Alde v Healthscope Operations Pty Ltd Trading as Northpark Private Hospital
[2022] FedCFamC2G 12
•21 January 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Alde v Healthscope Operations Pty Ltd Trading as Northpark Private Hospital [2022] FedCFamC2G 12
File number(s): MLG 4230 of 2020 Judgment of: JUDGE BURCHARDT Date of judgment: 21 January 2022 Catchwords: INDUSTRIAL LAW – Applicant asserting adverse action including dismissal as a result of exercising of workplace rights – whether the applicant’s application for study leave and a text she wrote to her supervisor after it was rejected caused and set in train a series of retaliating disciplinary actions – whether applicant’s bullying claim against the supervisor caused adverse action – respondent’s witnesses denying that disciplinary actions taken for any reasons other than bona fide concerns about the applicant’s work performance – respondent’s witnesses all accepted as truthful – reverse onus discharged - application dismissed. Legislation: Fair Work Act2009 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 55 Date of last submission/s: 22 December 2021 Date of hearing: 20-22 December 2021 Place: Melbourne Counsel for the Applicant: Mr McKenney Solicitor for the Applicant: Wisewould Mahony Counsel for the Respondent: Mr McDermott Solicitor for the Respondent: Kingston Reid ORDERS
MLG 4230 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KIARAH ALDE
Applicant
AND: HEALTHSCOPE OPERATIONS PTY LTD TRADING AS NORTHPARK PRIVATE HOSPITAL
Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
21 JANUARY 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTION
The applicant seeks remedies arising out of what she says was adverse action (including dismissal) taken against her by the respondent as a result of the exercise by her of certain workplace rights. The respondent in the main admits that the applicant had workplace rights and exercised them but denies that any of the actions taken against Ms Alde, including her termination of employment, took place because of the exercise of those rights. Put shortly, I have concluded that the respondent’s witnesses, all of whom denied being in any way motivated by the exercise of the applicant’s workplace rights, were truthful. The disciplinary action taken against the applicant which culminated in the termination of her employment was not activated at all by the various matters the applicant had raised, and it follows that the application will be dismissed.
THE AGREED OR UNCONTROVERSIAL BACKGROUND / AN OUTLINE.
The applicant commenced employment with the respondent in September 2011 and was promoted to the position of assistant nurse unit manager on 16 April 2012. Her employment continued, it would appear, uneventfully thereafter. The applicant has asserted that she was never the subject of any indication that her employment was anything other than exemplary, but this is slightly exaggerated (she was unable to recall complaints made in 2017 – CB381 and CB384). But overall it appears that she was a satisfactory employee.
In late 2019, the applicant applied for the position of nurse unit manager in the West ward where she worked. Mr Dan Mabon also applied and was selected instead of, amongst others, the applicant. Mr Mabon developed concerns that the applicant had either missed a shift or had been late. On 1 April 2020, he wrote to the applicant (CB302) about the applicant’s failure to attend work on 27 March 2020 and expressed his intention to give the applicant a warning for this. She apparently refused to attend the meeting that the letter had foreshadowed.
On 16 April 2020, the applicant applied for study leave, and Mr Mabon co-signed the relevant form. From the unchallenged evidence in the affidavit of the director of nursing, Ms Curran, it seems that Mr Mabon placed the application on her desk. Ms Curran decided to refuse the application on the basis that it was possible for such study to be done at work. On 24 April 2020, Mr Mabon relayed to Ms Alde that the director of nursing had “declined study leave as currently there is opportunity with low patient load to be doing that while in work. Any queries let me know, or you can contact DON…” (CB190).
The applicant responded with a lengthy text message (“the text”) (CB191 - 194) as follows:
Hi, Dan. Good afternoon. I was planning to call you today to follow up regarding my request but unlucky it was disapproved after your consultation with the DON. Thank you for informing me.
With all due respect Dan, as much as i don’t want to compare u with all the female managers i had been with, you are the unique one but incapable of holding the role as unit manager. You are my direct manager who can sign off for my study leave, not the DON. So just to let you know, im aware whO signed off to some staff on recent study off. Fyi, this is my first study days request for this calendar year, which I am entitled to. The DON has nothing to do with it or decide in her power to decline most especially, staff CPD. With my previous 6 managers none of them had refused a single request pertaining to professional development. If you are unfamiliar with your position description to be effective enough kindly refer to Healthscope Intranet for your perusal. Im sorry to speak to you like this because you’re making this hard for me to learn or relearn more but you declined it and so I give this back to you with flying colours. Il fight for my right and to raise my voice aloud for you to understand and comply religiously as unit manager healthscope’s performance And development STANDARDS. From day 1 I have felt already how you have bullied me discreetly and even echoed to your loud threatened unprofessional laughs. I thought i have found a comrade already because you are part of LGBtQI fam but I was wrong to see you with different approach not same intention to be fair, to care w/ passion and be the light for all. I have left with no option but to put this to end before anyone’s horn grows taller like maleficent as you do in short time. It’s bad and unhealthy.
Shortly I will be in contact with our DON as her opinion to decline staff study leave marks a red flag against healthscope STAR values and policy, most especially at this time of crisis that staff needs to stimulate brain n keep going by enrolling online course and also contradicts EBA 2016-2020, professional development leave and associated entitlement. What a shame. Anyway, keep it up and youll reach the height of your full potential soon. Just it.
This vituperative response seems to me, with the benefit of hindsight, to have been the starting point for the misfortunes that befell the applicant. Unsurprisingly, Mr Mabon complained about it to his direct superior, Ms Curran, the DON. Ms Curran wrote to the applicant (CB197 - 199) outlining allegations of unsatisfactory conduct by the applicant. The letter alleged, relevantly, that the applicant had sent the SMS text message which I have just set out and that she had failed to attend on a rostered shift or provide reasonable notice to a line manager on 27 March 2020.
On 29 March 2020, Ms Curran asked Mr Mabon to ask the applicant to come to her office, but the applicant declined (there is a dispute as to what passed between the applicant and Mr Mabon) but in any event she did not attend. Subsequently, a meeting took place on 4 May 2020, which the applicant attended with a support worker together with Ms Curran and Mr Mabon. The applicant read out a response (CB205 - 206). It is fair to say that the applicant denied any unsatisfactory conduct on her part. She described the text message as “an honest, consice and significant opinion via SMS message regarding his competence on his role in the ward as nurse unit manager”.
On 6 May 2020, Ms Curran sent the applicant a first formal warning (CB208 - 209).
On 8 May 2020, the applicant sent Ms Curran a complaint against Mr Mabon for “inappropriate workplace conduct in areas of harassment, discrimination, and in general we call it Bullying” (CB211 - 213). The matters raised can be paraphrased as:
(a)the failure to approve study leave;
(b)a display of physical aggression and coercive approach (this refers to the occasion when Mr Mabon asked the applicant to go to a meeting with Ms Curran on 28 April 2020);
(c)deliberately withholding information necessary for effective work performance / failure to include emails from the ACAS team;
(d)unfair allocation of tasks or rostering;
(e)exclusion from access to the Kronos record keeping system;
(f)demeaning repetitive reminders of shift;
(g)deliberate modification of working arrangements to make them inconvenient;
(h)psychological intimidation.
This correspondence followed earlier correspondence. Ms Curran had construed the text as raising a bullying allegation against Mr Mabon and wrote to the applicant on 29 April 2020 seeking information about this (CB269 - 270). It should be noted that the Healthscope bullying policy was enclosed, and both that and the letter from Ms Curran made it clear that relatively detailed information including as to the date and times of such conduct and the presence of other witnesses inter alia would be required.
Unbeknownst to the applicant at the time, Ms Curran had broached the complaints made by the applicant with Mr Mabon and found his denials of any misconduct convincing (CB263). In Ms Curran’s opinion he denied the allegations completely and convincingly.
On 2 June 2020, Ms Curran wrote to the applicant (CB 215-218) giving her conclusions as to the bullying allegations. The allegation about study leave was rejected because it was Ms Curran, not Mr Mabon, who refused the application. All of the others were determined on the basis that there was insufficient evidence provided to determine whether inappropriate conduct had taken place. The letter said, relevantly:
Moving forward, if you are able to provide the requested evidence and the detail required to progress the investigation, I would be able to reconsider your claims against Mr Mabon. As you can appreciate, it is very difficult to respond and investigate to broad accusations that lack sufficient detail and evidence for thorough investigation.
Given the very limited amount of explicit and objective detail (i.e. what has occurred, where and when did it occur, what were the impacts, did other people witness the occurrence etc.) which you have provided us with to date to support your allegations, Northpark will assume the position that unless further evidence with adequate detail to allow us to investigate further is received around these current claims, Northpark will conclude that available evidence and probability around these matters suggests that there is not adequate information to substantiate your claims and we consider these matters to be closed at this time.
The applicant did not respond to that letter and deposed at paragraph 42 of her first affidavit (CB43 - 44):
I did not provide further details because I had already sufficiently detailed my complaints and did not want to go through the stress of trying to provide ‘explicit and objective detail’ in circumstances where I felt that my Bullying Complaint was not being taken seriously and was simply being brushed off.
The next development was in July 2020 when most unfortunately the applicant tested positive for COVID-19 and was unwell. She informed Mr Mabon (CB394) who responded by text (CB395) as follows:
Morning Kiarah. Hope your starting to feel better and isolation isn’t too bad. I just wanted to catch you up on sick leave. I had put through last week as sick leave as per COVID policy but unfortunately for this fortnight you will only have three days sick leave to take. Meaning you will be unpaid sick leave for the other shifts. You are then applicable to apply for the funding from the government to subsidise your income. I thought I would inform you sooner so that you can apply and are not left short next pay day. Let me know if I can do anything for you and I hope you feel better soon.
The applicant has deposed (CB44 paragraph 46) that she requested special leave and then thereafter contacted Mr Mabon seeking possibly to be paid out accrued annual leave. Mr Mabon has denied that the applicant asked for any annual leave (CB294).
In the meantime, Mr Mabon had become concerned by what he perceived to be Ms Alde’s unsatisfactory performance. He has deposed (CB288) that the applicant was late to handover about 70 per cent of the time in May and June 2020. Other nurses had allegedly complained to him about the applicant’s clinical performance. This was so notwithstanding a performance review undertaken by another officer of the respondent in May 2020 which gave her a positive review (something Mr Mabon did not agree with). According to Mr Mabon the applicant had on a number of occasions on the shifts of 7 - 8, 8 - 9 and 9 - 10 July failed to adequately care for patients (CB289 -290 paragraph 34). Mr Mabon assessed these as serious deficiencies and took the matter to Ms Curran. Another incident is said by Mr Mabon to have occurred on 24 July 2020. On 2 September 2020 (the delay was largely caused by the applicant’s absence on leave) a letter drafted by Mr Mabon was given to the applicant; this letter is at CB222 - 224 and sets out the allegations to which Mr Mabon referred. The allegations were partly the failure to provide adequate clinical care and partly failure to attend for rostered shifts between 14 April and 16 July 2020 on multiple occasions.
On 9 September 2020 the applicant attended a meeting via Zoom, at which relevantly Mr Mabon and Ms Curran were present, and she read out, it would seem, annexure KAA17 to her first affidavit (CB226 - 227). The applicant pointed out that there were difficulties in responding to the redacted material with which she had been provided, she concluded:
I acknowledge that bringing this issue to my attention is providing me an opportunity to reflect and learn in my practice as an s RN. I take account on my accountability on my errors and will work hard to improve in these areas. I will do this by reviewing relevant Healthscope policy, ANMBA standard of practice and undertaking further education through ANMF.
I acknowledged the time sheet provided to me from April and July 2020 and for being late in coming to the ward on these occasions due to COVID testing. On my reflection I will make sure I have ample time to arrive in the hospital.
Ms Curran has deposed that she did not regard the applicant’s complaints about redaction as being sufficient justification for her incapacity to fully respond but at paragraph 35 in her affidavit (CB265) she deposed,
“After the meeting, I decided that because the Applicant had shown remorse, and agreed to follow Hospital protocol, I would give her a final written warning.”
That written warning was dated 22 September 2020 (CB232 - 233) and constituted a final warning in lieu of dismissal.
However, the march of events had already quickened. On 16 November 2020 Mr Mabon had already written to the applicant, standing her down from work pending an investigation of further allegations of unacceptable and unsafe clinical conduct. On the same day he had approached Ms Curran and told her about allegations of clinical failure on the part of the applicant and he showed her a draft of a letter. The final version was dated 22 September 2020 (CB235 - 244). The applicant was notified of the nature of the alleged failures of clinical care together with redacted patient notes referrable to them and was invited to a meeting on 25 September 2020 to discuss them. The meeting eventually took place on 6 October 2020. The applicant provided her responses and attended a further meeting on 15 October 2020 when she provided additional responses. By this occasion Ms Thompson, the general manager of the hospital, had been notified by Ms Curran of the alleged problems with the applicant’s performance. According to Ms Curran (paragraph 42 CB265) the applicant admitted all of the allegations but made a range of excuses including the fear that she did not want to contract COVID again by attending on patients. Mr Mabon and Ms Curran discussed the matter after the meeting with Ms Thompson and indicated they were not satisfied with the applicant’s competence and Ms Curran recommended the termination of her employment.
This extensive outline, the vast bulk of which is not contested, sets the scene for consideration of the applicant’s claims.
WHAT WORKPLACE RIGHTS DID THE APPLICANT HAVE?
Section 341(1) of the Fair Work Act 2009 (Cth.) relevantly provides:
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
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c)is able to make a complaint or inquiry:
(ii) if the person is an employee--in relation to his or her
Pursuant to section 340(1) of the Act:
A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Pursuant to section 342 adverse action in respect of an employer and against an employee means:
the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee's prejudice; or
(d) discriminates between the employee and other employees of the employer.
Pursuant to section 361 of the Act there is what is referred to as the reverse onus of proof.
The respondent concedes that the applicant had a right to apply for study leave. Pursuant to clause 37 of the Enterprise Bargaining Agreement (CB160) the application must be made at least six weeks before the date of leave and must be approved by “the DON/Nurse Manager. The applicant shall not be unreasonably refused.”
There seems no issue in the case that the six weeks notice was not given but it seems equally clear that this was not a matter upon which the respondent placed any emphasis.
Plainly, the applicant as an employee had a right to make a complaint about her employment.
The respondent concedes that a bullying complaint would be an exercise of a workplace right.
The area where the parties are in issue so far as this aspect of this matter is concerned is whether or not the text sent by Ms Alde to Mr Mabon on 24 April 2020 constituted the exercise of a workplace right. In my view this was plainly a complaint about the applicant’s employment, both in relation to study leave and bullying. It seems to me to do so in terms.
ADVERSE ACTION
As pleaded, there seems to me to be three complaints of adverse action. These are contained at paragraph 19 of the claim (CB16 - 17). They state that the respondent took adverse action by allowing the alleged workplace bullying by Mr Mabon, failing to adequately investigate the workplace bullying complaint and by dismissing the applicant.
Additionally, however, it is said that the applicant complained about the additional matters in her letter to Ms Curran of 8 May 2020 (CB211 - 213).
When the case was opened counsel for the applicant indicated that the application for the study leave and its rejection led inexorably to the termination of employment. The complaint was made that Ms Curran far too readily, almost formulaically, simply accepted Mr Mabon’s denials of bullying complaint. I will return to these matters when I try and deal with each of these aspects of the dispute seriatim.
THE STUDY LEAVE APPLICATION
The applicant’s starting point is that she was discriminated against in not being given study leave when she applied for it. There are a number of things to be said about this. First of all, while it may have been the practice of previous nursing unit managers themselves to approve study leave, the enterprise agreement makes it clear that approval can rest with either the DON or the nurse unit manager. In this case there seems no room for serious doubt that Mr Mabon first signed the application (i.e. supporting it) and gave it to Ms Curran. Ms Curran did not approve it because at the time it was her view that nurses could undertake this particular form of study during working hours, given that loads were lighter than usual. When Mr Mabon gave his evidence, he said the course was made available to all staff. It could be done when there was a low load and would consist of two to three hours work. Twenty three nurses completed it, including himself. Mr Mabon’s evidence, and indeed his evidence generally, was given in an entirely cogent and believable way, and I accept that the refusal to grant Ms Alde the study leave she requested was (a) not a refusal of Mr Mabon, (b) not a discriminatory one in any event but rather one applied to all the relevant staff.
THE ALLEGED BULLYING
The primary matter asserted in this regard, as I understand it, is said to be the occasion on 28 March 2020 when Mr Mabon asked the applicant to go to a meeting with Ms Curran and the applicant refused. The applicant says that the request was given and made in an aggressive and bullying way, and Mr Mabon denies it. Mr Mabon’s evidence, I repeat, was cogent and believable, and I accept it. It is also consistent with a contemporaneous next-day letter written by Ms Curran to the applicant in which she notes the refusal to attend the meeting.
THE ISSUING OF THE 28 APRIL 2020 LETTER
It should be remembered that the issuing of this letter which led to the first warning is said to be part of the continuum of adverse action culminating in termination of employment engaged in by the respondent. Insofar as the letter raises the text sent by the applicant, Ms Curran asserted that the text:
(a)criticised Mr Mabon’s competence as a manager;
(b)inappropriately referred to his sexual orientation;
(c)denigrated him on the basis of being a male manager; and
(d)inferred that the study leave application had been rejected with an evil intent.
In my view, all of these were at least open to be inferred from the terms of the text itself, which I would describe as vituperative and unnecessary and out of all proportion to what Mr Mabon had actually told the applicant about her study leave. It should be remembered that his message concluded with the proposition that the applicant could take the matter further with the DON. The notion that this allegation of unsatisfactory performance was formulated as a response to the study leave application or in any way improperly doing anything other than formulating an allegation of unsatisfactory performance is plainly untenable.
Similarly, insofar as that letter constituted an allegation that the applicant failed to attend her shift on 26 March and likewise on 28 March, this was nothing more than a perfectly appropriate response to a matter that was not devoid of significance.
In his evidence Mr Mabon said that he raised concerns about the applicant not turning up for three shifts. The 28 April 2020 letter from Ms Curran was plainly an appropriate disciplinary response and nothing more.
FURTHER TIME CONCERNS
Mr Mabon has deposed that, notwithstanding the 28 April 2020 letter, in June and July, he had ongoing concerns about the applicant’s timeliness of attendance. The applicant has of course challenged that in her own materials and evidence. When it was put to Mr Mabon that the applicant was only two to five minutes late, Mr Mabon rejected this. He pointed out that when you clock in, this was at the front and there is still a five minute walk to where the applicant actually worked, together with the time required to put stuff away before you actually start work. Mr Mabon said there were one or two other employees he had to counsel, and they then came earlier. This evidence once again was given with complete conviction and I make it clear that I accept it.
THE ALLEGED FAILURE TO PROPERLY INVESTIGATE THE BULLYING COMPLAINT
As earlier indicated, Ms Curran had written to the applicant on 29 April 2020 enclosing the bullying policy and requesting details of any alleged bullying said to have taken place. She pointed out the need for specificity in the response.
The applicant’s reply dated 8 May 2020, CB211 - 213, gives some dates and indicates some of the people involved, but certainly does not, in each instance, condescend to great detail.
Minds might differ whether what was provided was indeed sufficient to comply with the detail required by the bullying policy. What really happened, of course, was that Ms Curran went and spoke to Mr Mabon who completely denied all the allegations made against him and did so, in Ms Curran’s view, convincingly. I should interpolate and say that Mr Mabon denied all matters against him in court and I again found his answers entirely convincing.
In any event, Ms Curran wrote to the applicant with her response on 2 June 2020, CB215 - 218, and as earlier indicated, said that it was not possible to substantiate the allegations of bullying. The letter went on to request the applicant to give further details and indicated a preparedness to further consider the matter, should this occur. I have no doubt that this response did not occur because of the study leave application or the text. Ms Curran and Mr Mabon have denied it and I accept their denials.
THE TEXT ITSELF
The evidence of Mr Mabon was that he was hurt by this text, but he quickly got over it. Although my finding has perhaps a slightly repetitive quality, I found this evidence entirely believable. It was given with conviction. Moreover, it is consistent with the subsequent and, in my view, very sympathetic (albeit ultimately conceded to be factually incorrect) text message sent by Mr Mabon to Ms Alde when she was sick with COVID. Mr Mabon conceded that he could have authorised annual leave and was wrong but made an honest mistake in this regard. The tenor of the later text message is simply utterly inconsistent with a person (Mr Mabon) carrying a grudge but entirely consistent with somebody who had got over the text, as he said he did.
THE OTHER ANCILLARY COMPLAINTS
These may be dealt with shortly. The applicant complained of being rostered on to West Ward, but it is quite clear that West Ward was her home station, as Mr Mabon says. Mr Mabon has, in my view convincingly, explained any failure to send the applicant any emails involving ACAS. Suggestions that he altered her shifts to her detriment were really scarcely pressed at all. The assertion that Mr Mabon inappropriately sought to ridicule the applicant by referring to her commencement of shift times and the like is simply denied by Mr Mabon and, in my view, convincingly so.
THE FURTHER DISCIPLINARY ACTION
It is of course put by the applicant that, once the applicant had exercised her rights in relation to study leave and the bullying complaint (and on her case, sending the text), the respondent took disciplinary action against her because of this. The applicant was undoubtedly late, as I have already indicated, in June and July. By this stage, complaints appear to have been filtering back to Mr Mabon from other nurses about the applicant’s conduct. It is quite clear that on 10 July 2020 Mr Mabon accompanied doctors on their round of patients on the ward and problems emerged with the previous three nights worth of work, and in respect of the applicant’s clinical care. He immediately took the patients’ charts to Ms Curran and told her about the problems he had identified which led, together with a further instance of 24 July 2020, to the 2 September 2020 letter from Mr Mabon being given to the applicant. For the reasons already described Ms Curran gave the applicant a further final warning on 22 September 2020.
In the meantime, a further incident had taken place on 16 September whereby Mr Mabon found further deficiencies in the applicant’s clinical care. He stood the applicant down and the allegations were put to the applicant by letter 22 September 2020 from Mr Mabon (this was, of course, the date upon which Ms Curran sent the final written warning). On 6 October 2020, as earlier indicated, the meeting took place. As indicated Ms Curran’s version of those events is in the letter of 12 October 2020 (CB281 - 283).
The applicant sought to challenge the veracity of the account written by Ms Curran, although this only emerged in re-examination and in response to some helpful assistance. Ms Curran has deposed that the applicant admitted all of the allegations and made the excuses to which I have earlier referred (CB265). She has also deposed that her letter of 6 October as to the applicant’s responses in the meeting of 6 October were accurate (paragraph 47, CB266). It is sufficient to say that Ms Curran was, like Mr Mabon, an excellent witness whose evidence was given clearly, concisely and with conviction. It is plain that Ms Curran’s recollection is correct. This is not, of course, an unfair dismissal case, but on any view of the matter, the responses given by the applicant as recorded by Ms Curran show very significant deficiencies in the applicant’s clinical care and, in my view, it would seem quite clear that the respondent’s response was one that was entirely proper.
THE TERMINATION OF EMPLOYMENT
As earlier indicated, Ms Thompson had by these latter stages been directly involved by Ms Curran. Ms Thompson was the person who took the decision to terminate the applicant’s employment. It was, of course, recommended to her by Ms Curran. Ms Thompson’s affidavit makes it clear that it was a matter for her and her alone as to whether or not termination of employment should be made. And the affidavit speaks for itself as to why she came to that conclusion.
THE REVERSE ONUS OF PROOF
All of the respondent’s witnesses have denied in their affidavits and in their oral evidence, insofar as the matter was put to them, that they were in any way prompted at any stage of the disciplinary process that was brought to bear upon the applicant, by her application for study leave, her text (save to the extent that this constituted a proper disciplinary response to that document), or the bullying complaints or indeed any of the other matters the applicant has raised. They were all excellent – one might even say outstanding witnesses. I accept their denials. The respondent has discharged the reverse onus of proof in section 361 of the Act.
THE AHPRA REPORT
In or about May 2011, long after the applicant’s employment has ceased, Mr Mabon submitted a notification of concern to AHPRA. He had raised it with Ms Curran shortly before she ceased employment in April 2021 and told Ms Thompson he had done it. He had told Ms Thompson after he was appointed Acting DON possibly in June 2021. It was submitted online. When asked why he had done this, some 10 months or thereabouts after the employment ceased, Mr Mabon’s answer was that he did not quite know. He referred to COVID and the hectic time that this has involved. He denied being vindictive to the applicant and repeated that he was not annoyed about the bullying complaint. He said he had a duty of care under the AHPRA regulations. He had, in fact, made such an allegation in the past in respect of a graduate nurse. Here, this was a nurse with substantial experience. His concerns were serious enough for him to be concerned and worried about patient safety. He was not aware the applicant was unemployed at the time.
Various bundles of materials that Mr Mabon had forwarded to AHPRA were tendered as exhibits A1 to A4. He said that he done this partly on behalf of his employer and partly because of his duty of care. He had not seen Ms Alde’s response to AHPRA at CB345. He conceded that this challenged the matters he had raised. He agreed that AHPRA decided to take no further investigation. He suggested that AHPRA seemed happy with the decision the hospital had made.
Much was sought to be made by the applicant of the rejection, as it was put, of the complaint made by Mr Mabon to AHPRA, but in my view, AHPRA’s decision is more nuanced. Both in the notification outcome to Ms Alde at CB349 - 350 and in the response to Mr Mabon himself (exhibit R1), the position seems to me to be less than conclusively in favour of either party. Perhaps the critical extract in both letters is the following:
Based on all of the information available, the Board believe the steps taken by the notifier’s organisation/employer are sufficient to achieve safe, professional practice by the practitioner.
It would seem from the evidence that the mere fact of Mr Mabon’s complaint may in some fashion form part of an ongoing record kept by AHPRA, but the evidence is not clear as to whether this is a detriment. It should be noted that counsel for the applicant, in my view correctly, conceded that the notification of AHPRA could not constitute adverse action, as of course, Ms Alde was no longer an employee when it took place. It was put, however, that this action, as it were, pointed back to the vindictive and spiteful adverse action earlier taken and formed part of a continuum with that. I have already rejected the notion that the earlier conduct constituted adverse action for the reasons given. To the extent that it is necessary to do so, I would confirm that once again, Mr Mabon’s evidence was given convincingly. Although he could not say exactly why he had made the notification to AHPRA, suggesting that it arose out of his concerns and duty of care, he was quite clear that it had nothing to do with the earlier matters of which complaint had been made. Once again, I accept his evidence in that regard.
CONCLUSION
It is easy to see why the applicant thinks that she was the subject of a concerted campaign designed to injure her in and ultimately terminate her employment. This is particularly so given the belated notification to AHPRA. Looked at from her perspective, her previously uneventful and satisfactory employment performance came to a jarring conclusion only shortly after Mr Mabon, and indeed for that matter Ms Curran, were appointed. She saw the events of 2020 as the unravelling of a sock. There is no doubt that the applicant was in part the author of her own misfortunes by sending the unpleasant text message to Mr Mabon, which quite properly gave rise to the first disciplinary action taken against her. The events that thereafter followed arose as I hope I have made it clear as a result of genuine and, it would appear, well-founded concerns on the part, first of Mr Mabon, and then in due course, Ms Curran and Ms Thompson as to the work performance of Ms Alde, and most particularly, her clinical inadequacies. The manner, and perhaps more so the timing, of the notification to AHPRA was unfortunate, but as I have explained it was not in any way related to the complaints Ms Alde had made.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 21 January 2022
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