Anastasia Perri v Dental Health Services Victoria

[2013] FWC 6220

[2013] FWC 6220

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Anastasia Perri
v
Dental Health Services Victoria
(C2013/4458)

Health and welfare services
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 6 SEPTEMBER 2013

Alleged dispute concerning written warning - whether agreement disciplinary procedure followed.

[1] On 22 May 2013 Ms.Anastasia Perri made an application for the Commission to deal with a dispute in accordance with a dispute settlement procedure. The relief sought by her was that a second written warning issued to her be rescinded, that inappropriate action by the Department to her while she was on sick leave be acknowledged, and that the Department address bullying behaviour.

[2] The matter was conciliated and no agreement was reached.

[3] Section 739 of the Fair Work Act 2009 (‘the Act’) authorises me to exercise powers under the dispute settling procedure, clause 77, of the Victorian Public Health Sector (Health Professionals, Health and Allied Services, Managers & Administrative Officers) Multiple Enterprise Agreement 2001-2015 (the agreement). That clause authorises me to determine a dispute about clause 125 by arbitration. Clause 125 sets out the procedure for disciplining an employee such as Ms.Perri.

Evidence

[4] The sequence of events is not in dispute, and neither side found it necessary to call evidence.

[5] On 5 January 2012 Ms.Perri was offered, and on 9 January she accepted, a position with Dental Health.

[6] On 19 November 2012 she met with her supervisor, Ms.Princi, a union representative, and managers. The content of the meeting was recorded in a minute signed by her, which was not in dispute 1. The minute states that:

‘The purpose of this meeting was to discuss the current concerns Kerina Princi has in regards to the punctuality of Anastasia Perri.’

[7] The minute states that it was agreed that Ms.Perri start work at 9.30 am, and that since January 2012 several discussions have taken place between Ms.Perri and Ms.Princi regarding Ms.Perri’s punctuality.

‘At the end of September 2012 during a formal meeting a document was provided to Ms.Perri referencing specific instances regarding late arrival. These instances had occurred after the initial, informal conversations. It was reiterated during this discussion that 9.30 am is the start time for Anastasia and Kerina communicated that formal performance management would occur if there were other instances where Anastasia came after 9.30 am.’

[8] The ‘outcomes’ of the meeting were that Ms.Perri agreed to start work at 9.30, that she would provide a minimum of 30 minutes notice if she was running late, and that:

‘All parties acknowledged this as a verbal warning and follows the DHSV Performance Counselling Policy. Any instances of late arrival without appropriate reason and/or communication may incur further warnings which may lead to termination of employment.’

[9] Discussions between Ms.Perri and management occurred regarding a Performance Plan and Objectives (14 December 2012, 21 December 2012) 2.

[10] On 8 January 2013 Ms.Princi wrote to Ms.Perri concerning a meeting held regarding the implementation of Ms.Perri’s Performance Management Plan 3. Again, the letter and its contents are not in dispute. It records Ms.Perri as leaving ‘after only 10 minutes of discussion’. Ms.Princi summarised the contents of the meeting, which included discussion of Ms.Perri arriving punctually by 9.30 am daily, prioritising daily and weekly tasks associated with the study to ensure demands and timelines for the project are met. The letter records Ms.Perri as behaving in following manner:

‘At this point, you became angry, packed up your papers and left the meeting stating you have had enough and can’t continue with this any further.’

[11] Ms.Princi expresses concern that this ‘demonstrates a lack of respect for me as your manager fails to meet you obligations as an employee to participate in the agreed Performance Development Plan and demonstrates behaviour which is contrary to the organisational values.’

[12] Ms.Princi also raises alleged problems of Ms.Perri speaking too loudly on the phone, and so disrupting the workplace, and wearing inappropriate attire.

[13] Ms.Princi states that she has scheduled a meeting on 10 January 2013, invites her to have a support person, refers to the ‘first warning you received on 19 November 2012 and advise you that should your responses by deemed unacceptable or failing to attend this meeting may mean that Dental Health Services Victoria find it appropriate to initiate further disciplinary proceedings in line with DHSV disciplinary policies and procedures (a copy has been enclosed for your information).’.

[14] On 21 January 2013 Ms.Hanny Calache, Director, wrote to Ms.Perri summarising the contents of a meeting held with Ms.Perri on 17 January 2013, attended also by Ms.Perri’s HSU representative 4. Again, the contents are not in dispute. The issues discussed were firstly Ms.Perri’s lateness for work. She was advised that she was to attend work at 9.30 am each morning, and was expected to be on time. If she was late she was required to phone Ms.Princi. Secondly, she was advised that her responsibilities as an employee were to participate in the meeting of 7 January 2013, and that her actions in leaving the meeting were unjustifiable. Thirdly, she was advised that her volume of voice on the telephone was too loud. Fourthly, she was advised that she had worn clothing on a number of occasions that was inappropriate for work.

[15] She was advised that her responses during the meeting were ‘deemed to be unacceptable and demonstrated a lack of respect for your manager and your behaviour was contrary to the values at DHSV. This was demonstrated by your continuing lack of punctuality despite your warnings, your unprofessional behaviour in the meeting on 7 January and unacceptance of responsibility in relation to your role and undertaking the performance plan. I make reference to the first warning you received on 19 November 2012 and advise you that in this instance you have been issued with a Second Warning. This letter acts as confirmation of that warning and a copy of this letter will remain on your personal file for a period of 12 months and may be referred to should concerns regarding your workplace performance and behaviours continue in the future’. She was required to engage in performance feedback with Ms.Princi and Ms.Calache.

[16] On 5 February 2013 Ms.Perri’s HSU representative was advised that the issue of dress and volume of voice were not the basis of the second warning. That warning concerned ‘ongoing lack of punctuality and her conduct in the meeting with Kerina which she ended’ 5.

[17] On 31 January 2013, Ms.Perri sent an email stating that no manager or staff member had raised the volume of her voice as a problem, and similarly no individual or reporting manager had raised a problem with her attire 6.

[18] On 20 March 2013 Ms.Perri lodged a complaint about a number of matters. On 14 May 2013 7 that complaint was rejected, and the second warning was confirmed.

Decision

[19] The HSU, on behalf of Ms.Perri, submits that Ms.Perri made several complaints against Ms.Princi in relation to workplace bullying and intimidation. It submitted that the verbal warning issued by Ms.Princi is in breach of the general protections provisions of the Act. It withdrew this submission during proceedings, on the basis that the dispute settling procedure did not empower the Commission to determine this issue 8.

[20] It submits that the second warning is in breach of clause 125 of the agreement, because the 21 January 2013 warning was a combined warning, instead of the three stages required by the clause. The clause requires a verbal warning, an opportunity to improve, and then a written warning. It made a range of other submissions 9. Dental Health submitted that clause 125 was followed.

[21] On the submissions and evidence before me, Dental Health issued Ms.Perri with a verbal warning on 19 November 2012. The warning concerned punctuality. Ms.Perri was given the opportunity to improve. Dental Health endeavoured to assist her in improving by discussions, and a Performance Improvement Plan. On 17 January 2013 Ms.Perri was advised that further disciplinary action was necessary. She was given the opportunity to put her point of view. A second written warning was issued on 21 January 2013, which related to punctuality and her behaviour at a meeting. The subject matter of the warning was expressly limited to those two issues by the employer. One issue is the same issue that the first warning related to, punctuality. The second issue concerns a new issue which arose after the first warning, and as part of the process of assisting Ms.Perri to improve her performance. There is nothing in clause 125 which prevents that second, new issue being raised, particularly since it involved the process of assisting Ms.Perri to improve after the first warning. She had an HSU representative present at both the 19 November 2012 10 and 7 January 2013 meetings11.

[22] In my view Dental Health has complied with the procedure for disciplining employees set out in clause 125. There was no ‘combined’ warning. A verbal warning was issued, Ms.Perri was given an opportunity to improve, and then a second written warning was issued consistent with the procedure set out in clause 125.1-125.2. An order dismissing the application is contained in PR540965.

DEPUTY PRESIDENT

Appearances:

Mr N Murphy from the Health Services Union for the applicant

Mr S McCullough from Victorian Hospitals’ Industrial Association for the respondent and Mr D Jacka of the respondent

Hearing details:

2013

Melbourne

28 August

15 July

Attachment 1: Clause 125 Disciplinary Procedures

Clause 125 of the Agreement provides:

125. DISCIPLINARY PROCEDURES

125.1 Where disciplinary action is necessary, the management representative shall notify the Employee of the reason. The first warning shall be verbal and will be recorded on the Employee’s personal file. A local union or other representative shall be present if desired by either party.

125.2 Where further disciplinary action is necessary the matter will be discussed with the Employee and a second warning in writing will be given to the Employee and recorded on the Employee’s personal file. The local union or other representative shall be present if desired by either party.

125.3 Where further disciplinary action is necessary the Employee will be seen again by management. A final warning may be given. If a final warning is to be given then it shall be issued in writing and if required by either party, a copy sent to the relevant union. The Employee has the right to union or other representation.

125.4 Where further disciplinary action is necessary then the Employee may be terminated. No dismissals are to take place without the authority of senior management.

125.5 Summary dismissal of an Employee may still occur for acts of serious and wilful misconduct.

125.6 Any dispute arising over the disciplinary action shall be dealt with in accordance with clause 77 (Dispute Settling Procedures) of Section 3.

125.7 If after any warning, a period of twelve months elapses without any further warning or action being required, all adverse reports relating to the warning must be removed from the Employee’s personal file.

125.8 All new Employees shall be handed a copy of these procedures on commencement of employment.

 1   Exhibit D1, Attachment 2

 2   Exhibit D1, Attachments 3-6

 3   Exhibit D1, Attachment 7

 4   Exhibit D1, Attachment 8

 5   Exhibit D1, Attachment 9

 6   Exhibit D1, Attachment 9

 7   Exhibit D1, Attachment 12

 8   PN649

 9   Exhibit HSU1, Exhibit HSU2

 10   Exhibit D1, Attachment 2, Desmond Manthos, ‘HSU Union Representative’

 11   Exhibit D1, Attachment 8, ‘Kevin Bradford, Organiser HSU’

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<Price code C, AE896737  PR540852>