told that it had. She then gave the blue cards to the police so they could “hold the property until the matter had been dealt with” and “so that police would know the matter had been dealt with”.
87. The respondent submits that this conduct ought to go against Ms Tahi’s credit.

Consideration

88. There are four separate occasions on which Ms Tahi claims the respondent took adverse action against her:
    1. on 2 or 4 June when her initial contractual arrangements were altered to her prejudice;
    2. on 28 July when her contractual arrangements were altered again to her prejudice;
    100. on 5 August when her duties were suspended in that she was forced to take two weeks’ unpaid leave; and
    4. on 1 September when she was dismissed.
89. Ms Tahi’s case is that each action amounts to a contravention of ss.340(1) and 351 because the respondent took that action “due to family and carer responsibilities”.

Was there adverse action?

90. Ms Tahi argues that the first three occasions of alleged adverse action come within the definition of adverse action in the Fair Work Act because each was an example of her being injured in her employment (s.342(1) item 1(b)) or of her position being altered to her prejudice (s.342(1) (item 1(c)). The termination of her employment was plainly adverse action: s.342(1)(a) of the Act.
91. In Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd (2013) 234 IR 190 Judge Cameron observed:
    • [133] In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union (Aust) [1998] HCA 30; (1998) 195 CLR 1 at 17–18 it was held that the phrase “injure an employee in his or her employment” covers injury of any compensable kind and that “alter the position of an employee to the employee’s prejudice” is a broad additional category which covers not only legal injury but also any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question. In Australian Workers’ Union v BHP Iron-Ore Pty Ltd [2001] FCA 3; (2000) 106 FCR 482 Kenny J said at 499 [54] that before a provision such as item 1 of s 342(1) can apply, it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer’s acts than before them, that the deterioration has been caused by those acts and that the acts were intentional in the sense that the employer intended the deterioration to occur. In McIlwain v Ramsey Food Packaging Pty Ltd [2006] FCA 828; (2006) 154 IR 111 at 198 [349], Greenwood J said that when injury to an employee in his or her employment or the alteration of an employee’s position to his or her prejudice is alleged, an assessment of the impugned conduct calls for a comparison of the position of the employee before and after the employer’s acts to determine the nature of the injury or prejudicial alteration.
    • ...
    • [136] As to the meaning of “position”, in Childs v Metropolitan Transport Trust Smithers J said:
      • It is possible to read the word “position” in a narrow way merely as referable to the immediate incidents of day-to-day employment. But I do not see any reason why it should be so circumscribed in meaning. It seems to me that the word “position” should be read rather to refer to a man’s employment position in all its attributes and that to find what those attributes are in any particular case, you look at the terms of employment, the terms of the agreement in relation to the particular employment. (at 947)
    • These views were also adopted by Evatt J in Blair v Australian Motor Industries and referred to by RD Nicholson J in Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34 at 69–70 [229].
    • [137] In order to determine whether Endeavour altered Mr McDermott’s position to his detriment, it is necessary to identify and compare his “position” before and after he was moved from the weekend day shift and then to determine whether it was altered to his prejudice as a result of that move.
92. I will deal with each of the alleged occasions of adverse action (save for the termination) in turn.
93. I have found above that Ms Tahi agreed to the change in her working arrangements which took place on 2 or 4 June and which commenced on 6 June. Ms Tahi benefited from that arrangement in that:
    1. she did not have to work on Saturdays;
    2. she did not have to work as many hours during Monday to Friday; and
    100. she earned $83.84 before tax per fortnight less under the 4 June arrangement than she did under the initial contract.
94. In other words, her hourly rate significantly increased. Moreover, not having to work on Saturdays relieved Ms Tahi of her need to make child care arrangements. To the extent that she was required to fund that child care on Saturdays (something about which the evidence was not clear) she was relieved of that burden. Any detriment to her from that change in employment, on an objective consideration, was minimal. She was not appreciably worse off under the latter arrangement than under the former arrangement.
95. Ms Tahi accepts that she agreed to the change in her arrangements and that the change brought benefits to her. However, she argued that her agreement was the product of undue influence or pressure put upon her by Ms Early to accept the terms of the 4 June arrangement. Although it did not seem to be a principal part of her case, Ms Tahi did refer to s.344 of the Act. Section 344 provides for undue influence or pressure:

(1) An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:

(a) make, or not make, an agreement or arrangement under the National Employment Standards; or

(b) make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or

(c) agree to, or terminate, an individual flexibility arrangement; or

(d) accept a guarantee of annual earnings; or

(e) agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.

96. This section does not, in my view, apply to Ms Tahi’s circumstances. She was not engaged in a negotiation with Ms Early about an agreement or arrangement under the National Employment Standards or about the term of a modern award or enterprise agreement. The section has no application to the present circumstances.
97. In any event, even if it did, Ms Tahi does not make out a case of undue influence or undue pressure. Pagone J considered s.344 in Australian Federation of Air Pilots v Jetstar Airways Pty Ltd [2014] FCA 15. Relevantly, his Honour said:

[12] ... Coercion may be understood as requiring “an intent to negate choice, and to do so by conduct which is unlawful, illegitimate or unconscionable”: John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FCA 235; (2009) 174 FCR 526 (“John Holland”), 540 [47]. Undue pressure, in the context of industrial law, should not be assumed to carry with it the same meaning as that comprehended by the equitable doctrine of undue influence: John Holland at 542–3 [56]–[57].

[13] ... The conduct prohibited by s 344 is that described by the composite phrase “undue influence or undue pressure” and a fundamental aspect of the phrase is that the influence or pressure must be “undue”. For pressure or influence to be “undue” it must, at least, be unwarranted or inappropriate by being excessive or disproportionate: see Australian Oxford English Dictionary, 4th ed, “undue” at 1561. The notions of excess and disproportionality are implicit in the concept of something being “undue”; that is, that the pressure or influence is something other than that which is “due”. Pressure or influence arising from an attractive inducement for the benefit of pilots and for the ultimate mutual benefit of pilots and Jetstar alike is not apt to be described as “undue”.

98. There is no evidence here or any undue pressure or undue influence in the sense necessary to engage s.344(1) of the Fair Work Act.
99. I am not satisfied that the change in Ms Tahi’s working arrangements that came about on either 2 or 4 June, 2016 was adverse action taken by the respondent against Ms Tahi. The circumstances of that change do not demonstrate that Ms Tahi was injured in her employment or that her position was altered to her prejudice.
100. On 28 July, 2016 Ms Tahi’s hours were reduced again. Ms Tahi did not agree to this arrangement. To the extent that she did agree, her options, even on the respondent’s case, were to accept the “reduced hours” or to leave. Ms Early’s affidavit relevantly provides:
     • 50. I gave the Applicant the option of continuing with QMT Realty on the reduced hours arrangement and she agreed to stay. It was agreed that the Applicant would work in the office 5 hours per day on Mondays, Wednesdays and Thursdays going forward. The Applicant nominated these days.
101. Ms Tahi’s financial position was undoubtedly significantly prejudiced by the 28 July arrangement. Under it, she earned half as much as she would have otherwise earned had her employment conditions not changed. She did not agree to it but had no real choice but to acquiesce. She was injured in her employment and her position was altered in her employment to her prejudice. Ms Tahi establishes that this action was adverse action for the purposes of s.342(1) item (b) and (c) of the Fair Work Act.
102. The third matter is the requirement that Ms Tahi take unpaid leave. I have found that Ms Tahi did not request to take two weeks of unpaid leave from 5 August to 19 August, 2016 but that she was required to by the respondent. Ms Early thought, over Ms Tahi’s protestations to the contrary, that she required two weeks away from work unpaid to care for her children. It was not paid leave, so the time away worked to Ms Tahi’s disadvantage unless she truly was required to care for her children for that period. But Ms Tahi’s unchallenged evidence was that they did not require care for that period. Were it the case that Ms Early had accepted that and permitted unpaid leave for the required (and shorter) period identified by Ms Tahi, it would be impossible to argue, I think, that there had been any adverse action at all. But forcing Ms Tahi to take two weeks unpaid leave when it was not required turned what might be seen as a benevolent act designed to assist an employee into adverse action for the purposes of the Act.
103. Ms Tahi was given no effective choice but to take that time off. Her financial position was prejudiced. I find that this action by the respondent also amounts to adverse action for the purposes of s.342(1) item (b) and (c) of the Fair Work Act.

Section 361

104. The respondent conceded that s.361 is engaged in respect of the dismissal. As for the other two episodes of adverse action I have found proved, the respondent does not concede that s.361 applies. But, the objective facts as I have found them to be raise a case sufficient to engage s.361 in respect of those occasions. On each occasion the adverse action followed very closely upon Ms Tahi having time off work or shortening her working day because of the need to care for her sick children. She had a workplace right to do so. The source of that right was s.102 of the Fair Work Act. Because she was a casual employee she had no right to paid carer’s leave pursuant to s.96 of the Fair Work Act: see s.95 of the Act. But she did have a right to unpaid carer’s leave. I find that on each occasion that Ms Tahi took carer’s leave and claimed that her children were ill, her children were indeed ill. Ms Early’s evidence seemed to accept that was so. On her evidence, Ms Tahi’s children were regularly very sick.
105. The circumstances raise a prima facie case that the respondent took the adverse action it did against Ms Tahi because of her need to care for her sick children or her need to take time off work to care for those children.
106. Once s.361 is engaged, the respondent must demonstrate that:
     1. in respect of s.340(1), it did not take adverse action against Ms Tahi because she:
        1. had a workplace right; or
        2. had, or had not, exercised a workplace right or;
        3. at any time proposed or proposed not to exercise a workplace right; and
     2. in respect of s.351(1), it did not take adverse action against Ms Tahi because of her family or carer’s responsibilities.

Causal link – the reason for the adverse action

107. The respondent submits that its “state of mind” is the relevant factor in determining the reason for taking adverse action. However, as French CJ and Crennan J pointed out in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 (above):

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. ...

28 July, 2016

108. The relevant circumstances surrounding the reduction in Ms Tahi’s hours on 28 July, 2016 are as follows:
     1. on 28 July Ms Early informed Ms Tahi that her hours were going to be further reduced and stipulated that the new hours must be performed while physically at the office;
     2. the conversation involved some discussion about the business’s struggling financial position;
     100. Ms Early says her reasons for the reduction were the issues surrounding Ms Tahi’s work behaviour and performance including:
          1. she could not be trusted to accurately and honestly record on her timesheets her actual hours worked;
          2. her attendance was “unpredictable”; and
          3. she was not producing sufficient results.
109. Ms Early says that Ms Tahi’s carer responsibilities for her children were not matters taken into account in respect of the reduction of Ms Tahi’s working hours. The reasons for which the respondent contends Ms Tahi’s hours were reduced were:
     1. the business could not afford to pay her for 60 hours per fortnight; “the financial strain her lack of results were putting on the business”;
     2. her “lack of trust that Ms Tahi was actually working the hours she claimed on her timesheets”;
     100. Ms Tahi’s “unpredictable start and finish times”;
     4. Ms Tahi “working from home without permission”; and
     5. she was not producing adequate results.
110. In addition to this evidence, Ms Early adduced some documents purporting to be a profit and loss statement of the respondent’s business. Those documents demonstrate a decline from profit in March, 2016 to loss in the subsequent three months to and including June, 2016.
111. Ms Tahi’s evidence was consistent with Ms Early’s claims about why she said there needed to be a reduction in hours for Ms Tahi. The limited evidence – the profit and loss statements – tend to corroborate the respondent’s position that it needed to reduce its expenses.
112. Moreover, I accept that Ms Tahi claimed extra hours and on occasion claimed hours for which she was not at the office. These matters would, no doubt, have been matters of grave concern to any employer. On her own evidence Ms Tahi says she claimed all hours she worked, even if she was not going to be paid for them all.
113. I also accept that Ms Tahi was not performing to Ms Early’s expectations. Ms Tahi’s evidence was that she was not informed of her targets under the new arrangement but continued to attempt to meet those set under her original agreement. I accept that evidence. It is a matter that I take into account.
114. Ms Early was aware of Ms Tahi’s children and their young age from the commencement of Ms Tahi’s employment. On her own evidence, Ms Early said that she remained flexible having regard to Ms Tahi’s commitments.
115. However, I am satisfied, and I find that the unpredictability in respect of Ms Tahi’s availability generally (disconnected from her family responsibilities), her lack of overall reliability, the distrust engendered by Ms Tahi claiming for hours beyond those that she actually worked and the generally declining performance of the business resulting in the need to reduce costs were the substantial, operative and only reasons for reducing her hours.
116. Ms Tahi’s family responsibilities was not a substantial or operative reason for Ms Early’s decision to reduce Ms Tahi’s hours. Nor was that she had an entitlement to take unpaid carer’s leave: cf. Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at 522–4 per French CJ and Crennan J; 535 per Gummow and Hayne JJ.

Two weeks’ unpaid leave

117. Ms Early’s reasons for directing that Ms Tahi take two weeks of unpaid leave were:
     1. “Tahi again was overestimating her abilities and had an unrealistic assessment of what is needed whilst her children were so sick”;
     2. she understood the children to be very unwell based on previous observations;
     100. she did not think Ms Tahi could, and she did not trust Ms Tahi to work productively from home; and
     4. “to make sure she did not charge me for hours ‘working from home’ whilst the children were so sick”.
118. On the respondent’s evidence Ms Early suggested that Ms Tahi take unpaid leave to attend to her ill children. However, the respondent seems to submit that Ms Tahi took that time off on her own volition. The evidence simply does not support that assertion. I note that no submission was made that s.351(1) does not apply because the adverse action was “taken because of the inherent requirements of the particular position concerned”: s.351(2)(b).
119. The reasons for which Ms Early made her decision relates directly to Ms Tahi’s conflicting responsibilities of caring for her children and her duties to her employer. Whilst I have no doubt that each of the matters that Ms Early identified played a part in her decision to require Ms Tahi to take two weeks unpaid leave, one of those reasons was plainly that she had family or carer responsibilities.
120. Whilst I accept that there were other reasons that Ms Early advances for imposing two weeks unpaid leave, those reasons flowed from Ms Early’s decision that Ms Tahi should have time to care for her sick children. It had to be unpaid leave because Ms Early could not trust Ms Tahi to reliably work from home. She did not want to be charged for unworked hours.
121. Rather than establishing that the respondent took the adverse action constituted by the requirement that Ms Tahi take two weeks unpaid leave for a reason other than a proscribed reason, the respondent’s evidence establishes that the adverse action was taken because Ms Tahi had family or carer responsibilities for the purposes of s.351 of the Act.
122. Section 340 requires that a reason for the adverse action was, inter alia, the existence or exercise of the employee’s workplace right. The inference that Ms Tahi invited me to draw in relation to s.340, I think, is that Ms Early sought to avoid the uncertainty in Ms Tahi’s attendance which was frequently affected by her pattern of taking unpaid leave in accordance with her workplace right under s.102. But the evidence establishes that the respondent did not take this adverse action because Ms Early had a right to unpaid carer’s leave that she intended to exercise. I think that the respondent’s evidence establishes that it did not take the relevant adverse action against Ms Tahi for reasons that included, inter alia, the existence or exercise of her workplace right to take unpaid carer’s leave. That is to say, the respondent discharges the onus upon it in respect of Ms Tahi’s claim based upon a contravention of s.340 of the Act in respect of this requirement to take unpaid leave.

The dismissal

123. Ms Early’s evidence is that Ms Tahi was dismissed because:
     1. she was unable to, or there was some difficulty with, working on Saturdays, which are the biggest days in real estate;
     2. there were issues with the hours Ms Tahi claimed she had worked on her timesheets and the hours that she actually worked and that:
        1. she was dishonest about the hours that she actually worked;
        2. she claimed that she worked from home when she was not authorised to do so; and
        3. she often arrived at work late, left work early or was unable to attend work at all;
     100. Ms Tahi’s dress attire was “disappointing”. It included “food on her clothing”, “black tights which showed her full frontal region as her shirt was not long enough” but once they were provided, “she did wear the supplied uniforms most of the times”; and
     4. she exhibited aversion to “door knocking”; a task she was required to undertake and a task which she did not undertake.
124. Ms Tahi disputes those matters. She says that:
     1. with respect to working Saturdays, she simply advised Ms Early that she would need to know in advance the hours required to be worked on each Saturday in order to make appropriate arrangements for childcare. She conceded in cross-examination that she was told that Saturdays are the biggest day in real estate and that she told Ms Early she was able to work on Saturdays;
     2. with respect to the issues of her claimed hours:
        1. she only claimed hours on her timesheets for which she actually performed worked;
        2. she sought or had approval to work from home on the weekend. She submits that she was advised to work extra hours to “succeed in real estate”; and
        3. she did not often arrive at work late, leave early or was unable to attend work at all;
     100. her dress attire was at all times appropriate and professional; and
     4. she attended to her “door knocking” duties.
125. However, having regard to Ms Early’s own evidence in cross-examination about why she dismissed Ms Tahi, the only conclusion open is that because Ms Tahi was not coming into work because of her caring responsibilities, Ms Early decided to terminate her employment. That was the substainial and operative reason for the adverse action taken by Ms Early on behalf of the respondent on that day. There may well have been other reasons that may have led to Ms Tahi’s employment being terminated in any event at a later date, but on that date at that time, the operative reason was Ms Tahi taking or attempting to take further unpaid leave so that she could care for her sick child.
126. I am satisfied that the termination of Ms Tahi’s employment on 1 September, 2016 was adverse action that the respondent took:
     1. because Ms Tahi attempted to exercise her workplace right to take unpaid carer/s leave; and
     2. because of Ms Tahi’s family or carer’s responsibility.

Relief

127. The Court may make any order it considers appropriate if the Court is satisfied that a person has contravened a civil remedy provision of the Fair Work Act 2009: s.545(1). Section 351(1) of the Act is a civil penalty provision for the purposes of s.545(1): s.539(1) of the Act. So too is s.340 of the Act.
128. Such an order might award compensation for loss that an applicant has suffered because of the contravention: s.545(2)(b) of the Act.
129. Further, the Court may order a person to pay a pecuniary penalty that the Court considers is appropriate if the cCourt is satisfied that the person has contravened a civil remedy provision: s.546(1) of the Act. In the case of a body corporate, the pecuniary penalty must not be more than five times the maximum number of penalty units referred to in the relevant item in column 4 of the table in s.539(2) of the Act: s.546(2)(b) of the Act.
130. The Court may order that the pecuniary penalty, or a part of the penalty, be paid to the applicant: s.546(3)(c) of the Act.
131. The Court may award compensation and order the payment of a pecuniary penalty: s.546(5) of the Act.
132. Interest must be taken into account on application: s.547(1)(2). Ms Tahi made no claim for interest payable to her by the respondent on any amount of compensation.
133. Ms Tahi does not seek to be reinstated in the respondent’s business. Her case summary document provides the relief she seeks:

Particular	Calculation	Total
Non economic loss, hurt, humiliation, stress		$20,000.00
Two weeks forced unpaid leave @ casual hourly rate	91.5hrs x $25.00	$2,287.50
Loss of earnings dismissal to claim FCCA	1.9.16 – 10.2.17 $1,216 x 11.5	$14,070.25
Loss of super dismissal to claim FCCA	1.9.16 – 10.2.17 $129.96 x 11.5	$1,494.54
Shortfall in wages for unpaid overtime	timesheet owing $22.80 x 26	$592.80
Unpaid bonus for underground listings	6 x $500,00	$3,000.00
Loss of earnings claim lodge to hearing FCCA	10.2.17 – 3.10.17 $1,216.00 x 16	$19,456.00
Loss of super claim lodge to hearing FCCA	10.2.17 – 3.10.17 $129.96 x 16	$2,079.36
Potential commissions		Undetermined

134. In cross-examination Ms Tahi conceded that this document required amendment because it did not take into account her employment since she was dismissed by the respondent.
135. She seeks “a provision of some type be imposed that the respondent” not encumber any of her future employment opportunities; not pursue any further criminal proceedings in relation to the claim of theft and stealing; and not breach her privacy by using its resources to access her personal information.
136. Ms Tahi also seeks that “a civil claim under the 2005 Act be considered reasonable” if the evidence demonstrates “that the respondent did infact disparage the applicant”. In relation to this claim “under the 2005 Act”, the respondent submits that Ms Tahi refers to the Defamation Act 2005 (Qld) and, correctly, points out that this Court does not have jurisdiction to hear that claim.

Loss of earnings

137. It can be seen from Ms Tahi’s case summary document that she claims “loss of earnings” from the date of her dismissal through to the date of trial. But Ms Tahi has been employed since 1 September, 2016.
138. On 1 September, 2016 Ms Tahi called Ms Early under similar circumstances to those on 5 August. That is, she exercised her right to take unpaid carer’s leave. Her dismissal took effect from that time. However, any entitlement to lost income cannot have arisen until the next day. I accept that Ms Tahi would have worked on 2 September had she not been dismissed.
139. Her employment history since she was dismissed by the respondent was the subject of cross-examination. Ms Tahi secured permanent full time employment with a company called StarTrack. That job commenced on 5 June, 2017. On her evidence she worked on at least two other occasions, for employers which she could not recall, for periods of time that she could not recall. She gave evidence to the effect that she worked on a temporary full time basis for six to eight weeks between December, 2016 and January, 2017 at “Collection House” and then for another six to eight weeks sometime around April, 2017 at “Inspire Education”. There may have been others. There is no evidence about how much she earned during any of those employments.
140. Ms Tahi bore the onus of proving her economic loss. Her evidence in respect of her employment since her dismissal by the respondent was vague and evasive. She claimed that she did not believe temporary positions of employment were relevant to her claim for compensation and so did not include them in her court documents.
141. Ms Tahi said that she was actively seeking employment since the date of her dismissal. In her affidavit she deposes to sending “80+” applications for employment.
142. The legal representative for the respondent made the following submission at the hearing:

The only quantum that I think your Honour could justify in respect of an award for damages in this case would seem to be for two months wages from the period 1 September, when she was dismissed, to 1 November, when she says on her own evidence she entered back into employment.

143. It was put to Ms Tahi at various points in cross-examination that she entered employment in November, 2016. She gave no contrary answer. She said she disclosed the information to the respondent’s “previous representation”.
144. Ms Tahi’s loss of earnings, therefore appears to be limited to a claim for the period from her termination from 2 September, 2016 until the earliest time when she re-entered the workforce, on 1 November, 2016. That sum totals $3,125. The respondent’s contributions to her superannuation ought to be taken into account at 9% of her wage. That sum is $281.25.
145. I assess her loss of earnings accordingly at $3,406.25.

Two weeks’ unpaid leave

146. Ms Tahi was not paid for the period inclusive of Friday, 5 August until Friday 19 August, 2016. I have found that the direction to take that leave was a contravention of s.351(1) of the Act. During that period, Ms Tahi’s employment operated under the 28 July arrangement. Because she was a casual employee and because, as I have found, the reduction in her hours pursuant to that arrangement was not a contravention of ss.340(1) or 351(1):
     1. the respondent was entitled to alter Ms Tahi’s employment; and
     2. Ms Tahi was not entitled to paid personal or carer’s leave under s.96 of the Act.
147. On the morning of 5 August Ms Tahi called Ms Early to notify her that, ostensibly, she was exercising her workplace right under ss.102 and 103 to take unpaid carer’s leave. Thus, she cannot be entitled to be paid for that day. She said in evidence, and I accept, that her children were well by the following Monday.
148. I find that the period of the unpaid leave for which she is entitled to compensation is 8 to 19 August, 2016 – that is exactly two of Ms Tahi’s working weeks. Had she not been directed to take unpaid leave for that period, she would have been entitled to 15 hours per week at a rate of $25 per hour. That amounts to $750. The respondent ought to have contributed to her superannuation the sum of $67.50. I assess her compensation accordingly at $817.50.

Overtime

149. As I have found, Ms Tahi was not entitled to overtime. She was not entitled to any payments outside the scope of her relevant employment arrangements. For the initial contract it was a salary with working hours only a guideline. For the June arrangement she was entitled to 60 hours per fortnight at $25 per hour. From the time of the July arrangement she was entitled to 15 hours per week at $25 per hour. She was at no relevant time entitled to overtime pay.

Bonuses

150. Ms Tahi claims to have been unpaid for six bonuses each of $500.
151. The provision for bonuses in the June arrangement as exemplified in the 4 June email, and which carried over to the July arrangement, was as follows:

Bonus of $500 per house listed.

152. On 27 June, 2016 Ms Tahi and Ms Early exchanged emails seeking to clarify the circumstances surrounding the provision for bonuses. Ms Early explained that bonuses are for “Exclusive listing” and “Contract for an underground sale”. Some explanation was provided by both parties about the meaning of an “underground” sale or listing. Relevantly, underground listings are not publicly listed, for example on realestate.com, and the owners “Always want a very high price for their home and if they get their money, they will move”. The respondent submitted that bonuses were only paid for listings which eventuated to sale. That is contrary to Ms Early’s evidence.
153. Ms Tahi contends that she was advised before 27 June that by finding a buyer and receiving an offer for a particular property she would qualify for a bonus as it would be a “buyer appointment” – distinct from a “listing appointment”. She was later told because the owner did not accept the offer she was not eligible for a bonus. At another point in her evidence she said:

My understanding was that this meant that any listing I brought to the agency would attract the bonus. I was later advised, 27.6.16 this does not include what QMT Realty referred to as “underground listings”. I would need a contract of sale not a listing to receive bonus.

154. She now contends that she is unpaid for six bonuses because there was no stipulation in the June arrangement that underground listings had to be “live” listings (i.e. advertised publicly on an online portal such as realestate.com) or that underground contracts had to come to fruition. She claims she was entitled to a bonus for listings that did not continue to a sale.
155. On the limited evidence before me, I find that the provision for a “listing bonus” was in respect of underground listings which eventuated to a sale and live or exclusive listings. That is consistent with both parties’ evidence at least for after 27 June, 2016. I do not accept that the provision in the 4 June email for “listing bonus” was a misrepresentation of the June arrangement. The email does not constitute the exclusive terms of the parties’ June contract.
156. I do not, however, accept that the only listings for which Ms Tahi was eligible for a bonus were listings which eventuated to a sale.
157. Ms Tahi’s evidence demonstrates that none of her six underground listings proceeded to sale or became live listings. She was not paid for any listing bonuses because she was never eligible for any.

Potential commissions

158. Ms Tahi does not particularise her claim for “potential commissions” and she does not provide an amount for which she claims. There is no evidence to support her claim for potential commissions.

Economic loss generally

159. Ms Tahi is entitled to $4,223.75 by way of economic loss.

Non-economic loss

160. In support of her claim for “loss, hurt, humiliation, stress”, Ms Tahi annexes to her affidavit a document apparently illustrating her high blood pressure as a result of her dismissal. It contains readings from, relevantly, 13 February, 18 July, 1 October and several thereafter. The respondent submits that this document is insufficient evidence to demonstrate that Ms Tahi has suffered “from any particular condition referable to the termination of her employment.” I agree. In the absence of any evidence that explains the evidence about her blood pressure it has no particular significance.
161. Compensation for non-economic loss is available: see Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526 per Barker J. The contravention need not be the sole cause of loss for the power to be available: Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 934 at [52].
162. Greenwood J considered the limits imposed on the Court’s discretion to make an appropriate order in McIlwain v Ramsey Food Packaging Pty Ltd (No.4) [2006] FCA 1302; (2006) 158 IR 181. Relevantly his Honour said:
     • 87. In reaching the conclusion that it is appropriate in the circumstances of the case to order compensation, I recognise that compensation must be confined within reasonable limits and that restraint is required (Burazin v Blacktown City Guardian Pty Ltd [1996] IRCA 371; (1996) 142 ALR 144 at 156). In addition, not every termination of employment will attract compensation. In Burazin, their Honours Wilcox CJ, Von Doussa and Marshall JJ concluded that in the circumstances of that case, there were “unusual exacerbating circumstances that make it appropriate to include in the compensation an allowance for distress unnecessarily caused to Mrs Burazin”. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ACI Operations Pty Ltd [2006] FCA 122; (2006) 150 IR 179 at [11], Marshall J concluded that something more than the usual element of distress which accompanies most terminations must be demonstrated although the notion of “unusual and exacerbating circumstances” is not necessarily the test. In Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (WA Branch) (1995) 63 IR 1 at 9, Lee J made a number of observations concerning those factors which might inform whether it is “appropriate in all the circumstances of the case to make an order requiring the employer to pay to the employee compensation of such amount as the court thinks appropriate” in respect of a contravention of the relevant Division of the Industrial Relations Act 1998 (Cth) (the IR Act) for the purposes of s 170EE of the IR Act. That particular legislation also set a cap upon the amount of the compensation that might be ordered. As a matter of general principle, Lee J considered that the court would have regard to “what is reasonable in the circumstances” and would consider “the detriment occasioned to the employee by the employer’s contravention of the Act” and the extent to which “it is reasonable to compensate the employee for such consequences”. In some cases, it may be appropriate to include in the measure of compensation a sum “sufficient to compensate an employee for mental distress or injured feelings caused by a harsh, unjust or unreasonable termination of employment”. Although the statutory context is, of course, a different one, notions of what might be “reasonable” are relevantly analogous to notions of what is “appropriate”. A consideration of a compensable component of mental distress in the context of conduct characterised as an unjust or unreasonable termination of employment suggests such a consideration would be more so relevant in the circumstances of the prohibited purposes identified by the Workplace Relations Act (s 298L(1)) and the objects the Act seeks to achieve by force of the prohibition.
     • 88. In determining that each employee ought to be paid compensation of $3,000 in the circumstances of the breach by the Greater Dandenong City Council of s 298K of the Act, Madgwick J made reference to Fryar v System Services Pty Ltd [1996] IRCA 209; (1996) 137 ALR 321 at 330-331 per Von Doussa J. The Respondents say that Fryar’s case is not an illustration of the exercise of such a jurisdiction. It seems to me that the reference by Madgwick J to Fryar’s case was simply intended to recognise that at least in the context of a severance payment which is a form of compensation for the loss of “non-transferable credits and entitlements built up through length of service such as sick leave, long service leave and for inconvenience and hardship imposed by the termination of employment through no fault of the employee” (Von Doussa J at 331, line 15), the inconvenience and hardship element “includes the disruption to the employee’s routine” and other matters. In point of principle, compensation in respect of the contravention of the Act might also take account of disruption and dislocation.
163. Further, in Dafallah v Fair Work Commission [2014] FCA 328 Mortimer J set out the applicable principles and approach to an amount of compensation pursuant to s.545 of the Fair Work Act:

148. The language of s 545 is broad, allowing the Court to provide remedies which meet the circumstances of any given contravention, taking into account the range of patties who may have brought proceedings in relation to the contravention, and the actions which might in any given circumstance be required to remedy the contravention, or to ensure it does not occur again. Awarding compensation for loss is but one example and may not be appropriate, depending on what other action has been taken in respect of any losses. Each case will turn on its facts in that sense.

149. Fixing compensation under s 545 is a statutory task, and the Court must not substitute that task with approaches derived from the general law: Murphy v Overton Investments Pty Ltd [2004] HCA 3; (2004) 216 CLR 388; [20014] HCA 3 at [44]; Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69 at [94] per French and Jacobson JJ.

150. In my opinion, the following features of s 545(1) and its place in the scheme of the FW Act are relevant.

151. The purpose of identifying obligations in the FW Act as civil remedy provisions, and thus enabling penalties to be imposed for conduct contravening those obligations, is to establish norms of conduct across the activities covered by those provisions - minimum wages, equal remuneration, industrial action, right of entry, the general protections regime, and the requirements of enterprise agreements. Subjecting conduct contravening these provisions to the imposition of civil penalties is intended to serve the aims of deterrence (both specific and general) as part of a legislative aim to reduce or eliminate such conduct.

152. In some circumstances, compensation for loss because of the contravention may relate to loss suffered by more than one employee, or by an employee organisation or an industrial association.

...

155. A contravention of orders made by the FWC relating to unfair dismissal is, by s 405, a civil remedy provision. Otherwise, the provisions relating to unfair dismissal are not, in contrast for example to the general protection provisions, civil remedy provisions.

156. Where the subject matter of the contravention is a breach of an agreement closely connected to the termination of a person’s employment for poor performance, as is the case here, the Court must, in exercising power under s 545(1), be careful not to undermine the operation of the unfair dismissal provisions, and the limits Parliament has placed on them. That is especially so in circumstances where unfair dismissal proceedings have been unsuccessfully pursued, as is the case here. An order for compensation which has such an effect may not, in my opinion, be an “appropriate” order for the purposes of s.545(1).

157. Further, the width of the power conferred by s 545(1) also allows for compensation which may not fully compensate a person for the loss suffered: see Gama (2008) 167 FCR 537; [2008] FCAFC 69 at [94] per French and Jacobson JJ, where their Honours were considering similar statuto1y compensation provisions under s 46PO(4) of the Human Rights and Equal Opportunity Act 1986 (Cth). In my opinion, that approach is available under s 545(1) because, as their Honours pointed out in Gama at [94], an award of compensation is discretionary. Ins 545(1), the governing consideration is what the Court considers “appropriate”, and this in my opinion leaves room for a Court to find in a given case that less than full compensation might be appropriate.

158. While by no means operating as a mandatory approach to a discretion such as that conferred by s 545(1), with respect I adopt the remarks of Lee J in Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia- Westerm Australia,, Branch (1995) 63 IR 1, considering factors relevant to an award of compensation under s 170EE of the then Industrial Relations Act 1988 (Cth.). His Honour said (at 9), that the Court will “have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened ... The Court will consider the detriment occasioned to the employee by the employer’s contravention of the Act, and the extent to which it is reasonable to compensate the employee for such consequences.”

159. One of the principal tasks, if compensation is to be awarded, is to ensure that there is the appropriate causal connection between the contravention and the loss claimed: Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526; (2011] FCA 333 at [ 423] per Barker J.

160. The Full Court in Burazin (1996] IRCA 371; 142 ALR at 155 approved this approach. Some of the matters referred to by Lee J are similar to those set out as considerations ins 392(2). Although the power under s 545(1) is separate and independent, in my opinion, since the same stah1tory concept of compensation is involved, it is appropriate to consider factors similar to those set out in s 392(2).

161. In considering causation, in the circumstances of a clearly fraught employment relationship as was the case between Ms Dafallah and Melbourne Health, it is appropriate in my opinion to consider that the employer would have in any event been entitled to exercise any power it had to bring the employment contract lawfully to an end in a way most beneficial to itself. The likelihood of an employer taking such a step will be fact dependent but, in contractual terms, it has been held to be relevant to the assessment of damages: see Bostik (Australia) Pty Ltd v Gorgevski [1992] FCA 209; (1992) 36 FCR 20 at 32. In my opinion, it is a factor which can also be taken into account for the purposes of determining what compensation is appropriate under s 545(1), where compensation is limited to the loss caused by the contravention.

164. I accept that Ms Tahi’s dismissal was difficult for her. However, I do not accept that there were any unusual exacerbating circumstances. To the extent that the incident involving the retention of the blue cards caused hardship, I consider that to be a burden created by Ms Tahi and not due to any unreasonable action taken by Ms Early. The evidence suggests that multiple, reasonable steps were taken to have Ms Tahi disgorge what was plainly her employer’s property before the police became involved.
165. Bearing in mind the warning posed by Mortimer J in Dafallah that the Court should be careful not to undermine the operation of the unfair dismissal provisions and the limits Parliament has placed on them, in my view an order for compensation for non-economic loss is not appropriate in this case.

Conclusion

166. For the reasons set out above, I will make orders that the first respondent pay to the applicant the sum of $4,223.75.
167. I make the orders set out at the commencement of these reasons. I will hear the parties as to the penalties that ought to be imposed upon the respondent for the contraventions that I have found proved.

I certify that the preceding one hundred and sixty-seven (167) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date: 13 December 2018