The Federal Court has rejected an employee relations specialist's claim that her employer took unlawful adverse action when it sacked her for taking sick leave after she suffered a mental breakdown and made allegations of sexual harassment.
Justice Geoffrey Flick accepted argument from the Catholic Education Office (CEO) Diocese of Parramatta that the ER team leader's dismissal was the result of an extensive 196-page report into allegations she bullied and harassed employees and her failure to acknowledge the inappropriateness of her conduct.
He accepted the CEO's contention the ER team leader had created a "climate of intimidation and fear" in the workplace and was dismissed because of a "total breakdown" in working relationships.
An independent investigation found "resounding evidence" that the ER team leader had bullied her co-workers and engaged in aggressive behaviour and humiliated colleagues by giving them the "silent" treatment.
In addition, she had unreasonably withheld information crucial to effective and productive work performance, isolated colleagues and made them appear incompetent.
He rejected the employee's claims that the CEO took adverse action against her when she exercised her workplace right to complain to management about what she perceived as a demotion following her return to work or that it discriminated against her when she took leave to manage mental health issues.
Justice Flick said the employee was unable to establish a complaint was ever made, other than "oblique" references that she failed to explain.
While the judge accepted there had been a "deliberate attempt to redistribute the workload", changes introduced to the organisation's reporting structure had occurred before her absence and were nothing more than an "attempt to put in place a team of persons who worked together ".
These arrangements were "clearly resented" by the ER team leader, said Justice Flick.
"None of those reasons had anything to do with the exercise by [the employee] of any 'workplace right' and all reasons were directed to the absence of any 'trust or confidence' on the part of [the employer] as to [the employee's] ability to 'perform [her] role as the team leader – employment relations in a manner which would ensure the health and safety of employees' whom she supervised," he said.
Justice Flick also accepted that the ER team leader's complaints of sexual harassment and discrimination against the organisation's chief executive had "not been made out" and that the court had no jurisdiction in any case because she had failed take her grievances to the Human Rights Commission.
The employee also claimed she was the victim of "unwelcome conduct of a sexual nature" under s28A(1)(b) of the Sex Discrimination Act .
She alleged the executive director of schools had asked her to participate in an interview in his hotel room, told her to do "the Pretty Woman thing" when addressing a number of male colleagues, complemented her for looking "particularly fresh" and referred to her as "Maggie Thatcher" and said: "I bet you don't have frilly lace around your bed".
She also claimed that the director of financial, administrative and staff services once "leered" at her breast and said: "I think we are going to get along just fine".
Justice Flick noted that the facts that emerged at the hearing "exposed a very different context" to that presented by the ER team leader.
The executive director of schools denied the ER leader's claims.
He explained that he asked her to move the interview from the hotel reception area because other employees there were participating in the meeting on Skype and their contributions could not be heard over the background noise.
He also said his reference to the film "Pretty Woman" was a suggestion that she change the manner in which she dealt with people and not meant in the context of emulating the part of a "woman of the night".
"It may be noted that none of the limited number of instances of sex discrimination now relied upon were raised by [the employee] prior to the termination of her services.
"Although even isolated conduct which can properly be characterised as 'sexual harassment' remains harassment irrespective of whether or not the conduct has previously been brought to the attention of others, the failure to raise any of these incidents with [the employer] at the time can potentially be relevant to an assessment as to the seriousness with which [the employee] viewed such conduct at the time – as opposed to her assessment of such conduct at a point of time subsequent to termination – and relevant to a proper characterisation of the conduct," he said.
In the absence of any complaint being made to the Human Rights Commission, the court had no power under the Sex Discrimination Act to make a determination, Justice Flick said.
He also rejected the ER team leader's contention that allegations of sexual harassment were a contravention of the Fair Work Act, as opposed to the Sex Discrimination Act.
Even if her proposition that s351 of the Fair Work Act "embraces a prohibition of sexual harassment" and her complaints of sexual harassment were made out, Justice Flick said her claim would fail because the employer did not take adverse action against her for exercising a workplace right under s341(1)(a).
Wroughton v Catholic Education Office Diocese of Parramatta [2015] FCA 1236 (17 November 2015)